Tutorial Questions 7

1- What is sociological jurisprudence?

Roscoe Pound defined the goals of sociological jurisprudence in an essay on the philosophy of
law: What we-are seeking to do and must do in a civilized society is to adjust relations and order
conduct in a world in which the goods of existence, the scope for free activity, and the objects
on which to exert free activity are limited, and the demands upon those goods and those objects
are infinite. To order the activities of men in their endeavor to satisfy their demands so as to
enable satisfaction of as much of the whole scheme of demands with the least friction and
waste has not merely been what lawmakers and tribunals and jurists have been striving for, it
has also been put in one way or another by philosophers as what we ought to be doing. This
statement contains a summary of Pound's program. In the perfect society all claims put forward
by individuals would be immediately satisfied. However, such a utopia does not exist in the
world and people cannot satisfy each of their demands. Further, men come into conflict when
they desire the same scarce goods. The basic tenets of sociological jurisprudence place Pound
in the tradition of Hobbes: And therefore if any two men desire the same thing, which
nevertheless they cannot both enjoy, they become enemies: and in the way to their end, which
is principally their own conservation, and sometimes their delectation only, endeavor to destroy
or subdue one another. Pound articulated a conflict theory founded on individual interest. To
escape from a state of nature men devise systems of law which enable them to fulfill "as much
of the whole scheme of demands with the least friction and waste." The legal system is made
effective through a monopoly of coercive power: I think of law as in one sense a highly
specialized form of social control in a developed politically organized society -a social control
through the systematic and orderly application of the force of such a society. Thus, sociological
jurisprudence introduces two components into its definition of law. On the one hand, law is a
means of alleviating conflict through the imposition of organized force. On the other, law
functions to secure the realization of as many individual interests as possible. An appropriate
question arises here whether the second assertion is meant to state a fact or prescribe an ideal.

2- Explain Roscoe Pounds’ theory of interest

According to Pound, the function of law is to protect certain interests and to satisfy as many
interests as possible. Pound elaborates different types of ‘interests’:
• Individual interests: interests of the personality (the physical person, freedom of will, honour
and reputation, privacy; and belief and opinion);

• Domestic relations;

• Interests of substance: property, freedom of industry and contract, freedom of association, and
similar interests;

• Public interest: interest of the state as juristic person,

• Social interest: general security, safety, health, peace and order, the conservation of social
resources, etc.

When interest conflicts, they may be ‘weighted’ or ‘balanced’ only against other interests ‘on the
same plan’.Pound believes in the consensus model of society, whereas many sociologists
adopts a conflict model of society. Pound’s classification of the institutions of law: rules,
principles, conceptions, doctrines, and standards. Individual interest are demands which
particular people consciously and immediately recognize as their own, such as a demand for
non-discriminatory treatment in hiring. Public interests are the claims pressed on behalf of a
politically organized society, such as the desire for a new courthouse. Demands of the social
group are social interests. These include the security of social institutions defined as the
protection of economic, social and religious organizations; the general morals defined as the
enforcement of social standards; the general progress defined as the increase of man's control
over nature; the conservation of social resources defined as efficient use of the goods of
existence; the general security defined as the defense of order; and the individual life. The
social interest in the individual life consists of three demands: the desire for self-assertion, the
demand for fair opportunity and the interest in a minimum standard of life.'

3- What is meant by “living law”?

According to Ehrlich, the real source of law is not statutes or reported cases but the activities of
society itself. Ehrlich expounded the organic concept of living law. Ehrlich while following the
Savigny’s line of thinking does not hang on the past but has his views on the present society.
The ‘living law’ as conceived by Ehrlich is the ‘inner order of associations’ that is the law
practiced by society as opposed to law enforced by the State. As volksgeist was the central
theme of Savigny’s theory, the ‘living law of the people’ was the pivot of Ehrlich’s theory.
The central point in Ehrlich’s theory is that ‘the law of a community is to be found in social facts
and not in formal sources of law’. He says: “At present as well as at any other time the centre of
gravity of legal development lies not in legislation nor in juristic science, nor in judicial decision,
but in society itself.”The law in the formal sources, like legislation and precedent, does not
reflect the actual life of the people. By reading the Advocates Act one cannot have a full
knowledge of the actual rules of conduct observed by the legal profession. There are many
norms followed by the people and deemed binding on them which are not embodied in the law.

