SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The main exponents of sociological jurisprudence are: Montesquieu, Auguste Compte, Albert Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is regarded as founding the father of the sociological school of law.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by the Comte and he described Sociology as a positive science of social facts. He said that Society is like an organism and It could progress when it is guided by Scientific Principles. Thus, he makes great efforts to use the law as a tool by which human society maintains itself and progresses.

The main subject matter of sociology is Society. Sociology is the study of society, human behavior, and social changes.  And jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This school laid more emphasis on the legal perspective of every problem and every change that take place in society. Law is a social phenomenon and law has some direct or indirect relation to society. Sociological School of Jurisprudence focuses on balancing the welfare of state and individual was realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence studies the relationship between the law and sociology. Every problem or concept has two different aspects. One is sociological view and other is a legal aspect. For example Sati.

Background Of Sociological Jurisprudence

The factors which led to the establishment of sociological school are as follows:

• The 19^th century witnessed a shift of emphasis from the individual to the society. This happened as a result of the shocking consequences resulting from the Laissez faire doctrine.
• The Historical  School which was a reaction to the intense individualism of the 19^th century by its emphasis on the Volkgeist spirit of the people – indicated that law and the social environment in which it develops are intimately related. This idea was worked out by the jurists of sociological school.
• Prior to the 19^th Century matters like health, welfare, education etc were not the concern of the state. In the 19^th Century because of the adverse effects of laissez faire doctrine, the state became more and more concerned with numerous matters encompassing almost all aspects of human life and welfare. This implied regulation through law, which compelled legal theory to re-adjust itself so as to take account of social phenomena.
• Also there was a dire need to study law not in near abstraction, but in its functional and practical aspects. By this time the shortcomings of purely formal analysis (as propounded by analytical jurists) were being felt. Therefore the Sociological school of jurisprudence was established as a reaction against too much theorising of the law.
• Prior on account of economic and social conflict towards the beginning of 20^th century led to growing disbelief  in the eternal principles of natural law of which had until now placed an idea of harmony before the individual. To solve and bring harmony between the people, a sociological school of thought was inspired.
• Revolutions and social and social unsettling not only upsetted any complacency (self satisfaction) about social stability, but also provoked anxiety about the shortcomings of the law.  Sociological jurists wanted to overcome these shortcomings.

These factors contributed to the Rise Of The Sociological School.

The main feature of Sociological school of law

• Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract content.
• They consider law as a social institution essentially interlinked with other scientists and the direct impact of the law on society with its formation according to social needs.
• Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical jurisprudence.
• Sociological jurists describe the perception of the law in different ways like the functional aspect of law or defining the law in terms of courts rulings and decisions with a realistic approach of law.

Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of jurisprudence. He was of the view that the legal process is somehow influenced by the social condition of society. He also recognized the importance of history as a means for understanding the structure of society. And explained the importance of studying the history of society before formulating the law for that society.

In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of a nation so that they should be in relation to the climate of each country, to the quality of each soul, to its situation and extent, to the principal occupations of the natives, whether husbandmen, huntsmen or shepherd, they should have relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.”

Eugen Ehrlich (1862-1922)

Ehrlich another eminent jurist of the sociological school primarily expounded the social basis of law. Like Savigny, he believed in the spontaneous evolution of law but he did not hang on to the past but conceived law in the context of existing society and thus evolved his theory of living law.

According to Ehrlich, the institution of marriage, domestic life, heritage, possession, contract, etc. governs society through living law which dominates human life. By living law, he meant the extra-legal control that controls my social reality. The central point of Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal 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 in juristic science, nor in judicial decisions, but in the society itself.” Hence the living law is the fact that governs life and a proper study of law requires the study of all the social circumstances in which the law functions in society. A statute that is habitually disregarded is no part of living.

The use of the word ‘sociological jurisprudence’ means that the law should be made in society, and its needs should be given more attention. To achieve this end, a very close study of the social conditions of society, in which law is to be worked, is indispensable.

