THE EFFICACY OF LAW AS AN INSTRUMENT OF SOCIAL CHANGE
As an instrument of social change, law entails two related processes: (1) the institutionalization of patterns of behavior and (2) the internalization of patterns of behavior. Institutionalization of a pattern of behavior refers to the establishment of a norm with provisions for its enforcement (such as desegregation of public schools), while internalization of a pattern of behavior means the incorporation of the value or values implicit in a law (for example, the belief that integrated public schools are “good”). William M. Evan (1965:287) noted, “Law . . . can affect behavior directly only through the process of institutionalization; if, however, the institutionalization process is successful, it, in turn, facilitates the internalization of attitudes or beliefs.”
Often law is an effective mechanism in the promotion or reinforcement of social change. However, the extent to which law can provide an effective impetus for social change varies according to the conditions present in a particular situation. In a very influential formulation, Evan (1965:288-291) suggested that a new law is likely to be successful to induce change if it meets the following seven conditions:
- 1. The law must emanate from an authoritative and prestigious source;
- 2. The law must introduce its rationale in terms that are understandable and compatible with existing values;
- 3. The advocates of the change should make reference to other communities or countries with which the population identifies and where the law is already in effect;
- 4. The enforcement of the law must be aimed at making the change in a relatively short time;
- 5. Those enforcing the law must themselves be very much committed to the change intended by the law;
- 6. The instrumentation of the law should include positive as well as negative sanctions; and
- 7. The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to lose by violation of the law.
Other factors also affect the efficacy of law as a mechanism of social change. One factor is the amount of information available about a given piece of legislation, decision, or ruling. When there is insufficient transmission of information about these matters, the law will not produce its intended effect. Ignorance of the law is not considered an excuse for disobedience, but ignorance obviously limits the law’s effectiveness.
In the same vein, law’s effectiveness will be limited if rules are not stated precisely, and not only because people are uncertain about what the rules mean. Vague rules permit multiple perceptions and interpretations. (What does the expression “all deliberate speed,” used by the Supreme Court in its Brown v. Board of Education school desegregation decision, mean?) Consequently, the language of the law should be free of ambiguity, and care should be exercised to prevent multiple interpretations and loopholes (Carter and Burke, 2005).
Legal regulations and the required behavior of people to whom the law is addressed must also be clearly known, and the sanctions for noncompliance need to be precisely enunciated. The effectiveness of the law is directly related to the extent and nature of perception of officially and clearly stated and sanctioned rules. Perceptions of rules, in turn, vary with their sources. Rules are more likely to be accepted if they reflect a notion of fairness and justice that is prevalent in society and when their source is considered legitimate (Jacob, 1995).
The responsiveness of enforcement agencies to a law also has an impact on its effectiveness (Kerley, 2005). Law enforcement agents not only communicate rules, but also show that the rules are taken seriously and that punishment for their violation is likely. But for a law to be enforceable, the behavior to be changed must be observable. For example, it is more difficult to enforce a law against the private use of illegal drugs than a law against racial discrimination in public housing. Moreover, law enforcement agents need to be fully committed to enforcing a new law. One reason for the failure of Prohibition was the unwillingness of law enforcement agents to enforce the law. Selective enforcement of a law also hinders its effectiveness: The more that high-status individuals are arrested and punished, the greater the likelihood that a particular law will achieve its intended objective (Zimring and Hawkins, 1975). Laws regularly and uniformly enforced across social class and social group lines tend to be perceived as more binding than they would have been if they were seldom and selectively enforced, because enforcement establishes behavioral norms, and in time, as E. Adamson Hoebel (1954:15) put it, “The norm takes on the quality of the normative. What the most do, others should do.”
As a strategy of social change, law has certain unique advantages and limitations as compared with other agents of change. Although these advantages and limitations go hand in hand and represent the opposite sides of the same coin, for analytical purposes, we will examine them separately.