State is an organization of the people, but it is not the only one, there are several others like the
family, the village, the chamber of commerce, the trade union. These organizations also have
norms to regulate the conduct of individuals. They are strictly observed by the individual
because of the social pressure behind them. They also form rules of conduct and therefore part
of ‘the living law of the people’. Ehrlich’s concept of ‘living law’ is very similar to the Roscoe
Pound’s ‘law in action’ (1910). ‘Norms of decision’ (rules found in the civil codes, judicial
decisions and statutes) are the norms to be enforced by the courts when parties resort to
litigation, whereas ‘living law’ is ‘the law which dominates life itself even though it has not be
posited in legal propositions’. To discover ‘living law’, we need to observe how far the formal law
is followed, modified and implemented:

• By judicial decision, which are only evidentiary;

• By modern business documents, against which judicial decisions need to be checked;

• By observation of people, by living among them and noting their behaviour.

4- Draw a comparison between Pound’s and Ehrlich’s view of sociology of law

Ehrlich stated that law w is derived from social facts and depends not on state authority, but on
social compulsion. The real source of law is not statutes or reported cases, but the activities
within society itself: “The centre of legal development lies not in legislation or juristic science,
but in society itself.” There is a distinction between:

- Norms of decisions, those traditionally understood to be laws

- Norms of conduct, those which govern life in society

Laws found in the formal legal sources provide an inadequate picture of what really goes on in a
community, the norms which govern life are only partially reflected in them. There is a “living
law” underlying the formal rules of the legal system and it is the task of the judge and jurist to
integrate the two types of law. Where, only a small fraction of social life appears before the
courts, the living law of the society has to be sought outside the confines of the formal legal
material and in society itself.

Pound on the other hand stated law as a form of social control, to be adequately employed in
enabling just claims and desires to be satisfied, must be developed in relation to existing social
needs. Law is considered a social institution, created and designed to satisfy human wants,
which helps attain the most wants with the least sacrifices through a politically organized
society. Pound was concerned primarily with the effects of law upon society through law’s
reforming capacity; what law ought to aspire towards. Thus, he wished to develop a technology
to redraft the law to take account of social reality.

5- Explain Durkheim’s concept of social solidarity

For Durkheim, society produces two distinct forms of social solidarity: ‘mechanical’ solidarity and
‘organic’ solidarity. The former is to be found in simple, homogeneous societies which have a
uniformity of values and lack any significant division of labour. ‘Collectivism’ is highly developed
while ‘individualism’ is barely present. The latter, on the other hand, is to be found in societies
which have a developed division of labour and, hence, exhibit a strong degree of
‘interdependence’. Instead of homogeneity there is considerable differentiation; ‘individualism’
replaces ‘collectivism’.

The law reflects ‘all the essential varieties of social solidarity’. As he says in an oft - quoted
statement:

Since law reproduces the principal forms of social solidarity, we have only to classify the
different types of law to find therefrom the diff erent types of social solidarity which correspond
to it.

Durkheim identified also an important relationship between mechanical solidarity and repressive
law; and between organic solidarity and restitutive law. This is explained by reference to the
features of these two forms of cohesion described above. Law in the former is essentially penal,
but, with increasing differentiation, disputes tend to be resolved by recourse to restitutive law
(which includes all civil law, procedural law, and major parts of constitutional and administrative
law).

In this analysis, Durkheim treats law and morality as virtually synonymous. Law is derived from
and is an expression of society’s morality. In the absence of moral commitment to support it, law
ceases being a part of society.

6- Discuss function of punishment according to Durkheim

For Durkheim crime is closely connected to the social values expressed in the ‘collective
conscience’: an act is criminal when it offends strong and defined states of the collective
conscience . . .[W]e must not say that an action shocks the common conscience because it is
criminal, but rather that it is criminal because it shocks the common conscience. Crime is an
inevitable feature of social life; indeed, it is a factor in public health, an integral part of all healthy
societies. And punishment is a crucial element in his notion of crime: the state acts to reinforce
the ‘collective conscience’ by punishing those who offend against the state itself. Punishment is
defined as ‘a passionate reaction of graduated intensity that society exercises through the
medium of a body acting upon those of its members who have violated certain rules of conduct’.
He is in no doubt that the function of punishment is vengeance and that it is a necessary ‘act of
defence’.

