A careful analysis of the role of legislation in social change would reveal two things. (i) Through legislations the state and society try to bring the legal norms in line with the existing social norms, (ii) Legislations are also used to improve social norms on the basis of new legal norms.
Social legislation can be an effective means of social change only when the existing social norm is given a legal sanction. No legislation by itself can substitute one norm with another.
It can hardly change norms. Unaided social legislation can hardly bring about social change. But with the support of the public opinion it can initiate a change in social norm arid thus a change in social behaviour. Some examples of social legislations made in India will help us to understand this point.
A number of social legislations were made in India both before and after independence with a view to bring about social change. Some of these could achieve success while a few others still remain as dead letters. The legislations that secured public support and the support of social norms could become a great success.
For example, the Hindu Marriage Act was passed in 1955 enforcing monogamy and permitting judicial separation and divorce. Though polygamy was permitted among the Hindus, majority of the people practised monogamy only. Public opinion was in favour of monogamy.
For a long time social reformers agitated that Hindu marriage should be monogamous. The Hindu women also resented the second marriage by a man when the first one was alive. Those who opposed monogamy were branded as conservative, orthodox and selfish. When the Hindu Marriage Act was passed in 1955 it could get the support of the people and the opposition gradually died down.
The Hindu Marriage Act of 1955 could bring about a number of social changes. The Act abolished all caste restrictions as a necessary requirement for marriage. The Hindus of all castes have the same rights with respect to marriage. Intercaste marriages are now allowed.
The Act provides for a secular outlook with respect to marriage and enables the registration of marriage. It enforces monogamy making both the sexes equal in marital affairs. It provides equal rights for both to get judicial separation and divorce on legal grounds. It treats various sects of people such as Jains, Buddhists, Sikhs, Veera Shaivas, Harijans, Girijans and many others as ‘Hindus’. Thus, it paved the way for bringing about a uniform Civil Code for all the citizens of India.
In the same way, the Hindu Succession Act of 1956 could attain success. The Act confers for the first time absolute rights over the property possessed by a Hindu woman. Both sons and daughters get the right of inheritance of property because of this Act.
The Act removes the prejudice against women getting the property of the father. Since public opinion is in favour of women enjoying equal rights and opportunities, the Act could be enforced easily.
The Hindu Adoption and Maintenance Act of1956 has been a step toward the upliftment of the status of women. It permits the adoption of a son or a daughter. It makes the consent of the wife necessary for adopting a child. It has also given the right to the widows to adopt.
The Legislative Acts mentioned above could bring about changes in some areas of our life because they are backed by public opinion and current social norms and values. Whenever the social norms are ahead of the legal codes, it becomes necessary to bring the legal code into conformity with the prevalent social values.
Sometimes dominant minority groups may cherish some ‘advanced’ values and may bring pressure upon the legislative bodies to make legislations to enforce such values on masses. Such legislations become an active social force only when they are internalised by the people.
In pre-Independent India, social legislations such as — The Hindu Widow Remarriage Act of 1856, Female Infanticide Prevention Act of 1870, the Special Marriage Act of 1872 (which made marriage a civil marriage free from religious barriers), Child Marriage Restraint Act of 1929, etc., could attain success and pave the way for changes in society because they were in tune with the trends and tides of the time.
On the contrary, those social legislations that are far ahead of the social norms and values and those that lack popular support and public opinion are bound to be a failure. They may become only dead letters. Some of them may bring about changes very gradually in the long run. Some others may be simply ignored or even resisted.
The Untouchability Offences Act of1955 was passed by the Parliament in accordance with the provisions of Article 35 of the Indian Constitution. It made the practice of untouchability a cognisable offence punishable under law. (This Act was, however, substituted by the Protection of Civil Rights Act in 1976).
All the social disabilities from which the Harijans suffered have been removed legally and constitutionally. But in reality, Harijans suffer from many kinds of social disabilities especially in rural areas even today. Here the law is ahead of the social norm particularly in the villages where untouchability is still in practice.
The institutionalisation of this new rule has not affected people’s ways of life. Because the majority of the village people have not yet internalised this norm. It makes clear that passing an Act is not enough to alter the social practice. A social movement educating the public through propaganda is necessary to make effective such social legislations.
Law relating to prohibition was also a grand failure for want of public support. Gandhiji launched a crusade against drunkenness. He even tried to persuade Congressmen to work for total removal of alcoholism. But right from 1937 there has been a strong opposition against prohibition. Not all the Congressmen supported it.
Those who were used to liquor consumption carried on a silent wave against prohibition. All the provinces never legislated laws in favour of prohibition. Some states kept neutral while a few states enacted legislations against taking alcoholic drinks. In such states illicit distillation started as kind of “cottage industry”. Public opinion was not properly mobilised in favour of it. Hence it failed. In America also law relating to prohibition was a grand failure and hence it was withdrawn.
For the same reasons as mentioned above the Hyderabad Beggary Act of1940 passed in order to prevent the beggars from begging, failed. Some other states such as Bengal, Bombay, Karnataka also made legislations for the prevention of beggary.
Nevertheless, beggary continued to be practised by beggars in all these states. In the same way, the Dowry Prohibition Act of 1961 which made the giver as well as receiver of dowry punishable also has become ineffective. The social norms, in other words, have not been affected by this law, and hence the society follows the social norms rather than legal norms in these fields. Mere threat of punishment will not be effective.
Such a situation produces what Festinger calls ‘ forced compliance”. So long as behaviour involves forced compliance, there is no internalisation of the new values and so there will be disobedience of the law. Forced compliance can only create a discrepancy between public behaviour and private belief.
Unintended Consequences of Legislations
As Richard T. Lapiere has pointed out, one of the major tasks of the governments is to produce desired changes through legislative enactments. Hence legislations may be enacted for slum clearance, for providing assistance for the poor to construct low-cost houses, for providing social security to the labourers, handicapped persons, for providing protection to women, children, weaker section, minorities, etc. But sometimes such legislations may produce unintended consequences in society.
For example, the Government of Napoleon in its efforts to keep France agriculturally self- sufficient, established subsidies for the production of sugar beets. No one anticipated or could have anticipated that this legislation would in the course of time help to make France the heaviest per capita consumer of alcoholic beverages in the whole world.
In the same way, legislation in America also brought about an unintended result. The New Deal ideologists wanted to save the small single family agricultural units from the economic crisis of 1930s.
Hence they designed the agricultural parity price system to help such small growers. The ideologists could hardly foresee that the long-run effects of such legislation would be to speed up the growth of large-scale industrial agriculture and to hasten the doom of the small-scale agriculturists.
Legislation or any other governmental agency has its own inability to pre-determine the consequences of politically sponsored changes. Legislation has its own limitations in inducing significant qualitative changes by coercion.
Of course, men may be deterred by coercion from doing something that they might like to do. They may be encouraged by the government to work at their trade, pursue their scientific investigations, treat sick patients, etc.
People cannot, however, in the same ways be induced either to want to be creative or to act for long in ways that are contrary to their established cultural attributes. It is for this reason the governmental efforts to increase national birth-rates through legal means having failed. Its efforts to establish racial equality through legislation have failed.
Similarly, no legislation can be made to make a people religious or to deprive them of an established religion; to change their sex morals, to improve domestic harmony, to substitute one custom with another, and so on.
Legislations can be made by governments to sanction changes that have already occurred. In fact, in the long run, legislations are made for sanctioning changes. But legislations cannot be made in the social field directly. They cannot fix the course of social changes in a predetermined fashion.