Law and Social Transformation

(Legal Education and Law Schools)

Dr. Bir Pal Singh

Associate Professor
(Panchayat Admin. & Nyaya Panchayat)
National Law Institute University
Bhopal-462044 (M.P.)
E-mail: dr.birpalsingh@gmail.com
Mobile No. 9993168713
 Law and Society
The task of law as that of ‘social engineering’ has come
to be accepted as a dogma by the civilized societies all
over the world including India.

The chapters on fundamental rights and directive

principles of state policy of the Constitution of India
embody this philosophy.

Theconcern of law as an instrument of economic and

social justice has grown to such an extent that there is
hardly any human conduct which has been left
untouched by law.
 Definition
Law is a set of rules that plays an important part in
the creation and maintenance of social order.

John Austin’s definition: Law is a command issued

from a Sovereign power to an inferior and
enforced by coercion.

Sir John Salmond’s definition: Law is the body of

principles recognised and applied by the State in
the administration of justice.
 Definition….
A system of rules, a union of primary and secondary rules.
The Primary rules impose duties on people to behave in certain
ways. Secondary rules, by contrast, pertain to the primary
rules- H.L.A. Hart.

German jurist and historian Friedrich Carl Von Savigny said:

Law is a product of the general consciousness of the people.

Distinguished American legal scholar Roscoe Pound defined

law as: An organised and critically controlled body of
knowledge both of legal institutions and legal precepts and of
the legal order, that is, of the legal ordering of the society.
According to American philosopher Ronald Dworkin, Judges

create a rationally integrated and coherent network of legal

principles which is law.
Law is a cultural force. Its function is that of imposing
norms of conduct or patterns of social behavior on the
individual will. It is the aim of jurisprudence to study
these norms.

According to Max Weber, sociology-especially sociology of law-

has the task of studying and explaining human conduct from
the causal point of view; conduct is for him human behavior if
and in so far as the actors endow it with subjective meaning.

The sociology of law is the only science which might discover

objective and not purely subjective and conjectural limits for
the phenomenon of law; the limit is given by differences in
social interaction.
 In India , a society may be classified as
Traditional society
Characterized by ritual, customs, collectively, community
ownership, status quo and simple division of labour
Modern society
Characterized by ride of science, emphasis on reason and
rationality, emphasis on economic development and
complex division of labour.
Post Modern society
Concentrates on critical awareness, more concern about the
damaging effects of applied sciences on nature,
environment and humanity. It points out risks and
unintended negative consequences of the pursuit of
progress.
 The Conflict b/w Theory and Method
The reasons:
Competition, Anticipation of attack (out of diffidence or fear of
equality) and Glory seeking.

 What is the effect of law and the legal order on the social
order?
 What is the effect of the social order on the legal order?
 What is the effect of law on attitude, behaviour, institutions
and organizations in society, maintenance and change of
society?
 What is the effect of attitudes, behaviour, institutions and
organization in society, maintenance and change of society
on law?
 Problems in the Maintenance of Social Order
 Adaptation- Economy Goals- Political
 Integrity- Legal Latency- Pattern maintenance and Tension
management
Three Approaches to Social Order-
 The Utilitarian Approach- More influence on economic

theories than sociological ones.

Public good ought to be the purpose of every legislator and
general utility ought to be the foundation of every reasoning-
Bentham
 The Cultural Approach-Rule and values stabilizes people’s

relationships and contributes to the unity and solidarity of the

group or society.
 The Compulsion Approach-Emphasizes power and
domination of various types-military, judicial, spiritual,
economy.
 The Problem of Order

 The Problem of Meaning

 The Problem of Social Control

 The Problem of Unity of Social Life

 Legal theory and Social Evolution
Three different types- Historical, Analytical and
Realist(Sociological):

First- Legal Philosophy- comprising all those theories

which formulates legal ideals as the basis of a system

Second- Analytical Jurisprudence-concerned with legal

technique

Third- Sociological Theories- relation between legal

principles and their functioning in society
 Social change or transformation
Hegel- considered change as an aspect of world’s reality to resolve
the contradictions-Thesis-Antithesis-Synthesis.

Social change is held to occur when social structure-patterns of social

relations, established social norms and social roles-changes—Roger
Cotterrell

When massive or structural or far reaching social change occurs, it is

called social transformation- Yogendra Singh
Gemeinschaft and Gesellschaft-Ferdinand Tönnies 
Legal changes should follow experiences of the community, and that
societal consensus shall be the basis for change in law- Justice O. W.
Holmes
 Legal Culture- the use of legal mechanism to solve the
social problem. It refers to what people think about law,
lawyers, and the legal order.

