LAW 205

APPLICABILITY OF LAW IN THE

SOCIOLOGICAL SCHOOL OF
JURISPRUDENCE

Submitted To: Dr. Meenu Chopra

Submitted By: Sagorika Basu
Roll No: RL2004A22
LLb. 1st SEM
L2004
 Acknowledgement
At the outset, I would like to express my heartfelt gratitude and thank my
Course Instructor, [Link] CHOPRA, for instilling confidence in me. I
am indeed privileged having been taught in a prestigious institution like
LOVELY PROFESSIONAL UNIVERSITY. I would also like to express my
gratitude to my other Course Instructors and Mentor, family, and friends for
their help and support.

-SAGORIKA BASU

RL2004A22
 Introduction
Sociological jurisprudence may be a term coined by the American jurist Roscoe
Pound (1870–1964) to explain his approach to the understanding of the law
Central to Pound's conception was the very suggestive idea that in modern
societies the law represents the principal means through which divergent
interests are brought into some sort of alignment with one another.
Unfortunately, perhaps because he was a jurist instead of a sociologist, he didn't
combine this insightful conception with a developed understanding of how these
interests were formed and why a number of them came to be privileged over
others within the system. A sociologically informed account of Pound's work,
which places it within the context of the historical development of the sociology
of law, are going to be found in Alan Hunt, The Sociological Movement in
Law, 1978.

SOCIOLOGICAL JURISPRUDENCE is one among the foremost important

schools of legal thought within the twentieth century. Its major proponent was
ROSCOE POUND (1870–1964), a prolific writer who was dean of the Harvard
school of law from 1916 to 1936. Diversified other legal educators and judges
also contributed in varying degrees to the ideology or practice of sociological
jurisprudence. The movement for a sociological jurisprudence emerged during
the Progressive era. Pound interpreted it because the "movement for pragmatism
as a philosophy of law," the aim of which was to facilitate legal reform and
social progress. Although legal change should happen under the leadership of
lawyers, the agenda of sociological jurisprudence didn't specialize in changes in
legal institutions. Rather, it stressed the reform of prevailing conceptions of the
study, interpretation, and application of the law.
Meaning Of Sociological Jurisprudence

The Sociological School of jurisprudence has emerged as a result of synthesis of

various juristic thought. The proponent of this school contemplated law as a

social phenomenon. They’re chiefly concerned with the connection of law to

other contemporary social institutions. They emphasize that the jurists should

focus their attention on social purposes and interests served by law rather than

on individuals and their abstract rights. Consistent with this school, the

essential characteristics of law should be to represent the common

interaction of men in social groups, whether past or present, ancient or

modern. The main concern of sociological jurist is to review the effect of

law and society on one another. They treat law as an implementing tool for

social development. The relationship between man-made law and ideals of

justice affects the sociological jurisprudence. The principal exponents of the

sociological jurisprudence who have been characterized as “interest-

oriented, interest loaded, and interest directed” were August Comte,

Spencer, Rudolph Ihring, Eugen Ehrlich, Leon Duguit, Dean Roscoe

Pound, etc. In the United States, Justice Oliver Windell Holmes, and

Benjamin Cardozo, and the distinguished judges of the Supreme Court

were also inspired by Dean Pound’s Sociological theory of law.

Insights Of Different Jurists

Montesquieu drew the attention towards the “law of a particular nation"

should be determined by its national characteristics and must hold up the

relation of the climate of each country, the quality of soil, the situation and

extent, the principal occupations of the native, and above all, to the religion of

inhabitants, riches, commerce, manners, and customs.”

August Comte applied the scientific method to the study of sociology which he

termed as “scientific positivism”. According to him, society, like all other

organisms can progress when it's guided by scientific principles.

Herbert Spencer gave a scientific explanation to the organic theory of society.

Spencer deduced four sources of law, namely:

• Law having quasi-religious sanctions.

• The injunctions of the past leaders.

• The desire or choice of the ruler.

• Collective opinion in society.

ROSCOE POUND is claimed to be the founder of this approach. He said, "The

law must be stable, but it must not be stagnant." Pound placed his sociological

jurisprudence contrary to what he termed "mechanical jurisprudence," which he

characterized as a standard but odious practice whereby judges woodenly

applied precedent to the facts of cases without reference to the results. For

Pound, the logic of previous precedent alone wouldn't solve jurisprudential

problems. His study of biology led him to believe that the law like nature was a

seamless web which change in one part might produce totally unexpected and

undesirable leads to a foreign part.

