RECIPROCITY BETWEEN LAW AND SOCIAL CHANGE
The subject of whether law can and should lead, or whether it should never do more than cautiously follow changes in society, remains controversial. The conflicting approaches more than two centuries ago of the British social reformer Jeremy Bentham and the German legal scholar Friedrich Karl von Savigny provided the contrasting classical paradigms for this long-standing debate. At the beginning of industrialization and urbanization in Europe, Bentham expected legal reforms to respond quickly to new social needs and to restructure society. He freely gave advice to the leaders of the French Revolution, since he believed that countries at a similar stage of economic development needed similar remedies for their common problems. In fact, it was Bentham’s philosophy, and that of his disciples, that turned the British parliament—and similar institutions in other countries—into active legislative instruments to help achieve various social reforms.
Writing at about the same period, Savigny condemned the sweeping legal reforms brought about by the French Revolution that were threatening to invade Western Europe. He believed that only fully developed popular customs could form the basis of legal change. Since customs grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs, and they can only be national, never universal.
Well over two centuries later, the relationship between law and social change remains controversial. The basic debate concerns whether law merely reflects public sentiment and behavior or instead can be used to shape public sentiment and behavior. As Vilhelm Aubert once explained,
According to the first view, law is determined by the sense of justice and the moral sentiments of the population, and legislation can achieve results only by staying relatively close to prevailing social norms. According to the second view, law, and especially legislation, is a vehicle through which a programmed social evolution can be brought about.
At one extreme, then, is the view that law is a dependent variable, determined and shaped by current mores and opinions of society. According to this position, legal changes would be impossible unless preceded by social change; law reform could do nothing except codify custom. This is clearly not so, and ignores the fact that throughout history, legal institutions have been found to “have a definite role, rather poorly understood, as instruments that set off, monitor, or otherwise regulate the fact or pace of social change” (Friedman, 1969:29).
The other extreme envisions the law as an instrument for social engineering. This was the view of many jurists in the former Soviet Union, which “made extensive use of legislation to guide society [and to] establish and develop social economic forms. [It also] used legislation to create and improve the institutions of socialist democracy, to establish firm law and order, safeguard the social system and state security, and build socialism” (Gureyev and Sedugin, 1977:12).
These general views still represent the two extremes of a continuum representing the relationship between law and social change. The problem of the interplay between law and social change is obviously not a simple one. Essentially, the question is not, “Does law change society, or does social change alter law?” Both contentions are likely to be correct.
Instead, it is more appropriate to ask under what specific circumstances law can achieve social change, at what level, and to what extent. Similarly, the conditions under which social change alters law need to be specified.
In general, in a highly urbanized and industrialized society like the United States, law does play a large part in social change, and vice versa, at least much more so than is the case in traditional societies. There are several ways of illustrating this reciprocal relationship (Nagel, 1975). For example, in the domain of family relations, urbanization, with its small apartments and crowded conditions, has lessened the desirability (and the feasibility) of three-generation families in a single household. This social change helped to establish certain social welfare legislation laws that in turn helped generate changes in the labor force and in social institutions for the aged. As another example, technological changes have caused the relation of personal-property owners to other individuals to become more impersonal and more likely to lead to injury As a result, there have been alterations in the legal definition of fault, which in turn has changed the American insurance system
Although there is an obvious and empirically demonstrable reciprocal relationship between law and social change, with social change influencing law and law also influencing social change, for analytical purposes we will briefly consider these two relationships separately.
To this end, the next section examines the conditions under which social change induces legal change, while the following section discusses law as an instrument of social change.