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U S UNIT - III
SCHOOLS OF JURISPRUDENCE - II

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SOCIOLOGICAL SCHOOL

Introduction: Sociological thought of law connotes not one approach but several whose common feature
is that these are, in one way or the other, study of law in relation to society. The main and the common field of

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study of the jurists who made such approach is the effect of law and society on each other. This approach
takes law as an instrument of social progress.
Pioneers of the Sociological Thought

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August Comte (1786-1857): He is considered to be the founder of the science of sociology. Comte's
method may be called 'Scientific Positivism'. He pleads for the application of scientific method to the
science of sociology. Society is like an organism and it can progress when it is guided by scientific
principles. These principles should be formulated by observation and experience of facts excluding all

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metaphysical and other like considerations.

The implications of Comte's theory are many. He greatly influenced the philosophical and scientific
thoughts of his time. In the field of legal theory Comte's ideas inspired Durkheim, and who, in his turn,
inspired Dugut, a great sociological jurist.

Herbet Spencer (1820-1903); Organic Theory of the Society: He gave a scientific exposition of the organic
theory of society. He applied this evolutionary trend of society to sociology. The organic theory has been
very beautifully summarized by Prof. Allen. The inter-dependence of organisms, in its sociological aspect
means the mutual relation of all members of civilized society and the distribution of a sense of responsibility
far wider than can be comprised within the formula 'Sovereign and Subject'. It directed attention to the
necessity of considering law in relation to other social phenomena."

Jurisprudence Now a Social Science: Now the study of law in relation to society is the opening of a new
era in legal thought and this enabled jurisprudence to be called a 'social science.

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Duguit (1859-1928); Inspired by Durkheim: It has been earlier that Duguit was inspired by Durkheim who
himself had taken inspiration from Comte. Durkheim's main point, which Duguit built upon, was that he
made a distinction between two kinds of needs of men in society. Firstly, there are common needs of
individuals which are satisfied by mutual assistance, and, secondly, there are diverse needs of individuals
which are satisfied by the exchange of services. Therefore, the division of labour is the most important fact
of social cohesion. He named it 'social solidarity. With development of free individual activities 'social
solidarity' develops. This 'social solidarity' is a fact and it is necessary for social life.

Interdependence of Men in the Society: Duguit built his theory on 'social solidarity'. He insisted on the
necessity of viewing social life as it is actually lived. The most important fact of the society is the
interdependence of men. In the present day society man exists by his membership of the society. Each man

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cannot manufacture and procure the necessities of life himself. Functions are so specialized that each in
his turn depends on others for his necessities. The end of all human activities and organizations should be
to ensure the interdependence of men. This is Duguit's theory of 'social solidarity'.

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Law Also Serves This End: Law also is to serve this end. Duguit says:-"Law is rule which men possess not
by virtue of any higher principle whatever good, interest, or happiness but by virtue and perforce of facts,
because they live in society and can live in society."

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Implications of Degut's Theory

Duguit's Attack on Sovereignty; His minimization of State Functions: He launched a vigorous attack
on the myth of state sovereignty. The 'social solidarity' is the touch-stone of judging the activities of
individuals and all organizations. State is also a human organization and it is in no way different from other

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organizations. It is simply the expression of the will of individuals who govern. They too are under a duty to
ensure 'second solidarity'. Therefore, the state stands in no special position or privilege and it can be
justified only so long as it fulfils its duty. Duguit has no faith in an all powerful illimitable authority-sovereign.'
He strongly pleads for the check on the State power. His plea is for the decentralization and ultimately he

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develops an idea of 'syndicalism'. Duguit's theory of minimization of State function leads him to deny any
arbitrary power to legislator. Legislator does not create law 'but merely gives expression to judicial norm
formed by the consciousness to the social group.'

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No Distinction Between Public and Private Law: Duguit's view on state and its function led him to deny
the distinction between private and public law. Both are to serve the same end, i.e., 'social solidarity'.
Therefore, there is no difference in their nature. Such a division will elevate the State above the rest of the
society which Duguit's theory never accepts. On this point Duguit' views are similar to that of Kelsen, the
propounder of the 'Pure Theory of Law.'

