5SOCIOLOGICAL SCHOOL Sociological school of jurisprudence has emerged as a result of synthesis of various juristic thoughts. The exponent of this school considered law as a social phenomenon. They are mainly concerned with the relationship of law to other contemporary social institutions. They insist that the jurists should focus their attention on social purposes and interest served by law rather than on individuals and their abstract rights. According to this school, the essential characteristic of law should be to represent common interaction of men in social groups, whether past or present, ancient, or modem. The main concern of sociological jurists is to study the effect of law and society on each other. They treat law as an instrument of social progress. The relation between positive law and ideals of justice also affects the sociology of law. Many authorities contend that sociological jurisprudence originated as a reaction to rigid legal positivism which relied on the fact that law is solely based on the coercive power of the State and completely rejected the pursuits of morality and justice as irrelevant in human relations. Likewise, it was also opposed to historical school's undue insistence on past customs, traditions and values which had blocked the growth and development of law and paved way to narrow nationalism in Germany and France. The supporters of sociological jurisprudence linked law with other social science disciplines and treated it as a synthesis of psychology, philosophy, economics, political science, sociology, etc. Law, according to them, was an applied science employing functional methods of investigation and analysis for solving the social and individual problems. In their view, law is concerned with its effect on society and therefore, it would be erroneous'to treat it as a mere command or God's will or the people's conscience. The functional role of law and its effect on society constitute the basic philosophy underlying sociological jurisprudence. As Dean Roscoe Pound rightly pointed out, "the sociological jurists look more for the working of law than for its abstract content". The main characteristic features of sociological jurisprudence 1 as stated by Roscoe Pound are as follows;— (1) The exponents of sociological school lay greater stress on functional aspect of law rather than its abstract contents. In their view, law cannot be L, insulated from the social complexities and objectives and practical problems of life. (2) They consider law as a social institution essentially inter-linked with other disciplines bearing direct impact on the society and uphold the view th»‘ 1 Roncou Pound ! The Sco|«f And Purpoil of Soclolojjicnl Jurisprudence (1911) 25 Hnr. L. Rev; 489. (1) law is designed on the basis of human experience in order to meet the needs of the society. Law is in fact a synthesis of philosophy, psychology, political science, economics, sociology etc. and has to be understood in terms of its utility, purpose, effect, practices and functions. (3) Sociological school completely discards the abstract notions of analytical positivism which lay over-emphasis on command or power aspect of law as also the dead weight of past culture and traditions which constituted the main theme of the historical jurisprudence. (4) Sociological jurists, however, differ in their approach to the perception of law. Some prefer to adopt a pragmatic empirical recourse to study the functional aspect of law while others emphasise on defining law in terms of court's rulings and decisions thus adopting a realistic approach to law. For instance, Holmes has defined law in terms of judicial prediction through the verdicts of law courts whereas Roscoe Pound treats law as an instrument for the adjustment of human conditions to the social forces operating in a given society. 2 In other words, sociological jurisprudence is a multifaceted approach to resolve immediate problems of society with tools which may be legal or extralegal and techniques which promote harmony and balance of interests of society.3 Four Developmental Stages of Sociological Jurisprudence : As stated earlier, the approach of jurists towards law in terms of its functions, purposes and objectives underwent a radical change towards the end of the eighteenth century. The prevailing social order and economic conditions due to the impact of laissez fnire philosophy generated rift and tensions between different sections of society. It was realised that liberty with equality and freedom without security were at the root of this disorder in the society. Therefore, there was need for a fresh approach to the study of law in terms of pressing needs of the society as the preceding dogmatic approach had failed to deliver the goods. This led to the emergence of the sociological jurisprudence which began from Auguste Compte, brought to the fruition by Dean Roscoe Pound and finally culminated into Realist School of the twentieth century. The major stages through which the sociological jurisprudence evolved and developed4 may briefly be stated as follows : (1) Empirical Scientific Approach to Law.—Auguste Compte (1789-1857) is said to be the founder of the sociological jurisprudence who made a beginning to what has been known as 'scientific positivism'. His approach to law was empirical based on experience and observation. Thus he rejected metaphysical methods of the study of law which was commonly resorted to by his predecessors belonging to the philosophical and historical school. He denounced all hypothetical considerations in the perception of law and based his study of law on empirical observation in an effort to establish co-relation between law and society. Being a mathematician himself, Compte was greatly influenced by mechanical analogies. 2 3 4 Cohen & Cohen : Readings in Jurisprudence and Legal Philosophy (Toranto 1951) pp. 416, 423. Dhyani S.N.: Fundamental of Jurisprudence - The Indian Approach (2004, Reprint, 2011) p. 306. Roscoe Pound : Jurisprudence Vol. I (1959) p. 298. It was realised that different social sciences represent different aspects of human society. (4) Unification Stage. Sociological jurisprudence is a functional study of law applied to concrete social problems in order to make law an effective instrument .According to Compte. theological men try to explain things by reference to supernatural forces like sun. (3) Metaphysical stage and (4) the Modem scientific (Positive) stage. sea. Thus. 