Comparative Analysis of Social and Legal Change

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Important dimensions in the relationship between social and legal change include the form of law, its content, and the process whereby change occurs within the legal arena. One of the first decisions of a newly established government is the content of law. This is determined by the beliefs held by the political leadership and includes substantive concerns that they think can be addressed within the legal order. A second and related decision is what form the legal order will take. The essence of this decision is the mix of formalism and informalism that characterizes the law. Research on legal and social change has been hindered by a lack of conceptual clarity regarding informalism and a failure to locate changes in the form and content of law in the broader context of structural and historical influences on the society. This project examines these dimensions through an analysis of specific changes in the content of law, the mix of formalism and informalism of law, and the relationship between this mix and the content of law in Latin American socialist legal orders. Cuba and Nicaragua, two socialist regimes that have taken different approaches to legal order and which have undergone marked changes in their political-economic structures, are the natural settings for the research. Central to the analysis is an understanding of the historical and structural factors that shape particular aspects of legal institutions. The methodology is both comparative and historical. Documentary data and in-depth interviews with key actors will be used deductively and inductively by testing the theoretical framework in one site and further refining the model as new information emerges from the comparison site. This research bridges the gap between structural analyses of lawmaking and research on the dialectical relationship between informal and formal justice, thus enhancing our understanding of the relationship between legal and social change. The role of legal professionals, the strategy of legal borrowings from other countries, and the specifics of Cuban and Nicaraguan initiatives have important policy implications as well. Finally, the study will inform research on the use of informal justice options in the U.S. by enhancing our understanding of the tension between formalism and informalism in the legal arena.