No Private Rights: Another important point in Duguit's theory is that he denies the existence of
private rights. With Comte he says-

"The only right which any man can possess is the right always to do his duty." Individuals working in any
capacity are the parts of the same social organization and each is to play his part in furtherance of the same
end social solidarity, 'though the latter proceeds from different premises.

Criticism Against Duguit's Theory: Duguit's theory has been criticized on various grounds-

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'Social Solidarity' a Natural Principle: The first weakness of the theory is that though Duguit is a positivist
and excludes all metaphysical considerations from law his principle of 'social Solidarity' itself is a natural
law ideal. His special emphasis is on the valuation of law on a social plan. The facts of social life to which he
confines his study, in practice, tend to become a theory of 'justice'. He wants to establish an absolute and
uncontestable rule of law. Like 'natural law' theories he establishes a standard ('social solidarity') to which
all 'positive law' must confirm. It is nothing but natural law in a different form. Therefore, it has been rightly
observed that Duguit 'pushed natural law out through the door and let it come by window.'

'Social Solidarity' to be Decided by Judges: 'Social Solidarity' a vague expression; Social Solidarity' is
interpreted to serve divergent purposes. Again, a question may arise as to who is to decide whether a
particular Act or Rule is furthering the 'social solidarity' or not. Naturally, the judiciary will have the power to
decide it. But the judges too have their weaknesses and limitations, and this process may lead to a judicial

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despotism. The idea of social 'solidarity' is very vague and an analysis would reveal that it is not free from
metaphysical notion. 'Social Solidarity' may be subjected to different interpretations which may be pushed
to serve divergent purposes and actually they have been so used. Soviet jurists used Duguit's theory to
establish that individuals have no rights. His denial of the distinction between private and public law, his

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idea of minimising the state intervention (which resembles the Marxist view of 'withering away of state')
were other points of great attraction to Soviet Jurists.

He Confuses 'is' with 'Ought' : While defining law, Duguit confused it with what the law ought to be.

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According to his view, if law does not further the 'social solidarity' it is not law at all. He laid down certain
fundamentals to which the law must conform. His definition of law instead of giving a clear cut picture of law
confuses it as was done by natural law theories.

He Overlooked the Growing State Activity: Duguit advocated for the minimization of State intervention at

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a time when State was growing all-important. Though he propounded his main thesis from the observable
facts of social life, i.e. growing complexity and interdependence in society, he overlooked the fact that the
social problems of modern community can be solved better by state activity is much more widened and has
grown very strong.

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Inconsistencies in the Theory: Another weakness of Duguit's theory is its inconsistency at several
places. On the one hand, he expresses faith in the biological evolution of society, and on the other hand, he
vigorously attacks the idea of collective personality. He denied any personality to state or group distinct

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from the individuals who constitute it.

Duguit's Influence is Great: His idea of justice is in social terms. Later jurists took inspiration from him.
Despite defects and weaknesses in Duguit's theory, his contribution and influence were great. His
approach is very comprehensive and sincere. Though his theory ultimately becomes a theory of natural
law, or a theory of justice, which as we find in him is perfectly in social terms and derived from social facts.
He shaped a theory of justice out of the doctrines of sociology. Many later jurists, though proceeding from
different premises, reached similar conclusions as Duguit had reached (especially about the state, rights,
and public and private law). National socialists and Soviet jurists both adopted many of the principles from
such part of the theory, which supported their activities. Inspired by Duguit's emphasis on the importance of
'group' were many later jurists such as Hauriou and Renard. He is credited for his original and
comprehensive approach, which inspired many jurists to propound new theories.

Ihering

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Ihering (1818-1892) He was a social utilitarian. He rejected the view of the Historical school. His 'system
develops aspects of Austinian positivism, combines them with principles of utilitarianism as established by
Bentham and developed by Mill."

Law is the Result of Constant Struggle: According to him, the development of law like its origin is neither
spontaneous nor peaceful. "It is the result of constant struggle or conflict with a view to attain peace and
order." Ihering says, "law is the guarantee of the condition of life of society, assured by the state's power of
constraint."

