SOCIOLOGICAL JURISPRUDENCE - JURISTS PERSPECTIVE

SANIA AKTARI

Introduction

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

The main subject matter of sociology is society. Sociology is the study of society,
human behaviour and social changes. And jurisprudence is the study of law and
legal aspect of things. The sociological school of jurisprudence advocates that the
law and society are related to each other. This school argues that the law is a social
phenomenon because it has a major impact on society

August comte was a French philosopher. The term “sociology” was first used by
comte and he described sociology as a positive signs of social facts. He said that
suicide is like an organism and it could progress when it is guided by scientific
principles. Thus, he makes great efforts to use the law as a tool by which human
society maintains itself and progress after many writers and jurist tried to connect
the society and law together and try to find the link between law and sociology

The idea of sociological school is to established relation between law and society.
This school lead 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 realised

Research questions
 1. What are the key concepts in Sociological Jurisprudence1?

2. What role does law play in shaping social norms

3. How do social institutions influence law?

4. How does Sociological Jurisprudence differ from other legal theories?

Objective of study

- To examine social factors influencing judicial decisions

- To understand the relationship between law and society

Research methodology

Jurist of the sociological school of jurisprudence

August comte2

according to him society, like any other organism can progress when it is guided
by scientific principles. He further pointed out that man cannot live in isolation as
he is essentially a social being and all his impulses originate from his social life
which are to be regulated and controlled by law and the government. Therefore it is
the society and not the individual which should be the focal point of law.

Herbert Spencer

he gave a scientific exposition to the organic theory of society. Spencer did used
for source of law namely, divine laws having quasi-religious sanctions; the
injunctions of the past leaders; the will of the ruler and collective opinion of the
society. He pointed out the divine laws are clearly distinguishable from man made
loss. He considered law nothing more than a hardened custom. The purpose of law

1
Roscoe pound, sociological jurisprudence (beacon press 1912)
2
The positive philosophy of august comte
according to Spencer is to resolve the conflicting interests of the individual in
society.

Rudolph von Iherring

He opposed the doctrine of individualism which in his view was incompatible to

the cause of social justice. He opined that social interest of the society must gain
priority over individual interest and the purpose of law should be to protect the
interest of the society. In his view social interest must been priority over individual
interest. Exposing the absurdities and weakness of individualism, which had made
the individual as the focus of moral political and legal order he condemned it as
being anti social and incompatible to the clams of social justice. Thus, he was a
great critic of Australian positivism. His legal philosophy is therefore known as the
“positive of interest” which emphasizes on sociological aspect of law. The main
tenets of I hearings jurisprudence of interest may briefly be stated under the
following heads:-
law is result of constant struggle- he accepted that the role of laws to harmonize
conflicting interest of individuals for the purpose of protection of the interest of the
society as a whole. He rejected the philosophical view that law evolves
spontaneously like language and does he gave importance to ‘living law’

law is to serve social purpose- Ihering considered law as a means to an end. The
ultimate end of law is social purpose and not the individual purpose or interest. It is
the duty of the state to promote social by avoiding a class between the individual
and social interest

law alone is not a means to control the society-i hearing made it clear that law
alone was not the means to control the social organism. There are some other
conditions such as climate topography etc.

Eugen ehrlich

According to him the institutions of marriage domestic life inheritance position

contracted for governed the society through living law which dominates the human
life. by living law he meant extra legal controls which regulate social relation of
men. Ehrlich made intensive study of various legal systems by comparative
method and came to the conclusion that law develops by conscious efforts. The
Indian dowry system provides the best illustration to substantiate the view of
ehrlich.

Leon Duguit

Duguit was also influenced by durkheim’s work ‘division of labour in society3’.

Durkheim made a distinction between two kinds of needs of men in society. Firstly
the common needs of individuals which are satisfied by mutual assistant and
second Lee the diverse needs of individuals which are satisfied by exchange of
services. Therefore the division of labour is the most important fact which duguit
called as “social soliditary”

Roscoe pound

pound’s legal philosophy was entered round functional aspect of law, which in
other words, mental law in action. He appointed out that law is more than a set of
abstract rules. The real function of law is balancing of conflicting interest by
satisfying maximum wants with minimum friction. He preferred to describe
sociological jurisprudence as experiments and focused on application of law to the
social reality of life. Every aspect of social life must be cover under study of law.
Rosco pound conceive law as a social engineering its main task being to accelerate
the process of social ordering by making all possible efforts to avoid conflicts of
interest of individuals in the society. The courts, legislators, administrators and
jurists must work with a plan and make an effort to maintain a balance between the
completing interest in the society. He defined interest as a claim, a want or a
demand, human being or group of human beings which basic to satisfy and which
the social engineering in civilized society must take into account.

