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Law: Change and Evolution
Law: Change and Evolution Lawrence M Friedman, Stanford University, Stanford, CA, USA Ó 2015 Elsevier Ltd. All rights reserved.
Abstract This article focuses first on macroevolutionary change, looking at theories of long-term legal change involving whole systems, groups of systems, or law in general. Theorists discussed include Marx, Maine, Durkheim, Weber, Schwartz and Miller, Galanter, Selznick, and Watson. The second part is concerned with more general theories of legal change. It discusses the ‘autonomy’ of the legal system, typologies of legal change, the need to distinguish long-run change from short-run change, the differences made by democratic and totalitarian tendencies in society, and the role played by the legal system in social change.
Legal Evolution There has been a good deal of speculation on the question whether legal systems ‘evolve’, that is, whether there is some kind of natural, automatic process or direction in which legal systems move and change over time. We might want to distinguish between macroevolution and microevolution. By macroevolution, I mean a theory that law in general, or whole systems or groups of systems, evolves in patterned ways. Microevolutionary theories would try to account for short-term changes in particular systems. Of course, there might be many gradations in between. Take, for example, the theory that common law doctrines evolve over time toward economic efficiency or cost reduction (Priest, 1977; Clark, 1981); the theory assumes a process, somewhat like Darwinian natural selection, that winnows out wasteful or irrational rules (for a discussion, see Elliott, 1985, pp. 62–71). A theory of this sort blurs the boundary between macro- and microevolution. This article will focus first on macroevolutionary change; then, briefly, it will consider more general theories of legal change. A (macro) evolutionary theory of law would mean that legal systems grow or develop in a pattern of orderly stages. Legal systems would progress, in other words, from stage 1, then move on to stage 2, then 3, and so on. Few, if any, legal scholars believe that any such progression is inevitable. Practically speaking, historians and legal scholars think of legal evolution in a weaker sense: not all systems will reach the highest stage (whatever that might be), but if they do, they will pass through the same sorts of stages (Friedman, 1975). The whole concept of evolution is, in a sense, distinctly modern, for the simple reason that traditional societies tended to regard their legal systems as essentially immutable. Law was divine, magical, or the product of natural reason, hence basically timeless and beyond human power. Change, if it occurred, might be (for example) some sort of dramatic and divine intervention. On the other hand, insofar as evolution implies ‘progress,’ it is as unfashionable an idea in contemporary times as is the idea of progress in general. Any theory of legal evolution has to posit some source of evolutionary change, that is, some force or factor that impels legal systems to move along given paths. What might that source be? It is hard to generalize, but it seems intuitively right to suggest that changes in society drag legal
International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 13
systems along with them, so that stages of legal development will correspond to stages of social development. Most of the theorists discussed in this article fall into this category. In contrast, some people feel that law is, in essence, independent of society, although it may contain within itself some principle of growth or evolution, which unfolds gradually over time. Such an idea is at least implicit in legal formalism, of both the common law and civil law varieties; development either occurs automatically or depends on the craftsmanship of judges or jurists; in either event, the law unfolds like the flower from the bud. Among modern authors, Alan Watson perhaps illustrates one version of this view: law, for Watson, is “largely autonomous and not shaped by societal needs”; legal institutions, to be sure, do not exist “without corresponding social institutions,” but law itself “evolves from the legal tradition.” Law is the “culture of the lawyers and . the lawmakers.” (Watson, 2001, pp. 263, 264). Law might just possibly possess no special path; it might be changing in no special direction. A sophisticated – and plausible – version of this idea appears in Hutchinson (2005, p. 16); however, with regard to the common law, Hutchinson does state that its development was basically ‘contingent upon social and historical circumstances,’ and that ‘any understanding of law must be deeply political,’ that is, explained in terms of a particular time and a particular culture. Many classical works in legal sociology and allied fields have at least touched on the subject of legal evolution, and most of them fall squarely within the first type mentioned here (Raiser, 1995, pp. 318–334; Elliott, 1985). Marx expressed an evolutionary theory, after all, in his views of the relationship between ownership of the means of production and the organization of society, and this theory had definite implications for the legal order. Sir Henry Maine, in his important book Ancient Law (1861), expressed the view that there was a definite pattern in the way legal systems grew and changed. Ancient law began in a patriarchal stage, in which the family, not the individual, was the unit of legal analysis; moreover, the father had basically the key rights and authority within the family. Birth order, gender, and age determined one’s legal rights and duties. Society was based on status. The movement of ‘progressive societies,’ he stated, has gone in a ‘uniform’ direction: the individual replaces the
