Legislative or administrative

For decades now law and society theorists have been preoccupied with attempts to explain the relationship between legal and social change in the context of development of legal institutions. They viewed the law both as an independent and dependent variable (cause and effect) in society and emphasized the interdependence of the law with other social systems. In its most concrete sense, social change means large numbers of people are engaging in group activities and relationships that are different from those in which they or their parents engaged in previously.

Thus, social change means modifications in the way people work, rear a family, educate their children, govern themselves, and seek ultimate meaning in life. There are various factors which determine the rate and direction of social change. Some factors include (i) Biological factor (ii) Physical factor (iii) Technological factor (iv) Cultural factor (v) Economical factor and so many more. Legislation is one of the most powerful and important factor or tool of social change. LAW AS AN INSTRUMENT OF SOCIAL CHANGE

The conversion of Rome from Republic to Empire could not have been accomplished except by means of explicit legal decree buttressed by the doctrine of imperial sovereignty. Law, far from being a reflection of social reality, is a powerful means of accomplishing reality – that is, of fashioning it or making it. Law and especially legislation is a vehicle through which a programmed social evolution can be brought about. 1 The Soviet Union succeeded in making enormous changes in society by the use of law.

China also managed to moderate through law its population growth and as a result devote more of its resources to economic development and modernization. _ 1 Hosen N, Reform of Indonesian Law in the Post – Soeharto era (1998-1999), PhD Thesis Faculty of Law, University of Wollongong, 2004. p25. The law, through legislative and administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly not only articulates but sets the course for major social change.

Attempted social change, through law, is a basic trait of the modern world. 2 Professor Wolfgang Friedmann states that: ‘The law – through the legislative or administrative responses to new social conditions and ideas, as well as through judicial reinterpretations of constitutions, statutes, and precedents – increasingly not only articulates but sets the course for major social change. ’ Many authors consider law as a desirable necessary and highly efficient means of inducing change, preferable to other instruments of change. In present-day societies, the role of law in social change is of more than theoretical interest.

In many areas of life such as education, race relations, housing, transportation, energy utilization, protection of the environment, and crime prevention, the law and litigation are important instruments of change. Law plays an important indirect role in social change by shaping various social institutions, which in turn have a direct impact on society. For instance, mandatory school attendance upgraded the quality of the labor force, which in turn played a direct role in social change by contributing to an increased rate of industrialization.

The law interacts in many cases directly with basic social institutions, constituting a direct relationship between law and social change. Social change through litigation has always been an important feature in the US. Whether the change produced by such action is considered ‘constructive’ or ‘destructive,’ the fact remains that law can be a highly effective device for producing social change. _ 2 Lawrence Meir Friedman (1975). The Legal System: A Social Science Perspective. p. 277

THE EFFICACY OF LAW AS AN INSTRUMENT OF SOCIAL CHANGE As an instrument of social change, law entails two interrelated processes: the institutionalization and the internalization of patterns of behavior. (i) Institutionalization of a pattern of behavior refers to the establishment of a norm with provisions for its enforcement (such as de-segregation of public schools). (ii) Internalization of a pattern of behavior means the incorporation of the value or values implicit in a law (e. g. Integrated public schools are ‘good’).

The extent to which law can provide an effective impetus for social change varies according to the conditions present in a particular situation. William Evan suggests that a law is likely to be successful to induce change if it meets the following seven conditions: 3 (i) Law must emanate from an authoritative and prestigious source. (ii) Law must introduce its rationale in terms that are understandable and compatible with existing values. (iii) Advocates of the change should make reference to other communities or countries with which the population identifies and where the law is already in effect.

(iv) Enforcement of the law must be aimed at making the change in a relatively short time (v) Those enforcing the law must themselves be very much committed to the change intended by the law. (vi) The instrumentation of the law should include positive as well as negative sanctions. (vii) The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to lose by violation. _ 3 Steven Vago (1997). Law and Society. Chapter 7, pages 341 -342.

ADVANTAGES OF LAW IN CREATING SOCIAL CHANGE The advantages of law as an instrument of social change are attributed to the fact that law in society is seen as legitimate, more or less rational, authoritative, institutionalized, generally not disruptive, and backed by mechanisms of enforcement. 4 LIMITATIONS OF LAW IN CREATING SOCIAL CHANGE To most people law is imposed externally in an almost coercive way. Today people are characterized by a “crisis of confidence” and alienation from social institutions because of uncontrollable economic conditions.

Therefore, law is hardly an expression of their will. Few people participate in the formulation of laws and legislation. One of limitations of law as an instrument of social change is the possibility of prevailing conflict of interest. Other limitations related to the efficacy of law in social change include divergent views on law and the prevailing morality and values. The scarcity of resources causes conflicting interests. Decades ago, Karl Marx and Max Weber said that many laws are created to protect special economic interests.

This is because economic interests are strong factors influencing the creation of laws. Weber recognized that besides economic interests law protects other interests too such as personal security, personal honor, and it guarantees political and other positions of authority and social preeminence. RESISTANCE TO CHANGE In most cases laws face resistance by members of society who find different reasons for their resistance such as their values, customs, or even the cost of change and sometimes because people feel threatened by the change.

Knowing the conditions of change helps in the implementation of laws. The factors that are a barrier to change are separated into social, psychological, cultural, and economic factors and all are interdependent. _ 4 Steven Vago (1997). Law and Society. Chapter 7. SUMMARY AND CONCLUSION Social change means modifications in the way people work, rear a family, educate their children, govern themselves, and seek ultimate meaning in life. As an instrument of social change, law entails two interrelated processes: the institutionalization and the internalization of patterns of behavior.

Law is likely to be successful to induce change if it meets the following seven conditions: (i) Law must emanate from an authoritative and prestigious source. (ii) Law must introduce its rationale in terms that are understandable and compatible with existing values. (iii) Advocates of the change should make reference to other communities or countries with which the population identifies and where the law is already in effect. (iv) Enforcement of the law must be aimed at making the change in a relatively short time.

(v) Those enforcing the law must themselves be very much committed to the change intended by the law. (vi) The instrumentation of the law should include positive as well as negative sanctions. (vii) The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to lose by violation. Social change is a permanent feature of all societies and at all times. It may be slow and almost imperceptible or it may be sudden and dramatic.

Attempted social change, through law, is a basic trait of the modern world. BIBLIOGRAPHY BOOKS 1. Lawrence Meir Friedman (1975). The Legal System: A Social Science Perspective. New York: Russel Sage Foundation. 2. Steven Vago (1997). Law and Society. New Jersey: Prentice Hall. 3. Coleman, J. and Shapiro, S. (2002). The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford: University Press. 4. Bodenheimer, E. (2004). Jurisprudence: The Philosophy and Method of the Law. New Delhi: Universal Law Publishing Co. 5.

Hosen N, Reform of Indonesian Law in the Post – Soeharto era (1998-1999), PhD Thesis Faculty of Law, University of Wollongong, 2004. 6. Golding, M. P and Edmundson, W. A. (2005). The Blackwell Guide to the Philosophy of Law and Legal Theory. Oxford: Blackwell Publishing. 7. Bix, B. (2006). Jurisprudence: Theory and Context (4th ed. ). London: Sweet & Maxwell Co. 8. Raymond, W. (2006). Philosophy of Law: A Very Short Introduction. New York: Oxford University Press. 9. Kulusika, S. E. (2009). Jurisprudence II – Module LL 38. Lusaka: ZAOU Press.