JURISPRUDENCE

TOPIC:
“SOCIOLOGICAL JURISPRUDENCE AND ITS IMPACT IN
INDIAN LEGAL SYSTEM”.
SUBMITTED BY:-

AMIT SIKHWAL

BCOM LLB SEM -V

ROLL NO. -02

GUIDED BY:-

MR. SAPTARSHI DAS

ASST. PROF OF LAW

Indian Institute of Legal Studies

Dagapur, Matigara, Siliguri, Darjeeling, West Bengal 734010

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 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thank
s to Mr. SAPTARSHI DAS, Asst. Prof In Law, Indian Institute of Legal Studies, for his
invaluable guidance, sound advice and affectionate attitude during the course of my stud
ies.

I have no hesitation in saying that she molded raw clay into whatever I am through his
incessant efforts and keen interest shown throughout my academic pursuit. It is due to
his patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for cooperating and
making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

________________

Teacher’s Signature Student’s Signature

Date: __/__/____ Date: / / ____

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 SYNOPSIS

1. INTRODUCTION
The Sociological1 approach to the study of law is the most important characteristic of
our age. Jurists belonging to this school of thought are concerned more with the
working of law rather than its abstract content. Their principal premises is that the law
must be studied in action and not in textbooks. They have been at work upon
jurisprudence with reference to the adjustment of relations and ordering of human
conduct which is involved in group life. They are concerned with the study of law in
relation to society.
2. RESEARCH METHODOLOGY
The research methodology used is completely doctrinal which includes books, and
websites.
2. OBJECTIVE OF THE STUDY
To have a brief discussion about impact of sociological school on India
3.1 Scope of the study
The aim and objective of this project is to know about the impact of sociological
jurisprudence on India
3.3 Data Collection Process
The research methodology used is completely doctrinal which includes books, and websites.

Websites

http://www.britannica.com/EBchecked/topic/332775/philosophy-of-
law/36354/Sociologicaljurisprudence#ref415866
http://ijlljs.in/wp-content/uploads/2015/04/Indian-Law-Embracing-Sociological-
Jurisprudence_Detailed-Study.pdf
https://blog.ipleaders.in/sociological-school-of-jurisprudence/
https://www.legalbites.in/sociological-school-jurisprudence/
https://www.lawordo.com/sociological-school-of-jurisprudence-an-overview/
https://www.jstor.org/stable/pdf/1324775.pdf

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https://www.jstor.org/stable/pdf/1324775.pdf [visited on 11/11/19 at 11:30 AM]

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 CONTENT

S.NO TOPIC PG.NO.

01 INTRODUCTION 05

02 EXPLANATION ABOUT THE THEORY 06-07

03 UNDERSTANDING ABOUT THE THEORY 08-11

04 INDIA AND SOCIOLOGICAL JURISPRUDENCE 12-13

05 CONCLUSION 14

06 BIBLIOGRAPHY 15

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 CHAPTER 1:- INTRODUCTION
The Sociological2 approach to the study of law is the most important characteristic of our age.
Jurists belonging to this school of thought are concerned more with the working of law rather
than its abstract content. Their principal premises is that the law must be studied in action and
not in textbooks. They have been at work upon jurisprudence with reference to the adjustment
of relations and ordering of human conduct which is involved in group life. They are concerned
with the study of law in relation to society. They concentrate on actual social circumstances
which gives rise to legal institutions. Sociological jurists……insist on the unity of the social
sciences and the impossibility of the wholly detached self – centered, self – sufficing science
of law. They insist that the legal order is a phase of social control and that it, cannot be
understood unless taken in its whole setting among social phenomena. Sociological school of
jurisprudence has emerged as a result of synthesis of various juristic thought. The exponent of
this school considered law as a social phenomenon. They are chiefly concerned with the
relationship of law to other contemporary social institutions. They emphasize that the jurist
should focus their attention on social purposes and interest served by law rather than on
individuals and their rights. According to the school the essential characteristic of law should
be to represent common interaction of men in social groups, whether past or present ancient or
modern. 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. It would therefore be seen that
sociological jurisprudence is a multifaceted approach to resolve immediate problems of society
with tools which may be legal or extra – legal and techniques which promote harmony and
balance of interests of society.

