Dr.

Shakuntala Misra National Rehabilitation University

Lucknow
Faculty of Law

Sociological Approach In Jurisprudence

Submitted By

ANUJ PRATAP SINGH

Roll No: - 08

Class: - B.Com LL.B 3rd Semester

Under The Guidance Of

Prof. Dr. Shephali Yadav

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 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Dr. Shephali Yadav who gave
me the golden opportunity to do this wonderful topic “Sociological Approach In Jurisprudence”
which also helped me in doing a lot of Research and I came to know about so many new things I am
really thankful to them.

ANUJ PRATAP SINGH

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 Table of Contents
Sr. No. Content Page No
01. Introduction 04

02. Sociological Approach – Nature and Meaning 04

03. Meaning of Sociological Jurisprudence 04-05

04. Characteristics of Sociological Jurisprudence 05

05. Auguste Comte’s Theory 05

06. Rudolf Von Ihering's Theory 06

07. Roscoe Pound’s Theory 06 - 10

08. Criticism 10-11

09. Sociological Jurisprudence in Indian Context 11

10. Conclusion 12

11. Bibliography 13

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SOCIOLOGICAL APPROACH IN JURISPRUDENCE

Introduction

Sociological jurisprudence is a term coined by the American jurist ROSCOE e Pound (1870–1964) to
describe his approach to the understanding of the law. Central to Pound’s conception was the very
suggestive idea that in modern societies the law represents the principal means through which
divergent interests are brought into some sort of alignment with one another. Unfortunately, perhaps
because he was a jurist rather than a sociologist, he did not combine this insightful conception with a
developed understanding of how these interests were formed and why some of them came to be
privileged over others within the legal system. A sociologically informed account of Pound’s work,
which places it in the context of the historical development of the sociology of law, will be found in
Alan Hunt, The Sociological Movement in Law, 1978.

Sociological Approach – Nature and Meaning

Sociological approach towards study of law was a reaction and revolt against the analytical and
historical school both of which regarded law as self – contained system – the former deriving validity
of law from the sovereign – the law giver and the latter from the slow and silently flowing historical
and cultural processes and forces. The sociological approach considers law as a social fact or reality
to shape, mould and change society to sub-serve its needs, expectations and goals through law. The
interrelationship between law and society and the study of community and of social phenomena, of
group or individual interests and their realization and fulfilment through law is the paramount
concern of law. Off – course! The Sociological approach to the study of law is of recent origin. The
other Schools have been more concerned with the nature of law and its source rather than its actual
working, functioning and social ends which law strives to sub serve. All the jurists who define law in
relation to society in terms of ends which law serves and the interests which the law satisfies and the
common good which the law seeks to achieve – thereby make law as an instrument of social control
and social change are grouped together as jurists belonging to Sociological School of Jurisprudence.

MEANING OF SOCIOLOGICAL JURISPRUDENCE

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Sociological School of jurisprudence has emerged as a result of synthesis of various juristic thought.
The exponent of this school considered law as a social phenomenon. They are chiefly concerned with
the relationship of law to other contemporary social institutions. They emphasize that the jurists
should focus their attention in social purposes and interest served by law rather than on individuals
and their abstract rights. According to this school the essential characteristics of law should be to
represent common interaction of men in social groups, whether past or present, ancient or modern.
The main concern of sociological jurist is to study the effect of law and society on each other. They
treat law as an instrument of social progress. The relation between positive law and ideals of justice
also effects the sociology of law. The main exponents of the sociological jurisprudence which has
been characterised as “interest oriented, interest loaded, and interest directed” were Auguste Comte,
Herbert Spencer, Rudolph Ihring, Eugen Ehrlich, Leon Duguit, Francois Geny, Dean ROSCOE e
Pound etc. In United States, Justice Oliver Windell Holmesand Benjamin Cardozo the distinquished
judges of the Supreme Court were also inspired by Dean Pound’s Sociological theory of law.

Characteristics of Sociological Jurisprudence

The chief characteristics of Sociological Jurisprudence are as follows:

1. Sociological jurists are concerned more with the working of law rather than with the nature of law.
They regarded law as a body of authoritative guides to decision and of the judicial and administrative
processes rather than abstract content of authoritative precepts.

