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OFFICIAL

Introduction

In early age, rules and laws originated either from God (NL) or from the State (Positivism). As such, law was

treated as a stand-alone phenomenon, with society playing a peripheral role – the subject. The Sociological

School of Jurisprudence advocates that law and society are interdependent, linked to each other and influence

each other’s development. This school argues that the law is a social aspect because it has a major impact

on society, and it places society front and centre as far as law is concerned.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was revealing used by the Comte

and he described Sociology as a positive science of social facts. He said that Society is like an organism and

it could improve when it is guided by Scientific Principles. Therefore, he makes great efforts to use the law as

a tool by which human society maintains itself and progresses.

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Sociological School of

Jurisprudence (SSJ)

Sociological jurisprudence emerged to respond to the shortcomings of analytical and NL jurisprudence. The

exponents of this school considered law as a social phenomenon. They are chiefly concerned with the relationship

of law to other contemporary social institutions. The sociological school’s idea of law is a continuation of this

persistent process of enquiry into the origin of law as begun by the Historical School. This view of the sociological

school is in tandem with the knowledge of law with regard to society: what it is doing; what it has done; and what

it is expected to be doing. The sociological school carries forward the mission of the historical school and rejects

the formal and logical idea of law according to the positivists on the ground that the formal law presents only

a partial portrait of the law. In effect, the pre-occupation with the study of the science gave law a prominent place

in the new studies and the C19th unearthed a number of leading sociologists in Europe (and America) especially

Germany who began to look to the newly found studies of society as a key to a better understanding of law than

had been gained from the Natural Law School and the Positivists.

Reasons for the Emergence of the

Sociological School
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Laissez-Faire is the most important reason for the creation of the sociological school of jurisprudence. It refers to

the policy of minimum governmental interference when it comes to dealing with the economy, the society or the

individuals.

It is due to the increasing importance of the practice of Laissez-Faire that SSJ rose to existence. However, due

to the development and growth of laissez- faire, there seems to be a greater relevance and focus on individual

growth.

SSJ has a long and distinguished history and can be traced as far back as the writings of Hume who in “A

Treatise on Human Nature” argued that law’s origin did not lie in a peculiar common conception of human

nature at all. According to Hume, law owes its origins to social conventions and was in itself a developing

social institution. In addition to Hume’s start on describing law as a social phenomenon,

Montesquieu put forward the idea that law originated out

ofsocialcustomandgoodlawsthereforehadtobeinaccordancewiththespiritofthesociety. Other jurists over the

years like Weber, Durkheim, Pound, Comte and many more also contributed to this school of thought forwarding

various views on how law can be understood in the wider context as a social phenomenon theoretically, but

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also drawing on real and independent studies of society (i.e. other social sciences such as Economics) and

research.

SSJ focuses on studying the law in practice with relation to the society. They lay emphasis on actual social

conditions and situations which require the help of the law. These societal conditions give rise to legal institutions

which often facilitate dispute resolving functions. This law also states and strongly believes that the legal order

is a stage and crucial phase of social control. There is no consensus and common thinking that can readily

be identified as the central approach to sociological jurisprudence because of the wide range of areas of

studies that have influence on the development of this school of thought. However, there are some core basic

assumptions which characterise the thinking of a good proportion of sociological jurists.

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Characteristics of Sociological School of Jurisprudence

The chief characteristics of the SSJ are as follows:

1. They see law is only one of a number of methods of social control and as such it is not unique in its function

and place in society. SSJ considers law as one of many instruments of social control- such as religion,

rumour monger/lugambo, public opinion, morality, alienation, ostracization, etc, that are as effective if not

more so. To them, these are no less important than the law. For example, no less important is public opinion

- its unifying and divisive power, or the various issues on which such opinions are held.

2. Law is not abstract. The jurists often consider law as a body of authoritative guides that help decision

making. They are rarely seen as abstract content of authoritative directions.

3. Law must be seen as being open to modification through the influence of various social factors or studies.

Law should not be a closed system of standards and structures that are purely legalistic. SSJ considers

law as a social and legal institution that can be created and modified consciously culling from other

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sources of knowledge to make law more effective. In simple words, it synthesises with both – the analytical

method of legal practice and social or historical or scientific influences. Sociological jurists have different

views with regard to the perception of law. They believe in the importance of harnessing the techniques of

social sciences as well as the knowledge called from sociological research. They want to use and utilise

the knowledge arrived at by sociological researches towards erecting a more effective science of law.

4. Sociological jurists tend to emphasise more on the actual operation of the law arguing that this is where

the real nature of the law may be seen rather than in theoretical and academic sources. The sociological

jurists have greater concerns when it comes to the functioning and working of the law rather than the nature

of the law. (Instrumentality vis-à-vis instrumentalisation).

5. Law is an instrument of social reconstruction e.g. taxation, language, etc

6. Law is not seen as an end but a means to an end. Under the SSJ, the emphasis is more on the

functional aspect of law rather than its abstract content.

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7. They place emphasis on social requirements and purposes that the law must attend and answer rather

than upon irrelevant commands of worship of archaic past traditions. Again, linked to Instrumentality vis-

à-vis instrumentalisation.

8. Law is seen and valued in action. This school lays stress on law in action rather than law in textbooks.

According to Roscoe Pound the significant feature of sociological jurisprudence is that it lays more emphasis

on functional aspect of legal institutions, principles and precepts and regards law as an instrument or

technique of serving social interests.

9. Sociological jurists disagree with the approach of the Natural Law schools that rely on absolute values as the

basis of law (i.e. law is 100% morality).

Instead the Sociological Jurists take a relative approach and regard law as a socially constructed reality

i.e. a social institution consciously designed both on the basis of experience and need.

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10. Sociological jurists also disagree with the command notion of law favoured by the analytical jurists who

see law as a set of enforceable norms set down by an identifiable sovereign. As far as most sociological

jurists are concerned, law bases itself in social customs that governments must enforce

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11. Sociological jurists focus strongly on the social purposes, goals and expectations rather than the sanctions

and coercive nature of the law. SSJ is more concerned with the function of the law rather than the abstract

content of authoritative precept. The fundamental tenet of this school is that we cannot understand what a

thing is unless we study what it does. It is mainly concerned with the impact of laws on various aspects of

society.

12. The sociological jurists believe in social justice but of what it is made of and how to achieve it there are

divergent views on it.

13. Finally, sociological jurists look at legal doctrines and institutions before considering the most suitable

method or means of satisfying the greater good.

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Who are some of the most important and prominent

sociological jurists?

Sociological Jurists are those renowned intellectuals who have played a vital role in formulating legal doctrines

and theories. Some of the most eminent sociological jurists are as follows:

1. Rudolph von Jhering

2. Émile Durkheim

3. Eugen Ehrlich

4. Montesquieu

5. Dean Roscoe Pound, and

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6. Maximillian Weber.

So, there are numerous worthwhile theories that can be looked at and common features that can be observed.

For the purposes of our LLB level learning, certain prioritisation has to be made to cover some of the core theories

within this school of thought. I will therefore select a few proponents of SSJ to help you get basic insights into

this school and key SSJ theories advanced by these jurists.

The rationale for selecting these sociological jurists lies in the fact that they all viewed sociological jurisprudence

as describing and explaining how the law changes in society and advanced some of the most influential concepts

in this school of thought without which any discussion of the theory would be inadequate.

Fyi, they are usually divided into

two categories:

1. European SSJ

2. American SSJ

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