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https://www.jstor.org/stable/pdf/1324775.pdf [visited on 11/11/19 at 11:30 AM]

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 CHAPTER 2:-EXPLANATION ABOUT THE THEORY

Sociological Approach Nature and Meaning

Sociological approach3 towards study of law was a reaction and revolt against the analytical
and historical school both of which regarded law as self – contained system – the former
deriving validity of law from the sovereign – the law giver and the latter from the slow and
silently flowing historical and cultural processes and forces. The sociological approach
considers law as a social fact or reality to shape, mould and change society to sub-serve its
needs, expectations and goals through law. The interrelationship between law and society and
the study of community and of social phenomena, of group or individual interests and their
realization ans fulfillment through law is the paramount concern of law. Of – course! The
Sociological approach to the study of law is of recent origin. The other Schools have been more
concerned with the nature of law and its source rather than its actual working, functioning and
social ends which law strives to subserve. All the jurists who define law in relation to society
in terms of ends which law serves and the interests which the law satisfies and the common
good which the law seeks to achieve – thereby make law as an instrument of social control and
social change are grouped together as jurists belonging to Sociological School of
Jurisprudence.

Characteristics of Sociological Jurisprudence

The chief characteristics of Sociological Jurisprudence are as follows:

1. sociological jurists are concerned more with the working of law rather than with the nature
of law. They regarded law as a body of authoritative guides to decision and of the judicial and
administrative processes rather than abstract content of authoritative precepts.

2. It considers law as a social institution which can be consciously made and also changed,
modified or retained on the basis of experience. In other words, it it synthesizes both the
analytical and historical approach to the study of law.

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http://ijlljs.in/wp-content/uploads/2015/04/Indian-Law-Embracing-Sociological-
Jurisprudence_Detailed-Study.pdf [visited on 11/11/19 at 11:30 AM]

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3. Sociological Jurists lay emphasis upon social purposes and social goals and expectations
which are the law subserves rather upon sanctions and coercive character of law.

4. Sociological jurists look on legal institutions, doctrines and precepts functionally and
consider the form of legal precepts as a matter of means only to satisfy greatest good of the
greatest number.

Background

Sociological approach to the study of law towards the end of the 19th century did not emerge
in isolation. It was a reaction against the formal and barren approach of the analytical jurists
and the pessimistic approach of the historical jurists. There was a dire need to study law not in
mere abstraction, but in its functional and practical aspects. Further, on account of economic
and social conflicts towards the beginning of 20th century led to growing disbelief in the eternal
principles of natural law which had hitherto placed an idea of harmony before the individual.
These various approaches appeared as a clog in the way of legal reform, social change and
economic justice. The theory of inalienable natural rights was now being considered as an
expression of outmoded laissez – faire philosophy. This led the States to expand the dimension
of their activities to such matters as health, insurance, education, old age security and other
form of social and economic aspects of welfare. Hence a new approach towards the study of
law in relation to its ends, purposes and functions for ordering and regulating to its ends,
purposes and functions for ordering and regulating to its ends, purposes and functions for
ordering and regulating to its ends, purposes and functions for ordering and regulating to its
ends, purposes and functions for ordering and regulating relationship between individuals and
groups of individuals emerge which is described as the sociological jurisprudence. Among the
foremost writers who made an attempt to apply scientific methods to social phenomenon was
Auguste Comte (1798 – 1851). He is known as the founder of sociology as a science. He laid
stress upon empirical methods such as observation and experiment for the study of society. It
is the task of sociology to provide methods, tools and a basis for purposeful and realistic
appraisel of social phenomena which interact in society.

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 CHAPTER 3:-UNDERSTANDING ABOUT THE THEORY

Glanville Williams in his book ‘Learning the Law’, defined law as:

“Law is the cement of society and also an essential medium of change in the society.”4

The work of cement is to fix the two bricks that are used in the making of a building. Similarly,
if we consider society as a building, it is the law that will be considered as cement and it will
help to make a strong building which means a strong society. Marcus Tullius Cicero in his
book De Legibus gave the maxim “Salus Populi Suprema Lex Esto” which means that the
welfare of the people shall be the supreme law. When these people come together they form a
society and hence the law must aim at strengthening the society and helping in the welfare of
the society. The law is made for the person and as it is the ‘cement’ it must be made or rather
framed by keeping in mind society and its welfare.

Sociological School of Jurisprudence, as the name suggests, is the school wherein the society
was kept in mind before making any rule or framing any law. This essay will focus on the
Sociological School of Jurisprudence and its evolution. It will also deal with the application of
the concept in the India and how it has helped in changing the society and laws.

