Legal Methods Project LAW AND SOCIAL CHANGE Mohammed Ziyad R.v 610
Acknowledgment
I have taken efforts in this project. Firstofall I would like to thank almighty god for his blessings to help me complete the project. However, it would not hav e been possible without the kind support and help of many individuals and knowle dge sites. I would like to extend my sincere thanks to all of them. I am highly indebted to Abhayachandran sir for his guidance and constant supervi sion as well as for providing necessary information regarding the project & also for their support in completing the project. I would like to express my gratitude towards my parents for their kind co-operat ion and encouragement which help me in completion of this project.
My thanks and appreciations also go to my colleague in developing the project an d people who have willingly helped me out with their abilities.
Introduction: The Need for Social Change in India. The social evils and superstitions that had crept in the society over the centur ies made social reforms imperative for the development of the society and the ma sses. In the 19th century, the newly educated persons increasingly revolted agai nst rigid social conventions and outdated customs. They could no longer tolerate irrational and de-humanising social practices. Moreover, the backward features of Indian society, such as the caste system or inequality of the sexes had relig ious sanctions in the past. Therefore, it was necessary to reform religious prac tices as well. The condition of women was pathetic. The various religions practised in India as well as the personal laws based on them consigned women to a status inferior to that of men. Polygamy, Purdah system, sort, ban on widow remarriage, no educati on for female child, female infanticide, child marriages were some of the evils that had vice—like grip over the society. It thus became necessary to take the wom en out of this degraded position and help her to realise her true potential. The problems of female feoticide, sexual harassment at workplace, education are so diverse that they need sound financial backing, all these social evils centre ar ound the petty and marginalized conditions of women in the society. We need to c ombat evils like the glorification of sati places as pilgrimages, dowry system, girl feoticide, decline in sex ratio, harassment of women etc. This can be achie ved by educating the woman and making her financially independent. Rajasthan has been in the news recently and for all the wrong reasons. First, it was tigers disappearing, then it was a guidebook that referred to sati-sites as tourist destinations, and then it was child marriages. The legal age for marriage in India is 18 years for women and 21 years for men. Any marriage of a person younger than this is banned in India under the Child Ma rriage Prevention Act of 1929. But child marriages still take place in India; pa
rticularly around the Hindu holy day of Akshya Tritiya (also knows as Akha Teej) . Yet, it is a religious tradition in many places in India and therefore, diffic ult to change. People feel that traditions are valuable and should not be change d, especially religious traditions, since changing these would amount to asking people not to practise their religion, a fundamental principle of democracy. Dowry in India, the practice of endowing the groom by the bride's family, is a t radition, which has changed its intentions from giving a gift to demanding for a stronomical amounts which has bankrupted lots of families and made many girls ei ther to commit suicide or being murdered. Bride-price, which is the endowment to the bride’s clan, which is widely practiced in Papua New Guinea, too, has changed
from the earlier intentions thereby making it a business. Moral and ethical concerns of the society weigh a great deal with those in publi c life as their behavior is keenly watched by the people. At concerned quarters, views are being expressed over the general decline of values in public life. Th ere is a general feeling that all is not well with our socio-political system wh ich is functioning under a great strain. In such a situation, the representative s of the people have to set high standards of behaviour in public life. Members of Parliament have not only to represent the society but have also to lead it. T herefore, they have to function as the role models and this naturally casts on t hem a heavy responsibility. Our freedom fighters and national leaders had set hi gh ethical and moral standards in public life and they followed those principles scrupulously. This tendency, it is painfully observed, is now on a decline. The re has been a wide and critical collapse of moral values in all walks of life an d a perilous decline in the human dimension in global, political and trade relat ions and national economy. Development has culminated in widespread discontent, corruption, unemployment, violence, communal and racial discord and much human d istress, destruction and disillusionment. Barring this, the caste system, which had its roots in religion, is another curs e in society. Though not so rigid in urban areas, it is still practised in rural areas with the same zeal. Caste determines man s marriage, social circle and pr ofession. The untouchables suffer from numerous disabilities and restrictions. H is dresses, food, place of residence, all