SOCIAL TRANSFORMATION: INTERPLAY BETWEEN LAW AND

SOCIAL CHANGE (With Special Reference to India)

INTRODUCTION

The history of mankind reveals that human wisdom has devised different methods and
means to meet the structural changes in the social system which take place with the
advancement of knowledge, culture and civilization. Law has always been considered as
one of the important instruments of affecting social change. In the modern era, there has
been widespread concern of law as a tool for bringing about homogeneity in the
heterogeneous population having socio-cultural diversities. Though there are several
devices to bring about a change and reformation in society, but reformation through law
is perhaps one of the most effective and safest methods to achieve this end.

At this point of time, it becomes essential to understand what is meant by social change.
It has been defined as any non-repetitive alteration in the established modes of behaviour
in society1. Social change is held to occur only when social structure – patterns of social
relations, established social norms and social roles – changes2. Thus, a change in the
established pattern of social relations between racial or ethnic groups in a society would
constitute social change, but a general increase or decrease in the amount of economic
wealth in a society would not.

In our quest to discover the effect of law on social change, we generally tend to ignore
the reverse, i.e., the effect of social change on law. That legal change reflects wider social
change often seems too obvious to require discussion. For example, technological change
is one important direct cause of legal change: the development of the internal combustion
engine, the motor car and later of air transport produced vast areas of new or reshaped
legal doctrine to regulate these new features of life with their attendant possibilities, risks
and dangers. In addition, law can adapt to change in ways that may not be readily
apparent on the face of legal doctrine. Legal concepts can remain in the same form while

1
Friedman, Lawrence M. and Jack Ladinsky, Social Change and the Law of Industrial Accidents,
Columbia Law Review, 1967, p:50
2
Cotterrell, Roger, The Sociology of Law, Oxford University Press, 2007, p:47

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fundamentally changing their social functions. Law can adapt to changed social
circumstances without necessarily changing its form or structure3.

In this paper, the researcher has tried to study the interplay between law and social
change – the role of law as an instrument of social change, and the impact of social
developments on the development of legal principles.

3
Renner, Karl, The Institutions of Private Law, Taylor & Francis Inc., 1949, p:84

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NATURAL LAW SCHOOL

The greatest attribute of natural law theory is its adaptability to meet new challenges of
the transient society4. It has played the role of harmonizing, synthesizing, and promoting
peace and justice in different periods and protected public against injustice, tyranny and
misrule. In the ancient societies, natural law was believed to have a divine origin. During
the medieval period it had a religious and super-natural basis but in modern times it has a
strong political and legal mooring. This school gave immense importance to morality and
ethics.

To study the relationship between law and social change as per the natural law school, we
will be going through the views of some jurists from this school, in this regard.

Plato
In his famous work Republic, he emphasized the need for perfect division of labour and
held, “each man ought to do his work in the station of life to which he is called upon by
his capacities”5. In other words, every person should mind his own work and not
unnecessarily meddle with other’s work6. He was deeply convinced of the natural
inequality of men, which he considered a justification for the establishment of a class
system in his commonwealth.

Aristotle
In the distributive aspect of its meaning, justice demands that the things of this world
shall be equitably allotted to the members of a community according to the principle of
proportionate equality. Equal things shall be given to equal persons, unequal things to

4
Dias, RWM, Jurisprudence, Butterworths Tolley, 1985, p:65. For further details see Paranjape, N.V.,
Studies in Jurisprudence Legal Theory, Central Law Agency, 2006, p:92.
5
Bodenheimer, Edgar, Jurisprudence – The Philosophy and the Method of the Law, Universal Law Pub.
Co. Pvt. Ltd., 2004, p:7
6
Paranjape, N.V., Studies in Jurisprudence Legal Theory, Central Law Agency, 2006, p:93

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unequal persons. The standard which he proposed for the measurement of equality was
that of merit and civic excellence7.

