Wednesday, December 20, 2006

Distinguishing law and changes in attitudes

Changes in behavior are not the only example of social change - there are also shifts in social and cultural beliefs and practices. Although such shifts can create pressure for law reform, like behavioral change, they tend to be more gradual. Attitudes towards law reform of this type are also different. The shifts prompted by the women’s and civil rights movements are reflected in the repeal of discriminatory laws and the enactment of laws prohibiting certain forms of discrimination. However, unlike technological change, reformers rarely argued that the law had ceased to be good law because of social change. Instead, they usually argued that the law was always bad and all that has changed is the social awareness of how bad it was. For example, few would argue today that the legal subordination of African-Americans was ever justified. Legal responses to technological change are not perceived in the same way. Few would suggest that laws regulating railroads were desirable before any track was laid or that uncertainties regarding the identification of the mother of a child conceived in vitro needed to be resolved before the separation of gestational and genetic motherhood became a technical possibility. Therefore, although changes in belief, like technological changes, generate reasons to change the law, the reasons are of a different type. Changes in the law are not justified on the basis of the fact of social change, but rather on the basis of general principles such as justice and fairness.


Blogger Frank said...

Yes, I completely agree that facts and values are inextricably intertwined here.

You might be interested in the administrative law discussion of trans-scientific facts. As Wendy Wagner (in the article The Science Charade) suggests, in many cases policymakers want to mask what is really a policy/value judgment as the inevitable response to "changed facts." In fact, what's really at stake are "trans-scientific facts," accounts of the world that are at once description and judgment.

12/22/2006 8:46 AM  

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