The word ‘Jurisprudence’ is derived from ‘Juris Prudentia’. It is a Latin term that means science, study or knowledge of law. The meaning of jurisprudence has been changing over time and has been stirring controversy amongst some scholars. Irrespective of how one chooses to define it, one can understand it to mean the study of the science of law. B.E King is of the opinion that jurisprudence is not concerned with the ‘exposition of law’ but with ‘disquisitions about law’. On one hand, substantive laws educate us on our rights, duties and obligations, on the other hand jurisprudence dives deeper into analysing these rights, duties and obligations and also helps us understand how and why they emerge in a society. Although there are many schools of jurisprudence, in this article we will be focusing on the Sociological School of Jurisprudence.
Sociology and Law
Laws form an integral part of the society as they help in maintaining order, remind us of our rights and duties and help prevent miscarriage of justice. Every society is bound by a specific set of laws. Therefore, the combined study of sociology and law becomes inevitable. Law can be rightly referred to as a social phenomenon as every social institution needs and has a different set of laws governing them.
American sociologist, Talcott Parsons, in his work shared that law is the essential part of social control. Hence, in sociology, law is believed to be a mechanism of social control over society. Niklas Luhmann, a German sociologist, said “All collective human life is directly or indirectly shaped by law. Law is like knowledge, an essential and all-pervasive fact of the social condition.” Therefore, in my opinion, in order to study law, one must possess basic knowledge of how society and various social institutions function.
Meaning of Sociological School of Jurisprudence
As its name suggests, the sociological school of jurisprudence shines light upon the interrelation between law and society. Since the scholars of this school put emphasis on the law-society interrelation, it can be deduced that the primary objective behind the inception of the sociological school is to learn about the linkage between law and society. This approach can come handy when it comes to the resolution of societal issues with an immediate effect. Since the law is a social phenomenon, it is indirectly and directly related to the society.
Scope of Sociological School of Jurisprudence
The Sociological School Jurisprudence highlights the correlation between society, its various aspects and law. Jurists belonging to the sociological school of jurisprudence are of the opinion that the legal order is just a phase of social control and that it is rather impossible to thoroughly understand it unless it is taken in its whole setting among social phenomena. The Jurists are more concerned with the working of the law. They believe in the study of law in connection with the society. They focus on real social circumstances which give rise to legal institutions.
Features of Sociological School of Jurisprudence
- The Sociological School Jurisprudence lays emphasis on the functioning of law instead of merely focusing on its abstract content.
- This School regards law as a social institution primarily interconnected with other scientists and the direct impact of the law on society with its formation according to social needs.
- A pertinent feature of the Sociological School of Jurisprudence is that it neglects positivism i.e., the command of sovereign and historical jurisprudence.
- Sociological jurists explain the perception of law in various ways. For example, defining the law in terms of the court’s ruling with a realistic approach of law.
History of Sociological School of Jurisprudence
The Sociological School of Jurisprudence dates far back to Hume’s “A Treatise on Human Nature”.[i] According to him, law owes its origins to social conventions and was a developing social institution per se.[ii]
This school of Jurisprudence didn’t emerge out of the blue. In fact, it was a reaction to the approach adopted by the analytical jurists. It could also be considered as a reaction against the pessimistic approach adopted by the historical jurists. One cannot talk about the emergence of sociological school of jurisprudence without mentioning Laissez-Faire. Laissez is an economic theory that developed in the 18th century. It refers to a policy that adheres to minimum governmental interference in the economic affairs of individuals and society. Therefore, the theory propagates the least governmental interference in business affairs.
Laissez-Faire is the key reason behind the emergence of the sociological school of jurisprudence. Laissez-Faire gives predominance to individual’s interest over society’s interest or the welfare of the state. Sociological school came out as a reaction against laissez-faire as sociological school of jurisprudence promotes the balance between the welfare of the state and individual interest. The sociological school of jurisprudence resulted from the change in the political shift from the laissez-faire doctrine. The industrial and technological revolution along with the centred historical school could also be attributed for the emergence of this school.
Theory of Social Engineering
The American Jurist, Roscoe Pound propounded the theory of social engineering. According to him, as Engineers need to use their engineering skills to manufacture new products, Social Engineers too need to develop a type of structure in the society which provides utmost happiness and minimum friction. He said that everyone has their individual interests and consider it to be supreme to all other interest. The law focuses on seeking a balance between the interests of the people. Article 19(1)(a) of the Constitution of India can help us understand this ‘balancing element’ in a better way. Although, Article 19(1)(a) guarantees the ‘Rights to speech and expression’, it also gives the State the liberty to put reasonable restrictions contained in Article 19(2). With the help of law, Social Engineering aims at balancing the conflicting interest of the individual and the state. Law helps in solving conflicting interest and problems in the society. This body of knowledge helps carrying out social engineering.
The eminent Jurist, Roscoe Pound also propounded the Interest theory where he categorized interest into three types. The first being individual interest. Individual interests are claims or demands related to the individual life. The individual’s interest is known as their private interest. These interests are protected by contract law, law of tort, law of crime, etc. Domestic relations are a classic example of individual interest and may be protected by Personal Laws. Property laws also help safeguarding an individual’s right vested in his property.
