Sociological school of

Jurisprudence
GAYATHRI PRAHARSHITHA. K
SAP ID – 81O21319023
SUBMISSION DATE – 18/10/2019

TO
SRIDIP SIR,
FACULTY OF LEGAL METHODS
 TABLE OF CONTENT
1.Introduction of Sociological school of Jurisprudence.
2.Reason for the emergence of Sociological School of
Jurisprudence.
3.Characteristics of Sociological Jurisprudence.
4.Sociological Jurisprudence and Sociology of Law
Distinguished.
5.Other Sociological jurists and legal theories.
6.Sociological Jurisprudence: Indian Position.
7.Conclusion
 Introduction of Sociological school of Jurisprudence:

In early age, rules and laws are originated from the only custom to govern the society which had
only a social sanction. Later, the supremacy of King and priest came. When, after the revolution
and changes, the balance between the individual interest and welfare of society was realized.

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

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was revealing 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 improve when it is guided by Scientific Principles. Therefore, he
makes great efforts to use the law as a tool by which human society maintains itself and
progresses. After Comte, many Writers and Jurist sought to combine the society and law together,
and tried to find a link between law and sociology.

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.

Reason for the emergence of Sociological School of

Jurisprudence:
Due to Laissez-Faire, all people are giving more importance to the individual interest and ignored
the general interest or state interest and welfare of the state. The Sociological school came out as a
reaction against the laissez-faire because sociological school advocates the balance between the
welfare of the state and individual interest.
Laissez-Faire is the unrestricted freedom given to people by the government. It is a governmental
policy in which the government and law will not interfere in the economic matter of people. In the
Laissez-Faire economy, the only role of government and law is to prevent any conflict and
coercion against individuals like theft, fraud etc.
The sociological approach to jurisprudence which resulted out of the change in the political shift
from the doctrine of the laissez-faire, the industrial and technological revolution and finally the
historical school bringing into focus the relationship between the law and social welfare State of
the modern century, has attempted to study law as seeking social origin of law and legal
institutions, testing law as a given social phenomenon and lastly judging law by its social utility.
Therefore, the sociological school of jurisprudence emphasizes on individual betterment, rather than:

 state interest

 general interest

 welfare of the state

In other words, this school of law came out as an outcome, result or reaction of the laissez-faire. This
law is here to help ensure strike a balance between – 1. individual interest and 2. general state welfare.

The factors responsible for the emergence of the Sociological School of Jurisprudence can be
summarized as the following:

1.Mental bankruptcy of analytical approach to meet the social demands of modern society.

2.Conflicts between individual interests and social interests and the need to reconcile them.

3.Inter-connection between law and society

4.Works of the earliest pioneers of the new interests in society i.e. Bentham, Renner, Weber and other
etc.

Characteristics of Sociological Jurisprudence:

The chief characteristics of Sociological Jurisprudence are as follows:

1.The sociological jurists have greater concerns when it comes to the functioning and working of the
law rather than the nature of the law.

2.The jurists often consider law as a body of authoritative guides that help decision making. They
are rarely seen as abstract content of authoritative directions.

3.It considers law as a social and legal institution that can be created and modified consciously. In
simple words, it synthesizes with both – the analytical method of legal practice and historical
approach to the study of law.
4.Sociological jurists focus strongly on the social purposes, goals and expectations rather than the
sanctions and coercive nature of the law.

5.Finally, sociological jurists look at legal doctrines and institutions before considering the most
suitable method or means of satisfying the greater good.

Sociological Jurisprudence and Sociology of Law

Distinguished:
It would be pertinent to draw a distinction between sociological jurisprudence and sociology of law
which appear to be similar concepts. Though it is difficult to draw a hard and fast line of
demarcation between the two because of their identical subject matter they do differ in respect of
their theme and approach to law. Sociological jurisprudence is a functional study of law applied to
concrete social problems in order to make law an effective instrument of social control for
harmonizing the conflicting interest of individuals in the society. In this sense law has a wider
connotation and includes judicial decisions and administrative processes used for reconciling the
competing interests of the people. It is for this reason that sociological jurisprudence has also been
called as functional jurisprudence or jurisprudence of interests or jurisprudence of social
engineering.
Sociology of law, on the other hand, is a descriptive study of law and legal institutions of a given
society. As Roscoe Pound rightly remarked, sociology of law is mainly a descriptive study of law
in a theoretical manner. I t treats law as just one of the several aspects of society and therefore has
a secondary position as compared to society which is the main theme of sociology. Thus strictly
speaking, sociology of law is just a branch of sociology. According to Hall, sociology of law is a
theoretical science which consists of generation regarding social phenomenon, so far as they refer
to contents, purposes, application and effect of legal rules.
According to Dr. Timasheff, “Sociology of law exists as a distinct science whereas sociological
jurisprudence is merely a branch of science of jurisprudence. However, both consider society as the
matrix of their common interest.”

