This article is written by Aamina Rafeek of 10th Semester of B.Com LLB (Hons.) of Government Law College, Ernakulam, an intern under Legal Vidhiya
Sociology is the branch of knowledge that study the society, human behavior, and social changes. Jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence emphasizes that the law and society are complementary to each other. This school argues that the law is a social phenomenon because it has a major impact on the conduct of affairs of the society.
Sociology, society, interests, customs, functional law,
The relation between individuals, society and State are never constant, they evolve and change with time and in accordance with needs of society. There are various theories surrounding the inter relationship between these elements. The early societies were governed by customs which were only a social sanction. Then came the era of Church rule. As a rebellion against the over growing power display of churches, concept of secular state came into picture. The totalitarianism of the state gave rise to period of renaissance and legal philosophers began to think in terms of individual liberties and rights and assert for the same in a wide scale. This resulted in political movements and disturbances as the existing systems were shaken by the new dawn. As a result, there was a need to review legal theory for striking a balance between power of State and individual interests. It was realised that socialisation of law is necessary for the common good of society. Thus emerged the new philosophy of ‘sociological school of jurisprudence’.
ORIGIN OF JURISPRUDENCE
Jeremy Bentham is known as the father of jurisprudence.
The origin of jurisprudence is primarily attributed to Rome and India. Ancient Indian jurisprudence is mentioned in various Dharmashastra texts, starting with the Dharmasutra of Bhodhayana. The practice of Dharma enabled citizens to inculcate a sense of discipline in their actions in a society. It was regarded as commands that lead a man to material and spiritual salvation. But the modern jurisprudence does not have such a wide connotation and is limited to ‘vyavahara’, which according to Yajnavalkya means those rules which determine the judicial proceeding or controversies.
Under the Roman Empire, schools of law were created, and practice of the law became more academic. After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian’s Corpus Juris Civilis was born. The definition and conception of jurisprudence by Roman jurists may appear to vague or inadequate in the modern context, but the credit of recognizing jurisprudence as a separate field to be studied in depth goes to Roman philosophers and jurists.
MEANING OF JURISPRUDENCE
The word Jurisprudence has been derived from the Latin term ‘Jurisprudentia’ which means “knowledge of law”. It is a vast area of study and consists of several ideologies and theories about how laws have been made and recognized in a community. It is that branch of knowledge that focuses on understanding the roots of what has today evolved to be laws and its various applications. Jurisprudence deals with legal reasoning, legal institutions and legal systems.
There are different ‘schools’ of jurisprudence based on different viewpoints put forward by renowned philosophers, legal scholars and jurists as to what law is and what purpose do they serve in a society.
SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
The sociological school of jurisprudence emerged as a counter attack to the analytical positivism theory which over emphasised on the coercive nature of a sovereign authority in order to impart validity to a law in the State. The complete exclusion of law from morality was held to be a dangerous approach by the supporters of sociological school.
The exponents of this school shed light on the intrinsic connection of law to other social sciences such as economics, political science, psychology, ethics, sociology etc. Since laws are laid down to guide human conduct in a society, it cannot be drafted without taking into account essential elements from these subjects.
The main characteristic features of sociological jurisprudence as laid down by Roscoe Pound are as follows:
- The exponents of this school lay greater stress on functional aspects of law rather than its abstract contents. In their opinion law cannot be divorced from social complexities and objectives and practical problems of life. Therefore, it is also known as functional school of jurisprudence.
- They consider law as a social institution essentially interlinked with other disciplines which holds a direct impact in the society and uphold the view that law is designed on the basis of human experience in order to meet the needs of society. Law is in fact a synthesis of philosophy, psychology, political science, economics, sociology etc. And has to be understood in terms of its utility, purpose, effect, practices, and functions.
- Sociological school completely discards the abstract notions of analytical positivism which over stresses on power aspect of law and also emphasize on the customs and traditions which constituted the crux of historical school of jurisprudence.
- Among sociological jurists there is difference in the perception of law. Some prefer to perceive law from a functional aspect while others emphasize on defining law in terms of court’s rulings and decisions thus adopting a realistic approach to law.