For example: There may be some enactments enforced in the sense that courts may apply them in the decisions in any issue but a community may ignore the enacted laws and lives according to the rules created by their mutual consent, like dowry system in India.

Inhering (1818-1892)

Inhering was a German jurist and described as ‘the father of modern sociological jurisprudence’.

His main work is ‘The spirit of law’. But he is very well known for his principal:

Wor Der Zweck in Reett (1877-83) = ‘Law as a means to an End’.

He rejected the Analytical and Historical jurisprudence as the jurisprudence of conceptions. He says that the law is coercion organized in Act by the state. It is a way to achieve a proper balance between social and individual interests. It is through two impulses- coercion, and reward that society compels individuals to subordinate selfish individual interests to social purposes and general interests. Thus his insistence on the need to reconcile competing individuals and social interests made him ‘the father of the modern sociological jurisprudence that inspired jurists like Roscoe Pound and others.

• He described the law In following aspects:
• Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to law and the role of law is to harmonize the conflicting interests of individuals for the purpose of protection of interest of society. He gave importance to living law which develops with the struggles of society.
• Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to serve a social purpose. It is the duty of the state to promote social interests by avoiding various clashes between social and individual interests. According to him, “law is coercion organised in a set form by the state”, which means that he justified coercion by the state for the purpose of social welfare.
• Law as one of the means to control society: Law alone is not a means to control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and avoidance of pain but for the society, that’s the reason that Ihering theory is also known as the theory of “Social Utilitarianism”.

So, according to the Ihering, the social activities of individuals can be controlled by the state by means of coercion, reward and duty for achieving social control for the welfare of society. Friedman said that “Ihering was declared as the father of modern sociological jurisprudence because of his concept of law as one of the important effective factors to control social organisms.”

Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. His major works are:

• Spirit of the common law.
• An introduction to the philosophy of law.
• Interpretation of legal history.
• Law and morals.
• The formative era of American law.
• Administrative law.
• Social contract through law.
• The task of law.

He treated law as a means of affecting social control and his contribution to jurisprudence is great.

Theory of Social Engineering

The American Jurist, Roscoe Pound propounded the theory of social engineering. According to him, as Engineers need to use their engineering skills to manufacture new products, Social Engineers too need to develop a type of structure in the society which provides utmost happiness and minimum friction. He said that everyone has their individual interests and consider it to be supreme to all other interest. The law focuses on seeking a balance between the interests of the people.

Article 19(1)(a) of the Constitution of India can help us understand this ‘balancing element’ in a better way. Although, Article 19(1)(a) guarantees the ‘Rights to speech and expression’, it also gives the State the liberty to put reasonable restrictions contained in Article 19(2).

With the help of law, Social Engineering aims at balancing the conflicting interest of the individual and the state. Law helps in solving conflicting interest and problems in the society. This body of knowledge helps carrying out social engineering.

Interest Theory

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the overlapping of the interests, he put boundaries and divide the kinds of interests.

• Classification of Interest

Jural Postulates by Roscoe Pound

According to Roscoe Pound, every society has certain basic assumptions for proper order and balance in society. These assumptions are implied and not in expressed form and are called as Jural Postulates of the legal system of that society. These assumptions of man related to the reference for what they want from the law or legal system or we can say that it is the expectation of a man from the law. He has mentioned five kinds of jural postulates:

• In a civilised society, man must be able to assume that others will not commit any intentional aggression on him.
• In a civilised society, man must be able to assume that they must control for beneficial purposes. E.g.- control on whatever they discover or create by their own labour.
• In a civilised society, man must be able to assume that those with whom they deal as a number of societies will act in good faith.
• In a civilised society, man must be able to assume that the people will act with due care and will not cast unreasonable risks of injury on others.
• In a civilised society, man must be able to assume that certain people must restrain from doing harmful acts under their employment and agencies which are otherwise harmless to them.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for civilised life and with the changes in society, the jural postulates may emerge or originate in society.