The Sociology of law is the interdisciplinary approach or sub-discipline of sociology. It views the
society from the legal side. And explains the interdependence of Society and law. Sociology law
explains the interdependence of the law and society. Podgorecki has listed the following functions
of the sociology of law:

1. The sociology of law aims at grasping law in its working;

2. it is to provide expert advice for social engineering;

3. the sociology of law makes an attempt to shape its studies so as to make them useful for
practical applications; and

4. the sociology of law struggles with reality.

Thus, the sociology of law aims at the understanding of legal and social phenomena, whereas the
main concern of the traditional approach to jurisprudence is to undertake analytical-linguistic
studies.

Other Sociological jurists and legal theories:

Some of the most eminent sociological jurists are as follows:

1.Ihering (1818-1892)

2.Eugen Ehrlich (1862-1922)

3.Roscoe Pound (1870-1964)

4.Leon Duguit (1859-1928)

Ihering, Eugen Ehrlich, Roscoe Pound and Leon Duguit are the jurists of Sociological school and
they linked, law with other social science disciplines and treated it as a synthesis of psychology,
economics, political science, sociology, etc. According to them, law was an applied science
employing functional methods of investigation and analysis for solving the social and individual’s
problems. In their view, law is concerned with its effect on society and therefore, it would be
erroneous to treat it as mere command or god’s will or the people’s conscience.

Ihering: Ihering laid the foundation of modern sociological jurisprudence by this insistence
on treating law as one of the important factors to control the social organism. According to him: i)
law has a coercive character; ii) it has only a relative value; and iii) it has to be evaluated in the
social purpose. But the Ihering’s legal theory has been criticised for two reasons, firstly, Ihering’s
theory is that it points out only the problems and not the solutions. He says that the task of law is to
reconcile the conflicting interest but he does not say in which direction it should be done.

He criticised the nation of individual freedom and liberty as advocated by Kant and Bentham as
they had divorce legal theory from social realities. He thus opposed the doctrine of individualism
which, in his view was incompatible to the cause of social justice. Ihring opined that social interest
of the society of the society must gain priority over individual interest and the purpose of law
should be to protect the interest of the society. His legal philosophy on sociological aspects of law.

Ihering’s Contribution to the science of Jurisprudence has been acknowledge by Friedman who
calls him the ‘Father of Modern Sociological Jurisprudence’. Inhering traced the development of
various legal system by adopting comparative method of study and came to the conclusion that law
develop by conscious efforts. He was a critic of Savigny’s historical theory and natural law
theories propounded by his predecessors.

Ihering’s legal theory has been criticised for two reasons, firstly, Ihering’s theory is that it points
out only the problems and not the solutions. He says that the task of law is to reconcile the
conflicting interest but he does not say in which direction it should be done. Secondly, some jurists
have criticized his theory by saying that law protects the ‘will’ and not purposes stated by Ihering.
But this criticism has not attracted much attention because many jurists including Korkunov
believe that law seeks to protect ‘purpose’ and not the ‘will’ of the society. Ihering theory was
mainly based on the Bentham principle of utilitarianism and he sought to reconcile competing
social and individual interests.

Eugen Ehrlich:

Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of
law from the sociological perspective. Ehrlich considered society as a main source of the law. And
by society, he means “association of men”. Ehrlich had written that “Centre of gravity of all legal
developments is not in legislation or judicial decisions but in society itself”. He argued that society
is the main source of law and better source of law than legislation or judicial decision.

He derived law from social facts and depends not on state authority but on social compulsion. Law,
he said, differs little from other forms of social compulsion and the state is merely one among
many associations, though admittedly it possesses certain characteristic means of compulsion. The
real source of law is not statutes or reported case but activities of society itself. There is a ‘living
law’ underlying the formal rules of the legal system and it is the task of the judges and the jurists to
integrate these two types of law. Ehrlich recognised, however, that a legal system has an impetus of
its own, a professional tradition which may operate for good or ill, and accordingly stressed the
need for lawyers and judges to understand the social foundations of legal rules thereby develop
them on right lines.

Ehrlich’s work is full of stimulating suggestions for a scientific approach to law which relates the
law more closely to the life of a scientific society approach to law which relates the law more
closely to the life of society but his works show some weakness also. Firstly, it gives no clear
criterion by which to distinguish a legal norm from any other social norm. As Friedmann observes
“the interchangeability of both, which is a historical and social fact, does not diminish the need for
a clear test of distinction”. Again the stress which he laid for the distinction of living and formal
law is an exaggeration. As said by Dias “the distinction between formal and living law is necessary
and important. But there is some danger of a merely verbal discussion as to whether both should be
called ‘law’ or only one, and if so which. He deprived formal law of any creative activity and gave
it too much the appearance of trailing in the wake of social developments. It is true that reforming
legislation is sometimes the formal expressions of a tide of public feeling but it is also true that
many norms of behaviour have been given shape and direction by the constant enforcement of
law.”

