Sociological school
Sociological school of jurisprudence has emerged as a result of synthesis of
various juristic thoughts. The exponent of this school considered law as a
social phenomenon. They are mainly concerned with the relationship of law to
other contemporary social institutions. They insist that the jurists should focus
their attention on social purposes and interest served by law rather than on
individuals and their abstract rights. According to this school, the essential
characteristic of law should be to represent common interaction of men in
social groups, whether past or present, ancient or modern. The main concern
of sociological jurists is to study the effect of law and society on each other.
They treat law as an instrument of social progress.
The main characteristic of sociological school:—
1. The exponents of sociological school lay greater stress on functional
aspect of law rather than its abstract contents. In their view, law cannot be
insulated from the social complexities and objectives and practical
problems of life. Therefore, this is also known as Functional School of
Jurisprudence.
2. They consider law as a social institution essentially inter-linked with other
disciplines bearing direct impact on the society and uphold the view that
law is designed on the basis of human experience in order to meet the
needs of the society. Law is in fact a synthesis of philosophy, psychology,
political science, economics, sociology etc.
3. Sociological School of Law completely neglects positivism i.e. the
command of sovereign and also historical jurisprudence.
4. Sociological jurists describe the perception of the law in different ways like
the functional aspect of law or defining the law in terms of courts rulings
and decisions with a realistic approach of law.
Rudolph Von Thering (1818-1892):— Rudolph Von Therin is one of the jurist of
sociological school, known for his work, Spirit of Law, published during 1852-
1865. Later, he published his principal work which was translated as 'Law As
Means To An End' in 1913. In this work he criticised the notion of individual
freedom and liberty as advocated by Kant and Bentham as they had divorced
legal theory from social realities.
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He thus opposed the doctrine of individualism, which in his view was
incompatible to the cause of social justice. Ihering opined that social interest of
the society must gain priority over individual interest and the purpose of law
should be to protect the interest of the society, In his view, social interest must
gain priority over individual interest.
Ihering condemned it as being anti-social and incompatible to the
claims of social justice, Thus, he was a great critic of Austinian’s positivism and
Benthamite’s individualism. His legal philosophy is therefore, known as the’
jurisprudence of interests' which emphasises on sociological aspects of law.
The main tenets of Ihering's jurisprudence of interests may briefly be stated
under the following heads:
1. Law is result of constant struggle:— lhering pointed out that the origin of
law is to be found in social struggles. He accepted that the role of law is to
harmonise conflicting interest of individuals for the purpose of protection of
the interest of the society as a whole. He rejected the philosophical view
that law evolves spontaneously like language and thus he gave importance
to living law which was later developed by his disciple Eugen Ehrlich.
2. Law is to serve a social purpose:— Ihering considered law as a means to
an end. The ultimate end of law is social purpose and not the individual
purpose or interest. It is the duty of the State to promote social interest by
avoiding a clash between the individual and social interest. He even justifies
coercion by the State for the purpose of protection of the social interest.
For him, 'law is a coercion organised in a set form by the State'.
3. Law alone is not a means to control the society:— Ihering made it clear that
law alone was not the means to control the social organism. There are
some other conditions such as climate, topography etc. wherein law need
not intervene. There are, however, certain aspects of social life which can
be regulated and controlled exclusively by the intervention of law, such as
raising of taxes and revenues. Like Bentham, Ihering also defines 'interest'
in terms of pleasure and pain, that is, pursuit of pleasure and avoidance of
pain may be called as 'interest.
Criticism Against Ihering's Theory:—
1. Ihering says law should balance conflicting interests, but he doesn’t clearly
explain how this can be done.
2. Critics argue that Ihering’s justification of State coercion to protect social
interests risks undermining individual freedoms and could lead to excessive
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State control at the expense of personal rights.
3. Some critics argue that law protects the will of people, not their purpose.
However, this criticism isn't widely accepted.
Despite those shortcomings, Ihering laid the foundation of modern sociological
jurisprudence by this insistence on treating law as one of the important factors
to control the social organism. According to him, (i) law has a coercive
character; (ii) it has only a relative value; and (iii) it has to be evaluated in the
social context. Thus he treated law as an effective instrument for the attainment
of social purpose.
Roscoe Pound(1870-1964):— Roscoe Pound was one of the most leading and
influential jurists who developed the American Sociological Jurisprudence in a
systematic form. He was born in Lincoln Nebraska in 1870. He was an auxiliary
Judge of the Supreme Court of Nebraska for a short period. He also served as
a Professor of Jurisprudence in Harward University and was the Dean of its law
school. He was a prolific writer and his major works include the Spirit of the
Common Law (1921); An Introduction to the Philosophy of Law (1922);
Interpretations of Legal History (1923)etc.
Pound’s Legal Philosophy:— Pound emphasised on inter-disciplinary approach
to law so that rule of law and life may flow together. He treated law as a means
for affecting social control and did not believe in the abstract or mechanical
application of law. However, the contribution of Roscoe Pound to sociological
jurisprudence may be studied under the following heads:
[1]. Emphasis on Functional Aspect of Law: Roscoe Pound’s approach to
sociological jurisprudence was different because he focused on society as a
whole, not just on law alone like earlier thinkers. He emphasized how law works
in real life and how it helps society function smoothly. That’s why some people
call his method the "functional school."
