Write short note on Law and social change. (2009)
Does law follow social change or produce it? The classical answers divide sharply, and India — where law was used to remake a society that had not asked to be remade — is the standing test case. The defensible position is that law is an agent of change whose effectiveness depends on the social base carrying it.
Law as a product of society
- Karl Marx and Friedrich Engels place law in the superstructure: legal forms express and stabilise the property relations of the dominant class, so law follows the mode of production.
- Émile Durkheim (The Division of Labour in Society, 1893) treats law as an index, not a cause. Repressive law, punishing offences against a strong collective conscience, marks mechanical solidarity; restitutive law, restoring relations between interdependent specialists, marks organic solidarity. Law changes because solidarity has already changed.
- William Graham Sumner (Folkways, 1906) gave the sharpest version: stateways cannot change folkways. Mores precede legislation and outlast it, so law outrunning custom becomes a dead letter.
Law as an instrument of change
- Max Weber shows why deliberate legal change is possible at all: under rational-legal authority law is enacted rather than found, formally rational and calculable, hence alterable by decision — an instrument the state can wield.
- Roscoe Pound made this explicit as social engineering: law balances competing social interests to secure the maximum of claims with the minimum of friction.
The Indian reply to Sumner
India tests Sumner’s thesis and finds it too strong. M. N. Srinivas held that the modern state became a principal source of change, legislation and constitutional equality accelerating both Sanskritisation and Westernisation. Upendra Baxi insisted that Indian public interest litigation be called social action litigation, since it grew after the Emergency out of judicial response to mass deprivation. Marc Galanter (Competing Equalities, 1984) showed compensatory discrimination genuinely redistributing opportunity while generating a politics of classification and stratification among beneficiaries. Law does move folkways — but it relocates conflict rather than dissolving it.
- Illustrations: abolition of untouchability and the Protection of Civil Rights Act, 1976; the Hindu Code Bills, notably the Hindu Marriage Act, 1955, enforcing monogamy and permitting divorce; the Dowry Prohibition Act, 1961; the SC/ST (Prevention of Atrocities) Act, 1989; the Hindu Succession (Amendment) Act, 2005; the Forest Rights Act, 2006; the Right to Education Act, 2009.
Why laws underperform
- The implementation gap, Gunnar Myrdal’s soft state: strong statute, weak enforcement. Of 45.70 lakh claims under the Forest Rights Act, only 23.43 lakh titles were distributed by October 2023; 2,62,554 cases under the atrocities Act were pending trial in 2023.
- Legal pluralism. Caste and khap panchayats, jamaats and personal law still govern marriage and inheritance; daughters’ coparcenary rights from 2005 remain largely unclaimed, and Bina Agarwal and colleagues (2021) find women are only 14% of landowners.
- Low legal literacy and the cost of access leave rights usable only by the informed.
- Law follows mobilisation more reliably than the reverse: the Mathura agitation produced the Criminal Law (Amendment) Act, 1983, and Bhanwari Devi’s case the Vishaka guidelines (1997) and the POSH Act, 2013.
Conclusion
Law neither mirrors society nor engineers it unaided. It works where a movement, an administration and an altered moral sense carry it, and fails quietly where none of these exists.