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Overview
Product Details
| ISBN-13: | 9780520295742 |
|---|---|
| Publisher: | University of California Press |
| Publication date: | 08/20/2019 |
| Edition description: | First Edition |
| Pages: | 336 |
| Product dimensions: | 7.50(w) x 9.25(h) x 0.90(d) |
About the Author
Read an Excerpt
CHAPTER 1
Introduction: Legal and Social Change
Gene splicing, presidential tweets, superstorms, and kids with three parents. What do these all have in common? They are all new, and they all combine the powerful changing forces of law and society. Some might have sounded like fiction a generation ago, but today they are almost commonplace. These advances in technology, new norms about freedom of speech, accumulated effects of air and water pollution, and redefinitions of the family all sit at the boundary between what is legally and socially permissible.
The field of law and society, or sociolegal studies, has always been about this interplay of legal and social change. Experts in the field long studied cases where reasonable people were trying to make sense of innovations in law by living them in the real world, or innovations in culture by interpreting them for the law. But over the years, the core books about law and society became relatively fixed even as law and social change seemed to have accelerated. Some emphasized the theories that had been developed without checking these against real-world examples, while others proceeded topically through institutions almost like science books, walking the reader through the various "systems" of law and society as though these could be understood like systems of the body or the physical world. The truth is that legal and social practices are complex because people are complex. And law and society change because people are constantly changing.
Law and Society Today takes change seriously by offering a new approach to this fascinating field. It adopts an integrated approach to theory and evidence, and it incorporates the latest thinking about how communities determine right and wrong by prioritizing legal and social norms. By integrating theory and evidence, the book chooses not to present these in wholly separate sections of text. Rather, it maintains attention to both simultaneously, making abstract concepts and ideas more readily memorable to the reader and taking seriously the "grounded theory" approach of some social science fields. To put it more simply, theory and evidence "flow" together more smoothly in ways not present in other existing treatments. Isn't that closer to how the real world operates?
Additionally, this book adopts a constructivist approach to the topic that many will find novel. The idea is not to suggest that there is no "real" world but rather to posit that our understandings of it come to us from working with the building blocks of knowledge — things like language, symbols, practices, and beliefs. Experts in fields like anthropology, sociology, literature, and cultural studies have been looking at things this way for a while, so it was time to incorporate their advancements into discussions about law and society. This doesn't mean we must take for granted that law is socially constructed, or society legally constructed, but it does suggest that we consider those claims as we evaluate the phenomena captured in the chapters below.
Finally, Law and Society Today will strike readers as "new" for taking on the role of economic thought in Western life today. Most in the social sciences and humanities have been calling this prominent role "neoliberalism." This technical-sounding word simply stands for "market fundamentalism" — the notion that many of our big social problems can be fixed by giving people more freedom, letting them compete to gain greater wealth, and then allowing them to spend that wealth as they see fit. Social security, Medicare, welfare, food stamps, public housing — all of these are considered counterproductive under neoliberalism because ultimate faith lies in the individual person or family to take care of itself. When this breaks down — as it sometimes does — nongovernmental actors are better at handling the solutions. Law and governments should stay clear, because they don't operate efficiently and don't encourage returning to individual autonomy. So the thinking goes.
The influence of this thought on law and society in real-world settings has been enormous. In the core study of law, a relatively recent school of thought called law and economics has made substantial inroads in legal education globally so that new lawyers cannot finish their training without exposure, if not conversion, to the supposed wisdom of markets. In social policy, the exact government programs listed above — ones relied upon by millions in the United States and abroad — have experienced deep cutbacks for lack of public support. What I mean is this: faith in markets as the solution to social problems may or may not be well founded, but we should at least agree that it has become deeply influential. It is that deep influence that this new law and society book is able to capture.
Yet this book is not altogether new. Like its predecessors, it maintains an abiding interest in the social justice questions and concepts that have driven law and society conversations for so many years. How does the sovereign power of the state circulate so far out from state institutions? What does it mean that those we imprison for crime are so disproportionately racialized, gendered, and poor? How are categories like race, gender, and poverty themselves created through legal measures against crime? All of these questions run though much of this book; it is therefore faithful to the classic law and society subfields such as critical race theory, prison studies, law and poverty, and civil and human rights. Experienced readers will therefore recognize familiar topics like gender intersectionality woven into the existing chapter on identity, or criminology in the chapter comparing criminal and civil justice systems. The point was not to lose the baby with the bathwater, but to hold the baby in new and enriching ways perhaps more suited to the new future it faces.