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family; voluntary arrangements replace ascriptive ones; and legal systems, to use his famous phrase, evolved ‘from Status to Contract.’ Implicit evolutionary theories also appeared in other classical theories of law and society. Durkheim, for example, drew a distinction between primitive and modern societies. In The Division of Labor in Society, Durkheim distinguished between ‘mechanical’ and ‘organic’ solidarity. In traditional societies (societies of ‘mechanical’ solidarity), rules and norms were held in common. Violations threatened social cohesion and had to be punished. The law was therefore mostly concerned with punishments. On the other hand, in modern society (characterized by ‘organic’ solidarity), there is a tremendous amount of complexity and interdependence, and legal rules are mostly civil and ‘institutive.’ In Durkheim’s scheme, as in Maine’s, there is strong emphasis on contract: societies as they enter the modern world are characterized more and more by voluntary agreements. The most subtle, and influential, of the classic writings on legal evolution is Max Weber’s (Rheinstein, 1954). Weber was interested in the question ‘What makes modern law different from older and traditional systems?’ The distinctive quality he saw was what he called rationality – essentially, the process of making and interpreting law on the basis of general principles and rules. Oracles, ordeals, lawmaking by charismatic leaders – these are ‘irrational’ forms of making or finding law. Modern legal systems in developed countries tend (according to Weber) to replace the irrational with the rational. In particular, modern legal systems are characterized by formal rationality, a ‘peculiarly professional, legalistic, and abstract approach to law.’ A formally rational system uses logic and deductive reasoning to derive results from rules, concepts, and principles. Irrational systems do not produce predictable results – results that can be controlled by the intellect; citizens therefore cannot rely on these processes. Hence modern law, the law of the modern capitalist state, has a natural preference for Weberian rationality. Weber falls short of arguing that this progression, from the irrational to the rational, is inevitable or predetermined. His discussion of legal history cannot be summed up in this single formula, since Weber describes, in rich detail, at least four stages of development (Sterling and Moore, 1987). Charismatic legal revelation is succeeded by formally irrational ‘kadi’ justice – ad hoc decision making based on general social norms. Then comes a stage of substantive rationality; in this stage, a systematic body of rules is imposed on society, but less in terms of juristic reasoning than in terms of religious, ethical, or economic considerations. The stage of formal rationality comes last; in this stage, the jurists create a more or less self-contained, highly logical, and systematic body of law, in which abstract legal concepts are arranged in some definite and principled order. But this is merely a more or less idealized picture of the growth of law in the West. Weber does not claim that this is bound to happen elsewhere, and he never quite argues that the movement he describes is irreversible. In particular, modern law has tended to drift away from formal rationality toward what Weber called substantive rationality – law is made or found in accordance with principles and policies (economic, social, and cultural) that are not strictly legal.
Richard Schwartz and James C. Miller (1964; see Wimberley, 1973) tried to evaluate the concept of evolution on a systematic basis. They drew material from 51 different societies and tried to ‘scale’ the development of legal institutions. Their scales were in terms of legal institutions: the least advanced societies had no police, lawyers, or forms of mediation. Societies develop mediation first, then some form of policing, and a legal profession last of all. Most of the societies that Schwartz and Miller discussed were preliterate. In a sense, Weber and Maine (although they wrote long before Schwartz and Miller) pick up where Schwartz and Miller leave off, since their main concern was with advanced societies. Galanter (1966), in an important essay, tried to define what makes a legal system ‘modern,’ which was, of course, Weber’s chief interest as well. He suggests a list of 13 traits, which, in his view, set modern law apart from premodern law. The scheme, then, is implicitly evolutionary. For Galanter, modern law is bureaucratic, professional, rational, and universalistic; it is also ‘amendable,’ that is, it lacks ‘sacred fixity.’ Friedman (1994) returns to this theme and lists six traits that, in his view, together make up ‘modern legal culture.’ Modern law is committed to change, reform, and adaptation; it lacks the conception of timelessness of traditional legal systems. It is pervasive, ubiquitous, and frankly instrumental. At the same time, it does contain strong notions of fundamental rights. Rehbinder (2000) also lists a group of ‘tendencies’ that characterize contemporary law: a strain toward universalism (this was also one of Galanter’s traits), but at the same time specialization, bureaucratization, and an increase in the sheer amount of legal material. Most of these discussions of legal change focus on ‘modernity,’ and they are descriptive and explanatory. So, for example, Struck (2011) describes a progression from the ‘archaic,’ through the ‘feudal,’ to modern capitalism. But in some work, there is a strong normative strain. Selznick (1969), for example, was concerned, above all, with the evolution of ‘legality.’ In a later work, Philippe Nonet and Selznick discuss a tendency for laws to evolve toward ‘responsiveness’ (Nonet and Selznick, 1978). These ideas have influenced the work of Gunther Teubner (1983), who described legal systems as evolving from a kind of dry, rulebound bureaucratic system to a more ‘reflexive’ one, in which the law, particularly within administrative systems, would be responsive to the needs and wants of the governed, and which would develop rules and procedures that would be just and adaptive. Teubner, like Nonet and Selznick, adds a distinctively normative flavor to the more descriptive tone of Weber. Teubner’s views touched off a lively debate (see Blankenburg, 1984); some of the empirical issues raised in this line of work remain to be definitively examined.
