Sample question/social change - ONLY FOR PROFESSOR2013
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lecture_seven.docxWeek Seven: Law and Social Justice: Plus Ca Change
Lesson Objectives:
· Analyze the conditions under which the law can usher in real social change.
· Explain why court decisions are more likely to be successful if they are in step with the cultural norms of the day.
This week we are going to take a look at the potentials and the limitations of law in advancing social change. Can the legal system be effectively used for social change?
Under certain circumstances where all factors are right for it, legal systems (the courts) CAN be used for social change, but true social change happens only in the minority of cases. If conditions are not right for social change, judicial decisions are limited in their ability to accomplish true social change. Such legal rulings, when the public is not ready for them, may even produce a backlash (Calavita, 2010).
What does it mean to say "if conditions are right on the ground?" This means simply that society must be READY for whatever social change the courts are hoping to affect. If the general population and regulatory agencies are not ready for the social change handed down by the courts, the regulatory apparatus and the public at large, will mainly ignore the court decision. People as well as regulatory agencies must see the social change as correct for this moment in time or they must see it as a necessary change.
The main point, then, is that social norms and public sentiment must be in step with legal rulings if those legal rulings are to have an impact on positive social change.
Legal rulings that are out of step with norms and public sentiment may be ignored and may go unenforced.
A good example of legal rulings that had a difficult time producing social change is Brown v Board of Education. This case illustrates how a court ruling can be ahead of the public sentiment, and thus can be virtually ignored, especially if regulatory agencies are not ready to "police" such change. In Brown v Board of Education, the Supreme Court ordered that public schools should be assimilated with all due speed. Since the public was not ready for such sweeping social changes, all due speed ended up being "stagnate" in many cases.
Since the public was not ready for social change, it did not happen even when the courts ordered it. The take away lesson here: court decisions that usher in major social change must be in step with the popular opinion on the issue or regulatory agencies will drop the ball on enforcement. However, if court decisions are in step with public sentiment in terms of needed social change, courts can be a great place to galvanize that change and make it legal.
Indeed, when court decisions regarding social change are way ahead of their time or not in step with the general public, court decisions can actually galvanize resistance.
The Brown decision, ahead of the curve of public opinion in the South, went unenforced by local officials there and acted as a lightening rod for resistance to the civil rights agenda" (Calavita, 2010, p. 118).
In most cases, law has ceded to, rather than altered, social norms.
Legal rulings can usher in positive social change when the legal rulings are in step with norms and are supported by the majority of the population.
An example of a court decision that DID bring about social change ... because Americans were ready for that social change: Roe v Wade. Whatever your personal feelings here are regarding abortion, put it aside and focus on what the author is telling us: courts CAN be used to usher in social change WHEN the public is ready for such change. By the time the Supreme Court ruled that abortion was a legal option in America, most Americans already agreed with abortion rights and there was already mechanisms in place for providing abortions.
"... the Supreme Court is nominally independent of public opinion and voter endorsement but that its landmark decisions ironically are only effective to the extent that the changes they mandate are already under way" (Calavita, 2010, p. 119).
There are other factors that limited the law's ability to usher in social change: (1) institutional structures, and (2) procedural requirements of court. Here is where we put on our sociological lenses and take a look at how "power" impacts legal rulings. Institutional and procedural aspects of law give an advantage those with resources and the luxury of time (Calavita, 2010, p. 121). The basic argument here is that while the legal system of the U.S. presents itself as neutral, the legal system in fact systematically favors "the haves'" over "the have-nots" (Calavita, 2010, p. 121). This argument ties in to a closely related observation regarding "repeat players" and "one shotters."
Repeat players in court are the large corporations who have the funds, the in-house legal counsel, and the time to nearly always win over the individual one shotters. Thus, those with power in our society - wealthy corporations - are the ones who benefit in the court system and they are the ones who will win and shape social policy. This is the essence of the sociological Conflict Theory perspective.
There is still yet another intriguing but troubling factor regarding legal rulings: "law becomes what the interpreters make it" (Calavita, 2010, p. 125). Large corporations are actually charged with both interpreting and enforcing laws that are directed at them ... this is not a good situation. "It is an interesting twist on the law-on-the-books and law-in-action gap, with the entities that are subject to formal law acting as the practitioners who determine what the real law is" (Calavita, 2010, p. 125).
Rights-based arguments need to be carefully strategized when they are presented before a court of law.
Rights-based arguments in court need to be strategized just so or rights based arguments can fall right out the window and end up bolstering the rights of those accused of impinging on individual rights. Critical Legal Studies (CLS) focuses on this dilemma of rights-based courtroom arguments. The central argument is that legal outcomes hinge on political considerations, not just legal reasoning. As a consequence, legal action in the name of human rights often does more harm than good to progressive causes.
California's Civil Rights Initiative of 1996 to demonstrate how rights-arguments can be co-opted by the opposition. This initiative was designed to eliminate Affirmative Action in government employment and in public education. Rights-based discourse (talk) was used by the opposition in the same way it was used to desegregate schools in the first place. In this case, the attorneys for this Initiative claimed that rights were being violated because of the Affirmative Action law - it was discriminating in reverse. Who hasn't heard that argument? It is often used by majority members who appropriate the rights-talk as their own and try to show how certain laws, while giving rights to certain groups, are impinging on the rights of others ... in most cases, the majority population. So how does this work? Well, in the cases of the Initiative above to do away with Affirmative Action the lawyers simply argued:
"A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the civil rights movement. (Calavita, 2010, p. 129).