The core principle of sociological school is that no effective laws can be formulated without considering the need and structure of the society. Every problem or concept has two different aspects, one being the sociological view and the other is the legal point of view.
Let’s take the issue of female infanticide. From the legal perspective it was declared to be the crime of ‘murder’ ever since the Bengal regulation XXI of 1795. the sociological aspect of this issue is that the nature has designed both sexes with equal importance for continuation of human race on this planet. No sex shall stand on a higher pedestal. Gender equality and empowerment of women were considered as one of the 8 “Millenium Development Goals” by the United Nations Population Fund in 2001.
ADVOCATES OF SOCIOLOGICAL JURISPRUDENCE
The main exponents of sociological school of jurisprudence were Montesqiue, Eugene Ehlrich, Roscoe Pound, Auguste Compte, Herbert Spencer, Rudolph Ihering, Leon Duguit etc. In the United States, Justice Oliver Holmes and Justice Benjamin Cardozo, the renowned American Judges of US Supreme Court were heavily inspired by Roscoe Pound’s Social Engineering theory which led to development of American sociological jurisprudence.
VIEWS OF MONTESQIUE
He was a French legal thinker who is credited to be the first person to study the influence of social conditions on law and legal institutions. In his book “The Spirit of Laws’ he emphasized that the “laws of a nation should be determined by its national characteristics and should bear relation to the climate of each country, the quality of each soil, the situation and extent, 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, and above all, to the religion of the inhabitants, to their inclinations, riches, commerce, manners, and customs”.
Therefore, Montesqiue is regarded as the fore runner of this school of thought. He regarded the study of history to be crucial for understanding the societal structure which is important for formulating better laws to govern the people.
VIEWS OF IHERING
Ihering was critical of the ideas proposed by Kant and Bentham. He opposed the doctrine of individualism which in his opinion was incompatible to the cause of social justice. In his opinion, in order to reconcile the individual with society, it is necessary to balance various interests into 3 categories–
- Individual interests
- State interests
- Social Interests
There are four principles which encourage people to engage in social activities. These are principles of–
The main tenets of Ihering’s jurisprudence of interests may be stated under the following heads.
- Law is a result of constant struggle- Ihering stated law to be a cumulative effect of various social struggles aimed at attaining peace and order. Man’s effort to create a system to harmonize the conflicting interests of individuals in a society by placing public welfare over personal interests have resulted in formulation of laws. Therefore, he rejected the notion that law evolved spontaneously.
- Laws is to serve a social purpose- The objective of law is to serve a social purpose. Ihering considered it as a means to an end. He even justifies the coercion by state as a protective measure for general welfare.
- Law alone is not means to control society- According to Ihering law is one among the many factors that control the society, the others being climate, topography etc. where law need not intervene.
Friedmann calls Ihering the “Father of Modern Sociological Jurisprudence”. According to Ihering 1) law has a coercive character, 2) law has only a relative value, 3) it has to be evaluated in the social context. Thus, he treated law as one of the important instruments to control the social organism. He believed that law does not exist for the individual as an end in himself, but serves his interest with the good of society.
Criticism against Ihering’s theory
There are two main criticisms against Ihering’s theory of law
Firstly, Ihering’s theory merely points out the problems but does not suggest solutions, since he states the function of law to strike a balance between the conflicting interests in society, between individuals and society; but does not say in which direction it should be done.
Secondly some jurists have criticised his theory of purpose. They opine that law protects the ‘will’ and not the ‘purpose’. but this criticism has not attracted much attention as many jurists believe that law seeks to protect purpose and not will of society.
The true position of Ihering is that law has purpose to promote social interests and therefore there can be no such law which does not owe its origin to a definite purpose.
VIEWS OF EUGENE EHRLICH
In his opinion the centre of gravity of legal development in the present time or past lies neither in juristic science, nor in judicial decisions, but in society itself. Like Savigny, he believed in spontaneous evolution of law but he did not hang in the past and conceived law in context of existing society and thus evolved his theory of living law. The ‘living law’ theory of Ehrlich is the ‘inner order of associations’ that is the law practiced by society as opposed to law enforced by the State.
