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From Albiston, C.R., Leachman, G.M., 2015. Law as an Instrument of Social Change. In:
James D. Wright (editor-in-chief), International Encyclopedia of the Social &
Behavioral Sciences, 2nd edition, Vol 13. Oxford: Elsevier. pp. 542–549.
ISBN: 9780080970868
Copyright © 2015 Elsevier Ltd. unless otherwise stated. All rights reserved.
Elsevier
Author's personal copy
Law as an Instrument of Social Change
Catherine R Albiston, University of California, Berkeley School of Law, Berkeley, CA, USA
Gwendolyn M Leachman, Williams Institute, UCLA School of Law, Los Angeles, CA, USA
Ó 2015 Elsevier Ltd. All rights reserved.
This article is a revision of the previous edition article by V. Gessner, volume 12, pp. 8492–8496, Ó 2001, Elsevier Ltd.
Abstract
To review law as an instrument of social change, one first has to address what one means by ‘law’ and by ‘social change.’
We can then examine the mechanisms through which law changes society. This article begins with methodological and
definitional issues in studying law as an instrument of social change. It then reviews empirical findings about the mechanisms
through which law changes society, focusing in particular on the debate about rights litigation as a social change strategy, the
ways organizations respond to legal institutions and implement law, and the relationship between law and social
movements.
Introduction
At least since Brown v. Board of Education ordered southern states
in the United States to desegregate their schools, whether and
how law operates as an instrument of social change has
attracted intense scrutiny. This inquiry’s deceptively simple
formulation masks significant complexity in the concepts of
law, social change, and the relationship between them. Because
different empirical and epistemological traditions approach
these concepts quite differently, this variation broadens the
understanding of law and social change and fuels a rich and
expanding literature in the social sciences. This brief article
cannot address all the facets of this rich literature. The long
tradition that examines law as a dependent variable – as a social
institution that changes as society changes – will not be
addressed here (see Friedman and Ladinsky, 1967; Chambliss,
1964). The role of law as an instrument in globalization, in
expansion of capitalist markets, and in international
development is quite important, but more suited to an indepth exploration in its own right (see Globalization: Legal
Aspects; Law and Development). Similarly, state actors can
deploy law to repress resistance and thereby to suppress social
change; although the authors touch on this point, this article
cannot fully explore law’s role in suppression and social control
(see Barkan, 1984; Fernandez, 2008; see Control: Social; Nazi
Law).
Even within these constraints, law as an instrument of social
change is a complex, fascinating, and controversial subject.
William Graham Sumner argued that “legislation cannot make
mores,” because laws that conflict with established social
customs and norms cannot change them and are doomed to fail
(Sumner, 1906: p. 77). Although prominent failures spring to
mind – prohibition is one (Gusfield, 1986) – counterexamples
are also easy to identify. These include the legal and social
changes associated with the civil rights, women’s rights, and
disability rights movements; environmental protection legislation; gay and lesbian rights reforms; and even antismoking
legislation (see Civil Rights Movements; Law and People with
Disabilities; Environmental Movements; Gay and Lesbian
Movements). Even though law sometimes faces backlash and
resistance in the polity (Krieger, 2000; Klarman, 1994;
542
Rosenberg, 1991), in many instances legal change precedes
social change and shifts in public opinion, and these legal
changes affect both social relations and social meaning. How
have those changes come about? Answering this question
requires a clear idea of what is meant by ‘law’ and ‘social
change.’
Defining Law
The concept of ‘law as an instrument of social change’ treats law
as an independent variable that influences or causes changes in
society. Research in this area conceptualizes law in many
different ways. One approach is to focus on formal law, in the
form of statutes, landmark judicial opinions, constitutions, and
the like, to investigate how changes in formal law may bring
about social change (see, e.g., Burstein and Edwards, 1994;
Keck, 2009; Rosenberg, 1991). Much of this literature
focuses on litigation, particularly impact litigation by social
movements, and asks whether litigation is an effective
strategy for bringing about social change (for a brief review,
see Albiston, 2011). There is no consensus on the answer to
this question.
