An assignment on sociological school of jurisprudence

Jurisprudence

Humbly submitted to dr. Eqbal HUSSAIN

professor, faculty of law.

by SALMAN HAIDER ZAIDI, -2nd year

regular.
TABLE OF CONTENTS

1) INTRODUCTION …………………………….......05

2) MEANING OF SOCIOLOGICAL
JURISPRUDENCE…………………………………….06

3) VIEW OF DIFFERENT JURISTS RELATED

TO THIS

APPROACH…………………………….07

4) SOCIOLOGICAL JURISPRUDENCE IN INDIAN

CONTEXT…... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 9

5) IMPORTANCE OF SOCIOLOGICAL

JURISPRUDENCE ON LEGISLATIVE

AND JUDICIARY SYSTEMS IN

INDIA………10

6) CONCLUSION……………………………….15

7) BIBLIOGRAPHY……………………………16
 Introduction

Sociological jurisprudence is a term coined by the American jurist Roscoe 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 JURISPRUDENCE is one of the most important schools of legal thought in the
twentieth century. Its major proponent in the United States was ROSCOE POUND (1870–
1964), a prolific writer who was dean of the Harvard Law School from 1916 to 1936. A
number of other legal educators and judges also contributed in varying degrees to the theory
or practice of sociological jurisprudence. The movement for a sociological jurisprudence
emerged during the Progressive era. Pound interpreted it as the "movement for pragmatism
as a philosophy of law," the purpose of which was to facilitate legal reform and social
progress. Although legal change should take place under the leadership of lawyers, the
agenda of sociological jurisprudence did not focus on changes in legal institutions. Rather, it
stressed reform of prevailing conceptions of the study, interpretation, and application of law.

MEANING OF SOCIOLOGICAL JURISPRUDENCE

Sociological school of jurisprudence has emerged as a result of synthesis of various

juristic thoughts. The exponent of this school considered law as a social phenomenon. They
are mainly concerned with the relationship of law to other contemporary social institutions.
 They insist that the jurists should focus their attention on social purposes and interest
served by law rather than on individuals and their abstract rights. According to this school,
the essential characteristic of law should be to represent common interaction of men in social
groups, whether past or present, ancient, or modem. The main concern of sociological jurists
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 affects the
sociology of law.
Many authorities contend that sociological jurisprudence originated as a reaction to rigid
legal positivism which relied on the fact that law is solely based on the coercive power of the
State and completely rejected the pursuits of morality and justice as irrelevant in human
relations. Likewise, it was also opposed to historical school's undue insistence on past
customs, traditions and values which had blocked the growth and development of law and
paved way to narrow nationalism in Germany and France.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 the social and individual problems. In their view, law is concerned with its effect on
society and therefore, it would be erroneous'to treat it as a mere command or God's will or
the people's conscience. The functional role of law and its effect on society constitute the
basic philosophy underlying sociological jurisprudence.
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 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.
 VIEWS OF DIFFERENT JURISTS RELATED TO THIS APPROACH

Montesquieu (1689-1755)

Montesquieu was a French legal thinker who is considered to be the forerunner of the
sociological school of jurisprudence. He was first in point of time to perceive the influence
of social conditions on law and legal institutions. In his book, The Sprit of Law, (L'Esprit des
bois), he emphasised that "laws of a particular nation should be determined by its national
characteristics and must bear relation to the climate of each country, the quality of each
soil,the situation and extent, the principal occupations of the natives and above all, to the
religion of the inhabitants, to their inclinations, riches, commerce, manners and customs'.
Therefore, though not a propounder of sociological jurisprudence, Montesquieu's name
deserves mention as a fore-runner of this school of thought. He acknowledged the importance
of history as a means of understanding the structure of society and drew attention to the role
of economic factors. He 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 situation and extent, the principle occupations of the native, and above all,
to the religion of inhabitants, riches, commerce , manners and customs.”

Auguste Comte

The noted French legal thinker and philosopher Auguste Compte is regarded as the
founding father of science of sociology because he was the first to employ the term sociology'
to connote an independent discipline. He applied scientific method to the study of sociology
which has been termed as 'scientific positivism'. According to him, society, like any other
organism can progress when it is guided by scientific principles. These principles should be
formulated by observation and experiment of facts and all other metaphysical considerations
should be excluded frorr its purview. He further pointed out that man cannot live in isolation
as he is essentially a social being and all his impulses originate from his social life which are
to be regulated and controlled by law and the government. Therefore, it is the 'society' and
not the 'individual' which should be the focal point of law. The legal theory of Auguste
 Compte greatly inspired Durkheim and later the great sociological jurist Leaon Duguit
founded his theory of social solidarity taking inspiration from these legal thinkers.