When I came to teach law and society to a new crop of undergraduates several years ago, it was clear to me that a reboot for the subject was very much in order. A lot had changed since I was a student. Explaining why, this introductory chapter is divided into two remaining sections. In the first, it maps out in greater detail key sites for sociolegal change. There it describes changes to daily life that challenge existing social and legal norms. It then moves to discuss broader cultural change brought on by an increasingly "diverse" or multicultural citizenry. Next, it describes new developments in technology that push the boundaries of accepted behavior in both law and social life. Building on this, the section looks then at the phenomenon we now call globalization as a fourth major change agent placing stress on existing rules and processes. Finally, following from globalization is a new problem described below as legal pluralism — the idea that multiple legal systems might have to coexist under one single jurisdiction, government, or geographic area. Together, I hope it becomes clear, these changes offer important justification for the ongoing study of law and society, as well as for a revised approach that tries to view it today as a process of "mutual constitution." As I will reiterate throughout, the book's general claim is that the "social" role of law is being gradually but increasingly construed as economic — about the maximization of wealth more than the search for what is morally "right."
As seen below, the many changes confronting us today — for instance, multiculturalism and globalization — have seemed to encourage this shift. The moral basis of law becomes harder to pursue or justify when there are numerous historical, religious, and cultural traditions to choose from. In a diverse society, in other words, who should get to decide right from wrong? The move to economic definitions of "right" appears to escape this problem. There seems to be no "who" required when valuations of right and wrong come down to a basic, mathematical formula about money. Legal decisions favoring the greatest wealth-creating activity, or party, want to appeal to a supposedly universal, human drive toward greater prosperity, comfort, and security. And yet, the clear problem is how to assess prosperity, comfort, and security. For the financially literate today it might mean numbers on the page of a bank or investment account statement. For an older generation perhaps it meant cash money under a mattress. For today's young people, the comfort brought by greater financial reward may pale in comparison to the discomfort brought by rampant inequality, or global environmental degradation. What benefit are new industrial jobs when the factories they support spew harmful emissions? What is an extra million dollars when the future of human habitation on earth is now in question?
These questions were already being posed by indigenous cultures in Asia, North America, Australia, and the South Pacific when they were first contacted by European settlers centuries ago. Yet economic determinism — the notion that the natural world exists for human wealth exploitation — spread through the ages of discovery, colonization, industrialization, and now globalization. Today, it may be the predominant lens through which Western law and policy makers view the world. Law and Society Today invites you to reflect upon this progression, its implications, and its alternatives.
SOCIAL CHANGE
Books such as this often begin with an inventory of "social change." They remind the reader that the world is constantly shifting and that law must continue to adapt. This adaptation impulse is meant to justify the investment of time and energy in courses on law and society. More often than not, authors of these books are social scientists, most commonly sociologists. For them, "social change" is very low-lying fruit: it is the very same phenomenon that justifies, perhaps more than any other field, sociology in the first place. For this reason, our first response may be to ask why this is uniquely important to law and society. The answer would almost certainly be that "social change" causes an ongoing gap between society and the law meant to govern it.
Law and Society Today does not begrudge studies of this gap. But it hopes to add more nuances to its discussion. Any chasm between what law means to accomplish and its actual effect on social practices, relations, and structures — we must recognize — is a product of changes not just in society but also in law itself. If I were a sociologist I might find this statement vexing: Without legal training how would I know what law is, let alone what it was, so that I could observe changes? How could I get inside the minds of legislators, judges, and attorneys, the parties most responsible for bringing about change in the legal system? And why would sociologists give up the notion that society reigns supreme even over legal authority when doing so might mean surrendering the terrain on which sociological expertise is based?
This book's approach, therefore, is not to discard sociological approaches but to temper those with veritable legal knowledge. Its author is a trained lawyer and social anthropologist offering the reader unique access to some of the fascinating, technical aspects of law that make it non-negotiable even in social spaces, as well as access to the "culture" of expertise itself that makes the tension between legal and social knowledge so fraught, and so interesting. The competition between the trained lawyer and the trained social scientist, I suggest, in other words, is itself a key dimension of law and society and forms an important part of any thorough survey of this exciting field.
There can be little doubt that social practice changes fast, and this is at least a part of why we study law and society. A list of such recent changes is easy to generate. Over the past thirty years, for example, we have witnessed a near revolution in the structure of family relations in the Western world. Fewer adult couples are getting married, most do so at a later age, and many who choose to marry wind up in divorce proceedings and settlements. As a result, single families are now spread across two or more households, and arrangements that once were determined privately (e.g., school tuition, parental time) are now determined by courts or dispute settlement officers.