A second approach follows the legal realist tradition (Fisher
et al., 1993), expanding on the conception of ‘law’ to include
the law in practice in courts, bureaucratic settings, and other
settings (Blumberg, 1967; Feeley, 1992; Lipsky, 1980;
Frohman, 1997; Ewick and Silbey, 1998). In this view, law
includes not only the formal language of the statute, but also
how that language is implemented, interpreted, and understood by institutional actors in the state or by individuals in
everyday life. Formal law, in this conception, may have little
social relevance because social and institutional processes
affect how the law is translated into action. In addition,
institutional relationships and incentives may produce
unexpected and unintended consequences for legal reforms.
In an early exemplar of this approach, Blumberg (1967) set
out to examine how the US Supreme Court decisions in
Miranda and Gideon, which provided new procedural
protections and legal representation for criminal defendants,
affected proceedings in American criminal courts. By studying
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these legal changes on the ground, Blumberg discovered that
long-standing relationships among prosecutors, judges, and
defense counsel limited and distorted the impact of these
decisions, pushed defendants into plea bargains, and
prevented formal legal changes from doing much to improve
criminal proceedings in the courts.
A third approach, often labeled the constitutive view,
contends that ‘law,’ or ‘legality,’ is constructed through social
interaction, wherein people mobilize legal concepts and
language outside the courts to negotiate conflict or to interpret
their experiences (Ewick and Silbey, 1998, 2003). The institutionalized legal meanings that emerge from these interactions
become part of a broader cultural repertoire on which individuals may draw to understand and interpret social life,
although legal meanings, once institutionalized, also constrain
future interpretations (see Swidler, 1986; Sewell, 1992). In this
view, law is defined to include customary practices that convey
lawlike meanings, such as placing a chair in a newly shoveled
parking place after a Boston snowstorm to mark ‘personal
property’ even when no legally enforceable formal right exists
(Ewick and Silbey, 1998). Constitutive scholars define law
culturally, referencing the work of early legal anthropologists
such as Malinowski, who conceptualized law “as a body of
binding obligations, . kept in force by reciprocity and
publicity inherent in the structure of society” (Malinowski,
1926: p. 58). This approach resists defining law in terms of
Western institutions like courts and legislatures. It requires
only that people organize their lives in accordance with
implicit rules of behavior that create order within society and
are recognized by everyone. Modern scholars, including those
in the legal pluralist tradition, contend that law in this
broader cultural sense often exists alongside formal legal
rules, and may be more important than formal law in the
ordering of social interactions (Merry, 1988; Fuller, 1994;
Moore, 1973; Macaulay, 1963; Ellickson, 1986).
The way scholars define law can subtly shape their understandings of how law acts to produce social change. Some
studies of law and social change take an instrumental
approach, conceptualizing law as separate from society.
According to this view, law acts upon society by providing
remedies for harm, by punishing wrongdoing, by deterring
unwanted conduct, by shifting moral values, and by providing
a symbol around which to rally. This approach tends to assume
that social actors have discrete policy goals that the law helps
them attain. In contrast, constitutive approaches see social
actors and their intentions as partially defined through legal
concepts and constructs. For those who subscribe to this view,
law is not separate from society but (at least partially) constitutive of it. Law creates and defines the concepts and categories
of everyday life, such as private property, the corporation, the
status of marriage, vagrancy, even disability (Sarat and Kearns,
1993). Comparative and historical studies reveal that
seemingly natural categories such as these vary across legal
regimes and national context (Stone, 1984; Ferree, 2003),
and changes in these definitional legal concepts change
society by redefining social categories and social meaning
(Thompson, 1975). Nevertheless, the constitutive approach
can still be seen as conceptualizing law as an agent of social
change because law influences culture, even though culture
also mediates law’s social impact.
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These definitional debates teach that institutions, actors
on the ground, and widely shared cultural beliefs shape what
law will mean in practice. Attending to these mediating factors
is crucial to understanding law’s effect on social change.
The insight that law can be found not only in the courts
and legislature, but also in bureaucratic organizations like
workplaces and schools, in prosecutorial and police discretionary decisions, and in lawlike social customs and legal
understandings that permeate everyday life, opens up many
methodologies and locations for studying law as an instrument
of social change.
