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Sociological Jurisprudence

• Sociological Jurisprudence
• The historical jurisprudence of the earlier part of the 19th century became subject to the influence of the
developing social sciences, which attempted to explain law in its social context. The result was the emergence
of a sociological school of jurisprudence.
• The early decades of sociological jurisprudence combined 19th-century faith in progress, social evolution,
rationalism, humanitarianism, and political pluralism with a optimistic belief that the Newtonian model of
natural science (Sir Isaac Newton – English Physicist and Mathematician) would also hold for the social
sciences.
• It was affected by questions of whether the social sciences are truly sciences, what their mutual boundaries
are, and whether they can be integrated with some subject such as sociology or anthropology.
• An outstanding figure of the early sociological school was a German, Rudolf von Jhering, who in the 1860s
contributed to the intellectual stream a theory of justice predicated on a view of law as a social phenomenon.
He saw law as an outcome of the struggle of individuals and groups to fulfil their purposes and of the force
that they marshal behind this.
• Another historical jurist, the German Otto von Gierke, stirred a related interest with his emphasis on the
importance of the inner life and activities of groups and associations as sources of binding social norms. This
opened up jurisprudence to some psychological issues. Gierke's work also contributed to the subsequent
American neorealism through its influence on Oliver Wendell Holmes, Jr., and to the theory of the “living law”
of the Austrian jurist Eugen Ehrlich in the first decade of the 20th century. Ehrlich insisted on the abundant
norm-creating activities of the countless associations in which people are involved.
• Growth of the sociological school
• The most eminent pioneers and champions of 20th-century sociological jurisprudence were Roscoe
Pound in the United States and Hermann Kantorowicz in Europe. For both, the task of sociological
jurisprudence, though orientated mainly to practical administrative or legislative problems, included that
of framing hypotheses on which to base general laws of the operation of law in society.
• As with the social sciences, the principal methods available to sociological jurisprudence are surveys,
statistical analyses, comparative observations, and experimentation. The controls and corrections
available usually fall far short of those of the natural science models.
• Much work in sociological jurisprudence depended upon the law relevant findings from other social
sciences. But it also generate its own findings, such as traffic laws, control of moneylending, credit
unions, bankruptcy laws, the effect of antitrust practices or of poverty on legal rights, the theory of
appellate judicial decision making, and a host of other matters.
• Examinations of the prehistory and after careers of convicted criminals and of persons on probation or
parole, probings of family and environmental influences bearing on potential deviance, and attempts to
identify decisive factors predictive of future deviance have been among the staples of sociological
jurisprudence.
• Sociological jurisprudence is confronted by the questions whether it is possible through empirical
methods to approach central issues of social action that involve value judgments. The fact that lawyers
are necessarily involved with ideas of obligation, values, and norms sharpens this confrontation.
• A second group of problems arises from the high level of individuality of persons, groups, and societies,
from the unending variety of their emotions, roles, and expectations, and from the feedback effects on
human behaviour that the empirical observation and testing of that behaviour brings about.
• The study of law in society thus shares with anthropology and other social sciences a central interest in
roles and functions as basic meaningful categories and in certain mechanisms and channels whereby
conduct is thought to become socially meaningful. These notions are thought to permit the analysis of
complex social situations into more refined terms, such as goals, tasks, expectations, and allocated
rights, powers, and duties.
• The growth of socio-ethical convictions is seen in terms of symbolic interaction between individuals.
• A particular society may be seen as a collection of individuals with a culture that has been learned by
symbolic communication from other individuals back through time, enabling members to gauge their
behaviour to each other and to the society as a whole.
• The future of sociological jurisprudence
• In 1911–12 famous program Roscoe Pound formulated practical objectives for the
movement, including making studies of the law in action, of the means of more effective
legislation and law enforcement (by creation of ministries of justice, for example), of legal
and judicial reasoning, of legal history in its social context, and of the role of the legal
profession.
• Many practical tasks have been performed, and the school continued to show a gathering
momentum and a widening range of concerns.
