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SOCIAL CHANGES AS CAUSES OF LEGAL CHANGES

In a broad historical framework, social change has been slow enough to make custom the principal source of law. Law could respond to social change over decades or even centuries (Edgeworth, 2003). Even during the early stages of the Industrial Revolution, changes induced by the invention of the steam engine or the advent of electricity were gradual enough to make legal responses valid for a generation. As time went by, however, social change became more rapid, forcing the law to respond more quickly. As Alvin Toffler (1970:11) famously observed, “Change sweeps through the highly industrialized countries with waves of ever accelerating speed and unprecedented impact.” In a sense, people in modern society are caught in a maelstrom of social change, living through a series of contrary and interacting revolutions in demography, urbanization, bureaucratization, industrialization, science, transportation, agriculture, communication, biomedical research, education, and civil rights. During the past many decades, each of these revolutions has brought spectacular changes in a string of tumultuous consequences and transformed people’s values, attitudes, behavior, and institutions.

Many sociologists and legal scholars assert that technology is one of the great moving forces for change in law (Volti, 2010). In just one example, the shifting forms of technological literacy (ranging from the invention of writing through the mass production of legal texts brought about by the printing press to the use of computers and the Internet) have shaped law, the practice of law today, and the training of lawyers (Tiersma, 2010). There is also consensus in the literature that technology generally changes exponentially while social, legal, and economic systems change incrementally (for example, the laws have not kept pace with the rapid changes brought about by the digital revolution [Downes, 2009]).

Technology influences law in at least three ways:

The most obvious . . . is technology's contribution to the refinement of legal technique by providing instruments to be used in applying law (e.g., fingerprinting or the use of a lie detector). A second, no less significant, is technology's effect on the process of formulating and applying law as a result of the changes technology fosters in the social and intellectual climate in which the legal process is executed (e.g., televised hearings). Finally, technology affects the substance of law by presenting new problems and new conditions with which law must deal.

(Stover, quoted by Miller, 1979:14)

Technology moves so quickly that we can barely keep up, and our legal system moves so slowly that it can’t keep up with itself. Illustrations from the past century of technological changes leading to legal changes abound. The advent of the automobile and air travel brought along new regulations. The automobile, for example, has been responsible for an immense amount of law: traffic rules, rules about drunken driving, rules about auto safety, drivers’ license laws, rules about pollution control, registration, and so on. Just as technology has given a big boost to the retail industry, it has also transformed retail crime. Using sophisticated tactics such as bar-code forgeries and fraudulent gift cards, criminals steal large amounts, and many high-tech thieves belong to organized crime rings resulting in the formation of organized retail crime task forces among other control measures (Zimmerman, 2006). As another example, the Internet has led to a new form of bullying, cyberbullying, in which bullies use Twitter, Facebook, or other social media means to intimidate, harass, embarrass, and offend others. Through these means, bullies can engage in a variety of activities without ever having to face their victims and often without consequences (Algar, 2017).

Another impact of technological changes on law concerns various developments in crime detection over the years, including fingerprinting, DNA use, and electronic surveillance. These developments prompted many changes in the law, such as the kinds of evidence admissible in court (Carr, 2009). Although personal computers have existed for many readers’ lifetimes, they are certainly still a relatively recent development. Their development combined with the advent of the Internet to enable cybercrime, the unleashing of viruses, worms, and other rogue programs onto victims’ computers to disrupt them or steal information. Virtually overnight, this type of technological change created a new type of crime, identify theft, and the law had to respond accordingly (Grabosky, 2016).

In addition to technological changes, shifts in community values and attitudes may also prompt changes in law. To cite several examples drawn from the past half-century, people may come to think that poverty is bad and that laws should be created to reduce it in some way. People may come, as happened in the United States during the past half-century, to condemn the use of law to further racial discrimination in voting, housing, employment, education, and the like and may support changes that forbid the use of law for this purpose. People may come to think that businesspeople should not be free to put just any kind of foodstuff on the market without proper governmental inspection, or fly any plane without having to meet governmental safety standards, or show anything on television that they wish. So laws may be enacted as appropriate and regulatory bodies may be brought into being as necessary And people may come to think that the practice of abortion is not evil, or that the practice of contraception is desirable, or that divorce and remarriage are not immoral Hence, laws governing these practices may undergo repeal or revision.

Alterations in social conditions, technology, knowledge, values, and attitudes, then, may induce legal change. In such instances, the law is reactive and follows social change. It should be noted, however, that changes in law are one of many responses to social change. But the legal response in some respects is important, because it represents the authority of the state and its sanctioning power. A new law in response to a new social or technological problem may help to alleviate the problem, but it may also aggravate that problem. Often, the legal response to social change, which inevitably comes after a time lag, induces new social changes. For example, the legalization of same-sex marriage has increased the number of legal divorces, since some same-sex couples who were previously not permitted to marry are now getting divorced (Vasileff, 2015).

 
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