HISTORY

In the year 1911, Roscoe Pound, an American legal scholar, defined Sociological
Jurisprudence in a law review article wherein he rebelled against the formal jurisprudence that
has been dominating the country since the Civil War5. But the origin of this school goes back
to Germany and in the year 1860s where Rudolf Von Jhering predicted law as a social
phenomenon. According to him, law was an outcome of the struggle of individuals and groups
to fulfil their purpose6s.

The theory of ‘Living Law’ of the Austrian Jurist Eugen Ehrlich was basically influenced by
the work of Otto Von Gierke. As per Ehrlich, living law was the Law which dominated life
itself even though it has not been posited in legal propositions.7 In simple terms, if one may

4
“A Critical Enumeration of the Definitions of Law by Various Writers and an Evaluation of the Place of Law in
the Society”; Okezi, Uwede-Meshack; School of Law & Security Studies; pg: 4
5
Sociological Jurisprudence and Social Change: Tracing the role of Supreme Court of India; Tarun Jain; pg 3
6
http://www.britannica.com/EBchecked/topic/332775/philosophy-of-
law/36354/Sociologicaljurisprudence#ref415866 [visited on 11/11/19 at 11:25 AM]

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say, law is something that is created by life of groups living within the society. It can also be
said that law is something that governs the social life and require the study of social conditions
and institutions. Many a times it is said that the theory of Pound has been influenced by this
theory and has much in common with the same. Earlier it was Montesquieu, who pointed out
that the law of the society should be determined by its national characteristics.

In the United States of America, the Traditional Jurisprudence was being evolved at the same
time as that of the Sociological School. The Traditional School believed that the Laws and
Rules have a particular meaning and the role of judiciary is to prevent the legislatures to cross
the boundary so laid down by the laws. Whereas, the Sociological School had the belief that it
are social morals and conditions that should be given more importance than the ‘boundary’ and
the fixation of the boundary must be in accordance with the mindset and thought process of the
society. If the crime rate of the society is at an increasing rate the boundary should be made a
little shorter and the execution of the law must be done in a strict manner wherein it can be
seen that the scenario of the society is such that no major harm is being inflicted then the
harmonious way can also be applied. It is said that the Sociological Jurisprudence emerged out
of rigid legal positivism and has also opposed historical school’s undue insistence on past
customs which has blocked the growth of the society. It was Sociological Jurisprudence that
linked law with various other disciplines of social science and treated it as a synthesis of all of
the above and it was linked by Roscoe Pound.

ROSCOE POUND

Nathan Roscoe Pound, better known as, Roscoe Pound was born on October 27, 1870 in
Nebraska, America. He is one of the greatest contributors of the Jurisprudence. He gave his
contribution in the form of Sociological School of Jurisprudence. He first defined this term in
a law journal article in 1911. According to Pound, the aim of Sociological Jurisprudence is to
enable and compel law making as well as interpretation and application of legal rules and norms
taking in regard the social facts. As per Pound, Sociological Jurisprudence must ensure that the
making, interpretation and application of law must be done by taking the social facts in to
account. Pound further says that to achieve the social aim there are certain steps that should be
taken. First of all a factual study of the social effects of legal administration must be done and
them there should be a social investigation and also a constant study of both, psychological and
philosophical, should be done for making the laws more effective. As per Pound, in order to
achieve the purposes of the legal order there must be recognition of certain interests of both

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public and social; also the limits of those interests must be clearly defined and it should be
made sure that those interests are secured within the limits that has been defined. Pound further
said that while determining the scope and subject matter of the system an inventory of interest
must be prepared which should be classified on the basis of their legal recognition. Then the
interest must be selected and the limits must be applied to them and then those limits must be
secured by the means of law.

As per Pound, lawyers were the engineer of the society. This could also be linked with the
definition given by Glanville Williams wherein he has said law to be the cement of society and
the lawyers are the engineers who make the building and if the technique used by the engineer
is perfect then the building will be strong and same is true for the society. If the cement i.e. law
is used in a correct manner to build the building i.e. society by the engineers i.e. lawyers the
building will be strong. The aim of the engineers is to use the available resources judiciously,
similarly, as per Pound it is the aim of lawyers as the social engineers to satisfy the maximum
wants with minimum waste which means that there must be a balance between the competing
interest. It could be possible that a person may be at fault but before giving the person any
punishment there shall be a comparison between the competing interest and the decision has to
be made in accordance to the result of the comparison. As per Pound, there were three types of
interest, and they are

1. Individual Interest

2. Public Interest

3. Social Interest

INDIVIDUAL INTEREST

While classifying the interest and demarcating the limit for the same, these are the interest
which shall be look upon from the perspective of an individual. These interests concern
Personality, Domestic Relation & Interest of Substance and include freedom of will, honour,
reputation, family, and property, freedom of trade and association and employment.

