Law and Social Change in a Diverse Society

-- By SoeJungKim - 19 March 2009

Introduction

The class discussion over Judith Warner’s column on people’s dreams and ideas about the Obamas took me by surprise because no one in the column or in the class mentioned President Obama’s race. Perhaps the issue of race became nonexistent after his landslide victory during the election. The historic event is already being accepted as a normal part of this society. Still, what struck me harder was the sudden realization that it took this society more than 140 years to welcome the first African-American President since the adoption of the 13th Amendment. Eventually, the class discussion reminded me of my own belief of law as a device for social change.

Desire for a powerful tool for social change

As a reporter at an English newspaper in Korea, I sometimes felt frustrated when my articles failed to create an impact on society as much as I hoped, especially in regard to human rights issues of foreign minorities in Korea. As I experienced these issues, I thought that I would have to study and understand law if I want to make actual social changes. I no longer wanted to feel guilty for merely asking questions to interviewees, because I knew I could not help them in a substantial way

Pieces of the puzzle

While learning constitutional law this semester, however, I began to doubt whether law is really a powerful tool for change. The reconstruction amendments, the Civil Rights Acts and desegregation movements were met by persistent resistance from southern states which held onto their discriminatory ways by revising common law rules of access for public accommodation, denying funds to desegregated schools and unjustly requiring minority voters to pass a literacy test to register. Even though the Constitution was amended and new federal acts were enacted, people and states systemically and persistently refused to change their ideals and practices.

I observed a similar but slightly different situation in Korean society. Korea had claimed itself a homogeneous country where students are taught to be proud of the country’s “one-blood, one nation” mentality. This alleged mentality has been shaken for the past decade as the number of marriages between Koreans and non-Koreans has skyrocketed, especially in rural regions where young Korean women turned their backs away from Korean men. Naturally, the human rights issue of foreign spouses and their biracial children had been raised by civic groups. Widely discussed bills to abolish discrimination against biracial people, however, had been halted after the media frenzy over the issue settled down. Even if the bill had been submitted and approved, it would not have made a dramatic difference in their lives right away, as we witnessed in the history of racial struggles in American Society.

Despite the limitations, it would be unwise to ignore the impact of law in the lives of real people. Recently the Afghanistan parliament passed a law which prevented Shia Muslim women from declining their husband's request for sexual intercourse and essentially legalized marital rape. The bill was met by fierce protest by members of Afghanistan’s parliament, human rights activists, Western leaders including President Obama, and over 1,000 protestors who took to the street. This resulted in the Afghanistan President’s promising to change the law. Certainly, law is a powerful tool in regulating people’s liberties and rights. In order to protect the rights, however, we should be more creative in using our expertise in law as future lawyers.

The role of Lawyers

We first need to understand the mechanism of how the law is enacted and how it is exercised by the court and the government. Multiple private interest groups and political actors engage in the process of legislation by Congress and the adjudication by the courts to protect their vested interests. The political beliefs of the Supreme Court judges played a significant role in criminalizing sodomy and later overruling the decision. Journalists, lobbyists, and social activists all strive to bring about change or maintain the status quo by using words, actions, and money. Understanding the intricate mechanism of the legal system would be the first step to come up with a comprehensive strategy for bringing about social changes.

In addition, we need to adopt creative and flexible approaches in interpreting and practicing laws. The landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954) was not simply achieved by the 14th Amendment alone. Although NAACP’s use of social science data as evidence to show the evils of “separate but equal” education might not have been a critical reason for the victory, it certainly widened the boundary for evidences accepted by the court in order to validate violations of equal protection. In addition, it opened opportunities for lawyers in collaborating with other academics and activists. By comparing and contrasting diverse approaches to represent people in need or under discrimination, we will be able to find a powerful combination of diverse mediums of social action to produce long-term social impact.

Conclusion

Growing up in a country with the history of rapid industrialization under an authoritarian government, I tended to think that law was governmental control. I thought that when the government needs to make a change, it will enact or revise a law and the problem will be fixed. However, through the aforementioned experiences, I came to realize the need to accept a broader understanding of lawyering. In particular, as we discussed in Wiki about “making social changes with words,” lawyers and journalists share the common goal of contributing to changes with words. The difference between a lawyer and a journalist is that the former has the knowledge and license to interpret and apply the intricacies of law, which is an indispensable instrument for efficient social change.

Law and Social Change in a Diverse Society

-- By SoeJungKim - 27 Feb 2009

Introduction

The class discussion over Judith Warner’s column on people’s dreams and ideas about the Obamas took me by surprise because no one in the column or in the class mentioned President Obama’s race. Perhaps the issue of race became nonexistent after his landslide victory during the election. The historic event is already being accepted as a normal part of this society. Still, what struck me harder was the sudden realization that it took this society more than 140 years to welcome the first African-American President since the adoption of the 13th Amendment. Eventually, the class discussion reminded me of my own belief of law as a device for social change. I came to think that perhaps law is not as powerful as I had thought for bringing social change.

