LAW

Advanced Jurisprudence

Sociological Perceptions of
Law
Principal Investigator Prof. Ranbir Singh, Vice Chancellor, National Law University
Delhi

Paper Coordinator Prof. Sri Krishna Dev Rao (Vice Chancellor, National Law
University, Odisha)

Content Writer Prof. B. Hydervali

Professor of Law, National Law University Odisha

Content Reviewer Prof. Gangotri Chakrabarty (Professor of Law, North Bengal

University, Siliguri)
 SOCIOLOGICAL PERCEPTIONS OF LAW
Description of Module
Subject Name Law
Paper Name Advanced Jurisprudence
Module Name/Title Sociological Perceptions of Law
Pre-requisites Background of positivist thinking of law
would help.
Objectives Purpose of this module is to:

(a) To understand the basic tenets of

sociological school of law

(b) To discuss how sociological school

tries to balance conflicting interests

(c) To examine the influence of

sociological school in modern
Indian Jurisprudence

(d) To examine with the help of case

laws views of the judges about the
function of law in the society.

Keywords Law, society, interests, conflict, balance

Introduction
August Comte was the first writer to use the term sociology which he described as a
positive science of social facts. Subsequently writers and jurists tried to find a link between
sociology and law. Gurvitch,1 for example, said that the meeting point of sociology and law is
sociology of law. Sociology of law should, however, be distinguished from sociological
jurisprudence. The latter primarily studies law but in doing so it studies its relation with and
impact on society; whereas sociology of law primarily studies society and studies law only
peripherally.
The sociological school considers law as a social phenomenon and examines law in
relation to society. It takes a fundamental functional view of law; it is concerned not with social
circumstances which call for and condition the working of legal institutions. Various factors
paved the ground for the sociological school of thought in jurisprudence. Spencer had applied
Darwin’s theory of evolution to society. He compared social organism to biological organism
and said that individual has to develop a sense of social solidarity; law is to take note of this and
while assisting the individual in developing this sense of social solidarity propounded the organic
concept of society and had developed the theory of General will. Even Bentham, who was an
analytical positivist, had, by expounding the principle of utility, provided indirect support to the
sociological formulation of law. In the nineteenth and the twentieth century sociological
approach was developed and elaborated by the jurists like Duguit, Ihering, Ehlrich, Roscoe
Pound2 and others.

Background
The factors which led to the establishment of sociological schools are as follows:-

1
Gurvitch A, Sociological law [Routledge and Kegan Paul Ltd1947]
2
Ehlrich E, Fundamental Principles of Sociology of law p29 [1915-16]; Von Ihreing R, Law as a means to an end
[transl. I Husik The Boston Book co [1913]Pound, Sociology of Law and sociological Jurisprudence p 5[1943-44
Ihering
Ihering (1818-1892) in his major work ‘Das Zweek in Recht’ which has been translated
into English as ‘Law as a Means to an End’ gave expression to his views on Law and
Jurisprudence. According to him the dominant notion to be found in the exercise of human will
is that of purpose. Casualty in the natural world is governed by a ‘because’. A stone falls because
without support, it must fall. He says: - “Human conduct is determined not by a ‘because’ but by
a ‘for’ by a purpose to be effected, the ‘for’ is as indispensable for the will as is the ‘because’ for
the stone. The stone cannot move without a cause; no more can the will operate without a
purpose”.
Law is but a part of human conduct, and in the idea of purpose Ihering found the
mainspring of laws, which are only instruments for serving the needs of society. Their purpose is
to further and protect the interest of society. In society there is an inevitable conflict between the
social interests of man with each individual’s selfish interests. To reconcile this conflict, he
employs the method of reward viz., by ensuring that economic wants are satisfied, and also by
coercion. There may be unorganized coercion; as in the case of social conventions or etiquette,
but law is specifically that form of coercion which is organized by the State. Ihering did not deny
the existence of altruistic impulses but recognized that these would not suffice without the
coercive form of social control provided by law. The success of the legal process was to be
measured by the degree to which it achieved a proper balance between social and individual
interests. In fact he divided interest under three broad heads, viz., individual, social and state
interest. Law, according to him, was to encourage social purposes by the lovers of social motion
viz., coercion and rewards, duty and love is to establish a balance of interests.

