ADVANTAGES AND LIMITATIONS OF THE LAW AS AN INSTRUMENT OF

SOCIAL CHANGE BY: ANGEL CHITAMFYA CHILUFYA (GRADUATE LLB)

ZAMBIAN OPEN UNIVERSITY

INTRODUCTION
What is change? The term change in everyday usage is often employed loosely as demonstrated
in the recurrent rhetoric of the presidential and the political campaigns at various levels to refer
to something that exists that did not exist previously or to the demise or absence of something
that formerly existed. Many changes in life are small enough to be dismissed as trivial, although
at times they may add up to something more substantial and consequential in this regard
therefore, this paper explains the advantages and limitations of the law as an instrument of
change. In this context change will be looked at not in its broadest sense but in respect of social
change.

SOCIAL CHANGE

In its most concrete sense social change means the large numbers of people engaging in group
activities and relationships that are different from those in which they or their parents engaged in
previously. Society is a complex network of patterns of relationships in which all the members
participate in varying degrees. These relationships change and behaviour changes at the same
time. Individuals face new situations to which they must respond. These situations reflect factors
such as new technologies, new ways of making a living, changes in place of residence, and
innovations, new ideas, and new social values, thus social change means modifications in the
way people work, rear a family, educate their children, govern themselves, and seek ultimate
meaning in life. It also refers to a restructuring of the basic ways people in society relate to each
other with regard to government, economics, education, religion, family life, recreation,
language, and other activities.1 Social change is a product of a multitude of factors and, in many
cases, the interrelationships among them. In addition to law and legal culture, 2 there are many

1
Vago,S. (2000) Law and Society. United Kingdom: Oxford University Press.
2
Gibson , J., Caldeira, G.A. (1996) The legal Cultures of Europe, “Law and Society Review. San Francisco, CA:
Jossey-Brass.

1
other mechanism of change, such as technology, ideology, competition, conflict, political and
economic factors, and structural strains3

LAW AS AN INSTRUMENT OF SOCIAL CHANGE

There are abundant historical and cross-cultural illustrations in which the enactment and
instrumentations of laws have been used deliberately to induce broad social changes in society4
with the advent of Roman jurists, the notion of law as an instrument of social change became
clearly conceptualized. Nisbet says, “The conversion of Rome from Republic to Empire could
not have been accomplished except by means of explicit legal decree buttressed by the doctrine
of imperial sovereignty” since Roman times, great ages of social change and mobility almost
always involved great use of law and of litigation. There are several illustrations of the idea that
law, far from being simply a reflection of social reality, is a powerful means of accomplishing
reality that is, fashioning or making it. It is generally acknowledge that, despite the ideas of
Marx, Engels, and Lenin that law is an epiphenomenon of bourgeois class society doomed to
vanish with the advent of the Revolution, the former Soviet Union succeeded in making
enormous changes in society by the use of laws. 5 In Spain, during the 1930s, law was used to
reform agrarian labor and employment relations6 more recently, the attempts by Nazi Germany
and later on by Eastern European countries to make wholesale social changes through the use of
laws such as nationalization of industry, land reform and introduction of collective farms,
provision of free education and health care and elimination of social inequities are illustrative of
the effectiveness of law to induce change7 .

In china when the communist party came to power in 1949, virtually all vices that are ubiquitous
in western countries prostitution, gambling, pornography, drug trafficking and usury were
eliminated by government decree along with business operations that were dependent on profits

3
Cox, N. (2006). Technology and Legal Systems Burlington. VA: Ashgate .
4
Fernandes, E., and varley, A. (1998). Vegal Cities: Law and Urban Change in Developing Countries. New York:
st Martin‟s Press.
5
(Dror,Y. (1968). Law and Social Change. In Rita James Simon.(ed.). The Sociology of Law. San Francisco, CA:
Chandler Publishing Company.
6
Collier, G. (1989). The Impact of Second Republic Labour Reforms in Spain. New York: Cornell University Press.
7
Eorsi, G., and Harmathy, A. 1971). Law and Economic Reform in Socialistic Countries. Budapest: Akademiai
Kiado.