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. human understanding widens with the mental developments and the law takes shape to suit the needs of society in four stages. It is through law that stronger groups attain its objectives over the weak who they govern. The propounders of sociological jurisprudence. the God theory and forces of nature are personified in terms of absolute power. they do differ in respect of their theme and approach to law. In the second stage. Law is therefore a instrument of the stronger over the weak in the unending struggle between different interests of the society. He asserted that law must evolve and adapt itself to the changing needs of the progressive society. These hypothetical considerations are discarded at the metaphysical stage and finally the scientific stage lays greater emphasis on empirical observation and study of corelation between observed phenomena themselves. seasons etc. therefore. It is through the instrumentality of law that the conflicting interests of the members of society are reconciled and the various groups are held within their bounds in the interest of the society as a whole. and believes that all the human affairs are controlled and regulated by God. then between states formed by the stronger groups and finally between classes within these states. (2) Medieval stage. it seeks to regulate human conduct and aims at reconciling the conflict of interests. Compte believed that the facts of society like those of physical universe have to be explained by empirical observation. (1) Primitive stage. moon. Herbert Spencer explained social phenomenon as a biological process adapting itself to the changing needs of the society. (2) The Impact of Darwinian Evolutionary Theory. Therefore. For them. In the first stage. they are supplementary and complementary to each other and as such law also cannot be detached from various socio-economic aspects of the society since it is an effective means of social control in the society. Though it is difficult to draw a hard and fast line of demarcation between the two because of their identical subject-matter.—The next stage in the development of sociological jurisprudence has been called as the biological stage' because of the influence of the Darwin's evolutionary theory. namely.—The last stage of development of sociological jurisprudence consists of unification of sociological method with other social sciences. verification and reasoning. Supporting the biological theory of evolution of law Austrian jurist Gumplowicz observed that all racial phenomena are an unending struggle between different elements : first between social groups. law is a mean of social control to be understood in the total setting of the society. believe that law cannot be detached from various socio-economic forces operating in the society. Therefore. Sociological jurisprudence. is a descriptive study of law and legal institutions of a given 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. Back-drop of Sociological Jurisprudence It is well known that the relations between individual. According to him. For instance.of social control for harmonising the conflicting interests of individuals in the society. society and State are never static. both consider society as the matrix of their common interest". "sociology of law exists as a distinct science whereas sociological jurisprudence is merely a branch of science of jurisprudence. According to Dr. sociology of law is a theoretical science which consists of generalisation regarding social phenomenon so far as they refer to contents. on the other hand. 393. strictly speaking. It is for this reason that sociological jurisprudence has also been called as functional5 jurisprudence or jurisprudence of interests£ or jurisprudence of social engineering. 344. the priestly class.. 29.W. sociology of law is mainly a descriptive study of law in a theoretical manner.8 Max Weber has traced the development of law from irrational conceptions to its logical conclusions in his work Sociology of Law. the early societies were governed by customs which were only a social sanction. various theories regarding their relationship have also been changing. therefore. purposes. According to Hall. 7 Thus.6 Sociology of law. 177. these are two distinct and independent concepts.W. He denies that law has emanated from the State. . i. Alien C.10 Thus. Ehrlich pointed out that law is closely inter-related with life of society and therefore sociology of law is the source of all legal development.: Law in the Making (1964) p. Huttington Cairns also expounded his legal theory with greater emphasis on sociological approach.9 Eugen Ehrlich explained legal sociology in terms of 'living law' which meant that law is to be understood as it lives in society. It treats law as just one of the several aspects of a society and. Vol I (1959) p. on the other hand.: Jurisprudence (1964) p. they have always been changing with the exigencies of time and needs of the society. Roscoe Pound : Jurisprudence. it emanates from the society itself and adopts itself to the changing needs of the transient society. but in society itself. sociology of law is just a branch of sociology. sociological or functional jurisprudence would remain a myth without the progress of social science because jurisprudence is a mere tool to serve the social interests of the community. To counter the growing 5 6 7 8 9 10 Paton G. looks at law as a means of social control. rejecting analytical jurisprudence. He observed that the law develops not through legislation nor through judicial decisions. Lioyd Denis : Jurisprudence (1959) p. has a secondary position as compared to society which is the main theme of sociology. 21. application and effects of legal rules. Timasheff.e. Paton G. As Roscoe Pound rightly remarked.: Jurisprudence (1971) p. K. However. Then came the period of the supremacy of the Church. Thus. 29. Julius Stone : Province and Function of Law (1946) p. Francois Geny. the distinguished American Judges of the U. the principal occupations of the natives and above all. Auguste Compte. therefore. In United States. He acknowledged the importance of history as a means of understanding the structure of society and drew attention to the role of economic factors. like any other organism can progress when it is guided by scientific principles.S. The omnipotence of the State gave rise to the period of renaissance and the legal philosophers began to think in terms of freedom of individual and their rights and liberties. to the religion of the inhabitants. The Sprit of Law. the quality of each soil. The legal theory of Auguste Compte . manners and customs'. Eugen Ehrlich. the situation and extent. he emphasised that "laws of a particular nation should be determined by its national characteristics and must bear relation to the climate of each country. Supreme Court were also inspired by Dean Pound's sociological theory of law.influence of the Church. though not a propounder of sociological jurisprudence. Auguste Compte (1786-1857) The noted French legal thinker and philosopher Auguste Compte is regarded as the founding father of science of sociology because he was the first to employ the term sociology' to connote an independent discipline. Leon Duguit. there was need to review the legal theory for maintaining a balance between the State. to their inclinations. Consequently. Montesquieu's name deserves mention as a fore-runner of this school of thought. Herbert Spencer. Justice Oliver Windell Holmes and Benjamin Cardozo. (L'Esprit des bois). As a result of this. it is the 'society' and not the 'individual' which should be the focal point of law. etc. welfare of the society and the individual interests. Rudolph Ihring. These principles should be formulated by observation and experiment of facts and all other metaphysical considerations should be excluded frorr its purview.e. Therefore. 