The Law? Or to Uphold The Status Quo?

This weeks readings focus on the approach to sociological jurisprudence and the few realist scholars and their approaches to law. Our question for this weeks food for thought was to explore whether the purpose of law, particularly judicial decision making, is to preserve the status quo.

In our case study this week, Buck v. Bell, Oliver Wendell Holmes (1841- 1935) was a Supreme Court Judge in the United States and a founder of realism. In the case, the State of Virginia gave a court verdict against Carrie Buck, an 18-year-old female who was an institutionalized “feeble minded white woman” and gave birth to illegitimate feeble- minded (underdeveloped) child. Holmes states, “three generations of imbeciles are enough” (Pavlich, 2011, p. 57) However, never the less, society thought that this was normal, and that it was the right thing to do. Why? According to society it was the “status quo”. “Experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc’s; moreover, the statue allows for the ‘superintendents’ of some institutions to have patience with hereditary forms of insanity, imbecility, etc.’ ‘sexually sterilized’.” Holmes had based his decision on the status quo. He believed that his decision making was superior and correct because it’s what society thought was right or how they’d say “normal”.

I believe that the purpose of law especially in making judicial decision-making is not based on having to uphold the status quo.  However, I do believe that society makes a difference within making judicial decisions. We see a change in fashion, music, brands and just like society we see a social changes within.

It is clear that the law is separate from what pleases society or what that status quo may be. I believe laws are a set of rules that uphold society which society must follow.  If our leaders were to base judicial decision-making on the status quo, our rules and laws would be changing frequently therefore causing instability.

Don’t get me wrong. There are some positives in relation to the status quo. The status quo could help within some rules and laws changing, especially if people have differences of opinions towards the law. When social changes occur, we tend to follow what we think is “in” or what to us seems normal or in some cases just. Throughout history laws and rules were made and changed, as society also changes. For example, Abortion was illegal in Canada until 1969 when the Canadian Parliament passed a law that allowed abortion in certain circumstances. In 1988 the Supreme Court of Canada got rid of abortion laws and legalized abortion. Abortion laws were changed because society felt that the laws were taking women’s rights from them. Back in the day abortion was seen as something wrong, but as society changed, and we have more rules that protect us, the law to changed. “There has always been a clear recognition of a public interest in the protection of the unborn and there is no evidence or indication of general acceptance of the concept of abortion at will in our society. The interpretive approach to the Charter adopted by this court affords no support for the entrenchment of a constitutional right of abortion.” (LifeCanada/VieCanada. (2012). AbortionInCanada.Ca. In AbortionInCanada.Ca. Retrieved undefined, from http://www.abortionincanada.ca/history/legal_abortion_canada.html.)

With that in mind, it goes to show that our laws reflect the best interest in its citizens. With that said, I still believe that laws and judicial decision making is not based on having to uphold the status quo because there is no pleasing everyone. If the rules and laws were to please everyone there wouldn’t be laws.

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One response to “The Law? Or to Uphold The Status Quo?

  1. This is an interesting post. I think that you are partially correct in your analysis of Holmes’ decision in Buck v. Bell.

    The suggestion that the purpose of law is to preserve the status quo is meant to distinguish the approach to decision-making described by the legal positivists from the more activist approach advanced by proponents of sociological jurisprudence (including Holmes). The positivist approach to decision making – captured in the phrase ‘law is law’ – regards the judge as a trier of fact and applier of statutes and precent, but not an agent involved in the shaping and transformation of law. If Holmes had been a proponent of positivism, he – and the rest of the court – would have adopted a strict constitutional interpretation of the case. Instead, Holmes’ decision disrupts the existing legal status quo in the interests of advancing a then-popular social trend.

    Your use of the change in abortion laws as an example of shifts in legal support for the status quo is effective.

    You conclude by saying: “With that in mind, it goes to show that our laws reflect the best interest in its citizens. With that said, I still believe that laws and judicial decision making is not based on having to uphold the status quo because there is no pleasing everyone. If the rules and laws were to please everyone there wouldn’t be laws.”

    Two questions: First, what would Marx say in response to your assertion that “our laws reflect the best interests of citizens”?

    Second, is there a difference between ‘upholding the status quo’ and ‘pleasing everyone’? How do you conceptualize the status quo?