St. Thomas Aquinas

According to him, law in an all-embracing signification is “nothing else than an
ordinance of reason for the common good, made by him who has the care of the
community, and promulgated”8. He believed, “the primary percept of the law is that good
should be done and pursued and evil avoided; and on this are founded all the other
percepts of the law of nature”9.

Thomas Hobbes
According to him, prior to the days of his theory of ‘social contract’, man lived in chaotic
condition of constant fear. The life in the state of nature was “solitary, poor, nasty,
brutish and short”. Therefore, in order to secure self-protection and avoid misery and
pain, men voluntarily entered into contract and surrendered their freedom to some
mightiest authority who could protect their lives and property. This led to the emergence
of the institution of the ‘ruler’ which later assumed the form of the State10.

John Locke
According to him, the purpose of the State and law was to uphold and ‘protect the natural
rights’ of men. So long as the State fulfills this purpose, its laws were valid and binding
but when it ceases to do so, the people have a right to revolt against the government and
overthrow it11.

7
Supra, n.5, p:197
8
Aquinas, Summa Theologica I, 2, Q 90, art 4. For further details see Dias, R.W.M., Jurisprudence, Aditya
Publications.
9
Supra, n.8, Q 94, art 2
10
Supra, n.6, p:97
11
Supra, n.6, p:98

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POSITIVE LAW SCHOOL

The positivity of law implies the freedom of rational determination through the
application and outcome of analyses. Society thus becomes the object of its own legal
mechanism; it is reflected in one of its part systems as a whole 12. Today it is generally
recognised that law is co-determined by societal development and is capable of being co-
determinative at the same time. The advocates of this school are neither concerned with
the past of the law nor with the future of it, but they confine themselves to the study of
law as it actually exists i.e. positus13.

The relationship between law and social change can also be understood by going through
the views of various jurists belonging to this school.

Jeremy Bentham
Going by his Utilitarian principles, he wished to test every law to see if it led to the
greatest happiness of the greatest number. As per him, the good or evil of an action
should be measured by the quality of pain and pleasure resulting from it. He believed that
law should essentially lead and not follow the change. He also believed that the task of
government was to promote happiness of society by furthering enjoyment of pleasure and
affording security against pain14. He rejected natural rights and recognised no limitations
on Parliamentary sovereignty. It was his philosophy, and that of his disciples, which
turned the British Parliament – and similar institutions in other countries – into active
legislative instruments, effecting social reforms, partly in response to, and partly in
stimulation of, felt social needs15.

John Austin

12
Friedman, W., Law in a Changing Society, Universal Book Traders, 1996, p:228
13
Supra, n.6, p:15
14
Supra, n.6, p:17
15
Supra, n.12, p:1

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By positive law, he meant ‘laws properly so called’ as distinguished from morals and
other laws, which he described as ‘laws improperly so called’ which lack force or
sanction of the State. He defined law as “a rule laid for the guidance of an intelligent
being by an intelligent being having power over him”. He believed, “the subject-matter of
jurisprudence is positive law – law simply and strictly so called; or law set by political
superior to political inferiors”16. The chief characteristics of positive law are command,
duty and sanctions17, that is, every law is a command, imposing a duty, enforced by
sanction. Thus, this clearly shows that he gave superior status to law as it is, and society
was never given due importance by him.

Holland
He also believed that rules set by sovereign political authority are alone properly called
laws. He divides law into – (a) law of persons; and (b) law of things. According to him,
there are some rights, in which the status of persons concerned has to be specially taken
into consideration while in others this is not the case18. He believed that a State is a
numerous assemblage of human beings, generally occupying a certain territory, amongst
whom the will of the majority, or of an ascertainable class of persons, is by the strength
of such a majority, or class, made to prevail against any of their number who oppose it 19.