Defining Social Change
Social change, the dependent variable in this inquiry, is similarly tricky to define. A common objective is to measure how
society changes as the result of legal change, but there is no
consensus about what constitutes social change. Social change
resulting from law can include redistributing resources among
social groups, reconfiguring social practices and interaction
(disputing, collective action, and organizations), or reconstituting social meanings (definitions, constructs, values, and
norms). Differences in empirical and epistemological
approaches generate differences in conceptualizing social
change; for example, studies may rely on quantitative or
qualitative measures, and focus on direct or indirect changes
resulting from law.
Direct vs Indirect Effects
Some approaches measure social change through the ‘direct
effects’ of law, such as the material legal remedies ordered in
judicial opinions. For example, Rosenberg (1991) found that
Brown v. Board of Education, the landmark US Supreme Court
decision ordering school desegregation in the American South,
produced very little change in school integration patterns in
the years immediately following the decision. Rosenberg’s
straightforward approach immediately drew criticism that
choices about how to measure social change were highly
subjective, and the choice of measurement heavily influenced
the researcher’s conclusions (Feely, 1993). For example, should
the degree of social change be measured by comparing the
results of litigation with the ideal outcome promised in
the formal law (see, e.g., Rosenberg, 1991)? By comparing the
results of litigation with the goals of the advocates, who
brought the case to the Supreme Court (see, e.g., Feely, 1993)?
By comparing the results of litigation with the status quo, had
the case never been brought (see, e.g., Keck, 2009)? These are
not just technical questions; they are deeply normative
questions about what counts as meaningful social change.
Moreover, direct effects do not exhaust the possible social
changes resulting from law. Rosenberg also considered some
‘secondary’ or ‘indirect’ effects of the Court’s decision. Although
he found no change in broad public opinion after Brown
(Rosenberg, 1991), Rosenberg did find that Brown generated
significant and concerted resistance from Southern supporters
of segregation (Rosenberg, 1991: pp. 84–85), suggesting that
rather than undermining segregation, Brown may have
reinforced Southern commitment to it. Once again, critics
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argued that evaluating these immediate changes did not
exhaust the possible indirect effects of Brown. For example,
the decision may have provided political cover that enabled
legislative and executive action in the decade after Brown. It
may have mobilized social movement protests against Jim
Crow in the 1960s (Polletta, 2000). It may have empowered
federal judges in the south, who had lifetime appointments,
to rule for the plaintiffs in future cases (Klarman, 1994;
McCann, 1993).
In a helpful discussion, Galanter (1983) lays out several ways
in which courts and law might change society indirectly, through
what he calls “general effects.” General effects come in many
forms, from using legal penalties to encourage potential law
breakers to avoid crime, to changing people’s rational, moral,
or cognitive evaluations of a given social behavior. For
example, criminalizing drunk driving stigmatized the practice
and made it much less commonplace. Galanter conceptualizes
this process as “enculturation,” or the widespread shifting or
intensifying of moral evaluations of prohibited conduct such
as discrimination or smoking (see also Berkowitz and Walker,
1967). Galanter also discusses how litigation mobilizes
collective political action by “provid[ing] symbols for rallying
a group, broadcasting awareness of grievance[s] and dramatizing challenge[s] to the status quo” (Galanter, 1983:
pp. 125–126; see also McCann, 1994; Barkan, 1980). In this
view, social change should be understood to include not only
material remedial gains for the litigants of a case, but also
an emerging oppositional consciousness among activists and
the public (Morris and Braine, 2001; Marshall, 2003).
Positivist vs Constitutive Approaches
Another issue in defining social change is the distinction between
positivist versus constitutive conceptions of where to look for,
and how to measure, social change. Positivist accounts tend to
conceptualize social change in terms of discrete, easily measured
dependent variables associated with changes in the law, such
quantifiable measures of shifts in public opinion (Rosenberg,
1991), or changes in material circumstances (Klarman, 1994;
Burstein and Edwards, 1994). Rosenberg’s numerical data
about integration of schools and shifts in public opinion are
an example of this positivist approach. In contrast, constitutive
accounts address how law shapes social relationships and
conceptions of identity in everyday life (McCann, 1996; Engel
and Munger, 2003). For example, the Americans with
Disabilities Act (ADA) may produce more accessible buildings
and Braille signs, changes that positivist accounts would readily
recognize, but it also affects how one understands social
relationships and social identities. The ADA changes
employers’ expectations and attitudes about the resources and
services they should provide to impaired employees, constructs
‘disabled person’ and ‘worker’ as compatible identities, and
changes impaired individuals’ conceptions of themselves away
from ‘spoiled’ identities (Goffman, 1963) toward a normalized
and agentic conception of self (Albiston, 2010; Engel and
Munger, 2003). Here, social change is located in changing
meanings, identities, and expectations about social relationships, and not merely in the measurable number of newly
added wheelchair ramps and Braille signs.