Law is to Serve Social Purpose: He takes law as a means to an end. The end of law is to serve purpose.
This purpose is not individual but social purpose. When individual purpose comes in conflict with social
purpose, the duty of the state is to protect and further social purpose and to suppress those individual

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purposes which clash with it. This end may be served either by regard or by coercion and it is the latter,
which is used by the state. Therefore, "law is coercion organized in a set form by the state."

Law is not the Only Means to Control Social Organism: But it should not be gathered that law is the only

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means to control the social organism, or it alone can protect and further all the social purposes. Law is the
only one factor among many others. There are some conditions of social life, such as climate etc, for which
no intervention by law is needed. There are some conditions of social life, such as climate etc for which no
law is made. Lastly, there are some conditions of social life, which are secured exclusively by law, such as

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the raising of revenue. In short, according to Ihering, law means those rules, which secure the conditions of
social life by state through coercion. Law always has a purpose. The purpose is to further and protect social
pursuit of pleasure and avoidance of pain. On this ground this theory is termed as social utilitarian. From
these premises, Ihering laid down his theory of punishment and gave his analysis of many legal concepts.
His theory regarding punishment, in brief, is that punishment is a means to a social end. It should not be

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based on retributive or compensatory ground.

Criticism Against Ihering's Theory

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He Points Out Only the Problems, not the Solution: The main criticism against Ihering theory is that
though he says that the task of law is to reconcile the conflicting interest, he does not say in what direction it
should be done. He draws our attention to the complicated problems of modern life but gives no solution to
it. His supporter answer this criticism by saying that it is enough that he drew our attention to problems, and

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one should not expect more than that from a theoriecian of his times.

Law Protects 'Will' and not 'Purpose': Another criticism is against his theory of purpose. According to him
the law protects will and not purpose. Korkunov has very stoutly defended Ihering's theory of purpose by
presenting a number of illustrations to show that law protects 'purpose and not 'will'.

Ihering's Contribution

Comparative Study of Legal Systems: Ihering rendered valuable services to the science of
jurisprudence. He was an investigator of ancient law, philogist and an anthropologist and made study of
various legal systems and said that law develops by conscious efforts. He launched a vigorous attack on
Savigny's historical theory and natural law theories. His juristic use of interests, as motive of social activity
is also very significant. In the fulfillment of social purposes he found the fruition of individual purposes,
which, later on, became the motto of socialist states.

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Founder of Sociological Jurisprudence: By pointing out the coercive character of law, by indicating that
law has only a relative value, by evaluating it in the social context and by speaking of it as an instrument and
source of social purpose, Ihering lays in embryonic form, all the chief traits of 'sociological jurisprudence',
which the later jurists elaborated. Roscoe Pound has given an account of the influence which Ihering had
on later jurists especially in Germany. Friedman calls him the 'father of modern sociological jurisprudence.

"He prepared" Friedman states, "the more elastic legal technique required to meet new and changing legal
problems by his fight against the 'jurisprudence of concepts'. Moreover, his insistence that law is realized
through struggle and self-assertion has effectively opposed the romantic conception of an unconscious
manifestation of the Volksgeist through the law."

By insisting at the same time on coercion as the characteristic of law and making the power of the state the

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instrument of law, Ihering has created the essential foundations of modern jurisprudence suitable to the
practical lawyer, because it was in much closer contact with the social realisties of the nineteenth and
twentieth centuries than Kant's idealism or Savigny's romanticism.

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Eugene Ehrlich

Law is to be Found in Social Fact: The central point in Ehrlich's (1882-1992) thesis is that the law of
community is to be found in social facts and not in formal sources of law. He says: "At present as well as at

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any other time the center of gravity of legal development lies not in legislation, nor in juristic science, nor in
judicial decision, but in society itself."

