Courts and Social Change
| Author | Justice Ronald Sackville |
| DOI | 10.22145/flr.33.3.1 |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| Subject Matter | Article |
COURTS AND SOCIAL CHANGE
Justice Ronald Sackville*
INTRODUCTION
The relationship between courts and social change can be viewed from at least two
perspectives. The first, frequently explored in the literature, invites consideration of
how courts respond to social change, real or apparent. The second directs attention to
whether the courts themselves can bring about social change.
There is, of course, a vast literature on the role of law in society, some of which
examines the impact of legal reforms, including judicial law-making, on community
norms or values.1 But in Australia legal commentators have devoted little attention to
the role of courts as instigators of social change. Perhaps this is because there is a
substantial body of opinion that seems to take it for granted that courts have no
business attempting to bring about social change. The Chief Justice of the High Court,
for example, has recently expressed the view that judges 'do not set out to influence
wider community values. They are neither followers nor leaders of public sentiment.'2
This proposition, however, is not entirely self-evident, at least not to Mr Dooley
who famously observed that 'th' supreme coort follows th' iliction returns.'3
The lack of attention in Australia to the role of the courts as instigators of social
change contrasts with the passion and intensity of the debate concerning the merits (or
drawbacks) of so-called 'judicial activism'. The contrast is striking because much of the
criticism of judicial activism seems to presuppose that judges, particularly of
constitutional courts, not only have the power to make new law on issues of
fundamental social, economic and political importance, but also the ability, by their
decisions, to shape community norms and values. Thus it has been said that, for
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* Judge, Federal Court of Australia. A revised version of a paper delivered at the Australian
Lawyers and Social Change Conference, September 2004. I acknowledge the valuable
research assistance of May Miller-Dawkins in the preparation of this paper.
1 See, eg, Roger Cotterrell, The Sociology of Law: An Introduction (1984) ch 2; Gerald
N Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991) ch 1; Lawrence
Lessig, 'The Regulation of Social Meaning' (1995) 62 University Chicago Law Review 943.
2 Chief Justice Anthony Murray Gleeson, 'Out of Touch or Out of Reach?', (Speech delivered
at the Judicial Conference of Australia Colloquium, Adelaide, 2 October 2004).
3 Mr Dooley was the creation of Finley Peter Dunne, Mr Dooley's Opinions (1901), cited by
Rosenberg, above n 1, 13.
374 Federal Law Review Volume 33
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example, judicial activists 'undermine values that should be central to progressive
politics' and participate in government in a 'profoundly anti-democratic' manner.4
In this paper, I first address the debate about 'judicial activism' which reflects one
aspect of the relationship between courts and social change. I suggest that the intensity
of the passions unleashed by much of the debate is inversely proportionate to the true
significance of the issues at stake. I then make some observations on the ability of
courts to bring about social change. The discussion is informed by a recent re-
evaluation of the 1954 decision of the Supreme Court of the United States in Brown
v Board of Education,5 which is often seen as having ended the era of officially
sanctioned social segregation in that country. I argue that the courts have but a limited
capacity to effect social change.
A DEFINITIONAL ISSUE
Any discussion of the relationship between law and social change immediately raises a
definitional issue. What is social change? Plainly the concept must mean something
more than developments in legal doctrine, even those of fundamental importance to
the legal system. Otherwise significant legal change, by hypothesis, would bring about
social change.
A well-known dictionary of sociology suggests that, at least to sociologists, social
change involves:
changes that affect norms, values, behaviour, cultural meanings and social relationships.6
This definition takes a broad view of social change, but raises further definitional
questions. What, for example are 'norms' and 'values'? Eric Posner says that a norm
can be understood as a rule that distinguishes desirable and undesirable behaviour and
gives a third party the authority to punish a person who engages in the undesirable
behaviour. Thus, a norm constrains attempts by people to satisfy their preferences.7
Although a norm can be described as a rule, it is not formally promulgated or
enforced. Rather, 'when people observe some behavior, they more or less
spontaneously approve or disapprove of it (or fail to react), and then reward, penalize,
or ignore the actor.'8
The concept of 'community values' is even broader than a norm. Perhaps no more
specific definition of community values can be advanced than 'conceptions of the
desirable society … held in common by its members'.9
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4 John Gava, 'The Rise of the Hero Judge' (2001) 24 University of New South Wales Law Journal
747, 747–8. See also Haig Patapan, Judging Democracy: The New Politics of the High Court of
Australia (2000) 6.
5 347 US 483 (1954).
6 Gordon E Marshall (ed), Dictionary of Sociology (1998) 65.
7 Eric A Posner, 'Law, Economics and Inefficient Norms' (1996) 144 University of Pennsylvania
Law Review 1697, 1699.
8 Ibid.
9 Cotterrell, above n 1, 86, citing Talcott Parsons, 'Durkheim's Contribution to the Theory of
Integration of Social Systems' in Kurt H Wolff (ed), Essays on Sociology and Philosophy by
Emile Durkheim et al (1964) 8.
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