Courts and social change: A view from the magistrates’ courts
Analyses of law and social change often consider developments (only) at a macro level: they examine the relationship between landmark decisions or test cases in the highest, and most visible (often constitutional) court, and social arrangements, for example, discriminatory workplace or educational practices, taxation policy, availability of health care or the denial of various rights. Political activists, social movements and various organisations often pursue litigation as an important strategy to bring about social change, especially regarding inequalities and civil rights (Sarat and Scheingold 1998, 2001). In contrast to this research on the higher courts, relatively little attention has been paid to the interface between the lower courts and social change. This lack of attention is surprising, as the vast majority of citizens who come into contact with the judicial system will have their case considered (and most likely only considered) in a lower court. Often these citizens experience a range of personal and psychological problems that are social in origin, including precarious employment, welfare dependence, financial hardship, and various health - including mental health and drug-dependency - problems. In this paper we address the significance of the lower courts in understanding legal and social change. In Australia, these courts are called magistrates’ or local courts and the presiding judicial officers are known as ‘magistrates’. We describe a dialectical view of social change in which magistrates and their courts must respond to various changes in their political and social environment and the nature of their responses, in turn can contribute (positively or negatively) to social change. A dialectical paradigm conceptualises law creation as a process aimed at the resolution of contradictions, conflicts and dilemmas that have their origin in wider economic, political and ideological structures. It also recognises the structural limitations on law’s capacity to bring about transformative changes. Law itself is not necessarily the most important factor in understanding how society changes; it cannot resolve such problems as inequality - which have their origins elsewhere in market conditions, politics, or ideology - it can only manage disputes or remedy specific injustices that emerge from these problems which, nonetheless, resurface in other guises and situations. In managing disputes, remedying injustices and seeking to facilitate desistance from criminal behaviour or deterrence (individual and general), magistrates can bring about social change on an individual, local or micro level. The process is continuous or dialectical in nature (Chambliss 1979).
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