“Law Master’s” Publication
‘Sociological School’
Prof. S. D. Bhosale
66
(.. 5 f..)
Schools of Jurisprudence
QUESTION BANK
Q.1 Explain the sociological school of jurisprudence.
Q.2 What according to the sociological school is the task of law in society?
SHORT NOTES
1. Theory of Rosoe Pound.
2. Sociological school
3. Social Engineering.
SYNOPSIS
I. Introduction-
II. Jurists and their Sociological thoughts-
1) Montesquieu (1689 to 1755)-
2) Auguste Comte (1798 to 1857)-
3) Herbert Spencer (1820 to 1903)-
4) Ehrilich (1862 to 1922)-
5) Leon Dugit (1859 to 1928)-
6) Rosco Pound (1870 to 1964)-
(a) Emphasis on functional aspect of law-
(b) Pounds theory of social engineering-
c) Jural Postulates of Roscoe Pound-
d) Criticism on Pound’s Theory-
7) Justice Holmes (1841 to 1935)-
8) Benzamin Cardezo (1870 to 1938)-
III. Indian perspective as to sociological school-
I. Introduction-
‘Sociology” is the study of society, and law is a part of this study. A sociological
school is an outcome of various juristic thoughts. According to this school, ‘law is a social
phenomenon’. The study of the mutual effects of ‘law’ and ‘society’ on each other is an
important field of Sociological School. The school believes that the law is an instrument
of social progress. Sociological school is an outcome of the reaction against positive law
schools and historical schools. The sociological school does not agree with positive law
1
समाजशाꢀीय अभयास शाखा/ समाजीक घटकातुन कायदयाचा अभयास करनार
े
शाꢀ [समाजशाꢀीय अधययन शाखा/ विꢁान
जो सामावजक सदर से कानन का अधययन करता है ]
भ
ं
ू
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‘Sociological School’
Prof. S. D. Bhosale
67
school and historical school; it rather opposes the ideals of these schools.
As discussed earlier, the Sociological School is an outcome of various juristic
thoughts; we will study some of those thoughts as follows-
II. Jurists and their Sociological thoughts-
1) Montesquieu (1689 to 1755)-
Montesquieu is considered to be the fore runner of the sociological school of
jurisprudence. He was a French legal thinker. He first time perceived the influence of social
conditions on law and legal institutions. In his book, ‘The Spirit of Law’, he mentioned
that “Laws of a particular nation should be determined by its national characteristics and
must bear relation to the climate of each country, the quality of each soil, the situation and
extent, the principal occupations of the natives and above all to the degree which the
institution to the religion of the inhabitants, to their inclinations, riches, commerce,
manners and customs”. Thus, he lays down the impact of almost every important aspect of
society on the law. He suggests a list of factors be taken into consideration while making
laws.
2) Auguste Comte (1798 to 1857)-
Auguste Comte is a French thinker, who is considered a founder of ‘sociology’. He
first time used the term ‘sociology’ as independent faculty (discipline). He applied
scientific methods to the study of sociology. He consolidated the work and writing of
earlier jurists on the subject of sociology. He defined ‘sociology’ as a science of social
progress of society depends upon the specialization of functions within the society.
According to Comte, if these specialized functions are guided by proper scientific
principles, society develops and progresses. For him, man is a social animal. Man cannot
live in isolation. Therefore, all impulses of man originate from his social life. According to
him, ‘society’ and not ‘individual’ needs to be the focal point of law. He stresses the need
to control the social life of man by law and by the government.
His work inspired Durkheim and Dugit.
3) Herbert Spencer (1820 to 1903)-
Spencer was an English sociological thinker. According to him, society evolved
from a simple to a modern complex structure. He gave a scientific exposition of the organic
theory of society. According to him, there are four sources of law viz- (i) divine laws having
quasi-religious sanctions, (ii) the injunctions of the past leaders, (iii) the will of the ruler,
and (iv) the collective opinion of the society. For him, law is nothing but a hardened
2 ‘Organism’ means a living being. अवयवयुꢁ पररपूꢂ
ण
जीव ककिंवा एकमेकािंवर अवलिंबुन जजवािंचा सम[ुहअगों या
ं
अꢂयोꢂयावित जीिों के समह के साथ एक पꢃ जीि]
भ
ू
ू
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‘Sociological School’
Prof. S. D. Bhosale
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custom. According to him, the purpose of the law is to resolve the conflicting interests of
an individual in society.
4) Ehrilich (1862 to 1922)-
Ehrlich was a professor of Roman Law at the Czernowitz University in Austria.
