“Laws
are a form of social rule emanating from political agencies”. Laws become
legislations when they are made and put into force by law-making body or
authority. Legislations, particularly social legislations have played an
important role in bringing about social change.
There are two opinions
about the functions of law. The function of law, according to one view, is to
establish and maintain social control. Hence the major problem of law is to
design legal sanctions to minimise deviance and to maintain social solidarity and
social order.
Another view stresses the dynamic role of law. It states that
the function of law is not just to maintain social order through social
control. It insists that law must bring about social change by influencing
people’s behaviour, beliefs and values. We shall now analyse the role of law or
legislation in bringing about social change.
A careful analysis of the role of legislation in social change
would reveal two things. (i) Through legislations the state and society try to
bring the legal norms in line with the existing social norms, (ii) Legislations
are also used to improve social norms on the basis of new legal norms.
Social legislation can be an effective means of social change
only when the existing social norm is given a legal sanction. No legislation by
itself can substitute one norm with another.
It can hardly change norms. Unaided social legislation can
hardly bring about social change. But with the support of the public opinion it
can initiate a change in social norm arid thus a change in social behaviour.
Some examples of social legislations made in India will help us to understand
this point.
A number of social legislations were made in India both before
and after independence with a view to bring about social change. Some of these
could achieve success while a few others still remain as dead letters. The
legislations that secured public support and the support of social norms could
become a great success.
For example, the Hindu Marriage Act was passed in 1955 enforcing
monogamy and permitting judicial separation and divorce. Though polygamy was
permitted among the Hindus, majority of the people practised monogamy only.
Public opinion was in favour of monogamy.
For a long time social reformers agitated that Hindu marriage
should be monogamous. The Hindu women also resented the second marriage by a
man when the first one was alive. Those who opposed monogamy were branded as
conservative, orthodox and selfish. When the Hindu Marriage Act was passed in
1955 it could get the support of the people and the opposition gradually died
down.
The Hindu Marriage Act of 1955 could bring about a number of
social changes. The Act abolished all caste restrictions as a necessary
requirement for marriage. The Hindus of all castes have the same rights with
respect to marriage. Intercaste marriages are now allowed.
The Act provides for a secular outlook with respect to marriage
and enables the registration of marriage. It enforces monogamy making both the
sexes equal in marital affairs. It provides equal rights for both to get
judicial separation and divorce on legal grounds. It treats various sects of
people such as Jains, Buddhists, Sikhs, Veera Shaivas, Harijans, Girijans and
many others as ‘Hindus’. Thus, it paved the way for bringing about a uniform Civil
Code for all the citizens of India.
In the same way, the Hindu Succession Act of 1956 could attain
success. The Act confers for the first time absolute rights over the property
possessed by a Hindu woman. Both sons and daughters get the right of inheritance
of property because of this Act.
The Act removes the prejudice against women getting the property
of the father. Since public opinion is in favour of women enjoying equal
rights and opportunities, the Act could be enforced easily.
The Hindu Adoption and Maintenance Act of1956 has been a step
toward the upliftment of the status of women. It permits the adoption of a son
or a daughter. It makes the consent of the wife necessary for adopting a child.
It has also given the right to the widows to adopt.
The Legislative Acts mentioned above could bring about changes
in some areas of our life because they are backed by public opinion and current
social norms and values. Whenever the social norms are ahead of the legal
codes, it becomes necessary to bring the legal code into conformity with the
prevalent social values.
Sometimes dominant minority groups may cherish some ‘advanced’
values and may bring pressure upon the legislative bodies to make legislations
to enforce such values on masses. Such legislations become an active social
force only when they are internalised by the people.
In pre-Independent India, social legislations such as — The
Hindu Widow Remarriage Act of 1856, Female Infanticide Prevention Act of 1870,
the Special Marriage Act of 1872 (which made marriage a civil marriage free
from religious barriers), Child Marriage Restraint Act of 1929, etc., could
attain success and pave the way for changes in society because they were in
tune with the trends and tides of the time.
On the contrary, those social legislations that are far ahead of
the social norms and values and those that lack popular support and public
opinion are bound to be a failure. They may become only dead letters. Some of
them may bring about changes very gradually in the long run. Some others may be
simply ignored or even resisted.