Legal Change The theory of legal change has to be dealt with rather briefly, not because it is less important than the theory of legal evolution, but precisely because legal change is pervasive, and a broad theory of legal change would be nothing more or less than a general theory of how and why the law develops, in both
Law: Change and Evolution
the long and the short run. Moreover, practically any study in the field of sociolegal history is in fact a study of legal change and of the dynamics of legal change. (For example, studies of lobbying and interest groups are studies of the dynamics of legal change. So, too, is research on the impact of the industrial revolution, the sexual revolution, and every social factor imaginable.) Still, constant change is one of the most salient aspects of modern legal systems. At every session, legislatures pass laws to amend or modify existing laws or even to embark on a new direction. The same is true of administrative agencies, city governments, and much of the work of courts: they all represent change. Indeed, the public expects change: candidates and parties, in modern societies, feel obliged to present a program, an agenda – in short, they promise change. (Dictatorships, of course, are under no such obligation.) All legal systems are dynamic; and it is part of the legal culture of today to expect them to be dynamic. All modern legal systems, then, accept change as normal. This was not always the case. Many older legal systems (and preliterate systems) consider law as fundamentally immutable or, in any event, beyond the power of mere mortals. Change occurred nonetheless, but often in disguised form – through resort, for example, to legal fictions. Theories of legal change – theories about what produces legal change – depend, in the first instance, on the answer to larger questions, very notably the question of the ‘autonomy’ of the legal system. A legal system, if it was fully autonomous, would operate through its own inner logic or program. It would be independent of the outside society. The opposite system would, on the contrary, faithfully follow, reflect, or mirror changes in the outside society. Needless to say, most scholars are not to be found at either pole of this continuum, but somewhere in between. Most orthodox legal scholars cluster closer to the autonomous end of the continuum; social scientists who study law cluster closer to the other end. In discussing legal change, there are obviously many factors to be taken into account (for one general discussion, see Ferrari, 1997, Chap. 6). Not every legal system will change in the same way. This is true for both internal and external reasons. Societies undergoing rapid change will naturally process more legal changes than relatively static societies. Legal systems, particularly advanced ones, that legitimate change will contain rules, procedures, and institutions for making and processing change. Modern parliamentary democracies emphasize the formal role of legislatures in changing the law, although administrative agencies also have important rulemaking power. Also, the role of courts as change agents is important in many if not most societies. Change also originates in customs, practices, and norms, which then influence the change-making institutions. A major event (war, plague, or revolution), a major innovation (antibiotics, automobiles, or computers), or a major social change (democratization or sexual permissiveness) will inevitably lead to legal change, sometimes on a massive scale; but the exact form of the change is never precisely predictable. The ‘outside’ event or situation has its impact in a society that already has structures and cultural facts; those structures and cultures will bend and mediate the influences of the ‘outside’ forces prismatically. The ‘outside’ forces make an impact
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through effecting changes in the general legal culture – that is, in the pattern of demands, expectations, and values that concern the legal system – and legal change comes about because of this change in legal culture; it does not flow immediately and automatically from the ‘outside’ event or situation. Moreover, once a legal structure, doctrine, or institution is in place, it can exert its own force on the legal culture; it affects legal ideology, and it may come to seem natural or inevitable. The process of legal change, then, is dynamic and interactive, and it forms a never-ending chain of causes and effects. In theory, one can distinguish four types of legal change, depending on the change’s point of origin and final point of impact (Friedman, 1975): (1) some change originates inside the legal system, and also causes whatever impact it might have within that system; (2) some change begins inside the system, but in fact does have an impact on society; (3) some change originates outside the legal system, but affects only the legal system and ends there, with no further impact on society; and (4) some change originates outside the legal system and ultimately has some impact on society, that is, it is more or less effective. The first two are examples of technical change, and include many projects of ‘law reform’ or codification, within legal systems – the technocratic work of jurists, which has little or no effect on the way that society actually functions. Codification often falls into this category. But sometimes, wittingly or unwittingly, what begins as purely technical change has unforeseen consequences in the larger society. That is, the technical change simply gives some group in society a convenient ‘hook’ or formal excuse to advance its goals. A strong ‘outside’ force or movement should, in theory, produce an impact both on the law and on the society. But often some other social force, movement, or group fights hard to resist change, and the result is a kind of stalemate: a ‘law’ is passed, for example, after a bitter struggle between interest groups, but the ‘losing’ group has enough power to prevent effective enforcement. The fourth type is, in many ways, the most interesting and pervasive. Some changes are quite revolutionary – for example, the type of wholesale change that took place after the Russian or the Chinese revolutions; or, contrariwise, that took place in Russia after the collapse of the Soviet Union; or the total extinction of the legal system of East Germany (Markovits, 1995). Other changes are small or incremental; they produce only a minor effect on some portion of the population. The discussion in this article has mostly assumed change in formal, overt aspects of law. But legal systems are complex, and there are many instances where one aspect of the system changes while others remain (on the surface) unchanged. For example, the formal or official law might remain unchanged, but the operating system changes, perhaps quite drastically. One example would be divorce law and practice in the United States in the late nineteenth and early twentieth centuries. The official law of some states (e.g., New York) made divorce difficult and expensive; the law in action was completely different. Collusion and other devices made it possible for citizens of New York to get divorces that in theory they were not entitled to have. What kept this dual system alive? Apparently, it was a political situation that for various reasons
