Comte was the first writer to use the term sociology which he described as a positive science of social facts. Subsequently, writers and jurists tried to find a link between sociology and law. Gurvitch, for example, said that the meeting point of sociology and law is the sociology of law. Sociology of law should, however, be distinguished from sociological jurisprudence.
The latter primarily studies law but in doing so it studies its relation with an impact on society; whereas sociology of law primarily studies society and studies law only peripherally.
The sociological school considers law as a social phenomenon and examines the law in relation to society. The supporters of sociological jurisprudence linked law with other social science disciplines and treated it as a synthesis of psychology, philosophy, economics, political science, sociology, etc.
Law, according to them, was an applied science employing functional methods of investigation and analysis for solving social and individual problems.
Bentham, who was an analytical positivist, had, by expounding the principle of utility, provided indirect support to the sociological formulation of law. In the nineteenth and twentieth century, the sociological approach was developed and elaborated by the jurists like Duguit, Ihering, Ehrlich, Roscoe Pound and many others.
The factors which led to the establishment of sociological school are as follows :
1. Nineteenth-century witnessed a shift in emphasis from the individual to the society. This happened as a result of the consequences of the laissez-faire doctrine.
2. The historical school which was a reaction to the intense individualism of the nineteenth century by its emphasis on the Volkgeist spirit of the people-indicated that law and the social environment in which develops are intimately related. This idea was worked out by jurists of sociological school.
3. Prior to the nineteenth-century matters like health, welfare, education, etc were not the concern of the state. In the nineteenth century, state, because of the adverse effects of laissez-faire became more and more concerned with numerous matters encompassing almost all aspects of life and welfare. This implied regulation through law, which compelled legal theory to readjust itself so as to take account of social phenomena.
4. It was established as a reaction against too much theorizing in law. By this time, the shortcomings of purely formal analysis were being felt.
5. Revolutions and social unsettlement provoked chaos about the shortcomings of law. Sociological jurists wanted to overcome these shortcomings.
These factors led to the growth of the sociological school.
Ehrlich (1862-1922), an eminent jurist of sociological school primarily expounded on the social basis of law. For him, the law is derived from social facts and depends not on State authority but on social compulsion. Law, he said differs a little from other forms of social compulsion and the state is merely one among many associations, though admittedly it possesses certain characteristics means of compulsion.
The real source of law is not statutes or reported cases but the activities of society itself. There is a “living law” underlying the formal rules of the legal system and it is the task of the judges and the jurists to integrate these two types of law.
Commercial law, for instance, as embodied in statutes and cases, involves a constant attempt to try to keep up with commercial usage, for the “centre of legal gravity lies of law not in legislation, nor in judicial decisions but in the society itself”.
Thus it can be said that Ehrlich suggests a scientific approach to law that relates the law more closely to the life of society but his work shows some weaknesses also as he gives no clear criterion by which to distinguish a legal norm from any other social norm.
Roscoe Pound is regarded as one of the most noted American Sociological jurists of the twentieth century. Kohler’s approach, in fact, inspired Roscoe Pound the most for propounding the theory of social engineering and the balancing of social interests. Kohler asserts that all laws are relative and conditioned by the Civilization in which they arise.
But the idea of law has to follow the universal idea of human civilization and the meaning of civilization is the social development of human parts towards their highest possible unfolding. The evolution of Civilization results from the struggle between the human mind distinguishing itself from nature and the object-matter of mature.
The task of law following the evolution of Civilization is both to maintain existing values and to create new ones for the further development and unfolding of human powers. Every Civilization has certain rural postulates that is, ideas of rights to be made effective by legal Institution. Legal materials must be shaped so as to give effect to those postulates and legislators, judges, jurists must mole to the law in accordance with them.
This analysis of Kohler has been incorporated by Roscoe Pound in his exposition about the sociological school. For Pound, jurisprudence is not so much a social science as a technology and the analogy of Engineering is applied to social problems. He laid Emphasis to accumulate factual information and statistics and paid little attention to conceptual thinking.
He called for a new functional approach to law based on sound theorizing as to its purpose in a particular age. For Pound, law is the body of knowledge and experience with the aid of which a large part of social engineering is carried on. It is more than a body of rules; it has rules, principles, conceptions and Standards for conduct and for decisions but it also has Doctrines and modes of professional thought and professional rules of Art By which the precepts for conduct and decisions are applied, developed and given effect.
Like an engineer’s formulae, they represent not only experience, scientific formulations but also invented skill in conceiving new devices and formulating the requirements by means of a developed technique.
Pound has also recognised Ihering’s view of the law as a reconciler of conflicting interests but at the same time has given it certain distinctive features. For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go Round as far as possible with the least friction and waste. Pound regards these claims as interests which exist independently of the law and which are pressing for recognition and security.
The law recognises some of these making them effective within defined limits and pound has attempted to expound and classify the categories of interests which are thus acknowledged in a modern democratic society.
It is however interesting to note that sociological jurisprudence neither begins nor ends with Pounds. Roscoe Pound died in 1964 and after him, modern jurists have further elaborated or varied Pound’s basic classification of interest and further developed a sociological approach.