2
from such activities.8 China also managed to moderate through law its population growth and as
a result devote more of its resources to economic development and modernization ( Diamant et
al.,2005; Tyler, 1995). They established an effective women‟s health system that discourages
large families through patient education, contraceptive choice, and heavy taxes for couples who
choose to have an additional child (Rosenthal, 1998). In late 2000, China‟s one child policy
became more flexible, and affluent couples now can buy a license” or a permit” to have
additional children, although at a substantial cost.

Acknowledgement of the role of the law as an instrument of social change is becoming more
pronounced in contemporary society. Friedmann says, “ the law through legislative or
administrative responses to new social conditions and ideas, as well as through judicial re-
interpretations of constitutions, statutes or precedents increasingly not only articulates but sets
the course for major social changes” (1972:513). Thus, “attempted social change, through law, is
a basic trait of the modern world” in the same vein Yhezkel Dror (1968)9 contends that “the
growing use of law as a device of organised social action directed toward achieving social
change seems to be one of the characteristics of modern society.” Many authors such as Joel B.
Grossman and Marry H Grossman (1972) consider law as a desirable, necessary, and highly
efficient means of inducing change, preferably to other instruments of change.

ADVANTAGES OF THE LAW AS AN INSTRUMENT OF SOCIAL CHANGE

Compared with this incomplete list of change-inducing forces, the law has certain advantages.
Change efforts through law tend to be more focused and specific. Change through law is a
deliberate, rational, and conscious effort to alter a specific behaviour or practice. The intentions
of legal norms are clearly stated, with a concomitant outline of the means of instrumentations
and enforcement and sanction provisions. Essentially, change through law aims at rectifying,
improving, ameliorating, or controlling behaviours and practices in precisely defined social
situations as identified by the proponents of a particular change. The advantages of the law as an
instrument of social change are attributed to the fact that law in society is seen as legitimate,

8
Brady, J.(1981). “ A season of Startling Alliance: Chines Law and Justice in the New Order,” International Journal
of the Socialogy of Law.
99
(Dror,Y. (1968). Law and Social Change. In Rita James Simon.(ed.). The Sociology of Law. San Francisco, CA:
Chandler Publishing Company

3
more or less rational, authoritative, institutionalized, generally not disruptive, and backed by
mechanisms of enforcement and sanctions.

LEGITIMATE AUTHORITY

A principle advantage of the law as an instrument of social change is the general feeling in
society that legal commands or prohibitions ought to be observed even by those critical of the
law in question. To a great extent, this feeling of obligation depends on respect for legitimate
authority and the perception of power. 10

The archetypal treatment of legitimate authority is that of Max Weber (1947), weber defines
“imperative coordination” as the probability that specific commands from a given source would
be obeyed by given groups of persons. Obedience to commands can rest on a variety of
considerations, from simple habituation to purely rational calculation of advantage. But there is
always a minimum of voluntary submission based on an interest in obedience. In extreme cases,
this interest in obedience can be seen in the tendency for people to commit illegal acts when so
ordered by authority and others to execute such acts as not subject to ordinary molarity.
Obedience to authority can be based on custom, effectual ties, or a purely material complex of
interests what Weber calls “ideal motives.” These purely material interests result in a relatively
unstable situation and must therefore be supplemented by other elements, both effectual and
ideal. But even this complex of motives does not form a sufficiently reliable basis for a system of
imperative cooperation, so that another important element must be added, the belief in
11
legitimacy.

THE BINDING FORCE OF LAW

There are numerous reasons that law is binding (Honore, 1987). 12 They range from an assertion
that laws are ordained by nature to the belief that law results from consensus of its subject to be
bound. The immediate and simplest answer is that law is binding because most people in society
consider it to be so. The awareness and consciousness of law by most people serve as the

10
Andenaes, Johannes. (1977). The Moral or Educative Influence of Criminal Law. In June Louis Tapp and Felice J.
Levine (ed.). Law Justice and the Individual in Society : Psychological and Legal Issues. New York: Holt,Rinchart
& Winston.
11
Max Weber (1947
12
(Honore, T.(1987). Making Law Bind: Essays Legal and Philosophical. Oxford: Clarendon
Press.
4
foundation for its existence; people generally submit their behaviour to its regulation, although
they may have different reasons for doing so. Some may believe that in obeying the law, they
obey the higher authority of the law: God, nature, or the will of the people. (Negley,1965) 13 .