Social justice- Indian perspective

The lord during the British colonial rule in India was cosive and counter productive
to social needs of Indian people. It was suppressive and insensitive to the
3
Emile Durkheim, the division of labour in society (George simpsontrans, free press 1964)
sentiments and expectations of the Indians. The British rulers paralyzed the peace
and prosperity of Indian by dividing Indians on the basis of caste, creed, religion,
language and occupation so as to purchase tension and conflict between different
communities to meet their selfish ends. Does the law in India as its too before the
Indian independence was formal, rigid, repressive and punative as contemplated by
the Austinian conception of imperative theory of law. The three organs of the
government used law to protect the interest of the British incomplete this regard of
the aspirations and needs of Indian masses who were exploited and denied even the
basic human rights. In the strict austinian, sanctions were imposed on Indians in
the name of ‘justice according to law’.

To India, sociological school of jurisprudence has much relevance in terms of

realisation of the social and economic goals of the community. Law in free India is
being adjusted to serve the common needs and ends of society along with
individual interests. However, before 1947 the judges, the lawyers and law
administrators did not look around while making new laws. The pace of social
change was very slow as the law was conceived either in analytical fashion
emanating from the British Parliament or the law had no relationship or relevance
with the life of people of India. The role of judges was not to discover the
‘inarticulate major premises’ or ‘felt needs’ of the people but to interpret the law in
its logical manner irrespective of the considerations of social justice. The law was
mostly imposed from above. It had no roots in the Indian soil and its language too
was foreign.

After 1947 there was a change in the perspective of law itself. India became free
and it adopted the new Constitution with a view to establish justice – social,
economic and political. To achieve these set goals Indian planners introduced the
system of economic planning in India with a view to promote the welfare of the
people by securing and protecting as effectively as it may a social order in which
justice, social, economic and political shall inform all institutions of national life.
Accordingly State evolved new social and economic policies to achieve the above
ends. The old analytical approach towards law was obviously abandoned in the
interest of common goods as it was unnecessary, unreal and inconvenient to the
emergence of new social order. Hence a new sociological approach for reconciling
conflicting social interests and values became necessary for bringing peaceful
social change through law.

The differences and conflicts between privileged and oppressed class is

very common phenomenon when the instrument named “State” was used to be
‘Laissez faire’, conflicts were more evident and privileged used to enjoy the
major chunk. Now there has been a radical change in concept of State, i.e.
welfare State. Now the state not only provides security from external aggression
but it also endeavour to minimize or remove the disparities or differences between
different groups.
The State as it exist today realizes the fact that the problem of disparity
and oppression of have-not’s which concern an overwhelmingly large number,
could not be successfully met unless it wisely uses its mighty weapon of law and
attempts to restore balance by the way of justice.

Sociological Jurisprudence and Sociology of Law

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. It 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 effects of legal rules.

Conclusion

Sociological jurisprudence sees law as a living thing that changes with society. It
focuses on how law affects people's lives and how society shapes the law. This
approach believes law can be used to make society better. It challenges traditional
legal thinking that only focuses on rules and instead looks at how law works in real
life. Key thinkers include Ehrlich, Pound and spencer

Law helps shape how we behave in society. It sets rules for what's right and wrong,
and it can change people's minds over time. For example, laws against
discrimination can help people be more accepting of others. Law also helps keep
society organized and peaceful.

Social institutions like family, religion, education, and the economy influence laws
by reflecting society's values and beliefs. For example, family values shape laws
on marriage and divorce, while religious beliefs can influence laws on morality.

Sociological jurisprudence differs from other legal theories by focusing on the

relationship between law and society. While traditional legal theories often
emphasize formal legal rules and doctrines, sociological jurisprudence examines
how law functions in society and how social factors influence legal development. It
recognizes that law is not static but constantly evolving, influenced by social,
economic, and cultural changes.

It is to stated that however divergent the view of various sociological jurists may
appear, they have common point that the law must be studied in relation to society.
This view has a 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 plead
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.