What does it mean to say that law is a social institution? In the light of a legal positivist view, law embodies and is contingent to the social construct within our society. Legal positivism is the notion that law depends on social fact and that its merits do not and should not reflect its intrinsic nature1. Law is simply not a set of rules and regulations that govern the way in which our society should be, but rather, an exhibition of how our society exists as it is2.
That being said, a social institution is a pattern of beliefs and behaviors over time, as defined by Nicosia and Mayer as ‘a set of activities performed by specific people in specific places through time3. Therefore, law encompasses numerous social institutions such as family, homosexuals, or more specifically the Indigenous community etc. – an exhibition of how society exists as it is. The concept that law is a social institution will be discussed in the legal positivist framework particularly in close regard to homosexuality.
Traditionally, homosexuality was seen as an immoral act, it was encoded under the Criminal Law Amendment Act 1885 Section 11 that an act of ‘gross indecency’ between two males led to a term of 2 years imprisonment. In the last century same-sex relationships have been considered acceptable in society. Harsh amendments in legislation against homosexuality grew unacceptable and argument arose that it was an ‘overreach’ in criminal law concerning homosexual behaviour4.
As aforementioned, a social institution is the ‘interaction among activities, people, and places over time’5. The law essentially is a product of these institution’s morals, ideas and standards. The idea that law is a social institution is illustrated by the changes in law over time and the changes in attitudes towards homosexuality that arise simultaneously.
There has been a gradual acceptance and legal recognition of same-sex relationships. This is evident in the evolving attitudes towards homosexuality reflected in various cases and legislation, in which the law has responded positively to the changes in these social standards.
As seen in the case of Hope & Brown v NIB (1995)6, where the couple, Andrew Hope and William Brown attested to the Equal Opportunity Tribunal (EQT), arguing that NIB Health Fund Ltd had denied them access to a family health insurance policy on the basis of their sexual orientation.
The EQT coerced the insurance company to recognise the couple as a family in order for them to receive insurance. It was acknowledged that the policy was in fact discriminatory. A year later, the federal government recognised homosexual couples as a family unit in the 1996 consensus7. Additionally, amendments to the Health Insurance Act 1973 were carried through to recognise same-sex couples and their children as a family. In relation to the theory of legal positivism, these social standards have molded the law, reinforcing that law is dependent on a social construct.
One of the most significant legislative changes was the passing of the Property (Relationships) Legislation Amendment Act 1999 (NSW)8, which granted rights to same-sex couples for the division of property and claiming finances, as well as access to the District Court in a relationship break down. This Act also gave same-sex couples inheritance rights in line with heterosexual couples.
However, bearing in mind the theory of positivism, where law depends on social fact, there are other institutions such as religious groups, like the Australia Lobby Group that curb the acceptance of homosexuality in light of their own social standards. This is evident where the law does not encompass every aspect in the recognition and protection of same-sex couples.
In addition, the Howard government passed the Marriage Amendment Act 2004 (Cwlth) consolidating that marriage in Australia is the union between man and woman only9. In effect, this governance affirmed their social institutional beliefs: opposition to same-sex marriages. Thus, demonstrating that law is a social institution because the law directly reflects the beliefs of the social institution, namely the government.
We can infer that although the issue of marriage equality is shelved, it does not equate to the idea that the whole of society disapproves of marriage amongst same-sex couples, but that certain structured governances limit the extent to which these ideas are legislated. Law is based upon our morals and therefore should be an exact carbon copy of the beliefs and ideas of social institutions.
However external systems, for example, law systems and governments, can limit the degree to which the law wholly represents social institution, in this case, homosexuality. The fact that a policy may be seen as discriminatory, unjust, inefficient does not mean that policy is the law, or the fact that the policy is fair, just and efficient also does not make it law. By taking these authoritative systems out of the equation, law is intrinsically a social institution.
In 2006, the Human Rights Commission published a report titled ‘Same-sex: Same Entitlements’, which found that 58 federal laws discriminated against same-sex couples in areas of financial and work-related entitlements10. This caused social upheaval amongst the homosexual community.
The law responded and shaped into these morals, by means of the Family Law Amendment Act 2008 (Cwlth)11. Changes and alterations were made in federal laws to remove the provisions discriminating against homosexual couples, and thus, they were granted rights pertaining to financial matters. The theory of legal positivism is demonstrated here, where the Amendment mirrors the social fact that there is no sufficient reason for same-sex couples to be discriminated based on sexual orientation and should receive the same benefits, as heterosexual couples.
Homosexuality is now a greatly accepted institution12 whereby the law embraces same-sex couples as equals with heterosexual couples. The Family Law Amendment Act 200813 and the Miscellaneous Acts Amendment (Same Sex Relationships) Act 200814 is significant in the sense that same-sex marriage is now the point of legislative inequality between heterosexual couples and same-sex couples15.
In essence, legal positivism is a construct that gives a greater understanding of law as a social institution. It is inextricably linked to the social order of society.
Homosexuality exemplifies the positivist model through the alignment of developing attitudes and legislation amendments over time. This demonstrates the notion that the morals of our society set ideals for law to abide by. The way law and social construct interconnects means that law is man-made and built upon on patterns of beliefs and behaviour over a period of time.
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Primary Sources of law:
Family Law Amendment (De Facto Financial Matter and other Measures) Act 2008 (Cwlth)
Hope & Brown v NIB Health Fund Ltd  8 ANZ Insurance Cases 61-269
Marriage Amendment Act 2004 Section 88EA
Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008
Secondary Sources of law:
Austin, John (1832). The Province of Jurisprudence Determined. Ed. W.E. Rumble, 1995. Cambridge: Cambridge University Press.
Anthony, T. Sanson, M. Worswick, D (2010) Connecting with Law (2nd Edition), Chapter 1: Introduction: Overview of the Book, 4.
Baker, MJ and Saren, M. (2010). Marketing Theory: A Student Text (2nd Edition). 154 Wilson, P and Brown J.W. 1973. Crime and the Community. St Lucia: University of Queensland Press.
Boesenberg, J, Derwent, B, Hamper, D, Hayes, M, Thiering, N. Legal Studies HSC (Third Edition), Chapter 18: Contemporary issues concerning family law. 278 -297
“Marriage Equality and Public Opinion” Fact Sheet: http://www.australianmarriageequality.com/wp/wp-content/uploads/2010/1[email protected]