Society And Legal Change 2Nd Ed

Chapter 11: Some Conclusions

Chapter 11 SOME CONCLUSIONS The general argument of this book has been, it wiII be recalled, not that private law fails to mirror the needs and desires of society or its ruling elite, but that to a very considerable extent law is out of step with such needs and desires.1 This divergence, it has been maintained, is so great that none of the theories of the development of law or the relationship between law and society are acceptable even though each, or at least some, may contain much accurate observation. If the argument is correct various conclusions follow. The first conclusion must simply be that there does not exist a close, inherent, necessary relationship between existing rules of law and the society in which they operate. Law is not in any mystical sense 'the spirit of the people'. Many rules are contrary to the ethos of society, its needs and desires, and do not correspond to the interests or wishes of the ruling elite. Moreover, when we take into account the longevity of legal rules and the frequency of transplants we see that usually legal rules were not created for the society in which they now operate.2 It follows from this that in many cases legal rules are equally at home in many places. Even some of the most particular rules will equally suit a similar or different environment . Different reasons will favour the acceptance of the same rule in several jurisdictions. Legal rules tend to be general in the sense that they exist in and should operate for a community of people from different backgrounds living in different geographical, economic and social circumstances. A second conclusion is that in developed society at least law does not emerge easily from society. As society grows, as institutions are created to cope with changes, then some might think, as Friedrich von Savigny argued,3 that law would keep in step (or perhaps be only slightly behind), that law would spontaneously issue forth from some source such as national consciousness. This is far from the truth. It is difficult for legal rules which correspond to the needs and wishes of the society to come into being. (I am not talking here of the intellectual difficulty in perceiving the changes in the law which would be beneficial, since we have been concerned throughout with the slowness of change once the benefits of change have beCopyrighted Material Some Conclusions 131 come apparent.) Reform requires a great effort. Such was also the opinion of Rudolf von Ihering who saw changes in law as a battle in which it was not weight ofarguments but the proportion ofpower which could be wielded by the opposing parties which decided the issue. Only in this way can it be explained how institutions, over whose head public opinion has long since broken its staff, often manage to live on. So they do, yet it is not the vis inertiae which preserves their existence, but the force of the resistance made by those interests that are concerned in their preservation.4 The argument in this book does not wholly support Ihering's theory. The force of inertia is very relevant to keeping institutions and rules alive when their unsatisfactory nature has been revealed. The force of inertia, it will be recalled, is often successful because the body or person who has legislative power has other concerns, the interpreters of the law have limited power, and legal scaffolding for a variety of reasons operates to hide the need.s Inertia operates both to prevent a legal rule from developing to a satisfactory state and to inhibit change when society changes. Eugen Ehrlich wished to sum up his book, Fundamental Principles ofthe Sociology ofLaw,6 in one sentence in the foreword: At the present as well as at any other time, the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself. But one must not overlook the forces ofinaction. I very much doubt if one could claim that the centre of gravity of rules of private law lies in the existing society itself. Ehrlich also stressed that what he called 'state law' lags behind only too often. But this 'rigid immobile state law' he contrasts with 'the unceasing development of the social law'.' 'Social law' in the sense in which he uses the term seems to mean how people do act. It includes what other scholars would exclude altogether...