The Untouchability Offences Act of1955 was passed by the
Parliament in accordance with the provisions of Article 35 of the Indian
Constitution. It made the practice of untouchability a cognisable offence
punishable under law. (This Act was, however, substituted by the Protection of
Civil Rights Act in 1976).
All the social disabilities from which the Harijans suffered
have been removed legally and constitutionally. But in reality, Harijans suffer
from many kinds of social disabilities especially in rural areas even today.
Here the law is ahead of the social norm particularly in the villages where
untouchability is still in practice.
The institutionalisation of this new rule has not affected
people’s ways of life. Because the majority of the village people have not yet
internalised this norm. It makes clear that passing an Act is not enough to
alter the social practice. A social movement educating the public through
propaganda is necessary to make effective such social legislations.
Law relating to prohibition was also a
grand failure for want of public support. Gandhiji launched a crusade against
drunkenness. He even tried to persuade Congressmen to work for total removal of alcoholism.
But right from 1937 there has been a strong opposition against prohibition. Not
all the Congressmen supported it.
Those who were used to liquor consumption carried on a silent
wave against prohibition. All the provinces never legislated laws in favour of
prohibition. Some states kept neutral while a few states enacted legislations
against taking alcoholic drinks. In such states illicit distillation started as
kind of “cottage industry”. Public opinion was not properly mobilised in favour
of it. Hence it failed. In America also law relating to prohibition was a grand
failure and hence it was withdrawn.
For the same reasons as mentioned above the Hyderabad Beggary
Act of1940 passed in order to prevent the beggars from begging, failed. Some
other states such as Bengal, Bombay, Karnataka also made legislations for the
prevention of beggary.
Nevertheless, beggary continued to be practised by beggars in
all these states. In the same way, the Dowry Prohibition Act of 1961 which made
the giver as well as receiver of dowry punishable also has become ineffective.
The social norms, in other words, have not been affected by this law, and hence
the society follows the social norms rather than legal norms in these fields.
Mere threat of punishment will not be effective.
Such a situation produces what Festinger calls ‘ forced
compliance”. So long as behaviour involves forced compliance, there is no
internalisation of the new values and so there will be disobedience of the law.
Forced compliance can only create a discrepancy between public behaviour and
private belief.
Unintended Consequences of
Legislations
As Richard T. Lapiere has pointed out, one of the major tasks of
the governments is to produce desired changes through legislative enactments.
Hence legislations may be enacted for slum clearance, for providing assistance
for the poor to construct low-cost houses, for providing social security to the
labourers, handicapped persons, for providing protection to women, children,
weaker section, minorities, etc. But sometimes such legislations may produce
unintended consequences in society.
For example, the Government of Napoleon in its efforts to keep
France agriculturally self- sufficient, established subsidies for the
production of sugar beets. No one anticipated or could have anticipated that
this legislation would in the course of time help to make France the heaviest
per capita consumer of alcoholic beverages in the whole world.
In the same way, legislation in America also brought about an
unintended result. The New Deal ideologists wanted to save the small single
family agricultural units from the economic crisis of 1930s.
Hence they designed the agricultural parity price system to help
such small growers. The ideologists could hardly foresee that the long-run
effects of such legislation would be to speed up the growth of large-scale
industrial agriculture and to hasten the doom of the small-scale agriculturists.
Legislation or any other governmental agency has its own
inability to pre-determine the consequences of politically sponsored changes.
Legislation has its own limitations in inducing significant qualitative changes
by coercion.
Of course, men may be deterred by coercion from doing something
that they might like to do. They may be encouraged by the government to work at
their trade, pursue their scientific investigations, treat sick patients, etc.
People cannot, however, in the same ways be induced either to
want to be creative or to act for long in ways that are contrary to their
established cultural attributes. It is for this reason the governmental
efforts to increase national birth-rates through legal means having failed. Its
efforts to establish racial equality through legislation have failed.
Similarly, no legislation can be made to make a people religious
or to deprive them of an established religion; to change their sex morals, to
improve domestic harmony, to substitute one custom with another, and so on.
Legislations can be made by governments to sanction changes
that have already occurred. In fact, in the long run, legislations are made for
sanctioning changes. But legislations cannot be made in the social field
directly. They cannot fix the course of social changes in a predetermined
fashion.
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