The degree of success of law depends upon the degree in which such a balance is
achieved. Law, according to him, never serves the interests of an individual as end in itself but
only as a means to the good of the society and hence is a relative concept, No logical or abstract
theoretical refinement of the purpose of law possible, since the purpose of law has to be in tune
with the needs of a particular society at a particular time.
 Ihering, however, gave very little indication of a scale of values with which to achieve a
balance between conflicting interests. He refuted the individualistic concept of law which limited
the function of law to the securing of civil liberty by protecting the rights of individual in
consonance with those of others. In the words of Friedmann, “Ihering has not been able to solve
the problem of the conflict between individual and collective interests”. In an attempt to find
harmony, Ihering goes some way towards an organic conception of the state and of corporate
personality, seeing man in a twofold rule. But he gives no satisfactory answer to the question
why altruistic utilitarianism should harmonies’ with individual utilitarianism.

Ehrlich
Ehrlich (1862-1922) another eminent jurist of sociological school primarily expounded the
social basis of law. For him law is derived 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 cases but
the 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 jurists to integrate these two types of law. Commercial
law, for instance, as embodied in statutes and cases, involves a constant attempt to try to keep up
with commercial usage, for the ‘Centre of Legal gravity lies of law not in legislation, not in
judicial decision but in society itself’. Hence great emphasis is placed on fact-studies as against
analytical jurisprudence, in exploring the real foundations of legal rules, their scope and meaning
and potential development. In fact, he distinguished between formal law and the living law. The
latter, he said was continuously evolving. The function of the judge is precisely to determine the
living law and in case of conflict between the formal law and the living law he is to be guided by
the principles of justice.
 Thus, it can be said that Ehrlich minimizes the importance of legislation as the sole formative
factor in law and in some ways may be regarded a Savigny denuded of the Hegelian mystique.
But there is far more in his approach than this, for he emphasized how law is, so to speak,
distilled out of the interplay of social forces and activities. That there is much truth in this
viewpoint can hardly be denied. The practices of the commercial world are often found to be
gradually embodied in commercial law especially in the formative stage. Ehrlich recognized,
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 and thereby develop them on right lines. ‘‘So, too, by
insisting on the fact that law was not a unique phenomenon, he enabled us to attain a better grasp
of those spheres of activity which are becoming increasingly widespread in the modern state,
where autonomous associations apply private ‘Legal System of their own almost independently
of the ordinary legal process of the courts, as for instance in the case of trade or professional
associations or trade unions exercising disciplinary powers”.
There is no doubt about the fact the Ehrlich’s work is full of stimulating suggestions for a
scientific approach to law which relates the law more closely to the life of society but his works
show some weaknesses also. Firstly, it gives no clear criterion by which to distinguish a legal
norm from any other social norm. As Friedmann observes3 ‘the interchangeability of both, which
is an 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 expression of a tide of public feeling, but it is also true that many norms of behavior
have been given shape and direction by the constant enforcement of law.’4

Leon Duguit
Duguit (1859-1928) is a distinguished French Jurist of the sociological school. He took
inspiration from Durkheim, who distinguished between two kinds of needs and aptitudes of men
living in society. There are, according to Durkheim, on the one hand, common needs satisfied by
men lending each other mutual assistance and by putting together their similar aptitudes
(solidarity by similitude or mechanical solidarity), on the other hand, men have different
aptitudes and diverse needs. They are satisfied by an exchange of services each using his own
aptitudes to satisfy the needs of others. This division of labour is, according to Durkheim, the
pre-eminent fact of social cohesion (solidarity by division of labour or organic solidarity). His
emphasis on the doctrine of social solidarity as a fact and necessity of social life led Duguit to

