SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
:
Jurists
belonging to the sociological school of thought r concerned more with the
working of law rather than its abstract content. Their principal premise is that the law must
be studied in action & not in textbooks.
They r concerned with the study of law in relation to society. They concentrate on actual social
circumstances which give rise to legal institutions. They insist that the legal order is a phase
of social control & that it can’t be understood unless taken in its whole
setting among social phenomena.
The factors
responsible for the emergence of this school are:
(i) Mental
bankruptcy of analytical approach to meet the social demands of modern society;
(ii) Conflicts
b/w individual interests & social interests & the need to reconcile
them;
(iii) Inter-connection b/w law and society.
(iv) Works
of the earliest pioneers of the new interests in society, i.e., Bentham,
Renner, Weber, etc.
The following are the main characteristics of this
school:
(i) Sociological jurists r concerned more with
the working of the law of the legal order & legal precepts rather than its
nature.
(ii) According
to Analytical jurists, law is made consciously; Historical jurists, it is
something found; but the Sociological
jurists regard law as social institution.
(iii) Sociological jurists lay stress upon the
social purposes / securing social interests rather than on sanction.
(iv) Sociological jurists look on legal
institutions, legal doctrines & legal precepts functionally ... this is the functional view of law.
The objective of
sociological source of jurisprudence is to resolve immediate problems of
society with such tools – legal or extra legal and techniques which promote
harmony & balance of interest of society.
·
RUDOLF
VON IHERING ( 1818 – 1892 )
Ihering
was German jurist. He has been described
as the “Father of Modern Sociological Jurisprudence”. He rejected the Analytical & Historical jurisprudence as
jurisprudence of conceptions. According
to him, law is an instrument for
serving the needs of individuals of society. Hence,
the law should be studied in terms of purposes or interests which it
sub-serves. He observed, “The stone
does not fall in order to fall, but it must fall because its support is taken
away. Similarly, the man who acts does
so not because of anything, but in order to attain something. As
there can be no motion of the stone without a cause, so can there be no
movement of the will without purpose.”
According to
him, human will is directed
towards the furtherance of individual purposes. In realisation
of individual purposes, there is bound to be a conflict b/w social interests
& individual’s selfish interests.
Ihering tries to reconcile
the individual interest with that of the society. So, law
is only an instrument for serving the needs of the society ... its purposes
& interests. The success of the legal process
depends on achieving proper balance b/w social & individual interests. It is through two impulses – coercion
& reward, the society
compels individuals to subordinate selfish individual interests to social
purposes & general interests. The
natural impulse of duty & love also make man to sub-serve social ends. Therefore,
Ihering views law as an instrument of social control balancing of individual
interest with that of the society.
·
ROSCOE
POUND ( 1870 – 1964 )
Dean Roscoe Pound (RP) has been
acknowledged as the unchallenged chief of the sociological school of
jurisprudence. Sociological jurisprudence arose as a reaction to positivism (19th
century positivist jurisprudence) since it refused to consider social &
economic circumstances. Its main contribution was broadening
the scope of jurisprudence. Law is
not an isolated phenomenon, but is a part of social reality. RP,
one of the leading American jurists &
pioneer in the American jurisprudence, can
be said to be the father of sociological jurisprudence in America. According to RP, law takes account of social facts
/ reality.
RP asserts that law is a method or
technique for harmonizing conflicting social interests. His
school is known as functional school as it
concentrates more on the functional aspect of law. In modern society, there r various interests & if claims of these
groups r not harmonized, there may be strife & thereby production may
suffer. By social engineering, RP means a balance b/w the competing interests in
society. In other words, social engineering is a term used to define
the act of balancing of different interests, i.e., individual interests,
public interests & social interests. The aim
of social engineering is to build as efficient a structure of society as
possible, e.g., if a factory is
polluting the environment & an injunction suit is filed for closing it, the
court must balance various claims & interests –claim of the mill owner to
do his business, claims of the workers in the factory to retain their jobs,
claim of local residents to have a clean environment, etc. RP says law
exists for the benefit of the society. Any law, which is against the interest of the
society, can’t be said to be a law.
Despite the
broadness of his views, he gave preference to the practical means in the study
of law, which are as under:
(i) to make a study of the actual social effects of legal institutions
& legal doctrine/to look more to the working of law than to its
abstract content;
(ii) to regard
law as a social institution which may be improved by intelligent
efforts discovering the best means of furthering & directing such effort.
(iii) to lay stress
upon the social purposes which law sub-serves rather than upon
sanction.
(iv) to
study what social effect the doctrines of law have
produced in past.
(v) to stand
for equitable application of law.
(vi) to make
effort more effective in achieving the purposes
of law.
RP’s theory is that the interests are the main subject-matter of law & the task of law is the satisfaction of human
wants & desires. It is the
duty of law to make a valuation of interests.
He classified interests under three heads –
(i) Individual; (ii)
Public; & (iii) Social
(i) Individual
Interests – These are claims or
demands or desires involved in & looked at from the standpoint of the individual life such as (i) Personality e.g. freedom of will,
privacy, belief & opinion as also honour & reputation; (ii) Domestic relations e.g. relations of
husband & wife, parents & children; & (iii) Interests of substance e.g. proprietary rights, inheritance &
testamentary succession, contract, continuity of employment, freedom of association.
