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jurisprudence:sociological-school

Sociological School of Jurisprudence

Jurisprudence is the study of law. It is one type of science. It explores the creation, application, and enforcement of laws. It is the study of theories and philosophies regarding the law. It has both practical and educational value. Sociology is the study of human relations and interactions inside a society. Jurisprudence is the study of the philosophy of law. Although Sociology and Jurisprudence are different, they are interlinked. They depend on each other.

There are five schools of jurisprudence. Out of these, sociological School of jurisprudence 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 and disciplines. They treated it as a synthesis of psychology, philosophy, economics, political science, sociology, etc. Law was an applied science employing functional methods of investigation and analysis for solving the social and individual problems. Sociological School of Jurisprudence firmly believes that if there is a change in the society then that will directly or indirectly affect the law or the legal system and vice versa.

Laws are for the people. The entire system and the society we live in works on the balance between law and sociology. Accordingly, sociological school of thought came into existence.

Development

The emergence of sociological School of thought has it roots to the doctrine of “Laissez – Faire”. It means, “Allow to do.” Laissez – Faire was the most common philosophy during the Industrial Revolution. The idea of trade was introduced to promote free trade among various global traders without any interference of the Government. This is called as the idea of Capitalism which supported the individual interests. It did not give importance to an interest of the whole society. It created a situation where the gap or the divide between the rich and the poor became wide by the concentration of all the resources 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. As a result, the majority of the population’s interest was unheard and neglected. This ideology was adopted by many nations. The society was divided into Haves or the Bourgeoisie and Have nots or the Proletariat. The rich get richer and the poor get poorer.

Exponent with their key features Few jurists believed that the gap between the rich and the poor might bring a clash. It would introduce certain other social problems in the society. The Sociological School of Jurisprudence emerged opposing the ideology of Laissez-Faire. They believed in maintaining harmony by balancing both the State and the individual interest in the society.

Jurists behind Sociological School

The Jurists behind this School of Thought are:

  • Montesquieu (1689-1755),
  • August Comte (1798-1857),
  • Leon Duguit (1859-1928),
  • Eugen Ehrlich (1862-1922),
  • Roscoe Pound (1870-1964) and
  • Ihering (1818-1892)

Montesquieu

He 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 opened a way for the future jurists, legal professionals and sociologists to think and interpret law linked with society and emphasised the interdependency of both.

Montesquieu was the French philosopher. He paved the way of the sociological school of jurisprudence. He was of the view that the legal process is somehow influenced by the social condition of society. He recognized the importance of history as a means for understanding the structure of society.

In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of a nation so that they should be in relation to the climate of each country, to the quality of each soul, to its situation and extent, to the principal occupations of the natives.”

Eugen Ehlrich

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.”

He interpreted about that the main source of law was the society itself, 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.

August Comte

He is also known as the father of sociological school reason. He used the word “Sociology” for the first time. He 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.

Duguit

Duguit was inspired by Comte and Durkheim. He states regarding the two 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. He coined a term called Social Solidarity. 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. There can’t be any law in a society that doesn’t promote Social solidarity.

Ihering

Ihering is known as the father of Modern sociological Jurisprudence. He combined both Analytical and Sociological School. He stated 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 people’s rights and maintain harmony by working and promoting social interest in the society. He 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. Ideas by pound

Roscoe Pound

Roscoe Pound is also known as the father of the sociological school. He coined a term called, “Social Engineering”.

Nathan Roscoe Pound (October 27, 1870 – June 30, 1964) was an American legal scholar and educator. He served as Dean of the University of Nebraska College of Law from 1903 to 1911 and Dean of Harvard Law School from 1916 to 1936. He was a member of Northwestern University, the University of Chicago Law School and the faculty at UCLA School of Law in the school's early years, from 1949 to 1952. The Journal of Legal Studies has identified Pound as one of the most cited legal scholars of the 20th century. In 1908 he was part of the founding editorial staff of the first comparative law journal in the United States, the Annual Bulletin of the Comparative Law Bureau of the American Bar Association.

In 1909, he taught at the University of Chicago Law School. Pound was sufficiently adept at Latin to translate Roman law into English for a sourcebook he used for those classes, and he was said by Professor Joseph Henry Beale to have brought the spirit of Roman law to Harvard. Pound was also the founder of the movement for “sociological jurisprudence”, an influential critic of the U.S. Supreme Court's “liberty of contract” (freedom of contract) line of cases, symbolized by Lochner v. New York (1905), and one of the early leaders of the movement for American Legal Realism, which argued for a more pragmatic and public-interested interpretation of law and a focus on how the legal process actually occurred, as opposed to (in his view) the arid legal formalism which prevailed in American jurisprudence at the time.

According to Pound, these jurisprudential movements advocated “the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles”.While Pound was dean, law school registration almost doubled, but his standards were so rigorous that one-third of those matriculated did not receive degrees. Among these were many of the great political innovators of the New Deal years.

During Roosevelt's first term, Pound initially supported the New Deal. In 1937, Pound turned against the New Deal and the Legal Realism movement altogether after Roosevelt proposed packing the federal courts and bringing independent agencies into the executive branch. Other factors contributing to this “lurking conservatism” within Pound included bitter battles with liberals on the Harvard law faculty, the death of his wife, and a sharp exchange with Karl Llewellyn. Pound, however, had for years been an outspoken advocate of these court and administrative reforms that Roosevelt proposed and it was acknowledged that he only became conservative because he saw an opportunity to gain attention after his Harvard colleagues had turned on his ideas of government reform after Roosevelt had proposed them.