'Living Law' is the Facts that Govern Social Life: The norms which, in fact, govern social life are only
partly reflected in the formal law (i.e. statute of judge-made law) of that society. The essential body of legal

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rules is always based upon the social 'facts of law'. The facts of law' which underlie all law are usage,
domination, possession and declaration of will. These facts and the social relations make the 'living law of
the people', state made laws (statutes and decisions) are only a part of this great body of law. Generally,
these legal norms tag behind the 'living law.' Ehrlich gives examples of it from English commercial and

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many other branches of law where the relations, in practice, are regulated more by usages than by statutes.
One may find some similarity between Savigny's Volkasgeist and Ehrlich's 'living law', but the latter's
approach is more realistic and is concentrated on facts of law and avoids the former's mystical notions.
Ehrlich's plea is to enlarge the scope of jurisprudence. A proper study of law requires the study of all the

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social conditions in which the law operates.

No Substantial Difference Between the Formal Legal Norm and Customs, etc: According to Ehrlich,
there is no substantial differences between formal legal norms and the norms of customs or usages,
because the sanction behind both of them is the same (that is social pressure). If a statute is not observed in
practice, it is not a part of 'living law'. Hence he stands with Duguit on the point that the state is the source of
law. But he differs from Duguit on the point that whereas the latter puts his absolute un-contestable principle
of 'social solidarity', the former gives no such absolute principles and pleads for study of law in social
context.

Law according to the requirements of the society: His use of the term 'sociological jurisprudence'
means that law in a society should be made and administered with the utmost regard to its requirements. To
achieve this end a very close study of the social condition of the society in which the law is to function is
indispensable.

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Criticism Against Ehrlich's Theory

Makes no Distinction Between Legal and Other Social Norms: Theory outmoded: A very potent
criticism against Ehrlich's theory is that he makes no distinction between legal norm and other social norms
and confuses the whole matter. For proper study of jurisprudence, Friedman rightly says that 'Ehrlich's
sociology of law is always on the point of becoming a necessarily sketchy, general sociology. He expands
the scope of the subject and its relation to other social sciences to absurd limits. He established a seminar
of 'living law' for the 'cartography' of all possible phases of social activity. Prof. Allen rebukes this approach
by calling it as 'Megalomaniac Jurisprudence. Ehrlich overlooked the fact that sometime formal law
influences and changes the practice of the society. Again, his views on custom create type of law, which he
did not point out clearly. In modern times, custom is treated as but less and less important in the second
role. Modern society overwhelmingly demands articulate law made by a definite law giver. Such law will

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always, in varying degree, depend on these facts of law, but it does not derive its validity as law from this
factual observance. His view of the minimization of state function has become outmoded in modern times.

Roscoe Pound (1870-1964): Roscoe Pound of Harvard Law School can be called the father of the

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sociological jurisprudence. Pound is considered to be the 'American Leader' in the field of Sociological
Jurisprudence. He also shared the view that interests are the chief subject matter of law. For Pound, the law
is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round
as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a

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maximum of wants with a minimum of friction.

The Task of Law is 'Social Engineering': Pound's main thesis that the task of law is 'social
engineering'. He says-

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"For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the
whole body of human wants as we may with the least sacrifice. I am content to think of law as social
institution to satisfy social wants, the claims and demands involved in the existence of civilized society by
giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims

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or desires through social control; a more embracing and more effective securing of social interests; a
continually more complete an defective elimination of waste and precluding of friction in human enjoyment
of the goods of existence in short, a continually more officious social engineering."

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Social Engineering Means a Balance Between the Competing Interests in Society: The jurists must
work with a plan. By 'social engineering' Pound means a balance between the competing interests in
society. He entrusts the jurist with a commission. He lays down a method, which a jurist should follow for
'social engineering'. He should 'study the actual social effects of legal institution and legal doctrines, study
the means of making legal rules effective, sociological legal history and the importance of reasonable, and
expatiate upon the interests to be protected by law. He himself enumerates the various interests, which are
to be protected by the law. He classifies them under three heads: Private interests, public interests and
Social interests.

