Stoddard 1997

From Projecting Power

"Bleeding Heart: Reflections On Using the Law to Make Social Change" pp.967-982[edit]

Thesis: understanding the interrelationship between law and culture, and the use of law for social change

  • Goals of legal advocates for gay rights:
  1. Protection from discrimination
  2. Freedom from intrusion and harassment
  3. Some degree of recognition of queer relationships
  • New York is culturally more tolerant of queerness, but legally offers no protections/recognition
  • New Zealand is culturally intolerant of queerness, but legally offers protections/recognition
  • Assumptions:
  1. Society needs change, and there are people committed to that change
  2. Employing the law to make change is appropriate

i. The New Zealand Conundrum[edit]

  • The 'conundrum': New Zealand is legally progressive with respect to queer protections, but is culturally conservative in this respect
  • social change and legal change do not always walk hand-in-hand
    • "one does not stimulate the other"

ii. A Paradigm of Reform[edit]

  • Goals of lawmaking
  1. To create new rights and remedies for victims
  2. To alter the conduct of the government
  3. To alter the conduct of citizens/private entities
  4. To express a new moral/standard
  5. To change cultural attitudes/patterns
    • "rule-shifting": the traditional role of the law in expressing the formal rulemaking/enforcement function for society
      • the first three goals comprise this role
    • "culture-shifting": advancing the rights and interests of people who have been treated poorly by the law and by the culture, promoting values that should be rights
      • the fourth and fifth goals comprise this role
  • The Civil Rights Act of 1964 ("The Act")
    • it had both "rule" and "cultural-shifting" power and met all five goals of lawmaking
    • the Act was the result of "passionate and informal national debate" among Americans that lasted a decade, and this debate is what gave the Act its "culture-shifting" power
    • because the Act was passed by Congress it was received as more legitimate, giving it "rule-shifting" power

iii. When "Rule-Shifting" Becomes "Culture-Shifting"[edit]

  • Factors that determine when "rule-shifting" becomes "culture-shifting":
  1. A change that is broad or profound
  2. Public awareness of that change
  3. A general sense of the legitimacy (or validity) of the change
  4. continuous enforcement of the change
    • "culture-shifting" requires all four

a. The Breath of Change[edit]

  • Some forms of "rule-shifting" are "so grand or so pervasive" that they inevitably become "culture-shifting"
    • ex: The Civil Rights Act of 1964, Anti-smoking laws
    • these "pervasive" "rule-shifting" laws must be "known, accepted, and enforced" in order to have "culture-shifting" power

b. Public Awareness of Change[edit]

  • ordinary citizens must be aware that a "rule-shift" has taken place in order for "culture-shifting" to occur
  • changes that happen at the legislative level typically gain more public awareness than those that happen at the judicial or administrative levels
    • legislative lawmaking processes are typically more public, leading to more debate among constituents, allowing for a more significant "rule"/"culture-shifting" effect