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. This resulted into political upheavals giving rise to despotic rule. According to him.. Montesquieu (1689-1755) Montesquieu was a French legal thinker who is considered to be the forerunner of the sociological school of jurisprudence. He applied scientific method to the study of sociology which has been termed as 'scientific positivism'. i. Therefore. It would. society. He was first in point of time to perceive the influence of social conditions on law and legal institutions. a synthetic approach to jurisprudence by evolving a new legal philosophy called the sociological school emerged out of the synthesis of historical and philosophical movement and the comparative study of legal systems. Dean Roscoe Pound. it was realised that socialisation of law and legal institutions would perhaps best sub-serve the common good and interests of the society. the secular State emerged powerful dominating all other institutions. Finally. be pertinent to discuss the juristic contribution of these pioneers of sociological school in the succeeding pages. Main Exponents of Sociological Jurisprudence The main exponents of the sociological jurisprudence which has been characterised as "interest oriented. riches. Nazism in Germany and Fascism in Italy. In his book. interest loaded and interest directed" were Montesquieu. commerce. Thus he gave a scientific exposition to the organic theory of society. He was Professor at Basel. (i) divine laws having qudsi-religious sanctions.K. and (iv) collective opinion of the society. Allen. The purpose of law according to Spencer is to resolve the conflicting interests of the individuals in the society. It directed attention to the necessity of considering law in relation to other social phenomenon". His legal philosophy is therefore. known as the ’jurisprudence of interests' which emphasises on sociological aspects of law. (ii) the injuctions of the past leaders. namely.greatly inspired Durkheim and later the great sociological jurist Leaon Duguit founded his theory of social solidarity taking inspiration from these legal thinkers. (iii) the will of the ruler. Rudolph Von Ihring (1818-1892) Ihring was educated at Berlin in Germany.: Law in the Making (7th ed. political and legal order. He considered law nothing more than a hardened custom. Vienna. "in the inter-dependence of organism. His monumental work. Law is result of constant struggle. 12 Spencer's theory inspired subsequent jurists to carry further their socio-legal researches and relation of law and society. Herbert Spencer (1820-1903) Herbert Spencer was an English sociological thinker who traced the evolution of society from simple to the modem complex structure. which in his view was incompatible to the cause of social justice. the essence of Spencer's organic theory lay.11 He pointed out that divine laws are clearly distinguishable from man-made laws. Later. 12 Dr. He thus opposed the doctrine of individualism. 85. Strausburg and Gottingen. 537. He rejected the philosophical view that law evolves 11 Spencer Herbert: Principles of Sociology p. Rostock. which had made the ’individual’ as the focus of moral. Exposing the absurdities and weaknesses of individualism. social interest must gain priority over individual interest. 1964) p.—Ihring pointed out that the origin of law is to be found in social struggles. Spencer deduced four sources of law. Spirit of Law was published in four volumes during 1852-1865. In this work he criticised the notion of individual freedom and liberty as advocated by Kant and Bentham as they had divorced legal theory from social realities. Benthamite individualism and Herbert Spencers biological theory of evolution of law all of them being theories which were divorced from social realities. Keil. He accepted that the role of law is to harmonise conflicting interest of individuals for the purpose of protection of the interest of the society as a whole. . Ihring condemned it as being anti-social and incompatible to the claims of social justice. In his view. Thus. Allen C. he was a great critic of Austinian positivism. The main tenets of Ihring's jurisprudence of interests may briefly be stated under the following heads :— 1. Ihring 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. According to Dr. in its sociological aspect. which means the mental relation of all members of civilised society and the distribution of a sense of responsibility far wider than can be comprised with the formula 'sovereign and subject'. he published his principal work which was translated as 'Law As Means To An End' in 1913. Ihring's Contribution Ihring's contribution to the science of jurisprudence has been acknowledged by Friedmann who calls him the 'father of modem sociological jurisprudence'. such as raising of taxes and revenues. (ii) it has only a relative value. According to him. Thus he treated law as an effective instrument for the attainment of social purpose. and (iii) it has to be evaluated in the social context. According to Ihring. 3. namely. Ihring laid the foundation of modem sociological jurisprudence by this insistence on heating law as one of the important factors to control the social organism.—Ihring made it clear that law alone was not the means to control the social organism. 'law is a coercion organised in a set form by the State’.—Ihring considered law as a means to an end. Criticism Against Ihring's Theory Ihring's legal theory has been criticised for two reasons. It is mainly for this reason that Ihring's theory has been called as "social utilitarianism". pursuit of pleasure and avoidance of pain may be called as 'interest'. For him. His theory was later developed by Duguit. Firstly. There are some other conditions such as climate. "the social activities of people are controlled by reward and coercion. The ultimate end of law is social purpose and not the individual purpose or interest. He is opposed to retributive penal policy. however. social control. He believed that law does not exist for the individual as an end in himself. in suggesting that the function of law is to reconcile the conflicting interests. He was a critic of Savigny's historical theory and natural law theories propounded by his predecessors. he is pointing out the problem. The legal philosophy of Ihring greatly influenced the American sociological school which eventually culminated into Realist School of Jurisprudence.spontaneously like language and thus he gave importance to 'living law' which was later developed by his disciple Eugen Ehrlich. that is. There are. but serves his interest with the good of society. It is the duty of the State to promote social interest by avoiding a clash between the individual and social interest. laws were only one way to achieve the end. Ihring traced the development of various legal systems by adopting comparative method of study and came to the conclusion that law develops by conscious efforts. but does not come out with any solution to it. Ihring also defines 'interest' in terms of pleasure and pain. wherein law need not intervene. Law is to serve a social purpose. certain aspects of social life which can be regulated and controlled exclusively by the intervention of law. For him. He even justifies coercion by the State for the purpose of protection of the social interest. Law alone is not a means to control the society. property for him was both. duty and love". (i) law has a coercive character. topography etc. . Roscoe Pound and others. a social and individual institution. 