Law and Society

O ne of this decade’s most heated social debates has concerned same-sex marriage. States throughout the nation passed constitutional amendments that banned same-sex marriages; the state supreme court of Massachusetts ruled in 2004 that its state constitution permitted same-sex marriage; and, taking a middle ground, several states (California, Connecticut, Hawaii, Maine, New Hampshire, New Jersey, and Vermont) enacted legislation that gave civil unions or domestic partnerships between same-sex couples many or all of the legal protections enjoyed by marriages between heterosexual couples. Hundreds of gay couples married in Massachusetts after same-sex marriage became legal there, and many other couples filed for civil union or domestic partnership status in the states that granted this status new rights. The legal developments regarding same-sex marriage and civil unions were themselves a result of attention given to gays and lesbians during the last few decades, much of it resulting from their own efforts to do away with homophobia and anti-gay discrimination.

This brief summary does not do the same-sex marriage issue justice, but it does indicate the interplay between law and social change. Changes in society can bring about changes in law, broadly defined, and changes in law can bring about changes in society. The relationship between law and social change has been a key dimension of the study of law and society since the rise of

Chapter Outline

The Impact of Social Change on Law: Law as Dependent Variable

–Social Change and Fundamental Legal Change

–Social Change and Specific Legal Developments

The Impact of Law on Social Change: Law as Independent Variable

–Aspects of the Law → Social Change Relationship

–The Limits of Law as a Social Change Vehicle

–Problems in Assessing Legal Impact

–Conditions That Maximize the Potential Impact of Legal Change

Law and Social Movements

–Use of Law by Social Movements

–Use of Law Against Social Movements

Summary Key Terms

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Chapter 6 • Law and Social Change 169

the Historical School (see Chapter 2) during the nineteenth century. As Chapter 1 emphasized, the idea that society can affect law and that law can affect society is a basic premise of the field of law and society today. As dis- cussed in that chapter, several key assumptions guide theory and research in the field. Two of these were that major changes in society often bring about changes in the law, and that laws and legal decisions may have a potential impact on one or more aspects of society.

As should be apparent, then, the existence of a two-way or reciprocal relationship between law and social change is a defining component of the law and society canon. Friedman (2004a) likens this reciprocal relationship to the process and aftermath of building a bridge. Suppose there is a commu- nity, he says, on the banks of a wide river that is serviced only by a slow ferry. The residents put pressure on their government to build a bridge, and the bridge eventually gets built. Now that traffic easily goes across the bridge everyday, the community begins to change. Some people begin to live on the other side of the river, and more people, whichever side they live on, begin to commute to jobs on the other side. The ferry stops operating, and the bridge becomes so dominant a feature of the residents’ existence that it “affects their behavior, their way of thinking, their expectations, their way of life” (p. 16). It becomes difficult for them to even imagine life before the bridge was built. The bridge, Freidman observes, is a metaphor for law and the legal system. The bridge was built because of social forces and social change—in this case citizen pressure on government—and, once built, “it began to exert an influence on behavior and attitudes” (p. 16). Similarly, law may change because of changes and pressures in the larger society, and, once it does change, it then begins to influence behavior and attitudes. Thus, although this chapter discusses the influence of social change on law and that of law on social change separately, the reciprocal relationship suggested by the bridge metaphor should be kept in mind.

Before moving on, it will be useful to introduce some social science jar- gon with which many readers may already be familiar. In a potentially causal relationship between two variables (e.g., race affects income), the independent variable is something that affects or influences a dependent variable, and the dependent variable is something that is affected or influ- enced by an independent variable. In the race and income relationship, race is the independent variable and income is the dependent variable. These two terms are often used in discussing the relationship between law and social change. Thus, when we say that changes in society may bring about changes in law, we are treating social change as the independent variable and legal change as the dependent variable. On the other hand, when we say that changes in law may bring about changes in society, we are treating legal change as the independent variable and social change as the dependent variable.

This chapter reviews the large variety of work on law and social change. We start by looking at the impact of changes in society on changes in law and then examine the impact of changes in law on changes in society.

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170 Chapter 6 • Law and Social Change

The final section discusses law and social movements, an emerging subfield within the larger law and social change rubric that is attracting increasing attention from scholars of law and society and of social movements.

THE IMPACT OF SOCIAL CHANGE ON LAW: LAW AS DEPENDENT VARIABLE

Literature on the impact of social change on legal change falls into two broad types based on the scope of the changes involved. The first type is in the tra- dition of “grand theory” and examines how and why broad social changes produce far-reaching changes in the nature of a legal system, legal reasoning, and other fundamental dimensions of law. The second type has a somewhat more narrow focus, as it examines how and why certain social changes pro- duce new legislation, new court rulings, new legal procedures, or other rather specific aspects of law. We will discuss both types of impact in this section.

Social Change and Fundamental Legal Change

The model for the first type, on the impact of broad social change on funda- mental legal change, comes from the Historical School (see Chapter 2). Although the different theorists who made up this school took very different approaches, all were concerned with a basic social science question: how and why did law change as society became more modern (Cotterrell 2004)?

One of the Historical School’s figures, English professor Sir Henry Maine (1822–1888), answered this question in his influential book Ancient Law (Maine 1864), in which he explored the evolution of law from ancient times to modern (nineteenth century) times. Recall from Chapter 2 that Maine is famous for his view that law changed from status to contract. In older societies, relationships were governed by power (or status) based on the relative social standing of the individuals in the relationship. The most extreme of relationships in terms of power differences was slavery. Over time, these traditional power-based rela- tionships were replaced by agreements that were more voluntary and increas- ingly based on verbal and then written contracts. For Maine, then, a key dimension of modernization involved the rise of contractual relationships based on the voluntary agreement of the individuals in the relationship.

Other members of the Historical School included the three key founders of sociology whose work was briefly introduced in Chapter 2: Durkheim, Weber, and Marx (with collaborator Engels). Because their work on the impact of social change on law is so historically important and is still influential more than a century later, we examine it here in some detail.

Emile Durkheim: The Rise of Restitutive Law. French scholar Emile Durkheim (1858–1917) developed several themes that continue to resonate in social science theory and research today. Our discussion here is limited to the aspects of his work that are relevant for law and social change.