are degraded. Not only is it humiliati ng and inhuman and based on anti-democratic principle of inequality by birth, it is a cause of social disintegration. Thus, it has to be fought against. Another problem that our society faces is the rapid criminalisation of the polit y, that could be the result of the fact that criminals have understood the mecha nics of the electoral process and have themselves become contenders for power. E arlier, politicians patronised criminals and provided them protection from the l aw-enforcement agencies in exchange for the use of their muscle power during ele ctions. And now it is the opposite-with the criminals themselves taking over the reigns of power and patronising the« politicians and their parties. Of late, ther e is an increasing exposure of the criminals in the! Governing system of the cou ntry, to the extent that it alienates the common people for power. The criminali sation of politics is a reflection of, and a factor that aggravates the crisis o f the political system. Only a qualitative change that transforms the system fro m its very roots can resolve this crisis in favour of the people. In the rural economy, both unemployment and under employment exist side by side and the distinction between them is by no means sharp. In the rural areas, incre asing population implies an increasing pressure on land. This pressure on land h as resulted in an increase in the number of agriculturists, and this has largely contributed to the problem of unutilised labour or disguised unemployment in th e agricultural sector. A large labour force accumulates around primary occupatio ns. A general in elasticity of occupational structure prevents any large movemen t away from these in periods of slack demand. This leads to seasonal unemploymen t also. In short, the major feature of rural unemployment is the existence of un employment in the form of disguised unemployment and seasonal unemployment rathe r than open unemployment that exists in the urban areas. Idol worship, superstitions, Brahmanical or clergy superiority, all had to be fo ught against, for all the social practices finding sanction in religion. Yet a l ot needs to be done to eradicate from the shreds a number of social evils still
haunting our society.
Law In our times state is the sole upholder of social control and conformity, and th e principal means at its disposal is law. Since law is enforced by State, force is present. Roscoe Pound explains law as social control through systematic appli cation of the force of a politically organized society. In a lighter vein Bertra nd Russell remarks that the good behaviour of even the most exemplary citizen ow es much to the existence of a police force. Much earlier, Durkheim was the first sociologist to show that law is the means to enforce the collective conscience or collectivity which makes society an entity by itself, almost God. Law is closely associated with morality and religion. Legislation always rests o n social doctrines and ideals which have been derived from religion and morality , and judicial decisions always rely on the fundamental moral ideas of society e xpressed as reason, natural law, natural justice, and equality and, in more rece nt times, as public policy or public interest litigation as in India.Law, theref ore, rests upon moral sentiments derived from religion and is influenced by inst itutional arrangements of society; and it brings about, by its precision and san ction, such a degree of certainty in human behaviour that cannot be attained thr ough other types of social control. On occasions, law enforces social attitudes and contracts which initially were those of a small minority of reformers. In Ru ssia, law has established new morals of behaviour which were originally the aspi rations of small group of revolutionaries. In democratic societies, too, social reformers played an important part in influencing social behaviour, later on app roved by law. One more characteristic of law is the changed outlook towards punishment. As soc ieties are becoming more confident of their powers to maintain order as a result of rising material standards, declining class differences and spread of educati on and extension of rights, more and more stress is being laid on the willing co operation of people with state and its law. This development has been further au gmented by studies in sociology and psychology which have shown that crimes are projection of society rather than the results of individual violation. That is w hy the new discipline, called criminology, has developed as an applied branch of sociology. Lastly, law as it is today, does not primarily deal with individuals alone. Very often it regulates conflicts between individuals and groups as well as between individuals and large organisations whether public or private. The role of prope rty in social life has been modified by the changes that have accrued in the rel ations between the employer and the worker through the abolition of the crime of conspiracy, the recognition of collective bargaining, social security and direc t limitations on the use of private property, all through legislation. The law as it exists today partly contributes to social change. As already remar ked above, the change in the role of property has led to a great social change i n man s social behavior. Secondly, individual initiative is no longer on the pre mium in modern societies. Mammoth organizations and corporations undertake the v ast socio-economic activities of modern times. Taking into account these changes , American sociologists have introduced expressions such as the Other-directed man and the organization man. As the social complex of modern communities is tr ansforming itself, law, too, is keeping pace with them in making the interaction between the other direct man and the mammoth organizations or the corporations to be smooth and efficient. In developing societies the role of law in contributing to social change is much