Sociological Jurisprudence In Indian Context

For an appraisal of sociological jurisprudence in its Indian perspective, it might

be necessary to survey this also because the pre-independence Indian law. The

law during the British Colonial rule in India was coercive and counter-

productive to the social needs of the Indian people. It was suppressive and

insensitive to the sentiments and expectations of the Indians. The British rulers

paralyzed the peace and prosperity of Indians by dividing Indians on the idea of

caste, creed, religion, language, and occupation so on perpetuate tension and

conflict between different communities to satisfy their self-ends. Thus the law
in India as it stood before the Indian independence was formal, rigid, repressive,

and punitive as contemplated by the Austinian conception of the imperative

theory of law. The legislature, executive, and judiciary- three organs of the

govt want to law to guard the interests of the British in complete disregard of

the aspirations and wishes of the Indian masses who were exploited and denied

even the essential human rights. In a strict Austinian sense, sanctions were

imposed on Indians in name of “justice is according to the law”. The British

residents in India enjoyed many exceptions and special entitlement under the

existing laws. Thus there was “one law for the ruler and other for the ruled.”

Applicability Of Sociological Jurisprudence

In

The Growth Of Legislature And Judiciary

System

With the introduction of sociological jurisprudence in India, there has been

tremendous growth in the Legislature and Judiciary functions of the Indian

Constitution. Both these functions of the Parliament of India advanced to a great

height because of the introduction of this context.

Influence of Sociological Jurisprudence On

Judiciary System Of India

With the massive wave of nationalism and awakening of intellectuals, demand

for civil liberty and basic human rights were unrelentingly made but it fell on

deaf ears, and suppression, oppression, and exploitation of the people continued

unabated under the British Colonial Rule. The lawyers and judges interpreted

and applied law mechanically without considering the “felt needs” of the

people. The Indian National Leaders, notably, Mahatma Gandhi, Pundit

Jawaharlal Nehru and others were convinced that British Law had failed to meet

the needs of the Indian Society because of the rigid adherence to the Doctrine of

precedent. Pundit Nehru observed more than once that the nineteenth-century

dogmas and legal precepts had little validity in the changed conditions of the

twentieth century and therefore, undue reliance on precedent was of little use as

it may fail to give a new sociological approach to law.

With the independence of India, a new constitution was adopted for the country

for embodying the social philosophy and economic values towards the

attainment of an egalitarian welfare state. A separate chapter on fundamental

rights including individual rights and freedoms and a chapter on Directive

Principles on State Policy comprising social rights have been incorporated in

the constitution of India1 and the judges have endeavored to harmonize the

individual rights with the social interests of the community through their

judicial decisions. The function of law is now to resolve the conflict between

Fundamental Rights and Directive Principles of State Policy, as both are aimed

at ushering an egalitarian society for the welfare of the nation as a whole2. The

philosophy enriched in the preamble and the chapters on fundamental rights,

directive principles, fundamental duties3, provisions relating to the powers and

functions of the judiciary, and amendment of the Constitution amply

demonstrated that the entire focus is on the welfare of the Indian masses and

making law responsive to the social needs.

The developing trends in public litigation have opened new vistas for

interpreting the law in the context of social settings. The contribution of notable

judges like Dr. P.B Gajendragadkar, P.N Bhagwati, D.A Desai, Krishna

Iyer, Nani A. Palkhivala, and others to the development of new Indian

jurisprudence based on hard realities of life further shows that law can be

effectively be used as a tool of social transformation for creating a new social

order with precedence to social justice.

1
[Link]
[Link]. Accessed 20 Sep. 2020.
22"Minerva Mills v. Union of India - Wikipedia."
[Link] Accessed 20
Sep. 2020.
3
"Article 51A in The Constitution Of India 1949 - Indian Kanoon."
[Link] Accessed 20 Sep. 2020.
 In Indira Sawhney v. Union of India4, Mr. Justice P.B Sawant perceived:

“The Constitution of India being an essentially political document has to be

interpreted to meet the “felt necessities of time”. Our constitution, unlike many

others, imbibes within the framework of the social change that's desired to be

caused. The change has got to be ushered in as early as possible but at an

equivalent time with the smallest amount friction and dislocation in National

life”.

