Origin and Emergence:
“Values” are core beliefs within society as to what is good and bad, moral and immoral, and acceptable and unacceptable. Similarly, “norms” are action aspects of values that teach us how to behave in a situation and “customs” is a close synonym to the norm, which guides the life of an individual. These were the founding stones of law. “Laws” were formal “norms” that attracted sanctions by the society.
With time, the power to put sanctions went to the hands of kings and churches. By the 19th century, the concept of a police state began to weaken and the welfare state gained popularity due to increase in population and social revolutions, and thus arose the conflict between individual interest and social welfare. Thus the need for a new approach to the study of law was felt.
The Sociological School emerged towards the end of the 19th century as a retort to the Analytical and Historical schools, either of which perceived law as an isolated institution, independent of social factors. The former derived law from the sovereign power or the superior authority, whereas the latter perceived it to be the ultimate result of independently flowing historical and cultural events and processes. The Natural School had started losing its ascendancy in the early 20th century with increasing disbelief towards the divine principles due to economic and social conflicts. These various approaches were failing in the face of newfound economical development, social change, and legal reform. Hence, a new approach towards the study of law was the need of the time. A method was required that considered law as a social institution, studied the relationship between a group of individuals, their interest, and the means to realize those interests. The jurists of this group were of the view that law is an instrument of social control, used as a means to resolve immediate problems of the society.
There is no common consensus that can be identified as the central approach to the sociological school of law due to the vast time period it developed in and the wide range of subjects it had its influence on. However, the bedrock ideology on which it is based is how law changes in a society, what impact it has on society as a whole, and their symbiotic relationship.
Laissez-Faire
Laissez-faire policy was widely practised in the 19th century. It propagated that the only duty of government was to maintain order and security, thereby encouraging “non-interference of government in the economic sector”.[1] However, this movement led to chaos when the increasingly powerful industrial sector exploited the economy to fulfil their selfish needs, thus disturbing the balance between the welfare state and individual interest. The sociological school developed as a retort against the said policy, in order to restore balance.
Jurists of Sociological School:
Montesquieu (1689-1755)
Montesquieu began writing when “doctrine of the law of nature” as laid down by Hugo Grotius, was at the peak of influence. The followers of this doctrine believed that law was merely a corollary to the Social Contract made during the beginning of civilization. It was naturally deduced that this social contract took place in every civilized society; therefore the rule of law must also be the same everywhere and every time. In strict contradiction to this theory, Montesquieu established “that law depends on multifarious conditions and varies at once with these conditions”.[2] This was the first time that Law was considered a form of social life and that “it cannot be explained scientifically otherwise than by working of social forces”.[3] Montesquieu strongly believed that law is shaped by society and shapes it at the same time, in contradiction to the belief of his age that law is imposed on the society by an outside sovereign/legislator. He takes a step further in stating that economy, geography, and climate also govern the lives of men; hence has its impact on the law. He was superior to his peers in the 18th century in his idea that legislation must be based on a scientific basis.
Roscoe Pound (1870-1964)
Pound’s theory can be understood through three interlinked stages where he puts light on his three most important theories, namely (1) Social engineering, (2) Interest theory and (3) Jural Postulates.
Pound deduces his Sociological Jurisprudence theory from the fact that we do not live in a utopian society and hence all our individual demands cannot be satisfied. Therefore, he formulated the conflict theory found on individual interest. The scarcity of goods leads to conflict between individuals and to escape this situation, man devised the system of law. This system is to be implemented by a monopoly of coercive power, which would fulfill “as much of the whole scheme of demands with the least friction and waste.” [4] This theory was popularly termed as Pound’s Social Engineering, where he strives to strike a balance between conflicting interests with the tool of Law.
He further divided these “interests” into 3 categories so that they may be balanced against each other, in his Interest theory.
(1) Individual Interest– – These are the interests that a particular person consciously recognizes as his own. It consists of an interest in domestic relations, interest in personality (freedom of will, reputation, etc) and interest in substance (property, freedom to contract, freedom of association, etc).
(2) Public interests-. These are the claims made by individuals on behalf of a politically organized society. These include the interest of the State as a juristic person and guardian of social interest. For example, preservation and construction of state made institutions. This generally falls within the scope of criminal law
(3) Social interest- These are the claims or desires by a social group involved in social life. This includes interest in security of religious, economic and social organization, interest in general morals of the society (as against gambling, prostitution, etc) and interest in safety, health, peace, etc.
Pound introduced the Jural Postulates as a method by which the above interests can be evaluated and demarcated in due order of priority, so that conflicts between them may be overcome. He proposed 5 jural postulates by generalizing some values that he felt must be general to all legal systems throughout the world, even if they’re based on different ethnocultural philosophies. [5]
(1) Criminal– Interest of security from any intentional aggression. E.g. Battery, Assault
(2) Patent– Interest of people having total control over things which they have discovered, created or legitimately acquired by their own labor and handwork. E.g. Usufruct as property.
(3) Tort– Interest of being protected from unreasonable harm and that people should act with due care and good faith. E.g. Negligence
(4) Contract– Interest of coming into a contract and to be able to be compensated when his rights are violated.