more. In all countries there is a continuous rationalization of the existing la w by modification, introduction of foreign codes, and systematic legislation in relation to customary and traditional law. The Indian Constitution is an embodim ent of such monumental change. The philosophy governing social changes, implied as well as explicitly stated in the Constitution, is governed by the principles stated in the Preamble which are entirely secular and which bear the imprint of the leading minds of the world like the 18th century French philosophers, libera l thinkers of the 19th century, the Fabian socialists of the 20th century, and i ndividual thinkers like Thoreau, Tolstoy and Mahatma Gandhi. Although law has an important role in maintaining social order or conformity, th ere are a few weaknesses in the existing law. It no longer has charismatic quali ties which it earlier had, although our courts resound with expressions like the Majesty and the sanctity of law, your Lordships and so on. Second, people do no t feel collectively and directly involved when any law is violated. It is more i n the form of keeping each individual in his limits. Lastly, law does not enable the criminal to be finally reconciled to society. Modern Law, as it has develop ed, is increasingly being separated from custom and religion. It is only when le gislation and litigation, the two processes concerned with law, are harmonized t hat they take their appropriate place in social control. Law and Social Change Law is rooted in social institutions, in socio-economic network. These social fa ctors influence the course of law or the direction of legal change. This is the outcome of personal and social interactions which are variable and often unpredi ctable. At the same time, law may itself change social norms in various ways. For example, in free India, legal abolition of untouchability is an attempt to c hange a long-standing social norm. Yet it has not succeeded much due to inadequa te social support. Thus there is a reciprocal relationship between law and socie ty. This article will discuss about the law and its impact in social change with spe cial reference from Indian society. II. DEFINITION Social change is a complex and multi faceted phenomenon. Since change in one sph ere affects other spheres of social life, it desirable to take an integrated vie w of the processes of social change. This will facilitate a clear understanding of the role of various factors which have a collective impact on this process. W e can then appreciate and understand the various changes taking place and able t o identify the correlation and causative effects of the various underlying these changes The term ‘social change’ is also used to indicate the changes that take place in hum an interactions and inter-relations. Society is a ‘web-relationship’ and social chan ge obviously means a change in the system of social relationship where a social relationship is understood n terms of social processes and social interactions a nd social organizations. Thus, the term, ‘social change’ is used to indicate desirable variations in social i nstitution, social processes and social organization. It includes alterations in the structure and the functions of the society. III. CORRELATION BETWEEN LAW AND SOCIAL CHANGE Closer analysis of the role of law vis-à-vis social change leads us to distinguish between the direct and the indirect aspects of the role of law. 1. Law Law play plays s an impo import rtan ant t indi indire rect ct role role in rega regard rd to soci social al chan change ge by shap shapi i
ng have a direct impact on society. For example: A law setting up a compulsory e ducational system. 2. On the the othe other r hand hand, , law law inte intera ract cts s in in many many case cases s indi indire rect ctly ly with with basi basic c soc soc ial institutions in a manner constituting a direct relationship between law and social change. For example: A law designed to prohibit polygamy. Law plays an agent of modernization and social change. It is also as and indicat or of the nature of societal complexity and its attendant problems of integratio n. Further, the reinforcement of our belief in the age old panchayat system, the ab olition of the abhorables practices of untouchability, child marriage, sati dowr y, etc are typical illustrations of social change being brought about in the cou ntry through law. Law is an effective medium or agency, instrumental in bringing about social chan ge in the country or in any region in particular. Therefore, we rejuvenate our b elief that law has been pivotal in introducing changes in the societal structure and relationships and continues to be so. IV. ROLE OF LEGISLATION AND SUPREME COURT OF INDIA A. Legislation An important