The way social change is conceptualized affects conclusions
about the law’s ability to produce it. Narrow measures of social
change may yield pessimistic conclusions, whereas broader
definitions of social change may produce more optimistic
conclusions. Rosenberg’s focus on the actual school integration
and public opinion immediately following Brown provides
a narrow snapshot of Brown’s potential social impact, and his
resulting assessment that Brown produced little social impact
is therefore unsurprising. Broadening the frame of observation
to include alternative measurements of social change – for
example, expanding the time frame, seeking out the
decision’s other indirect consequences, or incorporating more
qualitative data – may produce different results. Although
Rosenberg’s work has been a lightning rod for criticism, it has
also sparked a rich literature about how to conceptualize
social change. As a result, researchers have begun to explore
multiple methods and locations for studying social change:
quantitative measures of public opinion, changing material
conditions, or organization characteristics; qualitative study
of changing social meanings and the processes through which
legal changes affect social movements and relationships; and
ethnographic studies of changing practices and social
meanings in particular social settings. Triangulating these
measures, and understanding when and why they differ from
one another, define the state of the field on this issue.
Mechanisms through Which Law Brings
about Social Change
With definitional questions out of the way, one asks: What are
the mechanisms through which law might bring about social
change? What are the conditions under which law can change
society, or fail to do so? Assessing how courts, and by extension
law, can change society requires evaluating the resources and
capacities of various audiences as well as the indigenous lawlike conventions in social locations subject to law (Galanter,
1983). Law’s instrumental effects on society are mediated by
the actors who mobilize law, the institutions through which
law is implemented, and the already-existing social order law
seeks to change. Very few laws are self-enforcing; law must be
mobilized to be effective. A victim of discrimination, for
example, is unprotected under civil rights laws until he or she
initiates legal action demanding that his or her rights be
enforced. However, mobilizing the law often requires not
only specialized knowledge about the law (or access to
someone who has it), but also enough independent wealth
to invest the time and money into pursuing a claim –
unrealistic expectations for many if not most citizens.
Furthermore, practical concerns, such as the need to maintain
social relationships, as well as social norms can inhibit
people from taking action to enforce legal rights (Bumiller,
1987; Morgan, 1999; Quinn, 2000). Obstacles like these may
limit law’s effectiveness for social change because courts
generally decide only the legal questions that parties bring to
them. To illustrate, the authors will discuss three foci of the
law and social change literature: the rights debate about the
utility of litigation for social change, law and social change in
organizations, and how social movements mobilize law to
pursue social change.
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The Rights Debate
The Rights Debate refers to the debate among scholars about
the utility of rights litigation as a strategy for social change.
Brown v. Board of Education was a catalyst for studying these
questions because the strategic litigation campaign that let up
to Brown is the paradigmatic example of mobilizing law to
change society. Several scholars tout how the NAACP’s litigation strategy brought about social change even in the absence
of significant political clout (Kluger, 1976). In this view,
underrepresented communities that lack meaningful access to
the polity nevertheless can change social policy through legal
strategies (Zemans, 1983). This view is sometimes labeled
‘liberal legalism’: the idea that constitutional and legal
boundaries constrain politics, and therefore legal claims
provide a powerful mechanism for producing equality and
social change.