2. It considers law as a social institution which can be consciously made and also changed, modified
or retained on the basis of experience. In other words, it synthesizes both the analytical and historical
approach to the study of law.

3. Sociological Jurists lay emphasis upon social purposes and social goals and expectations which are
the law sub serves rather upon sanctions and coercive character of law.

4. Sociological jurists look on legal institutions, doctrines and precepts functionally and consider the
form of legal precepts as a matter of means only to satisfy greatest good of the greatest number.

Views Of Different Jurists Related To This Approach

Montesquieu emphasised that “law of a particular nation should be determined by its national
characteristics and must bear the relation to the climate of each country, the quality of soil, the

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situation and extent, the principle occupations of the native, and above all, to the religion of
inhabitants, riches, commerce , manners and customs.”

Auguste Comte
Auguste Comte applied scientific method to the study of sociology which he termed as “scientific
positivism”. According to him, society, like any other organism can progress when it is guided by
scientific principles. Herbert Spencer gave a scientific exposition to the organic theory of society.
Spencer deduced four sources of law, namely: Divine law having quasi religious sanctions.

1) The injunctions of the past leaders.

2) The will of the ruler.

3) Collective opinion in the society.

RUDOLF VON IHERING

Ihering was German jurist. He has been described as the “Father of Modern Sociological
Jurisprudence”. He rejected the Analytical & Historical jurisprudence as jurisprudence of
conceptions. According to him, law is an instrument for serving the needs of individuals of society.
Hence, the law should be studied in terms of purposes or interests which it sub-serves. He observed,
“The stone does not fall in order to fall, but it must fall because its support is taken away. Similarly,
the man who acts does so not because of anything, but in order to attain something. As there can be
no motion of the stone without a cause, so can there be no movement of the will without purpose.”

According to him, human will is directed towards the furtherance of individual purposes. In
realisation of individual purposes, there is bound to be a conflict between social interest &
individual’s selfish interests. Ihering tries to reconcile the individual interest with that of the society.
So, law is only an instrument for serving the needs of the society ... its purposes & interests. The
success of the legal process depends on achieving proper balance b/w social & individual interests. It
is through two impulses – coercion & reward, the society compels individuals to subordinate selfish
individual interests to social purposes & general interests. The natural impulse of duty & love also
make man to sub-serve social ends. Therefore, Ihering views law as an instrument of social control
balancing of individual interest with that of the society.

ROSCOE E POUND

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ROSCOE E POUND is said to be the father of this approach. He said “The law must be stable, but it
must not stand still.” Pound placed his sociological jurisprudence in opposition to what he termed
“mechanical jurisprudence,” which he characterized as a common but odious practice whereby
judges woodenly applied precedent to the facts of cases without regard to the consequences. For
Pound, the logic of previous precedent alone would not solve jurisprudential problems. His study of
biology led him to believe that the law, like nature, was a seamless web and that change in one part
might produce totally unexpected and undesirable results in a distant part.
Social Engineering : The Concept

1. Roscoe Pound was one of the greatest leaders of sociological school of jurisprudence. He
introduced the Doctrine of Social Engineering which aims at building and efficient structure of
society which would result in the satisfaction of maximum of wants with the minimum of friction and
waste. It involved the rebalancing of competing interests.
2. Roscoe Pound defined the legal order reference by to the end of law:
3. “The legal order may well be thought of as a task or as a great series of tasks of social engineering;
as an elimination of friction and precluding of waste, so far as possible, in the satisfaction of infinite
human desires out of a relatively finite store of the material goods of existence.”
4. ‘Interests’, ‘desires’, ‘claim’, ‘wants’ – for the most parts of words are used interchangeably in
Pound’s writings, although ‘interests’ sometimes serves as the inclusive term.2 Like the engineer, the
jurist constructs, creates – but not out of thin air. Like the engineer he must work with resistive
materials, without which, however he could not build at all; and always there are adverse conditions
imposed upon his activity. Friction and waste, represented by a sacrifice of interests which might be
secured, must be overcome. The task is one for human activity; though requiring methodical care,
there is nevertheless nothing static about it. Technique and materials may be improved. Jurist must
work on, must create and ever greater, ever more serviceable structure. The engineering analogy
stands out as graphic and timely.
5. He propounds that task of jurists is to find out those factors which would help in the development
of culture conducive to the maximization of satisfaction of wants. These factors are principles as
Jural Postulates.
Theory of Social Engineering
Roscoe Pound conceived law as a ‘social engineering’, its main task being to accelerate the process
of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the

