Law in a Changing Society: W .

Friedmann

Submitted To -Alka Mehta Submitted By- Akansh Jain

B.A.LL.B. (Hons.)
Semester – II,
Section A,
Batch- XV
Roll No - 15
Serial No - 04

English project

Date of submission: 04 April, 2016

Hidayatullah National Law University

Raipur, Chhattisgarh, India
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Declaration
I, Akansh Jain, hereby declare that this project work is an original piece of research and is not
a result of plagiarism, the sources of data has been adopted from other sources as well and
proper mention about such sources has been made in the form of footnotes and in bibliography.

I have completed this project work under the guidance of Alka Mehta ma’am, faculty of
English, Hidayatullah National Law University. Raipur (C.G).
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Acknowledgements

First and foremost I would like to thank my course teacher Alka Mehta ma’am for providing me
the Book of my interest. Also I would like to thank our Vice Chancellor sir for providing the best
possible facilities of I.T and library in the university.

Thanks to the God, Parents and all the member of HNLU family who gave me the strength
to accomplish the project with sheer hard work and honesty.
I also owe my gratitude towards University Administration for providing me all kinds of
required facilities with good Library and IT lab. This helps me in making the project and
completing it. My special thanks to Library Staff and IT staff for equipping me with the necessary
data and websites from the internet.

This Project venture has been made possible due to the generous co-operation of various persons.
To list them all is not practicable, even to repay them in words is beyond the domain of my lexicon.
I would also like to extend my warm and sincere thanks to all my colleagues, who contributed in
innumerable ways in the accomplishment of this project.

Akansh Jain

B.A.LL.B. (Hon.)
Semester –II, Section A,
Batch XV
Roll no.15
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Table of Content

Declaration………………………………………………………………………. 1

Acknowledgements……………………………………………………….……… 2

Research Methodology .……………………………………………………………4

Author’s Introduction …………………………………………………..………....6

Background of the Book ………………………………………………………….7

Chapterisation
Chapter-1 Theory of Legal Change …………………………………………….8
Chapter- 2 Social Change And Legal Institution .……………………………...11
Chapter –3 Law between Nations ………………………………………………...15

Chapter – 4 Society , Law and The Individual…………………………………..18

Analysis…………………………………………………….……………………....20

References……………………………………………………………………….…21
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Research Methodology

This project work has been carried out following the descriptive analytical approach. It is largely
based on the study of Law in a changing society . At the same time, efforts have been made to
understand the Changing Dimention . Books & other references as guided by faculty of English
were primarily helpful for the completion of this project.
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Author’s Introduction

Wolfgang Gaston Friedmann (25 January 1907 – 20 September 1972) was a German
American legal scholar. Specializing in international law, he was a faculty member at Columbia
Law School.Born in Berlin, Friedmann finished his studies of law at the Humboldt University of
Berlin in 1930. Being Jewish, he immigrated to the United States shortly after the Nazis' seizure
of power in Germany.

In 1955, he became a professor of international law at Columbia University. On 20th September

1972 Dr. Wolfgang G. Friedmann, professor of international law and director of international
legal research at Columbia University, was robbed and stabbed to death three blocks from the
Columbia campus. This sad news rapidly spread all over the world, and caused a heavy shock to
those who had got to know this outstanding lawyer from his publications, and above all to those
who, like the present writer, had the privilege to become his friend through personal contacts
with his charming and inspiring personality .The Wolfgang Friedmann Memorial Award was
established in his honor.
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W. Friedmann Work –
 Legal Theory. Stevens & Sons, London 1953
 The Changing Structure of International Law. Columbia University Press, New York
1964
 Joint International Business Ventures in Developing Countries: Case Studies and
Analyses of Recent Trends. Columbia University Press, New York 1971
 Law and Social Change , Toronto press
 Law in a changing society, London University Press , , 1959
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Background of the Book