Private, Public and social Interests. The Private Interests to be Protected by the Law are:

1) The Individual's Interests of Personality: These include his physical integrity, reputation,
freedom of volition and freedom of conscience. They are safeguarded by Government against
interference in the matter of belief and opinion;

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2) Individual's interests in children, and claims to maintenance,

3) Interests of substance: These include proprietary rights, inheritance and testamentary

succession, and occupational freedom. The principal public interests are-

(i) interests in the preservation of the State as such; and

(ii) interests of the state as the guardian of social interests.

The Social interests deserving legal protection are-

1) Interests in the preservation of peace and order and maintaining general security;

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2) Interest in preserving social institution like marriage and religious institution;
3) interest in preserving general morals by counteracting corruption, discouraging gambling and
invalidating transactions repugnant to current morality;
4) interest in conserving social resources

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5) interest in general progress which is to be achieved by freedom of education, freedom of speech
and expression, freedom of property, trade, and of commerce; and
6) interest in the promotion of human personality.

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Interest as the Main Subject Matter of Law: In short Pound's theory is that the "interests are the main
subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law
to make a 'valuation of interests.' In other words to make a selection of socially most valuable objectives and
to secure them. At the same time the function of law is to strike a balance between stability and change.

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There is no any hard and fast rule for the valuation of interests. They are relative. It is responsibility of the
jurists to make study of the interests by a 'sociological technique' and to evaluate them. This all is nothing
more than an experiment. That is why Prof?

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Criticism Against Pound's Theory

'Engineering' Nor a Happy Word; 'Engineering' Ignores an Important Part of Law: Danger to
individual freedom. A general criticism against Pound's theory is regarding his use of the word 'engineering'

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because it suggests a mechanical application of the principles to social needs. But, really speaking, the
word "engineering" is used by Pound metaphorically to indicate the problems which the law has to face, the
objectives which it has to fulfill and the method which it will have to adopt for this purposes. Pound has
admitted that philosophy has failed to provide and ideal scale of value with reference to interests. In fact,
Pound himself has admitted that philosophy has failed to provide an ideal scale of values and that the best
that jurist can do is to proceed with the task of adapting law to the needs of his generation the choice
between conflicting ideologies is one for the community at large. Another criticism against his theory is that
emphasis on 'engineering' ignores an important part of law, which develops and evolves in the society
according to social needs and the law simply recognizes or approves it. This dynamic feature of law is
undermined. But, as in modern time, law is generally made consciously and deliberately, this criticism does
not hold much water. Secondly, Pound's suggestion for maintaining a balance, covers that aspect also.
Prof. Allen has pointed out a danger in the utilitarian trend of pound's theory that if we confine the
interpretation of 'wants and desires' (used by Pound) only to material welfare it may make serious inroads
on personal freedom and other things which contribute greatly for happy and rich life.

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Classification of Interest not Useful: Freidmann doubts the value of classification of interests. He states-

What is the Value of Such Classification?: In the first place, it pursues a line of thought originated by
Inhering and Bentham, which is the approach to law as a means to a social end and as an instrument in
social development. In the second place, such a classification greatly helps to make inarticulate premises
articulate, to make the legislator as well as the teacher and practioner of law conscious of the principles and
values involved in any particular issue. It is thus an important aid in the linking of principles values involved
in any particular issue. It is thus an important aid in the linking of principle and practice.

It is, however, equally essential to realise that any classification is in the nature of catalogues, to which
additions and changes have constantly to be made, and which is neutral as regards the relative value and
priority of the interests enumerated. As soon as the interests ranked in a specific order or given any

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appearance of exclusiveness or permanence, they lose their character as instruments of social
engineering and become a political manifesto. Pound himself has inserted a certain evaluation by
describing the interest in individual life as the most important of all. There is, however, as Pound himself
recognises, the danger of an implicit evaluation in the grading of interest is itself a matter of changing

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political or social conditions. What is an individual and what is a social interest is itself a matter of changing
political conception. Many interests come under different individual interest of personality as well as social
interest in economic progress. It is not only the numeration of interest as such but also their respective
weight which is a matter of changing political and social philosophies. The very conception of neutrality in

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the catalogue of interests, the evaluation of which depends on changing political and social system is
characteristic of liberal approach."