• The maladjustments and inadequacies of the law gave to early sociological jurisprudence
an intensely activist drive, directed to ad hoc remedies, and a great deal of the relevant
work is still of this nature.
• Since 1945 the juristic work on the relations of law and society has come into more
fruitful contact with other social sciences, leading in turn to greater stress on recognition
of the social and economic orders in their complex unity.
• The interest in sociological theory also results from growing awareness that some
problems require to be approached on a wider basis.
• This has created new study of law in society become a specific branch of social science,
concerned with framing and testing general laws governing law as a social phenomenon.
with the good of the society in view by the turn-of-the-20th-century.
IMPACT OF LAWS ON SOCIETY
Eugen Ehrlich, propounded the 'living law' theory, an important jurist of the sociological school, was mainly
concerned with the impact of laws on various aspects of society.
According to him, laws found in formal legal sources, such as statutes and decided cases, give only an
inadequate picture of what really goes on in a community.
The norms which really govern life are only partially reflected in them. He drew a distinction between norms
of decision, which correspond to what is traditionally understood to be laws, and norms of conduct which
govern life in society. There is often a considerable divergence between the norms of decision, and the
norms of conduct.
The inevitable gap between the norms of formal law and those of actual behaviour is the basis of Ehrlich's
formulation of the 'living law' theory, for which he is best known today.
He said that the living law of every society lies outside the confines of formal legal material, i.e., in society
itself. Only a minute fraction of social life comes before the courts.
The problems which come before the courts do not truly represent social life, but represent only some form
of breakdown of social life.
The task of formal law makers, according to Ehrlich, is to keep formal -law as nearly abreast of the living law
as possible.
There was striking similarity in the approach of both Rudolf von Jhering and Ehrlich, to the question of law's
role in social control.
Both considered the norms emanating from the state and its organs as only one factor of social control with
other forms of social control such as customs, morality, and the practices of groups and associations.
A statute which is habitually disregarded by the community, according to Ehrlich, is not a part of the living
law. Since formal laws are only an adjunct of the living law, jurisprudence must be concerned not only with
formal laws, but also with the living law. This involves an observational study of society.
Ehrlich's powerful influence induced jurists to abandon purely abstract pre-occupations, and to concern
themselves with the problems and facts of social life.
TASK OF LAWS IN SOCIETY
The third type of inquiry, viz., inquiry into the task of laws in society, was the main concern of Jeremy
Bentham, who is remembered for his utilitarian theory. According to Bentham, promotion of the greatest
happiness of the greatest number, was the function of laws. This can be achieved by bringing about the
maximum happiness of each individual, for the happiness of each will result in the happiness of all. Bentham
also designed a method to measure the happiness by the quality of pleasure resulting from an action. The
good or evil of an action should be measured by the quality of pain or pleasure resulting from it. The business
of government was to promote the happiness of society by furthering the enjoyment of pleasure, and
affording security against pain.
Legislation should aim at providing subsistence, abundance, equality of opportunity, and security for all.
Bentham said: 'The public good ought to be the object of the legislator, general utility ought to be the
foundation of his reasoning'.
He favoured private property because it was essential to ensure the fulfilment of settled expectations. The
importance given to private enterprise and private initiative in Bentham's writings clearly shows his
preference for economic liberalism.
Bentham's utilitarian theory, with 'pleasure-pain' criteria as a yardstick to measure happiness of individuals
and ultimately the quality of law, has been criticised mainly on the ground that it is subjective.
The problem of balancing individual interests with the interest of the community did not receive adequate
attention from Bentham.
In spite of these weaknesses, Bentham's contribution to sociological jurisprudence is significant because he
asserted that the task of law-making is to achieve social ends and that laws should be judged by their
consequences.
Bentham is considered to be, the pioneer of functional jurisprudence, which we can definitely bring under
the sociological approach.
Some people consider Bentham as a precursor of legal positivism because he was opposed to all doctrines of
natural law, and defined law as 'the will or command of a legislator'.