He said law includes rules, principles, ideas, standards, and
professional practices. He viewed law as a tool, or a technique, to shape
society—calling jurisprudence a kind of "social engineering." According to him,
the goal of law is to meet as many needs as possible while causing the least
amount of conflict.
[2]. Pound's Theory of Social Engineering: Roscoe Pound conceived law as a
'social engineering', its main task being to accelerate the process of social
ordering by making all possible efforts to avoid conflicts of interest of
individuals in the society. Thus courts, legislators, administrators and jurists
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must work with a plan and make an effort to maintain a balance between the
competing interests in society. He defined interest as a claim, a want or a
demand, of human being or group of human beings which they seek to satisfy
and which the social engineering in civilised society must take into account.
Pound enumerated various interests which the law should seek to
protect and classified them into three broad categories, namely:
Private Interests. These include-
1. Individual's interests of personality, namely, interests of physical
integrity, reputation, freedom of volition and freedom of conscience.
They are safeguarded by laws of crimes, torts, contracts, constitutional
law etc.
2. The interests of domestic relations of persons such as husband and
wife, parent and children, marital life as also the individual's private
interests.
3. The interests of subsistence such as property, succession,
testamentary disposition, freedom of contractual relations, association
etc. are also included in the category of private interests.
Public interests. The main public interests according to Roscoe Pound are-
1. Interests in the preservation of the State as such; and
2. State as a guardian of social interests such as administration of trusts,
charitable endowments, protection of natural environment, territorial
waters, sea-shores, regulation of public employment and so on.
Social interests. The social interests which need legal protection are-
1. Interests in the preservation of peace, general health, security of
transactions etc.
2. Preserving social institutions such as religion, political and economic
institutions etc.
3. Interests preserving general morals by prohibiting transactions which
are against morality such as prostitution, drunkenness, gambling, etc
4. Interests in conservation of social resources, e.g., natural resources,
reformation of delinquents, protection of economically weaker sections
of the society.
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5. Social interests in general progress including economic, political and
cultural progress.
6. Interests which promote human personality by enabling a person to live
political, physical, cultural, social and economic life.
Roscoe Pound’s theory of social engineering is based on the idea that the main
purpose of law is to protect various human interests. However, these interests
cannot always be neatly separated because they may overlap. Even Pound
admitted that interests can only be broadly grouped, not placed in strict
categories. Pound believed that jurists should carefully evaluate these interests
to help fulfill human needs while balancing social stability and change.
[3]. Jural Postulates of Roscoe Pound: In order to evaluate the conflicting
interests in due order of prior Pound suggested that every society has certain
basic assumptions upon which its ordering rests, though for most of the time
they may be implicit rather than expressly formulated. These assumptions may
be called as jural postulates of the legal system of that society. In 1919, Pound
summarised five jural postulates as follows:
Jural Postulate I: In a civilised society men must be able to assume that
others will commit no intentional aggression upon them
Jural Postulate II: In a civilised society men must be able to assume that
they may control for beneficial purposes what they have discovered and
appropriated to their own use what they have created by their own labour
and what they have acquired under the existing social and economic order
Jaral Postulate III: In a civilised society men must be able to assume that
those with whom they deal as a member of the society will act in good faith
and hence:
1. will make good reasonable expectations which their promises or other
conduct reasonably create;
2. will carry out their undertaking according to the expectations which the
moral sentiment of the community attaches thereto;
3. will restore specifically or by equivalent what comes to them by
mistake, or failure of the pre-suppositions of a transaction, or other
unanticipated situation whereby they receive at other's expense what
they could not reasonably have expected to receive under the actual
circumstances.
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Jural Postulate IV: In a civilised society men must be able to assume that
those who engage in some course of conduct will act with due care not to
cast an unreasonable risk of injury upon others.
Jural Postulate V: In a civilized society, people must be able to trust that
others will control and limit the use of things or forces that are safe in one
place but can be harmful if they go beyond their proper use.
However, Roscoe Pound’s jural postulates are not fixed rules but guiding ideals
for how law should work in a society. They change with time and help balance
real-life situations with moral values, aiming for justice and responsibility in
community life.
Criticism Against Pound's Theory:—
1. Pound compared society to a factory, which is not accurate. Society is
dynamic and ever-changing, unlike a factory, which is mostly static.
2. Again, Pound's emphasis on 'engineering' ignores the fact that law evolves
and develops in the society according to social needs and wants for which
law may either have approbation or disapprobation.
3. Dr. Allen has criticised the utilitarian in Pound's theory as it confines the
interpretation of 'wants and desire' to only material welfare of individual's
life completely ignoring the personal freedoms which are equally important
for a happy social living.
4. It has also been argued against Pound's theory of interests that it has no
significance in a pluralistic society where there are linguistic, ethnic, and
religious minorities having diverse interests. Harmonising their divergent
interests is by no means an easy task to be performed through law and
courts.
5. Pound's attempt to classify interests into fixed types is problematic
because these categories are not permanent; their meaning and value shift
with time, political systems, and societal changes—making such
classification unreliable.
Beside those criticisms, there is no doubt that through his legal theory Pound
has attempted to bring law into closer relation with other social sciences and
tried to strike a balance between freedom of individual and social control
through the instrumentality of law. His greatest contribution to jurisprudence is
that he is practical in approach and concentrates his attention on the actual
functioning of law in society.
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