(5) Strict Liability– Interest of being protected from things that other people maintain in their land/boundary that are likely to escape and cause harm.
Eugen Ehrlich (1862-1922)
Eugen Ehrlich founded the concept of Sociology of Law through his book Grundlegung der Sociologie des Rechts (Foundation of the Sociology of Law) in 1913. The benchmark of Ehrlich’s legal philosophy is set in the prologue of Fundamental Principles where he states, “At the present as well as at any other time, the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in a judicial decision, but in society itself.”[6] Ehlrich was of the opinion that no statue, legislation, or judicial decisions in any society is truly efficacious unless the underlying law, which he called the “Living Law”, was also considered. [7]
Who can seek maintenance under section 125 of the Code of Criminal Procedure, 1973?
“Living law”, as stated by Ehlrich, is found partially in legal texts, statutes or precedents, but is found fully in the way people interact with their fellow men in associations and activities & in the norms governing life in society. He conceived law in lines of existing society and stated that laws need not be applied by the state (or courts) through coercive power; rather it is created by the groups living in the society itself. He believed that to study law, one must observe the working of society and not limit his knowledge to “bundles of papers”. [8] He explained this through social institutions like marriage, inheritance, contract, possession, etc which govern the society through “living law” and ultimately dominates human life.
Leon Duguit (1859-1928)
Duguit was a French scholar and jurist. His study of Sociological Jurisprudence was greatly influenced by Auguste Comte and Durkheim. Duguit dismissed the traditional notions of state sovereignty and approached social jurisprudence from the angle of society. He aimed “to establish in a positive way, a jural principle limiting the power of the State in accordance with the right (par le Droit)”. [9] Duguit rejected any absolute authority of state power and propagated putting a check on abuse of state power. He opinionated that a rule becomes a law even before it is enacted by the State provided it is backed by a majority of the society. Therefore, the State should not have any special position. He went on to emphasize how duties were more important than rights; if every member does his duties well then the rights of other members are readily protected.
Duguit propounded the “Social Solidarity” theory based on the fact that human interdependence in society is inexorable and law arises out of this harmony and coherence among men. He considered social solidarity as a fundamental act of human existence. The theory suggested that it is impossible for an individual to survive in the present-day world without depending on his fellow men for food, cloth, health, security, etc. which ultimately leads to the division of labor in society. [10] The end of all such associations and activities should be to promote interdependencies among individuals. The law, according to Duguit, should be able to contribute to this end. Thus, rule of law should define and put an end to the arbitrary use of power by the sovereign and as a result, no legislation or judicial order is valid which is not in lines with the theory of Social Solidarity.
Conclusion:
At this point, it is pertinent to mention that however divergent the theories propounded by all these jurists may be, what remains common is their approach to study law in relation to society. They are concerned more with the working of law and less with the abstract content. This view has a great influence on modern legal systems throughout the world. However, this doesn’t necessarily mean that the other schools didn’t have their influence on contemporary laws. For instance, catholic jurists advocate sync between law and morals. Modern laws are amalgams of thoughts of all the schools. Therefore, it is impossible to study law as a whole without applying the methodologies contended by all the schools of law, as no school in itself is complete.
ENDNOTES:
[1] https://www.britannica.com/topic/laissez-faire (accessed on 17th August 2020 at 7.35 PM)
[2] Eugen Ehrlich, “Montesquieu and Sociological Jurisprudence”, Pg- 583-584, Harvard Law Review, Apr. 1916, Vol. 29, No. 6.
[3] Eugen Ehrlich,”Montesquieu and Sociological Jurisprudence”,Pg- 583-584, Harvard Law Review , Apr., 1916, Vol. 29, No. 6.
[4] Louis H. Masotti and Michael A. Weinstein, “Theory and Application of Roscoe Pound’s Sociological Jurisprudence: Crime Prevention or Control”, Page- 432-433, University of Michigan Journal of Law Reform Volume 2 1969
[5] Elise Nalbandian, “Sociological Jurisprudence: Roscoe Pound’s discussion on Legal Interests and Jural Postulates”, Page- 145-147, African Journals Online, Volume 5, No. 1 (2011)
[6] Eugene Ehlrich, “Fundamental Principles Of Sociology of Law “ Page-118, Volume 5 of Harvard Studies in Jurisprudence, Russell & Russell, 1962.
[7] James F. O’Day, “Ehrlich’s Living Law Revisited–Further Vindication for a Prophet without Honor”, Page- 213-214, Case western reserve law Review, Volume 18, Issue 1
[8] Eugene Ehlrich, “Fundamental Principles Of Sociology of Law “ Page-498, Volume 5 of Harvard Studies in Jurisprudence, Russell & Russell, 1962.
[9] Leon Duguit, “The Law and the State”, Page-6, The American Political Science Review, Volume 12, No. 3 (Aug., 1918)
[10] N. Srinivasan, “The Juristic and Political Ideas of Duguit”, Page- 3-6, Indian Journal of Political Science, Vol. 1, No. 1, July—September 1939
BY- Jyoti Rout | ICFAI Law School, IFHE, Hyderabad