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A society consists of laws to govern itself. Every society has few internal laws to govern itself, but why? What happened in the history that our ancestors decided to have had laws in society?
Here I will explain how law and society are interlinked with the help of other sciences. I have established a link between law and society through morals and human behaviour. Now I will explain each link to establish a complete link between law and society.
Link 1: Society – Morals
to understand the relationship between society and morals, we need to understand what are morals and where do morals come from? After that, we will be able to understand how morals and linked with society.
What is morality? Morality is the best attempt of our brain to decide what is right and what is wrong. It is our terms and conditions, which helps us to survive in this social jungle.
Where does morality come from? There are three most common answers to this question.
1. Morality is innate, it is by birth and has been developed through the evolution of natural selection. (1)
If morality is innate, then why it varies around the globe and through different periods? (2)
2. Morality is a learned behaviour, kids learn what is wrong and what is right through harm.
If a child is harmed, they feel bad. From this, they learn that harming others is bad because the other person will feel bad. (3)
Here are few examples, you have to decide whether the given situation is moral or immoral?
• “A family’s dog was killed by a car in front of their house. They had heard that dog meat was delicious. So they cut up the dog’s body and cooked it and ate it for dinner. Nobody saw them do this.” (4)
• “A man goes to the supermarket once a week and buys a chicken. But before cooking the chicken he has sexual intercourse with it. Then he cooks it and eats it.” (5)
What do you think? Was it right for the family to eat their own dog? Is having sexual intercourse with a dead chicken moral?
These situations contain no harm, but still, people will find this immoral. This shows that morality extends beyond harm.
3. Morality is a learned behaviour that goes beyond the understanding of harm. (6)
This theory comes from Shweder, a psychological anthropologist who conducted a study, in which he interviewed a variety of people from USA and India. Shweder came up with thirty-nine short stories in which someone does something that would violate a rule either in the United States or India but with no direct harm to someone. (7)
From this experiment, Shweder stated that morality extends beyond harm. And when morality goes beyond harm society plays a huge role.
This argument is further supported by Jonathan Haidt, a social and cultural psychologist. Haidt conducted a similar experiment in several different parts of the world, subjects ranging from different social backgrounds to different educational and economic levels.
Result? The moral domain varied across nations and social classes. Lower class groups moralized less than upper-class people. Children moralized more than adults.
Individualistic and educated cultures have a narrow moral domain. Sociocentreic and less educated cultures have broader moral domains.
Your morals are a combination of natural selection, your childhood experiences of harm and fairness and your socialization. Morals and society are like two sides of a coin.
Morality depends upon society, morality controls our behaviour.
Link 2: Morals – Behavior
People behave differently. Differences in their behaviour correlate to different moral values they hold.
We can understand this by observing society. You will find cultures where children call their parents by their names. There are cultures in which children call their parents by other, respectful adjectives. In Indian cities, wife calls her husband by his name. In Indian villages, the wife does not call her husband by his name.
Link 3: Morals – Law
Morals are a major source of laws. This is an undisputed fact. Different nations have many laws based on the morals of their society.
Indian laws of marriage are based on customs. Customs is repeated behaviour. Behaviours are guided by morals (see link 2).
In my opinion, in the next million years, there will be no laws, everything will be governed by our morals.
Take Delhi Metro, for example, the announcements within the train vary from what the next station is to-dos and don’t in the train, do not spit in the train, do not sit on the floor of the train, etc. On the other hand, in Montreal Metro, the announcements are limited to the name of the next station.
There are no announcements in Montreal Metro deterring the commuters, not to spit in the train or to face punishment.
The reason for this, no Canadian spit in the train or sit on the floor of the train, but Indians do. Canadian society is more sociologically advance than Indian society.
As a society get sociologically advance with time, their reliance on laws will reduce. The daily actions of sociologically advanced people will be governed by their sociologically advanced morals. The current example is the difference announcements in Delhi Metro and Montreal Metro. An example in the next million years could be, a nation with no laws to deter murder, because their killing of another human by a human is not permitted by their morals. And there could be a less sociologically advanced nation with a law to deter murder.