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was deadlocked. Strong forces of ‘morality’ prevented the enactment of reform. The growing demand for divorce led reformers to seek other channels, which they did quite successfully. Legal systems very commonly change in this ragged and complex manner (Friedman, 2004; Grossman and Friedman, 2011). One should also distinguish between long-run change and short-run change (and various gradations in between). In the long run, legal systems are almost infinitely plastic, and they change to fit the shape of the society in which they are embedded. A feudal system will generate a legal system that deals with institutions of feudal society and reflects its norms and structures; a capitalist, socialist, or tribal society will shift its laws to suit the existing system. But in the very short run, random, accidental, or ‘internalist’ factors may condition or shape forms of legal change. It is this fact in modern societies that promotes the illusion of legal autonomy – the image of a system with a tough and impermeable outer skin. The legal profession itself has to be reckoned with; this can be a powerful group, with a vested interest in resisting certain kinds of change. The rate and forms of change also depend on whether the society is relatively open and democratic, or relatively closed and aristocratic or totalitarian. In an open society, ‘public opinion’ is an important factor in shaping the law. ‘Public force’ would be a more accurate way of putting the matter. ‘Public opinion’ as such – whatever it is that polls and surveys measure – does not bring about change, except insofar as it influences legislators or judges, or is translated into public action. Public opinion, in any event, is not simply what a poll suggests, or what the majority of the public thinks and feels. Salience is an important factor; it affects whether attitudes are translated into behavior. Moreover, in every society, no matter how ‘democratic,’ there are vast gaps between high and low, rich and poor, powerful and powerless. A wealthy corporation simply counts for more than, say, an impoverished and uneducated slum dweller. As an axiom of legal change, one can start with the notion that a legal rule, doctrine, practice, or institution will change if the social force exerted against it is greater than the force generated to preserve it. This is a very abstract, and perhaps not very helpful, formulation. The interesting questions are more specific: in any given situation, what are the social forces that are in play, and what lies behind the exertion of social force? Moreover, it can be assumed that at any given time, the actual social force exerted on an issue is much less than the potential social force, since most people and institutions, even the powerful ones, most of the time, pay no attention to most legal issues and problems within a society. For this reason, scandals, incidents, and ‘horror stories’ are particularly important sources of legal change in open societies: they can arouse the sleeping giant and turn potential force into actual exerted force. Hence, the role of the media – which communicates these scandals, incidents, and ‘horror stories’ – is a particularly powerful, but insufficiently studied, catalyst for sociolegal change (see, for an excellent example, Haltom and McCann, 2004). Particularly in common law systems, the role of courts in bringing about social change has been much discussed. To
what extent, for example, did Brown vs. Board of Education (1954), the school desegregation case, make an actual impact on race relations in the United States? (For one view, see Rosenberg, 2008.) That the courts are an important institution in American society and play some role in bringing about social change cannot be denied; the question is how much. There is a small literature on the impact of judicial decisions, but it is hard to come to general conclusions; no two cases seem alike. Modern courts in many countries have the power of judicial review, which may have increased their potential for nudging society along certain paths. There are some signs of dramatic change in judicial culture in the Western world in general. Crusading judges in Italy led to the collapse of the party system; and an activist Spanish judge issued an order directed against General Augusto Pinochet, the former dictator of Chile, who had been virtually immune from prosecution before. One factor that influences impact is the way that a legal decision and innovations in general are communicated to the relevant audience. We already considered the role of scandals and incidents, and the media’s ability to dispense information in selective ways. One should also distinguish between immediate changes (e.g., on the litigants or on some particular group) and more indirect, long-term consequences. Many legal commands have effects that ripple out into society. Unfortunately, research on all these issues is fairly thin. Studies of legal change are usually studies within one particular legal system; there are, however, some interesting studies that look at comparative legal change. More and more, legal systems are not isolated, since societies are themselves more and more interdependent. In a globalized world, legal systems arguably are converging; since the systems face common problems, they tend to generate common solutions (see Friedman, 2011). Not everyone agrees on this, however, and some scholars have argued that global trends have very different impacts on different societies (see, e.g., Engel and Engel, 2010, on Thailand). This is undoubtedly true, but the general lines of development seem reasonably clear.
See also: Durkheim, Émile (1858–1917); Marx, Karl (1818–83); Weber, Max (1864–1920).
Bibliography Blankenburg, E., 1984. The poverty of evolutionism: a critique of Teubner’s case for ‘reflexive law’. Law and Society Review 18, 273. Clark, Robert C., 1981. The interdisciplinary study of legal evolution. Yale Law Journal 90, 1238. Elliott, E.D., 1985. The evolutionary tradition in jurisprudence. Columbia Law Review 85, 38. Engel, D.M., Engel, J., 2010. Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand. Stanford University Press, Stanford, CA. Ferrari, V., 1997. Lineamenti di Sociologia del Diritto: I. Azione Giuridica E Sistema Normative. Lalerza, Rome. Friedman, L.M., 1975. The Legal System: A Social Science Perspective. Russell Sage Foundation, New York. Friedman, L.M., 1994. Is there a modern legal culture? Ratio Juris 7, 117. Friedman, L.M., 2004. Private Lives: Families, Individuals, and the Law. Harvard University Press, Cambridge, MA.