The central point in Ehrlich’s theory is that ‘the law of a community is to be found in social facts and not formal sources of law’. The law in formal sources, like legislation and precedent, does not reflect actual life of the people, just like one cannot have full knowledge of the actual rules of conduct followed by lawyers by reading the Advocates Act as there are many norms followed naturally by professionals and deemed binding on them which are not embodied in law.
Ehrlich’s theory of ‘living law’ came as a reaction against the popular theory of analytical positivism. The crux of his theory is that law need not be necessarily created by the State or applied by courts of law or have a coercive nature with sanctions attached to it, but it is devised by life of people living within the society. he made an exhaustive study of the variety of customs traditions, habits and rules of succession and family relations of nearly a dozen tribal inhabitants in Astro- Hungarian empire and concluded that they persisted independently despite existence of state regulations on these matters, which inspired him to evolve his theory of ‘living law’. He wanted jurists to abandon purely abstract notions of law and focus on the reality surrounding them.
Criticism against Ehrlich’s theory-
- It is said that Ehrlich’s theory blurs the distinction between a legal norm and social norm.
- He gravely underestimates the role of a state made law in the modern welfare societies.
- Friedmann criticised the scope of Ehrlich’s theory to be too wide which relates law to other social science disciplines, even to the limits of absurdity.
- Ehrlich’s theory overlooks the fact that many a times formal law influences and even changes prevalent practices of society in the interest of community as a whole.
VIEWS OF LEON DUGUIT
Leon Duguit was a renowned French jurist who made impressive contributions to the sociological school of jurisprudence in the early twentieth century. His most famous principle is the ‘theory of social solidarity’.
According to this theory the essence of a society depends on the mutual dependency between the people who constitute a society. No society can exist or thrive without cooperation between its members. Duguit also stated that law serves the same end. In his opinion obedience or compliance to laws by people are not drawn by virtue of existence of any higher authority but because they have to co-exist harmoniously as members of a society.
His legal philosophy can be summarized in the following points–
- He rejects state sovereignty and considers state merely as an expression of the will of the individuals who govern.
- The unity of State is not consistent with the collectivist associations.
- Law is only an embodiment of duties which an individual is supposed to perform as part and parcel of the social organisation for furtherance of social solidarity. Law forbidding social segregation promotes social solidarity.
- The sole emphasis of Duguit was on interdependence of men as a member of the community.
- There are three formative laws, namely, respect for property, freedom of contract and public liability for fault which achieve validity when approved by the people. Public opinion is thus expression of social solidarity.
- There is no distinction between public and private law as all laws are meant to serve the end of social solidarity. Duguit denied the existence of rights and held duty as the core of law to attain public good.
- He contemplates gradual withering away of the State and its replacement by group of associations which are engaged in the service of society.
Criticism against Duguit’s theory-
In opinions of several renowned legal philosophers, Duguits’s social solidarity theory has many drawbacks. For him anything which do not encourage social solidarity is not law. His definition of law is very confusing and he fails to distinguish between what law is and what law ought to be.
The biggest weakness of Duguit’s theory is the complete denouncement of the power of Statehood. He favoured minimum state intervention, completely ignoring the fact that the complexities of modern social life and interdependence in society necessitates greater intervention of the State in regulating human behaviour.
The social solidarity theory is said to be a vague concept. The theory nowhere prescribes the authority who confers validity to an act or rule and confirm it to be in furtherance of social solidarity. If such a decision is taken by a court of law, then it would be in the light of personal evaluation of the judge presiding that court of law, which would not be considered ideal.
VIEWS OF ROSCOE POUND
Roscoe Pound was a celebrated American legal philosopher who is best known for his contributions to the Sociological school of jurisprudence which considers societal customs and society as the sources of law. Pound’s legal philosophy focused on the functional aspect of law. The purpose of law, in his words, is to satisfy a maximum of wants with minimum of friction or confrontation.
Pound introduced his own theory of social engineering, where he drew an analogy between lawyers and engineers, viewing law as a body of knowledge and experience that can be utilized by social engineers such as lawyers to structure society for betterment of its members. He equated law to engineering in the sense that just as engineers use their expertise to give structure to their final products, the law can be used in the same way to create a structured society that leads to happiness.
