Does the law play a role in social change?

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The Rashtriya Swayamsevak Sangh (RSS), which wields considerable influence in policy-making and national conversations, recently said that raising the legal age of marriage for girls should be left to society, referring to a bill to raise the minimum age of marriage for women from 18 to 21.

Such perspectives rekindle the debate about the role of law in social change – a debate that has raged since at least World War II, when the use of legislation as a tool of social engineering first gained attention.

Classical social theorists such as Emile Durkheim, Max Weber and Karl Marx viewed law as a diverse and subjective concept, having multiplicity and complexity as well as interconnection with social life. The emergence of welfare states and welfarism has further confirmed this. This trend accelerated in the postmodern era, when renowned socio-legal theorist Philip Selznick observed that “modern law has become increasingly responsive to the needs of society”.

Opposing views also existed, where the law was seen as a product of society and only changed when social demands changed. German philosopher Jurgen Habermas viewed the intrusion of law into daily life as “a restriction of individual autonomy” and said that welfarism resulted in the colonization of life, casting a “tighter web of legal norms on the life of the individual”. W Friedman, a German-American jurist, also pointed to the way laws were made at the time, noting that if legislation was made by the choice of only a small group of individuals, it was doomed to failure.

Feminist theory has given a new dimension to this debate. Feminist legal philosophers such as Catherine MacKinnon and Martha Minow have criticized the conceptualization of the rule of law in terms of coherence and consistency, arguing that it only reinforces the status quo, legitimizes existing power relations, and perpetuates gender socialization through a systemic bias.

Which argument is more plausible? In India, two current issues present themselves as touchstones.

One of them is the issue of raising the minimum age of marriage for women. The government argues that the amendment to the Prohibition of Child Marriage Act 2006 will prevent early marriages and therefore improve girls’ health, education and nutrition. But many experts say this is flawed because it ignores social realities. Oxfam India, for example, said the law would end up being counterproductive if the factors that drive families to resort to such social practices, especially the most disadvantaged, are not taken into account.

The second issue is the criminalization of marital rape, which is currently being tried in the Delhi High Court. From a legal perspective, many have opposed it, saying it would be widely misused and that it would be difficult to establish the burden of proof. But legal activists argue that since any law is susceptible to misuse, it cannot be a logical deterrent to the enactment of valid legislation. They point out that successive national family health surveys have revealed an increase in incidents of domestic violence and say it is more important to see whether women will be able to overcome the traditional mentality and press charges against their offending husbands. .

In India, the use of law to advance social change has been the subject of political consensus since independence. Several women-friendly legislations have been drafted to act as norm-setters and accelerate social change, but with mixed results. Flavia Agnes, a feminist legal activist, for example, said that “laws, old and new, are more or less structured to work against women.” Poonam Muttreja, a public policy expert, also believes that for a law to achieve its purpose, more practical means must be adopted to enhance women’s agency and autonomy, as well as capacity building efforts in the areas education and employment.

The bottom line is that Indian society can only transition to a gender equitable society with the new ideas of liberalism, if a conducive societal environment is nurtured. The Indian legal system, moving beyond the instrumentalist attitude of law, can then become more responsive to social reasoning of equality and empowerment.

Archana Datta is the former Managing Director of Doordarshan and All India Radio; and former Press Secretary, President of India

Opinions expressed are personal

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