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Chapter 11Law, Social Change, and the Class Struggle
What is Social Change? Any relatively enduring alteration in social
relationships, behavior patterns, values, norms, and attitudes occurring over time
Some may seem trivial. Can still generate its own momentum
Was a time in history when hardly any social changes occurred Small and isolated cultures
Those who most stoutly resist are usually those who gain most from status quo.
Tensions can occur when change is induced. Most tend to work themselves out without conflict.
Law as a Cause of Social Change Historically only had a minor role
Has hugely increased over past two centuries Law is mostly reactive. Tendency exists to view law as functioning
as a barrier to change. French (1789) and Russian (1917)
Revolutions versus English (1688) and American (1776) Revolutions
Law can be an independent source of change.
Law as a Cause of Social Change (cont.) Two views Conservative:
Active use of law to generate social change is wrong.
Law must be a natural extension of social custom. Other view: too many customs in the United
States for the law to be based on only one Law is instead based on a general, abstract,
universalistic principle of justice.
Social Movements, the Law, and Social Change
There is a reciprocal relationship between law and social change.
Sometimes social conditions give rise to changes in law and sometimes changes in law give rise to changes in social conditions.
Law is not an isolated phenomenon. Role of law in social change is most
often facilitative rather than causative.
Social Movements, the Law, and Social Change (cont.)
Social movements Law provides important terrain to exploit
when pursuing goals. Politics of social movements depend on
democracy. Before a judiciary interpreted the Constitution,
social movements were unlikely to go anywhere without violence.
Contagion effect can occur. Arousal of previously silent groups once a social
movement is observed successfully making its rights claim
Examples of the Role of Law in Social Movements
Worker’s rights Rights of gays and lesbians Abortion rights Women's rights Minority and racial/ethnic rights
Alcohol use causes crime
4th Amendment rights need protecting
LegislaturesCourts
Civil Rights Acts 18th Amendment (Prohibition)
Exclusionary rule
Racial segregation is
wrong
Business should be regulated
Sherman Anti-trust Act
Typical Role of Law in Social Change
Social Demands:
Legislative Acts/Judicial Decisions:
British Law and the American Revolution Were it not for a number of British legal
decisions, the American Colonies may have remained loyal.
British laws after the French and Indian Wars were designed to force colonialists to pay their share of the war expense: Mutiny Act of 1765 Sugar Act of 1774 Stamp Act of 1765 Proclamation Act of 1763
British Law and the American Revolution (cont.)
Judicial rulings may have contributed Somerset v. Stewart (1772) and Joseph Knight
v. Wedderburn (1778) May have been instrumental in propelling Southern
states into the Revolution Americans considered the Revolution a
legal declaration of divorce based on the British constitution Especially that King George III had overstepped
his authority by placing himself above the law
Law and Social Engineering in the Former USSR
Pre-USSR law suppressed social change and retarded social progress.
USSR used the law to force social change. Five Soviet constitutions since 1918
Longer and more detailed Changing sometimes as frequently as once a day All guaranteed certain rights. All set forth certain obligations.
Law and Social Engineering in the Former USSR (cont.)
Russian experience shows that written constitutions are not a guarantee of political freedom.
Officially the legal system was conducted in conformity to Weber’s formal rationality In reality, system conformed with
substantive irrationality Substance provided by Marxist ideology Use of vague concepts allowed for ex post facto
laws to be passed Justified as necessary to preserve the Revolution
Law and Social Engineering in the Former USSR (cont.)
During early days Western concepts of law thrown out The Soviet flip-flop on the "bourgeois
family” Produced devastating consequences
Law coupled with police tactics can result in social change.
Law based on custom is more efficient.
The U.S. Supreme Court and Social Change Supreme Court is ultimate legal authority
in United States Source of change Much of their record supports both the
consensus and conflict theories of law. How have they used this power?
Rosenberg’s (1991) two views of the USSC’s ability to induce social change
Dynamic view Constrained view
The Dynamic View The Court can be more effective than
other government institutions in bringing about social change. This is because it is free of election
concerns. Allows it to act in the face of public
opposition
The Constrained View The Court can rarely produce significant
social change due to three constraints: Bounded nature of constitutional rights
Can be overcome if ample case precedent in general direction of proposed change
Lacks the necessary independence from the other branches of government
Overcoming necessitates the support of a large segment of Congress and of the executive branch
Lacks the tools to develop policies and implement decisions
Can be overcome with public support, or at least low levels of opposition
The U.S. Supreme Court and Social Change (cont.)
Does not mean that courts do not matter Social policy and political events are more
salient. Courts have an indirect effect on change.
USSC has created little social change unless all three of these forms of opposition have been absent.
However, dynamism can exist when coupled with the USSC’s main resource: legitimacy.
The Legitimacy Basis of the Court’s Power The ability to command compliance with
rules despite lacking means to compel Authority
Weber’s (1968) three types of authority:1. Traditional2. Charismatic3. Rational-legal
Supreme Court enjoys all of these.
