78

13. SOCIOLOGICAL SCHOOL

(SocIAL ENGINEERING THEoRY BY RoscOE PoUn

(MOST IMPORTANT)

SYNOPSI9:
A. Introduction
B. Definition and Explanation
C. Exponents
1. Montesquieu
2. Auguste Comte
3. Thering
4 Ehrlich
5. Leon Duguit (France)- Social Solidarity Theory
6. Roscoe Pound (America) -

Social
Engineering Theory
D. Conclusion

A. INTRoDUCTION:

The
Soctiologlcal
first decade of 20th
School
gained importance in u the
century. It is the revolt of function
against fact of Historical
School,
Analytical school and fancies interpretation
of
Philosophical Schoo
It vlews that
though the
to the
study of law are diverseapproach of these sc
in nature, they eal
concerned with the a
soclety. Thus the
consideration of law in relau
from these Sociological
schools,
school draws
inspi
a t i o n

butattaches importance to
of law to rere
social institutions.
 79

DEFINITION AND EXPLANATION:

Ihering detines laW as the sum of the conditions

soclal ife in widest senses as secured by the power

the State through the means of eternal compulsion.

(Law and Soclety):

w and Social Change

understood to be a mirror of
Law is generally
of its customs and morals that
reflection
Ociety a
maintain social
order. Sociologlcal school
unctions to Law must be
as a social phenomenon.
law
iooks upon but on human soclety as a
individuals
not on
concerned relations of its individual
external
i.e.. the
whole.
members.

concentrate on the
therefore
must
The jurists law. Every legal
interests
served by
sOcial purpose
and and
social purpose
be inspired by a
a
institution m u s t undergoes
purpose
when the social
must change
change.

C. EXPONENTS:
are:
School
of the
The eminent jurists

.Montesquleu
2. Auguste Comte
3. Ihering
4. Ehrlich
5. Leon Duguit
5. Roscoe Pound
 80

1. Montesquieu:
to recogne
Montesquleu
(France) was the tirst
ognise
soctal conditions o n
law. He said
He said tha
thar
the influence of
the basis of a nation'.
declared on
law should be
religlon, commerc.
characteristlcs Iike
inherent
motives.
manners, occupation and
customs,

2. Auguste Comte:

considered to be the
Auguste Comte (France) is
founder of the soctological school. Law must be the
outcome of the scientific study of the soctety and the
soclal groups.

3. Ihering:

Ihertng (Germany) Is considered to be the father

of moderm soclologlcal
Jurtisprudence. According to him.
the origin of law is to be found in
soctal struggles.
He
wanted law to be a "1iving law'. Law
is only an
instrument for serving the needs of the society. 1
purpose is to protect and progress the
interests of soclety
Human conduct is determined
not by "because" but D
"for" 1.e., the
purpose to be served.
4. Ehrlich:

Ehrlich (Austio
Hungary) located i1 the
Law is
present day constitution of the
of the soclal order like society. Basic imstitu
the nmarriage. inheritance etc.. g
fundamental arrangements of
attaches great society. Thus
Thus Ehrlt Ehr
importance to the study of
living a
 the source of law is hoth the m e r i legal
and direct observafion of ife ike t1stetrg
documents
usages,
dominaton, possession anl ler Iaratiti tof
and
ano

LAW Ehrlich means extra legal tttrtde

wilBy Living
afsocial relatioships.
The rentre of gravity f legal
lies in the sorlety.
developnent

closely related to ife in the sotiety

Law is more

the present rather than the past. It tries t

It concerns
soctal function of law.
analyse the

Friedmann. Ehrlich's theory has

According to
three main weaknesses:

legal norms fro

The theory does not distinguish
a.

social norms.

merely
Ehrlich's theory,
custon is not
According to In
law, which is wrong
type of
of law but
a herone
asource not
automatically
custom does lal
modern days, legislation or Judie
approved by
d law, i n l e s s

derisio
a

preredents
imposr
legislations
and
Sometimes
be pratisirg
whirh the x e t y
nay 1u
t , etr
hewpriu1ple Pobibitio Art.
Prohillitikt1

Fo e.g. Iwy
he

5. Social Contract Theory

theory,
in earliers
sorial
(ontrar
the
C o r d i n g to
vennrf
No
statr of nature prsWer
liveel in with his
(Wn
Iman
rure
only
xisted Eath man wis

d nental awareness
 82
By agreeing with one another to make a 'State
ate by
contract', men in a given area joined together,
er, each
surrendering personal freedom as necessary to promo
the safety and well being of all. By this contract, tk
the
members created a government. The social contra
ract
gives ights and responsibilities to both the citizens and
the government.