In this abridged edition of a book originally published in 1959, Professor Friedmann analyzes the
impact of the social, economic and political developments of the 20th century on the structure of
the law and the manner in which the law has either contributed to or attempted to cope with these
sweeping changes in our society. The essay is majestic in scope and scholarly in depth, as
Professor Friedmann draws liberally on other legal systems, notably those of the Soviet Union,
France and Germany and compares their solutions to contemporary social and economic
problems with the conclusions arrived at by the great common law jurisdictions. The book is
divided into 4 parts . The philosophy of law is a curious line of work, partly due to the diversity
among one's co-workers, and the related ongoing challenge of their engaging in mutually fruitful
discussion. Prof. Friedmann draw on what amounts to an average citizen's understanding of legal
practice and process, and often consult common experience, popular culture, and a severely
limited set of examples, as their pre-theoretical data.
The author argues throughout this text that law must adapt itself to social change if it is to remain
the strength of creating social order in society.

(1) Theory of Legal Change,

(2) Social Change and Legal Institutions,

(3), Law between Nations,,

(4) Society and the Individual.

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Chapter – 1
Theory of Legal Change
In the greater of two classical work , we traced the interconnection between law and the
evolution of public opinion and social policy through the nineteenth century . He shows in
particular how the liberal stete which , under influence of bentham and his we follower , had
develope the legislative machinery in order to remove the many inequality and archaic formality
of an antiquated legal system , thereby forge the weapon which new political philosophies could
use an instrument of reform . The recognition of the duality of the legal system as an Inevitable
corollory to the development of modem government-is a basic problem which the common-law
world can continue to ignore or belittle only at the cost of failing to develop a healthy balance
between the needs of administration in the modern welfare state and the essential rights of the
citizen.

Influence of Bentham – Wolfgang Friedmann1 captures the essence of the dialectics between
Analytical Positivism and Historical schools of Jurisprudence in the following words:-
"The controversy between those who believe that law should essentially follow, not lead, and that
it should do so slowly, in response to clearly formulated social sentiment — and those who believe
that the law should be a determined agent in the creation of new norms, is one of the recurrent
themes of the history of legal thought. It is tellingly illustrated by the conflicting approaches of
Savigny and Bentham." Savigny, deprecated the trend towards the codification of law, inaugurated
by the Napoleonic Codes, and which was spreading rapidly over the civilized world. . 1By contrast,
Bentham, a fervent believer in the efficacy of rationally constructed reforming laws, believed that
legislation is a science.

1
INFLUENCE OF JEREMY BENTHAM IN THE CODIFICATION OF LAWS AND HISTORY OF
LEGISLATIVE DRAFTING IN INDIA
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A Fragment on Government, Jeremy Bentham invoked what he described as a ‘fundamental

axiom, it is the greatest happiness of the greatest number that is the measure of right and wrong.’2
The association between Bentham and the central phrase in this ‘axiom’ – the greatest happiness
of the greatest number – is now, of course, a commonplace.

II. The principle of utility is meant that principle which approves or disapproves of every action
whatsoever, according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question.

Changing laws

Government legal experts are constantly examining our laws and looking for ways to improve
them. Law reform committees also review laws and recommend changes.

 Lawyers bring questions of law to court to create change.

 Social action groups seek changes to laws that they consider unfair to members of Indian
Socirty.

 Legislators in the Central , and State governments respond by introducing new laws or
changing old ones.

Industry groups and other stakeholders meet with government decision makers in an effort to
present their opinions on the direction of public policy. Ultimately, though, it is the people of
India who elect the lawmakers. Indians need to decide what we want from the law and then make
sure it reflects those wishes.

Everyone has the right to work toward changing the law. W. Friedmann investigates the nature
of the interaction of legal and social change and observes that the influence is not all in one
direction.

2
A Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns
and H. L. A. Hart, in The Collected Works of Jeremy Bentham [hereafter CW] (London,
1977),
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Dynamic nature of law

Law is not a dry subject, it's not static, it's dynamic

As our society grows and develops, it cannot rely entirely on tradition. Sometimes new laws are
needed or old laws need to be changed. We need to constantly reform our laws so we can make
sure that our system of law and justice meets the challenges of our society. As people change the
way they live and work, some laws may become obsolete. Or new situations may arise that no
existing law deals with. For example, old laws against theft did not foresee identity theft or online
harassment. The same technology that enables one person to find information about another also
makes it possible to steal information that was meant to be private.

