Sociological school of Jurisprudence

Table of Contents

Introduction

Historical School explained the law in terms of ‘social context’ and accordingly in a way laid down the foundation of the Sociological School of Jurisprudence. It established a relationship between law and society. Law was understood as a ‘social phenomenon’ and believed to directly or indirectly relate to society. The sociological school of Jurisprudence emerged as a result of a shift in the ideology of the State from ‘Laissez-faire’ to ‘Welfare State’.

‘Laissez-faire’ means the policy of minimum governmental interference in the economic affairs of individuals and society. It offered unrestricted freedom to the people by the government in economic matters. The situation of ‘free market economy resulted in the predominance of individual interest rather than general interest or interest of the welfare of the State.

Highlights of Sociological school of Jurisprudence

Law is not unique but only one of the social control norms; the socio-economic problem of the present time cannot be solved through the existing laws; laws in the books and statutes containing formal rules, legislations, and expositions of particular subjects is not where the real law in society is to be found; the law is not an absolute and static body of rules in themselves but is relative to time, place and society; there is a concept of ‘social justice’

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Chief propounders of Sociological school of Jurisprudence

Rudolph Von Ihering
Leon Duguit
Eugen Ehrlich
Roscoe Pound

Rudolph Von Ihering

‘Purpose Theory’

According to him, the dominant notion to be found in the exercise of human will is that of ‘purpose’. Law is a part of human conduct, and in the idea of purpose, Ihering found the mainspring of laws, which are only instruments for serving the needs of society. Their purpose is to further and protect the interest of society. In society, there is an inevitable conflict between the social interests of a man with each individual’s selfish interests.

To reconcile this conflict, he employs the method of reward viz., by ensuring that economic wants are satisfied, and also by coercion. He divided interest under three broadheads, viz., individual, social, and state interest. Law and Conflicting Interests The success of the legal process was to be measured by the degree to which it achieved a proper balance between social and individual interests. Law, according to him, was to encourage social purposes by the lovers of social motion viz., coercion and rewards, duty and love are to establish a balance of interests.

Law, according to him, never serves the interests of an individual as end in itself but only as a means to the good of the society and hence is a relative concept. No logical or abstract theoretical refinement of the purpose of law possible, since the purpose of law has to be in tune with the needs of a particular society at a particular time. He refuted the individualistic concept of law which limited the function of law to the securing of civil liberty by protecting the rights of individuals in consonance with those of others.

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Leon Duguit

Duguit’s Belief

There are two kinds of needs men in society: – -common needs of individuals which are satisfied by mutual assistance. -diverse needs of individuals which are satisfied by the exchange of services. Therefore, the realization of the social fact of inter-dependence of individuals could replace ideological quarrels between individuals. This lead to the concept of ‘social solidarity. Social Solidarity. Social Solidarity is the feeling of oneness.

The term ‘Social Solidarity represents the strength, cohesiveness, collective consciousness, and viability of the society.’ he explained Social Solidarity as the interdependence of men on his fellow men. No one can survive without depending on other men. Hence the social interdependence and cooperation are very important for human existence.

The objective of the law is to promote Social solidarity between individuals. That law is a bad law that does not promote social solidarity. No distinction between private and public law. Both are to serve the same end i.e., social solidarity.

Eugen Ehrlich

Society as the source of Law

Eugen Ehrlich was held as the founder of the Sociology of law. Sociology of law is the study of law from the sociological view. Ehrlich considered society as a principal source of the law. And by society, he means “association of men”. He argued that the “Centre of gravity of all legal developments is not in legislation or judicial decisions but in society itself.”

Also opined that society is the main source of law and better source of law than legislation or judicial decision. Ehrlich’s concept of ‘Living Law’. The central point of Ehrlich’s theory is that the law of a community is to be found in social facts and not informal sources of law. He says “at present as well as at any other time, the center of gravity of legal development lies not in legislation nor juristic science, nor judicial decisions, but in society itself.” Thus living law is the fact which governs life and a proper study of law requires the study of all the social conditions in which the law functions in the society.

A statute that is habitually disregarded is no part of living. His use of the term ‘Sociological school of Jurisprudence’ means that law in a society should be made and administered with the utmost regard to its requirements. To achieve this end, a very close study of the social conditions of the society, in which the law is to function, is, indispensable.

Roscoe Pound

Social Study presupposes Legislations

Social investigations are preliminary to legislation. Factual studies of social effects are essential for effective administration. Constant study is required to make laws more effective. Essential for adjudication of individual cases and disputes.

He emphasized accumulating factual information and statistics and paid little attention to conceptual thinking. Pound called for a new ‘functional approach to law’ based on sound theorizing as to its purpose in a particular age. For him ‘Law is the body of knowledge and experience with the aid of which a large part of social engineering is carried on.

It is more than a body of rules, it has rules and principles and conceptions and standards for conduct and decision, but it has also doctrines and modes of professional thought and professional rules of art by which the precepts for conduct and decision are applied and developed and given effect. Like an engineer’s formulae, they represent experience, scientific formulations and inventive skill in conceiving new devices and formulating their requirements through a developed technique’.

Five Jural Postulates

Men must be able to assume that others will commit no intentional aggressions upon them.
Men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated for their own use, what they have created by their own labor, and what they have acquired under the existing social and economic order.
They must be able to assume that those with whom they deal in the general intercourse of society will act in good faith.
They must be able to assume that those who are engaged in some course of conduct will act with due care not to cast an unreasonable risk of injury on others.
They must be able to assume that others who maintain things likely to get out of hand or to escape and do damage will restrain them or keep them within their proper bounds. Theory of Social Engineering

Pound gave the theory of Social Engineering in which he connected lawyers with the Engineers. Engineers are expected to use their engineering skills to manufacture new products. Likewise, social engineers are required to build that type of structure in the society which provides maximum happiness and the smallest friction.

According to him, “Law is social engineering which means a balance between the competing interests in society,” in which applied science is used for resolving individual and social problems. Social Engineering is balancing the different interests of individuals and the state with the help of law. Law is a body of awareness with the help of law a large part of Social engineering is carried on. Law is applied to solve the conflicting interest and problems in society.

Pound had not only listed the interest recognized by law but he has also considered the ways by which they are to be secured. This consists of the device of legal persons and attribution of claims, duties, liberties, powers, and immunities. There is also the remedial machinery behind them, which aims sometimes at punishment, sometimes at redress, and sometimes at prevention.

Pound has also maintained that a balance of interest is to be brought about. Pound further says that the class to which an interest belongs and its relative weight is subject to change from one class to another and from time to time depending upon political conception acceptable to society at a particular time.