In 1937 Pound resigned as Dean of Harvard Law School to become a University Professor and soon became a leading critic of the legal realists. He proposed his ideas of government reform to Chinese leader Chiang Kai-shek. In 1934 Pound received an honorary degree from the University of Berlin, presented by the German ambassador to the United States. Pound was among the famous American jurists to express a liking for Adolf Hitler. In the 1940s, Pound was apparently favourably disposed to replacing John P. Higgins as a judge on the International Military Tribunal for the Far East, which was conducting a war crimes trial in Tokyo, though an appointment did not eventuate. He joined the faculty of UCLA School of Law in 1949, the year the law school opened, and remained on the faculty until 1952.

Criminal justice in Cleveland

In 1922 Roscoe Pound and Felix Frankfurter undertook a detailed quantitative study of crime reporting in Cleveland newspapers for the month of January 1919, using column inch counts. They found that in the first half of the month, the total amount of space given over to crime was 925 in., but in the second half, it leapt to 6642 in. This was despite the fact that the number of crimes reported had increased only from 345 to 363. They concluded that although the city's much publicized “crime wave” was largely fictitious and manufactured by the press, the coverage had a very real consequence for the administration of criminal justice.

Because the public believed they were in the middle of a crime epidemic, they demanded an immediate response from the police and the city authorities. The agencies, wishing to retain public support, complied, caring “more to satisfy popular demand than to be observant of the tried process of law.” The result was a greatly increased likelihood of miscarriages of justice and sentences more severe than the offences warranted.

Contribution to jurisprudence

Roscoe Pound made a significant contribution to jurisprudence. He emphasized the importance of social relationships in the development of law and vice versa. His best-known theory consists of conceptualizing law as social engineering. According to Pound, a lawmaker acts as a social engineer by attempting to solve problems in society using law as a tool.

Social engineering

It 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 five Jural Postulates:

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. === 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.

Law of Contract

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

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.

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 propounds, 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.

Three Kinds of interest

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the overlapping of the interests, he put boundaries and divided the kinds of interests.

Individual Interest

These are claims or demands involved from the standpoint of the individual life which consists of interest of personality, interest in domestic relations and interest of substance

Public Interest

These are the claims or desires asserted by the individual from the standpoint of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use. Interest in the preservation of state

Social Interest

These are the claims or demands in terms of social life which are intended to fulfill all the needs of society as a whole for the proper functioning and maintenance of it. These are intended in the preservation of general peace, health, security of transactions, preserving social institutions like religion, politics, economic.

Ideas of Sociological jurisprudence

The main subject matter of sociology is Society. Sociology is the study of society, human behaviour, and social changes. Jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society. The sociological approach to jurisprudence which resulted out of the change in the political shift from the doctrine of the laissez-faire, the industrial and technological revolution and finally the historical school bringing into focus the relationship between the law and social welfare State of the modern century, has attempted to study law as seeking social origin of law and legal institutions, testing law as a given social phenomenon and lastly judging law by its social utility giving an interest of protection from any intentional aggression.

For Example, Assault, Wrongful restraint, Battery, etc.

In case Ryland Vs. Fletcher Protection is given to society if the injury caused by the things of another person. It is the duty of other people to keep his/her things with his/her boundary and should look after that thing to avoid injury to other people. Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength, cohesiveness, collective consciousness and viability of the society.’

Leon Duguit’s Social Solidarity explain the interdependence of men on his other fellow men. No one can survive without the depending on other men. Hence the social interdependence and cooperation are very important for human existence. The objective of the law is to promote Social solidarity between individuals. And Leon Duguit considered that law as bad law which does not promote social solidarity.

  1. The sociology of law aims at grasping law in its working;
  2. it is to provide expert advice for social engineering;
  3. the sociology of law makes an attempt to shape its studies so as to make them useful for practical applications; and
  4. the sociology of law struggles with reality.

Thus, the sociology of law aims at the understanding of legal and social phenomena, whereas the main concern of the traditional approach to jurisprudence is to undertake analytical-linguistic studies.

Criticism

Sociological School of Jurisprudence studies the relationship between and society for formulation of better and effective law.

For Examples:

  1. After the 2012 Delhi gang Rape happened (Nirbhaya Gang Rape). Rape laws are amended in India.
  2. The Female Infanticide was declared to be murder by Bengal Regulation XXI in in 1795. The British government took steps against the evil of female infanticide and propaganda of the same.
  3. Gender equality and the empowerment of women were considered one of the eight Millennium Development Goals by the United Nations Population Fund in 2001.
  4. The judiciary of the U.S and the European Union and the Indian judiciary are using this school of thought more now.
  5. Section 377 of IPC could be declared unconstitutional.
  6. Sati was the ancient Indian practice of burning the widow on her husband’s funeral pyre. Sati Pratha was first abolished in Calcutta in 1798. A ban on Sati was imposed in 1829 in the British territories in India. The practice of Sati is banned under the Prevention Of Sati Act which makes it illegal to force or encourage anyone to commit Sati.
  7. Many draconian laws are deleted because of this school of thought.

So, we can come to an agreement that although this school of thought has been really successful, we are witnessing overuse due to which the objective of three pillar governance has shifted. Instead of the legislature making laws, the judiciary is making laws. This leads to chaos and conflict inside the three pillar system.

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Created on 2021/02/01 11:34 by LawPage • Last modified on 2021/02/01 11:34 by LawPage