Liberal legalism has come under attack from scholars
skeptical of the utility of litigation for social change. For
example, Scheingold (1974) coined the term ‘myth of rights,’
the recognition that rights are not self-executing but must be
mobilized to be effective. Empirical research soon
demonstrated that mobilization was the exception, not the
rule (Miller and Sarat, 1981). From the myth of rights
perspective, rights litigation undermines collective action by
atomizing collective grievances into individual problems and
narrowing grievances to only legally actionable claims
(McCann, 1986; Scheingold, 1974). Empirical research
suggests that litigation fails to produce lasting social change
because courts lack institutional authority to implement
radical reforms (Rosenberg, 1991), legal victories can be
evaded or dismantled without a sustained movement toward
reform (Handler, 1978), and powerful opponents retain
strategic advantages even within a formally neutral legal
system (Galanter, 1974; Albiston, 1999). Rights litigation can
even be counterproductive because it legitimates a legal
system that masks inequality by seeming to provide a remedy
while producing little substantive change (Freeman, 1982,
1998; Tushnet, 1987).
Other scholars responded to this forceful critique of liberal
legalism by advancing a more optimistic view based on the
symbolic and strategic utility of rights litigation. In this view, rights
litigation can change social meaning and give individuals
symbolic recognition and personal dignity (Engel and Munger,
2003; Williams, 1991). Even if legal victories are hard to enforce
and maintain, rights litigation also mobilizes social movements
working outside the legal system to bring about change. For
example, McCann, in his study of the US Equal Pay Act
movement, finds that pay equity litigation crystallized an issue
around which activists mobilized, attracted media attention and
participants to the movement, and changed participants’
conceptions of what might be possible (McCann, 1994). More
instrumentally, the threat of rights litigation can provide
leverage in negotiations and publicly embarrass opponents
(McCann, 1994: pp. 140–153). Some of these mobilizing effects
can occur even when litigation is unsuccessful (McCann, 1994;
NeJaime, 2011). Thus, from this perspective, rights litigation
affects more than legal outcomes because it can motivate
activists to utilize additional avenues of change, such as protest
or legislative advocacy (McCann, 1994; NeJaime, 2011).
545
This debate about rights and social change engendered
a much broader understanding of the mechanisms through
which law brings about social change, and an expansive view
on the locations in which change might occur. Scholars have
moved beyond a narrow focus on court-imposed legal
remedies to consider movement-building effects, the development of oppositional consciousness, cover for legislative and
executive branch actors to make significant changes, media
attention and public agenda setting, the formation of
collective identities, changes in everyday understandings and
social interactions, and even changing perceptions of selfidentity. These outcomes are highly interconnected, often
triggering and reinforcing one another and driving mechanisms for even broader social reform.
A second important insight is that law may not have the
same effects in all social locations. For example, research
focusing on litigation in the courts suggests mixed outcomes.
Some research suggests civil rights plaintiffs are relatively
successful, while other research finds little material change
following landmark court decisions (Rosenberg, 1991; Burstein
and Monaghan, 1986; Burstein, 1991). Other research focused
on everyday locations suggests that even informal rights
mobilization can bring about change or even become a
catalyst for collective action (Albiston, 2005, 2010). Similarly,
some scholars find law positively constructs identity (Engel
and Munger, 2003), whereas others find that claiming rights
imposes too great a cost by requiring claimants to recognize
an injury and identify as a victim (Bumiller, 1987; Quinn,
2000). Although this literature offers no easy conclusions
about law as an instrument of social change, it does highlight
the rich set of mechanisms and locations through which law
may change society.
Organizational and Institutional Resistance
Organizational settings such as schools, prisons, or employers
are major targets of legal reforms, but law does not penetrate
organizations automatically, without cost or distortion. Neoinstitutional organizational theory treats organizations as open
systems that respond to their environment, including law, in
complex ways that tend to produce homogeneity among organizations in the same organizational field (Meyer and Rowan,
1977). Organizations tend to be isomorphic, or similar, in
their structure and practices because they operate under
a shared system of rules – regulations, norms, and cognitive
schemas – derived from a common social environment
(DiMaggio and Powell, 1991). Legal institutions are part of
that environment, and isomorphic processes are thus a
mechanism through which law changes society, or at least
organizations in society. Law facilitates ‘coercive isomorphism’
by imposing similar, sanction-backed legal requirements on
organizations in the same field, such as the tax code rules
governing the structure and activities of nonprofits (DiMaggio
and Powell, 1983: p. 150). Isomorphic processes can also be
‘mimetic,’ when organizations in the same field respond to
ambiguous legal requirements by adopting the practices of
other organizations that they perceive to be successful
(Edelman, 1990). A third mechanism, ‘normative
isomorphism,’ occurs when professionals who have similar
training, such as lawyers or human resource managers, diffuse
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common practices through professional associations and then
bring those practices back to the organizations of which they
are a part (DiMaggio and Powell, 1991). Often legal values
such as due process provide professionals normative guidance
in determining which practices are legitimate and effective
(Edelman, 1990).
