Sociological School of Jurisprudence

INTRODUCTION

Sociology is the study of human relations, interactions inside a society and Jurisprudence, on the other hand, is the study of the philosophy of law. The reason why we explained these two different fields is because, although they are different but are interlinked and depends on each other. Sociological School of Jurisprudence is a school of thought that firmly believes that law and society are interlinked and the law impacts the society at large. If there is a change in the society then that will directly or indirectly affect the law or the legal system and vice versa.

In this article, we are going to discuss the Sociological School of Jurisprudence, its background, the people behind the foundation of this school of thought, its importance, and its impact or influence on our society. But before starting, let us keep in mind that, all these laws that are in the statutes, individual rights, and the foundation behind every nation: Justice, Equality, Unity, etc, all these are for everyone in the society. Laws are for the people, and the State keeps a check on it, that doesn’t mean State has all power or authority, even at some situations, the people or the public have the authority over the State. The entire system and the society we live in works on the balance between law and sociology and from this, this school of thought comes into existence. Eugen Ehrlich says, “At the present as well as at any there time, the centre of gravity of legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

BACKGROUND

All the credits for the emergence of this School of thought go to the doctrine of “Laissez – Faire” that means, “Allow to do.” This was most common during the Industrial Revolution when this idea of trade was introduced. So, it means to promote free trade among various global traders without any interference of the Government and this idea of Capitalism only supported the individual interests and not an interest of the whole society, and this could lead to a situation where the gap or the divide between the rich and the poor is so wide and the concentration of all the resources are only with the few people of the society. This idea of capitalism only allowed the Government to interfere during any conflicts or during any situation where an individual was forced against his/her will and not in any other circumstance, although this whole idea supported only a few people in the society and the majority of the population’s interest was unheard and neglected.

This ideology was adopted by many nations and due to which the society was divided into 1) Haves or the Bourgeoisie, 2) Have nots or the Proletariat. The phrase, “The rich get richer and the poor get poorer”, was a live example during that time and even today also we can see that.

During this time, few jurists who believed that this gap between the rich and the poor might bring a clash and would introduce certain other social problems in the society, these group of men reacted to this economical unrest and due to which the Sociological School of Jurisprudence emerged opposing the ideology of Laissez-Faire and believed in maintaining harmony by balancing both the State and the individual interest in the society that was being neglected before that.

The Jurists behind this School of Thought

· Montesquieu (1689-1755)

· August Comte (1798-1857)

· Leon Duguit (1859-1928)

· Eugen Ehrlich (1862-1922)

· Roscoe Pound (1870-1964)

· Ihering (1818-1892)

1. Montesquieu1, wrote,” Law, in general, is human reason, in as much as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied. They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions. They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.”

He was the first one to talk about this particular School of thought, the sociological school of jurisprudence, he further opened a way for the future jurists, legal professionals and sociologists to think and interpret about this new school that linked law and society together and further stated that interdependency of both. For example, as we know that morality differs from person to person and is very subjective but to maintain a balance and order in the society, we have laws guiding and directing the entire society about what is right or moral in the society and what is immoral or wrong. But if we go deeper into this, we might understand that our society is developing and changing constantly, our society is not the same as we were in the 18th or 19th century. This means, for a changing society, we need to keep on changing and amending laws too. That’s why when homosexuality was considered to be immoral years ago and was even a crime back then in the U.S2, but due to the changing society, there was even a change in the moral values and that ultimately resulted in amendments of these laws.

2. Ehlrich’s interpretation about the Sociological School of Jurisprudence was that the main source of law was the society itself, he even quoted and stated that the centre of gravity of any legal development in our society is not because of any developments in our legislation or judicial decisions, rather because of the society itself that’s why he called the society as the main source of law. For him, society meant “Men in Association” and he even gave us a term called “Living law.” This term means that in our society, whoever comes in contact and does any sort of deals, have any sort relation with the other, everything is governed and affected by the law.

