JAMIA MILIA ISLAMIA

FACULTY OF LAW

JURISPRUDENCE PROJECT
SOCIOLOGICAL SCHOOL OF
JURISPRUDENCE

SUBMITTED TO : SUBMITTED BY
PROF. IQBAL HUSSAIN SHADAB PRAVEEN
B.A. LL.B. 2ND YEAR
( REGULAR )
INDEX

INTRODUCTION

MEANING

VIEW OF DIFFERENT JURIST

THEORY OF SOCIAL ENGINEERING

INDIAN CONTEXT

SOCIOLOGY OF LAW

CONCLUSION

BIBLIOGRAPHY

WEB REFRENCE
INTRODUCTION

Sociological jurisprudence
is a term coined by the American jurist RoscoePound (1870±1964) to describe his
approach to the understanding of the law.Central to Pound's conception was the very
suggestive idea that in modernsocieties the law represents the principal means through
which divergentinterests are brought into some sort of alignment with one
another.Unfortunately, perhaps because he was a jurist rather than a sociologist, he didnot
combine this insightful conception with a developed understanding of howthese interests
were formed and why some of them came to be privileged over others within the legal
system. A sociologically informed account of Pound'swork, which places it in the context
of the historical development of thesociology of law, will be found in Alan Hunt, The
Sociological Movement inLaw, 1978.

Sociological JURISPRUDENCE is one of the most important schoolsof legal thought in

the twentieth century. Its major proponent in the UnitedStates 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 educatorsand judges also contributed in varying degrees to
the theory or practice of sociological jurisprudence1. The movement for a sociological
jurisprudenceemerged during the Progressive era. Pound interpreted it as the "movement
for pragmatism as a philosophy of law," the purpose of which was to facilitate legalreform
and social progress. Although legal change should take place under theleadership of
lawyers, the agenda of sociological jurisprudence did not focus onchanges in legal
institutions. Rather, it stressed reform of prevailing conceptionsof 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

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 focustheir attention in social
purposes and interest served by law rather than onindividuals and their abstract rights.
According to this school the essentialcharacteristics of law should be to represent
common interaction of men insocial groups, whether past or present, ancient or

1
https://www.britannica.com/t
modern.The main concern of sociological jurist is to study the effect of lawand 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 sociologyof law.The main
exponents of the sociological jurisprudence which has beencharacterised as ³interest
oriented, interest loaded, and interest directed´ wereAuguste 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 SupremeCourt were also inspired by Dean Pound¶s Sociological theory of
law. 2

VIEWS OF DIFFERENT JURIST RELATED TO THE APPROACH

Montesquieu
Montesquieu was the French philosopher and 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 also recognized
the importance of history as a means for understanding the structure of society.
And explained the importance of studying the history of society before
formulating the law for that 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, whether husbandmen, huntsmen or
shepherd, 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

emphasised that law of a particular nation should be determined by its national

characteristics and must bear the relation to the climate of eachcountry, 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
applied scientific method to the study of sociology which hetermed as ³scientific
positivism´. According to him, society, like any other organism can progress when it is
guided by scientific principles.
2
V.D.MAHAJAN, JURISPRUDENCE AND LEGAL THEORY,5th ed reprint 2006, Eastern book company, Lucknow,
page no. 605, paragraph 1
Eugen Ehrlich (1862-1922)
Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of
law is the study of law from the sociological perspective. Ehrlich considered
society as a main source of the law. And by society, he means “association of
men”.

Ehrlich had written that “Centre of gravity of all legal developments is not in
legislation or judicial decisions but in society itself.”

He argued that society is the main source of law and better source of law than
legislation or judicial decision.

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.
ROSCOE POUND
is said to be the father of this approach. He said "The lawmust 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 judgeswoodenly applied precedent to the facts of cases without
regard to theconsequences. 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 producetotally unexpected
and undesirable results in a distant part.