 Law must be stable and yet it can not stand still- Pound
 Stability and change are the two sides of the same law-
coin. In their pure form they are antagonistic poles;
without stability law becomes not a chart of conduct, but
a glare of chance: with only stability the law is as the still
waters in which there is only stagnation and death– Albert
Camus
 The function of law was to promote social solidarity, and
its validity grew from its competence to prevent or
remedy social disorder- Duguit
 The most visible symbol of social solidarity is law.

Law is the organization of social life in its most stable and

precise form. All the essential varieties of social solidarity are
reflected in law.

The first type is repressive (covers penal law), which

imposes some type of 'damage' on the perpetrator.

Repressive sanctions entail the imposition of suffering or

disadvantage on the perpetrator of a crime. The purpose of
the sanction is to deprive offenders of their life, fortune,
honour, liberty or other possession. Repressive sanctions are
usually contained in the criminal or penal law.
 The second type is restitutive, which does not
necessarily imply any suffering on the part of the
perpetrator but consists of restoring the previous
relationships which have been disturbed from their
normal form.
Examples of laws with restitutive sanctions include
civil law, tort, commercial law, contract, laws that
concern personal status, for example family law,
administrative and constitutional law.

Violation of these relationships and the obligations

thereby established generally does not offend the
entire collective consciousness, it inconveniences or
harms only the plaintiff or complainant.
 Durkheim identifies two forms of criminality: religious
criminality, which is directed against collective things, for
example offences against public authority and its
representatives, mores, traditions or religion; and human
criminality, which only injures the individual, including theft,
violence and fraud.

The penal law of primitive societies consists almost exclusively

of crimes of the first type; but as evolution advances religious
forms of criminality diminish, while outrages against the
person increase. The two kinds of criminality differ because
the collective sentiments that they offend are different, thus
the types of repression cannot be the same.
 Malinowski distinguishes law from custom in the following
words:

There must be in all societies a class of rules too practical to be

backed up by religious sanctions, too burdensome to be left to
mere goodwill, too personally vital to individual to be enforced
by any abstract agency. This is the domain of legal rules, and I
venture to foretell that reciprocity, systematic, incidence,
publicity and ambition will be found to be the main factors in
the binding machinery of primitive law.
 Law as the Product of tradition and culture

According to Indian mythology man has passed through four

ages (1) Sat Yug (2) Treta Yug (3) Dwapar Yug and (4) Kali
Yug.

The Sat Yug was the best age in which man was honest,
truthful and perfectly happy. Thereafter degeneration and
deterioration began to take place.

The modern age of Kali Yug is the worst period where in man
is said to be deceitful, treacherous, false, dishonest, selfish
and consequently unhappy.

This concept is found in Hindu mythology, according to which

Sat Yug will again start after the period of Kali Yug is over.
 Law and Morality
Relationship
between law and morality is one of
the problematic areas of jurisprudence.

The cultural characteristics such as fatalism and

ethnocentrism also block social transformation.

Culture is concerned with the intellectual,

spiritual and creative aspects of collective life.

Tylor---
 Law and Morality……
Law is not a product of accidental or arbitrary
origin, but it grows with the growth, and
strengthens with the strength of the people and
finally dies away as a nation loses its identity.
-W. Friedmann

Where culture is sparse so is law; where it is

rich, law flourishes-Donald Black

Law’s concurrence with morality also makes

the people to obey the law.
 Dimensions of Law

Law means Justice, Morality, Reason, Order, and Righteous

from the view point of the society.

Law means Statutes, Acts, Rules, Regulations, Orders, and

Ordinances from point of view of legislature.

Law means Rules of court, Decrees, Judgment, Orders of

courts, and Injunctions from the point of view of Judges.

Therefore, Law is a broader term which includes Acts, Statutes,

Rules, Regulations, Orders, Ordinances, Justice, Morality,
Reason, Righteous, Rules of court, Decrees, Judgment, Orders
of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.
 Law and Society in India
The relationship between law and society in India could
be generally studies in three Phases:
1.The traditional of indigenous

2.The colonial

3.The developmental

Macaulay, president of the first Law Commission set up in

1834, produced the draft of the Indian Penal Code which
became law in 1860.
The Succession Act (1856), the Evidence Act (1872), the
Contract Act (1882), the Trust Act (1882), the Transfer of
Property Act (1882), etc.
 Law and Society…
The process of democratic decentralization had been

intensified in Rural India by establishment of Balwant Rai

Mehta Committee (1957) and Ashok Mehta Committee
(1977).

