PROFESSIONAL SKILL DEVELOPMENT ACTIVITY

JURISPRUDENCE- LLB 302

Topic:
RELEVANCE OF SOCIOLOGICAL AND HISTORICAL SCHOOL IN
THE LIGHT OF MARRIAGE EQUALITY IN INDIA

Submitted By:

Urvi Gupta
24417703820
VI-E

Submitted To:

Ms. Samriti Sharma

Assistant Professor, VSLLS, VIPS-TC

Vivekananda School of Law and Legal Studies

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
1. Overview of Historical School
The conceptions of law as per Historical School were majorly concretized by Fredrich Karl
Von Savigny who built upon the understanding of history as given by Edmund Burke and
Herder. Herder negated criticized the universal character of law based on reason and
emphasized the unique character of every historical period, civilization and nation. The
Historical School of Jurisprudence developed in the background of opposition against the
imposition of Roman Law in Germany.

The most significant contribution of the historical school to define the contours of
jurisprudence is that law cannot be formulated, implemented, and interpreted without the
appreciation of the societal climate it develops in. Its basic tenet is that law is not something
imposed on a community but is found within it. In his later works, Savigny used the term
Volksgeist meaning the spirit of people and describes it as a source of law.1 The Historical
School of Jurisprudence espoused that customs not only precede legislation but are superior to
it. Legislations are the last stage of law legal development.

The historical School of Jurisprudence developed as a reaction to analytical positivism that

espoused that the law is a command of the sovereign backed by sanction. In the words of Sir
William Markby, Austin ‘exhausted’ the subject of the nature of law, and the conclusions
arrived by him were generally accepted by English Jurists. The analytical school is built upon
the Austinian ‘command or imperative theory of law’ which is the power of the Sovereign to
lay down the law in blatant ignorance of the uniqueness of cultures and the role of social and
cultural forces in the origins and development of laws. As per the Historical School, more
particularly according to Savigny, the law is not formulated upon a chance or by conscious
exercise of will. It grows among its people like a plant growing from its seed.

Another significant contribution to Historical School was that of Sir Henry Maine who
elucidated the stages of development of law from customs to legislation. Through his
comparative study of various societies, he arrived at the conclusion that the development of all
the societies, Roman, Hindu, Germanic, etc. have followed nearly the same trajectory. This
theory is enumerated in his famous quote i.e. “The movement of the progressive societies has
hitherto been a movement from Status to Contract.”

1
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1874&context=law_faculty_scholarship
2. Overview of Sociological School
The idea behind the Sociological school is to establish a relationship between the law and
society. The law, being regarded as a social institution, greater emphasis is laid on the working
and functioning of law rather than the nature of law. It is not concerned with the ethical content
and aims of law but to the actual circumstances which give rise to legal institutions and which
condition their scope and operation. It is concerned not with man as an individual but man in
association. The whole theory of the Sociological school is a protest against the orthodox idea
of analytical positivism that law emanated from a single source of authority in the state.
Sociological jurisprudence points toward social justice

The credit for coining the term sociology goes to the French philosopher Auguste Comte. He
propounded that the object of scientific study is society as a whole and not any specific
government institution. He rejected the idea of the individual being a focal point of law as he
emphasized the fact that men have always been associated in groups, and it was within the
social groups that impulses originated leading to the establishment of law and government. His
ideas inspired Durkheim who gave significant contributions to theories of crime and
punishment.

The most significant jurist within the Sociological School of Jurisprudence would undoubtedly
be Dean Roscoe Pound, the father of Sociological Jurisprudence in America. In his book
Interpretation of Legal History, Pound considered law as a body of knowledge and experience
with the aid of which a large part of social engineering is carried on.

He asserts that this school ensures that the formulation, interpretation and application of laws
must be backed by social facts. There should be a factual study of the social effects of legal
administration in a constant effort to make laws more effective. His theory of social engineering
equated the tasks of a lawyer with that of an engineer. It aims to create as efficient a structure
of society as possible to ensure the fulfillment of maximum of wants with a minimum of friction
and waste. It warrants balancing competing interests. Interests are claims, wants or desires that
humans assert de facto which law must do something about if organized societies are to
continue. Of the three broad categories of interests as propounded by Roscoe Pound, individual
interest within a domestic relationship such as relationships with spouses or partners forms a
part of the Private interest of an individual.
3. Issue of Recognition of Same-Sex Marriages in India
The institution of marriage has an unquestionable sanctity in India and the neighbouring
countries across castes and religions. The institution of marriage is regulated by personal laws
and religious practices which differ across religions and sometimes even across castes. Personal
laws regulate marriage by laying down conditions of valid marriage, grounds for dissolution
of marriage and consequences of void and voidable marriages.

Marriage has been recognized to be an institution of public significance in the landmark case
of Indra Sarma vs V.K.V Sarma.2 In this case, the application of the Protection of Women from
Domestic Violence Act, 2005 was extended to the live-in partners if their relationship appeared
to be in the nature of marriage by the Hon’ble Supreme Court. The very fact that the legislation
uses the expression ‘relationships in the nature of marriage’ and excludes all the other forms
of de-facto relationships point towards the overarching importance of this institution.
Traditionally, the primary purpose of marriage was procreation and ascertaining the paternity
of the begotten child. It thus became a mode of legitimizing sexual union between a biological
man and a woman for the creation of a family. Marriage is still seen to be a basic unit of a
family. However, as society progressed, constitutional morality overtook the notions of public
morality primarily stigmas and taboos around non-marital cohabitations and pre-marital sex
began to wither away.