2. Thus. He emphasised that law was an instrument for serving the needs of society where there is inevitable conflict between the social needs of man and each individual's self-interest. He considers punishment as a means to a social end. Like Bentham. law has a purpose to promote social interest and as such there can be no law which does not owe its origin to a definite purpose. Ihring's theory of purposive law inspired . the main criticism against Ihring's theory of purpose is that law in fact protects 'will' and not the 'purpose'. Thus.Secondly. The true position as per Ihring is that law is a process to achieve a proper balance between social and individual interests. 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. Ihring's theory was mainly based on the Benthanmite principle of utilitarianism and he sought to reconcile competing social and individual interests. Eugen Ehrlich (1862-1922) Ehrlich was a Professor of Roman law at the University of Czetnowitz in Austria. He earnestly strived for the cause of social justice and 'justice' according to him was not an abstract concept but had a relative significance changing with time and place. He concentrated his attention on the functioning of law which was not embedded in the Code or the Court's decision but which did operate and affect the social life in a community. but it is created by life of groups living within the society.K. possession. Ehrlich's Contribution Despite criticism from several quarters that Ehrlich's theory of living law is unrealistic. The essence of Ehrlich's theory of living law is that law need not be necessarily created by the State or applied by the courts or have a coercive legal compulsion behind it. For example. domestic life. have been termed as ‘fact of law' a social reality which exist quite independent of State's positive law. Such rules which are based on mutual consent of the people rather than statutory enactments or court's decisions. According to him.A subsequent jurists. social interest and social justice in subsequent years. The Indian dowry system provides the best illustration to substantiate this view of Ehrlich. It is the ‘living law' of the people. Thus living law is the fact which governs social life and a proper study of law requires the study of all the social conditions in which the law functions in the society. The greatest contribution of Ehrlich to sociological school of jurisprudence lies in scientific approach to study of law in its social context and his emphasis 13 Allen C. inheritance. there may be some enactments in force in the sense that a court may apply the provisions thereof if they are called in question. Thus he considers ‘living law' wider in scope than the statutory law enacted by the State.13 His living law is the law which dominates social life even though it has not been promulgated in the form of enactment or decision of the courts. A statute which is habitually disregarded is no part of 'living law'. lies neither in juristic science nor in judicial decisions. a community ignores that enacted law and lives according to rules created by mutual consent. Ehrlich made an intensive study of various legal systems by comparative method and came to the conclusion that law develops by conscious efforts.: Law in the Making (1964) p. his contribution to jurisprudence cannot be dismissed outright. govern the society through ‘living law' which dominates the human life. Like Savigny. By 'living law' he meant extra-legal controls which regulate social relations of men. . he believed in spontaneous evolution of law but he did not hang on the past but conceived law in the context of existing society and thus evolved his theory of 'living law'. the centre of gravity of legal development in the present time or the past. notably Roscoe Pound to develop of his theory. contract etc. 28. In his opinion. but in society itself. the institutions of marriage. but frequently. Russians. but in society itself. 1® The reflection of collectivist ideologies could be found in the writings of Durkheim. was attainment of social justice. Ehrlich made an exhaustive study of the variety of customs. 26. Undoubtedly. the centre of gravity of legal development lies not in legislation nor in juristical science nor in judicial decisions. therefore. Ploes.: Dilemmas o/Uno in the Welfare State. 248. Hungarians.on relation between law and the life of the society. 16 Friedmann.M. L. attitudes. Ehrlich emphasised that while making and administering law. The significance of state-made positive law in the modem welfare states cannot be undermined. The purpose of law according to him. Friedmann's 'legal culture' purports to cover the ideas. Croats. namely. He also overlooks the fact that many a times formal law influences and even changes the prevalent practices of the society in the interest of the community as a whole. Taking a very practical stand. His theory of 'living law' came as a vigorous reaction against the analytical positivism. totality of 'legal culture' has to be taken into consideration in order to make the law well 'reasoned' and acceptable to people at large. habits and rules of succession and family relations of nearly a dozen of tribal 14 inhabitants in Astro-Hungarian empire and concluded that they persisted independently despite existence of state regulations on these matters. values and beliefs which people hold about the legal system. Ehrlich adopted a more practical approach and focused his attention on the social function of law. the requirements of the society in which law is to operate must be taken into consideration. He wanted jurists to abandon purely abstract notions of law and concern themselves with the real problems and facts of social life. Rumanians. Legislation has become one of the important sources of law for regulating social life giving way to age-old customs and traditions. traditions. 16 Leon Duguit ( 1859-1928) Leon Duguit was a French jurist who made substantial contribution to the sociological jurisprudence in early twentieth century. 15 Friedmann : Legal Theory (1967) p. Then only law may serve a really useful purpose. The validity of law is. Serbs. Thus validity of law is based on social conventions and not on morality alone. Piaget. . While enacting the law. however. This study inspired him to evolve his theory of 'living law' of the people.15 Ehrlich makes no distinction between legal norm and other social norms and confuses between the twc. He was a Professor of constitutional law in the University of Bordeaux for many years. Germans. During his time individualism was crumbling in Europe giving way to collectivism in which State's role extended to public service. Max Weber 14 In those days Astro Hungarian Empire consisted of a number of gaces. Solvenes. Criticism Against Ehrlich's Theory Friedmann has criticised Ehrlich's theory for extending the scope of sociology of law and its relation to other social sciences too far and even to the limit of absurdity. based on social conventions and not on morality. Slovaks. modem social conditions call for more and more intervention of the State to control social life. According to him. Czechs. Jews. Friedmann asserted that law is a focal point that generates standards of behaviour. (1986) p. the importance of custom is receding in favour of articulate law of the State. the essence of law is to serve arid secure social solidarity which is duty oriented as it expects individuals to perform their obligations as a member of the community. law must seek to promote social solidarity so as to attain maximum good of the society as a whole. legal personality as fiction and unreal because they were not based on social reality. Durkheim made a distinction between two kinds of needs of men in society. His entire thrust was on mutual co-operation and mutual interdependence between individuals. Duguit was also influenced by Durkheim's work 'Division of Labour in Society' which was published in 1893. and secondly. and man and the State on the other. State regulations should be directed towards achieving the ends of social and economic justice for common good. The ultimate end of all human activities is to ensure the interdependence of men. Therefore. Therefore. He considers 'justice' as a social reality its roots being in the society itself and not in the will of the sovereign. the division of labour is the most important fact which Duguit called as 'social solidarity’.