• Criminal: An interest of protection from any intentional aggression. For Example, Assault, Wrongful restraint, Battery, etc.
• Law of Patent: An interest of securing his own created property by his own labour and hard work. E.g. agricultural land, any music or artistic things.
• Contract : The interest in making the contract and getting of reasonable remedy or compensation when his right violate
• Torts: Protection against Defamation and unreasonable injury caused by the negligent act of another person.
• Strict Liability: Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury caused by the things of another person. It is the duty of other people to keep his/her things with his/her boundary and should look after that thing to avoid injury to other people. 

Criticism:

Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the actual work of law in society, his theory suffers from some shortcomings. Pound’s theory of social engineering has been criticised on various grounds.

It has been argued that the classification of interests by the Pound is in the nature of a catalog, in which additions and changes must be made continuously that are neutral in relation to the value and priority relative to the neutral value. Pound’s theory of social engineering has been criticized for its use of the term engineering, which equates society to a factory like a mechanism. Law is a social process rather than the result of applied engineering. It is also not right to equate society with a factory because the former is changing and dynamic in nature while the latter is more or less stable. Again, Pound’s emphasis on engineering ignores the fact that law evolves and develops in society according to social needs and wants that for which law can develop in society according to social needs and for which either in law approval or rejection may occur.

A general criticism against Pound’s theory is about his use of the word ‘engineering’ because it suggests a mechanistic application of the theory to social needs, the term “engineering” is used by Pound as a metaphor to indicate the problems that law has to face, the objectives to be met and the method one must adopt for this purpose.

Duguit ( 1859 – 1928)

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law) who made a substantial contribution to sociological jurisprudence in the early twentieth century. He was much influenced by August Comte’s theory of law as a fact that denounced individual rights of men and subordinated them to social interest and Durkheim’s work “Division of Labour in Society”. In this theory, he made a distinction between the two kinds of needs of men in society namely:-

• Common needs of the individuals who are satisfied by mutual assistance,
• Diverse needs of individuals who are satisfied by the exchange of services.

Therefore, the division of labour is the pre-eminent fact that Duguit called “Social Solidarity”. In his theory, he explained the social cooperation between individuals for their needs and existence.

• Theory of Social Solidarity:-

Social Solidarity is the feeling of unity. The term ‘Social Solidarity’ represents the strength, cohesiveness, collective consciousness, and viability of the society. Solidarity is nothing more or less than the fact or interdependence uniting the members of human society, and particularly the members of a social group by reason of the community of needs and the division of labour.

Law is an instrument of social solidarity and cohesion. Because man cannot live apart from society, as a social animal. Law is not a body of rights. The only real right of man in society is to do his duty. All human being’s activities, and organizations should be directed to the end of ensuring the smoother and fuller working of men with men.

This Duguit calls the principle of social solidarity. For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity.  

Implications of Duguit’s Theory

• David attack on sovereignty; Minimization of state functions-: Duguit attacked the myth of state sovereignty. Social solidarity is the touchstone of judging the activities of individuals and all organisations. State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals who govern. Therefore, the state stands in no special position of privilege and it can be justified only so long as it fulfills its duty.

Duguit’s story of minimization of state function leads him to deny any arbitrary power to legislators. According to him “legislator does not create law but merely gives expression to judicial norms formed by the consciousness of the social group”.

• No Distinction Between Public And Private Rights: Duguit’s views on state and its functions led him to deny the distinction between private and public law. According to him both are to serve the same end i.e. ‘Social Solidarity’. Therefore, there is no difference in their nature. Such a division will only elevate the state above the rest of the society which Duguit’s theory never accepts.
• No Private Rights : Another important point in Duguit’s theory is that he denies the existence of private rights. He says that “the only right which any man can possess is the right to always do his duty“. Individuals working in any capacity are the parts of the same social organism and each is to play his part in furtherance of the same end i.e. ‘Social Solidarity’.