More than just changing laws, we may need to change the system of law and justice itself. For
instance, in our complex society it can take years to settle disputes. As our court system is stretched
to the limit, other, less formal ways may help people settle their disputes.
There are two views on this relationship:
 Law is determined by the sense of justice and the moral sentiments of the population, and
legislation can only achieve results by staying relatively close to the prevailing social
norms.
 Law and especially legislation, is a vehicle through which a programmed social evolution
can be brought about. In general, a highly urbanized and industrialized society like the US
law does play a large part in social change, and vice versa, at least much more than is the
case in traditional societies or in traditional sociological thinking.
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Chapter – 2
Social Change and Legal Institutions
Generally, the change in existing pattern of social life is known as '' Social Change''. Society and
social conditions never remain static. Generally, social change is to be understood as change in
social structure. According to Gainsberg, social change is change in social structure e.g the size of
a society, the composition or balance or its part or the type of its organisation. According to Jones,
''social change devotes variation in, or modification of, any aspect of social process, social patterns,
social interaction or social organisation.''

Davis observed that social change is large number of persons are engaging in activities that differ
from those which their immefiate fore-fathers engaged in some time before.

The repercussions of social change on the legal institutions of property, contract, tort, criminal
and family law is the subject of analysis in Part II. Professor Friedmann examines how the
complexity of modern society and the economic and defence requirements of the modern State
have brought about restrictions inconceivable a century ago on the use of private property,
ranging from zoning legislation to legal measures to protect and utilize natural resources; the
traditional norms of the law of contract fashioned in the 19th century for two businessmen
dealing on equal terms at arm's length have lost much of their relevance in the era of the giant
corporation .

The development of the law of tort is traced from the principle of fault liability to the present
concept of distribution of loss, and its raid assimilation by social insurance in the nature of
Workmen's Compensation. The role of punishment, deterrence and reformation as well as the
impact of the large corporation on criminal law and the growth of "economic" crimes are
subjected to penetrating scrutiny; similarly traced is the effect of the emancipation and increased
mobility of contemporary women on family law and matrimonial property. The changing social
attitudes towards subjects like divorce, abortion, and birth control and the increasing
encroachment of the State in family life are also considered.
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According to Friedmann word ''social change'' is used in history, politics, economics, and
sociology. Social change is also an issue in social work, political science, history, sociology,
anthropology, and in many social sciences. Social change is being created by revolution, protest,
politics, communities, and by direct action.

Elements of social change can be separated as follows.

1. Physical or geographical

2. Biological

3. Economic

4. Cultural

5. Psychological

Two fold objectives of law to serve is, firstly, to keep up stability and afford orderly life in the
society. Secondly, to persuade social change by changing itself according to the needs of the
changing society. Thus, law is an important agency of social control. The society supervenes the
law for bettermost socialization.

Law as an instrument of social change:

To understand the social change through law and legal system, it is pertinent to understand that
the working of legal system in the light of political,social,economic perspectives which can be
seen in the constitution of India. Law is a mirror to know how people relate to one another , their
values,what they consider worth preserving in life, and how they define their own security.

Law regulates the safety and security of people. It is the cornerstone of the edifice of social
change. Law is an important mechanism for regulating society. It also brings about amazing
social change.

• Law can make a huge difference to the social order. Criminal activities will lessen if murderers
and wrongdoers are given stringent punishment.
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• Lawlessness can harm society in significant ways. If proper laws are not in place, women and
poor people will continue to be exploited and abused. Stronger laws are needed to bring about
positive social change.

• The law of the land brings about positive social change. Whether it is an anti-poverty
legislation or a move to facilitate improvement in education, law can impact the extent to which
all citizens have access to excellent infrastructure and good social welfare services. A country
can change for the better only if lawmakers are there to initiate meaningful change in a positive
direction.

• Law plays a vital role in fulfilling social needs. Legal reforms can end gender bias and social
inequity. Citizens acquire the right to seek legal redress for grievances and violation of their
basic human rights. Law is the medium through which social change can be achieved.