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society. Thus, Courts, Legislators, Administrators, and Jurists must work with a plan and make an
effort to maintain a balance between the competing interests in society. He enumerated the various
interests which the law should seek to protect and classified them into three broad categories
namely:-
1. Private Interests
2. Public Interests
3. Social Interests
In other words, social engineering is a term used to define the act of balancing of different interests,
i.e., individual interests, public interests & social interests. The aim of social engineering is to build
as efficient a structure of society as possible, e.g., if a factory is polluting the environment & an
injunction suit is filed for closing it, the court must balance various claims & interests –claim of the
mill owner to do his business, claims of the workers in the factory to retain their jobs, claim of local
residents to have a clean environment, etc

Roscoe Pound theory is that the interests are the main subject-matter of law & the task of law is the
satisfaction of human wants & desires. It is the duty of law to make a valuation of interests. He
classified interests under three heads.

Private Interests

a.) Individual’s interests of personality, namely interests of physical integrity, reputation, freedom of
volition and freedom of conscience. They are safeguarded by laws of crimes, torts, contracts,
constitutional law etc.

b.) The interests of domestic relations of persons such as husband and wife, parent and children,
marital life as also the individual’s private interests. c.) The interests of property, succession,
testamentary disposition, freedom of contractual relations, association etc. are also included in the
category of private interests.

Public Interests

The main public interests according to Pound are –

a.) Interests in the preservation of the State as such.

b.) State as a guardian of social interests such as administration of trusts, charitable endowments,
protection of natural environment, territorial waters, sea shores, regulation of public employment and
so on.

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Social Interests

The social interests which need legal protection are –

a.) Interests in the preservation of peace, general health, security of transactions etc.

b.) Preserving social institutions such as religion, political and economic institutions etc.

c.) Interests preserving general morals by prohibiting transactions which are against morality such as
prostitution, drunkenness, gambling etc.

d.) Interests in conservation of social resources e.g. Natural resources, reformation of delinquents,
protection of economically weaker section of the society.

e.) Social interests in general progress including economic, political and cultural progress. For
example, freedom of trade and commerce, freedom of speech and expression, encouragement to arts
and promotion of higher education etc.

f.) Interests which promote human personality by enabling a person to live political, physical,
cultural, social and economic life to suit his taste and improve his personality.

When he conceives law as a social engineering, he is reading law and its administration as a part of
much wider process of social ordering, functioning through courts and administrative agencies with
the aid of legal precepts serving as partial guides. The task of social ordering presupposes a sincere
effort to avoid or at least ameliorate, collisions resulting from conflict of interests. All the varied
activities of legal order or the efforts of the courts, administrators, legislatures, jurists are to be
directed toward the adjustment of relations the compromise of conflicting claims, the securing of
interest by determining of boundaries wherein each maybe asserted with a minimum of friction and
the finding of means whereby greater number of claims may be satisfied with a sacrifice of fewer. If
law is viewed as social engineering, its end is conceived to be satisfaction of all demands and
securing of all interests with a minimum of conflict so that the means of satisfaction have the widest
possible distribution. It may be noted that Pound’s techniques of Social Engineering are – a.) Study
of actual social effects of legal institutions and legal doctrines b.) Study of the means of making the
legal rules effective

c.) Sociological study for law making

d.) Study of judicial method

e.) A sociological history

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f.) The importance of reasonable and just solutions of individual cases

g.) Of a ministry of justice to make efforts more effective toward the purpose of legal order. The
above facts and considerations should be taken into account by the jurists of sociological
jurisprudence to make law purposive, need based and goal oriented.