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Friedman, L.M., 2011. The Human Rights Culture: A Study in History and Context. Quid Pro Press, New Orleans. Galanter, M., 1966. The modernization of law. In: Weiner, M. (Ed.), Modernization. Basic Books, New York, p. 153. Grossman, Joanna L., Friedman, L.M., 2011. Inside the Castle: Law and the Family in 20th Century America. Princeton University Press, Princeton, NJ. Haltom, W., McCann, M., 2004. Distorting the Law: Politics, Media, and the Litigation Crisis. University of Chicago Press, Chicago, IL. Hutchinson, A.C., 2005. Evolution and the Common Law. Cambridge University Press, Cambridge, MA. Maine, H., 1861. Ancient Law. J. Murray, London. Markovits, I., 1995. Imperfect Justice: An East-West German Diary. Oxford University Press, Oxford, NY. Nonet, P., Selznick, P., 1978. Law and Society in Transition: Toward Responsive Law. Octagon Books, New York. Priest, George L., 1977. The common law process and the selection of efficient rules. Journal of Legal Studies 6, 65. Raiser, T., 1995. Das Lebende Recht: Rechtssoziologie in Deutsch-land. Nomos, Baden-Baden.
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Rehbinder, M., 2000. Rechtssaziologie, fourth ed. Walter de Gruyter, Berlin. Rheinstein, M. (Ed.), 1954. Max Weber on Law in Economy and Society. Harvard University Press, Cambridge, MA. Rosenberg, G.N., 2008. The Hollow Hope: Can Courts Bring about Social Change?, second ed. University of Chicago Press, Chicago, IL. Schwartz, R., Miller, J.C., 1964. Legal evolution and societal complexity. American Journal of Sociology 70, 159. Selznick, P., 1969. Law, Society, and Industrial Justice. Sterling, J.C., Moore, W.E., 1987. Weber’s analysis of legal rationalization: a critique and constructive modification. Sociological Forum 2, 67. Struck, G., 2011. Rechtssoziologie: Grundlagen und Strukturen. Nomos, Baden-Baden. Teubner, G., 1983. Substantive and reflexive elements in modern law. Law and Society Review 17, 239. Watson, A., 2001. The Evolution of Western Private Law. Johns Hopkins University Press, Baltimore, MD. Wimberley, H., 1973. Legal evolution: one further step. American Journal of Sociology 79, 78.
Abstract This article focuses first on macroevolutionary change, looking at theories of long-term legal change involving whole systems, groups of systems, or law in general. Theorists discussed include Marx, Maine, Durkheim, Weber, Schwartz and Miller, Galanter, Selznick, and Watson. The second part is concerned with more general theories of legal change. It discusses the ‘autonomy’ of the legal system, typologies of legal change, the need to distinguish long-run change from short-run change, the differences made by democratic and totalitarian tendencies in society, and the role played by the legal system in social change.
Legal Evolution There has been a good deal of speculation on the question whether legal systems ‘evolve’, that is, whether there is some kind of natural, automatic process or direction in which legal systems move and change over time. We might want to distinguish between macroevolution and microevolution. By macroevolution, I mean a theory that law in general, or whole systems or groups of systems, evolves in patterned ways. Microevolutionary theories would try to account for short-term changes in particular systems. Of course, there might be many gradations in between. Take, for example, the theory that common law doctrines evolve over time toward economic efficiency or cost reduction (Priest, 1977; Clark, 1981); the theory assumes a process, somewhat like Darwinian natural selection, that winnows out wasteful or irrational rules (for a discussion, see Elliott, 1985, pp. 62–71). A theory of this sort blurs the boundary between macro- and microevolution. This article will focus first on macroevolutionary change; then, briefly, it will consider more general theories of legal change. A (macro) evolutionary theory of law would mean that legal systems grow or develop in a pattern of orderly stages. Legal systems would progress, in other words, from stage 1, then move on to stage 2, then 3, and so on. Few, if any, legal scholars believe that any such progression is inevitable. Practically speaking, historians and legal scholars think of legal evolution in a weaker sense: not all systems will reach the highest stage (whatever that might be), but if they do, they will pass through the same sorts of stages (Friedman, 1975). The whole concept of evolution is, in a sense, distinctly modern, for the simple reason that traditional societies tended to regard their legal systems as essentially immutable. Law was divine, magical, or the product of natural reason, hence basically timeless and beyond human power. Change, if it occurred, might be (for example) some sort of dramatic and divine intervention. On the other hand, insofar as evolution implies ‘progress,’ it is as unfashionable an idea in contemporary times as is the idea of progress in general. Any theory of legal evolution has to posit some source of evolutionary change, that is, some force or factor that impels legal systems to move along given paths. What might that source be? It is hard to generalize, but it seems intuitively right to suggest that changes in society drag legal
International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 13
systems along with them, so that stages of legal development will correspond to stages of social development. Most of the theorists discussed in this article fall into this category. In contrast, some people feel that law is, in essence, independent of society, although it may contain within itself some principle of growth or evolution, which unfolds gradually over time. Such an idea is at least implicit in legal formalism, of both the common law and civil law varieties; development either occurs automatically or depends on the craftsmanship of judges or jurists; in either event, the law unfolds like the flower from the bud. Among modern authors, Alan Watson perhaps illustrates one version of this view: law, for Watson, is “largely autonomous and not shaped by societal needs”; legal institutions, to be sure, do not exist “without corresponding social institutions,” but law itself “evolves from the legal tradition.” Law is the “culture of the lawyers and . the lawmakers.” (Watson, 2001, pp. 263, 264). Law might just possibly possess no special path; it might be changing in no special direction. A sophisticated – and plausible – version of this idea appears in Hutchinson (2005, p. 16); however, with regard to the common law, Hutchinson does state that its development was basically ‘contingent upon social and historical circumstances,’ and that ‘any understanding of law must be deeply political,’ that is, explained in terms of a particular time and a particular culture. Many classical works in legal sociology and allied fields have at least touched on the subject of legal evolution, and most of them fall squarely within the first type mentioned here (Raiser, 1995, pp. 318–334; Elliott, 1985). Marx expressed an evolutionary theory, after all, in his views of the relationship between ownership of the means of production and the organization of society, and this theory had definite implications for the legal order. Sir Henry Maine, in his important book Ancient Law (1861), expressed the view that there was a definite pattern in the way legal systems grew and changed. Ancient law began in a patriarchal stage, in which the family, not the individual, was the unit of legal analysis; moreover, the father had basically the key rights and authority within the family. Birth order, gender, and age determined one’s legal rights and duties. Society was based on status. The movement of ‘progressive societies,’ he stated, has gone in a ‘uniform’ direction: the individual replaces the