(ii) Public Interests – These are claims or demands or desires asserted by individuals involved in &
looked at from the standpoint of political life
such as (i) Interests of the State as a
juristic person e.g. (a) integrity, freedom of action & honour of the
State personality; & (b) claims of the politically organised society as a
corporation to property acquired & held for corporate purposes; (ii) Interests of the State as guardian of social
interests – this seems to overlap with the next category, i.e., Social
Interests.
(iii) Social Interests – These are claims
or demands or desires thought of in terms of social life &
generalised as claims of the social group.
They concern: (i) Interest in the
preservation of peace, public health & order and maintaining general
security; (ii) Interest in preserving
social institutions like marriage, domestic & religious institutions;
(iii) Interest in preserving general
morals by counteracting corruption, drunkenness, prostitution, gambling,
etc.; (iv) Interest in conserving social
resources; (v) Interest in general
progress (economic, political & cultural) which is to be achieved by
freedoms of education, speech, trade, property, etc.; & (vi) Social interest in individual life like
promotion of human personality, self-assertion, etc. – each individual to be able to live a human life according to the
standards of the society.
Every society
has certain basic assumptions upon which its ordering rests. These assumptions are the Jural Postulates of the legal system
as embodying the fundamental purpose:
I In
civilized society, men must be able to assume that others will commit no intentional aggressions upon them.
II In
civilized society, men must be able to assume that they may control for beneficial
purposes what they have discovered & appropriated to their own use,
what they have created by their own labour or what they have acquired under the
existing social & economic order.
III In
civilized society, men must be able to assume that those with whom they deal in general intercourse of society (others)
will act
in good faith.
IV In
civilized 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.
V In civilized
society, men must be able to assume that others,
who maintain things or employ
agencies, harmless in the sphere of their use
but harmful (things) in their normal action
elsewhere, will restrain them or keep
them within their proper bounds.
RP insists, interests
should be weighed on the same plane as it were. One can’t balance an individual interest against a
social interest. Freedom of the person
might be regarded as an individual interest, but it is transferable as an
interest of the society that its members should be free. However, in
order to harmonize conflicting interests in modern dynamic society, judge will often have to dispense justice
without law, i.e., without following any prescribed rule or
precedent.
The task of law is ‘social engineering’,
i.e., the balancing of competing interests in society. He coined the expression ‘social engineering’ to
represent the true attitude to law & its function. To build a society, jurists, lawyers & judges must use law as
an engineer does his material sparingly, but produce the best results. Thus, the law is an attempt to reconcile, to harmonize,
to compromise, these overlapping & conflicting interests. His philosophy is essentially one of
practical compromise. RP believes that interests are
the chief subject of law & that the task of law in society is the satisfaction of
human wants & desires.
Critical Analysis of RP’s Theory : RP’s
theory mainly emphasis functional aspects of law & ignores nature &
character of law.
(1) Lack of
criteria of evaluation – It is not interests as such, but the
yardstick with reference to which they r measured that matter.
(2) Interests
pre-exist laws – It isn’t true as there r certain social
legislations in which the interests r created by the law & others.
(3) Misleading
balancing metaphor – If two interests r to be balanced, that
presupposes some ‘scale’ or ‘yardstick’ with reference to which they r
measured. The ‘weight’ to be attached to an
interest will vary according to the ideal that is used.
(4) From legislation
to court judgments – RP emphasised ‘judicial activism’. His theory shifts the centre of gravity from
legislation to court judgments. A list of
interests can’t be drawn in advance as new interests r created & recognised
by the courts. The judiciary has limitations & doesn’t
have the machinery of enforcing its decisions. It can’t do what legislature can do.
(5) Theory lacks
general application (Applicability to India) – There r certain competing interests which
can never be balanced or reconciled, e.g., interests of labour & capital
and landlord
& tenant.
(6) Utility of
list of interests – A society
constantly develops & changes and the pressures behind interests change too. What is an individual interest & what is a
social interest is itself a matter of changing political conceptions. The
value or importance to be allotted to each interest can’t be predetermined
& the recognition of a new interest is a matter of policy.
Despite the
aforesaid criticisms, the significance of
RP’s sociological jurisprudence is of world import as it strikes a fine synthesis b/w
liberty & equality and b/w freedom
& social control through the instrumentality of law. He is no enemy of abstract philosophy, but he
is impressed by certain limits of legal philosophy. RP asserts, “I don’t believe that the jurist has to
do more than recognize the problem & perceive that it is presented to him
as one of securing a balance or harmony among them”.
For RP, law is a
product of class conflict. Law is not
autonomous, but a product of policy. Laws reflect
the ideology of a ruling class. Laws will
only be effective. His theory
is relevant only for an ideal society.
A conflict model & not a consensus model will create interests. Unless a conflict situation is created, interests
can’t be created. Law is a
social force.
In short, the
important & remarkable feature of this school is that the jurists are concerned with the
study of law in relation to society.
The principal area is that law should be studied in action & not in textbooks. The inter-connection b/w law & society
should be that of such a nature, which can fulfil maximum interest of
community. It should not be an instrument of
coercion as a means to sub-serve the ends of the society. In essence, the
sociological jurists look at law functionally.
