Social Change and Law

Social Pressures on the Law

Scholars as different as Friedrich von Hayek (1899–1992) and Lawrence Friedman have argued that a country's law grows out of its culture and society. In this sense, there is a natural law, not a legal order prescribed by a deity, but laws reflective of the beliefs of the people. Hayek believed that tribal chiefs and monarchs were limited by the beliefs of the governed, and he even attributed the origins of the freedom of the British to the constraints on the king that flowed from the belief that the common law was a natural law. This cultural basis for much of the law is the reason for the similarity of laws across many countries. Countries with a liberal tradition respecting individual rights will have similar laws that reflect that tradition. Similarly, countries with market economies will have similar economic laws because the needs of market transactions will drive the content of the laws.

The influence of society on the law is a long-run process. When people in a society are divided over an issue or when some push for faster change, interest groups often try to change the law to their benefit, by lobbying the legislature or by using the courts to achieve change. Given the potential impact of court decisions, it is not surprising that groups have used litigation as a social tool. For example, the litigation strategies of the National Association for the Advancement of Colored People (NAACP) throughout a good part of the twentieth century to end segregation in the United States are wellknown. More recently, cultural wars have been waged in legislatures and courts by advocacy groups that span the political spectrum and focus on a broad array of issues.

Although a few judicial decisions may lead society to change (for instance, the decision of the Massachusetts Supreme Judicial Court in Goodridge v. Dept. of Public Health, 798 N.E.2d 941, 2003, legalizing same-sex marriage may be that type of case), the vast majority of decisions reflect the prevailing beliefs of society. School desegregation is a good example of that. In the decades before 1954, when the U.S. Supreme Court decided Brown v. Board of Education (347 U.S. 483), there had been tremendous changes in attitude toward African Americans and significant integration in many parts of the country, even in education. [Page 1380]“It was in this receptive soil that the Supreme Court planted the seed of Brown” (Kluger 1975: 749). Of course, some resisted this change, especially throughout the South, but the courts and federal government pushed many people into reluctant acceptance of integrated schools. Then, as people learned to live with integrated schools, attitudes slowly changed into acceptance of integration. This story of changing attitudes toward racism, followed by a momentous decision in Brown, and then by even greater changes in attitude, illustrates the cycle of social change influencing legal change, which influences social change.

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