In S.R Bommai v. Union of India,5 A special nine Judge Bench of the Supreme

Court passed a landmark verdict on the issue of secularism and held that the

State is enjoined that to award equal treatment to all religions and religious

denominations. The court reflected:

“Secularism is a component of the elemental law and therefore the basic

structure of the Indian form of government to secure all its system to secure to

all or any it’s people socio-economic needs essential for man’s excellence with

material and moral prosperity and political justice.”

4
"Indra Sawhney Etc. Etc vs Union Of India And Others, Etc ...."
[Link] Accessed 20 Sep. 2020.
5
"Significance of SR Bommai vs Union of India - UPSC Current ...."
[Link]
india-1. Accessed 20 Sep. 2020.
Influence Of Sociological Jurisprudence On

Legislative System Of India

The welfare legislation enacted during the post-independence era amply

demonstrates that the British-Oriented Austinian concept of law has no place in

modern Indian democracy and an instrument of social change. The

establishment of the Human Rights Commission, Women’s Commission,

Family Courts, Industrial tribunals, Administrative Tribunals, Ombudsman,

Panchayati Raj, Lok Adalats, etc. are only a few illustrations to suggest that the

sole objective is to make justice available to a common man and weaker

sections of the society.

The laws relating to consumer protection, dowry prohibition, the abolition of

bonded labour, control of environmental pollution, etc. have been enacted to

supply social justice echoing the hopes and aspirations of the people. Some of

the post-independence socio-economic legislations to meet the social meets, the

social needs and establish a social order as contemplated by the constitution are

enumerated as follows:-

1. The Civil Rights Act, 1955

2. The Immoral Traffic (Prevention) Act, 1976

3. The Probation of Offenders Act, 1958

4. The Medical Termination of Pregnancy Act, 1971

6. The Family Courts Act, 1984

7. The Child Labour (Prohibition and Regulation) Act, 1986

8. The Legal Services Authorities Act, 1987

9. The Environmental (Protection) Act, 1986

10. The Juvenile Justice (Care and Protection of Children) Act, 2000

11. The SC & ST Act, 1989

12. The Child Marriage Restraint (Amendment) Act, 1978

13. The National Commission for Women Act, 1990

14. The Public Liability Insurance Rights Act, 1993

15. FEMA, MRTP, COFEPOSA6, etc.

6
"Conservation of Foreign Exchange and Prevention of ...."
[Link]
ivities_Act,_1974. Accessed 20 Sep. 2020.
 Conclusion

“Rules framed by a process of logical deduction from pre-conceived notions of

contract and obligation have weakened before the slow and steady and eroding
actions of utility and justice .We see the same process at work in other fields.
We cannot interpret contracts any further with meticulous adherence to the
letter when the spirit is in conflict with. We read covenants into them by
implication when we find them in conflict with their ‘instinct with an
obligation’ imperfectly expressed.

The law has outgrown its primitive stage of formalism when the precise word
was the sovereign talisman and each slip was fatal.” “There has been much
debate among the foreign jurists whether the rule of right and useful
conduct, the specimen of social welfare, are to be set up by the judge
in compliance with an objective or a subjective standard. His duty to
announce the law in accordance with reasoning and justice, and is seen to
be an aspect of his duty to declare it in accordance with convention. It is the
customary morality of right-minded men and women which he is to enforce
by his decree.”

The above two paragraphs of J. Cardozo clearly elucidate the

advancement of the system while summarizing the duty of the judge within the
progress of the human process. The role of the judge, therefore, to make sure
social progress rests undisputed .Evaluating the part played by the Supreme
Court in this role, it goes without saying that the Court have indeed come up to
the occasion almost whenever it was required to interpret and mold the social
norms and practices in harmony with the social aim that it anticipate for the
national strata.
 References

● Paranjape, [Link] in Jurisprudence. Central Law Agency :

Allahabad 2004
● Dr. T. [Link], an Introduction to the Study of Jurisprudence.
Allahabad Law Agency: 1st Edition

● [Link]

● [Link]
[Link]