3
Friedman, Legal Theory, Page 251 (3rd edn., 1953]
4
Durkheim, Law Division Du travail social 1891[3rd Ed 1911]
elaborate it further. 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 realizing solidarity…….But that solidarity is, according to him, the law
of the social body, law according to which the life of that body is maintained and developed.
Consequently, these finalities consist in the adaptation of individuals to the maintenance and to
the development of social life”.
Solidarity or cohesion, according to Duguit, is the principal requisite of the existence of social
life. 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 the instrument of social solidarity and cohesion.
Because man cannot live apart from society and society involves discipline. Law is not a body
of rights. The only real right of man in a society is to do his duty. Law is essentially an objective
social fact concerned with the relations between man and man on the one hand and man and the
state on the other. Law for Duguit is made by those with legislative power, the majority of
society, but it ought to embody the fundamental rule of social interdependence. The state exists
for the performance of public services not for the exercise of sovereignty. The outstanding fact
of society as it appeared to him was the interdependence of men, an interdependence which must
have always existed but which becomes increasingly more obvious and more complex as man’s
knowledge and mastery of the physical work increases. The social interdependence is not a
theory, nor a conjecture but a fact, the all important, never to be forgotten fact of human life. All
human activities, 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.
Duguit’s principle of social solidarity is however not free from criticism. Aware of the growing
complexity of modern social life, Duguit attacks individualism as reflected in the conception of
inalienable individual rights. He also rejects the alternative of strengthening the central power of
the state. Instead, he advocates decentralized group government and the link between the
different groups is to be an objective rule of law, the principle of social solidarity. This savours
of natural law although Duguit emphatically rejects any such metaphysical conception as
incompatible with scientific positivism, yet his ideal of social solidarity is as strong a natural law
ideal as any ever conceived.
As Allen puts, “although Duguit disregards the ethical element in law, he is considered to be
really postulating a content of ideal law” the natural law with valuable content.
Again the meaning of the term ‘social solidarity’ is not clear from the analysis of Duguit.
We may admit that the mutual interdependence of men in society and the need to collaborate for
the functioning of social life is a scientific fact. But as many of those who have examined the
comparative precision of facts in the social and the natural sciences have observed, social facts
are much less clearly determined than natural facts and Duguit’s solid facts are as one critic has
observed, facts of a highly metaphysical orders.5

Roscoe Pound
Roscoe Pound (1870-1964) is regarded as one of the most noted American Sociological
jurists of twentieth century. His “Readings on the History and System of the Common Law”,
“The Spirit of Common Law,” “Law and Morals”, “Interpretation of Legal history” etc. are the
most original outstanding works in the field of legal philosophy in the United States.
Kohler’s approach, in fact, inspired Roscoe Pound the most for propounding the theory of
social engineering and the balancing of social interests. Kohler asserts that all laws are relative
and conditioned by the civilization in which they arise. But the idea of law has to follow the
universal idea of human civilization, and the meaning of civilization is the social development of
human powers towards their highest possible unfolding. The evolution of civilization results
from the struggle between the human mind, distinguishing itself form nature, and the object-
matter of mature. The task of law following evolution of civilization-is both to maintain existing
values and to create new ones for the further development and unfolding of human powers.
Every civilization has certain jural postulates that are ideas of right to be made effective by legal
institution. Legal materials must be shaped so as to give effect to those postulates and legislators,
judges, jurists must mould the law in accordance with them. This analysis of Kohler has been
incorporated by Roscoe Pound in his exposition about the sociological school. For Pound
jurisprudence is not so much a social science as a technology and the analogy of engineering is
applied to social problems. He laid emphasis to accumulate factual information and statistics and
paid little attention to conceptual thinking; he called for a new functional approach to law based
on sound theorizing as to its purpose in a particular age. For Pound, ‘Law is the body of
knowledge and experience with the aid of which a large part of social engineering is carried on.
It is more than a body of rules, it has rules and principles and conceptions and standards for
conduct and for decision, but it has also doctrines and modes of professional thought and
professional rules of art by which the precepts for conduct and decision are applied and
developed and given effect. Like an engineer’s formulae, they represent not only experience,
scientific formulations but also inventive skill in conceiving new devices and formulating their
requirements by means of a developed technique’.
Following the idea of Kohler in 1919 Pound gave a list of jural postulates, for a civilized
society.6 These are ---
(1) Men must be able to assume that others will commit no intentional aggressions upon
them.

5
Elliot, Metaphysical orders, 37 [Link]. Q 639 [1922]
6
Pound, Introduction to American law Pp 36-44 [1919]
 (2) Men must be able to assume that they may control for beneficial purposes what they have
discovered and appropriated for their own use, what they have created by their own
labour, and what they have acquired under the existing social and economic order.
(3) They must be able to assume that those with whom they deal in the general intercourse of
society will act in good faith and hence-
(a) They will make good reasonable expectations with their promises or other conduct
reasonable created;
(b) They will carry out their undertakings according to the expectations which the moral
sentiment of the community attaches thereto;
(c) They will restore specially or by equivalent that comes to them by mistake or
unanticipated or not fully intended situations whereby they receive at another’s
expense what they could not reasonably have expected to receive in the
circumstances.
(4) They must be able to assume that those who are engaged in some course of conduct will
act with due care not to cast an unreasonable risk of injury on others.
(5) They must be able to assume that others who maintain things likely to get out of hand or
to escape and do damage will restrain them or keep them within their proper bounds.
Pound says that we must observe the de facto claims and interests assert as worthy of
protection by law and society. Jural postulates are to be derived from such de facto
claims by impersonal synthesis-Jural postulates not ‘of’ law but ‘for’ law; jural postulates
cover not all claims but substantially all claims- are variable not obsolete-are only
working hypothesis-are not A priori.