The Legitimacy Basis of the Court’s Power (cont.)
Traditional authority Court is almost as old as the Republic itself
Difficult to imagine being without it Tradition has powerful hold on psychology of
people Often invested with a kind of quasi-divine
inspiration Rarely any questioning of this type of authority
Always been there May be maintained even in face of criticism if
buttressed by charismatic authority
The Legitimacy Basis of the Court’s Power (cont.) Charismatic authority
Generated by exceptional, unusual, and even quasi-supernatural qualities attributed to individuals or institutions
Rests to some extent on use of quasi-religious myths and symbols Designed to arouse feelings of worship and
reverence Court’s actions and refusals support an
impression of “otherworldliness.”
The Legitimacy Basis of the Court’s Power (cont.)
Rational-legal Derived from rules rationally and legally
enacted Framers intent on issue of judicial review
Marbury v. Madison (1803) Intended or overstepping?
Rosenberg (1991) Court could not have as much power without
cooperation from other branches Forthcoming due to view of Court as more useful
rather than a nuisance Court members do not worry about re-election.
Interpreting the Constitution: Strict Construction or Living Document?Strict Constructionists
Justices who believe that the Court’s task is to take the Constitution in light of its Framers’ original intent
Would have very little effect on social change
Slavery?
Judicial Activism When judges make rulings that critics perceive as based
on a particular ideological agenda rather than law Critics call this judicial governance, which is a clear
violation of the constitutional separation of powers. Often viewed as synonymous with point of view that
the Constitution is a “living, breathing document” Lex non scripta Flexible documents and traditions added over the
centuries Purposefully written in generalities
In need of interpretation by others in different times
The Supreme Court and the Class Struggle Extreme concentration of wealth leads to
de facto plutocracy functioning beneath the "official" government.
Founding fathers believed that human nature is not to be trusted, and thus democracy is not to be trusted unless limited by boundaries.
U.S. Constitution is an economic document that favors moneyed business class.
The Supreme Court and the Class Struggle (cont.) Constitution has always been a bastion for upper
class Fletcher v. Peck (1810)
Fourteenth Amendment Passed in 1868 Created to protect the most deprived members of our
society USSC used it to protect rich business interests
against working-class interests Viewed it as requiring state conformity with Bill of Rights in
economic matters Santa Clara Co. v. Southern Pacific R. R. Co. (1886)
Later used to protect individual rights
The Supreme Court and the Class Struggle (cont.)
Sherman Anti-Trust Act (1890) Designed to place controls on business Used by Court as hammer against working class
United States v. E. C. Knight (1895) In re Debs (1895) Loewe v. Lawlor (1908)
Late nineteenth and early twentieth centuries Court legitimized “law of the jungle” Lochner v. New York (1905) Hammer v. Dagenhart (1918) Adkins v. Children’s Hospital (1923)
The Supreme Court and the Class Struggle (cont.)
Similar case outcomes throughout the 1930s and after Spurred Congressional action to suppress Court
Norris-LaGuardia Act of 1932 Congress stripped Court’s power to issue injunctions
against labor unions engaged in labor disputes. Passed in response to outcries
National Labor Relations Act (1935) Declared unconstitutional by Court in 1937
National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937)
Allied Structural Steel v. Spannous (1978) National Labor Relations Board v. Bildisco
(1983)
Social Justice, Equality and Freedom: A Debate Social justice
Proponents define as economic equality Arguments for:
Legal and political equality are natural equalities due to us by virtue of our humanity.
Ideal demands the embrace of equality of “goods and power” regardless of so-called “talent and effort.”
John Rawls Superior character Original position
Karl Marx Superior abilities
Social Justice, Equality and Freedom: A Debate (cont.)Arguments against:
Not that we value inequality; rather, income inequality is the natural outcome of free individuals in a spontaneous competitive system.
Any attempt to interfere is a major threat to freedom. Though fairness appeals to moral sentiments,
sympathy does not tell us how someone’s position in life coheres with this moral issue.
Fairness saturated with contradictory notions Viewed as an equal opportunity process Process can be guarded by law
Unequal outcomes fair if process is fair
The Supreme Court and the Class Struggle (cont.)
Society concerned with justice Must do what it can for those plagued by
misfortunes Society concerned with liberty
Knows nature does not produce a state of equality
The Supreme Court’s Role in Inducing Social Change
USSC expanded the federal government’s power Supremacy Clause
Acted as a "nation builder" Created a "national identity“ Marshall Court: molding a national identity
McCulloch v. Maryland (1819) Gibbons v. Ogden (1824)
Taney Court: states’ rights take precedence Scott v. Sandford (1857)
The Supreme Court’s Role in Inducing Social Change (cont.)Warren and Burger Courts: the "due process revolution"
These decisions have become institutionalized and accepted
Especially among younger generation
Brown v. Board of Education of Topeka (1954)
Plessy v. Ferguson (1896) Engel v. Vitale (1962) Roe v. Wade (1973)