Factors Affecting Law - Lec 4 Flashcards
Speed of social change
Slow - historically - industrial revolution.
Revolutions in urbanisation, transportation, and communication, have accelerated social change.
How has technology influenced law?
How technology influences law:
Techniques for applying or enforcing law, e.g. finger-printing, DNA testing, 3D mapping of crime scenes, use of cell-phone location data, etc.
Impact on processes for formulating law, e.g. virtual parliament, Zoom court hearings.
The content of law (new crimes), e.g. cybercrime – technology presents new problems which the law must address.
What do we mean when we say laws are ‘reactive’ or ‘proactive’?
Reactive - When the law follows social change – alterations in social conditions, technology, knowledge, values and attitudes then may induce legal change.
- Responding to legal issues as they arise e.g. Marriage equality
Proactive – initiator of social change.
- Laws put in place to prevent issues from happening.
Law can have a direct/indirect role in social change;
Direct - law directly impacts basic social institutions, and thereby changes society, e.g. anti-discrimination laws which open up institutions to excluded groups.
Indirect - shapes social institutions, which in turn have a direct role in shaping society, e.g. education’ school attendance became mandatory and contributed to numerous social changes.
Example of law’s indirect role in social change
Education
More people are able to move into education and tertiary pathways
Mandatory (forced?) school attendance
(May have) led to increase in the quality of the labour force
(May have) led to increase in specialisation of employment types
(may have) led to increase in growth of the services sector of the economy.
7 conditions when the law may successfully induce social change;
- The law must come from an authoritative source.
- The law must introduce its rationale in ways which are compatible with existing values.
- Reference should be made to other communities whom the population identifies with, and whom already have the proposed law.
- Enforcement of the law must be aimed at making the change in a relatively short period of time – enforcement capacity.
- Enforcement by those who are committed to the change of law.
- The instruments to deliver the sanctions should be positive (incentives), and negative (penalties/punishments).
- Enforcement of the law should be reasonable, and also protect those who would lose as a result of the change – e.g. climate change and moving to a carbon neutral economy.
the changes of law are more likely to be accepted if..
they reflect a notion of fairness and justice already held by society, and when the source is considered legitimate.
What are the advantages of the ‘law’ as change event, over other methods of change (i.e. revolution)?
Law is more focused and specific (black letter law)
Legal change is mostly deliberate, and rational (institutional/constitutional arrangements in getting legislations)
Intentions of legal norms are clearly stated (parliamentary processes)
Law in society is seen as legitimate
Max Weber - 3 types of legitimate authority
Traditional - sanctity of traditions, and the legitimacy of the status of those exercising authority.
Charismatic - exemplary character of the leader gives the authority; by virtue of their qualities.
Rational-legal - obedience is owed to a legally established impersonal order; not grounded in charisma/style. Grounded in institutions.
Imperative coordination
Probability that commands from a given source would be obeyed by a given group of people.
high lvl of coordination needed.
Reasons for obedience of law;
Some see the law as ordained by nature/a deity.
Some see the content of the law as justifying obedience - agreement.
Some trust the government and those enforcing the law.
When obedience goes wrong;
If people are carrying out the wishes/obedience of someone else, they are no longer responsible (e.g. Nuremberg Defence).
Willingness to obey obliviously harmful orders that come from a ‘legitimate’ authority.
Stanley Milgram’s electric shock experiment.
Standford Prison Experiment - Philip Zimbardo.
Where there is disobedience:
Sanctions give laws their binding force.
Sanctions are entrusted to the legitimate authority… government/agencies.
E.g. drink-drive laws, RBTs, penalties, etc.
Role of punishment, include;
Deterrence
Vengeance
Incapacitation - imprisonment
Rehabilitation
Limitation of the law as an instrument of social change
What message was sent by the response to My Lai and Abu Ghraib? - low-ranking soldiers only ones convicted, higher ranks either not charged with crimes or acquitted.
The law must reach everyone – otherwise this is a significant limitation.
Some groups are more powerful/influential than others.
Not everyone gets equal access/influence over the content of the law.
Using the law as a policy instrument is fine but … it must be used in combination with other instruments.
Morality and values
These bind society together.
- Society cannot exist without the acceptance of some basic values and standards.
If the law is to be the instrument of social change it needs the support of society.