With the affirmative action approach, the rights of

marginalized sections of the society have been protected
for their mainstreaming.

The positive direction of social change has also been

taken place in the fields of science, technology and
manpower.
 Contradictions of Social Change
Developmental issues have become today the burning issues for
the some sections of the society.

Whereas the Constitution recognized the individual as the unit

for interaction in matters concerning legal rights, voting, state
administration, it also recognized the legitimacy of specific
castes and communities.

The efforts of the Indian government and the efforts of the

public organizations and enterprises working to advance the
movement of democratic law and social change must be linked.
 The Concept of Equality
Oxford English Dictionary:
1.The condition of having equal dignity, rank or
privileges with others.
2.The condition of being in power, ability,
achievement or excellence.
3.Fairness, impartiality, equity, due proportion.

The doctrine of equality is the foundation of

social justice.
The challenges of social justice is in essence
the challenge for equal opportunity and for
equal protection of laws.
 Equality as a Legal Doctrine

Rawls’ Concept of Justice-Two Principles

1. Each person is to have an equal right to the most extensive
basic liberty for others;
2. Social and economic inequalities are to be arranged so that
they are both (a) to the greatest benefit of the least
advantaged, and (b) attached to the offices and positions
opened to all under condition of fair equality of opportunity.

Kelsen-that justice should be separated from law: (a) law is

determinate but justice is indeterminate; (b) whether or not a
law is ''just'' is a consideration that is external to the legal
system; and (c) justice under law simply means that a rule of
law must be applied to all cases that come within the rule.
Article 14: the expressions ‘equality before the law’ and ‘equal
protection of law’ under the article 14 of the Constitution are
not: ‘just dull, lifeless words static and hide-bound as in some
mummified manuscript, but, living flames intended to give life
to a great nation and order its being, tongues of dynamic fire,
potent to mould the future as well as guide the present.’
(Pasayat, J).

Justice Holmes:
The life of law has not been logic; it has been
experience. The felt necessities of law, the prevalent moral and
political theories, intuitions of public policy, avowed and
unconscious, even the prejudices which Judges share with
their fellowmen have had a good dear more to do than the
syllogism in determining the rules by which the men should be
governed.
With us every official, from the Prime Minister down to a
constable or a collector of taxes, is under the same
responsibility for every act done without any legal justification as
any other citizen-- Prof. Dicey
The International Commission of Jurists (1955)
1.The state is subject to the law.

2.Governments should respect the rights of the individual under

the Rule of Law and provide effective means for their
enforcement.
3.Judges should be guided by the Rule of Law, protect and
enforce it without fear or favour and resist any encroachments
by governments or political parties on their independence as
judges.
4. Lawyers of the world should preserve the independence of
their profession, assert the rights of the individual under the
Rule of Law and insist that every accused is accorded a fair
trial."
The Constitution of India has sought to create a new
social order premised on the liberty, equality fraternity
and justice to all-Social, Economic and Political.

The Constitution through the ‘social justice’ provisions

contained in Part IV, commands the State to adopt
affirmative actions to secure substantive equality to
the oppressed and weaker sections of the people.
The Relevance of the Social Sciences for Legal Education
Some of the relevant developments have been observable in
law school curricula in the form of occasional courses such as
law and economics, law and society, legal history and policy
analysis.

There are certainly relevant variations across institutions,

national borders, and historically, in the degree to which law
students are exposed to social scientific knowledge and skills,
but a general discussion is no less useful despite such
variations.

One of the most relevant variations is the number of years of

higher education required of law students, with the US being
distinctive in its treatment of law as a graduate degree
following a four-year undergraduate education.
Richard Johnstone suggests that:
Learning about law involves seeing law as a phenomenon
located in society and history, inter-connected with other
political and cultural institutions … Legal phenomena can be
studied and analyzed from all sorts of perspectives and legal
education should be concerned with equipping students to
perform these tasks.