In essence the sociological jurists look at law functionally. They ask how the methods of
Jurisprudence work. What consequences have flowed from these methods in action? How far they
have enabled the law to achieve its end or on the other hand interfered with its achieving them?
Pound is pragmatic, functional and experimental advocating social ordering and control through
law,‘to promote and maintain ideal relations among mankind.’ Law, therefore as a science of social
engineering is more concerned with actual operation of law rather than its abstract content. Such an
approach considers law as an authoritative guide to decision making. It stresses on social purposes
which law serves rather than sanction. Just as engineers minimize friction and waste when dealing
with machines similarly jurists ought to enable to resolve conflicts in society in the interests of
harmony, reform and progress. This methodology is described by Pound as Social Engineering.

Criticism

Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the
actual working of law in society, his theory suffers from certain drawbacks. Pound’s theory of social
engineering has been criticized for the use of the term ‘engineering’ which equates society to a
factory like mechanism. Law is a social process rather than the result of an applied engineering
equating society with a factory is not correct because the former is changing and dynamic in nature
whereas the latter is more or less static. Again Pound’s emphasis on ‘engineering’ ignores the fact
that law evolves and develops in the society according to social media and wants for which law may
either have approbation or disapprobation. Dr. Allen has criticized the utilitarian in Pound’s theory as
it confines the interpretation of ‘wants and desire’ to only material welfare of individual’s life
completely ignoring the personal freedoms which are equally important for a happy social living. It
has also been argued against Pound’s theory of interests that it has no significance in a pluralistic
society where there are linguistic, ethnic, and religious minorities having diverse interests.
Harmonizing their divergent interest is by no means an easy task to be performed through law and
courts. Dr.Friedmann has expressed doubts about the value of classification of interests and remarked
that there are changing conceptions that had been accepted by Pound himself. Not only that, the
respective value of these interests and their evaluation also depends on changing political and legal
system. For example, a liberal progressive government would lay greater emphasis on freedom of

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individual rights and of established institution but a totalitarian state would suppress the interests of
individual in favour of the interest of the state.

Be that as it may, there is no doubt that through his legal theory Pound has attempted to bring law
into closer relation with other social sciences and tried to strike a balance between freedom of
individual and social control through the instrumentality of law. His greatest contribution to
jurisprudence is that he is practical in approach and concentrate of law in society.8 Law as a tool for
social engineering comes into play only when there is unequal distribution of wealth in society or
when social justice is denied to certain sections of the people, so to bring equilibrium. Law tries to
remove inequalities and to the benefit whole community rather than a few individuals.

SOCIOLOGICAL JURISPRUDENCE IN INDIAN CONTEXT

For an appraisal of sociological jurisprudence in its Indian perspective it would be necessary to

survey the present as well as the pre-independence Indian law. The law during the British Colonial
rule in India was coercive and counter-productive to social needs of the Indian people. It was
suppressive and insensitive to the sentiments and expectations of the Indians. The British rulers
paralysed the peace and prosperity of Indian by dividing Indians on the basis of caste, creed, religion,
language and occupation so as to perpetuate tension and conflict between different communities to
meet their self ends. Thus the law in India as it stood before the Indian independence was formal,
rigid, repressive, and punitive as contemplated by Austinian conception of imperative theory of law.
The legislature, executive and judiciary- three organs of the government used to law to protect the
interests of the British in complete disregard of the aspirations and needs of the Indian masses who
were exploited and denied even the basic human rights. In strict Austinian sense sanctions were
imposed on Indians in name of “justice is according to law”. The British residents in India enjoyed
many exemptions and special privileges under the then existing laws. Thus there was “one law for the
ruler and other for the rule.

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Conclusion

Auguste Comte applied scientific method to the study of sociology which he termed as “scientific
positivism”. According to him, society, like any other organism can progress when it is guided by
scientific principles. Herbert Spencer gave a scientific exposition to the organic theory of society.
Spencer deduced four sources of law, namely: Divine law having quasi religious sanctions.

The injunctions of the past leaders.

The will of the ruler.

Collective opinion in the society.

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 Bibliography

1) Paranjape, Dr. N.V, Jurisprudence and Legal Theory, 8th edition, central law
agency, Allahabad, 2016

2) Mahajan’s, V.D, Jurisprudence and Legal Theory, 5th edition, eastern book
company, lucknow, 2016

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