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 In a bid to prevent tax evasion, the Korean government limits the amount of money that can be withdrawn by foreign residents on trips to other countries.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.

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.