Pound's Contribution: Pound's theory is free from dogmas. He points out the responsibilities of the judge
and the lawyer. Pound's contribution to jurisprudence is great. His takes a middle way avoiding all

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exaggerations. He speaks of values but says that they are relative. He approach is experimental. Pound's
theory stands on a practical and firm ground and it has inspired great practical fieldwork. His emphasis on
studying the actual working of legal rules in the society, the importance of social research for good law
making and pointing out the great constructive function which the law is to perform are very valuable

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contributions to jurisprudence. He points out the responsibility of the lawyer the judge and the jurist and
gives a comprehensive picture of the scope and field of the subject. Pound's influence on modern legal
thought is great and the study of the subject is being undertaken under the light of this theory.

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Conclusion

The Common Point Law to be Studied in Relation to Society: It is to be stated that howsoever divergent
the views of various sociological jurists may a9pear, they have one 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
thought 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 type on the subject and are influenced by sociological approach.

LEGAL REALISM

The realist movement is a part of the sociological approach and is, sometimes, called the 'left wing of the
functional school'. It casts light on the realities. The founder of this school is J. Holmes and the supporters
are Prof. Gray, Liewellyn and Frank. It differs from the sociological school in respect of the fact that it is little

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concerned with the ends of law. It concentrates on a scientific observation of law in its making and working.
This movement is named as 'realist' because this approach studies law as it 'is' in actual working and its
effects.

The exponents of realist school reject the traditional definition of law that it is a body of rules and principles
that courts enforce. They avoid any dogmatic formulation and concentrate on the decisions given by law
courts. The decisions are not based only on formal law but also on the 'human factor' in the judge and the
lawyer. According to them, law is only an official action, and therefore, the forces that influence a judge in
reaching a decision (including bribery and corruption) are within the field of Study.

Factors Responsible for Realist Approach: Realist approach, firstly, reflects the influence of the
pragmatic philosophy which had its origin in America. Second and the most important factor which seems to

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have led to this thought is the organisation of judiciary in that country. The American Supreme Court is the
final authority to intrepret the law and to judge its validity. The judges of the lower courts are elected;
therefore, they are influenced by extraneous considerations in deciding cases and sometimes do not enjoy
the confidence of the people. The existence of separate State jurisdiction has caused multiplicity of law and

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decisions. All these made some jurists to concentrate more on courts to know the actual working of law and
to study those factors which determine and influence it. As these jurists made the actual working and effect
of law the subject-matter of their study, they were called 'Realists'.

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1) Justice Holmes (1841-1935) : He have an entirely empirical and skeptical definition of law in these
words: "Take the fundamental question, what constitutes the law .... you will find some text writers telling
you that it is something different from what is decided by the courts of Massachusetts or England, that it
is a system of reason, that it is a deduction from principles of ethics or admitted actions, or what not,
which mayor may not coincide with the decision. But if we take the view of our friend, the bad man, we

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shall find that he does not care two straws for the action or deduction, but that he does want to know
what Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of
what the courts will do in fact and nothing more pretentious are what I mean by the law."

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Prof. Dias points out that Justice Holmes was not giving a final definition of law. The statement that law
is only what courts do is iconoclastic and suggests that ethics, ideals and even rules should be put on
one side. Holmes himself had no such intention as he himself insisted in the same paper on the need to
restrict the area of uncertainty and the need for more theory. Holmes played a fundamental part in

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bringing about a changed attitude to law. He puts emphasis on the fact that the life of law was
experience as well as logic. He stressed the empirical and pragmatic aspect of law. For him, legal
history was to be studied primarily as a first step towards a deliberate reconsideration of the worth of
rules developed historically.

According to Holmes, law must be strictly distinguished from morals. A lawyer is concerned with what
the law is and not with what it ought to be. Holmes was never tired of asserting how "policy" governed
legal development, especially in the form of the "inarticulate" convictions of those engaged in creating
law.

Hilmes felt that the development of law could be justifed scientifically. In this respect, Holmes relied
more on practical than on pure science. The lawyer trained in economics and statistics though he
nowhere clearly indicated how an objectively sound "policy" was to be attained, Holmes accepted the
possibility of scientific valuation in law, but he did not go so far as Dewey in the view that the choice
between different values can also be verified scientifically.