instrument of change the state employs in the legislative weapon. T o start with, it gives expression to the goal towards which the state is moving. India is an outstanding example of the employment of the legislative measures t o initiate change. The promulgation of Indian Constitution was the first step in this direction. Institutionalized inequality was an accepted principle of Indian caste system; e qual justice under equal circumstances was unknown under the traditional Indian set up; equality of opportunity was meaningless under a system where education a nd occupation was caste-based. A variety of social legislations are being introduced in independent India to br ing about change. They cover legislations for the welfare of the downtrodden in the agrarian sector, to emancipate women, to eradicate untouchability, to facili tate the social and economic development of the tribunal population, etc. All th ese legislations are slowly but surely making their impact on the Indian social fabric. B. Supreme Court As of today, the decisions of the Court are not just being tested on the touch s tone of social justice, but indeed they are being cited of as precursors to ‘socia l rights’. The Court has pro-actively and vigorously taken up to cause of social j ustice and has gone to the extent of articulating newer social rights such as th e right to food, right to health, right to education. Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active role in social change of the languishing masses. It certainly has act ed as a catalyst in the process of social transformation of people wherein the d ilution of caste inequalities, protective measures for the weak and vulnerable s ections, providing for the dignified existence of those living under unwholesome conditions, etc, are the illustrious examples in this regards The Role of Legislation in bringing about social change . Laws : Laws act as an instrument of socio economic and political change in socie ty , Since laws are backed by state and have a coercive nature , individuals con
form to them . 1. Laws Laws ensu ensure re a cert certai ain n degr degree ee of unif unifor ormi mity ty of beha behavi vior or amon among g the the dive divers rse e groups of individuals and their varied cultural and behavioral patterns . 2. Laws Laws also also seek seek to miti mitiga gate te soci social al evil evils s and and to upli uplift ft the the lowe lower r sect sectio ions ns of society . In India , laws protect the interests of the weaker sections of so ciety , particularly of those belonging to the scheduled castes , scheduled trib es and other backward castes . Laws also protect the interests of women , childr en and other disadvantaged sections of the society isonment 3. Law Law perf perfor orms ms refa refacm cmat atio ions ns func functi tion on for for the the soci societ ety y . Laws Laws try try to alte alter r a ge old customs which are considered inimical to social stability and progress . Thus, in 1829, a law was passed banning sati . A century later , another law fix ed the minimum age for marriage for boys and girls . Still later another law has banned the practice of giving and taking of dowry . On a different note , Artic le 17 of the Indian Constitution has abolished untouchablity and today the pract ice of untouchablity is an offence punishable by imprisonment The role of law as an instrument of social change finds full expression where la w comes in confrontation with social customs . However laws alone cannot bring a bout social transformation . They need to be adequately supported by the structu re of society and by the people at large too. Public opinion is a stronger mean s of change . Laws alone not change traditions and belief systems . This explains why despite having laws prohibiting evils l ike sati , child marriage , dowry and untouchbility , They still persist in the country . Despite these limitations , laws still remai n an effective means of bringing about socio –economic and political transformatio n in society . Sociolgists have refferd to these functions of law as: ( 1) an indicator of change ( 2) an initiator of change ( 3) an integrator of change
V. LAW AND SOCIAL CHANGE IN INDIA Social change involves an alteration of society; its economic structure, values and beliefs, and its economic, political and social dimensions also undergo modi fication. However, social change does not affect all aspects of society in the s ame manner. While much of social change is brought about by material changes such as technol ogy, new patterns of production, etc, other conditions are also necessary. For e xample, like we have discussed it before, legal prohibition of untouchability in free India has not succeeded because of inadequate social support. Nonetheless, when law cannot bring about change without social support, it still can create certain preconditions for social change. Moreover, after independence, the Constitution of India provided far-reaching gu idelines for change. Its directive principle suggested a blue-print for a new na tion. The derecognition of caste-system, equality before the law, and equal oppo rtunities for all in economic, political and social spheres were some of the hig h points of the Indian Constitution. Some areas where law has given the influence for social change are: 1. Area of agrarian reform policy and legislation; 2.