Law Makes Social Change

As a reporter at an English newspaper in Korea, I sometimes felt frustrated when my articles failed to create an impact on society. Because the newspaper was in English rather than the Korean language, the readership was much smaller than the staple Korean papers. For example, I once wrote an article about the complaints of expatriates who had trouble withdrawing money from Korean banks when they visited their country of origin or travel to other countries because they were not allowed to apply for an international debit card. In a bid to prevent tax evasion, the Korean government limits the amount of money that can be withdrawn by foreign residents when they go abroad. Korean banks, in turn, decided not to issue the cards, citing difficulty in controlling the amount of withdrawal. The article received rather unusual attention from banks and the Finance Ministry and even one bank had a meeting with the ministry officials to resolve the issue. Although the meeting resulted in no practical changes, that was by far the biggest impact that I could create with my articles. As I constantly faced such frustrations, I began to think that I would have to study and understand law if I want to make actual social changes. I no longer wanted to feel guilty for merely asking questions to interviewees, because I knew I could not help them in a real way.

Does Law Really Bring about Change?

While learning constitutional law this semester, however, I began to doubt whether law really brings about change. For example, the reconstruction amendments, the Civil Rights Acts and desegregation movements were met by persistent resistance from southern states which held onto their discriminatory ways by revising common law rules of access for public accommodation, denying funds to desegregated schools and unjustly requiring minority voters to pass a literacy test to register. As shown in this example, even though the Constitution was amended and new federal acts were enacted, people and states systemically and persistently refused to change their ideals and practices.

I observed a similar but slightly different situation in Korean society. Korea had claimed itself a homogeneous country where students are taught to be proud of the country’s “one-blood, one nation” identity. The alleged identity has been shaken for the past decade as the number of marriages between Koreans and non-Koreans has skyrocketed, especially in rural regions where young Korean women turned their backs away from Korean men. Naturally, the human rights issue of foreign spouses and their biracial children had been raised by civic groups. Interestingly, the law to abolish discrimination against biracial people was most widely discussed when Hines Ward, half-ethnic Korean and half African-American football star, visited the country in 2006 after winning Super Bowl. When the media frenzy over the American hero settled down, however, legislators who passionately promised to submit a bill to terminate discrimination against biracial people all seemed to suddenly have amnesia. The media eventually migrated over to a new fad, and legislators who no longer received media attention eventually lost their interest in the issue.

Even if the bills had been submitted and approved, I doubt that they could have made real difference. Can the law make people stop staring or pointing at those who look different? Can the law stop a stranger from asking a Korean wife of a Bangladesh man why she married a foreigner? Can the law stop children from harassing their classmates who cannot speak Korean because their mothers are foreigners? Upon asking these questions to myself, I came to the realization that law may not be an effective means for dissolving discrimination.

Law and social change is probably one of the most thoroughly discussed issues in the legal studies. I am not denying the impact of certain administrative regulations. In the previous case of Korea’s foreign currency regulations, foreigners would feel more comfortable if the regulations were loosened or banks came up with ways to comply with the rules while providing the service to the foreign customers.

What about a Lawyer?

One of the reasons I made a career change from a journalist to a lawyer was because I wanted to be more influential. I thought law has the power to change the society and make “real” differences in people’s lives. Ironically, the more I learn the law, the more I realize the naïvete of my beliefs. After all, laws are made by people. Even the legislators and framers of the Constitution are only human. Laws reflect their fears, desires and vested interests. I do recognize the possibilities to use the existing laws to protect the rights of people who are discriminated. However, I believe the victory of Thurgood Marshall and NAACP in Brown v. Board of Education was not given by the 14th Amendment itself but by a growing social consensus.

Conclusion

While laws reflect and perhaps even promote social changes, the changes are initiated by people who succeed in creating a social consensus or compromise. Without social consensus and acknowledgment of the change, the laws would not be able to create changes by themselves and abolish discrimination in a diverse society.

• It would be too simplistic a model to say that law either does or does not efficiently contribute to change. Governmental social control, to borrow Donald Black's definition, is not the strongest form of social control, most of the time. It is also not necessarily the form of control most calculated to persuade or acculturate new practices. Both law is rarely the only instrument in use, and there are rarely a combination of instruments excluding law altogether that would be more effectively than a strategy with well-chosen legal components. So the proper inquiry is not about alternatives but about combinations, and strategy is not a practice for unifactorial thinking.