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family; voluntary arrangements replace ascriptive ones; and legal systems, to use his famous phrase, evolved ‘from Status to Contract.’ Implicit evolutionary theories also appeared in other classical theories of law and society. Durkheim, for example, drew a distinction between primitive and modern societies. In The Division of Labor in Society, Durkheim distinguished between ‘mechanical’ and ‘organic’ solidarity. In traditional societies (societies of ‘mechanical’ solidarity), rules and norms were held in common. Violations threatened social cohesion and had to be punished. The law was therefore mostly concerned with punishments. On the other hand, in modern society (characterized by ‘organic’ solidarity), there is a tremendous amount of complexity and interdependence, and legal rules are mostly civil and ‘institutive.’ In Durkheim’s scheme, as in Maine’s, there is strong emphasis on contract: societies as they enter the modern world are characterized more and more by voluntary agreements. The most subtle, and influential, of the classic writings on legal evolution is Max Weber’s (Rheinstein, 1954). Weber was interested in the question ‘What makes modern law different from older and traditional systems?’ The distinctive quality he saw was what he called rationality – essentially, the process of making and interpreting law on the basis of general principles and rules. Oracles, ordeals, lawmaking by charismatic leaders – these are ‘irrational’ forms of making or finding law. Modern legal systems in developed countries tend (according to Weber) to replace the irrational with the rational. In particular, modern legal systems are characterized by formal rationality, a ‘peculiarly professional, legalistic, and abstract approach to law.’ A formally rational system uses logic and deductive reasoning to derive results from rules, concepts, and principles. Irrational systems do not produce predictable results – results that can be controlled by the intellect; citizens therefore cannot rely on these processes. Hence modern law, the law of the modern capitalist state, has a natural preference for Weberian rationality. Weber falls short of arguing that this progression, from the irrational to the rational, is inevitable or predetermined. His discussion of legal history cannot be summed up in this single formula, since Weber describes, in rich detail, at least four stages of development (Sterling and Moore, 1987). Charismatic legal revelation is succeeded by formally irrational ‘kadi’ justice – ad hoc decision making based on general social norms. Then comes a stage of substantive rationality; in this stage, a systematic body of rules is imposed on society, but less in terms of juristic reasoning than in terms of religious, ethical, or economic considerations. The stage of formal rationality comes last; in this stage, the jurists create a more or less self-contained, highly logical, and systematic body of law, in which abstract legal concepts are arranged in some definite and principled order. But this is merely a more or less idealized picture of the growth of law in the West. Weber does not claim that this is bound to happen elsewhere, and he never quite argues that the movement he describes is irreversible. In particular, modern law has tended to drift away from formal rationality toward what Weber called substantive rationality – law is made or found in accordance with principles and policies (economic, social, and cultural) that are not strictly legal.
Richard Schwartz and James C. Miller (1964; see Wimberley, 1973) tried to evaluate the concept of evolution on a systematic basis. They drew material from 51 different societies and tried to ‘scale’ the development of legal institutions. Their scales were in terms of legal institutions: the least advanced societies had no police, lawyers, or forms of mediation. Societies develop mediation first, then some form of policing, and a legal profession last of all. Most of the societies that Schwartz and Miller discussed were preliterate. In a sense, Weber and Maine (although they wrote long before Schwartz and Miller) pick up where Schwartz and Miller leave off, since their main concern was with advanced societies. Galanter (1966), in an important essay, tried to define what makes a legal system ‘modern,’ which was, of course, Weber’s chief interest as well. He suggests a list of 13 traits, which, in his view, set modern law apart from premodern law. The scheme, then, is implicitly evolutionary. For Galanter, modern law is bureaucratic, professional, rational, and universalistic; it is also ‘amendable,’ that is, it lacks ‘sacred fixity.’ Friedman (1994) returns to this theme and lists six traits that, in his view, together make up ‘modern legal culture.’ Modern law is committed to change, reform, and adaptation; it lacks the conception of timelessness of traditional legal systems. It is pervasive, ubiquitous, and frankly instrumental. At the same time, it does contain strong notions of fundamental rights. Rehbinder (2000) also lists a group of ‘tendencies’ that characterize contemporary law: a strain toward universalism (this was also one of Galanter’s traits), but at the same time specialization, bureaucratization, and an increase in the sheer amount of legal material. Most of these discussions of legal change focus on ‘modernity,’ and they are descriptive and explanatory. So, for example, Struck (2011) describes a progression from the ‘archaic,’ through the ‘feudal,’ to modern capitalism. But in some work, there is a strong normative strain. Selznick (1969), for example, was concerned, above all, with the evolution of ‘legality.’ In a later work, Philippe Nonet and Selznick discuss a tendency for laws to evolve toward ‘responsiveness’ (Nonet and Selznick, 1978). These ideas have influenced the work of Gunther Teubner (1983), who described legal systems as evolving from a kind of dry, rulebound bureaucratic system to a more ‘reflexive’ one, in which the law, particularly within administrative systems, would be responsive to the needs and wants of the governed, and which would develop rules and procedures that would be just and adaptive. Teubner, like Nonet and Selznick, adds a distinctively normative flavor to the more descriptive tone of Weber. Teubner’s views touched off a lively debate (see Blankenburg, 1984); some of the empirical issues raised in this line of work remain to be definitively examined.