Among the proponents of sociological jurisprudence the name of Roscoe Pound is the most famous. He has written
extensively on various aspects of legal philosophy.
Sociological jurisprudence, according to Roscoe Pound, should ensure that the framing, interpretation, and
application of laws should take account of social facts. For this, he suggested a functional study of the social effects
of legal administration, and social investigations as preliminaries to legislation.
What is needed, for making laws more effective, is a constant study, both psychological and philosophical, of the
judicial method and a sociological study of legal history.
Pound saw legal history as 'the record of a continually wider recognising and satisfying of human worth or claims
or desires through social control'.
In order to achieve the purpose of the legal order, Roscoe Pound suggested that there must be:
(i) a recognition of certain interests, individual, public and social;
(ii) a definition of the limits within which such interests will be legally recognised and given effect to; and
(iii) the securing of these interests within the limits as defined.
When determining the scope and subject matter of the system, the following must be done:
(i) preparation and classification of an inventory of interests;
(ii) selection of interests which should be legally protected;
(iii) demarcation of the limits of securing the interests so selected;
(iv) consideration of the means whereby laws might secure the interests, when these have been acknowledged
and delimited; and
(v) evolution of the principles of valuation of interests.
Theory of Law as Social Engineering
From this, Roscoe Pound developed his famous theory of law as social engineering.
The aim of social engineering is to build as efficient a structure of society as possible, which requires the
satisfaction of the maximum wants with least friction and waste.
It involves the balancing of competing interests. Pound defined interests as 'claims or wants or desires or
expectations which men assert de facto, about which the law must do something if organised societies are
to endure'.
Pound considered the task of the jurist very important. To classify and elaborate on the interests protected
by law, and thus to assist the courts is the task of the jurist.
Pound prepared an Inventory of interests, classifying them into:
1. individual,
2. public, and
3. social interests.
1. Individual Interests
They are claims, demands or desires involved in, and looked at from the standpoint of the individual life.
They concern the following:
Personality: Personality includes interests in (i) the physical person; (ii) freedom of will; (iii) honour and
reputation; (iv) privacy; and (v) belief and opinion.
Domestic relations: Domestic relations include (i) parents; (ii) children; (iii) husband; and (iv) wife. Pound
made a distinction between-interests of individuals in domestic relations, and those of society in
institutions such as family and marriage.
Interests of subsistence: These include interests of (i) property; (ii) freedom of industry and contract; (iii)
promised advantages; (iv) advantageous relations with others; (v) freedom of association; and (vi)
continuity of employment.
2. Public Interests
Pound defined public interests as 'the claims associated in title of a politically' organised society; as one might
say for convenience, the claims of the state, political organisation of society'.
The interests of the state as a juristic person include:
(i) the integrity, freedom of action and honour of the state's personality;
(ii) claims of the politically organised society as a corporation to property acquired and held for corporate
purposes; and
(iii) the interests of the state as guardian of social interests.
3. Social Interests
They are claims, demands or desires, thought in terms of social life and generalised as claims of the social
group. They include:
Social interest in the general society: The claim, want or demand, asserted in title of social life in civilised
society and through the social group, to be secured against those forms of action and courses of conduct which
threaten its existence. It includes (i) general safety; (ii) general health; (iii) peace and order; (iv) security of
acquisition; and (v) security of transactions.
Social interest in the security of social institutions: The claim, want or demand involved in life in a civilised
society that its fundamental institutions be secure from those forms of action and courses of conduct which
threaten their existence or impair their efficient functioning. It includes (i) domestic institutions; (ii) religious
institutions; (iii) political institutions; and (iv) economic institutions.
Social interest in general morals: The claim, want or demand involved in social life in civilised society to be
secured against acts or courses of conduct offensive to the moral sentiments of the general body of individuals
therein for the time being. It includes laws dealing with prostitution, drunkenness, gambling etc.