Area Area of impl implem emen enta tati tion on of unto untouc ucha habi bili lity ty abol abolit itio ion n law; law;
3. The The norm normat ativ ive e aspe aspect cts s of empl employ oyme ment nt and and educ educat atio iona nal l rese reserv rvat atio ion n for for the the scheduled castes and scheduled tribes under the Constitution;
4.
The al allied fi field of of ab abolition of of bo bonded la labour;
5. The The prob proble lem m of subs substa tant ntiv ive e impa impact ct of chan change ges s in the the fami family ly law law marr marria iage ge, , equal rights of women to inheritance and dowry. The law through legislative or administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions stat ues or precedents, increasingly not only articulates but sets the course for maj or social changes. The law is one of many responses to such change. In certain respects it is the m ost important, since it represents the authority of the state, and its sanctioni ng power. The legal response to a given social or technological problem is there fore in itself a major social action which may aggravate a given problem or alle viate and help to solve it.
Social changes as causes of legal changes In a broad theoretical framework, social change has been slow enough to make cus tom the principal source of law. Law could respond to social change over decades or even centuries. Today the tempo of social change accelerated to a point wher e today’s assumptions may not be valid even in a few years from now. The emergence of new risks to the individual as a result of the decrease of the various famil y functions, including the protective function, has led to the creation of legal innovations to protect the individuals in modern society. Eg provisions of work ers compensation, unemployment insurance, old-age pensions. Many sociologists an d legal scholars assert on the basis of a large amount of accumulated data that technology is one of the great moving forces for change in law in three ways: (r ead page 335 paragraph 3). The computer and easy access to cyberspace, especiall y internet, also have inspired legislation on both the federal and the state lev els to safeguard privacy, protects against abuse of credit information and compu ter crime. Change in law may be induced by a voluntary and gradual shift in comm unity values and attitudes. [eg. People may think that poverty is bad, and laws should be created to reduce it in some way.] Alternations in social conditions, technology knowledge values, and attitudes then may induce legal change. in such cases law is reactive and follows social change. However, changes in law are on ly one of many responses to social change. Additionally, laws can be considered both as reactive and proactive in social change.
Law as an instrument of social change The conversion of Rome from republic to empire could not have been accomplished except by means of explicit legal decree buttressed by the doctrine of imperial sovereignty. Law, far from being a reflection of social reality, is a powerful m eans of accomplishing reality – that is, of fashioning it or making it. • The The Sov Sovie iet t Uni Union on succ succee eede ded d in in mak makin ing g eno enorm rmou ous s cha chang nges es in soci societ ety y by by the the use use of of l aw. • In Spai Spain n law law was was used used to refo reform rm agra agrari rian an labo labor r and and empl employ oyme ment nt rela relati tion ons. s. • Chin China a als also o man manag aged ed to mode modera rate te thro throug ugh h law law its its pop popul ulat atio ion n gro growt wth h and and as a res resul ult t devote more of its resources to economic development and modernization.
