Sociological School of Jurisprudence

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.

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 basic characteristics of the sociological jurisprudence are as follows:

a. It is concerned with the working of law rather than the nature of law.

b. It considers law as a social institution which can be consciously made and change, modified or
retained on the basis of experience.

c. It focuses on social purposes and social goals which are the laws subserves rather than
sanctions and coercive character of law.

d. It focuses on legal institutions, doctrines and precepts functionality and considers the form of
legal precepts as a matter of means only to satisfy greatest good of the greatest number.

The emergence of the sociological jurisprudence is attributable to a number of factors including:

a. The mental bankruptcy of the analytical approach to meet the social demands of modern
society;

b. Conflicts between individual interests and social interests and the need to reconcile them.

c. Inter-connection between law and society

The Jurists behind the Sociological School of Jurisprudence are as follows:

Montesquieu (1689-1755)

August Comte (1798-1857)

Leon Duguit (1859-1928)

Eugen Ehrlich (1862-1922)

Roscoe Pound (1870-1964)

Ihering (1818-1892)

a. Montesquieu

He opined,” 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.

b. Eugen Ehrlich

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.

c. 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.

d. 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.

e. Duguit.

He 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.

f. Ihering

He 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.

Sociology of law

Sociology of law on the other hand refers to the sociological study of law and law-related
phenomena, whereby law is typically conceived as the whole of legal norms in society as well as
the practices and institutions that are associated with those norms. Dating back to the classic
works by Emile Durkheim and Max Weber, the sociology of law has partly also evolved in
conjunction with intellectual efforts within legal scholarship, where a specialty of sociological
jurisprudence developed. The sociology of law was for some time primarily part of the
multidisciplinary field of law-and-society studies or the law and society movement, but it has in
more recent years grown into a relatively autonomous branch of theory and research in
sociology. It is from within the theoretical and methodological contours of the sociological
discipline that the sociology of law derives its unique approach and value as a contribution to the
social-scientific study of law. The number, quality, and variety of available writings in and about
the sociology of law reflect its scholarly and institutional growth as a respected sociological