Social interest in the conservation of social resources: Pound stressed on the principle that want or demand
involved in civilised society should not lead to a situation where the goods of existence are wasted; that where
all human wants may not be satisfied, in view of infinite individual desires and limited natural means of
satisfying them, the latter should be made to go as far as possible; and to that end, the acts or courses of
conduct which tend needlessly to impair these goods should be restrained. This includes conservation of
natural and human resources. Pound's views remind us of the present day emphasis on sustainable
development.
Social interest in general/progress: The claims or demands involved in a civilised society are such that the
development of human power and control over nature for the satisfaction of human wants moves forward.
The demand that social engineering be increasingly and continuously improved, and the self assertion of
social -groups towards higher and more complete development of human powers are an indication of social
interests in general progress.
Pound divides these interests into three categories, viz.:
(i) Economic progress, which includes freedom to use and sell property, free trade, free industry; and
encouragement of inventions by grant of patents.
(ii) Political progress, which includes free speech and free association.
(iii) Cultural progress, which includes free science, free letters, free art, promotion of education, and learning
and aesthetics.
Social interest in individual life: The claim or demand involved in civilised society that each individual be able
to live a life, according to the standards of the society. It includes (i) self assertion; (ii) opportunity; and (iii)
conditions of life.
After the detailed enumeration of interests, Pound proceeds to examine the means by which the interests are
secured. He considered the device of legal power and the attribution of claims, duties, liberties, powers and
immunities as one of the most important means by which the interests are secured. Then there is the
remedial machinery which consists of punishment, redress, and prevention in appropriate cases.
A very important question that arises in relation to Pound's social engineering theory is as to how the
interests are to be balanced.
According to Pound, law is really an attempt to reconcile, harmonise, or compromise overlapping or
conflicting interests. This is done either 'through securing them directly and immediately, or through securing
certain individual interests.., so as to give effect to the greatest number of interests, or to the
Social interest in the conservation of social resources:
Pound stressed on the principle that want or demand involved in civilised society should not lead to a
situation where the goods of existence are wasted; that where all human wants may not be satisfied, in view
of infinite individual desires and limited natural means of satisfying them, the acts or conduct which tend
needlessly to damage these goods should be restrained. This includes conservation of natural and human
resources.
Social interest in general/progress:
The demands involved in a civilised society are such that the development of human power and control
over nature for the satisfaction of human wants moves forward. The demand that social engineering be
increasingly and continuously improved, and the self assertion of social -groups towards higher and more
complete development of human powers are an indication of social interests in general progress.
Pound divides these interests into three categories, viz.:
(i) Economic progress, which includes freedom to use and sell property, free trade, free industry; and
encouragement of inventions by grant of patents.
(ii) Political progress, which includes free speech and free association.
(iii) Cultural progress, which includes free science, free letters, free art, promotion of education, and
learning and aesthetics.
Social interest in individual life: The claim or demand involved in civilised society that each individual be
able to live a life, according to the standards of the society. It includes (i) self assertion; (ii) opportunity; and
(iii) conditions of life.
Pound proceeds to examine the means by which the interests are secured.
He considered the device of legal power and the attribution of claims, duties, liberties, powers and
immunities as one of the most important means by which the interests are secured.
Then there is the remedial machinery which consists of punishment, redress, and prevention in appropriate
cases.
A very important question that arises in relation to Pound's social engineering theory is as to how the interests
are to be balanced in our civilization, with the least sacrifice of other interests.
According to Pound, law is really an attempt to reconcile, harmonise, or compromise overlapping or conflicting
interests. This is done either 'through securing them directly and immediately, or through securing certain
individual interests.., so as to give effect to the greatest number of interests, or to the interests that weigh most
Pound is of the view that interests should be weighed on the same plane. However, it is not possible to balance
individual interests against social interests. Therefore, individual interests must be transformed to a social plane.
For instance, although freedom of the person is an individual interest, we can transfer this interest to a social
plane as an interest of the society that its members should be free.
The balancing process involves problems of 'eliminating friction and precluding waste in human enjoyment of
the goods of existence.' This is what Pound calls the 'social engineering' function of law.. .
In this context he makes a reference to the following classification of the institutions of law, which play a role in
the process of balancing.