Theory of Social Engineering

Roscoe Pound gives the theory of Social Engineering in which he compared

lawyers with the Engineers. Engineers are required to use their engineering skill
to manufacture new products. Similarly, social engineers are required to build
that type of structure in the society which provides maximum happiness and
minimum friction.

According to Pound, “Law is social engineering which means a balance

between the competing interests in society,” in which applied science is used for
resolving individual and social problems.

Social Engineering is the balancing the conflicting interest of Individual and the
state with the help of law. Law is a body of knowledge with the help of law the
large part of Social engineering is carried on. Law is used to solve the
conflicting interest and problems in society.3

He mentioned that everybody has its own individual interest and considered it
supreme over all other interest. The objective of the law is to create a balance
between the interests of the people. For Example, Article 19 of the Indian
Constitution provides ‘Rights to speech and expression’ but on the other side,
State put some restriction on this right. And when the conflict arises between
Individual right and State’s restriction, then the law comes to play its part. And
solve the conflict between the interests.

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 andinsensitive 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 andconflict between different communities to meet their self
ends. Thus the law inIndia 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
governmentused to law to protect the interests of the British in complete disregard of
theaspirations and needs of the Indian masses who were exploited and denied eventhe basic
human rights. In strict Austinian sense sanctions were imposed onIndians in name of
³justice is according to law´. The British residents in Indiaenjoyed many exemptions and

3
Dr. B N Mani Tripathi, Jurisprudence Legal Theory,16th ed., Allahabad Book Agency, page no.49, paragraph 1
special privileges under the then existing laws.Thus there was ³one law for the ruler and
other for the ruled´.

Sociology of law

Sociology of law studies sociology from the legal point of view. In India,
Sociology of law is a recent field of inquiry. Indian advocates of Sociological
jurisprudence are P.B Gajendragakhar, and Upendra Baxi views society from
the legal point of view.

The Sociology of law is the interdisciplinary approach or sub-discipline of

sociology. It views the society from the legal side. And explains the
interdependence of Society and law. Sociology law explains the
interdependence of the law and society. Podgorecki has listed the following
functions of the sociology of law: 4

(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.

Conclusion

Sociological School of Jurisprudence studies the relationship between and

society. It explains the interdependence of law and society. One can’t formulate
better and effective law without looking and studying the need and structure of

4
K.L. Sharma, Sociology of law and legal profession: A cross-cultural theoretical perspective. Available
at http://14.139.60.114:8080/jspui/bitstream/123456789/719/49/Sociology%20of%20Law%
society. For the betterment and harmonious society, we need better and
effective laws.

For Example, After the 2012 Delhi gang Rape happened (Nirbhaya Gang Rape).
Rape laws are amended in India.

Every problem in Indian has two aspects, one is legal and other is Sociological
aspect. like, the legal aspect of Female Infanticide is in 1795, infanticide was
declared to be murder by Bengal Regulation XXI. The British government took
steps against the evil of female infanticide and propaganda the same. And its
sociological aspect is that nature designed both sexes for the perpetuation of the
human races. Gender equality and the empowerment of women were considered
one of the eight Millennium Development Goals by the United Nations
Population Fund in 2001.

Jurists of Sociological School of Jurisprudence are August Comte, Eugen

Ehrlich, Roscoe Pound, and Duguit. August Comte was of the view that Society
is an organism and it could progress when it is guided by Scientific Principles.
While the Eugen Ehrlich argued that the “Society is the main source of law” and
Roscoe Pound compared the lawyers with Engineers. And argued that the
objective of the law is to solve the conflict between the Individual Interest and
State Interest.
BIBLIOGRAPHY
V.D.MAHAJAN, JURISPRUDENCE AND LEGAL THEORY,5th ed reprint 2006

Dr. B N Mani Tripathi, Jurisprudence Legal Theory,16th ed., Allahabad Book Agency,

K.L. Sharma, Sociology of law and legal profession: A cross-cultural theoretical

perspective.

WEB REFRENCE

WWW.livelaw.com

www.wikipedia.com

www.indiankanoon.com

www.ipleader.com