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Holmes's view of law as "prediction" placed both litigation and the professional lawyers in the centre of
the legal stage. His emphasis on what courts may do, rather than on abstract logical deduction from
general rules, focused attention of the empirical factors which constitute a legal system. There was
much in the American system which made this new approach acceptable to American lawyers. Holmes'
reliance on practical social science seemed to point the way to future progress.

3. Gray defined law as "what the judges declare." He emphasised the fact that the personality and the
personal views of a judge play an important role in decisions. He prepared the grounds for a more
skeptical approach which proceeded to point out with greater emphasis the importance of non-logical
factors in decisions.

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4. Jerome Frank (1889-1957): His thesis is that law is uncertain, 'certainty of law is a legal myth.' The
child-like craving for certainty of law in men is due to the psychology which develops from childhood
when he gets protection and safety from his father. In other words, it is the 'father-complex' which makes
one to think of certainty. According to some critics, this is a Frieudian approach in the field of

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jurisprudence which is not at all necessary.

Frank says that it is not proper for lawyers and judges to stick to the myth of legal certainty in the name of
'precedent, or codification'. He points out the constructive work which judges and lawyers are required

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to do in every case. He speaks of the importance and necessity of law making by evaluating the facts of
every individual case under the changed social conditions. However, it should not be taken that he
wants complete divorce of principle; his view is only to maintain a balance and to develop the law in
consonance with the advancement of civilization.

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5. Llewellyn: According to Llewellyn, realism means a movement in thought and work about law. This
approach takes law as a means to social ends and any part of it needs constant examination for its
purpose and effect. It implies the conception of a society which changes faster than the law. Therefore,
it is the duty of the jurists to examine how the law meets contemporary social problems. For the

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purposes of study, realism makes a temporary separation between 'is' and 'ought'. It means that while
one is investigating what the law does and how it works, the ideas of justice and other considerations as
end of law, etc. should be put aside. 'Realism' distrusts traditional legal rules and concepts. It
concentrates more on what courts and people are actually doing. It does not accept theory that the legal

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rules are the only operative influence in the decision of a case. Realism defines law as 'generalised
prediction of what the court will do'. Therefore, they study law in narrower categories.

Characteristics of Realistic Movement: According to Llewellyn the following are the characteristics
of realist movement-

1. There is no realist school, realism means a movement in throught and work about law.

2. Realism means a conception of law in flux and as a means to social ends, so that any part is to be
examined for its purpose and effect. It implies a concept of society which changes faster than the
law.

3. Realism distrusts traditional legal rules and concepts in so far as they purport to describe what
either courts or people are actually doing. In view of the definition of rules (as "generalised
predictions of what the courts will do") realism groups cases and legal situations in narrower

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categories than was the practice in the past.

4. Realism insists on the evaluation of any parts of the law in terms of its effect. Thus, this approach
insists 'on evaluation of any part of law in terms of its effects' and 'the worthwhileness of trying to find
these effects'.

Llewllyn suggests to study the problems of law on these lines and he lays down the techniques and the line
of enquiry to be adopted. He emphasises the study of case-law and to take into consideration the
personality of the judge and the jury. He further lays down a broad scheme for research which includes the
activities preceding legislation, the process of legislation, the activities of administrative bodies and the
activities of different courts and their relations and many other connected things.

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Criticism Against Realist Approach: The realist approach is criticized on the following grounds-

1. The realists have undermined the importance of legal principles and rules and regard law as a
jumble of unconnected decisions. For them, 'law never is, but is always about to be'.

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2. Their main concentration is on litigation, but there is a great part of law which never comes before
the courts.
3. The Realists launched a vigorous attack against juristic complacency and the myth of 'certainty',
but, in actual practice, we find a great amount of certainty and a lot of transactions are regulated on this

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basis.
4. The Realists have exaggerated the human factor in judicial decisions. Undoubtedly, it plays a part
but it does not mean that judicial determinations are the result only of the personality of the judge.
5. The Realist approach of American jurists is based on and is concerned with their own local judicial
setting, and, therefore, it does not give a universal method.