• Any law is effective only if it is implemented properly. The legislation should have inbuilt
mechanisms to ensure that it is able to combat social evils such as dowry and domestic abus

Law as a means of social control:

Law is the perfect tool for maintaining justice and ensuring that lawlessness does not continue to
prevail within society. When legal judgements aim at reforming the system, a wave of positive
social change is initiated.

 Law is the guideline between the right and wrong in the society. Law in India is
constructed keeping in mind different social ideologies, process, etc.
 The law revolves around the social institutions, socio-economic networks, and social
processes. Along with this Law also plays an important part in changing the social rituals.

Two fold objectives of law to serve is, firstly, to keep up stability and afford orderly life in the
society. Secondly, to persuade social change by changing itself according to the needs of the
changing society. Thus , law is an important agency of social control. The society supervenes the
law for bettermost socialization. Rule of law in any constitution is the bedrock for democracy.
By putting fear in th minds of public, the law is a helpful agency for social control. Law
regulates the behaviour of the people in society. Law, by using force, makes the people
conscious about their duties and obligations.
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In Indian Context , The Shah Bano case typifies an attempt at societal change aborted at the
altar of political exigency. In this case, the Supreme Court had held that a divorced Muslim
woman, like divorced Indian women from other religions, has the right to receive a regular
maintenance allowance from her husband under Section 125 of the Criminal Procedure Code of
India.

Sarla Mudgal v.Union of India is a Supreme Court of India case. Its judgement in 1995 laid
down the principles against the practice of solemnizing second marriage by conversion to Islam,
with first marriage not being dissolved. The verdict discusses issue of bigamy, the conflict
between the personal laws existing on matters of marriage and invokes article 44 of Indian
Constitution. It is considered a landmark decision that highlighted the need for a uniform civil
code.

A systems perspective must acknowledge that social problems are interconnected rather than
isolated. People should be advocates for radical perspectives defensible on both psychological
and political grounds, in keeping with values such as dignity, autonomy, equality, and justice.

Thus the essence of social change lies in the effective application of law. The laws constructed
should be practiced properly by common people as well as the authorities. Only then can it bring
about a social change.
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Chapter – 3
Law between Nations
In Part III follows with an investigation of law between nations in which a brief examination is
made of such mid-20th century phenomena as local organizations of nation-states like United
Nation , Nato , Internatinal Monetory Fund , World Bank subversive activity and the use of
law ang Guidelines to disseminate hostile propaganda in neighbouring states .

In the international system, no absolute power controls state behavior and this leaves room for
cooperation and conflict. Since interaction is inescapable, states are in need of a system to
standardize their acquaintances. This is where international law comes in. International law
provides rules that stabilize and harmonize interactions. In the midst of an anarchical system,
international law allows for the formation of an ‘international society,’ where states see
themselves as restrained by a common set of rules, and work under common institutions. In his
first magnum opus on international law, Friedmann examines the problems confronting law
against a changing social background.

Changing Structure of International Law

In the “Changing Structure of International Law” Friedmann begins by considering the main
changes that have taken place in international law: its vertical extension to new fields such as
economic collaboration and welfare, its horizontal expansion to take in all the civilizations and
cultures of the world as well as the influence of various ideologies. Friedman examines three
main levels of international law: the law of co-existence , the law of co-operation on a universal
level .

Friedmann explains the objective, necessary aspect of the development of international law.
States whether they liked it or not, were drawn into a cooperation movement since in both
economic and technical terms they had become objectively interdependent. Governments needed
to ensure this cooperation not only by concluding bilateral or multilateral treaties in ever-
growing numbers, but especially by creating international organizations to carry out the
functions essential to the welfare of all states. This development of an international law
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expressing the need for states to cooperate in order to attain objectives brings Friedmann to the
question of the sanction in international law. In this context, states need to participate in
institutions of international cooperation and the threat of being deprived of the benefits of such
participation, creates a type of institutional sanction that should assure the international law of
cooperation of greater effectiveness than the international law of coexistence .