Others consider the content of the law to command obedience, which, in turn, is seen as
compelling obligation (Ladd, 1970).14 The law achieves its claim to obedience, and at least part
of its morally obligatory force, from a recognition that it receives from those or from most of
those, to whom it is supposed to apply. In addition to agencies that encourage obedience through
the application of the law, other ingredients are normally present and essential. They include an
inner desire of people to obey, reinforced by a belief that a particular law is fair and just because
it applied equally, a feeling of trust in the effectiveness and legitimacy of the government, and a
sense of civic-mindedness, they also include self-interest and the knowledge that most people
obey the law and recognise it as having a certain morally rightful claim upon their behaviour, or
at the very least, that they behave as though they felt that way, Essentially people follow the law
because they feel that, as one author (Tyler, 2006)15 succinctly puts it, it is the “right thing to
do.”

An additional reason for the binding force of the law may be that people prefer order over
disorder and predictability of behaviour. Individuals are creatures of habit because the habitual
way of life requires less personal effort than any other and caters well to sense of security.
Obedience to the law guarantees that way.it also pays to follow the law it serves effort and risk, a
motivation sufficient to produce obedience, obedience to the law is also related to the
socialisation process. People in general are brought up to obey the law. The legal way of life
becomes the habitual way of life. From an early age, a child increasingly gains insight into the
meaning of parental expectation, orders, and regulations and becomes socialized. This process
repeats itself in school and in larger society. All such discourses increasingly provide or should
provide for participation of the maturing person. The individual, so to speak, shapes regulations
and makes them his or her own. In the process, discipline is replaced by self-discipline.

13
Negley, (1965).
14
(Ladd, J. (1970). Legal and Moral Obligation. In Roland Pennock and John W. Chapman.
(ed.). Political and Legal Obligation. New York. Lieber-Atherton, Inc. Lassman, Peter (ed.).
2006. Max Weber.
15
(Tyler, 2006
5
SANCTIONS

Sanctions for disobedience to the law are surely among the primary reasons that laws having
binding force Evan, (1990)16 . As Hoebel eloquently states, “the law has teeth, teeth that can bite
if need be, although they need not necessarily be bared.” Sanctions are related to legal efficacy
and are provided to guarantee the observance and execution of legal mandates, to enforce
behaviour. The sanctions recognised and used by legal systems are usually of diversified
character. In primitive societies, they take the form of cruel punishments or social ostracism. In
developed legal systems, the administration of sanctions is, as a general rule entrusted in the
organs of political government. Among the means of coercive law enforcement are punishment
by fine or imprisonment; the imposition of damage awards, which may carried out by executions
into the property of the judgement debtor; the order by a court of specific acts or forbearances at
the threat of a penalty ; and the impeachment and removal of a public officer for dereliction of
duty, as Hans Kelsen (1967 )17 notes, the sanction characteristic of modern legal systems go
beyond merely the exercise of psychological pressure, and authorise the performance of
disadvantageous coercive acts, namely, “ the forceable deprivation of life, freedom, economics
and other values as consequence of certain conditions.”