The law, through legislative and administrative responses to new social conditio ns and ideas, as well as through judicial re-interpretations of constitutions, s tatutes or precedents, increasingly not only articulates but sets the course for major social change. Attempted social change, through law, is a basic trait of the modern world. Many authors consider law as a desirable necessary and highly efficient means of inducing change, preferable to other instruments of change. I n present-day societies, the role of law in social change is of more than theore tical interest. In many areas of life such as education, race relations, housing , transportation, energy utilization, protection of the environment, and crime p revention, the law and litigation are important instruments of change. Law plays an importantindirect role in social change by shaping various social institutio ns, which in turn have a direct impact on society. [eg. Mandatory school attenda nce upgraded the quality of the labor force, which in turn played a direct role in social change by contributing to an increased rate of industrialization. The law interacts in many cases directly with basic social institutions, constitutin g a direct relationship between law and social change]. Social change through li tigation has always been an important feature in the US. Whether the change prod uced by such action is considered ‘constructive’ or ‘destructive,’ the fact remains that law can be a highly effective device for producing social change. The efficacy of Law as an Instrument of Social Change As an instrument of social change, law entails two interrelated processes: the i nstitutionalization and the internalization of patterns of behavior. • Inst Instit itut utio iona nali liza zati tion on of a pat patte tern rn of beha behavi vior or refe refers rs to the the est estab abli lish shme ment nt of a n orm with provisions for its enforcement (such asdesegregation of public schools) . • Inte Intern rnal aliz izat atio ion n of of a patt patter ern n of of beh behav avio ior r mea means ns the the inc incor orpo pora rati tion on of the the val value ue or values implicit in a law (eg. Integrated public schools are ‘good’). The extent to which law can provide an effective impetus for social change varie s according to the conditions present in a particular situation. Evan suggests t hat a law is likely to be successful to induce change if it meets the following seven conditions: 1. Law Law mus must t ema emana nate te from from an auth author orit itat ativ ive e and and pres presti tigi giou ous s sou sourc rce e 2. Law Law must must intr introd oduc uce e its its rati ration onal ale e in in term terms s that that are are unde unders rsta tand ndab able le and and co mpatible with existing values 3. Advo Advoca cate tes s of the the chan change ge shou should ld make make refe refere renc nce e to othe other r comm commun unit itie ies s or co untries with which the population identifies and where the law is already in eff ect 4. Enfo Enforc rcem emen ent t of of the the law law mus must t be be aim aimed ed at maki making ng the the cha chang nge e in in a rel relat ativ ivel el y short time 5. Thos Those e enfo enforc rcin ing g the the law law must must them themse selv lves es be very very much much comm commit itte ted d to the the ch ange intended by the law 6. The The inst instru rume ment ntat atio ion n of the the law law shou should ld incl includ ude e posi positi tive ve as well well as nega negati ti ve sanctions 7. The The enfo enforc rcem emen ent t of the the law law shou should ld be reas reason onab able le, , not not only only in the the sanc sancti tio o ns used but also in the protection of the rights of those who stand to lose by v iolation RESISTANCE TO CHANGE In most cases laws face resistance by members of society who find different reas ons for their resistance such as their values, customs, or even the cost of chan ge and sometimes because people feel threatened by the change. Knowing the condi tions of change helps in the implementation of laws. The factors that are a barr ier to change are separated into social, psychological, cultural, and economic f actors and all are interdependent. Social factors Vested interests Change is opposed by individuals or groups who fear they will lose their power, prestige or wealth when the new law is introduced. Examples are vested interests of residents in a community who oppose zoning regulations or interstate highway
s, vested interests of faculty in getting research money, etc. Also, the efforts of the Soviet Union to assert independence of Moslem women against males were o pposed by bands of males who murdered women that obeyed the law. Social class In highly stratified societies, people of upper classes oppose changes because t hey fear losing privileges over the lower classes. Ex: inPakistan people of diff erent classes can go to the same schools, draw water from the same well etc. gen erally working class people supports changes while the lower and upper classes r esist changes. Ideological resistance It is quite widespread. Example: resistance of Catholic Church to laws and legis lation on the removal of some restrictions on abortion and birth control. In 198 2 a pill that ended pregnancy within weeks was developed in France. By 1990s it was available in France, Sweden, and Britain. But protests of antiabortionists a nd threats of US citizens no to use products of the company that