However, this assessment of the effectiveness of the ‘sanction of non-participation,’ according to

Friedmann, did not prove true in practice, since if states need organizations, organizations have
more need of states. It is apparent that Friedmann’s emphasis caused him to overestimate the
break between the international law of coexistence and the international law of cooperation, as
well as fail to thoroughly understand the international law of coexistence as being the model
anarchic law.

The changes in the dimensions of international law require a corresponding reorientation in its
study; neither the international lawyer trained in the classical methods of international law and
diplomacy nor the corporation, tax, or constitutional lawyer are equipped to handle this subject
without cooperation with each other, and with economists and political scientists. International
law is becoming a more and more complex and many-sided subject .3

Another theme one might identify in Friedmann's work, again to be found frequently among the
1960s authors mentioned earlier, is that of the 'new subjects' of international law, dealt with by
Friedmann in Chapters 13-15 of The Changing Structure. These are, first of all, certainly the
international organizations, the consecration of which as such, in the International Court of
Justice's opinion of 11 April 1949 on Reparation for Damages Suffered in the Service of the United
Nations, was still very recent at the time Friedmann was writing. But there is also, and this is a
point which traditionally encounters innumerable objections, the possibility for physical or legal
persons also to be, to a limited extent, subjects of international law. It is interesting to note that
Friedmann deals with this point by very clearly distinguishing the position of companies vis-a-vis
international law from that of physical persons, i.e. individuals.

3
CARLSTON, LAW AND ORGANIZATION IN WORLD SOCIETY (1962)
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Globalisation & International Relation

Globalisation has been a major topic in the study of International Relations for the past few
decades. Almost all aspects of the modern day society have been influenced by it in some way.
Moreover, globalisation understood as “an intensification of cross-border interactions and
interdependence between countries”[1] has brought about major change in the international
system. This definition of the term globalisation allows us to comprehend the change of
relationships between individual states from a more or less side by side existence towards their
integration in an international system in which they are more dependent on each other than before.

Friedmann, in fact, treats the whole issue of multinational enterprises (ortransnational companies)
with a considerable degree of clairvoyance, even though he never uses these terms, which had not
yet appeared in the international legal But in speaking of the 'manyfold international economic
activities of private corporations', Friedmann is indeed referring to the activities of multinational
enterprises, though not yet with a very clear concept of these. Friedmann's analyses cover the
whole problem of international investment and the development of agreements between states and
private enterprises.

This adumbrates a discussion that was to rage in subsequent years on the internationalization of
certain types of contracts concluded bystates. He notes in this connection the growth in the number
of arbitrations between states and private companies in the area of international investments
(especially in connection with concession agreements) and argues that the time is ripe for the
realization of certain projects aimed at creating a permanent mechanism for settling disputes on
these questions. This type of mechanism would enable companies to bring an action directly
against a state before an international court, without having to have recourse to the diplomatic
protection of their national state. Indeed, not much later, in March 1965, the Washington
Convention was signed, setting up the nternational Centre for Settlement of Investment Disputes.
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Chapter – 4
Society, Law and the Individual
In Part IV Professor Friedmann explores the concept of freedom of Individual . The part concludes
with a consideration of individual freedom in the face of the pressure towards status brought about
by vast trade unions which by economic power of giant corporations which is brought to bear
upon anyone dealing with them or on smaller competing businesses, and the demands of the State
in the name of national security when awarding contracts dealing with classified matters .

The binding force of law

Law is binding because most people in society consider it to be. Some consider the content of the
law to command obedience, which, in turn, is seen as a compelling obligation. The law achieves
its claim to obedience, and at least part of its morally obligatory force, from a recognition that it
receives from those, or from most of those, to whom it is supposed to apply. Even when laws are
against accepted morality, they are often obeyed. Under certain conditions many people will
violate their own moral norms and inflict pain on other human beings, and that succinctly
underlines the notion that most people willingly submit to authority and, by extension, the law.

Sanctions

Sanctions for disobedience to the law are surely among the primary reasons that laws have binding
force. “The law has teeth; teeth that can bite if need be, although they need not necessarily be
bared.” Sanctions are related to legal efficacy and are provided to guarantee the observance and
execution of legal mandated to enforce behavior.