Thus, Stone built upon Pound’s classification except for the elimination of the category of public interest as a separate category. Professor Stone is considered as a representative of modern sociological jurisprudence one of the main faults of classical sociological jurisprudence. The sociological jurists of the future will generally have to approach his problems through a vast effort at understanding the wider social context.
Stone indicates that, in spite of its difficulties and faults, the Parsonian Social system is the type of mode to which sociological jurist must aspire. A common malaise in sociological jurisprudence is its prevalent methodology of working outwards from legal problems to the relevant social science.
Instead what is needed is a framework of thought receptive of social data which will allow us to see the social system as an integrated equilibration of the multitude of operative systems of values and institution embraced within it.
Duguit (1859-1928) was a French jurist who made a substantial contribution to the sociological jurisprudence in the early twentieth century.
He was much Influenced by Auguste Compte’s theory of law as a fact which denounced individual rights of men and subordinated them to social interest. Compte pleaded that the only right which man can possess is the right always to do his duty. This formed the basis of Duguit’s legal theory.
Duguit was also influenced by the Durkheim’s work “Division of Labour in Society” which was published in 1893. Durkheim made a distinction between the two kinds of needs of men in society.
Firstly, the common needs of the individuals which are satisfied by mutual assistance, and secondly, the diverse needs of individuals which are satisfied by the exchange of services. Therefore, the division of labour is the most important fact which Duguit called as “social solidarity”.
Justice Oliver Windell HOLMES considered law as a means to protect and promote the collective group interests as compared with the individual interests. Thus, he approached law in a pragmatic manner adopting a realistic attitude to analyse its working in the society.
He aptly remarked, “life of law has not been logic, it has been experience” which meant that while determining the law and legal rules by which men should be governed, the lawyers and Judges must take into consideration the needs of the time, prevalent moral and political precepts, public policy and the public opinion.
Being a Judge of the Supreme Court of America for over thirty years, Holmes was convinced that Judges can play a significant role in turning law to life’s needs and satisfaction. Through his monumental work, The Common Law he took sociological jurisprudence across the Atlantic.
BENJAMIN NATHAN CARDOZO
Cardozo (1870-1938), another Judge of the US Supreme Court, also viewed the law in its sociological perspective. He totally rejected the Austinian concept of logical interpretation of the law and his analytical approach to the judicial process and emphasized on the need to interpret the law in the light of social necessities and realities of life.
He was primarily concerned with two aspects of law, namely – how the Judges should apply the law for deciding cases before them and how the law grows in society.
According to him, judges cannot keep themselves secluded from social realities and developments in other fields if social sciences which have a direct bearing on the life of the people. Therefore the law must keep pace with the social developments and shape itself to the changing needs of society in order to attain the ends of justice and undoubtedly, the Judge’s role is crucial in this judicial process.
He remarked, logic, history, custom, utility and the accepted standards of right conduct are forces which singularly or in combination, shape the process of law. The judge should get his knowledge as a legislator gets it from experience, study and reflection, from life itself.
BASIC TENETS OF SOCIOLOGICAL SCHOOL
The following are the basic tenets or characteristics of the sociological school.
1. Sociological jurists regard the working of the law rather than the abstract content of the authoritative precepts.
2. Sociological jurists regard the law as a social institution, which may be improved by intelligent effort. Hence it is the task of the jurists to find out the best means of furthering such efforts.
3. Sociological jurists lay stress upon the social purposes which the law serves rather than upon sanctions.
4. Sociological jurists look at legal institutions and doctrines and precepts functionally. They regard the form of legal precepts are a matter of means only.
5. According to this school, the main function of law is to fulfill the needs if society. Social requirements are accomplished by law. Law is also a social instrument for maintaining law and order in the society.
SOCIOLOGICAL JURISPRUDENCE: INDIAN POSITION
In the last three decades, sociological jurisprudence has engaged in India on a macrocosmic scale. The need for studying law on the nature of socio-economic reality is the cry of the day. Legal schoolers, judges, jurists all have emphasized the importance of the relationship of law, society and social changes which are taking place so fast.
A large number of progressive judges of the apex court of the country like Justice V.R. Krishna Iyer, Y.V. Chandrachaud, P.N. Bhagwati, D.A. Desi, O. Chinappa Reddy, all pleaded vigorously the adoption of a sociological approach in the interpretation of the law.
It hardly needs to be reiterated that law as an instrument of social engineering in inextricably connected with society, both regulating and maintaining order and bringing about reform and progress. it effectively addresses the prevalent social problems and their solutions, through a legal approach.
Since the law is a social science, judges would not depend only on abstract principles or rigid legal cannons alone but on social circumstances, demands and needs of the time.
In America, Sociological Jurisprudence has developed an extreme wing under the name of the realist school. They are concerned with the study of law as it works and functions which means investigating the social factors that make a law on the hand and the social results on the other.
They emphasize more on what the courts may do rather than abstract logical deductions from general rules and on the inarticulate ideological premises underlying a legal system.
American Realism is not a school of jurisprudence but it is a pedagogy of thought. The prominent jurists of this thought are Holmes, Gray and Jerome Frank.