(1) Rules, which are guidelines attaching definite consequences to definite factual situations;
(ii) Principles, which are authoritative starting points for legal reasoning in cases not covered by rules;
(iii) Conceptions, which are categories to which types or classes of transactions, or situations can be referred and
on the basis of which a set of rules, principles or standards becomes applicable;
(iv) Doctrines, which are the union of rules, principles and conceptions with regard to particular situations or
types of cases in logically independent schemes so that reasoning may proceed on the basis of the scheme and
its logical implications;
(v) Standards, which prescribe the limits of permissible conduct that is to be applied according to the
circumstances of each case.
Claims for the recognition of new interests will emerge as society advances and changes. For this purpose,
Pound enumerates a set of underlying values, which he calls 'the jural postulates' of a civilized society.
The citizens of a civilized society are entitled to assume the following postulates:
(i) Others will commit no intentional aggression upon them;
(ii) They may control for beneficial purposes what they have discovered, created, and acquired;
(iii) Promises will be carried out in good faith and unreasonable and unjust enrichment will be prevented as
far as possible;
(iv) Persons engaged in a course of conduct will act with due care so as not to create unreasonable risk of
injury to others;
(v) Citizens shall be entitled to ensure that the burdens incident to social life shall be borne by society;
(vi) A standard human life shall be assured to every citizen.
The above mentioned postulates will allow legislators to consider the modification of values and the
enunciation of new ones so as to conform with basic general values.
Roscoe Pound's contribution to sociological jurisprudence is so great that many people call him the father of
modern sociological jurisprudence.
Critiques to Pound Social Engineering
His social engineering theory has been criticised as misleading. Critics point out that it is not possible to work
out in detail any plan of a finished product in the case of a law vis-a-vis the method of engineering. The reason
is that the society is constantly developing and changing, and the pressures behind the interests are
changing too.
Pound assumed that de facto claims pre-exist laws. However, the truth is that some claims are subsequent to
law. Pound's obsession with interests has also been criticised because more than interests, it is the yardstick
with reference to which they are measured that matters. Very often the choice between competing ideals is a
matter of decision, not of balancing. The whole idea of balancing is subordinate to the ideal that is in-view.
Interests need-be considered as and when they arise in disputes. So when we look at it from the realist's point
of view what is important is the way in which they are viewed and evaluated by a particular judge.
Commentators have also pointed out that Pound's catalogue of interests is only the product of personal
opinion.
Important questions which confront a legal system, such as how to balance the interests of minorities which
are irreconcilable with those of the majority; do not find an answer in Pound's theory;.
Finally, it may be said that Pound devoted too much attention to interests, but too little attention to ideals of
guidance, which provide the criteria for evaluating interests.
SOCIOLOGICAL JURISPRUDENCE AND SOCIOLOGY OF LAW
It is also necessary to draw a line of distinction between sociological jurisprudence and sociology of law,
though this distinction has become blurred, and is not very significant now. We can understand the nature and
scope of sociological jurisprudence from the following definition of Julius Stone, 'Sociological jurisprudence,
and any study which seeks to bring social science knowledge to legal problems, address themselves to the
influence of social, economic, psychological and other non-legal factors on the process in the concrete
content of legal propositions.'
Sociology of law attempts to create the science of social life as a whole, and to cover a great part of general
sociology and political science. The emphasis is on society, and law is studied as a mere manifestation.
Gurvitch, in his pioneering work defines the sociology of law as follows:
The sociology of law is that part of sociology which studies- the - full social reality of law, beginning with its
tangible and externally observable expressions, in effective collective behaviours and in the material basis.
Sociology of law interprets these behaviours and material manifestations of law according to the internal
meanings which, while inspiring and penetrating them, are at the same time in part transformed by them.
Gurvitch also explains that the task of sociology of law, which is also called legal sociology, is to give the jurist
an objective description of the social reality of law valid in a given social milieu.