Robert B. Seidman (1978) points out that “ laws more or less consistent with the existing social
order need not relay upon the threat of legal sanction to induce behaviour.” However, not all
laws are consistent with the existing social order, and an advantage of the law as an agent of
social change is that potential violation of the law often deterred by actual or perceived risk and
by the severity of sanctions attached to non-compliance. Even the threat of sanctions can deter
people from disobedience. In this connection, it should be noted that disobedience can often lead
to an improvement in legal regulation, thus reducing the need for sanctions (Penalver and Katyal,
(2010).18 Perhaps sanctions also play a part by inducing a moralistic attitude toward compliance

16
Evan, W. M. (1990). Law as an Instrument of Social Change. In Alvin W, Gouldner and S. M.
Miller (ed.). Applied Sociology Opportunities and Problems. New York: Free Press (1990).
Social Structure and Law: Theoretical and Empirical Perspectives. Newbury Park, CA: Sage
Publications.
17
Hans Kelsen (1967 ). The Pure Theory of Law. (2 nd ed.). Trans. M. Knight. Berkeley and Los
Angeles: University of Califonia Pree.
18
(Penalver and Katyal, (2010)
6
Schwartz and Orleans, (1970).19 There are other additional discernible advantages of the law in
creating social change. For example, the law as an instrument of change can effectively be
involved in the context of john Stuart Mill‟s notion of the law;

i)to achieve common purposes which cannot be left to the forces of supply and demand such as
education; ii) to protect the immature and helpless; iii) to control the power of associations,
managed not only by the persons directly interested but by delegated agencies; iv) to protect
individuals acting in concert in cases where such action cannot be effective without legal
sanctions; v) to achieve objects of importance to society, present and future, which are beyond
the powers of individuals or voluntary associations or which, if within their powers, would not
normally be undertaken by them. (Ginsberg, 1965)20

The list of conceivable advantages of the law as an instrument of social change is indeed
incomplete. What has been mentioned so far is intended simply to demonstrate that the law has a
peculiar and unparalleled position among agents of social change. At the same time it has certain
limitations. Knowledge and awareness of the limitations will help bring an understanding more
fully the role of the law in social change, and they need to be taken into account for use of the
law in change efforts.

LIMITATIONS OF THE LAW IN BRINGING ABOUT SOCIAL CHANGE

However, it is not the case that the role of law in society is without limitations. First, the law
performs only a limited social function. Secondly, there are limitations on the effectiveness of
law. The prime objective of law as has been seen is to regulate social life. It shapes behaviour in
society in conformity with the goals of those having influence within it. Law is an instrument of
social control with the purpose of achieving social order. This it does by maintaining public
order, fostering co-operation, regulating power and reinforcing social standards. Activities which
threaten the harmonious working of society or its basic assumptions are disapproved and
suppressed.21

However, there are whole areas of life which are unregulated by law. For instance, the most
personal parts of one‟s life are really outside the law‟s domain. Law cannot give health, comfort,

19
Schwartz and Orleans, (1970).
20
(Ginsberg, 1965)
21
Professor Anyangwe, C. (2005) An Outline of The Study of Jurisprudence. Lusaka: UNZA Press.

7
accommodation, or love. Even in public activities such as economic production and politics, all
the law can do is provide a framework. Again, although the law can be used to enforce morality,
the moral standards emanate from elsewhere. Law provides a means rather than the end.

Moreover, law cannot compel action. No one can be forced to do anything merely by law. No
law can compel any particular course of action, even if the law is accompanied by a sanction. All
that the law can do is to try to induce someone, by order or by persuasion or by suggestion, to a
certain course of action. The inducement may take various forms: punishment, reward, non-
disapproval. A law which forbids murder does not stop persons committing murder; it merely
punishes them if they do so, assuming the crime is detected and the accused have no good
defence. Again, a law which orders something to be done (e.g., that people who wish to drive
must have a driving licence or that people who wish to get married must have the marriage
celebrated by the registrar of marriages) merely says that if the thing is not done some action will
be invalid, and/or an offence would have been committed. 22

Even if resort is had to physical force, it cannot be said that the law has compelled someone to do
something. For example, a person who refuses to follow a policeman to the police station on
request may be physically taken there by the policeman. But why he is in the police station is not
because of the compelling force of law but because he had been taken there by force. Again, a
person who refuses to leave a country after being ordered to do so may be physically deported
(i.e., dumped over the frontier) by the police. Why he has left the country is because the police
removed him manu militaris and not because of the compelling force of law. 23