Each of these processes can affect whether law will influence
existing organizational processes or become marginalized to
prevent interference with other organizational priorities. For
example, in response to coercive legal rules, organizations may
offer symbolic compliance in the form of policies and structures
visible to actors outside the organization but only loosely
coupled to actual practice within the organization (Edelman,
1992; Orton and Weick, 1990). Internally, organizations may
interpret and implement legal mandates in ways consistent
with managerial objectives but inconsistent with legal norms
and mandates (Edelman, 1992; Albiston, 2005). When legal
requirements are ambiguous, organizations may turn to others
in their field to identify compliance strategies that will confer
legitimacy, even if those strategies were largely determined
by the organizations themselves and not the requirements of
law (Edelman, 1990, 1992). These strategies then diffuse
throughout organizational fields and become institutionalized
as the meaning of compliance (Edelman et al., 2001, 2011).
Normative isomorphism operates through professionals who
learn common practices through professional training and
associations and then bring those practices back to the
organizations in which they work. Through this mechanism,
professionals may help diffuse widespread but inaccurate
myths that drive organizational behavior in a homogenous
but irrational direction. For example, Edelman (1992) found
that human resource professionals exaggerated the risk of
employment discrimination suits compared to their actual
incidence in the courts. Over time, organizational definitions
of what constitutes compliance often find their way into legal
doctrine because judges defer to widespread organizational
practices as evidence of compliance without probing whether
those practices have any tangible effects on life within the
organization (Edelman et al., 2011).
These processes produce organizational structures and practices that respond to law but do little to bring about social
change. Once these practices and norms become institutionalized, they become difficult to dislodge through subsequent legal
change, creating barriers to social change (Kelly, 2010; Albiston,
2005). For example, Kelly (2010) found that, in the United
States, noncompliance with the Family and Medical Leave Act
tracked prior institutionalized practices adopted to comply
with the Pregnancy Discrimination Act, even though the law
had changed to allow fathers as well as mothers to take leave.
Organizational norms and practices that grow up around social
institutions rather than legal mandates can also be difficult to
change. For example, Albiston (2005) found that workers faced
gendered resistance to family leave consistent with the
institutionalized male breadwinner/female homemaker stereotype embodied in standard work schedules, even though
statutory leave rights were gender neutral.
When law does penetrate organizations, typically an
authoritative agent or organizational actor is involved. Kalev
et al. (2006) found, for example, that workplace diversity
programs that designated specific organizational actors to take
responsibility for compliance were most effective at increasing
the proportions of African-Americans and white women in
private sector management. Similarly, Albiston (2005, 2010)
found that workers who knew their rights could mobilize law
as an authoritative discourse to reinterpret the meaning of
taking leave and pressure employers to comply. McCann
(1994) found that union advocates mobilized the threat of
pay equity lawsuits to gain leverage in negotiations with
employers. But organizational actors face competing incentives. Managers rewarded for production and profit rather than
legal compliance may view lawsuits as simply a cost of doing
business, and therefore see noncompliance with legal
mandates as a calculated risk in a complex business environment (Stone, 1975). For this reason, organizations do not
seem to operate as unitary, rational actors when they respond
to legal sanctions. Rather, organizations and organizational
actors manage symbols of compliance and the risk of legal
sanction in complex and nonintuitive ways.
Social Movements and Law
Although studies of law and social movements typically treat
law as the dependent variable – the target of a movement’s
attempts at change – law can also affect how social movements
define their cause, determine their agenda, and choose their
strategies for social change. Perhaps the most fundamental way
in which law influences social movements is by shaping the
social construction of a movement’s grievance, or the collective
‘naming’ of the social problem motivating the movement as
unjust and subject to change (Felstiner et al., 1980). This
process of collectively cultivating ‘oppositional consciousness’
is a crucial step in social movement formation (Piven and
Cloward, 1977; Morris and Braine, 2001; see McAdam, 1982).