—Duguit rejected hypothetical notions about the State and sovereignty and built his own theory which was pragmatic and scientific in character. He attacked State sovereignty and held that State is in no way different from other human organisations and therefore.—Duguit dpfines justice in terms of fulfilment ot social needs and obligations. Duguit was much influenced by Auguste Compte's theory of law as a fact which denounced individual rights of men and subordinated them to social interest. For Duguit. Every individual has his existence owing to his membership of the society. state. groups and societies according to the principle of division of labour for the purpose of social cohesion. This formed the basis of Duguits' legal theory.—Duguit's theory of social solidarity was based on the fact that interdependence of man is the essence of society. He pointed out that law is a rule which men obey not by virtue of any higher principle but because they have to live as members of society. Duguit exhorts every one to perform his duties to the society which would help development of co-operation and social solidarity. There is therefore. Law to secure and serve Social Solidarity According to Duguit. In other words. Duguit's views about the State and its functions. Firstly. Theory of Justice. The only real right of man in society is to do his duty. the common needs of individuals which are satisfied by mutual assistance. its activities should be judged from the point of view of social solidarity . Each individual cannot procure the necessities of life by himself. He rejected the traditional notions of rights. Duguit further stated that law also serves the same end. Doctrine of Social Solidarity. each in his turn has to depend on other for his needs. Law is essentially an objective social fact concerned with the relation between man and man on the one hand. Thus Duguit stated that law consists of duty which is the basis of co-operation and rejects the abstract concept of right which is the source of conflict.etc. According to him. law is not a body of rights. sovereign. no scope for natural or private rights. the diverse needs of individuals which are satisfied by exchange of services. public and private law. Compte pleaded that 'the only right which man can possess is the right always to do his duty'. namely. The sole emphasis of Duguit was on interdependence of men as a member of the community. The unity of State is not consistent with the collectivist associations. 7. 5. Social interdependence was the inevitable characteristic of human existence which necessitated active co-operation between people. Duguit firmly believed that the State exists for performing the functions which promote social solidarity and not for the exercise of sovereignty. Public opinion is thus expression of social solidarity. The impact of Duguit's legal theory was so great that the later jurists were inspired to propound their own theories relating to law and jurisprudence. he subordinated the State to the social needs and asserted that all State actions are to be tested by the Courts with reference to social solidarity. Law Review 1.n which made individual hostile to larger interests of the society. There is no distinction between public and private law as all laws are weant to serve the end of social solidarity. Duguit used law as an instrument to promote justice. Criticism against Duguit's Theory The critics of Duguit suggest that his theory of social solidarity suffers from many weaknesses. 4. which may briefly be summarised as follows 17 :— 1. Duguit called this as 'social solidarity'. sovereignty and law and preferred to interpret these institutions from the point of view of society. Thus. Thus he acknowledged the superior role of the judiciary in adjudicating vires of State actions or laws. He favoured minimisation of State functions and decentralisation of State power. 2. He also rejected the notion of natural rights of m . freedom of contract and liability for fault which achieve validity when approved by the people. Duguit's Legal Philosophy Duguit denounced traditional conceptions of state. He rejects the doctrine of state sovereignty and considers state merely as an expression of the will of the individuals who govern. respect for property. He contended that legislators do not make law but merely give expression to judicial norms formulated by the consciousness of the social group. Duguit denied the existence of rights and held 'duty' as the core of law to attain public good. 3. his legal philosophy centered round the doctrine of social solidarity. the first being that it excludes all metaphysical considerations 17 Leon Duguit: The Law and the State (1917) 31 Harv. According to him. There are three formative laws. He contemplates gradual withering away of the State and its replacement by group of associations which are engaged in the service of society.and common good of society. Law is only an embodiment of duties which an individual is supposed to perform as a part and parcel of the social organisation for furtherance of social solidarity. Duguit's Contribution The substantial contribution of Duguit to juristic thought is that he denounced the omnipotence of the State which had led to despoticism and totalitarian rule. the outstanding feature of society was ’interdependence of men1. By rejecting the notion of State sovereignty. Law forbidding racial segregation promotes social solidarity. His over-emphasis on duties rather than rights was directed towards greater inter-co-operation between individuals of a society. . 6. He was the first legal thinker in the continent to accept the importance of judicial decisions in moulding any system of law. 19 Reuschlein Harold Gill: Jurisprudence. 