16
Supra, n.6, p:20
17
Austin, John, The Province of Jurisprudence Determined, Cambridge University Press, 1995, p:9
18
Tandon, M.P. and Rajesh Tandon, Jurisprudence (Legal Theory), Allahabad Law Agency, 1992, p:37
19
Supra, n.18, p:126

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HISTORICAL SCHOOL

This school does not attach importance to relation of law to the State but gives primacy to
the social institutions in which the law develops itself. The exponents of this school
believed that law has biological growth and it has not evolved in an arbitrary and erratic
manner. They considered law in direct relationship to the life of the community. They
viewed law as a legacy of the past and product of customs, traditions and beliefs
prevalent in different communities20. They were of the view that legislation can succeed
only if it is in harmony with the internal convictions of the race to which it is addressed.
If it goes farther, it is doomed to failure 21.

In order to understand the relationship between law and social change, let us go through
the ideas of the various jurists belonging to this school.

Savigny
According to him, law is a product of the general consciousness of the people and a
manifestation of their popular spirit, termed as Volkgeist. He believed that a people’s law
cannot be made by a drafting committee, but must grow from a people’s experience and
character, expressing among them a “common feeling of inner necessity”. As per him,
“Law perfects its language, takes a scientific direction, and as formerly it existed in the
consciousness of the community, it now devolves upon the jurists, who thus in this
department, represent the community”22. As per him, law grows with the growth of the
society, and gains its strength from the society itself and finally it withers away as the
nation loses its nationality. Law should essentially follow and not lead the change. Law,
language, customs and government have no separate existence from the people who
follow them. Common conviction of the people makes all these as a single whole23.

20
Supra, n.6, p:31
21
Escarra, Jean, Archives de phil, du droit, 1935, p:70. For further details see Paton, G.W.,A Textbook of
Jurisprudence, Oxford University Press.
22
Stone, Julius, Social Dimensions of Law and Justice, Maitland Publications Pty. Ltd., 1977, Pp:94-95
23
Supra, n.6, p:33

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Puchta
In his view, neither the State nor the people alone are a source of law but law comes into
existence as a result of conflict between general and individual will. He contended that by
nature, men always like to live in perfect unity, both spiritual as well as physical.
Unanimity among the members of society on certain basic issues constitutes their general
will. But self-interest of man results into a conflict between his individual will and the
general will and law came into existence for resolving these conflicts. The State, through
the instrumentality of law, restrains the individual from exceeding the limits of his free
will. Thus it is the State which regulates human conduct to implement general will,
sacrificing individual interests24.

Maine
According to him, pater-familiar constituted the lowest unit of primitive communities. A
few families taken together formed the Family-Group which consisted of union of
families. An aggregation of families constituted Gens which in turn led to the formation
of tribes. A collection of tribes formed the community, which he termed as
commonwealth. It was in this manner that early primitive societies evolved, their
relationship being regulated by the law of status which was also called as law of persons.
With the march of time, the institution of pater-families withered away and now rights
and obligations were dependent on individual contacts and free negotiations between
individuals. It was during this time he drew his famous inference that, “the movement of
progressive societies has hitherto been a movement from Status to contract”25.

Vinogradoff
His plan for ideological treatment of legal development straddles the theories, on one
hand, that the law is mainly a product of social conditions, and, on the other, that law is
the unfolding of ideas in history which it is our task to identify and trace26.

24
Supra, n.6, p:36
25
Supra, n.6, Pp:37-38
26
Supra, n.22, p:143

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SOCIOLOGICAL SCHOOL

The period of renaissance resulted into political upheavals giving rise to despotic rule,
like Nazism and Fascism. As a result of this, there was need to review the legal theory for
maintaining a balance between the State, welfare of the society and the individual
interests. Finally, it was realized that socialization of law and legal institutions would
perhaps best sub-serve the common good and interests of the society, resulting in the
evolution of this school. This school considered law as a social phenomenon. They are
chiefly concerned with the relationship of law to other contemporary social institutions.
According to this school, the essential characteristic of law should be to represent
common interaction of men in social groups, whether past or present, ancient or modern.
The main concern of sociological jurists is to study the effect of law and society on each
other. They treat law as an instrument of social progress. They also lay greater stress on
functional aspect of law, rather than its abstract contents27.