Herbert Spencer

Herbert Spencer was an English sociological thinker who traced the evolution of society
from simple to the modem complex structure. Thus he gave a scientific exposition to the
organic theory of society. Spencer deduced four sources of law, namely, (i) divine laws
having qudsi-religious sanctions; (ii) the injuctions of the past leaders; (iii) the will of the
ruler; and (iv) collective opinion of the society.1 He pointed out that divine laws are clearly
distinguishable from man-made laws. He considered law nothing more than a hardened
custom. The purpose of law according to Spencer is to resolve the conflicting interests of the
individuals in the society. According to Dr. Allen, the essence of Spencer's organic theory
lay, "in the inter-dependence of organism, in its sociological aspect, which means the mental
relation of all members of civilised society and the distribution of a sense of responsibility
far wider than can be comprised with the formula 'sovereign and subject'. It directed attention
to the necessity of considering law in relation to other social phenomenon".2 Spencer's theory
inspired subsequent jurists to carry further their socio-legal researches and relation of law
and society.

1 Spencer Herbert: Principles of Sociology p. 537.

2 Dr. Allen C.K.: Law in the Making (7th ed. 1964) p. 85.
 ROSCOE POUND

He is said to be the father of this approach.As Dean Roscoe Pound rightly pointed out, "the
sociological jurists look more for the working of law than for its abstract content".

The main characteristic features of sociological jurisprudence3 as stated by Roscoe Pound are
as follows;—
(1)The exponents of sociological school lay greater stress on functional aspect of law rather
than its abstract contents. In their view, law cannot be L, insulated from the social
complexities and objectives and practical problems of life.
(2)They consider law as a social institution essentially inter-linked with other disciplines
bearing direct impact on the society and uphold the view that law is designed on the basis
of human experience in order to meet the needs of the society. Law is in fact a synthesis
of philosophy, psychology, political science, economics, sociology etc. and has to be
understood in terms of its utility, purpose, effect, practices and functions.

(3)Sociological school completely discards the abstract notions of analytical positivism which
lay over-emphasis on command or power aspect of law as also the dead weight of past
culture and traditions which constituted the main theme of the historical jurisprudence.

(4)Sociological jurists, however, differ in their approach to the perception of law. Some prefer
to adopt a pragmatic empirical recourse to study the functional aspect of law while others
emphasise on defining law in terms of court's rulings and decisions thus adopting a
realistic approach to law. For instance, Holmes has defined law in terms of judicial
prediction through the verdicts of law courts whereas Roscoe Pound treats law as an
instrument for the adjustment of human conditions to the social forces operating in a given
society.
In other words, sociological jurisprudence is a multifaceted approach to resolve immediate
problems of society with tools which may be legal or extra- legal and techniques which
promote harmony and balance of interests of society.

3 Roncou Pound ! The Sco|«f And Purpoil of Soclolojjicnl Jurisprudence (1911) 25 Hnr. L. Rev; 489.
Rudolph Von Ihring (1818-1892)
Ihring was educated at Berlin in Germany. He was Professor at Basel, Rostock, Keil, Vienna,
Strausburg and Gottingen. His monumental work, Spirit of Law was published in four volumes
during 1852-1865. Later, he published his principal work which was translated as 'Law As Means
To An End' in 1913. In this work he criticised the notion of individual freedom and liberty as
advocated by Kant and Bentham as they had divorced legal theory from social realities. He thus
opposed the doctrine of individualism, which in his view was incompatible to the cause of social
justice. Ihring opined that social interest of the society must gain priority over individual interest
and the purpose of law should be to protect the interest of the society. In his view, social
interest must gain priority over individual interest. Exposing the absurdities and weaknesses of
individualism, which had made the ’individual’ as the focus of moral, political and legal order,
Ihring condemned it as being anti-social and incompatible to the claims of social justice. Thus,
he was a great critic of Austinian positivism, Benthamite individualism and Herbert Spencers

biological theory of evolution of law all of them being theories which were divorced from
social realities. His legal philosophy is therefore, known as the ’jurisprudence of interests'
which emphasises on sociological aspects of law. The main tenets of Ihring's jurisprudence of
interests may briefly be stated under the following heads :—

1. Law is result of constant struggle.—Ihring pointed out that the origin of law is to be
found in social struggles. He accepted that the role of law is to harmonise conflicting interest of
individuals for the purpose of protection of the interest of the society as a whole. He rejected
the philosophical view that law evolves spontaneously like language and thus he gave
importance to 'living law' which was later developed by his disciple Eugen Ehrlich. The legal
philosophy of Ihring greatly influenced the American sociological school which eventually
culminated into Realist School of Jurisprudence.