Legal Change The theory of legal change has to be dealt with rather briefly, not because it is less important than the theory of legal evolution, but precisely because legal change is pervasive, and a broad theory of legal change would be nothing more or less than a general theory of how and why the law develops, in both
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the long and the short run. Moreover, practically any study in the field of sociolegal history is in fact a study of legal change and of the dynamics of legal change. (For example, studies of lobbying and interest groups are studies of the dynamics of legal change. So, too, is research on the impact of the industrial revolution, the sexual revolution, and every social factor imaginable.) Still, constant change is one of the most salient aspects of modern legal systems. At every session, legislatures pass laws to amend or modify existing laws or even to embark on a new direction. The same is true of administrative agencies, city governments, and much of the work of courts: they all represent change. Indeed, the public expects change: candidates and parties, in modern societies, feel obliged to present a program, an agenda – in short, they promise change. (Dictatorships, of course, are under no such obligation.) All legal systems are dynamic; and it is part of the legal culture of today to expect them to be dynamic. All modern legal systems, then, accept change as normal. This was not always the case. Many older legal systems (and preliterate systems) consider law as fundamentally immutable or, in any event, beyond the power of mere mortals. Change occurred nonetheless, but often in disguised form – through resort, for example, to legal fictions. Theories of legal change – theories about what produces legal change – depend, in the first instance, on the answer to larger questions, very notably the question of the ‘autonomy’ of the legal system. A legal system, if it was fully autonomous, would operate through its own inner logic or program. It would be independent of the outside society. The opposite system would, on the contrary, faithfully follow, reflect, or mirror changes in the outside society. Needless to say, most scholars are not to be found at either pole of this continuum, but somewhere in between. Most orthodox legal scholars cluster closer to the autonomous end of the continuum; social scientists who study law cluster closer to the other end. In discussing legal change, there are obviously many factors to be taken into account (for one general discussion, see Ferrari, 1997, Chap. 6). Not every legal system will change in the same way. This is true for both internal and external reasons. Societies undergoing rapid change will naturally process more legal changes than relatively static societies. Legal systems, particularly advanced ones, that legitimate change will contain rules, procedures, and institutions for making and processing change. Modern parliamentary democracies emphasize the formal role of legislatures in changing the law, although administrative agencies also have important rulemaking power. Also, the role of courts as change agents is important in many if not most societies. Change also originates in customs, practices, and norms, which then influence the change-making institutions. A major event (war, plague, or revolution), a major innovation (antibiotics, automobiles, or computers), or a major social change (democratization or sexual permissiveness) will inevitably lead to legal change, sometimes on a massive scale; but the exact form of the change is never precisely predictable. The ‘outside’ event or situation has its impact in a society that already has structures and cultural facts; those structures and cultures will bend and mediate the influences of the ‘outside’ forces prismatically. The ‘outside’ forces make an impact
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through effecting changes in the general legal culture – that is, in the pattern of demands, expectations, and values that concern the legal system – and legal change comes about because of this change in legal culture; it does not flow immediately and automatically from the ‘outside’ event or situation. Moreover, once a legal structure, doctrine, or institution is in place, it can exert its own force on the legal culture; it affects legal ideology, and it may come to seem natural or inevitable. The process of legal change, then, is dynamic and interactive, and it forms a never-ending chain of causes and effects. In theory, one can distinguish four types of legal change, depending on the change’s point of origin and final point of impact (Friedman, 1975): (1) some change originates inside the legal system, and also causes whatever impact it might have within that system; (2) some change begins inside the system, but in fact does have an impact on society; (3) some change originates outside the legal system, but affects only the legal system and ends there, with no further impact on society; and (4) some change originates outside the legal system and ultimately has some impact on society, that is, it is more or less effective. The first two are examples of technical change, and include many projects of ‘law reform’ or codification, within legal systems – the technocratic work of jurists, which has little or no effect on the way that society actually functions. Codification often falls into this category. But sometimes, wittingly or unwittingly, what begins as purely technical change has unforeseen consequences in the larger society. That is, the technical change simply gives some group in society a convenient ‘hook’ or formal excuse to advance its goals. A strong ‘outside’ force or movement should, in theory, produce an impact both on the law and on the society. But often some other social force, movement, or group fights hard to resist change, and the result is a kind of stalemate: a ‘law’ is passed, for example, after a bitter struggle between interest groups, but the ‘losing’ group has enough power to prevent effective enforcement. The fourth type is, in many ways, the most interesting and pervasive. Some changes are quite revolutionary – for example, the type of wholesale change that took place after the Russian or the Chinese revolutions; or, contrariwise, that took place in Russia after the collapse of the Soviet Union; or the total extinction of the legal system of East Germany (Markovits, 1995). Other changes are small or incremental; they produce only a minor effect on some portion of the population. The discussion in this article has mostly assumed change in formal, overt aspects of law. But legal systems are complex, and there are many instances where one aspect of the system changes while others remain (on the surface) unchanged. For example, the formal or official law might remain unchanged, but the operating system changes, perhaps quite drastically. One example would be divorce law and practice in the United States in the late nineteenth and early twentieth centuries. The official law of some states (e.g., New York) made divorce difficult and expensive; the law in action was completely different. Collusion and other devices made it possible for citizens of New York to get divorces that in theory they were not entitled to have. What kept this dual system alive? Apparently, it was a political situation that for various reasons
