Vol. 3 No. 9 (September, 1993) pp. 93-94
LEGAL CONSTRUCT, SOCIAL CONCEPT: A MACROSOCIOLOGICAL PERSPECTIVE
ON LAW by Larry D. Barnett. New York: Aldine de Gruyter, 1993.
182 pp. $42.95.
Reviewed by Lawrence M. Friedman, Law School, Stanford
University.
This book has a simple thesis. Law, according to Barnett, is much
more a dependent than an independent variable. Legal doctrine
changes when society is ready for it to change, and not
otherwise. People, however, tend to think law is a powerful
weapon for change, and they overestimate what it can accomplish;
in fact, says Barnett, law is not an "effective means for
treating social problems" (p. 62). Apparently, law IS able
to make something of a mark on economic problems -- it can
"control" to some extent "the medium of exchange
and arrangements for increasing wealth" (p. 162); but on
such "social" matters as marriage and divorce, sex,
discrimination against old people, euthanasia -- issues which
Barnett deals with in this book, it is quite ineffective.
So far, so good. The problem lies in the demonstration. Barnett
is convinced that he can prove his thesis on the
"macrosociological" level, that is, through aggregate,
longitudinal data. Hence much of the book is taken up with the
minute examination of statistical series -- trying, for example,
to explain why Congress passed age discrimination laws by tieing
enactment to figures on the percentage of men in the labor force
over a certain age; or connecting sex discrimination laws with
rise and fall of college enrollment rates of men and women. These
attempts, frankly, strike me as much too simplistic. They also
rest on an assumption, which most readers will simply reject,
that the legal system automatically responds to what society
"needs." "Needs" is actually Barnett's own
word; and he is quite serious about it. Law and legal thought, he
says, respond "to the needs and values of society" (p.
17). Or again, at the end of the book, he distinguishes between
"social conditions" and "societal needs."
"Conditions" are "phenomena that reduce the
efficiency and effectiveness of a society;" while needs are
"requirements of a society that must be satisfied if the
system is to maintain itself." Legal doctrine "reflects
societal needs directly and societal conditions only
indirectly" (p. 167). This point, if I understand it
correctly, is both too optimistic and too mechanical. Societies
can be quite blind as to what they really "need;" and
they may and indeed do act in ways that look quite crazy in
hindsight. I don't doubt for a minute that large-scale social
changes have an impact on the legal system. This is, in fact, the
basic premise of studies of law and society. But the real
question is HOW; and through what mechanisms; and in what
sequence. Here I think Barnett does not help us as much as one
might like.
Barnett is quite careful about statistics; less careful, I fear,
about what these statistics measure. For example, in his chapter
on euthanasia, he goes out on a limb and predicts that laws
against euthanasia are likely to weaken or vanish. Why? Because
public opinion is in favor of euthanasia. The evidence for this
comes from Gallup polls, which have included a question on
euthanasia since 1947. The question is this: "When a person
has a disease that cannot be cured, do you think doctors should
be allowed by law to end the patient's life by some painless
means if the patient and his family request it?" (p.141).
But what does this question mean to the people who answer it? (I
myself would have trouble with the question, although I think if
pressed I would have to say yes.) What is a "disease that
cannot be cured?" Does it matter if the patient is or is not
near the end? What precise situations were the respondents
thinking of? How did the people who answered the question
understand it? Also, how deeply did they feel about the subject?
If they said yes, did they say yes out of passion, or were they
basically indifferent with a slight edge to the yes side? What
about the people who said no? Surprisingly, Barnett seems unaware
of or uninterested in problems of interpreting evidence from
polls; or in the conceptual issues of defining "public
opinion;" or in the relationship between this kind of
opinion and public, political action.
Page 94 follows:
I have reservations, too, about his notion that laws have no
impact on "social" problems. He may well be right; but
this is a complex issue and his data do not really prove the
case. Take the Age Discrimination in Employment Act. Barnett
marshals evidence that ADEA had no "appreciable impact on
labor force participation"; senior citizens did not work in
greater numbers than before. He concludes that "labor force
involvement...is not a function of a statute banning
discrimination but, rather, of large-scale social forces"
(p. 90). We can concede this point. Still, was it the purpose of
ADEA to increase the number of 64 year olds who hold down jobs?
Or was the purpose rather to end discrimination against those who
DO want to work? You cannot measure a lesser degree of
discrimination -- or an increase in social justice; or, perhaps,
a lessening of age-stereotypes -- with this kind of blunt
instrument. Anti-discrimination laws may be effective if they
give people a chance to get back at those who mistreat them; or
if they increase the quantum of social justice. Large-scale
aggregate statistics, about work-force participation, do not
necessarily tell us if this is actually happening. The point of
ADEA was to let older people work if they WANT to; if many or
most such people choose to retire, so be it. After all, divorce
law reform is not a failure simply because the divorce rate stays
the same.
The book is clear and concise; and it attacks an important issue.
That is all to the good. I applaud the enterprise, despite
reservations about the way it is carried out.
Copyright 1993