ADDITIONAL CONSIDERATIONS REGARDING LAW'S EFFECT ON SOCIAL CHANGE
Another way of considering the role of law in social change is in the context of Leon H. Mayhew’s (1971) notion of the possibility of either redefining the normative order or creating new procedural opportunities within the legal apparatus. He designates the former possibility as an “extension of formal rights,” illustrated by the 1963 ruling of the U.S. Supreme Court that defendants accused of serious crimes have the right to legal representation. And he termed the latter possibility the “extension of formal facilities,” illustrated by the establishment of a system of public defenders who provide the required legal representation. The extension of formal rights and formal facilities in this manner had important implications for the criminal justice system in the form of greater protection of individual rights, at least in theory.
Lawrence M. Friedman (2005) presented a rather different perspective on law in social change. He describes two types of change through law: “planning” and “disruption.” Planning “refers to architectural construction of new forms of social order and social interaction. Disruption refers to the blocking or amelioration of existing social forms and relations’’ (Friedman, 2005:25). Planning through law is an omnipresent feature of the modern world. Although it is most pronounced in socialist countries (for example, 5-year plans of social and economic development), all nations are committed to planning to a greater or lesser extent. Both planning and disruption operate within the existing legal system and can yield “positive” or “negative” social change, depending on one’s perspective.
Although revolution is the most distinct and obvious form of disruption, “judicial review is frequently disruptive,” said Friedman (1975:277). He continued,
American courts have smashed programs and institutions from the Missouri Compromise to the Alaska pipeline. Activist reformers have played a sensational role in American life in the last decade. Ralph Nader is the most well-known example. . . . He stimulates use of legal process as a lever of social change. Much of his work is technically disruptive; it focuses on litigation and injunctions, on stopping government dead in its tracks, when it fails to meet his ethical and policies standards. Legal disruption can . . . include lawsuits; particularly after Brown v.
Board of Education, reformers have frequently gone to court to upset many old and established arrangements.
As these examples remind us, social change through litigation has been an important feature of the American landscape. Whether the change produced by such action is considered “destructive” or “constructive,” the fact remains that law can be a highly effective device for producing social change. For example, when the California Supreme Court overturned the legal basis for the system of financing schools in the state, Friedman (1973:27) succinctly observed: “Many a coup d’Etat in small countries have achieved less social change than this quiet coup d’Etat in the courts.”
Friedman observed that social change through litigation is found more often in the United States than in many other nations. This is because creative disruption of the judicial type presupposes a number of conditions that rarely coincide and are apparently not present in other countries to the same degree. These conditions include an activist legal profession, financial resources, activist judges, a genuine social movement, and what he describes as “the strongest condition”—that is, in the United States, “elites—the power holders—must accept the results of disruptive litigation, like it or not” (Friedman, 1975:278). Clearly, no socialist or authoritarian country will tolerate anything like the American form ofjudicial review. Their legal structures are not designed to accommodate these patterns.