The philosophy of law gives him a criterion of jural values, aiding them in their attempts to reach concrete
goals. Sociology of law may be compared to different branches of sociology, such as industrial, political, and
educational sociology. The main interest of a legal sociologist is to analyse the society, and to fit legal
administration as a whole into the concept of society.
• Additional Reading
• General studies
• Leading treatises in English include Alf Ross, Om ret og retfaerdighed (1953; On Law and Justice, 1958);
Wolfgang Friedmann, Legal Theory, 5th ed. (1967); Hans Kelsen, General Theory of Law and State (1945); G.W.
Paton, A Text-Book of Jurisprudence, 3rd ed. (1964), ed. by D.P. Derham (1964); Roscoe Pound, Jurisprudence,
5 vol. (1959); Julius Stone, Legal System and Lawyers' Reasonings (1964); Human Law and Human Justice
(1965); Social Dimensions of Law and Justice (1966); Lev S. Jawitsch, The General Theory of Law: Social and
Philosophical Problems (1981; trans. from the Russian); and Robert S. Summers, Instrumentalism and
American Legal Theory (1982). Neil MacCormick, H.L.A. Hart (1981), is an analysis of the legal philosophy of
the prominent jurist.
• Historical works
• Notable works on the history of philosophy of law include Erik Wolf, Griechisches Rechtsdenken, 3 vol. (1950–
54); Alfred Verdross, Abendländische Rechtsphilosophie, 2nd ed. (1963); René Marcic, Geschichte der
Rechtsphilosophie (1971); and Guido Fasso, Storia della filosofia del diritto, 2 vol. (1966–68; 2nd ed., vol. 1,
1970). David Miller, Philosophy and Ideology in Hume's Political Thought (1981), is a comprehensive survey of
Hume's thought on judgment, justice, political power, and government.
• Analytical jurisprudence
• The classic text is John Austin, Lectures on Jurisprudence (1832). Twentieth-century works include H.L.A. Hart,
The Concept of Law (1961); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied to Judicial
Reasoning (1923); Hans Kelsen, Reine Rechtslehre, 2nd ed. (1960; Pure Theory of Law, 1967); Albert Kocourek,
Jural Relations, 2nd ed. (1928); and Ilmar Tammelo, Outlines of Modern Legal Logic (1969).
• Ethical jurisprudence
• A foundational text is Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1780).
Twentieth-century works include Carleton Kemp Allen, Aspects of Justice (1958); Edgar Bodenheimer,
Treatise on Justice (1967); Hans Kelsen, What Is Justice? (1957); Chaïm Perelman, Justice (1967); and
Gustav Radbruch, “Legal Philosophy,” in Kurt Wilk (ed.), The Legal Philosophies of Lask, Radbruch and
Dabin, pp. 47–226 (1950).
• Sociological and historical jurisprudence
• Two 19th-century classics are Friedrich Karl von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und
Rechtswissenschaft (1830; Of the Vocation of Our Age for Legislation and Jurisprudence, 1831); and Henry
Sumner Maine, Ancient Law (1861). Twentieth-century works include Vilhelm Aubert (ed.), Sociology of
Law (1969); Eugen Ehrlich, Grundlegung der Soziologie des Rechts (1913; Fundamental Principles of the
Sociology of Law, 1936); Lawrence Meir Friedman and Stewart Macaulay (eds.), Law and Behavioral
Sciences (1969); Georges Gurvitch, Sociology of Law (1942); Karl N. Llewellyn, Jurisprudence (1962); Edwin
M. Schur, Law and Society (1968); and Julius Stone, Law and the Social Sciences in the Second Half-Century
(1966).
• Related philosophical texts
• Issues in or related to the philosophy of law are treated in Donald Davidson, Essays on Actions and Events
(1980); Hannu Tapani Klami, Anti-Legalism (1980); M.A. Stewart (ed.), Law, Morality, and Rights (1983);
John D. Hodson, The Ethics of Legal Coercion (1983); Anthony Allott, The Limits of Law (1980); and V.R.
Krishna Iyer, Law Versus Justice (1981).