Duguit’s Contribution

• His Idea Of Justice Is In Social Terms

Despite defects and weaknesses in Duguit’s theory, his contribution and influence was great. His approach is very comprehensive and sincere. He shaped a theory of justice out of the doctrines of sociology. Many jurists later, proceeding from different premises, reached similar conclusions as Leon Duguit. National socialists and Soviet Jurists  both adopted many of the principles from Duguit’s theory but interpreted it differently so as to suit their purposes.

Inspired by the Duguit’s  emphasis on the importance of ‘Group‘ many later jurists such as Hauriou and Renard propounded Institutional Theory.

ECONOMIC INTERPRETATION OF LAW

By the end of the nineteenth century, economics had established itself as a progressive social science. Legal scholars and progressive economists such as Roscoe Pound criticized the US courts’ assumptions that legislation protecting workers violated a constitutional standard of substantive due process. The philosophy of the Economic School of Jurisprudence dates from the seventeenth century and reflects the connection between law and economy. The legal system and economics of a country, according to Scottish jurists, are inextricably linked. Because the idea of political economics was an important element of Adam Smith’s Jurisprudential philosophy, it was widely acknowledged. Any economic study of a situation yields better outcomes than any other theory in which analytical techniques fail.

• Economics:

Economics, is the science of wealth. Broadly, it deals with the production of wealth and promoting maximisation of wealth. Economics identifies the important factors of production as the source of wealth creation. It explains the necessity and hurdles faced in the society in the proper distribution of wealth on the parameters of utility, optimality and efficiency. Its ultimate end is promoting maximisation of satisfaction. Its ultimate aim, as is the case of all disciplines , is the welfare of the society.

• Jurisprudence

Jurisprudence, on the other hand,  is the science of law. In general, it deals with making of the law, mechanisms for its enforcement and maximisation of justice. Jurisprudence identifies the important sources of law, and examines their relative merits and demerits, the role played and being played by the different sources of law and compares with the reality in the contemporary society. Its ultimate objective is ensuring justice in the society , its realisation and maximization. Jurisprudence is the study of conceptualisation, categorisation and correlation of the legal principles, both ‘is’ as well as ‘ought’ with the ultimate aim of conceiving a legal system that makes justice prevalent in the society. Its aim, ultimately, is the welfare of the society.

Law and Economics are thus interlinked with the end of both the disciplines being “welfare” of the mankind.

• Basis of economic analysis of law

Economic Analysis of law is laid on the foundation that a human being is a rational maximizer of his ends or his satisfactions in life. The human being is driven by his self-interest. Self-interest is different from selfishness. The expression Self-interest is sometimes used to include both one’s own happiness and the other’s misery.

Economic Analysis of Law is grounded on the philosophy of “utilitarianism”.

Utilitarianism – propounded by – Jeremy Bentham.

His general view on utilitarianism is aptly expressed in this classic passage :

“Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the other hand the standard of right and wrong , on the other the chain of causes and effects, are fastened to their throne. The principle of utility recognises this subjection and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason , in darkness instead of light”.

Utilitarianism thus looks to the future. Its concern is maximisation of happiness or welfare or something that is good.

 Two forms of utilitarianism

Criticism: Prof. H.L.A. Hart criticised utilitarianism. According to him, utilitarianism treats individual persons equally, but only by effectively treating them as having no worth, for their value is not as persons but as experiences of pleasure or happiness. Separate individuals are important to utilitarians only in so far as they are ‘ the channels where what is of value is to be found’. The analogy used by utilitarians, of a rational single individual prudently sacrificing present happiness for later satisfaction.

