Challenges in Law Making in Mass Societies

• Author: Geoffrey C. Hazard, Jr.
• Position: Distinguished Professor of Law, Hastings College of the Law, University of California
• Pages: 1104-1112

Distinguished Professor of Law, Hastings College of the Law, University of California; Trustee Professor of Law, University of Pennsylvania. I express deepest thanks to Charles Marcus of the Library, Hastings College of the Law, for providing the sources cited herein.

Introduction

The setting for law making today and tomorrow is the mass society, or, more precisely, an evolving set of mass societies.

I The Mass Societies

The largest of the mass societies of course are China and India, each with a billion members.¹ Also very large are Europe and the United States. Europe is a multinational system having about 730 million in population (depending on which countries are included),² and has been interpreted as a federal system, actual or emergent.³ The United States is a federal system having upward of 300 million in population. Other very large national systems include Brazil, Indonesia, Japan, Mexico, and Russia.⁴ Large multinational regions having substantial transborder legal relationships include some of these national systems, such as the NAFTA countries (Canada, Mexico, and the United States); Mercosur in Ibero-America (Argentina, Brazil, Paraguay, and Uroguay); those in the Western Pacific interconnected with China and Indonesia (South Korea, Taiwan, Singapore, and Australia);5 and the actual or potential relationships in Africa and in the Middle East.⁶

Page 1104

The extent to which the law making function addresses transborder relationships depends partly on geographical proximity and partly on the condition of underlying political and economic relationships. Geographical proximity is an important determinant in the movement of ordinary individuals, for example, laborers, and in commerce in ordinary goods, such as food stuffs.⁷ At the same time, political and economic relationships can facilitate, reduce, or nullify the potential for transborder relationships between countries near and far.⁸ Consider, for example, the transaction-facilitating relationships within the European Union and between Canada and the United States, compared with the strained relationships between Israel and Palestine, or Pakistan and India, or Cuba and the United States.

These geopolitical relationships between different communities are various and of course subject to continual changes. The complicated relationships between Israel and Egypt or between China and Taiwan are illustrative.

It is a common feature of most of these transborder relationships that they include a large national system, such as China in Asia, France and Germany in Europe, and the United States in the Western Hemisphere. Of course, these national systems are themselves of various size and political and legal complexity. France, for example, is relatively homogenous, while the United States has quite visible internal regional differences, suggested by the demarcation between the "red" and "blue" states in recent elections. However, whether relatively homogenous or internally diverse, the societies in these national regimes are mass societies whose legal systems must be adapted accordingly. Further dimensions of "scale" are confronted where national regimes coalesce in transnational arrangements such as the European Union or NAFTA: National mass communities become international mass communities.⁹

II The Political Regime Of Mass Society

For simplicity of analysis, we can suppose that the model political unit in today's world is a system with 100 million in population. This is much smaller than China, and considerably Page 1105 smaller than Europe and the United States, but it is about the size of Iran, Japan, and Mexico, for example.¹⁰

A political unit of this population already is in scale a mass society. Certainly it is so compared with the size of the nation states that came into being in Europe three or four hundred years ago, and which have become the prototype of the modern state.11 Those were political units whose populations were in the model range of ten million or less, most of whom were living in the countryside or in small villages.¹²

Obviously there are many differences between the societies of three hundred years ago and those of today. Differences in communication and transportation are most salient, for example, between horse and buggy and canal barge, on one hand, and highways and airways on the other. However, the differences in scale are themselves of great significance. It is worth considering some of the differences in the tasks of maintaining community and carrying through governance that are implicated by this difference in scale.

One characteristic is urbanization. Most people in mass societies live in cities.¹³ Virtually all modern communities are highly urbanized and are becoming more so. It is a universal phenomenon of our era that people on the farm and in the villages leave for the city and indeed for the megalopolis.¹⁴ Cities have their own peculiar legal problems, from crowd control to handling household garbage and other nuisances.

Another characteristic is that most civic, economic, and political functions must respond not merely to occasional demands but to thousands or millions of participants and transactions on a routine basis: food supply and distribution; water and electricity supply; housing; transportation; education; police and other security systems; payment systems, banking and other financial systems; manufacturing services, such as repair or equipment; etc. The unfortunate present situation in Iraq is a vivid illustration of the effects of disrupting these networks.¹⁵

Page 1106

A related characteristic is that virtually all of these functions require continual cooperation among a large number of working groups that provide food supply, police, payment systems, etc. The functions are carried out in small enterprises and big businesses and in large and small government offices and bureaus. The peasant behind the plow and the housewife in the cottage are nearly obsolete figures. The epitome of the worker in a modern economy is the salary man, to use the Japanese term; the model residence for the modern worker is a high rise in the city. Both the worker and his or her abode require complex interacting arrangements to keep functioning.

Moreover, in most of these model political units, the members of the population are relatively young and correspondingly "alienated," that is, unstable in their place in society, in their affinities with others, and indeed in their self-identities.¹⁶ They are, understandably, readily influenced by simple ideas that promise remedies for these afflictions-fashions such as consumer goods and services and instant political action. At the same time, some of these societies have to deal with aging populations of people who are also alienated on different terms. The millions of "grey-heads" in Europe and Japan, and many also in the United States...