3. Roscoe Pound, he is also known as the father of this sociological school. He came up with a term called, “Social Engineering”, that means just like engineers in our society who manufactures goods and products for the society, invents and promotes discoveries of various new products in the market, for example, The invention of mobile phones and laptops, with these inventions, these engineers helped the entire society globally by easing our works, now we don’t have to carry those big old fashioned computers and those old ugly phones. Just like these engineers, we need “Social Engineers” in our society to make new laws, amend the old ones to deal with the current social problems and of course for the future ones. He even states that in a society, the desire, needs and interest of an individual are supreme for him/her as compared to the interest of the other person, and with this perspective of any person in the society would lead to chaos and conflict. That’s why we need laws to maintain harmony among the people and in the society, there should be a balance of interest of both the individuals and of the State. For example, We know that the Indian Constitution guarantees its citizens some Fundamental Rights, but we also know that all these rights are not absolute in nature and the Constitution has put a reasonable restriction clause on our rights so that in the society neither an individual’s right overpower the State and nor the State’s authority overpower the people. That is how a democratic country can work by equally balancing the rights of individual and of the State.

But to apply this concept of Social Engineering, Pound clubbed all the relevant and vital interests of the society and stated 5 guidelines or Jural Postulates and that we have to nourish them and protect them, the following are the 5 Jural Postulates:

i. Criminal Law – That there shouldn’t be any use of aggression among the people in a society and that would lead to criminal trials and punishments.

ii. Law of Patent – That if there is an invention or a discovery of anything by a person or a group, all the rights to use and store that invention should be with the founder.

iii. Law of Contract – That all the promises and legal agreements in a society should be governed by the Contract laws.

vi. Law of Torts – That any kind of negligence or wrongful act that creates any sort of annoyance to anyone in the society shall be governed by the tort laws and the culprit shall be imposed with fine.

v. Strict Liability – That anyone in the society keeps a dangerous good, either living or non-living shall be held liable for any destruction caused by that dangerous item or thing.

He further says, as the society is evolving and keeps on changing there might come other postulates too that we have to protect and nourish so that we maintain a balance in the society.

4. August Comte, he is also known as the father of sociological school reason being, he used the word “Sociology” for the first time and compared it to an organism. He said that “Society is like an organism and it could progress when it is guided by Scientific Principles. Thus, he makes great efforts to use the law as a tool by which human society maintains itself and progresses.

5. Duguit, on the other hand, was inspired by Comte and Durkheim and further defines Durkheim’s definitions regarding the 2 needs of a person in a society. First need being the Common interest and the Second, the Diverse interest. He states that in a society, the law teaches us to become interdependent to one another and coins a term called Social Solidarity and further explains that, it is the law of our society that promotes us all to perform social solidarity and it is even the State’s duty to promote Social Solidarity in the society and there can’t be any law in a society that doesn’t promote Social solidarity and if there is any such law in existence then it is a bad law.

6. Ihering is also known as the father of Modern sociological Jurisprudence and he combined both Analytical and Sociological School and further defined that it is the primary objective of the law to protect the social interest and law guarantees our rights and it is the State’s duty to protect our rights and maintain harmony by working and promoting social interest in the society. He lastly explains that if there is a conflict between an Individual interest and Social interest, then the society would protect the Social interest because it is the State’s duty to do so.

CONCLUSION

According to me, as we can see in the entire article that few words like, balance, society, harmony has been used multiple times. Just like that, in order to maintain balance in the society, we have to follow whatever is the best for the society at that time and we shouldn’t follow only one single school of thought, rather our interpretation should keep changing depending upon the facts and the scenario and we should also focus on the positivism school of thought.

As there is both a good side and a bad side about the Sociological school of jurisprudence, we can see that the judiciary of the U.S and the European Union and even the Indian judiciary are using this school of thought more now, due to which the objective of 3 tier/pillar governance has shifted and instead of the legislature making laws, the judiciary is making laws, this leads to chaos and conflict inside the very own system.

But on the other hand, we have witnessed laws like section 377 of IPC being declared unconstitutional and many such draconian laws being deleted just because of this school of thought. So, we can come to an agreement that although this school of thought has been really successful, we can’t overuse it every time.

Author: Aarlin Moncy, Legal Intern at Legal Desire (June 2020)
Avid Researcher & Campus Ambassador with a demonstrated history of working in the online media industry. Skilled in Analytical Skills, Alternative Dispute Resolution, Constitutional Law, Criminal Law, Consumer Protection Law, Contract Law, Tort Law, Competition Law, Public Speaking, English, Economics and Debate. Strong education professional with a Bachelor’s degree focused in Law from Jamia Hamdard, School of Law.