INDORE INSTITUTE OF LAW

(Affiliated to D.A.V.V. & BCI)

B.A.L.L.B (Hons.)

2018-19

SUBJECT:-JURISPRUDENCE

TOPIC:- Law & Society

SUBMITTED TO:- SUBMITTED BY:-

Mrs. Anannya Bharadwaj Devesh Bharadwaj

Date:- /10/2019 Semester- V

REMARK ________________ SIGNATURE___________

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 ACKNOWLEDGEMENT

Trust in the Lord with all you heart and lean not on your own understanding; in all your ways
acknowledge Him, and He will direct your paths.

It is not possible to prepare a project without the assistance and encouragement of other people.
This is certainly no exception. On the very outset of this project I would like to extend my
sincere and heartfelt obligation towards all the personages who helped me in this endeavor.
Without their guidance, help, cooperation and support I would not have made headway in this
project.

I am ineffably thankful to Asst. PROF. Mrs. Anannya Bharadwaj Ma’am for conscientious
guidance and encouragement to accomplish this assignment.

I extend my sincere gratitude to INDORE INSTITUTE OF LAW for giving me this opportunity.

I also acknowledge a deep sense of reverence , my gratitude towards my friends and family
members who have always supported me morally as well as economically.

Last but not the least I want to thank THE ALMIGHTY who made everything possible.

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 DECLARATION

I hereby declare that the research work entitled “Law & Society” submitted to the Indore
Institute of Law is my original work and the project has not formed the basis for the award of
any degree, fellowship or any other similar titles.

Name of the Student:- Devesh Bhardwaj

Date:- -10-2019

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 Introduction
As law and society are two facets of a coin, social issues determine law which control or change

society. The relationship of law and society can be further established through social basis of

law, social functions of law, sociology of law and structural functionalism. Since a society is a

community or a group of people residing in certain geography united for some common bonds, it

directs law or grants law of freedom to control over it. If society changes, law will be changed

accordingly and sometimes law prevents sudden changes of society. Social control and social

change both are established in relation by law and society. One can perform task only with the

existence of other in human domain. In fact, human domain is orderly and functional with the

existence of law. It establishes peace, order, justice, and equality. Even the weakest sects of

people have the feeling of strength with the existence of law in the society. Law is enacted to

establish solidarity in society based on rational and reasonable social norms and values. All the

provisions of law are based on society and their dominant values respecting minority residing in

a society. Social control and social change both are applicable in relation with law and society.

However, law does not exist in vacuum though it needs society and disciplines. So, Law is

interdisciplinary and multidisciplinary in nature, which reflects sociology of law as a part of law,

society and research. Many issues are shifted to the control of white collar crime to the global

governance system. Nowadays, structural functionalism concept has been emerged emphasizing

interdependence between structure and functions of society. Structures are social units and

components which have separate functions to make unified society harmonious and natural.

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 Jurisprudence of social basis of law

If there was no society, there would be no law and state. So, one cannot perform in the absence
of others. Jurisprudence exists to the extent if there is a society. Sociological jurisprudence
purely targets functionality of law in society which is determined by vivid interest of society.
Sociology of law has a belief that law is like other social discipline i.e. sociology, anthropology,
psychology etc. Realist school accepts consequences of law and research as a base of law.
Marxist school, CLS movement, feminism movement and postmodern movement are the
foundations of critical sociological jurisprudence. Natural law adapts the features of law of
nature to make it apt in society. Under positive school, there is the adaptation of sociological
phenomenon by state authority. Historical school has distinct features of social basis with
adaptations of custom, rites, rituals and traditions which cannot be aloof from society. Last but
not the least, law and society are inseparable as two part of coin. Both adapt or reject the social
change in the same pace. Thus far, law is grounded on social dimensions and problems. Law
cannot be operated in vacuum rather to perform it needs society. Correspondingly, society
changes law and law changes society. It is continuous process. All schools of thought directly or
indirectly interact with the relation of law and society. Sociological school and critical school
address directly to social basis of law.

Social functions of law

Law exists in society to establish peace, order, justice and equality. On the one hand, it regulates
personal behavior and the other hand, it controls society. Social control and social change are the
ultimate functions of law in society. All the branches of law have different dimensions of social
functions to resolve the problem of society. These functions of law are summarized as below.

