LAW AND SOCIAL CHANGE
Law as an instrument of social change
Law brings about social change both directly and indirectly. In many cases law interacts directly with social institutions and brings about obvious changes Law, all over the world, from time immemorial has been used as a vessel for social change. It is the most potent element that regulates the affairs of man. Indeed it is the state, responsible for law enforcement that enjoys the monopoly on the legitimate use of instruments of organized violence- coercion
Law as a tool of popular struggles and mass
revolution: The
conversion of states 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 means of
accomplishing reality – that is, of modeling it. Law and especially legislation
is a vehicle through which a programmed social evolution can be brought about.
History is replete with other great men like V. I. Lenin of the Soviet
Union, Fidel Castro of Cuba, Mahatma Gandhi of India and Nelson Mandela of South Africa who employed their professional calling as
legal practitioners as an effective tool of social engineering. These men paid
dearly with their resources, freedom and in some cases, their precious lives,
in their pursuit of "the learned act in the spirit of public
service," which according to Roscoe Pound is the primary purpose of the
noble profession of Law. V. I. Lenin succeeded in making enormous
changes in society by the use of law. Indeed the Bolshevik revolution of 1917
marked the transition from traditional tsarist regime to modern state while
engendering sweeping changes in the USSR polity. This bloody revolution, after
many years of struggle and turbulence, depended on the law to effect social change
in the social formation of the Soviet society.
As a vessel of social engineering, Every culture is dynamic. Perhaps change is the only permanent thing. Law promotes social justice, decorum, as well as maintenance of social equilibrium. Law has no alternative or subsidiary as such in its social engineering role. It is either it does it or leaves the society to suffer and perish. The developed countries of the world are what they are today because they discovered early enough that law should be their vessel of social engineering and this approach has led to the liberation of their countries and various citizens. Africa remains backward among the list of continents of the world because of its disdain and disrespect for law, as most of the countries of the continent flagrantly refused and still continue to refuse to use law as the metaphor for social rehabilitation.
This paper pleads with every tier of government in Kenya that henceforth, we should subscribe to the League of Nations and governments that use law and see it as a vessel for social engineering. Man becomes man because he has been created by the Creator, but remains relevant if and only if he lives within an environment that is governed by law and is under the government that allows law to guide and revolutionize the society, the governors and the governed inclusive. Put succinctly, Kenya can only take the necessary leap forward in every area of human endeavor, be it educational improvement, infrastructural development, political and democratic enhancement, economic growth. Law is the propeller and bedrock for any form of advancement.
The first Moi regime was accused of personalizing political power from the center by blocking reforms and openness. The doyen of opposition politics in Kenya, Oginga Odinga warned that Kenya risked forfeiting its rightful place in the community of nations if it became averse to change and modernization. Yet a powerful clique of the so called KANU hawks had monopolized access to gate-keeping in power to the extent that it became difficult to initiate change in the political society. As a result Kenyan economic growth read negative leading to underdevelopment and backwardness in the nation.
Law as an instrument of maintenance of status quo: Yet the rule of law demands that laws be stable and not changing too often; any change should take effect in the future. the presence of stable law brings peace, orderliness, good brotherhood and neighbor-hood, as well as good government and governance, whereas the absence of it brings anarchy and chaos as envisaged by Thomas Hobbes’, human nature is necessarily bad in the state of nature hence the need of law to sanction human behavior. Everyone wants to have his own way but at the same time we cannot have our own way because we live in society with others.
It is the duty of the law to reform and modernize society in terms of social, political and economic development path for the lack of reform is disastrous for societal existence. Through the principles that law has bred over the years, it has curbed the excesses of emperors, kings and tyrants alike. It is the law that survives and outlives all of them and not them surviving law. Experience in Africa shows that incumbent, bad elected leaders use their resources and corruption to get elected to office. Once in power they change laws to selfishly suit their interests such that it becomes difficult even to question them or remove them from power. Leaders hijack and turn a noble instrument in society- the law- to serve as weapons of wielding domination, oppression, exploitation and humiliation. Leaders in Africa only know one thing ‘it is our turn to eat’. Therefore, the society’s progress stalls or worse still it regresses and goes out of existence!
In Kenya, a clique of powerful individuals around the then president Kibaki engineered a stern anti-reformist stance. The Kibaki administration selfishly interpreted the NO verdict to mean the people wanted the old constitution proper. After it became apparent the government of the day was bent on reneging on the new constitution promise if it did not have its way. The voice of reason comprising interest groups, the church, civil society and opposition parties invited the government to Minimum constitutional amendments in critical areas before the next general election was held in order to level the playing field. According to the then justice minister Martha karua, the government would not be party to reform movement. The magnitude of destruction resulting from anti-reform hawks was envisaged in the 2007 post election violence in Kenya.
It alters the behavior of individuals through institutional incentives or sanctions of all kinds. On the other hand, law plays an indirect role by shaping various social institutions which in turn have a direct impact on society. For example, the system of compulsory education enables the functioning of educational institutions which in turn leads to social change.
Indeed the law prohibiting Female Genital
Mutilation, child drop-out and early marriages serves to alter behavior of
citizens. These antiquated cultural practices are almost being eliminated in
society by law. Otherwise, it would have been difficult to erase this misplaced
and entrenched behavior by mere requests. After all, the many years of
persuasion, directives and orders bore no fruits.
Law also brings social change by redefining the normative order and creates the possibility of new forms of social institutions: It provides formal facilities and extends rights to individuals. The law against women disinheritance has not only prohibited the inhuman practice but has also given formal rights to those who suffered from such disabilities to protest against it. Thus law not only codifies certain customs and morals but also modifies the behavior and values existing in a particular society.
Thus law entails two interrelated processes- the
institutionalization and the internalization of patterns of behavior. Institutionalization
means the creation of norms with provisions for its enforcement, whereas
internalization means the incorporation and acceptance of values implicit in a
law. When the institutionalization process is successful it in turn facilitates
the Internalization of attitudes and beliefs.
Law in promoting human rights: In pre- independence period some legislation were made in relation to prevailing conservative and unorthodox social practices degrading position of women and child marriage which acted towards social reform. The new constitution not only advanced the cause of sociocultural change but also contributed towards the transformation of agrarian structure. However, the nature and extent of social change in Kenya have been influenced largely by radical social legislation introduced by the new constitutional dispensation. They pertain to subjects ranging from economy, polity, trade, and commerce to marriage, family and inheritance. Legislation impacts upon every aspect of people's lives.
In fact, some Articles in the constitution lays
down certain directive principles of the state policy to secure (a) Adequate
means of livelihood for all citizens; (b) control and distribution of wealth so
as to Sub serve the common good; (c) equal pay for equal work; (d) health and
strength for all from economic avocations; (e) protection from child labor;
(f) right to work and to education; (g) uniform civil code;(e) promotion of
educational and economic interests of the scheduled class, tribes and of other weaker sectional interests.
CONCLUSION
It should be noted that the law can be used both
positively to kickoff change and negatively to block reforms. The law is the
most potent instrument of instigating social change at all levels in the
society- individual, group, community, society, organization, institution,
state and even global. Law can breed modernization, social reforms, human
development and cultural and behavioral change but could also be abused by
self-interested leaders in the maintenance of status quo.