Pound has also recognized Ihering’s view of the law as a reconciler of conflicting interests
but at the same time has given it certain distinctive features. 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 the least friction and waste. Pound regards these claims as interests which exist
independently of the law and which are ‘pressing for recognition and security’. The law
recognizes some of these, making them effective within defined limits and Pound has attempted
to expound and classify the categories of interest which are thus acknowledge in a modern
democratic society.
Pound’s arrangement of interests is as follows.

A. Individual Interests---
These are claims or demands of desire involved in and looked at from the standpoint of
the individual life. This includes----
(1) Personality--- This consists of ---
[a]the physical person;
[b]freedom of will;
[c]honor and reputation;
[d]Privacy; and
[f]belief and opinion
(2) Domestic Relations
(3) Interests of Substance---This includes interests of ---
a) Property,
b) freedom of industry and contract,
c) promised advantages,
d) advantageous relations with others,
 e) freedom of association, and
f) continuity of employment.
B. Public Interests
These are claims or demands or desires asserted by individuals involved in or looked at from
the standpoint of political life. There are two of them—
(1) Interests of the state of juristic person.---- This includes—
a) The integrity, freedom of action and honour of the state’s personality, and
b) Claims of the politically organized society as a corporation to property
acquired and held for corporate purposes.
(2) Interests of the state as guardian of social interest.

C. Social Interests
These are claims or demands of desires of the social group. Social interests are said to
include---
(1) Social interests in the general security.--This relate to ----
(a) general safety;
(b) general health;
(c) peace and order;
(d) security of acquisitions, and
(e) security of transaction.
(2) Social interests in the security of social institutions.----This comprises---
(a) domestic institutions,
(b) religious institutions,
(c) political institutions, and
(d) economic institutions.
(3) Social interest in general morals. ---This covers a variety of laws, of example, those
dealing with prostitution, drunkenness and gambling.
(4) Social interest in the conservation of social resources.--- In covers---
(a) Conservation of natural resources; and
(b) Protection and training of dependants and defectives i.e., conservation of human
resources.
(5)Social interest in general progress. --- This covers---
(a) Economic Progress which include---
(i) freedom of use and sale of property,
(ii) free trade,
(iii) free industry, and
(iv) encouragement of invention by the grant of patents;
(b)Political progress which covers—
(i) free speech, and
(ii) free association, and
 (c) Cultural progress which covers---
(i) free arts,
(ii) free letters,
(iii) free science,
(iv) promotion of education and learning, and
(v) aesthetics.
(6) Social interest in individual life—it involves—
(a)self-assertion,
(b) opportunity, and
(c) conditions of life.

Pound had not only listed the interest recognized by law but he has also considered the
ways by which they are to be secured. This consists of the device of legal persons and attribution
of claims, duties, liberties, powers and immunities. There is also the remedial machinery behind
them, which aims sometimes at punishment, sometimes at redress and sometimes at prevention.
Pound has also maintained that a balance of interest is to be brought about. Pound further says
that the class to which an interest belong and its relative weight is subject to change from one
class to another and form time to time depending upon political conception acceptable to a
society at a particular time.
Pound’s theory of law has influenced the lawyers, judges and the writers of twentieth
century. As he has rightly considered law far more than a bundle of abstract norms, he considers
it more as process of balancing of interest for removing conflicts and for rendering the greatest
benefit with the minimum of conflicts. For him what is most needed is that jurisprudence should
seek an improvement of the law in the light of the social needs of the time, so that law may
procure the greatest good of the largest number in society.
It is, however, interesting to note that sociological jurisprudence neither begins nor ends
with Pound. Roscoe Pound died in 1964 and after him modern jurists have further elaborated or
varied Pound’s basic classification of interests and further developed sociological approach.
Thus, Prof Stone 7build up on Pound’s classification except for the elimination of the category
of public interests as a separate category. Professor Stone is considered as a representative of
modern sociological jurisprudence. One of the main faults of classical sociological jurisprudence
was, he believes it ad hoc approach, the treatment of particular problems in isolation. “The
sociological jurists of the future will generally have to approach his problems through a vast
effort at understanding the wider social context”. Stone indicates that, in spite of its difficulties
and faults, the Parsonian ‘Social system is the type of mode to which sociological jurist must
aspire. A common malaise in sociological jurisprudence is its prevalent methodology of working
outwards from legal problems to the relevant social science. Instead, what is needed is a
framework of thought receptive of social data which will allow us to see ‘the social system’ as in
integrated equilibration of the multitude of operative systems of values and institution embraced