The effectiveness or efficacy of a law may be measured in terms of the degree to which people
comply with it. If the purpose of the law is preventive, its effectiveness is assessed by seeing if
its application prevents the conduct disapproved of. For example, how far does the law against
theft prevent stealing? Would a low or high conviction rate indicate that such a law is effective?
On the other hand, if the purpose of a law is curative, that is, to remedy some deficiency or
disorder, its effectiveness is measured by the extent to which the deficiency or disorder
disappears. For example, to what extent has sexual immorality disappeared because of the law

22
Ibid
23
Ibid

8
against sexual immorality? To what extent has corruption disappeared because of the laws
against corruption?24

Effective laws should do what they are designed to do. They should work. Unfortunately,
however, laws do not always work. They are not always efficacious. A number of factors tend to
limit law‟s effectiveness.

One, the ascertainment of facts is a huge problem in adjudication. Thus, the greatest problem in
court is the proof of facts. This is so because in nearly every event the court tries, with the help
of witnesses, to reconstruct that event. Strictly speaking, this is impossible because every event is
unique and no reconstruction will exactly reproduce it. The law therefore falls back on the
evidence of witnesses of what they said, saw, heard or did as well as upon the production of
objects. The danger here is that there can easily be misunderstanding, misinterpretation,
misevaluation, mistaken observation, downright forgetfulness, or deliberate lying on the part of
the witness. To guard against the unreliability of oral evidence the law places reliance on the
oath and the law on perjury. But not very many people believe in oaths nowadays, and perjury is
difficult to prove. Another way in which the law seeks to guard against the unreliability of oral
evidence is the legal requirement that important transactions be evidenced in writing and be
witnessed. But these requirements of form can easily lead to injustice in certain cases.

Two, there are some social obligations which cannot sensibly or practicably be enforced through
law. For example, in sexual relations between husband and wife all the law can do is deal with
the consequences of refusal. Again, the law attaches no importance to boy-girlfriend relationship
and no obligations arising there from can, as a general rule, be enforced at law. Furthermore,
although trespass to land is actionable per se the law for common-sense reasons may refuse to
award damages if no injury was done to the land. 25

Three, the corporation of citizens on which many laws depend for their efficacy is not always
forthcoming. This may be because the people have no conviction or confidence in the law. It
may be because they disapprove or are ignorant of it. It may also be because they do not want to

24
Ibid
25
Professor Anyangwe, C. (2005) An Outline of The Study of Jurisprudence. Lusaka: UNZA Press .

9
get involved. A high rate of non-compliance with a particular law weakens it; the law falls into
disrepute and fails in its purpose.26

Four, officials may fail to properly apply or implement the law. Resources, human and financial,
may be limited and the machinery for implementation unsuitable. The institutions charged with
implementing the law may lack zeal, motivation and effectiveness. Ineffectiveness of the law
may also be due to a failure to monitor its effectiveness, to lack of reinforcement of the law (e.
g., by publicity campaigns to bring the terms of the new law to the notice of all those affected),
imprecision of aim or expression of the law, internal ambiguities of purpose, lack of motivation,
corruption, errors of judgment, and so on.

Five, there is the old problem of language and failure of communication. Legal language is not
always understood by all. This may result in breakdown in communication. The legislator may
intend one thing but expresses it so badly that he is understood in another way. Parliament is
always passing laws. One result of legislative inflation is that the ordinary people cannot
reasonably be expected to keep pace with the plethora of laws. In any case, laws are not always
easily accessible. Although laws are published in the Government Gazette, copies of the Gazette
are not easy to come by. Most laws remain unknown to most people, including the educated
elite. Unknown law is ineffective law.

Six, some laws are vague, obscure, uncertain, and archaic. This sometimes makes enforcement of
the law arbitrary, haphazard and difficult. Ironically, the vaguer a criminal law is the more
effective it can be in the hands of the police as an instrument of social control. In the civil law
area, some grievances, such as intrusion on privacy, are not clearly definable in law. Often, the
loss suffered is not really measurable in financial terms so that legal redress is a gesture rather
than adequate restitution. Contract law provides for restitutio in integrum following the
rescission of a contract between the parties. But factually it is difficult to see how the contracting
parties can be restored to their original position as if nothing had happened since the contract was
entered into.