sold the pill s topped its spread. From 2000 this pill has been approved in US. Usually religiou s assumptions, interpretations on power, security are not open to change. Organized Opposition Sometimes individual resistance to change can be organized and channeled into so cial movements or lobbyists. Ex: John Birch Society has opposed acceptance and l egal protection of pornography. The lack of opposition can be fatal as the examp le of Jews who didn’t organize resistance. Psychological factors Habit Habits are behaviors that people are accustomed to and are comfortable with and as such habits resist change. Customs are collective habits of a society and try ing to change them requires a reorientation of values and behaviors of society. Ex; introducing the metric systemin US was resisted. Motivation Is very important in accepting change through law. Some motivations are related to culture and may allow change and some focus on preserving status quo. Some mo tivations are universal such as the desire for prestige and economic gain but if those are threatened, change is resisted. Ignorance Is often the cause of prejudice and is related to the fear of the new. Ex: many individuals assumed that citrus fruit caused problems to the digestive tract. On ce it was proved otherwise, the resistance to citrus fruit faded. Selective perception Even though law is intended to be universal, the perception of people on law is selective and varies with economic, cultural anddemographic variables and also w ith attitudes, needs and values of people. A change is accepted easily if it is related to the interests of people and supports their values. Ex: in India law p rovides distribution of family-planning info and supplies. But many villagers re fuse usingcontraceptives because they think the law aim to stop birth completely . The laws should be formulated clearly so there in misunderstanding by people. Moral development The obedience to law relies highly on a sense of obligation. Moral codes are ano ther factor. Lawrence Kohlberg defines 6 stages of moral development: 1. Obed Obedie ienc nce e and and puni punish shme ment nt - invo involv lves es resp respec ect t to supe superi rior or auth author orit itie ies s and and avoidance of troublepremoral stage 2. Inst Instru rume ment ntal al rela relati tivi vism sm - peo peopl ple e try try to sati satisf sfy y nee needs ds by nego negoti tiat atin ing g wit wit h otherspremoral stage 3. Pers Person onal al conc concor orda danc nce e - peop people le adhe adhere re to prev prevai aili ling ng norm norms s and and comp comply ly with with the majority 4. Law Law and and orde order r - peo peopl ple e res respe pect ct thos those e in in aut autho hori rity ty and and foc focus us on doin doing g the the ir duty 5. Soci Social al cont contra ract ct - cont contra ract cts s are are used used for for comm commit itme ment nts s and and peop people le resp respec ect t them 6. Indi Indivi vidu dual al prin princi cipl ples es - incl includ ude e cons consci cien ence ce, , mutu mutual al trus trust t and and resp respec ect t as principles of behavior
If this theory is true, the law is limited on the stage of moral development of citizens which should be considered depending on their social class. If the majo rity is stages 1 and 2, institutional enforcement is used to maintain order. In stages 3 and 4 law is more limited and in 5 and 6 even more limited. But this de pends on the conformity of law with beliefs and values of society. Cultural factors Fatalism In many cultures people believe they have no control over their lives and God or evil spirit causes everything. They don’t use fertilizersbecause they believe God is responsible for their success. They resist change because it is human-enacte d and not from divine origin. Ethnocentrism Some people consider themselves “superior” with the only rights ways of thinking, et c. This causes ignorance towards others’ ideas and methods and resistance to chang e. Ex; whites that consider themselves superior have hindered integration of oth er races in many institutions. Incompatibility When the proposed law and change is contradictory to the system of the target gr oup change is hardly implemented. Ex: in Israel the law of reducing legal marria ge age for girls to 17 was not applied by Jews and Arabs that allow marriage eve n at lower ages. Superstition Which is a belief not substantiated by facts, can hinder change. Ex: In some pla ces a baby is not given water for many months after birth because it is believed water’s cold nature upsets the baby’s heat equilibrium. In Zimbabwe women do not ea t eggs because they are believed to cause infertility. Economic factors Limited economic resources and high costs are often a barrier to change. Change through law is very costly because of the instrumentation of legislation, admini strative ruling or court decisions that are all costly. For ex. federal regulati ons have increased the costs of institutions of higher education thus, resist fu rther changes and require modification of current regulations. The distribution of costs and benefits also effects resistance. If they are equally distributed t here is little resistance but if benefits are low and costs are concentrated, re sistance is high. Generally economic factors are decisive in affecting resistance to change. No ma tter how much somebody wants something if economic sacrifice is too great or the y can’t afford it, change doesn’t occur.