Roscoe Pound:
Roscoe Pound's theory of sociological jurisprudence, firstly talks of a factual study, secondly social
investigations, thirdly just and reasonable solutions and lastly the achievement of the purposes of
various laws. He likened the task of lawyer to that of an engineer - to build an efficient structure of
society with the satisfaction of the maximum of once with the minimum of friction and waste. It
speaks about balancing of conflicting interests or defactor claims wherein the interests are
categorised into individual public and social. The theory gives predominance to social interests as
compared to public and individual interests.
For Pound, law is an ordering of conduct so as to make the goods of existence and the means of
satisfying claims go round as far as possible with least friction and waste. He regards these claims
as interests which exist independently of the law and which are passing for recognition and
security. Pound has attempted to expound and classify the categories of interests which are thus
acknowledged in a modern democratic society. Pound’s arrangement of interests are as follows:
A. Individual Interests: the standpoint of the individual life. This include:
1. Personality
2. Domestic Relations
3. Interests of Substance
B. Public Interests: the standpoint of political life. There are two of them:
1. Interests of the state as a juristic person
 2. Interests of the state as guardian of social interest
C. Social Interests: the social group. They are:
1. Social interests in the general security
2. Social interests in the security of the social institutions
3. Social interests in general morals
4. Social interests in the conversation of social resources
5. Social interests in general progress:
a. Economic progress
b. Political progress
c. Cultural progress
6. Social interests in individual life
Pound’s theory of law has influenced the lawyers, judges, and writers of the 20th century. He
has rightly considered law as for more than a bundle of abstract norms. He considers it more as
process of balancing of interests for removing conflicts and for rendering the greatest benefit
with the minimum of conflicts. For him what is most needed id that jurisprudence should seek
an improvement of the law in the light of the social needs of the time, so that law in the light of
the social needs of the time, so that law may procure the greatest good of the largest number of
society.

Leon Duguit:
Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law).  He was greatly
influenced by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which
explain the social cooperation between individuals for their need and existence.

Duguit transposes into the social, the idea of biological finalities and, as a result, biological values.
In effect, he envisages as a factor of social values that finality of human activity which consists in
realising solidarity. But that solidarity is, according the law of the social body, the law according to
which the life of that body is maintained and developed. Consequently, these finalities consist in
the adaption of individuals to the maintenance and to the development of social life.

Social Solidarity
Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength,
cohesiveness, collective consciousness and viability of the society.’ Leon Duguit’s Social
Solidarity explain the interdependence of men on his other fellow men. No one can survive without
the 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.
And Leon Duguit considered that law as bad law which does not promote social solidarity. Further,
he also said that every man had the right and duty to promote social solidarity. For Example, in
India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity.

The meaning of the term ‘Social Solidarity’ is not clear from the analysis of Duguit. We may admit
that mutual interdependence of men in society and the need to collaborate for the functioning of
social life is a scientific fact. Social facts are much less clearly determined than natural facts and
Duguit’s solid facts are, as one critic has observed, facts of highly metaphysical order.

Sociological Jurisprudence: Indian Position:

In the last three decades sociological jurisprudence has engaged in India at a macrocosmic scale.
The need of studying law on the nature of socio-economic reality is the cry of the day. Legal
scholars, judges and jurists all have emphasised the importance of the relationship of law, society
and social changes which are taking place so fast. A large number of progressive judges of the
apex court of the country pleaded the adoption of a sociological approach in the interpretation of
law to writ the needs and necessities of the people of India. Since law is a social science judges
would not depend only on abstract principles or rigid legal cannons alone but on social
circumstances, demands and needs of the times.

Conclusion:

Sociological jurisprudence and its related field sociology of law together constitute an immense
field of study, embracing all aspects of the relations and interactions between law and society.
Bibliography:

https://blog.ipleaders.in/sociological-school-of-jurisprudence/

https://www.cambridge.org/core/books/jurisprudence/sociological-jurisprudence-and-sociology-of-
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http://www.legalservicesindia.com/article/2190/Sociological-Jurisprudence.html

http://legalguidancecenter.blogspot.com/2017/12/iherings-social-interest-theory.html

https://www.toppr.com/guides/legal-aptitude/jurisprudence/sociological-school/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1925790

Jurisprudence ( Professor Nomita Aggarwal)