SOSC 2350 Note
Law and Social Change
- Use your TAs to clarify the terms; however don’t get them to make up your
- If you cannot find a definition within your terms, then look at other resources
in order to determine it for yourself.
What is social change?
- Large numbers of people engaging in group activities and relationships that
are different from those in which they or their parents engaged in previously
o It changes throughout generations
o There is a modification in the way people work, rear family, educate
their children, govern themselves and seek meaning in life
This can be as gay marriage, women’s rights, etc.
- What causes social change?
o There’s a multitude of interdependent factors
Technology, conflict, political and economic factors, racial or
social conflict, etc.
Theories that have been explored
- Marxism: class conflict and organization
o It is used as a weapon to changing the laws
o It can also recognize and create more just working conditions and in
o Also see Chambliss article re: vagrancy laws
People leaving rural environments and moving to industrial
Then being punished
- Durkheim – law reflects complexities of society, because law reflects society,
there might be a way that law can be used in harbouring that change.
o Also see Durkheim’s “types of legitimate authority”
Legal authorities with Weber
- Other theorists/ theories?
o Myth of Equality
Standardized testing and blind applications
Read that lecture
o There are ways that the law in standard models of society prevent
There are ways that that structure can be used against itself
Controversial relationship between law and social change
- It’s used to oppress people or to affect change in law for equality and social
justice - Is law determined by the sense of justice and the moral sentiments of the
o Are legal structures set up to support the 1%, or create conditions
that there is a structure that creates the 99%
o Is it close, and reflecting, prevailing social norms?
- Or is law a means through which social change can be brought about?
o Is law on the cutting edge of changing mores?
o Can lawyers and judges see the way society should head to and make
law that moves us forward (for our own good)
2 Different Perspectives
- Bentham: law can (and should) lead society
o Legal reforms should respond to new social needs and restructure
society (according to a more just social attitude
- Von Savigny: Law is (and should be) limited to following society’s lead o
- Only fully developed customs can form the basis of legal change
o There is no point for a new law if no one is going to respect it
- Bentham argued that law should create the greatest good for the greatest
number of people
Law should serve and represent the people (utilitarian)
o Therefore, law should intervene in society to make positive changes
where these are required
o Entails a confidence in the power of law
o Inherent benefits of law.
o This view sees law as just, having a legitimate authority, and that it is
working on part of all citizens
- Von Savigny: Only fully developed customs can form the basis of law (and
justify change to law)
o Law must be based on established customs in order to be effective (in
o This suggests that law is a popular creation!
It is made in the streets, homes, marketplaces, etc.
Not in the legislature
This argument is against Marx’ perspective where law is
not and instrumental
o Law is determined by a sense of justice
- The political implication is that (radical) social reform makes for bad law
because it is unreliable
o The reliability of law is rooted in currently established customs and
Therefore, any stark change and reform will not necessarily
reflect the values of majority, therefore not made on custom
Is law a dependent or an independent variable in social change?
- Bentham: law stands apart from society o It is designed by legislators, following reasons and science, and
created to act upon society.
Therefore, Law creates the ideal conditions for an ideal society
This independence allows a valuable perspectives
- Von Savigny: the law is a dependent variable
o It is determined and shaped by the current mores and opinions of
Legal changes are impossible unless they are preceded by
social change within society
If there’s been a CRITICAL mass change in gay marriage,
women’s rights, etc.
o When the majority of people come around to the
idea, then the change can be legislated.
Social Change as a cause of legal change
- Changes to law can result from changes in social conditions, knowledge,
beliefs and attitudes, technology and etc.
- Liberalization of Canadian Divorce Law
o Matrimonial Causes Act of 1857
Liberalism advocates the rights of the individual to know
what’s best for them.
Therefore, removing the role of the state helps the marriage
o Divorce Act of 1968
Matrimonial Causes Act
- No federal divorce law in Canada before 1968
- Couldn’t simply obtain a divorce: needed to provide valid grounds
o Grounds for men prove wife’s adultery
o Grounds for women proof of incestuous adultery, rape, sodomy,
bestiality, bigamy, or adultery coupled with cruelty or desertion
o Wives who committed adultery were not entitled to spousal support
o Husbands had no right to apply for support in any circumstances
- No provincial divorce legislation in Newfoundland and Quebec
o People had to seek the passage of privacy act of parliament in Ottawa
in order to end their marriages
This was due to the religious attitudes of pressures to make it
difficult for people to get a divorce
Divorce Act of 1968
- Introduced the concept of “permanent marriage breakdown” as a ground for
o Retained fault-based grounds for divorce
- It is equally available to husbands and wives
o Removing double-standards that had existed under the UK
Matrimonial Cause Act
- Grounds under which divorce could be sought - Section 3 included adultery, rape, and other sexual offences
- Section 4 applied if the parties had been living apart and there was a
permanent breakdown of the marriage based on specific factors
o Imprisoned, alcohol, disappeared or disserted, or just disappeared.
- Divorce under this act could not be granted unless a trial was held before a
judge, and he would be satisfied that:
o There were grounds for the divorce (not just consent)
o Parties had not colluded with each other (mislead court)
o There had been no approval/consent of the offence
o No connivance at the offence (they weren’t taunted into doing the
o No reasonable prospect of reconciliation.
o There was no jeopardizing the granting of divorce.
Divorce Act 1985
- Current Divorce of Canada
o Where divorce is uncontested, the law allows spouse to file a joint
petition for divorce
- Can satisfy the grounds requirement by showing they have been living a part
- Don’t need a laws
Substantial legal Change over 40 years period
- Shift from very difficult divorces
o To divorce on demand
- Widespread change in how marriage is viewed
- 40 years ago legislation modeled was belief that
o Marriage was a binding legal contract that you should not be able to
get out of unless you were the victim of abuse
- Current legislation based on the belief that:
o The state has no business using coercive power to keep people in
marriage they have decided to leave.
The state has no business in the bedroom of our nation
Selecting strategies for change
- Electoral politics v. litigation
o Litigation can force attention and response to unpopular or minority
issue (a particular issue, especially when it is not the issue of the
o Issue must be transformed into a legally recognizable claims
(Remedies are limited)
It must be applicable to a broader situation