The fundamental postulate of the sociological school is that we cannot understand what a thing is unless we study what it does e.g. Law in action. Law is a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction.
- Law as an instrument of social progress.
- Originated by French and German writers from the ideas of communism as well as biological evolution.
- 20th century trends.
- Reaction against positivism because positivist refused to take into account social processes.
- Law is not an isolated fact but a part of social phenomenon.
- Father of sociological jurisprudence is Roscoe Pound.
Roscoe Pound (USA)
- Sociological jurisprudence according to Pound should ensure that the making, interpretation and application of laws takes account of social facts. Towards achieving this end there should be:
- A factual study of the social facts of legal administration.
- Social investigations as preliminaries to legislation.
- A constant study of means for making laws more effective
- Study both psychological and philosophical methods of jurisprudence
- Sociological study of legal history
- Allowance for the possibility of a just and reasonable solution.
- Administration of justice in English speaking country.
- The achievements of the purpose of the various laws.
The common law still bears the impress of individual rights. So in order to achieve the purpose of legal order there has to be
Pioneers of Sociological thought
Auguste Comte:
- First used the term ‘sociology’.
- Founder of ‘science of sociology’.
- ‘Organic Theory’ – Society is like an organism.
- Inspired Durkheim, who, in turn, inspired Duguit.
Herbert Spencer:
- Above organic theory.
- Allen (‘Law in the Making’) on organic theory – “The inter-dependence of organism, in the social aspect means the mutual relation of all members of civilised society.
Durkheim:
- Made a distinction between two kinds of needs in the society – (a) common needs, and
(b) individual needs.
- Division of labour.
- Theory of “social solidarity”.
Duguit:
- “Law is rule which men possess not by virtue of any higher principle whatever good, interest, or happiness but by virtue of and perforce of facts, because they live in society and can live in society.”
- State sovereignty declines.
- Decentralisation increases ð Syndicalism increases.
- No distinction between private and public law.
- No private rights – “The only right which any man can possess is the right always to do his duty.”
Gierke:
- German jurist.
- Theory of ‘reality of group personality.’
Hauriou (and Renard):
- Inspired by Duguit.
- French.
- ‘Institutional Theory’.
Rudolf Von Ihering:
- First great sociological jurist.
- A ‘social utilitarian’.
- He continues the views of Austin, Bentham and Mill.
- “Development of law, like its origin, is neither spontaneous nor peaceful.” Constant struggle or conflict with a view to attain peace and order.” – “Law is the guarantee of conditions of life of society, assured by state’s power of constraint.”
- “Law is coercion organised in a set form by state.”
- Theory of punishment: Punishment is a means to a social end.
- Avoiding pain and achievement of maximum pleasure is the purpose of law (like Bentham).
- Korkunov is his supporter.
- Friedman called him “Father of modern sociological jurisprudence”.
Ehrlich:
- Law is to be found in social facts and not in formal sources of law.
- “Centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.”
- Facts of law –
- Usage
- Domination
- Possession
- Declaration of will
Allen calls it “Megalomaniac jurisprudence.”
