Law and Social Change in a Diverse Society

-- By SoeJungKim - 27 Feb 2009,

Introduction

The class discussion over Judith Warner’s column on people’s dreams and ideas about the Obamas took me by surprise because no one in the column or in the class mentioned President Obama’s race. Perhaps the issue of race became nonexistent after his landslide victory during the election. It is also possible that his race wasn’t relevant to the topic at hand. Whatever the case may be, the historic event is already being accepted as a normal part of this society. Still, what struck me harder was the sudden realization that it took this society over 140 years since the outlawing of slavery to welcome the first African-American President. Eventually, the class discussion reminded me of my own belief of law as a device for social change. But perhaps law is not as powerful a tool for bringing about social change as I had originally thought.

Law Makes Social Change

As a reporter at an English newspaper in Korea, I sometimes felt frustrated when my articles failed to create an impact on society. Because the newspaper was in English rather than the Korean language, the readership was much smaller than the staple Korean papers. For example, I once wrote an article about the complaints of expatriates who had trouble withdrawing money from Korean banks when they visited their country of origin or travel to other countries because they were not allowed to apply for an international debit card. In a bid to prevent tax evasion, the Korean government limits the amount of money that can be withdrawn by foreign residents when they go abroad. Korean banks, in turn, decided not to issue the cards, citing difficulty in controlling the amount of withdrawal. The article received rather unusual attention from banks and the Finance Ministry. In fact, one bank had a meeting with the ministry officials to resolve the issue. Although the meeting resulted in no practical changes, it was by far the biggest impact that I had created with my articles. My articles could draw attention but they just did not effect substantive changes in the manner I would have liked. Bringing about actual social change in society was important to me, but my chosen profession precluded me from doing so. As I constantly faced these frustrations, I began to think that I would have to study and understand law if I wanted to make effective social changes. I no longer wanted to feel guilty for merely asking questions to interviewees, because I knew I could not help them in any meaningful way.

Does Law Really Bring about Change?

While learning constitutional law this semester, however, I began to doubt whether law really brings about change. For example, the reconstruction amendments, the Civil Rights Acts and desegregation movements were met by persistent resistance from southern states which held onto their discriminatory ways by revising common law rules of access for public accommodation, denying funds to desegregated schools and unjustly requiring minority voters to pass a literacy test to register. As shown in this example, even though the Constitution was amended and new federal acts were enacted, people and states systemically and persistently refused to change their ideals and practices.

I observed a similar but slightly different situation in Korean society. Korea had claimed itself a homogeneous country where students are taught to be proud of the country’s “one-blood, one nation” identity. The alleged identity has been shaken for the past decade as the number of marriages between Koreans and non-Koreans has skyrocketed, especially in rural regions where young Korean women turned their backs away from Korean men. Naturally, the human rights issue of foreign spouses and their biracial children had been raised by civic groups. Interestingly, the law to abolish discrimination against biracial people was most widely discussed when Hines Ward, half-ethnic Korean and half African-American football star, visited the country in 2006 after winning Super Bowl. When the media frenzy over the American hero settled down, however, legislators who passionately promised to submit a bill to terminate discrimination against biracial people all seemed to suddenly have amnesia. The media eventually migrated over to a new fad, and legislators who no longer received media attention eventually lost their interest in the issue.

Even if the bills had been submitted and approved, I doubt that they could have made real difference. Can the law actually make people stop staring or pointing at those who look different from them? Can the law really stop a stranger from asking a Korean wife of a Bangladeshi man why she married a foreigner? Can the law definitively stop children from harassing their classmates who cannot speak Korean because their mothers are foreigners? Upon asking these questions to myself, I came to the realization that law may not be an effective means for dissolving discrimination.

Law and social change is probably one of the most thoroughly discussed issues in the legal studies. I am not denying the impact of certain administrative regulations. In the previous case of Korea’s foreign currency regulations, foreigners would feel more comfortable if the regulations were loosened or banks came up with ways to comply with the rules while providing the service to the foreign customers.

What about a Lawyer?

One of the reasons I made a career change from a journalist to a lawyer was because I wanted to be more influential. I thought law has the power to change the society and make “real” differences in people’s lives. Ironically, the more I learn the law, the more I realize the naïvete of my beliefs. After all, laws are made by people. Even the legislators and framers of the Constitution are only human. Laws reflect their fears, desires and vested interests. I do recognize the possibilities to use the existing laws to protect the rights of people who are discriminated. However, I believe the victory of Thurgood Marshall and NAACP in Brown v. Board of Education was not given by the 14th Amendment itself but by a growing social consensus.

Conclusion

While laws reflect and perhaps even promote social changes, the changes are initiated by people who succeed in creating a social consensus or compromise. Without social consensus and acknowledgment of the change, the laws would not be able to create changes by themselves and abolish discrimination in a diverse society.

• It would be too simplistic a model to say that law either does or does not efficiently contribute to change. Governmental social control, to borrow Donald Black's definition, is not the strongest form of social control, most of the time. It is also not necessarily the form of control most calculated to persuade or acculturate new practices. Both law is rarely the only instrument in use, and there are rarely a combination of instruments excluding law altogether that would be more effectively than a strategy with well-chosen legal components. So the proper inquiry is not about alternatives but about combinations, and strategy is not a practice for unifactorial thinking.
• • I think you’ve set up an intriguing argument. But I agree with Professor Moglen when he says that the focus should be on the way law can be part of a multifaceted approach dedicated to effecting social change.