 Natural Law: It applies natural instinct to individual and society. Heraclitus identifies
destiny, order and reason as a function of law. For Plato, it supports for social harmony.
Likewise, Aristotle focuses on distributive and corrective justice and Thomas Aquinas
adapts Aristotelian Justice. Hobbes, Locke and Rousseau favors protection of life, liberty
and property and Stammler desires respect and participation of all with harmony.
Realizations of common goods are primary functions of law for Finnis. Finally, Fuller
wants to establish inner and outer morality with procedural law.

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  Positive school: The ultimate aim of this school of thought is establishing peace and
order in society by sanctions. Austin imposes negative sanctions whereas Bentham
imposes positive and negative sanctions both for order. Kelson endorses imputation and
delict control and HLA Hart advocates dispute resolution under law or discretion to the
judges. Yet, Joseph Raz accepts norms control as a function of law as in below figure.1

.
Social Functions

Direct Functions Indirect Functions

Primary Secondary
 Non legal interaction
Functions Functions
like sanctity of persons,
 Preventing and  Procedures for strengthening and
encouraging behavior changing the law weakening authority
 Providing facilities for and procedure for etc.
private arrangement enforcing the law
 Providing Services and
redistributing goods
and settling unregulated
disputes.

 Historical school: Under this school, norms of conduct are controlled by custom, rites,
rituals and traditions. Savigny wants to respect spirit of people and Henry
Mainerecommends change from status to contract. Hegel accepts thesis, anti thesis and
synthesis to create social values and institutions.
 Sociological jurisprudence: Balancing of interest, social solidarity, capitalistic
rationality and jural postulates are basic functions of this school. Ihering and Roscoe

1
Joseph Raz, 1979, The Authority of Law, Oxford University Press, p.176

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 Pound focus on balancing of interest and Durkheim and Duguit points out social
solidarity. Ehrlich recommends respecting living law and social order through primary
and secondary norms and Max Weber accepts on dispute resolution with rationality.
Selznick recommends problem resolution by reason and positive norms and Talcott
Pearson recommends determining functions through structures of the society.
 Marxist school: The function of law is exploitation in capitalism and equality in
socialism and establishing classless society in communism. Karl Marx recommends
establishing classless society.
 Realist School: Dispute resolutions based on empirical evidences are primary functions
of law. Holmes, Llewellyn and Frank propose dispute resolution by court activism and
Hagerstorm, Lundsted, Olivecrona and Alfred Ross support for ordering behavior by
force.
 CLS movement: Law has political and racial functions where dominant political system
represents legal system.
 Feminism Jurisprudence: This movement focuses on women's rights protection in
society and maintaining equality between male and female.
 Postmodern Movement: Cosmopolitanism, redistribution of postmodern goods,
redistribution of economic goods, gypsy rights, victim justice, utilization of natural
resources etc are the functions of law under this philosophical movement.

Sociology of Law
The sociology of law refers to the sociological study of law and law-related phenomena,
whereby law is typically conceived as the whole of legal norms in society as well as the
practices and institutions that are associated with those norms.2 It is multidisciplinary method
of law and movement of society. It is also autonomous discipline of theoretical and practical
sociology. It has been employed more in socio-legal research in cotemporary time.

2
Sociology of law, available at http://www.oxfordbibliographies.com/view/document/obo9780199756384/obo-
9780199756384-0056.xml, last visited on 30/08/2019

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 Jurisprudence of sociology of law
Sociological school includes three methods to understand law in terms of society as
sociological jurisprudence, sociology of law and socio-legal research. Sociological
jurisprudence primarily focuses on supremacy of law over society whereas sociology of law
focuses on supremacy of society over law and socio-legal research adapts newly developed
dimensions of scientific research. There are three distinct approaches of sociology of law as a
part of sociology, law and socio-legal research. Whatever the approach is accepted by legal
scholar, it is the interdisciplinary and multidisciplinary approach. It exists wherever the social
science reaches. The dimensions of sociology of law crosses national boundary and is
tending towards global governances. Under this philosophy, legal provision is shaped by
social norms and has functions of social network and control. For R. Cotterrell, sociology of
law is a ‘transdisciplinary enterprises and aspiration to broaden understanding of law as a
social phenomenon.’3

Except Ihering and Roscoe Pound, the entire philosopher from the sociological school to
postmodern movement adapts the framework of sociology of law according to R. Cotterrell.
Primary concern of sociological jurisprudence is functional approach of law in society which
is applied and practical in nature whereas sociology of law is theoretical framework in terms
of the interrelationship between law and society. Moreover, sociological jurisprudence
focuses on social control whereas sociology of law focuses on social change.