In his essay ‘Two Laws of Penal Evolution’ he propounds the following two ‘laws’: The intensity
of punishment is the greater the more closely societies approximate to a less developed type—
and the more the central power assumes an absolute character. Deprivations of liberty, and of
liberty alone, varying in time according to the seriousness of the crime, tend to become more
and more the normal means of social control. The former is qualitative, the latter quantitative.
His argument, in relation to the first, is that in primitive societies the death penalty is
‘augmented’ by a variety of gruesomely imaginative ‘torments’: ‘death by ashes’ (suffocation
under a pile of ashes), crucifixion, burning alive, being cooked alive, being crushed under an
elephant, and other similarly grisly methods. Durkheim’s point is that as societies progress, the
form of punishment becomes less violent and less harsh. But since punishment results from
crime, he identifies a correlation between the evolution of crime and the forms of social
solidarity. He distinguishes between two types of crime: ‘religious criminality’ (acts ‘which are
directed against collective things’) and ‘human criminality’ (acts ‘which only injure the
individual’). Each type will attract its own form of punishment, and it will therefore change
according to the type of crime. He concludes: Seeing as, in the course of time, crime is reduced
more and more to offences against persons alone, while religious forms of criminality decline, it
is inevitable that punishment on the average should become weaker.

7- Illustrate Max Webber’s typology of law

Weber’s definition of law resembles the traditional positivist, formal conception: An order will be
called law if it is externally guaranteed by the probability that coercion (physical or
psychological), to bring about conformity or avenge violation, will be applied by a staff of people
holding themselves specially ready for that purpose. His typology of law is based on the various
types of legal thought, and ‘rationality’ is the key. Thus he distinguishes between ‘formal’
systems and ‘substantive’ systems. It is important to note that the crux of this distinction is the
extent to which the system is ‘internally self-sufficient’, that is, the rules and procedures required
for decision-making are available within the system. The second distinction is between ‘rational’
and ‘irrational’: these terms describe the manner in which the materials (rules, procedures) are
applied in the system. Thus the highest stage of rationality is reached where there is an
‘integration of all analytically derived legal propositions in such a way that they constitute a
logically clear, internally consistent, and, at least in theory, gapless system of rules, under
which, it is implied, all conceivable fact situations must be capable of being logically subsumed.’

Examples of each type of legal thought are given by Weber, as follows:

● Substantively irrational law. Weber calls this ‘Khadi justice’ (after the procedure used in
Islamic law) where decisions are made ad hoc, based on ethical, emotional, and political
considerations; cases are decided on their own merits without reference to general principles.

● Substantively rational law. This is exemplified by certain theocratic legal systems and ‘the
patriarchal system of justice’ which recognizes no separation between law and morals. There is
some attempt to construct a doctrinal system of rules and principles.

● Formally rational law. This is exemplified by the codes of civil law countries which are derived
from Roman law. It is a gapless legal system which contains answers to all legal problems.

● Formally irrational law. Examples are to be found in primitive systems which employ trial by
ordeal or oracle. Decisions are made on the basis of tests beyond the control of human intellect.

8- Discuss theory of legitimate domination

Weber’s attempt to explain why people believe they are obliged to obey the law leads him to
draw his well-known distinction between three types of legitimate domination: traditional (where
‘legitimacy is claimed for it and believed in by sanctity of age-old rules and powers’), charismatic
(based on ‘devotion to the exceptional sanctity, heroism or exemplary character of an individual
person’), and legal-rational domination (which rests on ‘a belief in the legality of enacted rules
and the right of those elevated to authority under such rules to issue commands’). It is, of
course, this third type that is a central feature of Weber’s account of law. And, though the
concept of legal-rational authority is bound up with his theory of value (which argues for the
sociologist of law adopting a detached view of his subject), the important correlation is between
this form of domination and the modern bureaucratic state. Under the other forms of domination,
authority resides in persons; under bureaucracy it is vested in rules. The hallmark of legal-
rational authority is its so-called impartiality. But it depends upon what Weber calls the principle
of ‘formalistic impersonality’: officials exercise their responsibilities ‘without hatred or passion,
and hence without affection or enthusiasm. The dominant norms are concepts of straightforward
duty without regard to personal considerations.’