The next kind of interest would be Public Interest. In common parlance, the word public interest is widely used in association with the interlink between the state’s responsibility in taking actions that are in the benefit of the general public and the state and the duty of the public to coordinate with the state in the said action. Public interests could be referred to as the claims or desires asserted by the individual from the standpoint of political life. This means that each and every individual in society has a responsibility towards one another and must make use of the things that are open to public use.
Social interests are the claims or demands that are made in relation to social life. In order to properly function, the needs of society must be fulfilled. Thus, these rights help fulfilling the needs of the society as a whole.
Jural Postulates by Roscoe Pound
Roscoe Pound believed that every society has certain basic assumptions for maintaining proper order and balance. These implied assumptions are called Jural Postulates of the legal system of that society. He said that the interests vested in the following five Jural Postulates must be protected.
1. In a civilized society, people must be free to assume that others will not commit any intentional aggression on them. For Example, Assault, Battery, etc.
2. In a civilized society, people must be free to assume that they have control over whatever they discover or create by their own labour. An example of this would be the laws revolving around Intellectual Property Rights.
3. In a civilized society, people must be free to assume that the ones they deal with will act in good faith. A classic example of this would be Contract law.
4. In a civilized society, people must be able to assume that other people will act with due care and will not cast unreasonable risks of injury on them. The law of Tort would come under this. For example, protection from unreasonable injury caused by the negligent act of some other person.
5. In a civilized society, man must be able to assume that people will restrain from committing harmful acts under their employment and agencies which are otherwise harmless to them. This was established in the case of Ryland v Fletcher. The duty lies upon the other person to keep their things with their boundary and take due care to avoid injury to other people.
Marxism & Related Marxist Theories
Marxist theory of law is not the same as other theories and philosophies of law mentioned in the theory of law. The main characteristic of the socialist legal theory is that Karl Marx’s and his successor’s political and economic philosophy must reflect in that legal system. Marx believed that jurisprudence must encompass a study of the nature of law within a society in flux. The 3 doctrines in Marxist jurisprudence are dialectical materialism, financial manufacturing legislation, and historical materialism.
There was also a Marxist notion regarding State and Law. State and law are the result of a specific social financial framework. When the society is divided into social classes, one of which exploits the other/s economically, the concept of law and the State appear. This notion of ‘state and law’ considered law to be an instrument that helps protect the interests of the ruling class and maintains social inequality for its profit, in case of a class struggle.
Few Jurists from Sociological School of Jurisprudence
Eugen Ehrlich was of the opinion that society is the main source of law. Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or judicial decisions but in society itself.” According to him, law originates from existing institutions of marriage, contract, inheritance, etc. They govern society through living laws. According to him, living law is the law which dominates social life in spite of being not known or recognized in the form of enactments or decisions of courts. The Dowry system in India could be categorized as a living law.
A French jurist named Leon Duguit came up with the theory of Social Solidarity. It explains the social cooperation between individuals for their need and existence. His Social Solidarity explains man’s interdependence on his fellow men. This is because, according to him, nobody could survive without relying on other men. In his opinion, every person had the right and obligation to encourage social solidarity.
The French philosopher Montesquieu paved the way for sociological school of jurisprudence. He was of the view that the social condition of society has some sort of influence or impact on the legal process. Furthermore, he acknowledged the significance of history to help understand society’s composition and emphasized the importance of studying society’s history prior to formulating laws for that particular society.
Herbert spencer, a renowned English sociologist, philosopher, biologist and anthropologist, came up with the organic theory of society in his ‘Principles of Sociology’. As explained by him, law arose from 4 sources inherited usages with quasi-religion sanctions, injunctions of deceased leaders, the will of the predominant man and collective opinion of the community.
Rudolf Von Ihering
The German Jurist, Rudolf Von Ihering had come up with 4 elements to his theory. Firstly, he believed law aims at serving social purpose. Secondly, he laid emphasis on balancing conflicting interests. Thirdly, Ihering was of the opinion state’s use of coercion was justified to protect social interest. Lastly, he said that Law must not be regarded as the ‘only’ means of controlling social organisms.
A commonality between theories of most jurists is that they all regarded there to be a connection, an interlink between society and law. The sociological school of jurisprudence advocates the study of law in correlation with the society. In fact, the Indian Courts have tried to apply or mention the sociological school of jurisprudence in their judgments. In the case of N. Adithayan vs Travancore Devaswon Board and Ors,[iii] the court observed that differentiation based on cast could not be allowed to permeate the social fabric of the society. Hence, the Court reaffirmed that discrimination of any sort, amounting to untouchability would not be accepted or tolerated. Even in the case of Sarla Mudgal v Union of India,[iv] the court giving due regard to the concept of Sociological School of Jurisprudence said that marriage celebrated under one personal law cannot be dissolved by the application of other law.
[i] Elise Nalbandian, Introductory Concepts on Sociological Jurisprudence: Jhering, Durkheim, Ehrlich, available at 145480-Article Text-384721-1-10-20161008.pdf
[iii] N. Adithayan Vs. Travancore Devaswom Board and Others, (2002) 8 SCC 106
[iv] 1995 AIR 1531
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