The Need for Law

Laws permit us to live with other people in a safe and peaceful way. Disputes and disagreements
are settled in court, not in the streets. If two people claim to own the same car, they do not settle
 J a i n | 19

the matter by dueling. Instead, the court decides on the rightful owner. In India , we believe in the
Rule of Law, a three-part principle of justice. First, the Rule of Law means that individuals must
recognize and accept that law is necessary to regulate society. Second, it means that the law applies
equally to everyone, including people in power. And finally, the Rule of Law means that no one
in our society has the authority to exercise unrestricted power to take away our rights except in
accordance with the law.

Function of law
Law operates as the means expressed as statements which formulate the rules and criteria of social
and political action through which the lantent possibilities of men can be brought in the form of
society into secure, communicable, and public existence. And if this is true, the it follows that
human existence without law is either in possible or meaningless. It is law in this first sense which
stands, even only implicitly, behind every legislative and executive act, and which gives them
authenticity. It is the authority behind every law enacted or administered by government operating
in the only valid way that it can, as the agency through which the general sense and purpose of a
society wins expression and is fixed in particular times and places .

Law and Justice

The ultimate goal of law may be to ensure justice for all. Notion of Equality is at the very heart
of justice, but equality doesn’t necessarily mean applying the law equally to all people regardless
of the situation. Every legal system tries to achieve justice, so there is a relationship between the
two. We have mechanisms in place for if we get it wrong .There is a link both historically and
theoretically. They are both part of society, they encourage a certain morality in people and they
both are there to bring some balance to a community. The main difference between law and justice,
is all in the process. For hundreds of years civilizations have been trying to reach this balanced
thing that is “justice.”
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Analysis
It is in very brief terms that W.Friedmann's seek to examine how the two concepts are related to
one another, and eventually conclude that those who are involved in reform activities have a key
role to play in the process of societal change. The subject of the relationship between law and
social change involves extensive jurisprudential, sociological and philosophical discussions and
learning done over centuries by a wide range of renowed commentators and authorities.

A systems perspective must acknowledge that social problems are interconnected rather than
isolated. People should be advocates for radical perspectives defensible on both psychological
and political grounds, in keeping with values such as dignity, autonomy, equality, and justice.

Professor Friedmann's penetrating exploration takes cognizance of the legal systems of many
nations in the myriad situations in which the law impinges upon our daily life. Although the
book is an abridgment of the original text, the deletions have been distributed throughout and the
scholarly presentation of the main thesis and line of reasoning has remained untouched. This is a
book for a student who gives any thought to the law and its function in our changing society
should read, and it will prove a richly rewarding experience.

What lawyer will get it is a review of why and how change take place in the socially sector of
law and indication of how others countaries are dealing with similar problem and a discussion
how far traditional legal ideas are adequate to deal with them what lawyer will also get , as I get
is sence of reality and a feeling of excitement that law is for something and the work lawyer do
really does matter .
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References
1. Swapna Mukhopadhyay , Law as an Instrument of Social Change: the Feminist Dilemma
2. Tsokolo Makhethe K.C , In In the Name of Justice: Law in Society
3. Lincoln Reis , Law , Society and The Individual Oxford press
4. Charles A. Reich , Individual Rights and Social Welfare: The Emerging Legal Issues
5. W.Friedmann law in a Changing Society , 2nd Edition , 5th Indian Reprint 2011

Webliography

1. Wolfgang Friedmann Life ,Wikipedia

{https://en.wikipedia.org/wiki/Wolfgang_Friedmann}
2. "In Memoriam: Wolfgang Gaston Friedmann 1907–1972". The American Journal of
International Law { http://broom02.revolvy.com/main/index.ph}
3. The Newyorks Times W.Friedmann , professor of international law and director of
international legal research at Columbia University,
{ http://query.nytimes.com}

4. The Changing Structure of International Law Revisited By Way of Introduction , Charles

Leberi" {http://www.ejil.org/}

5. law-and-social-change-in-india /article { http://www.legalservicesindia.com}