The take-away message here is that rights-talk can easily be used by conservative crusaders like the National Rifle Association. And, as was mentioned above, legal action in the name of human rights can set a movement back by casting an unfavorable light on those seeing legal recourse. This point can be illustrated by using the 1980's language of a "woman's right to choose." In this case, the rights-based argument backfired by contributing to the view that abortions are a choice while masking the desperate situations surrounding that choice. As a result, women who needed abortions came to be seen as frivolous and selfish rather than distressed and in need of help.
However, when rights-talk is used correctly at the right time in history, rights-talk can indeed produce concrete and immediate change, as was the case of child brides who were able to fuel a social movement against forced child marriage by using (correctly) human rights discourse (talk). Yet, as we have been saying, rights based legal arguments need to be handled very carefully to produce the outcomes sought. Law and Society scholars actually spend a lot of time looking at this issue. They tell us that collaborations between attorneys and human rights activists have produced a literature known as "cause lawyering." These lawyers know what they are doing when they step into a courtroom to defend human rights.
So in the end, we are left with the message that: Legal rulings are sometimes essential for social change, but sometimes fail because of current norms and public sentiment.
References:
Shomade, Salmon A. (2010). Review of INVITATION TO LAW & SOCIETY: AN INTRODUCTION TO THE STUDY OF REAL LAW, by Kitty Calavita. New Orleans: University of New Orleans.
Calavita, Kitty. (2010) Invitation to Law & Society: An Introduction to the Study of Real Law. Chicago: The University of Chicago Press. Retrieved from http://site.ebrary.com/lib/apus/docDetail.action?docID=10389587
Review of Article:
Kostiner, I. (2003). Evaluating legality: Toward a cultural approach to the study of law and social change. Law & Society Review, 37(2), 323-368,260. Retrieved from http://search.proquest.com/docview/226929907?accountid=8289
In this article, Kostiner (2003) draws on in-depth interviews with 25 social justice activists to study "the contradictory ways in which activists for social change justify or criticize the use of law" as an instrument for social change (p. 323). His basic findings are that activists invoke three distinct schemas of evaluation: (1) instrumental, (2) political, and (3) cultural. The instrumental schema emphasizes change in the allocation of concrete resources. The political schema views change as the empowerment of marginalized communities. The cultural schema emphasizes the transformation of assumptions that are shared by all members of society (taken-for-granted knowledge).
"This viewpoint diverges from the usual perspective of law and social change because thus far, little attention has been given to the ways in which activists for social change justify or criticize the use of law. These interviews allow me to analyze the various ways in which social justice activists understand the relationships between law and activism" (Kostiner, 2003, p. 323).
After an explanation of the three schemas of evaluation, the author proposes a model that allows for the continued use of law as a tactic in struggles for gaining social change despite the general belief in the law's limited capacity to usher in real social change. The proposed model shows how the three schemas identified in the study can be used to disprove the idea that law is useless in terms of creating social change.
One of the central assumptions of American legal liberalism is that marginalized groups, struggling for social justice, can rely on the legal system to create social reform (Kalman 1996). However, in reality things do not go as smoothly as we would like them to. In reality, legal systems are closely linked to the hegemonic political culture (taken-for-granted knowledge of every day life) and are therefore limited in their capacity to create real social change.
In making this argument, Kostiner cites some of the same research Calavita used in Chapter 7. "Focusing primarily on the direct effects of legal tactics, many of these studies revealed a substantial gap between the promises of rights litigation and its minimal impact in reality" (Kostiner, 2003, p. 324). Many studies, especially those associated with Critical Legal Studies, demonstrate the how legal systems are biased in support of the status quo.
Kostiner then goes on to offer several examples of how human rights arguments have been used and won in court.
"Movement leaders effectively used successful legal actions-despite their doctrinal limitations-to organize women workers in hundreds of workplaces around the nation. A massive publicity campaign focusing on court victories initially put the issue on the national agenda and alerted leaders that wage equity was "the working woman's issue of the 1980s." Lawsuits were then filed on behalf of working women as the centerpiece of a successful union and movement organizing strategy in scores of local venues around the nation . . . Sustained legal action over time worked to render employers vulnerable to challenge, to expand the resources available to working women, to provide them a unifying claim of egalitarian rights, and to increase both their confidence and sophistication in advancing those claims. (1998:86)" McCann and Silverstein suggest that activists use law not out of a mythic belief in its power, but rather as an optimal strategy among "highly limited options available to them" (McCann 1998:88)."
As it turns out, law DOES matter sometimes. In this article, the author presented data that found a set of complex justifications and counter-justifications to the role of law in achieving social change. Kostiner shows how the relationship between law and social change is a social construct that is constantly reproduced within society.
"Because people's understanding is complex and contradictory, the understanding of law as a means for social change is sustained. At the same time, the complex nature of people's consciousness provides spaces for transcending this notion of law as a means for change" (Kostiner, 2003, p. 368).