‘Society changes faster than law’ is the key concept of sociology of law. Although sociology
of law is the major understanding of sociological school, it is broader than this school
practically. The concept of sociology of law is originally found in Ehrlich philosophy and is
fully developed and analyzed by Durkheim and Max Weber. A modern approach of
sociology of law is developed by Selznick and Talcott Pearson, which is a pragmatic
approach. It claims that law, as a subsystem of broader social system, is as other discipline
like economics, sociology, culture, political science. Law coordinates those disciplines to
make effective interaction and consensus. If there is little change in those disciplines, law
will also be automatically changed.

3
Vide M.D.A. Freeman, 1994, Lloyd’s Introduction to Jurisprudence, (6th ed.) Sweet & Maxwell, pp.858865.

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 Ehrlich, a proponent of living law, has focused on discovery of law and boundless
jurisprudence. Durkheim desires to maintain social solidarity through law, religion, morality
etc. and Duguit desires to maintain social solidarity through chain of command.

Max Weber analyzed the feature of different authority like traditional authority, charismatic
authority, and rational legal authority. Rational legal authority has also different stages of
legal development like substantial irrational, formal irrational, substantial rational and formal
rational. Formal rational represents modern positive law which cannot resolve social problem
that catalyzed to develop Alternative Dispute Resolution and corporate justice system.4

Selznick, a modern sociologist, merged natural reason and positive law to resolve complex
modern problems. According to him, natural law and positive law both are necessary to solve
the social problem. His approach follows sociology of law tradition as under.5

• First Stage: In primitive stage, early command was used as there was no complete legal
development. Gradually division of labour started and craftsman stage is appeared in legal
realm. This stage further translated into autonomy of law. Law could not resolve the
problem. So, sociology has provided the garden to develop the law.

• Second stage: This is related to sociology of law, where law became part of society. This
method of sociology of law is appeared to solve the legal problem. However law could not
solve complex problem.

• Third Stage: In this stage of legal development, law crosses posited authority and reaches
into higher reason close to natural justice and order.

Under realist school, Holmes purported empirical study in court decision which is supported
by Justice Grey. Llewellyn supports sound sociology of law required for sound legal system.

Jerome Frank purported new dimensions of rule skepticism and fact skepticism.
Scandinavian realism focuses on psychology of law in relation with force. Hagerstorm has
equated law with word magic and Lundsted linked with balancing of interest. Olivecrona has

4
M.D.A. Freeman, 1994, Lloyd’s Introduction to Jurisprudence, (6th ed.) Sweet & Maxwell, p.839.
5
P. Selznick, 1959, The Sociology of Law, in M.D.A. Freeman, 1994, Lloyd’s Introduction to Jurisprudence, (6th
ed.) Sweet & Maxwell, pp.904-908.

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 accepted rule of law as imaginary actions in imaginary situation and Alfred Ross has
supported on pragmatic jurisprudence rejecting all metaphysical jargons.

For Marxist school, law is not necessary in communism but can be used to develop socialism
and reformation. CLS activists are critical toward traditional concept of law accepting law
and politics as an interchangeable form. Critical race theory poses argument for protection of
all races and feminism jurisprudence rejects patriarchal law and values. Postmodern
movement argues for death of philosophy, death of author and the death of discipline.

To sum up, sociology of law is broader methodology which crosses the boundary of social
disciplines. It is evaluated in terms of social upheaval, social change and emergence of new
practice etc. Ultimately the purpose of sociology of law is to maintain social order, justice
and equality in society. Fundamentally law coordinates and interacts with all other social
discipline and social system.

Structural functionalism
The structural functional approach is a perspective in social science that sees society as a
complex system whose parts work together to promote solidarity and stability. It asserts that
our lives are guided by social structures, which are relatively stable patterns of social
behavior. Relation of law, social structure and social function are analyzed in structural
functionalism based on the concept of Durkheim, Radcliff Brown, and Talcott Parson. There
are classical theory, consensus theory, system theory, macro and micro theories etc. Classical
theory adapts Talcott Pearson concept, consensus theory adapts harmonization, conflict
theory accepts negation of the function, system theory reflects societies and social units are
systems, macro theory focus on large organ and micro theory accepts individuals of society.
Society is like a biological organism which requires cooperation and orderliness, natural
working of each unit establishes equilibrium and social units are different as natural
environment but perform togetherness despite conflict among many units.