'social solidarity' may be differently interpreted by different persons to suit their own purposes.19 Elaborating his concept of free scientific research. i. He favoured minimum State interference completely ignoring the fact that the complexities of modem social life and interdependence in society necessitates greater intervention of the State in regulating human behaviour. instead he should try to find out the solution freely.e. he refers to three additional sources18 of law. then the social solidarity would become a question of personal evaluation of the Judge. He denounced the traditional French method of logical interpretation of law and suggested that it be substituted by the new scientific research in the field of law.from law and it is itself based on the ideal of natural law. Francois Geny (1861-1944) Geny was a French jurist who was a Professor of Law in the University of Nancy. anything which does not encourage social solidarity is no law at all. He gave primacy to courts and held that it was for the Judge to ensure that justice is being done to everyone without any discrimination. namely. Geny believed that law was essentially a social science which needed to be modified and changed with the changing patterns of life and society. without any external influence. (2) authority of judicial decisions. Cardozo. who is to decide whether a particular act or rule is in furtherance of social solidarity or not? If it is to be decided by the Court. Another weakness of the theory propounded by Duguit is the vagueness of his doctrine of social solidarity. "pushed natural law out through the door and let it come in by window". and (3) free scientific research. 18 Friedmann : Legal Theory (1967) p. Marxists used this theory for denial of individual rights and the Fascists used it to suppress the trade union movement.. Geny stated that when a case is not covered by any of the provisions of the Code. Duguit's definition of law is also confusing as in laying down the fundamentals to which the law must conform. Rejecting abstract and logical approach to law. . His later work Science and Technique of Law was published in four volumes between 1914 to 1924 in which he pleaded for the revision of the French logical method of interpretation of law being out of tune with the requirements of changed social context. Again. Thus the ultimate aim of law is to impart justice. he confuses to distinguish between what the law is and what it ought to be.. He published his work Method and Interpretation of Sources of Law >n 1899 which won appreciation from American jurists like Holmes. For him. which would not be a happy situation since Judges too have their own limitations and convictions. his decision should be based on reason and conscience. Besides the French Code for which Geny had no faith. and scientifically. After all. i. Frank and others. 113. the Judge seems to have unlimited powers to interpret it. 328.e. They allege that Duguit. For example. but he should not do so arbitrarily. Perhaps the greatest shortcoming of Duguit's theory lies in the fact that he overlooked the growing role of State in modem times. its American Prophets (1971) p. (1) custom. : Essays In Honour of Roscoe Pour. Emphasis on Functional Aspect of Law : Roscoe Pound added new dimensions to sociological school of jurisprudence. 113. The Task of Law (1944). The Formative era of the American Law (1938). namely. He was a prolific writer and his major works include the Spirit of the Common Law (1921). (1) autonomy of will. Procedure and Significance (1942). he worked as a Dean of the Law school at Nebraska. R. instead of resorting to logical interpretation of law.A. He opposed the analytical approach to law which was based on mere logical propositions and supported the existence of law as a means for protecting the social interests of individuals in society. etc. Social Control Through Law (1942). Interpretations of Legal History (1923). His approach to sociological jurisprudence was different in the 20 Friedmann : Legal Theory (1967) p. Roscoe Pound was one of the most leading and influential jurists who developed the American Sociological Jurisprudence in a systematic form. (2) maintenance of public order and public interest and (3) proper balancing of conflicting private interests of individuals. He treated law as a means for affecting social control and did not believe in the abstract or mechanical application of law. 329. Administrative Law—Its Growth. 21 Thus he laid greater stress on sociological study of law. He was an auxiliary Judge of the Supreme Court of Nebraska for a sh ort period of two years during 1901-1903. The emergence of Realist School in America in later years owes its origin to Pound's functional jurisprudence and theory of interests. Geny's sociological approach to jurisprudence with emphasis on 'free scientific research' was supported by Professor Kantorowicz who was his contemporary sociological jurist. Thus while resolving the social problems the judge must bear in mind the common good of the people in general. Law and Morals (1926). 21 Newman. He emphasised on inter-disciplinary approach to law so that rule of law and life may flow together. Thereafter. An Introduction to the Philosophy of Law (1922). . Hermann Kantorowicz (1877-1940) Professor Hermann Kantorowicz also contributed to the development of sociological jurisprudence. The latter opposed analytical approach to law which was based on abstract logical derivations and supported the view that law should attempt to balance the conflicting interests of life.Geny further stated that the solution of social problems lies in the free scientific research20 which itself is based on three principles. He also served as a Professor of Jurisprudence in Harward University and was the Dean of its law school. He emphasised on social implications of law and legal institutions. He is considered to be the father of American Sociological Jurisprudence for his unique contribution to the science of law and legal philosophy. Roscoe Pound (1870-1964) Roscoe Pound was bom in Lincoln Nearaska (New Jersey) in 1870. The contribution of Roscoe Pound to sociological jurisprudence may be studied under the following heads :— 1.d (1977) p. Contemporary Juristic Theory (1940). This is why his approach has been termed as 'functional school' by some writers. They arfc. 2. (ii) Public interests. and 22 Paton G. He termed this as 'social engineering'. 22 He defined law as containing "the rules. . principles. succession. and (3) Social interests. Pound's Theory of Social Engineering : Roscoe Pound conceived law as a 'social engineering'. namely. conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art". testamentary disposition. Roscoe Pound stated that the function of law is to reconcile the conflicting interests of individuals in the community and harmonise their inter-relations. safeguarded by laws of crimes. association etc. 23 For example.) p. marital life a^ also the individual's private interests. Arts. Pound laid greater stress on functional aspect of law.: A Text-Book of Jurisprudence (4th ed. legislators. constitutional law. freedom of volition and freedom of conscience. contracts.W.17. (1) Private interests. reputation. administrators and jurists must work with a plan and make an effort to 1 01 SOCIOLOGICAL SCHOOL maintain a balance between the competing interests enumerated the various interests which the law should seek to protect mcfclassified them into three broad categories. 23 etc. torts. Thus courts.—These include— (a) Individual's interests of personality. 24 and 26 of the Constitution of India. namely. is to satisfy a maximum of wants with a minimum of friction or confrontation.—The main public interests according to Roscoe Pound are— (a) Interests in the preservation of the State as such. freedom of contractual relations. (2) Public interests. Elaborating the functional aspect of law. 