PUBLIC INTEREST

As per Pound, the claims asserted in title of a politically organised society can be included in
Public Interest and there can be two types of interest. One of them being Interests of the State
as a juristic person and the other being Interests of the State as guardian of social interests

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SOCIAL INTEREST

These are the claims or demands which are thought in terms of social life and can be generalised
as claims of social group. These interests include a) Social interest in general Security which
further include safety, health, peace and order, b) Social interest in the security of social
institution which also includes domestic, religious, and political and several other kinds of
institutions, c) Social Interest in general morals, d) Social interest in the conservation of Social
Resources, e) Social interest in general progress, f) Social Interest in Social life.

With respect to the interest, Pound said that these interests can’t be put against each other when
there is any conflict. In case, there is any conflict in any interest, it can be weighed only against
other interest on the same plane. Public interest cannot be weighed against social and social
against public. It must be weighed among the same plane.

Further, Pound also classified different types of institution wherein he differentiated between
rules, principles, conceptions, doctrines, and standards. Rules attach definite consequences to
definite situation; Principles are authoritative points for legal reasoning in case rules are not
there for that particular situation; Conceptions are the basis on which rules or principles
becomes applicable; Doctrines are union of rules, principles, conceptions; Standards prescribes
limits of permissible conduct. He died on June 30, 1964.

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 CHAPTER 4 INDIA AND SOCIOLOGICAL JURISPRUDENCE
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 law8.

In India, Sociological Jurisprudence has been adopted in the Indian Constitution. Part III of
The Constitution of India solely deals with the Fundamental Rights of the citizen and people
of this country wherein the citizens and the people are provided with certain rights. These rights
are provided by recognizing the public and private interest of the individual. Further the rights
that are provided in this chapter have certain limits and hence these rights will not be accessible
under certain situation and certain circumstances. Further, satisfying the third condition of
Pound these rights has been secured as the Constitution of India says that any law that is in
conflict of the Fundamental Rights will be held ultra-vires. Further, there are several cases

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wherein the concept of Sociological Jurisprudence has been mentioned and has been taken into
consideration while delivering the judgment.

In Ashok Kr Gupta & others vs State of Uttar Pradesh it was held that this court is not bound
to accept an interpretation which retards the progress or impedes social integration.

In the case of Union of India & Anr v Reghubir Singh the court observed that the aspect of the
social conduct and experiences of the ages has to be considered while determining and framing
the new laws and norms.

In State of Madras vs Champakam Dorairajan, the Court held that Article 46, being a directive
principle cannot override the fundamental rights.

In N. Adithayan vs Travancore Devaswon Board and Ors, the observed that distinction based
on cast could not be allowed to permeate in the social fabric of the society. Thus, the Court
reaffirmed its stand that discrimination of any sort, amounting to untouchability would not be
tolerated.

The Court in Bandhowa Mukti Morcha vs Union of India, held that the Court should abandon
the Laissez Faire approach in the judicial process particularly where it involves a question of
enforcement of fundamental rights and forge new tools, devise new method and adopt new
strategies for the purpose of making fundamental rights meaningful for the large masses of
people.

In Sarla Mudgal v Union of India, the court embracing the concept of Sociological
Jurisprudence said that marriage celebrated under one personal law cannot be dissolved by
application of any other law. This observation matches up with the concept of Pound wherein
he said that in case of conflict between interests, the interest of same plane will be weighed
together.

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 CONCLUSION
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.

India has remarkably embraced the concept and principles of Sociological Jurisprudence and
that can be seen by the judgment that is being delivered by the apex Court. Also, different
Statutes has taken into account the theory in a way or other and it can be easily said that the
Sociological Jurisprudence has been widely accepted on the legal frontier of the country

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 BIBLIOGRAPHY

websites

http://www.britannica.com/EBchecked/topic/332775/philosophy-of-
law/36354/Sociologicaljurisprudence#ref415866
http://ijlljs.in/wp-content/uploads/2015/04/Indian-Law-Embracing-Sociological-
Jurisprudence_Detailed-Study.pdf

https://blog.ipleaders.in/sociological-school-of-jurisprudence/

https://www.legalbites.in/sociological-school-jurisprudence/

https://www.lawordo.com/sociological-school-of-jurisprudence-an-overview/

https://www.jstor.org/stable/pdf/1324775.pdf

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