The Hon’ble Supreme Court of India in Navtej Singh Johar vs. Union of India 3 partially
scrapped off Section 377 of the Indian Penal Code insofar as it criminalized sexual intercourse
between the consenting adults of the same sex. The Court by doing so acknowledged the moral
worth and moral authenticity of such relationships. Likewise, the issue of recognition of same-
sex marriage is not only of freedom and autonomy but a polycentric one. It cannot be resolved
without dwelling into and answering the questions of moral judgment such as the purpose of
marriage and the question of whether gay and lesbian couples are worthy of the honors and
recognitions that state-sponsored marriage confers.

According to Michael J. Sandel, an American Political Philosopher, there can be three possible
stances by any state on this issue. A state may continue to recognize only traditional marriages

2 (2013) 15 SCC 755

3 (2018) 10 SCC 1
i.e. between a man and a woman, or, it may provide recognition to same-sex marriage and
attain marriage equality. The third option available to the state would be to leave the job of
recognizing the marriages leaving them to private institutions, religious and otherwise. The
Third option is truly libertarian and neutral on moral grounds. It is not widely argued because
the answers to the moral questions mentioned above are at stake for both sides.

The Hon’ble Supreme Court of India recently embarked on a journey to hear conflicting
arguments on the demand for marriage equality. The intriguing questions to be answered were
first, why are people constituting a section of society living their lives in a way considerably
different from what has been regarded as normal for ages seeking inclusion in a
heteronormative institution? The second question that arises is whether they can even be
included in the institution having more than a contractual value.

In the Indian context, the question has further been complicated owing to the multi-tier
religious and cultural diversities. The determination of the issue rests on the parameters of
constitutional morality along with constitutional limitations on legislation and judiciary

4. Relevance of Historical School in Determining the Question of Recognition of

Same-Sex Marriage in India

The Historical School in its very essence points towards the requirement of answering the
above-mentioned questions of moral and ethical judgment above and beyond the determination
of the extent of freedom and autonomy in the sphere of marriage. The right of free will in
choosing a partner for marriage has been recognized by the Supreme Court of India in a
plethora of cases. The only question that warrants determination in this regard is to whom all
this right extends.

The author believes that the Historical School of Jurisprudence would affirm the moral worth
of gay and lesbian relationships and thus get a step closer to recognition of homosexual
marriages. It would surely consider the progression and changes in the general consciousness
of people. There are cogent pieces of evidence to demonstrate a much larger acceptance of
individuals in gay relationships both within and outside of families of such individuals. The
younger strata of society have been striving to create non-judgmental safe spaces where people
can share their experiences and open up regarding their identities to like-minded people.
The growing emphasis on financial independence and eradication of gender norms which
assigns certain roles to parties in a domestic relationship as per their gender has led to a shift
in the dynamics of marital/spousal relationships within and outside of the households. Hence,
the purpose of marriage has been extended above and beyond procreation. This evident
progression of society and shift in the ‘general consciousness of people’ warrants a shift and
progression in law as well.

5. Relevance of Sociological School in Determining the Question of Recognition of

Same-Sex Marriage in India

The primary argument opposing the recognition of same-sex marriages is that such marriages
if recognized would lead to the destruction of the religious and cultural social fabric of India.
Marriage, being a basic unit of family, the whole social structure of Indian Society rests upon
it. This indefeasible significance of marriage contains overlapping private interests of an
individual along with the social interest of society in securing social institutions. According to
Ihering, the law is a system of reconciling conflicting interests and must adapt its regulations
to the varying conditions of the people, according to the degree of their civilization and the
needs of the time. He opposed the natural law idea of certain universally valid content of law.

The author argues that the state, in its public interest might protect the social interest of society
by regulating the institution of marriage i.e. laying down conditions of a valid marriage and
regulating the process of divorce, but cannot exclude a whole stratum of society from accessing
such an institution.

The purpose of the law is to meet the ends of justice and the parameters of justice, as mentioned
above, cannot be thrown open to the subjective notions of public morality and have to be
decided on the touchstone of constitutional morality. The Hon’ble Supreme Court has
expanded the scope of inclusion within the constitutional provisions since its inception. From
a sociological perspective, the Hon’ble Court would be required to balance the conflicting
counter-narratives of the adamantly orthodox state keen on imposing Victorian morality and
LGTQ+ members of the society pleading for inclusion in the light of the constitutional
provisions.
6. Conclusion

In light of the above discussion, the author has reached the conclusion that the recognition of
same-sex marriage to attain marriage equality is primarily a question of choice and autonomy.
However, any answer to this, whether affirmative or negative, cannot be reached without
considering and answering the underlying questions of the purpose of marriage, the moral
worth of gay and lesbian relationships. For this, the theories of historical jurisprudence would
assist the judges to assess the direction law should progress in and the theories of sociological
jurisprudence will help the judges balance the conflicting interest to satisfy maximum of claims
with less friction.