It is important to note that for Weber political domination draws its legitimacy from the existence
of a system of rationally made laws which stipulate the circumstances under which power may
be exercised. This form of legitimacy is, in Weber’s view, the core of all stable authority in
modern societies. Thus, legal rational rules determine the scope of power and provide its
legitimacy: In Weber’s view, in order to understand political legitimacy under conditions of legal
domination it is not necessary to evaluate the content of the law. The existence of law—in
particular conditions and in a particular form—provides its own ideological basis whatever its
substantive content. And the action of the State, in accordance with law, derives legitimacy from
law. In other words, legal domination is not dependent upon the extent to which the law reflects
the values to which people who accept its legitimacy subscribe.

9- Explain the relationship between capitalism and law

Weber’s general thesis is that the formal rationalization of law in Western societies is a result of
‘capitalism . . . interested in strictly formal law and legal procedure’ and ‘the rationalism of
officialdom in absolutist States [which] led to the interest in codified systems and in
homogeneous law’. Weber is commonly associated with the view that economic forces do not
affect the law. But, while this does not misrepresent his argument, it is a crude
oversimplification. What Weber actually seeks to show is that law is affected only indirectly by
economic circumstances. He conceives of law as being ‘relatively autonomous’. He claims that
‘generally it appears. . .that the development of the legal structure has by no means been
predominantly determined by economic factors.’ It is more accurate, therefore, to say that for
Weber, law is fundamentally related to, but not determined by economic factors. According to
Wacks, “it is more accurate . . . to say that for Weber, law is fundamentally related to, but not
determined by economic factors.”

Rational economic conduct (‘profit-making activity’ and ‘budgetary management’) is at the heart
of the capitalist system; this rationalism is facilitated by the certainty and predictability of
logically formal rational law. However, the puzzle for Weber was that English common law is not
considered as a formal rational legal system. In fact, Weber claims that the English common law
system is highly irrational, with reliance on legal fictions and an archaic procedure based on
writes, oaths, and irrational modes of proof. He was therefore forced to conclude that ‘England
achieved capitalistic supremacy among the nations not because but rather in spite of its judicial
system’. For Weber, formal rational law is considered one of the preconditions of capitalism
because it provides the necessary certainty and predictability that is essential if entrepreneurs
are to pursue profit-making enterprises. The achievement of this formal rationaity required, in
Weber’s view, the systematization of the legal order.

10- Discuss Karl Marx view of sociology of law in context of historicism

A central feature of Marxist theory developed in his great work Capital is its historicism: social
evolution is explained in terms of inexorable historical forces. Replacing Hegel’s dialectical
theory of history, Marx and Engels expounded the well-known theory of ‘dialectical materialism’.
Hegel explained the unfolding of history in terms of the development of a thesis, its opposite (or
antithesis) and, out of the ensuing conflict, its resolution in a synthesis which absorbs and
transcends, negates, and preserves both thesis and antithesis. Marx argues that each period of
economic development has a corresponding class system. Thus during the period of hand-mill
production, the feudal system of classes existed. When steam-mill production developed,
capitalism replaced feudalism. Under a capitalist system, three principal social classes exist: the
landowners, capitalists, and wage labourers. But he foresaw the crystallization of just two
classes: the ‘bourgeoisie’ (those who own the means of production) and the ‘proletariat’ or
‘working class’ (who are forced to sell their labour). Classes are determined by the means of
production, and therefore an individual’s class is dependent on his relation to the means of
production. Marx’s ‘historical materialism’ is based on the fact that the means of production are
materially determined; it is dialectical, in part, because he sees an inevitable (ie, necessary,
logically determined) conflict between those two hostile classes. A revolution would eventually
occur because the bourgeois mode of production, based on individual ownership and unplanned
competition, stands in contradiction to the increasingly non-individualistic, social character of
labour production in the factory. The proletariat would seize the means of production and
establish a ‘dictatorship of the proletariat’ which would, in time, be replaced by a classless,
communist society in which law would eventually ‘wither away’. Note the meaning of these two
(often misused) terms:

● ‘Relations of production’: men enter into these relations in order to exploit natural resources
by whatever technology is available at a given time in history.

● ‘Productive forces’: the combination of the ‘relations of production’ (which depend on the
nature of the available natural resources) and the knowledge of technologies for their
exploitation.

Source:
Understanding jurisprudence, Raymond Wacks pp 188-211