The views of the exponents of this important school would help us a great deal in
understanding the interplay between law and social change.

Auguste Compte
According to him, society, like any other organism can progress when it is guided by
scientific principles. These principles should be formulated by observation and
experience of facts and all other metaphysical considerations should be excluded from its
purview. He further pointed out that man cannot live in isolation as he is essentially a
social being and all his impulses originate from his social life which are to be regulated
and controlled by law and the government. Therefore, it is the ‘society’ and not the
‘individual’ which should be the focal point of law 28.

Ihring

27
Supra, n.6, Pp:54-57
28
Supra, n.6, p:57

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He was a strong critic of the notion of individual freedom and liberty. He opined that
social interests of the society must gain priority over individual interest and the purpose
of law should be to protect the interest of the society. He considered law as a means to an
end. It is the duty of the State to promote social interest by avoiding a clash between the
individual and social interest. He even justifies coercion by the State for the purpose of
protection of the social interest. For him, “law is a coercion organized in a set form by the
State”.29

Ehrlich
According to him, law depends on popular acceptance and that each group creates its
own living law which alone has creative force. All that the judge does is to make precise
and definite the raw material thus furnished by the community30. He believed that law
need not be necessarily created by the State or applied by the courts or have a coercive
legal compulsion behind it, but it is created by life of groups living within the society31.
Law governs matters that ‘at least in the opinion of the group in which it has its origin’
are ‘of great importance, of basic significance’32.

Duguit
According to him, every individual has his existence owing to his membership of the
society. Each individual cannot procure the necessities of life by himself. Therefore, each
in his turn has to depend on other for his needs. The ultimate end of all human activities
is to ensure the interdependence of men or social solidarity. State exists for performing
the functions which promote social solidarity and not for the exercise of sovereignty. He
believed that law is an embodiment of duties which an individual is supposed to perform
as a part of the social organization for furtherance of social solidarity33.

Roscoe Pound

29
Supra, n.6, p:58
30
Paton, G.W., A Textbook of Jurisprudence, Oxford University Press, p:29
31
Supra, n.6, p:59
32
Supra, n.2, p:38
33
Supra, n.6, p:61

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According to his theory of ‘social engineering’, the end of law is to satisfy a maximum of
wants with a minimum of friction or confrontation. He stated that the function of law is to
reconcile the confronting interests of individuals in the community and harmonise their
inter-relations34. Law secures social cohesion and orderly social change by balancing
conflicting interests – individual (the private interests of individual citizens), social
(arising from the common conditions of social life) and public (specifically the interests
of the State)35. In order to evaluate the conflicting interests in due order of priority, he
suggested that every society has certain basic assumptions (which he terms as Jural
Postulates) upon which its ordering rests, though for most of the time they may be
implicit rather than expressly formulated.

34
Supra, n.6, p:64
35
Supra, n.2, p:74

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REALIST SCHOOL

The realists contend that law has emanated from Judges, therefore law is what courts do
and not what they say. For them, Judges are the law-makers. They also believe that
judicial decisions are not based on abstract formal law but the human aspect of the Judge
and the lawyer also has an impact on court’s decisions. The exponents of this school laid
greater stress on psychological approach to the proper understanding of law as it is
concerned with human behaviour and convictions of the lawyers and Judges. They
believe that there can be no certainty about law as its predictability depends upon the set
of facts which are before the court for decision. They preferred to evaluate any part of
law in terms of its effects36.

Now let us briefly go through the ideas of some jurists belonging to this school, to
continue with our study on the relation between law and social change.

Holmes
He said that if one wishes to know what law is, one should look it through the eyes of a
bad man, who is concerned with what will happen to him if he does certain things37. He
recognized that much of the law, perhaps the bulk of it, did not rest on any attempt to
regulate human behaviour by rewards and penalties, but was aimed at results independent
of the state of mind of the persons affected38. He remarked, “the prophecies of what the
courts will do in fact and nothing more portentous are what I mean by law” 39.

