Academic journal article Nottingham Law Journal

How Does Public Opinion Influence the Law?

Academic journal article Nottingham Law Journal

How Does Public Opinion Influence the Law?

Article excerpt

INTRODUCTION

In physics, the phenomenon of momentum often occurs after the influence of a force namely pressure. Public opinion most strikingly influences the law in much the same way--through pressure. It exists as a background presence and, because the public is not a maker of law, can only influence decisions and actions. As already mentioned, the most obvious example of how this occurs is through pressure. However, public opinion can also be a persuasive reason for choosing a particular policy or deciding a case a certain way. Public opinion may guide the direction of law reform by guiding policy or it may affect the speed at which policy becomes law--by either slowing down or speeding up the process. At this point, however, it is vital to appreciate another aspect of the analogy with physics; although momentum is affected by pressure it is also affected by a variety of other forces such as gravity and electromagnetism. Similarly, although the law is influenced by public opinion, there are several other equally if not more important factors which influence the legislation process. Examples include: mathematical prediction models relating to the future of the economic climate, logical deduction of what justice would require in a given case, and even a well-placed politician's charisma. Overall, public opinion is only one of many substantial factors which influence the law concurrently; the extent of any particular factor's influence differs depending on the circumstances.

SCOPE OF ANALYSIS AND FINDINGS

Due to inherent uncertainties and wide range of factors which influence the formation of law, one cannot sensibly measure the contribution of public opinion without extensive empirical sample-testing. To that end, in order to keep speculation to a minimum, any assertion the author makes about the extent of influence can only be general. The more pertinent focus is upon the variety of influential methods and effects.

This essay will also focus on the relationship between public opinion and the law in western democracies, namely the United Kingdom ("UK") and the United States of America ("US"). These systems give relatively high prominence to public opinion but that is not to say that public opinion has no influence upon the law in other systems around the world. Furthermore, public opinion' is given a concrete meaning as the average opinion on a given issue. As such, public opinion polling gives the fairest indication of what the public opinion is. Herbert Blumer defines public opinion as the end product of an interaction between functional groups rather than the collective opinion of the mass. (1) This purist definition is rejected. If Blumer's definition were adopted, the relationship between public opinion and the political process would be so close that the results of most parliamentary debates could sensibly be deemed to be public opinion'. In essence, public opinion would be the progenitor of all legislation. A better name for this conception would be state opinion'. Further, Blumer criticised public opinion polling because of the random sampling method. He argued that individuals in power exert more influence upon public opinion than others but this is a flawed way of thinking. Individuals with power and influence may bring the opinions of many others into line with theirs but the crucial issue is whether the opinion is endorsed by the collective. As such, there are two differing opinions at separate points in time--before and after the change brought about by the individual with power. Blumer's definition is too narrow in that it disregards the original opinion.

MODES OF INFLUENCE

Two entities stand out as prominent evidence of public opinion: opinion polls and the media. Opinion polls are straightforward evidence of raw public opinion drawn from a random sample of persons. The media, on the other hand is a more complex creature and its dedication to public interest coverage makes it a reliable indicator of public opinion. …

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