2. Law is to serve a social purpose.—Ihring considered law as a means to an end. The

ultimate end of law is social purpose and not the individual purpose or interest. It is the duty of
the State to promote social interest by avoiding a clash between the individual and social
interest. He even justifies coercion by the State for the purpose of protection of the social
interest. For him, 'law is a coercion organised in a set form by the State’.

3. Law alone is not a means to control the society.—Ihring made it clear that law alone
was not the means to control the social organism. There are some other conditions such as
 climate, topography etc. wherein law need not intervene. There are, however, certain
aspects of social life which can be regulated and controlled exclusively by the intervention
of law, such as raising of taxes and revenues. Like Bentham, Ihring also defines 'interest' in
terms of pleasure and pain, that is, pursuit of pleasure and avoidance of pain may be called
as 'interest'. It is mainly for this reason that Ihring's theory has been called as "social
utilitarianism". He considers punishment as a means to a social end. He is opposed to
retributive penal policy.

Ihring's Contribution
Ihring's contribution to the science of jurisprudence has been acknowledged by Friedmann
who calls him the 'father of modem sociological jurisprudence'. Ihring traced the development
of various legal systems by adopting comparative method of study and came to the conclusion
that law develops by conscious efforts. He was a critic of Savigny's historical theory and natural
law theories propounded by his predecessors.

Ihring laid the foundation of modem sociological jurisprudence by this insistence on heating
law as one of the important factors to control the social organism. According to him, (i) law has

a coercive character; (ii) it has only a relative value; and (iii) it has to be evaluated in the social
context. Thus he treated law as an effective instrument for the attainment of social purpose.
His theory was later developed by Duguit, Roscoe Pound and others.

According to Ihring, "the social activities of people are controlled by reward and coercion;
duty and love". For him, laws were only one way to achieve the end, namely, social control. He
emphasised that law was an instrument for serving the needs of society where there is
inevitable conflict between the social needs of man and each individual's self-interest. He
believed that law does not exist for the individual as an end in himself, but serves his interest
with the good of society. Thus, property for him was both, a social and individual institution.

Criticism Against Ihring's Theory

Ihring's legal theory has been criticised for two reasons. Firstly, in suggesting that the
function of law is to reconcile the conflicting interests, he is pointing out the problem, but does
not come out with any solution to it. Secondly, the main criticism against Ihring's theory of
purpose is that law in fact protects 'will' and not the 'purpose'. But this criticism has not
attracted much attention because many jurists including Korkunov believe that law seeks to
protect 'purpose' and not the 'will' of the society. Ihring's theory was mainly based on the
 Benthanmite principle of utilitarianism and he sought to reconcile competing social and
individual interests.

The true position as per Ihring is that law is a process to achieve a proper balance between
social and individual interests. Thus, law has a purpose to promote social interest and as such
there can be no law which does not owe its origin to a definite purpose. Ihring's theory of
purposive law inspired
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 ruled”
 IMPORTANCE OF SOCIOLOGICAL JURISPRUDENCE IN

GROWTH OF LEGISLATURE AND JUDICIARY SYSTEM IN

INDIA

With the introduction of sociological jurisprudence in India there has been a tremendous growth

in the Legislature and Judiciary functions of Indian constitution. Both these functions of the

Parliament of India advanced to great heights because of the introduction of this context.

INFLUENCE OF SOCIOLOGICAL JURISPRUDENCE

ON JUDICIARY SYSTEM OF INDIA

With the wave of nationalism and awakening of intellectuals, demands for civil liberty and basic

human rights were persistently made but it fell on deaf ears and suppression, oppression, and

exploitation of the people continued unabated under the British Colonial Rule. The lawyers and

judges interpreted and applied law mechanically without considering the “felt needs” of the

people. The Indian National Leaders, notably, Mahatma Gandhi, Pandit Jawaharhar Lal Nehru

and other were convinced that British Law had failed to meet the needs of the Indian Society

because of the rigid adherence to the Doctrine of precedent. Pandit Nehru observed more than

once that the nineteenth century dogmas and legal precepts had little validity in the changed

conditions of the twentieth century and therefore, undue reliance on precedent was of little use

as it may fail to give a new sociological approach to law.

With the independence of India, a new constitution was adopted for the country for

embodying the social philosophy and economic values towards attainment of an egalitarian

welfare state. A separate chapter on fundamental rights including individual rights and freedoms

and a chapter on Directive Principles on State Policy comprising social rights has been
incorporated in constitution of India 4 and the judges have endeavoured to harmonise the

individual rights with the social interests of the community through their judicial decisions. The

function of law is now to resolve the conflict between Fundamental Rights and Directive

Principles of state Policy as both are aimed at ushering a egalitarian society for the welfare of the

nation as a whole.5 The philosophy enriched in the preamble and the chapters on fundamental

rights, directive principles, fundamental duties6 , provisions relating to the powers and functions

judiciary and amendment of the Constitution amply demonstrate that the entire focus is on the

welfare of the Indian masses and making law responsive to the social needs.