Cardozo
According to him, “law never is, but is always about to be. It is realized only when
embodied in a judgment, and in being realized, expires”40. He was also of the view that

36
Supra, n.6, Pp:73-74
37
Holmes, Oliver Wendell, The Path of the Law, p:173. For further details see Dias, R.W.M.,
Jurisprudence, Aditya Publications, p:449
38
Herget, J.E., American Jurisprudence 1870-1970 A History, Rice University Press, 1990, p:43
39
Subbarao, G.C.V., Jurisprudence and Legal Theory, Eastern Book Company, 1991, p:72
40
Cardozo, Benjamin N., The Nature of the Judicial Process, Dover Publications, 2005, p:126

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the rule of precedent should however, be abandoned if it is inconsistent with the notion of
justice or derogatory to social welfare policy41.

Frank
He made ‘fact-finding’ by the Court as the central theme of his realism in which the
personality of the Judge and his past experience play a dominant role in moulding the law
and giving it a concrete shape. He exploded the myth that law is continuous, uniform,
certain and invariable, and asserted that the Judges do not make law but instead, they
discover it. According to him, the individual decision of the Judge is law par excellence.
He reiterated that law consists of decisions and the personal convictions, likes and
dislikes, emotions.

Arnold
He treated politics, economics, law and other disciplines relating to social sciences as
indispensable social institutions based on common values such as habits, attitudes,
traditions, creed etc. He stated that the rule of law is best preserved by coordinating the
various conflicting ideologies42. According to him, it is through the art of law – its
mystificatory brilliance – that abstract ideals are manipulated to disguise the impossibility
of realising them in practice. Law holds up its mutually contradictory ideals like a beacon
around which otherwise divided elements in society rally. And herein lies the greatness of
law. It preserves the appearance of unity while tolerating and enforcing ideals which run
in all sorts of opposing directions43.

41
Supra, n.40, Pp:149-151
42
Supra, n.6, p:75
43
Supra, n.2. p:103

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THE INDIAN PERSPECTIVE

In this part, we shall be going through the effects of British rule, provisions of the Indian
Constitution and also some decisions of the Indian Judiciary, thus, studying the relation
between law and social change with respect to the Indian scenario.

Effects of British Rule

In India, as the legal and administrative system imposed by the British began to
exercise an influence on social affairs and took over the working of crucial aspects of
the political economy, legal scholarship was self-protectively encapsulated in a ‘black
letter law’ tradition. This tradition seeks to interpret law as a distinct, relatively
autonomous reality. Within this tradition, ‘law’ is separated from morality.

Although many lawyers and judges were prominent in the national movement, this
tradition in India survived virtually unscathed during the troublesome years that led to
India’s independence. The advent of Gandhi did not alter the centrality of this
tradition. While the law and administration were criticized, the central thrust of the
movement was to achieve legal and constitutional change. Ultimately, the aims and
objectives of the national movement were narrow legal ones.

After independence, a new comparative literature was developed which mechanically

cross-referenced English, American, and Australian citations for analogous provisions
in the Indian Constitution. While Indian law was caught in its ‘craze for foreign
things’, it was also being manipulated by the more advantaged sections. Dressed in
Western garments, Indian public and private law served emerging interests with an
untidy integrity.

Mature versions of the ‘black letter law’ tradition were kept alive by contacts with
English jurisprudence and English legal education. The impetus for renewed Indian
scholarship in law came from exchange programmes with the United States.
Mainstream scholarship in Indian law continues to espouse the narrow tradition. The

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 approach that constitutional interpretation should limit itself to the consideration of
doctrines, has received support from judges, lawyers, academics, and, above all, the
Law Commission. But given the social rhetoric of the Constitution, government
planning and the increasing differential between the rich and the poor, there is a
considerable amount of pressure to break out of the tradition to ask a new range of
questions about the task and purposes of Indian law.44

The Constitution of India

The provisions in Part III of the Constitution are declared as fundamental rights of
citizens against which the State has no power to legislate in a manner not permissible in
the Constitution itself. This charter of rights forms part of what is called the “Basic
Structure” of our Constitutional scheme in so far as it is considered essential for
individual happiness and personality development according to his own chosen path.