Charles Eisenmann, writing for the International Association of

Legal Science in 1973, argues that ‘[l]aw teaching must
necessarily be designed to convey an understanding of law in
its totality, in all its aspects. It must aim and tend to cover
every kind of problem relating to law.’
 A general knowledge-base in the social sciences can help
students to maximise the professional benefits from a legal
education and develop legal competence.
Sarat argues, for example, that:
Law schools generally try hard to undo the naïve, innocent
impulses of their entering students, in particular their impulse
to think about law in moral or political terms. Much of the
effort of law professors is devoted to differentiating law from
moral reasoning or political argument, to focusing the mind of
the would-be lawyer on the content of the positive law, and to
teaching the skills of manipulating, distinguishing, and evading
rules.
 Significance of Sociology for Lawyers: Legal
Profession and Society
•Why have law firms not emerged (except in
metropolitan centres) in India like it has done in the
USA?

•Isthe lawyer in India ‘litigational’, ‘individualistic’,

and not so professional?

•Why is the lawyer in India not like a ‘social

engineer’ as he is in England?

•Who uses the lawyers?

 PROFESSIONALISM AND ETHICS

The conference program introducing a plenary session at the

1999 meeting of the Association of American Law Schools
stated:
Concerns about professionalism have never been greater, both
within and outside the bar. Recent commentary describes a
profession ‘lost,’ ‘betrayed,’ ‘in crisis,’ or ‘in decline.’ Most
Americans register serious doubts about lawyers’ honesty,
integrity, and compassion. And most lawyers perceive
significant problems in legal practice, such as increasing
adversarial abuses; chronic inadequacies in bar regulatory
processes; persistent bias based on race, gender, and sexual
orientation; and insufficient access to legal services for low- and
middle-income citizens.
 Legal education in India is of theoretical nature. It
has no serious concern with people’s problems.
 Bi-legalism has become the norm today whether it
refers to the Constitution or to the people of
India.

 Legal practitioners in India are the second largest

body of professionals in the world.

 The law teachers live in a world of their own and

have no input of grass- roots experience in their
theoretical and philosophical discourses of law.
 The Need:

The curricula and syllabi must be based on multi-

disciplinary body of social science and scientific
knowledge......Legally education must be socially engaged.
This means that legal education programs must
compulsorily expose students to the problems of poverty,
social exclusion, social change and environmental
degradation through clinical legal education, legal aid
programs and through seminars and debates that sensitize
and expose students to issues of social justice. Working
with the poor through one or other program must become
a mandatory part of the curriculum. Faculty must include
individuals with inter-disciplinary training and direct
experience on social issues.- National Knowledge
Commission Report, 2007
 Culture of litigation
•Law education, bar council, and legal practice are
the pillars of lawyers’ professionalization.

•What law is and what law does cannot be

captured in any single scientific concept. The
project to devise a scientific concept of law was
based upon a misguided belief that law comprises
a fundamental category. To the contrary law is
thoroughly a cultural construct, lacking any
universal essential nature. Law is whatever we
attach the label law.- Tamanaha
Today income and prestige of a lawyer are two
important bases of social stratification within the bar.

The role of law and lawyers in shaping social structure again

is historically and culturally specific. There can be no doubt
that individuals mobilized law in their assault on collectivities.
Nuclear families challenged the authority of villages,
landlords, and lineages over land.

Not everything lawyers do affects the balance of advantage in

society. Much of their work is purely facilitative, neither
responding to nor anticipating conflict: transferring residential
land (in common law countries), forming corporations,
drafting wills, creating trusts, filing adoptions, performing
truly uncontested divorces.
 Lawyers provide knowledge about law so that clients
can plan future behavior, know what to expect as a
result of past conduct, and seek to change the law.

Lawyers speak for their clients, using rhetorical skills and

technical knowledge to address adversaries, negotiating
partners, judges, legislators, and administrators.

Lawyers tell clients what they can and cannot say in view
of the evidence that is likely to be available to an
adversary or a decision-maker.

There can be no doubt that individuals mobilized law in

their assault on collectivities. Nuclear families challenged
the authority of villages, landlords, and lineages over
land.
 Crisis of Legitimation of the Law

What is truly striking in India is the lack of respect for

rules of law, not just by the people but also by those
who make and enforce them. Legalism in the sense of
a moral or ethical attitude prescribing that the legal
rules ought to be followed because they are rules of
conduct is not dominant characteristic of Indian
behaviour and culture-----Upendra Baxi

Eugen Ehrlich (1936) that the centre of gravity of legal

development lies not in legislation, nor in juristic science,
nor in judicial decision but in society itself.
THANKS

Acknowledgement
Without naming, I extend thanks to all those
scholars whose data, I have taken for this
academic presentation.