The developing trends in public litigation has opened new vistas for interpreting law in the

context of social settings. The contribution of judges notably, Dr. P.B Gajendragadkar, P.N

Bhagwati, D.A Desai, Krishna Iyer and others to the development of new Indian jurisprudence

based on hard realities of life further shows that law can be effectively be used as a tool of social

transformation for creating a new social order with primacy to social justice.

In Indira sawhney v. Unionj of India,7Mr. Justice P.B Sawant observed:

“The Constitution of India being essentially a political document has to be interpreted to meet

the “felt necessities of time”. Our constitution, unlike many others, incorporates in the framework

of the social change that is desired to be brought about. The change has to be ushered in as

expeditiously as possible but at the same time with the least friction and dislocation in National

life”.

4
Part III of the Constitution of India relates to the Fundamental Rights and Part IV embodies the Directive
Principles of State Policy.
5
Keshavanand Bharti(AIR 1973 SC 1461: Minerva Mills v. Union of India, 1980 SC 1789.Waman Rao v. union
India ,AIR 1980 SC 271)
6
Art. 51-A
7
AIR 1993 SC 447(634)
In S.R Bommai v. Union of India,8 a special nine Judge Bench of the Supreme Court passed a

landmark verdict on the issue of the secularism and held that the State is enjoined that to award

equal treatment to all religions and religious denomination. The court remarked:

“Secularism is part of the fundamental law and the basic structure of the Indian Political system

to secure all its system to secure to all its people socio-economic needs essential for man’s

excellence with material and moral prosperity and political justice.”

INFLUENCE OF SOCIOLOGICAL JURISPRUDENCE

ON LEGISLATIVE SYSTEM OF INDIA

The welfare legislations enacted during the post-independence era amply demonstrate that the

British-Oriented Austinain concept of law has no place in modern Indian democracy and an

instrument of social change. The establishment of Human Rights Commission, Women’s

Commission, Family Courts, Industrial tribunals, Administrative Tribunals, Ombudsman,

Panchayti Raj, Lok Adalats etc. are only a few illustrations to suggest that sole objective is to

make justice available to a common man and weaker sections of the society.

The laws relating to consumer protection, doery prohibition, abolition of bonded

labour, control of environmental pollution etc. have been enacted to provide social justice

echoing the hopes and aspirations of the people. Some of post independence socio-economic

legislations to meet the social meets the social needs and establish a social order as contemplated

by the constitution, are enumerated as follows:-

8
AIR SC 1918
1. The Civil Rights Act, 1955

2. The Immoral Traffic (Prevention) Act,1976

3. The Probation of Offenders Act, 1958

4. The Medical Termination of Pregnancy Act, 1971

6. The Family Courts Act, 1984

7. The Child Labour (Prohibition and Regulation) Act, 1986

8. The Legal Services Authorities Act, 1987

9. The Environmental (Protection) Act, 1986

10. The Juvenile Justice (Care and Protection of Children) Act,2000

11. The SC &ST Act, 1989

12. The Child Marriage Restraint (Amendment) Act, 1978

13. The National Commission for Women Act, 1990

14. The Public Liability Insurance Rights Act, 1993

15. FEMA,MRTP,COFEPOSA Acts etc.9

9
The list is only illustrative and not exclusive.
 CONCLUSION
“Rules derived by a process of logical deduction from pre-established conceptions of
contract and obligation have broken down before the slow and steady and erosive actions
of utility and justice. We see the same process at work in other fields. We no longer interpret
contracts with meticulous adherence to the letter when in conflict with the spirit. We read
covenants into them by implication when we find them in conflict with them ‘instinct
with an obligation’ imperfectly expressed.

The law has outgrown its primitive stage of formalism when the precise word was
the sovereign talisman and every slip was fatal.” “There has been much debate among the
foreign jurists whether the norms of right and useful conduct, the patterns of social
welfare, are to be found by the judge in conformity with an objective or a subjective
standard… His duty to declare the law in accordance with reason and justice is seen to be
a phase of his duty to declare it in accordance with custom. It is the customary morality of
right-minded men and women which he is to enforce by his decree.”

The above two paragraphs of J. Cardozo clearly define the progress of the legal system
while also summarising the duty of the judge in the evolution of this social process. The role
of the judge, therefore, to ensure social progress rests undisputed. Evaluating the part played by
the Supreme Court in this role, it goes without saying that the Court have indeed came up to
the occasion almost whenever it was required to interpret and mould social norms and practices
in line with the social aim that it envisaged for the national strata.
 BIBLIOGRAPHY

BOOK SOURCES:

Pranjapee, N.V.Studies in Jurisprudence.Central Law Agency :

Allahabad 2004