7
Stone, Social Dimensions of Law and Justice, Chaps 3-5 [1966]
within it”. Paton also analyses the law on the basis of interests, dividing them into social and
private interests.

Basic tenets of Sociological School

Following are the basic tenets or characteristics of sociological school---

(1) Sociological jurists regard the working of the law (that is, of the legal order, of the body
of authoritative guides to decision, and of the judicial and administrative processes)
rather than the abstract content of the authoritative precepts.
(2) Sociological jurists regard law as a social institution, which may be improved by
intelligent effort. Hence it is task of the jurists to find out the best means upon sanctions.
(3) Sociological jurists lay stress upon the social purpose which law sub serves rather than
upon sanctions.
(4) Sociological jurists look on legal institution and doctrines and precepts functionally. They
regard the form of legal precepts as a matter of means only.
(5) According to this school, the main function of law is to fulfill the needs of society. Social
requirements are accomplished by law. Law is also a social instrument for maintaining
law and order in the society. Paton is of the view that law is a social machinery for
securing order in the community. Since all the jurists of this school lay stress upon the
functioning of law in society they are also know as pragmatists.

Sociological jurisprudence: Indian position

In the last three decades sociological jurisprudence has engaged in India at macrocosmic
scale. The need of studying law on the nature of socio-economic reality is the cry of the day.
Legal scholars, judges, jurists all have emphasized 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 like justice V.R. Krishna lyer, Y.V. Chandrachud, P.N.
Bhagwati, D.A. Desai, O. Chinnappa Reddy, Venkatchelliah all pleaded vigorously the adoption
of sociological approach in the interpretation of law to writ the needs and necessities of the
people of India. Justice Krishna Iyer exhorts judges not to act by hunch but on hard facts and
concrete realities since the rule of law stemmed from rule of life. 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 time.

Sociology of law
The French Sociological jurist Maurice Hariou observed that “too little sociology leads away
from law, but much sociology leads back to it.” And George Gurvitch rightly supplemented this
statement by saying that “a little law leads away from sociology but much law leads back to it “.
If one looks at the history of western sociology, it is clear that ‘much sociology’ did indeed lead
its founders back to law. The structural significance of law, in the broadest sense, was most
clearly recognized by the founders of modern sociology like Durkheim, Weber and Marx. Their
conceptual elaborations gave some kind of primacy to law as a social variable.
In many parts of the world, especially in U.S.A and Europe, Sociology of law has emerged as
an autonomous discipline. A good number of jurists like Eugen Ehrlich (1962), Roscoe Pound
(1959), Karl Lewellyn (1962), Julius Stone (1966) and J. Willard Hurst (1960-64) emphasized
the fact that understanding of lawyer’s law (that is legal processes as relevant to decision-makers
or lawmen-judges, lawyers, law reformers and jurists) is almost impossible without a sensitive
grasp of the implications of law as a social process.
In India, neither social scientists nor law persons are explicitly concerned with the emergence
of a discipline of sociology of law. Although there is much talk of law and social change all
around, there appear to be no sustained attempts at examining the potential and actual role which
the legal process bears to initiation and attainment of social change. However, at least on the side
of law teaching research, there are clear indications of growing appreciation of the social roles of
legal processes and institutions. It is to be stated that how so ever the views of various
sociological jurists may appear, they have a common point that law must be studied in relation to
society. This view has great impact on modern legal thought. But it should not be taken to mean
that other methods have completely ceased to exist. Still there are advocates of natural law
though with a ‘variable content’, there are catholic jurists who pleaded for maintaining a close
relationship between law and morals, but these approaches are ,in many respects, basically
different from earlier approaches of this type on the subject and are influenced by sociological
approach.