The Constitution makers were not oblivious of the then prevailing iniquitous social
structure and the need to consciously change it towards an egalitarian model. They did
not rest content by outlining the ends. The means were also conceived which included the
containment of State power division at different levels, assignment of a certain measure
of autonomy to the will of individual citizens free from State interference and enactment
of number of guidelines to be followed by the State in the governance of the country.
These guidelines which form the strategies for social justice are to be found in Part IV
under the rubric of Directive Principles of State Policy.

Articles 38 and 39 (b) and (c) on the one hand, and, Articles 14 to 17, on the other, are
the provisions directed against the various serious manifestations of poverty. Various
directive principle enshrined in Part IV of the Constitution commanded the state to adopt
affirmative action programmes through legislation or executive action directed towards
the elimination of existing socio-economic inequalities. The Constitution has itself

44
Galanter, Marc, int Dhawan, Rajeev, Law and Society in Modern India, Oxford University Press, 1989,
Pp:xvii-xxi

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abolished “untouchability” (Article 17) in all forms and prohibited “forced labour”
(Article 23) and similar forms of exploitation.
The Indian Constitution makers attempted to strike a balance between the claims of the
individual freedom and social justice by incorporating the former in Part III, and the latter
in Part IV. It has been aptly observed that these two parts of the Constitution, together,
commits the country to the goal of “social revolution” and that they, together, form the
“Conscience of the Constitution”. 45

Judicial Decisions in India

In the modern welfare era, the legal systems intend to operate as purposeful enterprises of
achieving social justice. The conception of social justice provides for an efficient social
arrangement through which good things of the society, amenities and responsibilities are
justly distributed among the members of the society. It ensures a social scheme of equal
access to economic opportunities and social conditions in various sectors of the society.
In its essence, social justice means the quality of being fair and just in social relations of
human beings46.

In the light of social transformation, we will now go through a few important decisions of
the Indian Courts in relation to some important issues.

 Protective Discrimination
In State of Madras v. Champakam Dorairajan, striking down the Governmental order
providing for community wise reservation of seats in educational institutions, the
Supreme Court regarded that apart from Article 16(4), there is no provision
authorizing reservation or any kind of preferential treatment.
The decision necessitated incorporation of Article 15(4) which authorizes the State to
make special provisions for the advancement of socially and educationally backward
classes of people.

45
Madhava Menon, N.R. et al, eds, Social Justice and Social Process in India, Indian Academy of Social
Sciences, 1988, Pp:11,36-37,106-107
46
Supra, n.44, p:138

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The Supreme Court in MR Balaji v. State of Mysore and subsequent cases rightly
considered that special provisions under Article 15(4) includes reservation as well,
and fixed the maximum percentage of reserved seats per year at 50%.

 Right to Life and Liberty

In Maneka Gandhi v. Union of India, it was said that all attributes that make up
personality of individual constitute personal liberty, whose deprival can be made only
by a procedure just, fair and reasonable.
Right to legal aid (Khatri v. State of Bihar), right to speedy trial (Hussainara v. State
of Bihar), right to fair prison conditions (Sunil Batra v. Delhi Administration), rights
of women (Upendra Baxi v. State of UP) and children (Sheela Barse v. State of
Maharashtra) in custodial detention, right to procedural safeguards in the trans-nation
adoption of children (Lakshmikant Pandey v. Union of India), right to better hospital
facilities for mentally handicapped (Veena Sethi v. State of Bihar) are some of the
newly explored rights under Article 21 which assuaged the injustices suffered by the
socially handicapped classes.