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 Contributors
 Herbert Spencer (1820–1903): As a Social Darwinist, he equates society with human body.
As human body is complex amalgam of different organs and body work, each organ has to
perform functions independently. Encroachment of one body function by another demolishes
total body functions. Society is also the amalgam of complex part of the society. Each part of
the society requires performing independently. Social institutions and belief system must
fulfill the necessity of society. He proclaims traditional military society as a repressive
system and modern laissez faire society as a democratic system.6
 Emile Durkheim (1858-1917): Based on Spencer’s theory, he elaborated structural
functional relation of society with shared values, laws, morals, and religious beliefs etc. that
make society functional. Durkheim classifies social solidarity as mechanical solidarity and
organic solidarity. Mechanical solidarity is repressive and traditional in nature whereas
organic is democratic and laissez faire in natures. He synthesizes materialistic and ideal
concept with structural functionalist perspective.7
 Alfred Radcliff-Brown (1881–1955): He purposes dynamic equilibrium concept to make
society stable and continuity because every action of society is the part of whole system of
society. In healthy society, all parts perform well.
 Robert Merton (1910–2003): He presents structural functional concept in the form of
manifest functions and latent functions i.e. enrollment in university has manifest functions of
acquiring knowledge whereas getting spouse and socialization are latent functions. Functions
can be beneficial, neutral, and harmful of dysfunctional. Ritualism, retreatism and rebellion
are the outcome of manifest and latent functions.
 Almond (1911-2002) and Powell (1942): They focus on political development (conversion,
capability and classification of political system) which depends on structure and cultures.
There are the problem of state building, nation building, participation and distributions in
political development.
 Claude Lévi-Strauss‘(1908-2009): He proposed structural anthropology which seeks
homologous relation with counterpart culture. Even in kinship it is applicable i.e. sister
exchange, cross cousin marriage etc.

6
Edger Bodheimer, 1997, Jurisprudence: The Philosophy and Method of the Law, p.77.
7
Vide Mark Traugott,1978, Emile Durkheim on Institutional Analysis, The University of Chicago Press, p.1 and
36.

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 Talcott Pearson (1902-1979): The structural functional approach of Talcott Parson is
developed on the basis of the philosophy of Herbert Spencer and Radcliff Brown. He argues
that structure is cause and function is effect. Previous philosophers focused only on function
rather than structure and viewed law as an isolation. In his concept, law is sub system of
political system but once it is enacted, it is independent system. Pearson equated biological,
personal, culture, and society as a structure and adaptation, goal attainment, latency and
integrity as their functions. There are many more structures and functions in society.
Structural functionalism of society is analogically synonymous with human body i.e. if one
system of human body is not functional, whole human body will be defunct.30 In a same
way, if one structure of society does not work properly, society cannot perform its function
well. Finally, structure of society decides function of it. Prior than the identification of
function in society, identification of structures are necessary.
 Montesquieu (1689 -1755) and John Locke (1632-1704): They propose separation of
power and check and balance issues among legislative, executive and judiciary. They are
separate structures and their functions are also separate. John Locke implies judiciary
whereas it is expressly distinguished by Montesquieu.
 Auguste Comte (1798 -1857): As the proponent of positive and empirical philosophy, he
classifies philosophical development stage into theological stage, metaphysical stage and
positive or scientific stage. The function of society is empirically verifiable.
 Kingsley Davis (1908 -1997) and Wilbert E. Moore (1914-1987): They jointly developed
social stratification as per functional necessity. Motivating individuals are the greatest
challenges in contemporary time. Inequality is the basic method of social stability.

Structural functionalism, in specific sense, is found only in the philosophy of Talcott Parson,
Herbert Spencer, and Durkheim. However, it is, in boarder sense, found in all philosophy of law
from natural law school to postmodern movement if we deeply analyze them despite their
expressive utterances of structural functionalism. Structural functionalism in state organ is found
in the philosophy of Montesquieu and Locke. As structures and functions are mutually
interrelated issues, in the absence of one next cannot exist.

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 Conclusion
Law and society are mutually inclusive; one makes possibility of existence of another. Huge
portions of legal documents are explicitly or implicitly based on society and their norms of
practices. Law exists to establish peace, order, justice, equality in society so that consensus
and harmony in society is possible. Law does not exist in vacuum and is not self sufficient
discipline. It requires other discipline to exist; it stands wherever other discipline forms
because human world is possible only with the existence of the law in the framework of
sociology of law. In modern days, structural functionalism approach is widely shouted
comparing law and society with biological organism. It means society is the complex
amalgam of system and subsystem which all should perform their function to effective and
efficient functioning of the society. Lethargy in one part may hinder total functioning of the
society.

‘The End…’

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