For eg., Citizens have given the powers of

prosecution and punishment of criminal offences to the
judicial branch of Govermment.

The Government, in turn, bears the responsibilities

of maintaining public order and safety of the citizens
through pollce and court systems.

6. Leon Duguit (France) Social Solidarity Theory:

For smooth carrying on the life of a person he
has to depend on the service of follow men. The soclal
interdependence helps in creating social solidarity by
mutual assistance and division of labour.

Law is an
aspect of social solidarity. Law shoud
help increasing 'social solidarity' to facilitate a hapP
life in the society. Things and matters which lices
social solidarity' must be
prejuaic
discouraged.
For e.g. arbitrary abuse and powers by Sovereign.
illimitable powers of Sovereign, etc. Judicial Review a and

Principle of State responsibility, on the other hand. a

a r e

welcome as they aim at social solidarity.

 83
Duguit rejected the
Natural law
theory of fundamental rights.
The
theory and
can possess 1s h e
right to do
only right a man
his duty to the
farever. He further
accept democracies society
does not
multi-party system, as
they are against social having
solidarity.
The functional
approach to social denial of bad
laws. distinction between public and
private laws
decentralised administration etc., - all these ideas of
the theory influenced Russian Soviet
Jurisprudence.
7. Roscoe Pound (America) - Social
Engineering
Theory:(Social Interest to be protected by law)

Among the advocates of sociological

Jurisprudence, Roscue Pound is an eminent Jurist.

According to him, Social Engineering means the

to form
Dalancing of competing interests in society
law. By interest', he means a claim or wants of a person
Or group of persons, which he or they seek to satisfy.

interests c a n be divided into three

The competing
types

Public Interests
i1. Private Interests

li. Social Interests

into
m u s t take
law,
before making impact
1e authority, study the
cOn d l o n all the above
interests.

of the law on these interests, etc.

 84

. Public Interests: State (interests) include:

a. Maintenance of State integrity

b. Maintenance of just balance of

conflicting interess
rest
of its people

ii. Private Interests: include:

a. Individual interests of personality like physical

integrity. privacy, reputation, freedom of belief and
opinion, etc..

b. Interests of domestic
relations like marriage.
guardianship, relations of husband and wife. parents
and children, maintenance, etc.

C. Interests of substances like

inheritance and
property rights.
of contract and of
testamentary succession, freedomn
trade, etc.

iii. Social
Interests(Law and
Society): These include:
a. General security like
order, health and
maintenance of peace and
safety. security transactions ana
acquisitions.

b. Security of Social Institutions

like marriage
religious places and institutions.
c. General morals like action
against fraud, corruption.
gambling. prostitution, etc.
 85

of Social resources like food

Conservation

d. nublic transports, etc. grains,

General Progress like development of human powers,

e.
sa tisfaction of human wants by four major policies.

. Freedom of property.
and protection against monopoly.
ii. Free trade
of industry.
ii. Freedom
of inventions by grant of patent
iv. Encouragement

rights.
of speech, freedom
f. Individual personality by freedom
etc.
of profession and trade,

should not be taken as rigid.

interests
The above with
interest changes
The importance of each and
social experience
philosophy,
changing political be
considered
both by
to
time. These i n t e r e s t s a r e balancing
and
Judges for
and by the
Legislators
C
harmonising them.
the
harmonising
and
For such balancing standards

and the accepted which

utility
nf t s , - logic, The
interest

of act a s guides.
k n o w n only by
right Conduct may known
by
O1 can be
be
outweighs
eghs one
one
another

reflection
and
from
sometimes

experience.
life itself.
study and

certain.
but not at
uniform
and
Lav should be
1fare.
 86

D. CONCLUSION:

Sociological school caused a change in

e
general approach to law itself and it has impressed
on the judges t h e need to enquire into the social
facts underlying any legal problem.

UNTVERSITY QUESTIONS FOR REVIEW:

1. Discuss the Sociological approach to lauw.

2. Examine thefunction of law according to Sociological
School of Jurisprudence.
3 Sociological Jurisprudence according to Pound.
should ensure that the making, interpretation and
application of laws take account of social facts
Dias. Explain.
4. The growth of literature styling itself the sociology
of law or Sociological
Jurisprudence is comparatiiey
modem and its
distinguishing features are not easy
to
deterrnine', Comment
critically.
Th historical school of
Jurtsprudence laid tne
oundations on whlch the
its edifice' Elucidate. soctological school bLut
Write short
notes on: (a) Roscoe Pound
(b) X l
Solidartty Theory (c) Sorial
d) Ls aned
Soctety.
Engineering Theory