Law factors into this process as a set of norms affecting people’s
understandings of their social world. The law’s broad promise
to protect people against ‘discrimination’ and ‘inequality’
provides a framework for perceiving and articulating injustice
(Albiston, 2005; Marshall, 2003) and it encourages the sense
that taking action will make a difference (McCann, 1994:
p. 89). Legal constructs may also facilitate the perception of
social grievances as collective harms. The legal construction of
stigmatized identities such as ‘criminal’ or ‘alien’ can generate a
common political identity among otherwise unassociated
individuals who collectively opposed their legal stigmatization
(Eskridge, 2001). Rights are another legal construct that
movement actors draw on informally to highlight the movement’s collective identity or collective experience of harm
(Leachman, 2013). For example, women’s movements in the
United States have articulated collective rights claims in the
past that emphasize women’s shared vulnerability or common
experience of societal discrimination (Pedriana, 2006;
McCammon et al., 2007: p. 729; Ferree, 2003: p. 335). In these
ways, legal constructions fuel perceptions of injustice and group
identity, crucial elements of movement formation.
The legal mobilization literature also views law as a source of
resources for social movement activists to mobilize, and these
resources affect the movement’s organization, development, and
ability to survive (McCann, 1994). In this respect, legal
mobilization literature parallels the sociological resource
mobilization scholarship, which argues that social movements
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Law as an Instrument of Social Change
arise and succeed when they are able to mobilize resources from
sympathetic elites or from indigenous sources within the
movement (Jenkins, 1983). Rather than focusing on the
material resources that movements marshal, legal mobilization
scholarship examines how law generates symbolic resources
that movement actors use to motivate and rally constituents
(Scheingold, 1974; McCann, 1994; Merry and Stern, 2005;
Silverstein, 1996; Polletta, 2000; Coleman et al., 2005) or to
generate public support for movement goals (Marshall, 2003;
see also Jenness, 1999). Movement rhetoric is often rife with
references to law, including not just rights claims, but also
claims about citizenship, popular sovereignty, and judicial
deference (Leachman, 2013). Such legal framing is often an
effective way of packaging a movement’s demands because the
pervasiveness and cultural legitimacy of law make legal
language resonate with a wide cross section of audiences
(Snow and Benford, 1992; Pedriana, 2006: pp. 1727–1728;
McCammon et al., 2007).
Social movement litigation also helps draw attention to
injustice and put issues on the public agenda by attracting media
coverage. Litigation strategies tend to attract more media
coverage than other political tactics (McCann, 1994: p. 62;
Silverstein, 1996: p. 198), directing public attention toward
a movement’s legal demands (see Levitsky, 2006). Movement
actors can draw on those high-profile litigation campaigns to
encourage donations in fund-raising efforts (Boutcher, 2005;
NeJaime, 2011). Movement litigation also tends to attract the
attention of political elites (Persily et al., 2007: p. 9), whom
activists cultivate as powerful allies (Minkoff, 1999: pp. 1668–
1669; Woods and Barclay, 2008) and use to leverage political
concessions to movement demands (Handler, 1978: p. 92;
Scheingold, 1974; Kolb, 2005). These studies illustrate the
importance of linguistic and media resources both in their
own right and as mediating mechanisms that generate
additional material resources.
Third, the law shapes social movements’ ‘tactical repertoires,’
the set of practices available to activists to accomplish
movement goals (see Ennis, 1987). Law as a set of formal rules
and procedures affects the availability of litigation as part of
movements’ tactical tool kit. Legal changes in the rules of
standing opened up decades of environmental protection
litigation that otherwise would not have been possible (Orren,
1976). Similarly, civil rights statutes provide a legal means to
redress grievances about discrimination in employment and
suppression of the franchise among minority communities
(Albiston and Nielsen, 2007). Formal law may catalyze
extralegal mobilization when a landmark judicial opinion
generates a sense of hope or outrage (Andersen, 2005: p. 44;
see Rosenberg, 1991: pp. 155–156). Litigation strategies may
encourage a movement to undertake other forms of political
action and grassroots organizing (McCann, 1994), for
example, by providing a concrete focus or goal to demand
(Boutcher, 2005; Coleman et al., 2005; McCann, 1994;
Polletta, 2000).