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. (c) The interests of property. parent and children. are also included in the category of private interests. interests of physical integrity. (i) Private Interests. The end of law according to him. (b) The interests of domestic relations of persons such as husband and wife. He thus considers law as a means of a developed technique and treats jurisprudence as a 'social engineering'.sense that he attempted to cover social-life as a whole unlike his predecessors who considered law as the main subject of study and society is merely subsidiary to it. (f) Interests which promote human personality by enabling a person to live political. (e) Social interests in general progress including economic. It is through the instrumentality of law that these interests are sought to be balanced. As Justice Cardozo rightly remarked.. 7-8. territorial waters. etc. gambling. encouragement to arts and promotion of higher education etc. (b) Preserving social institutions such as religion. Pound himself accepted that the various interests of individuals in a society can only be broadly classified and they cannot be placed in water-tight compartments.(b) State as a guardian of social interests such as administration of trusts. These assumptions may be called as jural postulates of the legal system of that society. Pound suggested that every society has certain basic assumptions upon which its ordering rests. though for most of the time they may be implicit rather than expressly formulated. 25 Pound Roscoe: Jurisprudence (Vol. general health. protection of economically weaker sections of the society. protection of natural environment. "Pound attempted to emphasise the need for judical awareness of the social values and interests. 1959) pp. natural resources. (d) Interests in conservation of social resources. (iii) Social interests. e. sea-shores. social and economic life to suit his taste and improve his personality. Ill. cultural. political and cultural progress. . reformation of delinquents. political and economic institutions etc. physical. It is thus an important aid in the linking of principles and practice. regulation of public employment and so on. It may be stated that Pound's classification of interests in his theory of social engineering cannot be said to be fool-proof for there may be overlapping of interests here and there. "it greatly helps to make legislator as well as the teacher and practitioner conscious of the principles and valuei involved in any particular issue.24 However. For example. appreciating Pound's classification of interests he observed. 24 Stone Julius : Province And Function of Law (1946) p. charitable endowments. (c) Interests preserving general morals by prohibiting transactions which are against morality such as prostitution. 3.g. 491. drunkenness.—In a civilised society men must be able to assume that others will commit no intentional aggression upon them. Julius Stone has rejected the division of public interests and social interests on the ground that in fact they are all social interests." Jural Postulates of Roscoe Pound In order to evaluate the conflicting interests in due order of priority. freedom of speech and expression. freedom of trade and commerce.—The social interests which need legal protection are— (a) Interests in the preservation of peace. Pound has mentioned five jural postulates 25 as follows :— Jural Postulate I." Pound tackled the problem of interests in terms of balancing of individual and social interests. security of transactions etc. —In a civilised society men must be able to assume that those with whom they deal as a member of the society will act in good faith and hence— (a) will make good reasonable expectations which their promises or other conduct reasonably create.—In a civilised society men must be able to assume that those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others.. .Jural Postulate II. Equating society with a factory is not correct because the former is changing and dynamic in nature whereas the latter is more or less static.—In a civilised society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use what they have created by their own labour and what they have acquired under the existing social and economic order. They are of a changing nature and new postulates may emerge if the changes in society so warrant. 26 Roscoe Pound : Jurisprudence (Vol. Pound stressed upon the need for study of law in relation to and as a part of the whole process of social control. Law is a social process rather than the result of an applied engineering. his theory suffers from certain drawbacks. Pound's theory of social engineering has been criticised for the use of the term 'engineering'. 3. Again. 26 Thus. which equates society to a factory like mechanism. harmless in the sphere of their use but harmful in their normal actions elsewhere. within their proper bounds. Jural Postulate IV. or other unanticipated situation whereby they receive at other's expense what they could not reasonably have expected to receive under the actual circumstances. Jural Postulate III. Pound's Contribution to Jurisprudence : Roscoe Pound based his theory of social engineering on the assumption that protection of interests is the main subject-matter of law and it is the duty of jurists to make a 'valuation of these interests' for the satisfaction of human wants in order to strike a balance between stability and social change. or failure of the pre-suppositions of a transaction. Jural Postulate V. (c) will restore specifically or by equivalent what comes to them by mistake. (b) will carry out their undertaking according to the expectations which the moral sentiment of the community attaches thereto. and having a natural tendency to cross the boundaries of their proper use will restrain them and keep them. Criticism Against Pound's Theory : Despite Pound's great contribution to sociological jurisprudence and his emphasis on studying the actual working of law in the society. the jural postulates propounded by Roscoe Pound provide guidelines for righteous and civilised life and they also seek to strike a synthesis between reality and idealism as also power and social accountability of men in the community. Thus adopting a functional approach to law. Ill 1959) p. They are a sort of ideal standards which law should pursue in society. Pound confessed that these jural postulates are not absolute but they have a relative value.—In a civilised society men must be able to assume that others who maintain things or employ agencies. He aptly remarked. are considered to be the forerunners of the sociological jurisprudence to which Pound gave a concrete shape through his theory of sociological engineering.K.33.Pound's emphasis on 'engineering' ignores the fact that law evolves and develops in the society according to social needs and wants for which law may either have approbation or disapprobation. a liberal progressive government would lay greater emphasis on freedom of individual rights and of established institutions buL a totalitarian State would suppress the interests of individual in favour of the interest of the State. 