Like Savigny, he believes in the spontaneous evaluation of the law. He evolved the theory
of ‘living law’. The concept of ‘living law’ according to Ehrlich means ‘extra-legal controls
which regulate social relations of men’. For him, the institution of marriage, domestic life,
inheritance, possession of the property, contract etc., dominates social life; therefore, they
are living laws. According to him, law develops through conscious efforts. He further states
that the success of law lies in society. For him, living law dominates social life even though
it is not enacted by the legislature or decided by the court. According to him, ‘living law’
is the law of the people and not just of legislatures or of courts. For him, understand the
law properly, requires the study of all the social conditions in which the law functions.
However, Ehrlich's theory of ‘living law’ is criticized by many jurists such as (i).
According to Friedmann, Ehrlich has extended his theory too far, which leads to absurdity.
(ii) Eahrilich makes no distinction between legal norms and other social norms, and thus,
he confuses between this two. (iii) Ehrlich overlooks the fact that sometimes enactment of
the law becomes necessary even to override popular anti-social practices, such as the
practice of dowry, child marriage, untouchability etc. (iv) He ignores State made law
(legislation) which is the prevalent practice of law making in democratic States.
5) Leon Dugit (1859 to 1928)-
Dugit was a French jurist. He was a Professor of constitutional law. Dugit was
influenced by Auguste Compte’s thoughts.
According to him, the interdependence of man is the essence of society. Every
individual has their existence owing to their membership in society. According to him,
each man is dependent upon others for his needs. Therefore, men are interdependent. Since
they are interdependent, the only right they have is ‘the right to perform their duty’.
According to him the ultimate end of all human activities is to ensure the interdependence
of men. The law also serves the same end. According to him, ‘law is a rule which men obey
not by virtue of any higher principles but because they have to live as members of society
and because they are interdependent’.
For him, the essence of law is to serve and secure social solidarity. Dugit compels
everyone to perform his duties to society, which would help the development of co-
operation and social solidarity.
According to him, law must seek to promote social solidarity so as to attain the
maximum good the society as a whole.
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‘Sociological School’
Prof. S. D. Bhosale
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However, Dugit’s theory is criticised on the following points viz- (i) his theory is
more like natural law theory than social. (ii) Dugit seems confused himself between ‘what
law is’ and ‘what law ought to be’. (iii) Dugit overlooks the growing role of the State in
modern times because he favours minimum State interference. (iv) His principle of social
solidarity seems vague.
6) Rosco Pound (1870 to 1964)-
Rosco Pound was a Judge of the Supreme Court in America for some time. He also
served as a Dean of Law School and a Professor of Jurisprudence at Harward University.
He wrote a number of books and a thesis. Rosco Pound was influenced by the theory of
Kolher.
Rosco Pound was a leading and influential jurist. He developed American Social
jurisprudence into a systematic form. According to him, ‘law’ is a means of social control.
He is considered a father of American sociological jurisprudence. Realist School in
America is the outcome of Pound’s theory of ‘functional jurisprudence’.
Pound’s contribution can be put in the following heads viz-
(a) Emphasis on the functional aspect of law-
Pound concentrates on the functional aspect of law. Therefore, his approach is
termed as a ‘functional school’. He defined law as “the rules, principles, conceptions and
standards of conduct and decisions as also the precepts and doctrines of professional rules
of art”. According to him, the function of law is to reconcile the conflicting interests of
individuals in the community and harmonie their inter-relations. The end of law,
according to Pound, is to satisfy the maximum of wants with a minimum of friction or
conflict.
(b) Pounds theory of social engineering-
Pound states that the function of law is to reconcile the conflicting interests of
individuals’ in the community and to harmonize their inter-relations. He called
harmonizing these interests ‘social engineering’. According to him, the task of ‘social
engineering’ is to accelerate the process of social ordering by making all efforts to avoid
conflicting interests of individuals’ in society. He suggests that the courts, legislators,
administrators and jurists must work with a plan and strive to maintain a balance between
the competing interests in society.
Pound has classified conflicting interests into three broad categories and suggests
reconciling them to maintain harmony viz-
(i) Private interests-
These private interests include-
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‘Sociological School’
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freedom of volition and freedom of conscience. They are safeguarded by the law of
crimes, the law of torts, the law of contracts, constitutional law etc.
(2) Individual’s interests in domestic relations, such as marriage, relations of husband and
wife, parents and children etc.
(3) Interests of substance- these include proprietary rights, inheritance, testamentary
succession, freedom of contractual relations, freedom to form associations etc.
(ii) Public interests- According to Pound following are the main public interests viz-
(1) Interests in the preservation of the Sate as such; and
(2) State as a guardian of social interests such as administration of trusts, charitable
endowments, protection of the natural environment, territorial waters, sea shores,
regulation of public employments etc.
(iii) Social interests- Social interests are the interest of society which needs to be protected,
viz
(1) interest in the preservation of peace and order and maintaining general security.
(2) Interests in preserving institutions such as religion, political and economic institutions.
(3) Interests in preserving general morals by prohibiting immorality such as prostitution,
drunkenness, gambling, devadasi system etc.