26
Ibid

10
Seven, a law may also fail because it is ill-suited to the particular society in which it is passed or
received. Since law operates in context and does not exist in a vacuum, any law that disregards
social facts is likely to be disregarded by the citizens.

These limitations notwithstanding, the pervasive role of law in society as a „social engineering‟
tool is without question. Berman & Greiner identify four key encompassing processes of law 27 .
They see law as a process of disputes resolution: the law stipulates the competence and
jurisdiction of courts; it lays down rules governing pre-trial criminal and civil procedures as well
as trial procedures. The law is also seen as a process of maintaining what they call „historical
continuity and doctrinal consistency‟.

This point is illustrated with examples from manufacturers‟ liability in tort, a liability
established/extended by the courts through reasoning by analogy of precedent, doctrine and
statute. Law is further conceived as a planning process, and also as a process of protecting and
facilitating voluntary arrangements. This is peculiarly the province of contract law. Finally, law
is sees as a process of resolving acute social conflicts. Labour law and human rights law are
given as illustrative examples.28

CONCLUSION

Vividly, law is an instrument of change this is evidenced by the abundant historical and cross-
cultural illustrations in which the enactment and instrumentations of laws have been used
deliberately to induce broad social changes in society. A principle advantage of the law as an
instrument of social change is the general feeling in society that legal commands or prohibitions
ought to be observed even by those critical of the law in question. It shapes behaviour in society
in conformity with the goals of those having influence within it. However, there are whole areas
of life which are unregulated by law and this is the limitation of the law, for instance, the most
personal parts of one‟s life are really outside the law‟s domain. Law cannot give health, comfort,
accommodation, or love. Even in public activities such as economic production and politics, all
the law can do is provide a framework. Again, although the law can be used to enforce morality,
the moral standards emanate from elsewhere. Law provides a means rather than the end.

27
Berman H.J., & Greiner, W.R. (1980). The Nature and Functions of Law. Foundation Press: New York .
28
Ibid

11
 REFERENCES

BOOKS
Dror,Y. (1968). Law and Social Change. In Rita James Simon.(ed.). The Sociology of Law. San
Francisco, CA: Chandler Publishing Company.
Collier, G. (1989). The Impact of Second Republic Labour Reforms in Spain. New York: Cornell
University Press.
Eorsi, G.,and Harmathy, A.(1971). Law and Economic Reform in Socialistic Countries.Budapest:
Akademiai Kiado.

Vago,S. (2000) Law and Society. United Kingdom: Oxford University Press.

Gibson , J., Caldeira, G.A. (1996) The legal Cultures of Europe, “Law and Society Review. San
Francisco, CA: Jossey-Brass.

Cox, N. (2006). Technology and Legal Systems Burlington. VA: Ashgate .

Fernandes, E., and varley, A. (1998). Vegal Cities: Law and Urban Change in Developing
Countries. New York: st Martin‟s Press.
(Honore, T.(1987). Making Law Bind: Essays Legal and Philosophical. Oxford: Clarendon
Press.
Ladd, J. (1970). Legal and Moral Obligation. In Roland Pennock and John W. Chapman. (ed.).
Political and Legal Obligation. New York. Lieber-Atherton, Inc. Lassman, Peter (ed.). 2006.
Max Weber
Hans Kelsen (1967 ). The Pure Theory of Law. (2nd ed.). Trans. M. Knight. Berkeley and Los
Professor Anyangwe, C. (2005) An Outline of The Study of Jurisprudence. Lusaka: UNZA
Press.

Evan, W. M. (1990). Law as an Instrument of Social Change. In Alvin W, Gouldner and S. M.

Miller (ed.). Applied Sociology Opportunities and Problems. New York: Free Press (1990).
Social Structure and Law: Theoretical and Empirical Perspectives. Newbury Park, CA: Sage
Publications
JOURNAL ARTICLE
Brady, J.(1981). “A season of Startling Alliance: Chines Law and Justice in the New Order,”
International Journal of the Sociology of Law.

12