Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund (review) (original) (raw)

Continuing the Conversation: A Reply to Manfredi and Kelly

Mcgill Law Journal, 2003

In this reply, the authors assert that Professors Manfredi and Kelly’s response to their original article either misses the point or is simply mistaken. The authors clarify the limited purpose of their original study, which was to assess the extent to which the Supreme Court is counter-majoritarian under the Charter. Manfredi and Kelly’s interpretation of the available data either relies on inappropriate quantitative measures or draws overly fine distinctions between highly variable data sets. The burden of proof is on those who allege that the Court is engaged in judicial activism, and Manfredi and Kelly have not succeeded in demonstrating that the null hypothesis has been disproved.

CHAPTER III SOCIAL CHANGE AND JUDICIAL REVIEW

The primary function of the law is to serve the society by regulating the behaviour of the members of the society. In the absence of regulatory behavioural norms which is provided by law, the society will have to face anarchy, because in the absence of law every member actuated by his interest would act to the detriment of everyone else. It is, therefore, force of law which has helped mankind to maintain peace and order in the society and has saved society from anarchy. This necessity of force of law becomes evident when it is said : "A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them. Unfortunately, they have not one reason in them, each being moved by his own interests and passions; therefore, the other alternative is the sole resource." However, it is universally accepted that the society is always in a state of flux and is always changing, sometimes forward and sometimes backward. Law, therefore, has to keep pace with the changing mores of society. Once the society is on the march, law will have to be reformed, modified or amended with a view to bringing it in conformity with the need of the society. However, there exists a controversy as to whether social change 1. G. Williams (ed.), Salmond on Jurisprudence, 1957, p.88. 59 influences law or law influences social change. The contro versy is one of the recurrent themes of the history of 2 legal thoughts. While Savigny holds that it is the law which follows the social change, Bentham holds the 3 opposite view. But in ultimate analysis one must agree that they do influence each other. Sometimes it is the law which brings forth the required and desired social change and sometimes it is the social change that brings in the 3 3 expected change of law. For example, it can be said that the law relating to abolition of "Sati" system was enacted primarily to bring about the desired reform of the then Hindu society, whereas the changing trend of the society towards socialism necessitated the change of law which brought about the abolition of "Zamindary" system. Therefore, change of law is a must either waythat is either to bring about the desired change of society or to reflect the change of society. If law remains static and hinders the march of society, it will be rejected. This holds good both in case of ordinary law and Constitutional Law. Though Constitutional Law is superior to ordinary law of the land and, therefore, should not be lightly tempered with, yet it should not obstruct the will of the future generation and the 2. W. Freidman,

Second thoughts on “Law as an instrument of social change”

Law and Human Behavior, 1982

In a diverse and thought-provoking series of papers, the contributors to this issue seem to agree on at least one point: a significant change has occurred in the role of the judicial process in our society. Courts now take a leading part in the design or administration of many state ...

Empirical Studies of Law and Social Change: What is the Field? What are the Questions?

The question of whether and how law plays a role in producing social change has received renewed scholarly attention, powered by research on the role of social movements in law making and the relation between court decisions and backlash. Reflecting the broader turn to empiricism within legal scholarship, this research either directly engages in or builds upon the empirical study of law in ways that chart exciting new scholarly directions — but also raise important conceptual and methodological questions. This essay explores these questions in an effort to frame what is at stake and guide future research. It makes three contributions.First, it offers a map of the law and social change field, suggesting how researchers across disciplines have asked a set of questions that can be understood as part of a coherent model in which law is viewed as both an “input” and “output” of social change campaigns. Within this model, debate centers on what factors cause lawyers and activists to turn ...

Law Reform: What's in it for Women?

2007

In this article, we question whether formal legal processes have been of any value to women and other disadvantaged groups. We suggest that the processes of various law reform agencies might make them particularly unable to respond effectively to issues that affect women. First, we look at the ways in which law reform questions are asked and answered, and at the generally narrow way in which 'terms of reference' are often framed or constructed. Next, we consider the overemphasis on formal outcomes at the expense of attention to process. Finally, we examine the rather problematic relationship that formal law reform agencies have had, at least at times, with research, empirical data and socio-legal methods. Broadly, we argue that insufficient attention is paid to the real lives of those who interact with, and are impacted upon by, the law and legal system. We conclude with a reminder that even if such agencies were more effective, changes to laws can only ever constitute a sma...