Pound enumerated various interests which law shall seek to protect. They are classified into three categories.
- Private interests – Includes the following
A. Individual interests like that of personality, reputation, freedom of conscience, volition etc. Which are protected by law of crimes, torts, contracts, constitutional law etc.
B. Interests of domestic relations of persons such as husband and wife, parent and children
C. Interests of subsistence such as property, succession, testamentary disposition, freedom of contractual relations, association etc.
2. Public interests-
A. Interests in the preservation of state
B. State as a guardian of social interests such as protection of natural environment, regulation of public employment.
3. Social Interests- social interests which need legal protection are
A. Interests in preservation of peace, general health, security of transactions etc.
B. Preserving social institutions such as religion, political, economic institutions.
C. Preserving morality in society by prohibiting prostitution, gambling etc.
D. Conservation of social resources, protection of economically weaker section of society.
E. Social interests in general progress including economic, political and cultural progress. For example- freedom of trade and commerce, freedom of speech and expression, encouragement to arts and promotion of higher education etc.
F. Interests which promote human personality by enabling a person to live physical cultural and economic life to suit his taste and improve his personality.
Roscoe Pound based his theory on the assumption that protection of interests is the main subject matter of law and it is the duty of jurists to make a valuation of these interests for satisfaction of human wants in order to strike a balance between stability and social change.
Pound suggested five jural postulates which are certain basic assumptions upon which a society’s order rests. They are as follows–
Jural postulate I: In civilized society men must be able to assume that other men will commit no intentional aggression upon them.
Jural postulate II: In a civilized society man must be able to assume that they may control, for beneficial purposes, what they have discovered and appropriated, to their own use which is a creation of their own labour and have developed under the prevailing economic and social order.
Jural postulate III: In a civilized society man must be able to believe that the other members of the society will act in good faith and therefore –
(a) will make good reasonable expectations which their vows or other behaviour reasonably create
(b) will carry out their undertaking according to the expectations keeping in view the moral sentiments of the community attached thereto
(c) will restore particularly or by equivalent what comes to them by omission, failure of the presuppositions of an agreement, or other unanticipated situation where buy the receive at others expense what they could not reasonably have anticipated receiving under the actual possibilities.
Jural postulate IV: In a civilized society, men must be able to assume that those who are engaging in some course of conduct will act carefully for the prevention of an unreasonable risk of injury upon other members of the society.
Jural postulate V: In a civilized society, men must be able to assume that others who are engaged in maintaining things or employing agencies, harmless in the sphere of their use, but dangerous in their ordinary actions somewhere else, and having a natural tendency to cross the boundaries of their satisfactory use, will prevent them from going out of the proper bounds.
Criticism against Pound’s theory
His theory was criticised for using the term ‘engineering’ which equated society to a factory like setup.
Dr Allen has criticized the utilitarian approach in Pound’s theory as it confines the interpretation of “wants and desires” to the only material welfare of an individual’s life and completely ignoring the personal freedoms which are equally important for a happy social living.
It has also been argued that Pound’s theory of interests has no significance in a pluralistic society where there are several linguistic, ethnic, and religious minorities having diverse interests an harmonizing their divergent interests is by no means an easy task to be performed through law and courts.
Dr Friedman has expressed doubts about the classification of interests and stated that “there is a danger of an implicit grading of interests as either individual, public social because there are changing conceptions as has been accepted the found himself. Not only that, the respective value of these interests and their evaluation also depends on changing political and legal system”.
Sociological school of jurisprudence analyses the connection between law and society. Law as an instrument of social change is fundamental in regulating and maintaining order in society and bring reform and progress. It addresses and resolves social issues from a legal perspective. For the betterment and harmonious society, we need better and effective laws. For Example- The 2012 Delhi gang Rape case (Nirbhaya Gang Rape) led to the constitution of Justice Verma Committee whose suggestions culminated in amendment of rape laws in the country and also recognized several new offences against women.
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- Markandey Katju, Ancient Indian Jurisprudence, BANARAS HINDU UNIVERSITY (2010)
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