Chicago School of Law

The Chicago school of law and economics has long been connected with legal economics. The notion that choices might be based on intuition and imprecise moral convictions or on scientific evidence is the beginning point for economic analysis of legislation. To apply economics to the legal decision-making process, the logic behind the economic study of law is very straightforward. Economic analysis of law is now considered one of the main tendencies in modern jurisprudence. The Chicago method incorporates both positive and normative legal philosophy. It asserts that law is built on the efficiency principle and that judges consider efficiency enhancement as the primary goal of the law, even if they use other terms like justice. Economic analysis of law is now considered one of the main tendencies in modern jurisprudence.

• It implies that individuals are rational and that they maximize their happiness in both non-market and market situations. A utility function might be used to describe their preferences. If it enhances his benefit, the “economic man” may be entirely reasonable despite breaching legal standards.
• The judicial system’s decision-making process should resemble that of the economical market. It implies that the law should be interpreted in terms of economic efficiency.

Teubner’s Theory

According to Teubner, law encodes legality/illegality information, whereas economy encodes utility/non-utility information. Both systems are completely self-contained, yet some intellectual impact is conceivable during the decoding and translation of data.

Sanctioning is an example of such a process of translating legal information into economic language. When such logic is circulated inside the legal system of communication, it results in some sort of “economization” of the legal system. “Doctrine of efficient breach,” according to Teubner, is an instance of such a procedure.

• Efficient breach theory = the idea that parties should feel free to breach a contract and pay damages because doing so is more economically efficient than performing under the contract.

Ronald Coase

The contrast between negotiating and management transactions, as emphasized by Commons, was embraced by Ronald Coase. The former related to market exchanges, while the latter referred to economic organizations such as businesses and governments that “supersede” pricing processes. In actuality, the legislation has a broad impact on transaction costs and their distribution. This is the foundation for the normative Coase theorem, which argues that judges should thoroughly consider all economic issues and their ramifications when making legal judgments.

The use of Zero Transaction Costs (ZTC world) made the initial rights allocations meaningless, according to Coase. However, in the actual world, this idea does not hold true.

Example: One can explain the Coase theorem environmental economics using the Coase theorem graph as shown below. It shows the dispute between the polluter and the victim of pollution.

As per the above figure, one can observe that when there is a pollution dispute between the producer of the pollutant and the victim, then-

• Pollutant gets a marginal benefit represented by line ABC.
• The victim gets a marginal disbenefit, as shown by line OBD.
• To reduce the pollution, victims will have to pay an amount equal to what the triangle ECB shows.
• For the Pollutant to continue polluting, it must pay an amount equal to triangle OBE.

Thus, beneficiaries can see that the theorem helps in the amicable resolution of the pollution problem between the polluter and the victim. Moreover, it resolves in an efficient and optimum manner without caring about the nature of the outcome.

J. R. Commons

J.R. Commons presented one of the most influential and pioneering theories on law and economics. His property theory led to a number of generalized insights on the growth of law and economics. He defined “market” as a process that involves the flow of transactions. In this volumetric context, the pricing system was working, which was defined by the disparities between parties.

This imbalance was due to the unequal distribution of economic power in society. The transactions between legal and economic superior and inferior took place within economic institutions rather than in the market. In turn, economic power affected the legal power of institutions, increasing the gap between rich and poor.

Criticism of Economic Jurisprudence

1. Ronald Dworkin was opposed to the acknowledgment of wealth as a fundamental value in society, as well as the reliance of other values and rights distribution on money maximization. The first distribution of rights, according to Dworkin, cannot be instrumental, i.e. based on the efficiency principle, because the argument is harmed by its circularity.
2. The term “property” is commonly used to refer to the object or thing that is owned, but in law, it refers to the owner’s right to that object.
3. Any individual has the right to possess, use, enjoy, and dispose of property which is overlooked in this approach.
4. Not people or objects, but functions, are considered and classified in the generation and distribution of wealth in social economics. As a result, it states that there are wealth creators and consumers, despite the fact that every man is a consumer and virtually every man is a producer to some extent. As a result, it makes no reference to laws.