Smoke and Mirrors: Law as a Medium for Social Change

-- By YoungKim - 17 Apr 2009

As a reporter at an English newspaper in Korea, I often felt frustrated when my articles failed to create the social impact I had intended for them. For example, I once wrote an article about the complaints of expatriates who had trouble withdrawing money from Korean banks abroad 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 In a bid to prevent tax evasion, the Korean government limits the amount of money that can be withdrawn by foreign residents on trips to other countries. Korean banks, in turn, have decided not to issue such cards, citing difficulty in maintaining compliance with withdrawal limits for foreigners. The article received a considerable amount of attention from banks, and even one bank held a meeting with ministry officials to resolve the issue.

My hopes of creating positive social change, however, were quickly dashed when it became apparent that no policy decisions would arise from the meeting. Thus began my conviction to study law, which at the time seemed the ideal medium for creating the kind of social progress I wanted, given its broad reach and supposed effectiveness at shaping norms and behavior. What I’ve encountered in my short time here at law school, however, has far from met my expectations.

Law is Not an Effective Means for Social Change

Contrary to popular belief, law by itself is not an effective means for controlling behavior or fostering the creation of new social attitudes and norms. In Korea, for example, proposed legislation to combat discrimination against children of mixed-race ancestry often goes unrealized in a social climate where ethnic homogeneity is extolled as a virtue. Even if such legislation were to pass, the likelihood of seeing any concrete reduction in discrimination towards foreign spouses and biracial children is low (on the contrary, resistance to the law would likely engender more ethnic violence).

Part of the problem lies in the inherit limits of the law’s reach, which prevent it from changing social attitudes even under a broad consensus that such views are morally reprehensible. For example, legislation targeted at preventing spousal abuse operates in a narrow framework that criminalizes only the most deplorable manifestations of violence (e.g., striking one’s wife), but leaves no remedy for the actor’s underlying view that physical intimidation is necessary to exert control over his spouse. In effect, the law may constrict the outer-most limits of behavior yet still permit the reinforcement of attitudes through activity that remains out of its reach. Legislation and court decrees addressing hate crimes against homosexuals, for example, are not likely to alter antagonistic views towards gays so long as it is legally permissible to ridicule, insult and exclude them.

Most problematic, however, in the use of the law as a medium for acculturating new ideas and norms of behavior is its inherent nature as a method of enforcement, not of persuasion. In this respect, a given law does not convince us why it exists but merely tells us what we can or cannot do – compliance is not achieved through reasoned acculturation but through the blunt instrument of punishment and penalty. Under this framework, the law becomes not a system for disseminating norms or effecting social change but a disjointed collection of rules people are coerced into following by threat of violence. Even where the law takes a normative stance on an issue, it is rarely a driver of social change and more often a codification of majoritarian ideas as to how society should be organized – not surprisingly, those who disagree can easily use alternative means to express contrary views. The dismantling of the Civil Rights Act in the deep South is a prime example, as state legislatures enacted a number of Jim Crow laws to bypass policies designed to engender greater equality across races.

The Problem with Seeing the Law as a Tool for Social Advancement

The view that the law is a vessel for engendering positive social change does not come with its share of consequences. First, individuals and organizations are likely to spend inordinate amounts of time and resources trying to effectuate changes in policy under the misguided view that new laws (or modifying/repealing disagreeable ones) will advance social progress and radically change society’s organization. Take the movement for gay marriage, for example. Laws granting gays the right to marry are not likely to lead to the normalization of gay marriage but merely block dissidents from preventing their occurrence. The view that over time, gay marriage will gradually become culturally acceptable as a result of legalization is naïve and possibly dangerous, as such laws can be reversed in one fell swoop through mobilization from the other side.

More relevant to this class, however, is the reality that many people will invest in the law under the misguided and rosy belief that it will magically empower them with tools necessary for effectuating change. The vast majority of law school applicants, for example, speak lavishly about their goals for advancing social progress without being told that the law, by itself, will rarely help them get there. Perhaps society would be better served if such individuals pursued other avenues for social change as opposed to becoming indoctrinated in a law school environment that pressures them to relinquish such interests.

Conclusion

Though the law is inherently constrained in its ability to change society, it can be leveraged in combination with other mediums of social action to produce lasting social impact. Journalism is one such field. Where journalism exposes failures of the human condition and generates enough public support for policy changes, the law can be leveraged to carry out their will. For example, a set of widely-publicized articles documenting the effects of pollution runoff would be an ideal means for generating public outcries for reform; the law would then be an optimal vehicle for effectuating such demands through enforcement and regulation. Combined with other mediums, the law can have considerable potency in effectuating lasting change.

• This was a difficult edit to succeed in without working directly with the author. The first draft is not in dire need of a technical edit: it says what it needs to say. In order to deal with my edit, however, some rethinking needs to be done. You can't just bolt a new conclusion onto the existing essay; this present draft shows, I think, why that approach isn't going to be effective. The first draft and my comment work together to create an opportunity for new thinking: how does one encourage or facilitate social change? How does legal process, or other social processes for which lawyers are prepared or employed, interact with the other processes encouraging or facilitating change? And so forth. The effect is to get outside the conceptual box in which the first draft exists: effective/ineffective as a binary condition. If you're going to undertake that journey as editor, you're going to become the author of a new piece. Naturally that's not seen as editing, so, with the promising route defined off limits, the task becomes very problematic indeed.