At the same time, the processes by which we make families have expanded. Many traditional couples seek out clinical services for in vitro fertilization(IVF), allowing two parents to have children despite signs of infertility, advanced age, or even in some cases the death of one of the genetic parents. The same technology now permits same-sex couples to bear a child and allows surrogate mothers to carry fertilized eggs to term in cases where the genetic mother is unable or unwilling to undergo the experience. IVF and surrogacy are both governed by private contracts between parents and service providers, and except in rare circumstances the courts are unlikely to intervene against validly formed agreements in these markets.
Another key area of changing social practice has been the public role of religion in the West. Whereas Catholicism and Protestantism were once the dominant faiths of people in England, France, and the United States, today they are but some among many belief systems and institutions espoused by communities in each of these metropolitan countries. Public law tends not to favor one religion over another, and indeed the doctrine of "separation between church and state" has been institutionalized in France and the United States with different nuances in each. But apart from this separation doctrine, social practice in these Western countries has increasingly deemphasized religion as a decisive form of belonging and community. The once-common practice of shuttering stores on Sunday has given way to remaining open seven days a week, ostensibly on the realization that opportunities for profit do not stop in the name of tradition. The once-popular phrase "Merry Christmas" has given way to "Happy Holidays," acknowledging in part the decline of Christianity's social dominance and the rise of greater diversity of belief and practice. Both of these examples, it should be observed, have been met with anxiety and frustration among groups who view them as indicators of spiritual abandonment or merely "political correctness." In any event, the religious underpinning of civic rules about official holidays, commerce, and public observance appears to be on the wane.
Meanwhile, in criminal law, one of the most important new developments in the United States has been the complete or partial legalization of marijuana in many states. While marijuana remains a "Schedule I" controlled substance according to federal law, its usage for medicinal and recreational purposes has grown significantly among the "millennial" generation — those born just before and after the year 2000. States wanting to reduce their prison population or gain tax revenue from this growing economy have, incrementally over the past few decades, reduced law enforcement, moved to legalize prescribed medical use, and finally decriminalized entirely this widespread substance.
These are but a few examples where changing social practice has had immediate and overt implications for law and law enforcement in recent years. They remind us that legal norms are often an extension of social norms and that evolution in some of the basic ways we live our lives leads to adjustments in law and adjudication. But beyond everyday practice Western societies have changed in more profound, long-term ways that deserve emphasis.
MULTICULTURALISM
The first of these is sociocultural diversity. Diversity refers here to the plenitude of difference in the human environment. We call this "sociocultural" because the differences we recognize are both social (dealing with the way people relate to one another) and cultural (dealing with the way people communicate with and interpret one another).
Take for example the midsized American city of Long Beach, California. If you lived in that city in 1970 and were "white," that is to say of European or Caucasian descent, you would reside in an area where some 85 percent of your neighbors were also "white." Under those conditions, ability to read and understand English, interest in attending a Christian church, and enthusiasm to celebrate Christmas and Easter would have been so widespread as to be taken for granted. The municipal laws of Long Beach in those days may or may not have been effective in maintaining complete order (recall that 1970 came just after the urban unrest of the late 1960s), but they would at least be considered reflective of the values of most residents.
Fast-forward to the year 2010. In that year Long Beach was one of the most socioculturally diverse cities in all of the United States (see figure 1.2). Its white-only (i.e., non-mixed-race) population was 30 percent, and much of the remaining 70 percent of the now larger population hailed from a vast array of countries that included Vietnam, Cambodia, the Philippines, India, China, Korea, Mexico, El Salvador, and Guatemala among many others. With them on arrival to the city came distinct social structures (e.g., family relations) as well as cultural practices (e.g., food preparation, worship, and community celebrations). Now one must ask whether everyone in the city can read English sufficiently to understand municipal laws and signage. If not, what languages should law appear in? How will courts operate when managing disputes among and between these groups? And how do they adjudicate cases in which state law conflicts with ethnic or community values?
Even more starkly, the law of immigration itself has shaped whether and how "new" arrivals have even come to settle in the West. In the case of legal immigration, the United States long observed "preferences" in national origin (i.e., "what country you come from"). This meant that those leaving from some countries were legally more welcomed to immigrate than those leaving others.
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