Law. Society, and the Status Quo

The discussion this week pertains to sociological jurisprudence and judicial decisions as a vehicle to promote social change. The question is whether or not legal decisions are a key element in producing social change and maintaining the status quo of society. Status quo is defined by Merriam-Webster as :

 the existing state of affairs <seeks to preserve the status quo>” ( Merriam-Webster).

For our purposes the status quo refers directly to the sense of normalcy in society. The status quo is what most people are comfortable with or feel familiar with. When we are solely concerned with the status quo we can say we are effectively stalling some advancement towards social change. Social change generally occurs when a person or a group of people challenge the status quo in favor of a better or more representative alternative. We have seen throughout history that certain societal beliefs and laws have drastically been changed or altered over the years to line up with the changing views of society. For example Canada’s rape reform laws have drastically changed over the past few decades. The Globe and Mail describes Canada’s rape laws before 1983 as follows:

“Prior to 1983, rape was considered an offence outside of marriage. That meant a husband could not be charged with raping his wife, and a wife could only charge her spouse with indecent assault, common assault or assault causing bodily harm.” (The Globe and Mail 2009)

“Bill C-127 came into effect on Jan. 4, 1983, making sexual assault against one’s wife an offence. A wife can also charge her husband with aggravated sexual assault if the crime included a beating.” ( The Globe and Mail 2009)

By 1983 the views of society and the institution of marriage had changed so much that the government was forced to take action and change the laws. I believe that laws contrary to public morals and opinions defeat the purpose of law in itself. The essence of law has always been the interpretation of the social contract . We would not have law without the implied social contract. Merriam-Webster defines the social contract as:

            “an actual or hypothetical agreement among the members of an organized society or between a community and its ruler that defines and limits the rights and duties of each” (Merriam-Webster)

The implied rights and duties are the foundations of laws. It sets out a flexible approach to deal with the ebb and flow of social opinion. I would tend to agree that the purpose of laws are to maintain the status quo but only to the extent necessary to reflect the ideals and opinions of the larger population. The law is a standard by which to maintain order and peace amongst citizens, as such it strives for equality in application. As previously stated, being exclusively concerned with the status quo puts us at risk of stalling social change. The status quo is constantly changing and producing changes to laws. I firmly disagree with the assertion that it is the responsibility of the judiciary to further the progress of society. The role of the judiciary is to apply the existing laws. It is up to citizens to push the government to change the laws to reflect our views and opinions. The concept of the judiciary driving social change with respects to law undermines the very foundation of how Canadian government operates. The branches of government should always operate almost completely independent of one another. Our common law system allows for some very far-reaching and important changes to be made by judges. The laws themselves should never be made by the judiciary branch alone. Common law is set up to facilitate a certain degree of flexibility in accordance with practical reasoning and different circumstances. It’s intention is not to create laws but to help in the pursuit of equal justice.

References

http://www.merriam-webster.com/dictionary/status+quo?show=0&t=1349846934

http://www.theglobeandmail.com/news/world/canadian-law-only-changed-26-years-ago/article1150644/

http://www.merriam-webster.com/dictionary/social%20contract

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1 Comment

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One response to “Law. Society, and the Status Quo

  1. Good post!

    You note that “Social change generally occurs when a person or a group of people challenge the status quo in favor of a better or more representative alternative.”

    Well-said, but it is important to note that this is half of the picture. Social change can also occur when ‘moral entrepreneurs’ effectively mobilize to change the status quo in favor of a socially regressive, less democratic alternative. Alternatively, what seemed at the time to be a better alternative may turn out to have unintended consequences. When thinking about this, then, we should note that notions of ‘progress’ are socially situated and relative, as opposed to absolute.

    Your example of changes to Canada’s sexual assault laws is an effective illustration of your point.

    This statement: “The law is a standard by which to maintain order and peace amongst citizens, as such it strives for equality in application.”

    requires supporting evidence and further explanation. One of the most important contributions of the legal realists was their focus on the dynamics of the judicial decision-making process. By seeking to understand the role of social and psychological forces in shaping judicial decisions, they helped to move socio-legal scholarship beyond its focus on ‘the law’ as an abstract concept. When you suggest that the law “strives for equality in application”, legal realists and proponents of sociological jurisprudence would respond by asking you how ‘the law’ can strive? They would suggest that the pursuit of equality, while enshrined in the notion of the rule of law, is something that is practiced – or not – by legal professionals and practices.

    Regarding your closing point – an argument against ‘judicial activism’ – what would you say to the counter-argument that the nature of the Charter (a supreme law that is based on vague and general provisions) *requires* Canadian judges to engage in law-making (or un-making)? Judges must interpret the Charter in relation to the particulars of cases and against the backdrop of shifting social norms.