 Public Interest Litigation

Until very recently, it was an avowed practice of the courts, to redress grievances
only if the affected parties themselves seek redressal through appropriate proceedings
(JM Desai v. Roshan Kumar). But with the evolution of the concept of Public Interest
Litigation in the case of Mumbai Kaamgaar Sabha v. Abdul Bhai, the situation
changed, and subsequently, the approach was whenever there is a public wrong or
public injury caused by an act or omission of the State or a public authority which is
contrary to the Constitution or the law, any member of the public acting bonafide and
having sufficient interest can maintain an action for redressal of such public wrong or
public injury.
Now there was involvement of social activists, journalists, associations of public
spirited men in championing the cause of low visible areas of the society.
Unreasonable handcuffing (Sunil Batra v. Delhi Administration), immoral trafficking
of women in protective houses and prisons (Upendra Baxi v. State of UP) , supply of

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 women and juvenile criminals for immoral purposes, detention even after final
acquittal because of communication gap or negligence of the administration (Rudal
Shah v. State of Bihar), have been considered as deserving circumstances for quick
and effective remedy free from cumbersome procedures.47

47
Supra, n.44, Pp:138-161

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CONCLUSION

Our quest to understand the interplay between law and social change has been an exhaustive
journey, with halts at significant junctures. These junctures have been the various schools of
law and also the Indian scenario. At these halts, we have come across a wide range of ideas
with respect to the interplay.

In the Natural Law School, we went through the ideas of Plato, Aristotle, Aquinas, Hobbes
and Locke. All of them were more or less of the view that law has a divine origin. They
advocated for the formation of associations in order to promote welfare of the society. They
also discouraged any interference with the law of the nature.

In the Positive Law School, we went through the ideas of Bentham, Austin and Holland. All
of them more or less believed in the supremacy of the sovereign or politically superior for the
purpose of promoting happiness in the society. This school also distinguished between law
and morals.

In the Historical School, we went through the ideas of Savigny, Puchta, Maine and
Vinogradoff. They considered law in direct relationship to the life of the community. They
believed in the gradual evolution of law, much like language, and a result of the general
consciousness of the people.

In the Sociological School, we went through the ideas of Compte, Ihring, Ehrlich, Duguit and
Pound. They believed in maintaining a balance between State, social welfare and individual
interests. They always held society’s interests superior to those of the individual and laid
down the State’s function as promoting social welfare.

In the Realist School, we went through the ideas of Holmes, Cardozo, Frank and Arnold.
They looked at the Courts as the discoverer and protector of law. They believed in the
intellect and experience of Judges for finding, declaring, interpreting and preserving the law.

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Then we arrived at the Indian perspective. Here, we first looked at the effects of the British
rule on the Indian legal system, by studying the ‘black letter law’ tradition.

Then we looked into the provisions of the Indian Constitution. Here we saw that Part III of
the Constitution, containing fundamental rights, and Part IV, containing the directive
principles of state policy, consist of the provisions that promote individual freedom and
social justice.

We also went through some significant decisions of the Indian Courts relating to socially
relevant issues, such as, reservation, life and liberty, and public wrong or public injury. We
saw that how the view of the Indian judiciary has been changing, in order to promote social
welfare and justice.

Coming to the end of the journey, we have seen that both law and society have tremendous
impact on each other. Sometimes it is the law that affects the society, while on other
occasions, it is vice-versa. But ultimately, it is the interplay between law and social change,
that is resulting in bringing about social transformation.

It is a fact that the tendency of the society is to look for stability and certainty, as the society
is conversant with the existing practices. They would be sure that the law of yesterday would
still be the law of tomorrow. But stability and certainty alone, however, are not sufficient to
provide us with an effective, vital system of law. Progress also has a justified claim upon the
law. In the contemporary scenario, law needs to play a proactive role in bringing about social
change.
Thus, on the basis of this study, I come to the conclusion that the hypothesis taken by me is
not satisfied.

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Electronic copy available at: https://ssrn.com/abstract=1501262