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Contribution of 'Realist' Approach: The 'Realist' movement has made valuable contributions to
jurisprudence. Their approach to law is in a positivist spirit and they are not concerned with any theory of
justice or natural law. They say that the 'certainty of law' is a myth. They plead for a comprehensive
approach and examination of all the factors that lead in reaching a decision. Realists goaded the lawyers to
realise the nature of their work. Frank correctly observes that "it has contributed in parts to the liberation of
judges from enslavement by unduly rigid legal concepts, caused those judges to ground their reasoning on
broader and more human rule premises."

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ECONOMIC INTERPRETATION OF LAWS

The constitution of India is a basic legal document. It is fundamental law of the land. It is framed by the
constituent assembly. The preamble of the constitution suggest that the goal of our country is to achieve a
situation in which all the people of India got social economic and political justice. This means our law is
framed to ascertain economic equality.

Economic justice means the law should be legislated keeping in mind the poor and weaker section of the
society. Part IVth of our constitution i.e., Directive Principles of State Policy are the principles that are
enacted for the social well being. The provisions of this chapter like are equal pay for equal work. Maternity
benefit etc. promote economic equality.

The law should be interpreted liberally and for the welfare of the society. They should be interpreted in the
light of the objectives enshrined in the preamble of our constitution.

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SOCIAL AND ECONOMIC JUSTICE

Social Justice: Sometimes called civil justice, refers to the concept of a society in which justice is achieved
in every aspect of society, rather than merely the administration of law. It is generally thought of as a world
which affords individuals and groups fair treatment and an impartial share of the benefits of society. It can
also refer to the distribution of advantages and disadvantages within a society.

Social justice is both a philosophical problem and an important issue in politics, religion and civil society.
Most individuals wish to live in a just society, but different political ideologies have different conceptions of
what a 'just society' actually is. The term "social justice" is often employed by the political left to describe a
society with a greater degree of economic egalitarianism, which may be achieved through progressive

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taxation, income redistribution, or property redistribution. The right wing also uses the term social justice,
but generally believes that a just society is best achieved through the operation of a free market, which they
believe provides equality of opportunity and promotes philanthropy and charity. Both the right and the left
tend to agree on the importance of rule of law, human rights, and some form of a welfare safety net (though

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typically the left supports this last element to a greater extent than the right).

Social Justice features as an apolitical philosophical concept (insofar as any philosophical analysis of
politics can be free from bias) in much of I writing. It is fundamental to Catholic social teaching. Social justice

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is also a concept that some use to describe the movement towards a socially just world. In this context,
social justice is based on the concepts of human rights and equality.

Economic Justice: Definition - Economic justice, which touches the individual person as well as the social
order, encompasses the moral principles which guide us in designing our economic institutions. These

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institutions determine how each person earns a living, enters into contracts, exchanges goods and services
with others and otherwise produces an independent material foundation for his or her economic
sustenance. The ultimate purpose of economic justice is to free each person to engage creatively in the
unlimited work beyond economics, that of the mind and the spirit.

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The Three Principles of Economic Justice: Like every system, economic justice involves input, output,
and feedback for restoring harmony or balance between input and output. Within the system of economic
justice as defined by Louis Kelso and Mortimer Adler, there are three essential and interdependent
principles: The Principle of Participation, The Principle of Distribution, and The Principle of Harmony. Like
the legs of a three-legged stool, if any of these principles is weakened or missing, the system of economic
justice will collapse.

IMPORTANT QUESTIONS
Q.1. Discuss the sociological school of law in detail.
Q.2. Write short note on :
a) Duguits "social solidarity"
b) Eugene Ehrilch's "The Theory of Living Law"
c) Dean Roscoe Pound's "Social Engineering Theory"
d) Legal Realism
Q.3. Discuss the contribution of Justice Holmes and Jerome Frank in the development of legal realism
theory.

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Q.4. Write short note on:

a) Economic Interpretation of Laws
b) Social and Economic Justices

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