However, there is a flaw in this hypothesis. In link 1 I mentioned that in individualistic and educated societies moral domain is narrower. And here in this hypothesis, I say that sociologically advance society, that means more educated one, will have a wide moral domain, so wide that entire legal system will be covered my morals.
Link 4: Behavior – Law
Till now I have established links between society and morals, morals and behaviour and between morals and law. Now the fourth link is between behaviour and law.
To understand the application of the law to a greater degree and to find flaws in its application, we need to have a better understanding of our psychology, and human nature.
Any shortcoming in our understanding of human behaviour and human psychology can have a huge negative impact on our legal system.
And yes, there are many shortcomings in our understanding of human nature and human psychology, and due to which there are many flaws in our legal system.
Our legal system is based on some flaws. (8)
In the case Ginnah Muhammad vs Enterprise Rent-A-Car (2006)
On October 11, 2006, forty-year-old Ginnah Muhammad brought suit against Enterprise Rent-A-Car seeking relief for $2,750 in assessed damages to a rental car, damages she claimed were caused by thieves. Rather than discussing her claims, however, the court focused on her outfit. She was wearing a niqab, worn by some devout Muslim women, covering the head and face except the eyes. (9)
Ginnah Muhammad was asked by the judge to remove her veil. Ginnah Muhammad refused to uncover her face as her faith does not allow to uncover her face in front of a male member. She said that she has no issues to uncover her face if there was a female judge and requested a female judge. The judge dismissed the case. (10)
Presiding Judge Paul Paruk dismissed her case and gave the following reasoning:
“I can’t see your face and I can’t tell whether you’re telling me the truth or not and I can’t see certain things about your demeanour and temperament that I need to see in a court of law.” (11)
The judge thought that he could not fairly adjudicate a disagreement between two parties when he could not see one of them.
Our legal system is based on this myth. Our daily interactions with each other are based on this myth.
We think if someone is not making eye contact while talking, they may be lying. They may be lying, but this is not always true. Some people will not make eye contact and tell the truth, some will make eye contact and lie. Mismatched personalities are wrongfully convicted due to this myth in our legal system. (12)
In a study conducted by economists, computer scientists and bail experts in New York City, they gathered 5,54,689 records of defendants bought before the court of law for granting bail. Out of which human judges released around 4,00,000 when compared it with an artificial intelligence software created by the researchers, the people were on the AI’s list were 25% less likely to commit any a crime when on bail. (13)
the machine flagged only 1% of defendants as “high risk” individuals to commit a crime when out on bail.
25% is a huge number. Why did human judges under-performed the AI judge? Human judges were able to see both the parties, their expressions, their demeanour but still, they were not able to beat a machine who only rely on the information entered in it.
Is this gap of 25% due to our myths in our legal system? Accordind to Sendhil Mullainathan (the economist from the above mentioned study) it is.
To mitigate these problems, we need to first mitigate these myths form the legal system. To achieve this the judges must have a basic understanding of human behaviour.
Studying law in isolation will only lead to grave issues in our legal system. We need to study law with other subjects like sociology, psychology, morals, history, etc. And this is how law and society are interlinked. They are two sides of the same coin.
To establish a link between law and society I started by explaining how morals are based on our society. Our socialization affects our morals principles. [link 1] Then I explained how morals influence our behaviour in society. [link 2] Further, I discussed issues arising in our legal system due to our behaviour. [link 4]
Morality is a learned behaviour, we learn moral principles from our society. Those moral principles control our behaviour in society. That behaviour can sometimes fool us into believing a few myths, which create problems in our legal system.
Law and society are two sides on a single coin. One without another is incomplete and a recipe for disaster.
1 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 5
2 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 5
3 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 11
4 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 3
5 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 4
6 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 21
7 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 17
8 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 50, 185
9 Claire McCusker, When Church and State Collide: Averting Democratic Disaffection in a Post-Smith World, 25 Yale L. & Pol’y Rev. (2006).
10 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 153
11 Oxford Journal of Law and Religion, Volume 8, Issue 1, February 2019, Pages 213–222.
12 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 50
13 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 39