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was deadlocked. Strong forces of ‘morality’ prevented the enactment of reform. The growing demand for divorce led reformers to seek other channels, which they did quite successfully. Legal systems very commonly change in this ragged and complex manner (Friedman, 2004; Grossman and Friedman, 2011). One should also distinguish between long-run change and short-run change (and various gradations in between). In the long run, legal systems are almost infinitely plastic, and they change to fit the shape of the society in which they are embedded. A feudal system will generate a legal system that deals with institutions of feudal society and reflects its norms and structures; a capitalist, socialist, or tribal society will shift its laws to suit the existing system. But in the very short run, random, accidental, or ‘internalist’ factors may condition or shape forms of legal change. It is this fact in modern societies that promotes the illusion of legal autonomy – the image of a system with a tough and impermeable outer skin. The legal profession itself has to be reckoned with; this can be a powerful group, with a vested interest in resisting certain kinds of change. The rate and forms of change also depend on whether the society is relatively open and democratic, or relatively closed and aristocratic or totalitarian. In an open society, ‘public opinion’ is an important factor in shaping the law. ‘Public force’ would be a more accurate way of putting the matter. ‘Public opinion’ as such – whatever it is that polls and surveys measure – does not bring about change, except insofar as it influences legislators or judges, or is translated into public action. Public opinion, in any event, is not simply what a poll suggests, or what the majority of the public thinks and feels. Salience is an important factor; it affects whether attitudes are translated into behavior. Moreover, in every society, no matter how ‘democratic,’ there are vast gaps between high and low, rich and poor, powerful and powerless. A wealthy corporation simply counts for more than, say, an impoverished and uneducated slum dweller. As an axiom of legal change, one can start with the notion that a legal rule, doctrine, practice, or institution will change if the social force exerted against it is greater than the force generated to preserve it. This is a very abstract, and perhaps not very helpful, formulation. The interesting questions are more specific: in any given situation, what are the social forces that are in play, and what lies behind the exertion of social force? Moreover, it can be assumed that at any given time, the actual social force exerted on an issue is much less than the potential social force, since most people and institutions, even the powerful ones, most of the time, pay no attention to most legal issues and problems within a society. For this reason, scandals, incidents, and ‘horror stories’ are particularly important sources of legal change in open societies: they can arouse the sleeping giant and turn potential force into actual exerted force. Hence, the role of the media – which communicates these scandals, incidents, and ‘horror stories’ – is a particularly powerful, but insufficiently studied, catalyst for sociolegal change (see, for an excellent example, Haltom and McCann, 2004). Particularly in common law systems, the role of courts in bringing about social change has been much discussed. To
what extent, for example, did Brown vs. Board of Education (1954), the school desegregation case, make an actual impact on race relations in the United States? (For one view, see Rosenberg, 2008.) That the courts are an important institution in American society and play some role in bringing about social change cannot be denied; the question is how much. There is a small literature on the impact of judicial decisions, but it is hard to come to general conclusions; no two cases seem alike. Modern courts in many countries have the power of judicial review, which may have increased their potential for nudging society along certain paths. There are some signs of dramatic change in judicial culture in the Western world in general. Crusading judges in Italy led to the collapse of the party system; and an activist Spanish judge issued an order directed against General Augusto Pinochet, the former dictator of Chile, who had been virtually immune from prosecution before. One factor that influences impact is the way that a legal decision and innovations in general are communicated to the relevant audience. We already considered the role of scandals and incidents, and the media’s ability to dispense information in selective ways. One should also distinguish between immediate changes (e.g., on the litigants or on some particular group) and more indirect, long-term consequences. Many legal commands have effects that ripple out into society. Unfortunately, research on all these issues is fairly thin. Studies of legal change are usually studies within one particular legal system; there are, however, some interesting studies that look at comparative legal change. More and more, legal systems are not isolated, since societies are themselves more and more interdependent. In a globalized world, legal systems arguably are converging; since the systems face common problems, they tend to generate common solutions (see Friedman, 2011). Not everyone agrees on this, however, and some scholars have argued that global trends have very different impacts on different societies (see, e.g., Engel and Engel, 2010, on Thailand). This is undoubtedly true, but the general lines of development seem reasonably clear.
See also: Durkheim, Émile (1858–1917); Marx, Karl (1818–83); Weber, Max (1864–1920).
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