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ELITES AND CONFLICTING INTERESTS

We begin with conflicting interests between groups with and without power in society. Access to scarce resources and highly cherished objects is limited in every society. In the struggle to achieve them, some individuals and groups win; others lose. More than a century ago, Max Weber had already recognized, as did Karl Marx before him, that many laws are created to serve special economic interests. Individuals with the control of ownership of material goods are generally favored by laws since “economic interests are among the strongest factors influencing the creation of law” (Weber, 1968:334). Weber further recognized that other special interests, in addition to the economic ones, influence the formation of law. These other interests include maintaining one’s prestige, power, and other advantages that are not, strictly speaking, economic in nature.

Two important insights are contained in Weber’s points. The first point is that conflict of interest provides the framework in which laws are framed and change is created. Consequently, social stratification in a society determines to a large extent the role laws will play in bringing about change. This dynamic arises out of the selectiveness and preferences exercised by those (typically social elites) who promulgate those changes.

The second point concerns the significance of the use of power to back up those changes. Studies of the legislative, judicial, and administrative processes in a society could lead very quickly to a discovery of not only who wields the power in society but also what interests are significant and influential in that group. Thus, the law as an instrument of a change can be viewed in the context of the organization of power and the processes by which interests are established in everyday social life; the resulting changes might very well be evaluated in those terms.

In a sense, it is obvious that the powerful make and administer the laws in society. If anything gets done, it is because somebody had the power to do it. At the same time, those who are powerful and influential tend to use the law to protect their advantageous position in society. Many legislative enactments, administrative rulings, and judicial decisions reflect the power configurations in society. Some groups and associations are more powerful than others, and by virtue of being at the center of power, they are better able to reinforce their interests than those at the periphery. Furthermore, many people are often apathetic about or unaware of an issue, but even when they are concerned, they are frequently unable to organize and thus successfully impose their preference on the legislature.

At the same time, those who are considered coerced or oppressed by a system of laws imposed upon them by a ruling minority often seem unaware of their coercion or oppression. Indeed, they are frequently among the strongest partisans of the existing legal system. It may be argued that they have been “indoctrinated” by the ruling establishment, which uses its power to confuse them as to their true interests. But this requires that we distinguish between what people define as their interests and what their “true interests” are, a distinction that is the subject of much intellectual debate.

It is debatable whether the existence of conflicting interests could really be construed as pointing to a serious limitation of the law as an instrument of change. The points raised concerning the power of certain interest groups are valid, but the actual mechanics of change through the law would in any case preclude inclusion of large segments of the population. Large-scale participation of the citizenry in legal change, even in a democratic society, is seldom feasible. But lack of participation does not necessarily mean lack of representation. In the United States and most parts of Europe, people do have access (although of varying rates) to lawmakers and to the legal apparatus, and their aspirations for change through the law are often realized.

 
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