Social movements that employ legal strategies may pay
a price, however. Litigation is expensive, and may drain social
movement resources away from potentially more effective strategies, such as protest or grassroots organizing (Rosenberg, 1991;
Scheingold, 1974; see Hunt, 1990; but see Polletta, 2000).
Although statutory individual rights provide a mechanism for
547
addressing injustices such as discrimination, they tend to
channel grievances into individualized litigation and discourage collective action (McCann, 1986; Scheingold, 1974).
Litigation success, in part because of its visibility, may also
mobilize a countermovement or cause the opposition to
systematically resist legal reforms (Rosenberg, 1991; Klarman,
2005; Luker, 1985).
A price also may be exacted at the level of social meaning,
identity, and the very definition of the cause. Using litigation as
a social movement tactic can deradicalize the message and
objectives of a movement, even if the litigation is successful.
Existing legal rights and rules form discursive opportunity
structures through which social movements may advance their
causes. To access these opportunity structures, movement actors
must shape their claims and demands to fit available legal
templates. Because law is a relatively conservative institution,
fitting claims to law’s discursive opportunity structures risks
taming the movement’s demands and deradicalizing its agenda
(Ferree, 2003). Furthermore, the law’s ability to attract resources
may support lawyers as movement leaders and make litigation
strategies dominant, moving more confrontational strategies
such as protest to the margin (see Haines, 1984). In turn,
lawyers as elite actors can reshape movement messages and
goals even when the broader movement’s participants have
different goals (Bell, 1976; Levitsky, 2006).
When identities are legally protected, litigation tactics tend to
shape and define the identities around which movements
mobilize, even if those legally expedient identities are not the
ones activists or individuals would choose outside of law.
Bumiller (1987) found, for example, that individuals who
believed they had been discriminated against were reluctant to
mobilize legal claims because they resisted taking on a victim
identity required by discrimination law. Some gay and lesbian
activists note how the pursuit of same-sex marriage has
required plaintiffs to conform to a near-heteronormative
family status to obtain legal rights, even though some
movement activists would prefer to broaden the definition of
who counts as family (Polikoff, 2008). Incremental social
change, in this view, comes at the expense of more radical and
far-reaching changes in how one understands identity and
social relationships. Thus, when evaluating law as an
instrument of social change, it is critical to consider which
demands may have been marginalized or abandoned because
a social movement relied on legal tactics rather than other
mechanisms of social change (Albiston, 2011).
Conclusion
Sociolegal literature provides no definitive conclusions about
the law’s role as an instrument of social change, but it has
provided researchers with guidelines for constructing a more
nuanced understanding of the relationship between law and
social change. The literature has moved beyond questions of
whether law matters for social change toward investigating the
ways in which, and the mechanisms through which, law influences social change. The research also has moved toward identifying multiple forms of social change, including material and
symbolic changes, as well as direct and indirect changes, and
toward theorizing the relationship among these forms.
International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 542–549
Author's personal copy
548
Law as an Instrument of Social Change
Scholarship addresses the law’s ability to generate social change
in disparate social contexts and the various cultural and institutional factors that shape what law will mean in practice.
These questions involve looking at the relationships among
legal meanings, the social practices structured around those
meanings, and the institutionalization of legal understandings
that can promote radical change or retrenchment. The productive empirical work investigating these processes provides
important theoretical frameworks for understanding how
systematic factors may enhance or constrain the potential for
social change through law.
See also: Civil Liberties and Human Rights; Civil Rights
Movements; Civil Rights; Gay and Lesbian Movements; Human
Rights, History of; Human Rights: Legal Aspects; Law,
Mobilization of; Media and Social Movements; Movements,
Social; Rights: Legal Aspects; Social Changes: Models; Social
Movements and Political Violence; Social Movements,
Geography of; Social Movements, History of: General; Social
Movements: A Social Psychological Perspective.
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