28 He was a practising lawyer and teacher at Harward Law School. Allen has criticised the utilitarian in Pound's theory as it confines the interpretation of 'wants and desire' to only material welfare of individual's life completely ignoring the personal freedoms which are equally important for a happy social living. He was subsequently appointed as a Judge of the Supreme Court of Massachusetts of which he became the Chief Justice in 1890. public or social because these are changing conceptions as has been accepted by Pound himself. Be that as it may. Justice Holmes (1841-1935) Justice Oliver Windell Holmes considered law as a means to protect and promote the collective group interests as compared with the individual interests. Thus he approached law in a pragmatic manner adoptingrealistic attitude to analyse its working in the society. the respective value of these interests and their evaluation also depends on changing political and legal system". he was Judge of the Supreme Court of USA from 1902 to 1933. the lawyers and Judges must take into consideration the needs of the time. public policy and the public opinion. Dr. it has been experience" which meant that while determining the law and legal rules by which men should be governed. life of law has not been logic.A. prevalent moral and political precepts. Harmonising their divergent interests is by no means an easy task to be performed through law and courts. there is no doubt that through his legal theory Pound has attempted to bring law into closer relation with other social sciences and tried to strike a balance between freedom of individual and' social control through the instrumentality of law. ethnic.S. Holmes was convinced that Judges can play a significant role in "turning law to life's needs and 27 Allen C. His greatest contribution to jurisprudence is that he is practical in approach and concentrates his attention on the actual functioning of law in society. Other American Sociological Jurists Justice Oliver Windell Holmes28 and Justice Cardozo of U. Friedmann has expressed doubts about the value of classification of interests and remarked that "there is danger of an implicit grading of interests as either individual.27 It has also been argued against Pound's theory of interests that it has no significance in a pluralistic society where there are linguistic. Not only that. For example. Dr. Later. Being a Judge of the Supreme Court of America for over thirty years. and religious minorities having diverse interests.: Lmu in the Making (1964) p. . In the strict Austinian sense.: Fundamentals of jurisprudence—We Indian Approach (2004. customs. He was primarily concerned with two aspects of law. 327. Judges cannot keep themselves secluded from social realities and developments in other fields of social sciences which have a direct bearing on the life of the people. creed. Which of these forces shall dominate in a given case. study and reflection. According to Justice Cardozo. Cardozo : Benjamin Nathan (1870-1938) Another Judge of the US Supreme Court. In his famous work Nature of Judicial Process. "logic. sanctions 29 Dhyani S. Thus the law in India as it stood before the Indian independence was formal. history. 31 Cardozo Benjamin Natham : The Nature of Judicial Process (1931) p. executive and judiciary—the three organs of the government used law to protect the interests of the British in complete disregard of the aspirations and needs of the Indian masses who were exploited and denied even the basic human rights. The judge should get his knowledge as legislator gets it from experience. (1931) p. Alschuler who wrote Justice Holme's biography writes that Holmes did not believe in a divinely imposed distinction between right and wrong. . It was suppressive and insensitive to the sentiments and expectations of the Indians. religion.29 Professor Albert W. shape the process of law. The law during the British colonial rule in India was coercive and counter-productive to social needs of the Indian people. Cardozo exhorted the Judges to shed aside their subjective approach and apply law objectively keeping in view the prevailing traditions. 32 Cardozo Benjamin Nathan : The Nature of Judicial Process. (1) how the Judges should apply law for deciding cases before them. utility and the accepted standards of right conduct are forces which singularly or in combination. The British rulers paralysed the peace and prosperity of Indian by dividing Indians on the basis of caste. 142.satisfaction". 30 He was Associate Judge of the US Supreme Court during 1932-38. and (2) how the'law grows in society.N. Judge's role is crucial in this judicial process. He remarked. shall depend largely upon the cooperative importance or value of social interests that will thereby be promoted or impaired. rigid. He believed in relativity in all human conduct. 142. He totally rejected Austinian concept of logical interpretation of law and his analytical approach to the judicial process and emphasised on the need to interpret law in the light of the social necessities and realities of life. 2011) p. Reprint. custom. The legislature. namely. 32 Social Justice—Indian Perspective An appraisal of the sociological jurisprudence in its Indian perspective would necessitate a survey of the present as well as the pre-independence Indian law. language and occupation so as to perpetuate tension and conflict between different communities to meet their selfish ends. morals and needs of the society. repressive and punitive as contemplated by the Austinian conception of imperative theory of law. Therefore. Justice Cardozo 30 also viewed law in its sociological perspective. law must keep pace with the social developments and shape itself to the changing needs of society in order to attain the ends of justice 31 and undoubtedly. According to him. law does not deal with absolutes but has to be applied according to varying circumstances of the case and a variety of other factors associated with it. Through his monumental work The Common Law he took sociological jurisprudence across the Atlantic. from life itself. Ottovon Gierke (1841-1921) denounced the orthodox approach of the historical school which over-emphasised on metaphysical approach to law and highlighted the importance of grouppersonality for securing collective interests. Friedmann : Legal Theory (5th ed. Thus it was realised that psychological aspect of law has a close bearing to its functional aspect. Castairs has commented that the (3) Impact of Psychological Theories.—According to Dean Roscoe Pound. George Jellinek (1851-1911) propounded his social psychological theory of sanction and held that law sets the norms for external conduct for men and it proceeds from an external power. From the point of view of Kelsonite concept of pure theory of law.were imposed on Indians in the name of 'justice according to law'. the third stage of the development of sociological school is the psychological stage. Expressing his impressions about the nature and quality of justice delivery system administered in the Indian law courts. ]ulius Stone: Province of Law (1945) p. The British residents in India enjoyed many exemptions and special privileges under the then existing laws.) p. 18. Thus there was 'one law for the ruler and other for the ruled'. 6. 30. 587. . the Grundnomi of the Indian law was the British Crown who possessed unlimited and unbridled powers of suppression and subjugation of the native Indians. It was a period of later half of the 19th century and the first quarter of the twentieth century during which psychology had greatly influenced other social sciences including the law.340. 690. Dias: Jurisprudence (1976) p.