Dr.

Ram Manohar Lohiya National Law

University
Lucknow

Term- 2020-21

Critique Of Jurisprudence As a Science As Argued By

Sociological School Of Law

Submitted to: Submitted by:

Dr. Vipul Vinod Tanurag Ghosh

Asst. Professor of Law B.A.LLB.(Hons)- 5th sem

Dr. RMLNLU Enrolment no.- 180101147

 ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I respect and thank Dr. Vipul Vinod, for providing me an opportunity to do the project work
in and giving me all support and guidance, which made me complete the project duly. I am
extremely thankful to him for providing such a nice support and guidance.

I owe my deep gratitude to my family and peers, who took keen interest on my project work
and guided me all along, till the completion of my project work.

-Tanurag Ghosh
 INTRODUCTION

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was revealing
used by the Comte and he described Sociology as a positive science of social facts. He said that
Society is like an organism and it could improve when it is guided by Scientific Principles.
Therefore, he makes great efforts to use the law as a tool by which human society maintains
itself and progresses. After Comte, many Writers and Jurist sought to combine the society and
law together, and tried to find a link between law and sociology.

The word jurisprudence is derived from Latin word “jurisprudentia”, means ‘knowledge of
law’. The Latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge. Thus,
jurisprudence signifies knowledge of law and its application.

According to Oxford dictionary, “It is defined as jurisprudence is the systematic and

formulated knowledge or science of human law.”

In this sense it covers the whole body of legal principles in the world. The history of the concept
of law reveals that jurisprudence has assumed different meanings at different times. It is
therefore, difficult to attempt a singular definition of the term. It has a long history of evolution
beginning from classical Greek period to 21st Century modern jurisprudence with numerous
changes in its nature in various stages of its evolution.

Ever since the mid-nineteenth century scholars have been advocating the scientific study of
law which in Germany led to the development of “legal scientists”. One of the first persons to
introduce this idea of law was Christopher Columbus Langdell who tried to promote an Anglo-
American version of legal science through his case method of legal study.

By the turn of the century, critics began to object the deductive a priori approach of older legal
science. The sciences of disciplines like sociology suggested that law could be studied in a
quantified and empirical fashion which has been seen to be very much successful in the field
of natural sciences. Eugene Ehrlich founded the sociology of law. Roscoe Pound tried to
combine legal sociology and the jurisprudence of interests into a new scientific approach to
law making. In the 1920s and 1930s the American legal realists joined in the call for a scientific
approach to judicial decision making.

All of these scholars clearly believed that the scientific method would bring new understanding
to law and legal institutions and would pave the way for a legal reform and would make the
study of law more intellectually respectable. But the idea of scientific study of law was still
very abstract. Most of these scholars were lawyers and not scientists hence they were not sure
what it meant to explain something scientifically. Some had a strong faith that the social
sciences would do for the understanding of the society what physics had done for the
understanding of inanimate matter, but how this was to be done was left to the future.

As the social sciences mature in the twentieth century, it became apparent that many of the
hypotheses and generalizations advanced were of a different character from the simple law
described above. This led to a number of arguments to the effect that social science is
fundamentally different form older sciences. Most of these have been convincingly refuted or
have been demonstrated to be differences of degree rather than differences in kind by
philosophers of science. Philosopher Peter Winch argument starts from the recognition that
human behaviour is generally not understood in the same way as the behaviour of inanimate
matter.
THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
The idea of Sociological School is to prove a relation between the Law and society. This school
laid more stress on the legal perspective of every problem and every variety that take place in
society. Law is a social phenomenon and law has some primary or indirect relation to society.
Sociological School of Jurisprudence concentrates on balancing the benefit of state and
individual was realized.

The Sociological 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 are that the law must be studied in action and
not in textbooks. 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 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 modernThe 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.

In the words of Ehrlich, “At the present as well as at any there time, the center of gravity of
legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence scrutinizes the relationship between the law and
sociology.
 SOCIOLOGICAL JURISPRUDENCE AND SOCIOLOGY OF
LAW DISTINGUISHED

It would be pertinent to draw a distinction between sociological jurisprudence and sociology

of law which appear to be similar concepts. Though it is difficult to draw a hard and fast line
of demarcation between the two because of their identical subject matter they do differ in
respect of their theme and approach to law. Sociological Jurisprudence is a functional study of
law applied to concrete social problems in order to make law an effective instrument of social
control for harmonizing the conflicting interest of individuals in the society. In this sense law
has a wider connotation and includes judicial decisions and administrative processes used for
reconciling the competing interests of the people. It is for this reason that sociological
jurisprudence has also been called as functional jurisprudence or jurisprudence of interests or
jurisprudence of social engineering.

Sociology of law, on the other hand, is a descriptive study of law and legal institutions of a
given society. As Roscoe Pound rightly remarked, “sociology of law is mainly a descriptive
study of law in a theoretical manner.” It treats law as just one of the several aspects of society
and therefore has a secondary position as compared to society which is the main theme of
sociology. Thus, strictly speaking, sociology of law is just a branch of sociology. According to
Hall, “sociology of law is a theoretical science which consists of generation regarding social
phenomenon, so far as they refer to contents, purposes, application and effects of legal rules.”

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 relationship between
individuals and groups of individuals emerge which is described as the sociological
jurisprudence.
The sociological school carry forward the mission of the historical school and reject the formal
and logical idea of law according to the positivists on the ground that the formal law presents
only a portrait of the law. In effect, the preoccupation with the study of the science gave law a
prominent place in the new studies and the 19th century unearthed a number of leading
sociologists in Europe (and America) especially Germany who began to look to the newly
found studies of society as a key to a better understanding of law than had been gained from
the Natural Law School and the Positivists.
 CRITICISM BY SOCIOLOGICAL SCHOOL OF
JURISPRUDENCE
 Sociological jurist insists 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.

 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 sociological school carry forward the mission of the historical school and reject the
formal and logical idea of law according to the positivists on the ground that the formal
law presents only a portrait of the law.

 The study of jurisprudence as science leads to gain its validity from the idea of
empiricism where the effect of a law is based upon empirical facts but the same has
been criticised by the sociological school of law as to be based upon uniformities of
behaviour of the subjects but the same distinguishes itself from individual to individual
and invalidates the empirical facts that it can be based upon.

 The study of jurisprudence is also not a viable method because the same has been
evolved from the concept of natural sciences where there exists a cause-effect
relationship between the acts and the consequences. But the same is not true in case of
law as law does not operate in the domain of inanimate matter but in the society which
is dynamic in nature and hence the empirical facts will be frequently subject to change.
 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. According to the Sociological School of Law, law cannot be
studied in isolation as its subject matter is the society itself. The nature of the society is itself
dynamic in nature and hence the study of law as a science based upon empirical evidence and
certain solutions to a question of law is not possible. The law, as per the Sociological School
of Law does not exist in isolation or in a closed system but is very affected by the social
dynamics and not immune from it which changes from society to society, hence there cannot
be a one size fits all solution for the questions of law in the contemporary times where the role
of judiciary in interpreting laws has become relevant more than ever and the idea of social
cohesion and sense of obligation to abide by the law is very prominent.