Sociological School Of Law – Notes

sociological-school-of-law

Introduction to Sociological School of Law:
The relation between individuals, society and state got changed and various theories regarding them have been propounded from time to time. In the beginning, society was governed by custom which had a social sanction, then came the supremacy of Priestly class and after that, the secular or welfare state emerged so, due to various changes, the necessity of balancing the welfare of individual and society was realised. Then came the view that the importance of society should be considered in the light of individuals and vice-versa. And these approaches are called a sociological approach. The main concern of sociologist jurists is to study the effect of law and society on each other and they treat law as an instrument of social progress and linked with other social sciences. Hence, sociological jurisprudence is concerned with the functional aspect of law in society.

As Roscoe Pound says that “the sociological jurist took more for working of law than its abstract content.”
The main feature of Sociological school of law:

  1. Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract content.
  2. 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.
  3. Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical jurisprudence.
  4. 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.

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.




Roscoe Pound:

  • The functional aspect of law.
  • Social engineering.
  • Jural postulates.

Introduction:
He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. His major works are:

  1. Spirit of the common law.
  2. An introduction to the philosophy of law.
  3. Interpretation of legal history.
  4. Law and morals.
  5. The formative era of American law.
  6. Administrative law.
  7. Social contract through law.
  8. The task of law.

He treated law as a means of affecting social control and his contribution to jurisprudence is great.
The functional aspect of the law:
Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the rules, principles, conceptions and standard of conduct as a developed technique of social engineering. The main function of law is to satisfy the maximum number of people. Not only this function but also to reconcile the conflict in the interest of individuals and society.

Social Engineering:
He describes that there are various kinds of interests in society and the main task of law is to make all possible efforts to avoid conflict between them. Thus, courts, legislature, administrators and jurists must work with a plan and make efforts to balance these three categories: Public, Private and Social Interests.

  1. Public Interest:
    • Main public interest is interest in the preservation of States.
    • Administration of trust, charitable contracts, protection of the environment, regulation of public employment, etc. are being protected by the States.
  2. Private Interests:
    •  The individual’s interest is known as private interest like physical integrity, reputation, etc. and they’re protected by the law of crime, torts and Contract Law, etc.
    • Domestic relations of a person such as a husband and a wife, parents and children, etc. are protected by Personal Law.
    • The interest of the property, succession, contractual relations, testamentary relations, etc. are protected by Property Laws.
  3. Social Interests:
    • Interest in preservation of peace and health.
    • Preserving social institutions of religion, politics and economics.
    • Preserving certain prohibiting acts like prostitution, gambling, etc.
    • Conservation of social and natural resources.
    • General progress including economic, political and cultural areas. For e.g.- Freedom of Trade and Commerce, Speech and Expression, etc.
    • Interest to make a political, physical, social and economic life to promote personality.

Jural postulates:
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:

  1. In a civilised society, man must be able to assume that others will not commit any intentional aggression on him.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

Criticism:
• Division of interest of society is not proper.
• The postulates don’t have any defined area.




Ihering:
Ihering was another sociological jurist known for his monumental work ‘spirit of the law’. He was against the theory of individuals welfare and favours the factor that social interest of society must have a priority over an individual’s interest and the purpose of the law is to protect the interest of society, that is why his theory is known as ‘Jurisprudence of Interest’ which emphasises on the sociological aspect of Sociological School of Law. He described the law in following aspects:

  1. 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.
  2. 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.
  3. 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.”

Ehrlich:
Ehrlich believed in the spontaneous evolution of law in the context of existing society. According to him, law originates from existing institutions of marriage, domestic life, possession, contract, inheritance, etc. They govern society through living laws. By living laws, he means that extra-legal control which governs/regulate the social relations of man. In his opinion, the centre of gravity of legal development in the present times or in the past lies neither with the juristic science, nor in judicial decisions, but in society itself. His living law is the law which dominates social life even though it has not been known in the form of enactments or decisions of courts. So, the scope of living law is under than the statuary law of the state.
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.




So, we summarise his theory by saying that the law need not be necessarily created by state or applied by courts or have a coercive legal compulsion behind it, but it is created by the groups in the society and thus it is clear that social life is governed by living law and it is a social reality which exists independent from state positive laws. Despite all the criticism that Ehrlich theory is unrealistic, his contribution to jurisprudence in reference to in relation between law, life and society is remarkable.

Duguit:
French Jurist influenced by Auguste Compte. Theory of law which denounced individual rights of man and subordinate them to social interest. Duguit’s theory was based upon Auguste Compte statement that “the only right which man can possess is the right towards his duty.”

We can discuss the above statement by the theory of social solidarity (mutual dependence). This theory was based on the fact that the interdependence of man is the essence of society. Each individual has his existence in the society as a member of society, and any individual cannot obtain the essentials of life by himself and he has to depend on others for his needs. He pointed out that the traditional notions of rights, sovereign, state, public and private law, etc. are unreal and fiction and law is nothing but a virtue which man obey not by virtue of any higher principle but because they’ve to live and survive as a member of society. So, his theory was based on mutual co-operation and interdependence of individuals and society. So, the purpose of the law is to serve and accuse the social interdependence which is duly oriented as it accepts to perform their obligation as a member of the community for proper application of social solidarity. The state exists for performing the function of promoting social solidarity and not exercise sovereignty.

Importance of Duguit’s theory:

  1. Over emphasises was given on duties rather than rights.
  2. The direction towards mutual cooperation among individuals in society.
  3. Law as an instrument of social solidarity to promote justice.

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