Hindu Marriage Act The Hindu Marriage Act was established in 1955 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include t he Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), and the Hindu Adoptions and Maintenance Act (1956). All of these acts were put f orth under the leadership of Jawaharlal Nehru, and were meant to modernize the t hen current Hindu legal tradition. • As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by parliament in 1955. Its purpose was to regulate personal life among Hindus, especially the ir institution of marriage, its validity, conditions for in-validity, and applic ability. The bill was viewed as conservative, but it was also modern in the sense that it recognizes the modern offshoots of the Hindu religion (Jains, Buddhists) as spe cified in Article 44 of the Indian Constitution. According to the tenets of Hinduism, marriage is a sacred relationship, a sacram ent, and a divine covenant meant for procreation and continuation of family line age. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this trad
itional framework reference, marriage is undoubtedly the most important transiti onal point in a Hindu’s life and the most important of all the Hindu samskaras, or life-cycle rituals. The conditions of marriage are specified in Section 5 as follows: the Act expres sively prohibits polygamy by stipulating that a Hindu marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage ; the age of eligibility is fixed at 21 years of age for bridegrooms and 18 year s of age for brides; and finally, the Act specifically prevents marriages betwee n prohibited degrees of relationships. Section 6 of the Hindu Marriage Act specifies the guardianship for marriage. Whe rever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent are the following: the father; th e mother; the paternal grandfather; the paternal grandmother; the brother by ful l blood; the brother by half blood; etc. The Guardianship For Marriage was repea led in 1978 after the Child Marriage Restraint Amendment was passed. Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of mar riage. Hindu marriage may be solemnized in accordance with the customary rites a nd ceremonies of either party. Such rites and rituals include the Saptapadi—the ta king of seven steps by the bridegroom and the bride jointly before the sacred fi re. The marriage becomes complete and binding when the seventh step is taken. Registration of Hindu marriages. (1) For the purpose of facilitating the proof o f Hindu marriages, the State Government may make rules providing that the partie s to any of such marriage may have the particulars relating to their marriage en tered in such manner and subject to such conditions as may be prescribed in a Hi ndu Marriage Register kept for the purpose. (2) Notwithstanding any thing contai ned in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars r eferred to in sub-section (1) shall be compulsory in the State or in any part th ereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this be half shall be punishable with fine which may extend to twenty-five rupees. (3) A ll rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made. Divorce can be sought by husband or wife on certain grounds, including: adultery , cruelty, desertion for two years, religious conversion, mental abnormality, ve nereal disease, and leprosy. A wife can also present a petition for the dissolut ion of marriage on if the husband marries again after the commencement of his fi rst marriage or if the husband has been guilty of rape, sodomy, or bestiality. I t does permit one spouse to separate if he/she is unhappy, despite the fact that marriage is held to be divine, if he/she can prove or identify the circumstance s that have made the union untenable. Newly married couples cannot file a petiti on for divorce within one year of marriage. As of late, there has been a realization that Hindu marriage, as a central eleme nt of society, cannot be subjected to legislative intervention; this realization has led to legislative inaction and a refusal by the state to get involved in t he regulation of Hindu marriage. Derrett predicted in his later writings that de spite some evidence of modernization, the dominant view in Hindu society for the foreseeable future would remain that marriage is a form of social obligation. Conclusion The law through legislative or administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions stat ues or precedents, increasingly not only articulates but sets the course for maj or social changes. The law is one of many responses to such change. In certain respects it is the m ost important, since it represents the authority of the state, and its sanctioni ng power. The legal response to a given social or technological problem is there fore in itself a major social action which may aggravate a given problem or alle viate and help to solve it. Bibliography
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