(4) Interests in the conservation of social resources, such as natural resources, human
resources, protection of economically wreakers etc.
(5) Interests in general progress. It includes social interests in freedom of trade,
commerce, freedom of speech and expression, standard education etc.
(6) Interests in promoting personality. Human personality can be promoted by enabling
a person to live political, social, cultural and economical life as it suits him.
According to Pound, these interests are not exhaustive and also may overlap with
each other. According to him, watertight compartment is not possible.
Pound suggests that through law, social engineering of balancing the competing
interests of individuals needs to be achieved.
The very important question comes up while attempting social engineering is that
how to evaluate the conflicting interests in due order of priority. Pound answers this
question by saying that there are some basic assumptions in every society, and upon
those assumptions, social ordering rests. According to him, these assumptions, most of
3
ꢃयꢁꢄमꢅवा सधंबधंधि चे कहत[धनजीकहत]
4
सामाजजक मुलभुत गहीते गहीतक
े
/ [सामाजजकमूलबातें/ मूलबातें]
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‘Sociological School’
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the time are more implicit than expressed. Pound calls these basic assumptions existing
in society ‘jural postulates’.
He has summarized jural postulates or basic assumptions as follows-
In civilized society, man must be able to assume that-
(ii) they(he) may control for their 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 existing social and economic order.
(iii) with whom they are dealing as a member of society, will act in good faith, will keep
their promises, and undertakings and will restore what he has got by mistake.
(iv) others will act with due care and will not cast upon him an unreasonable risk of
injuries.
(v) others who maintain things or employ agencies must keep them within their
boundaries so as to become harmless to others.
According to Pound, these jural postulates are not absolute, but they have relative
value. He believes that if change warrants, there may emerge new postulates.
d) Criticism of Pound’s Theory-
i) According to some jurists, the use of the term ‘engineering’ in the social sphere reminds
of some factory mechanisms, but society and factory mechanisms are different.
ii) According to Allen, Pound ignores the importance of personal freedom for happy social
life and stresses more on the material welfare of individuals.
iii) Pound’s theory is also criticized on the ground that it has not much significance in a
pluralistic society where there are linguistic, ethnical, and religious minorities having
diverse interests. Harmonizing their interests through law is a very difficult task.
iv) Fridmann has criticized Pound’s classification of interests. According to him, these
individual public and social interests are changing conceptions. They become relative
with time and place and from society to society.
Whatsoever may be the criticism against Pound’s theory, his contribution to
sociological school is very important. It is the basis of study for many jurists like Justice
Holmes and Cardozo in recent times.
7) Justice Holmes (1841 to 1935)-
Justice Holmes was a judge of the American Supreme Court. Therefore, he
considers that the judges’ role is very important in moulding law to suite life’s needs and
5
इतर लोक अपꢆयावर अधि कारावर ह
े
तुपुरꢇसर हमला करꢂार नाहीत / [दसर
े
जानबूझकरआपपर/ꢈाधि करꢂपर
ू
हमलानहीधकं रेंग
े
]
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‘Sociological School’
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satisfaction.
He studies law in a pragmatic manner and adopts a realistic attitude to analyze its
working in society. He considers law as a means to protect and promote the collective
group interests as compared with the individual interests.
8) Benzamin Cardezo (1870 to 1938)-
Cardozo was also a judge of the U.S. Supreme Court. Like Holmes, he also viewed
the law from its social perspective. He wants the law to be studied in the light of social
necessities and realities of life. According to Cardozo, the law must keep pace with social
development and shape itself to the changing needs of society in order to attain the ends of
justice.
Cardozo was primarily concerned with two important aspects of law; first, how
judges should apply the law to the cases before them. and, second, how law grows in
society?
III. Indian perspective as to sociological school-
In fact, before independence, there was no social aspect found in the then-existing
British rule. The law was strictly enforced to serve the British. Law was used as an
instrument of suppression of Indians. There were different sets of laws, one for British
people and another for Indian subjects.
However, after independence and the making of the Indian constitution, sociological
thoughts in a true sense were incorporated into Indian society. Insertion of fundamental
rights, directive principles, fundamental duties etc., in the Indian Constitution moved India
towards real socialization.
There is a number of legislations to protect the interests of the socially and
economically backward classes and physically challenged.
The concept of PIL has opened new sight of interpreting laws in the context of
society. Judges like P. B. Gajendragadkar, P.N. Bhagwati, Krishna Iyer etc., have
contributed to the development of new Indian jurisprudence based on existing realities of
Indian life. Courts are also adopting firm social philosophy founded on humanism,
socialism and secularism.
Thus, in the Indian legal system, we well find matured and developed social
jurisprudence.
In conclusion, we may say that the contribution of the Sociological Schools to legal
development is remarkable.
*****