JURISPRUDENCE

UNIT-4

SOCIOLOGICAL SCHOOL OF LAW - ROSCOE POUND.

INTRODUCTION
In early time, rules and laws are originated from the only custom to govern the
society which had only a social sanction.
Then, the supremacy of King and priest came. then, after the revolution and
changes, the balance between the individual interest and welfare of society was
realized.
The main subject matter of sociology is Society. Sociology is the study of
society, human behavior, and social changes.
And jurisprudence is the study of law and legal aspect of things.
The Sociological school of Jurisprudence advocates that the Law and society
are related to each other.
This school argues that the law is a social phenomenon because it has a major
impact on society.

MEANING OF SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The idea of Sociological School is to establish a relation between the Law and
society.
This school laid more emphasis on the legal perspective of every problem and
every change that take place in society.
Law is a social phenomenon and law has some direct or indirect relation to
society.
Sociological School of Jurisprudence focuses on balancing the welfare of state
and individual was realized.
In the words of Ehrlich, “At the present as well as at any there time, the centre
of gravity of legal development lies not in legislation, nor in the juristic
decision, but in society itself. ”
Sociological School of Jurisprudence studies the relationship between the law
and sociology.
ROSCOE POUND (1870-1964)
Pound was an American Legal Scholar. His view is that law should be studied in
its actual working and not as it stands in the book.

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.
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.
Interest Theory: Roscoe Pound in his interest theory mentioned the three kinds
of interest.
To avoid the overlapping of the interests, he put boundaries and divide the kinds
of interests.
Individual Interest: These are claims or demands involved from the standpoint
of the individual life which consists of interest of personality, interest in
domestic relations and interest of substance
Public Interest: These are the claims or desires asserted by the individual from
the standpoint of political life which means every individual in a society has a
responsibility towards each other and to make the use of things which are open
to public use. Interest in the preservation of state
Social Interest: These are the claims or demands in terms of social life which
means to fulfill all the needs of society as a whole for the proper functioning
and maintenance of it. Interest in the preservation of general peace, health,
security of transaction’s, preserving social institutions like religion, politics,
economic

JURAL POSTULATES BY ROSCOE POUND

Roscoe Pound mentioned the five Jural Postulate and mentioned that the interest
mentioned in these jural postulates should be protected and nourished.
Criminal: An interest of protection from any intentional aggression. For
Example, Assault, Wrongful restraint, Battery, etc.
Law of Patent: An interest of securing his own created property by his own
labour and hard work. E.g. agricultural land, any music or artistic things.
Contract: The interest in making the contract and getting of reasonable remedy
or compensation when his right violate
Torts: Protection against Defamation and unreasonable injury caused by the
negligent act of another person.
Strict Liability: Similarly, In case Ryland Vs. Fletcher Protection of our interest
if the injury caused by the things of another person. It is the duty of other people
to keep his/her things with his/her boundary and should look after that thing to
avoid injury to other people.

REALIST SCHOOL OF LAW

INTRODUCTION
The realist approach in the field of jurisprudence is a relatively modern one. Its
prime home is the US.
The thesis of realists is based on the notion: “Law is what the psychology of courts
determines – the aggregate of the item of judicial and official actions”. “Law is
what the judges decide.”
They emphasize the element of uncertainty in law and part played by the personal
characteristics of the judge.
Law is defined not as a set of legal propositions, but in terms of the official action.
The realist approach to law is a part of the sociological approach.
That is why it is sometimes called a left-wing of sociological or functional School.

MEANING OF REALISM
The Realist movement concentrates on scientific observation of law in its meaning
and working.
This movement is named as a ‘realist’ because this approach studies law as it is in
actual working and its effect.
In the word of Professor Pound:
“By realism, they mean fidelity to nature, accurate recording of things as they are
as contrasted with a thing as they are imagined to be, or wished to be or as one
feels they ought to be.”
According to Llewellyn,
“Realism is not a school but it can be called as a branch of sociological School. It
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concentrates on the actual working and effect of law and is, therefore, called the
realist school.

REASONS FOR THE ESTABLISHMENT OF REALIST SCHOOLS

There are mainly three reasons for the establishment of the Realist School of law,
as follows;
1. The first reason is that it was established as a reaction again the sociological
jurists who were emphasizing the social effect of law.
2. The second reason was that it was established to ignore the theory of interest
as given by the Ihering and the theory of Social Engineering as advocated by
Pound.
3. The third reason is that this school was established to point out the
importance of Courts and the importance of judges- the human factor is the
judges and the lawyers.

TYPE OF THE REALIST SCHOOLS

There are two types of the Realist School.
The first one is the American Realist School and
the second is the Scandinavian Realist School.
Holmes, Gray, and Jereme Frank are the main supporters of the American Realist
School.
Scandinavian realism is a philosophical critique of the metaphysical foundation of
law. They have put forth a philosophical justification.
Olivercrona, Lundstedt, Ross, and Hagerstrom are the main exponents of the
Scandinavian Realist School.

AMERICAN REALIST SCHOOL: HOLME’S VIEW

As a judge of the supreme courts, Holmes played a fundamental part, in both
writing and his long tenure, in bringing about a change the attitude of the law.
His emphasis on the fact that the life of the low experience, as well as logic, and
his view of the law as predictions of what the court will decide stressed the
empirical and parametric aspects of law.
And he said that, if one wishes to know what the law is, then one should view it
through the eyes of a bad man who is only concerned with what will happen to him
if he does certain things.
The traditional description of law is that it consists of rules from which deductions
are made.
Thus, according to Holmes, the law is what courts (or other officials) do, not what
they say.
Until a court has passed judgment on certain facts, there is no law on the subject
yet in existence, for the opinions of a lawyer are only a guess as to what the court
will decide.

GRAY’S VIEW
Another pioneer of American realist school was Grey, who made a distinction
between the law and the source of law.
According to him, the law is what the judges decide.
Everything else, including statute, is the only source of law until interpreted by a
court.
He defined ‘the law’ as follows: “the court of the state or any organized body of
men is composed of the rules which the courts, that is, judicial organs of that body
laid down for the determination of legal rights and duties”.
He said of statutes that, “the courts put life into the dead word of the statutes, other
sources including expert opinion, customs, and public policy”.
Frank’s view:-
In his book titled ‘Law and the Modern Mind (1930)’ Frank explained his theory of
law and jurisprudence.
His entire thesis is centered on one point viz.
Law is uncertain, the certainty of law is the legal myth.
Frank insists that there are two groups of realists, the first one is ‘rules sceptics’ as
he calls them, who regard legal uncertainty as residing principally in the “paper”
rules of law and who seek to discover uniformities in the actual judicial behavior
and “fact sceptics” who think that the unpredictability of the court decision resides
primarily in the elusiveness of facts.