SOCIOLOGICAL SCHOOL OF

JURISPRUDENCE

Prepared by: Mayank Kapila

Assistant Professor (Law), M.S. College,
Motihari, B.R.A. Bihar University, Muzaffarpur
Contact:- kapilalegal.brabu@gmail.com
Introduction
 Historical School explained law in terms of ‘social
context’ and accordingly in a way laid down the
foundation of sociological jurisprudence.
 It established a relationship between law and society.
 Law was understood as a ‘social phenomenon’ and
believed to have some direct or indirect relation to
society.
 Sociological jurisprudence emerged as a result of shift in
ideology of the State from ‘Laissez-faire’ to ‘Welfare
State’.
 ‘Laissez-faire’ means the policy of minimum
governmental interference in the economic affairs of
individuals and society.
 It offered unrestricted freedom to the people by the
government in the economic matters.
 Situation of ‘free market economy’
 This resulted in predominance of individual interest
rather than general interest or interest of the welfare of
the State.
Highlights of Sociological
Jurisprudence
 law is not unique but only one of the social
control norms;
 the socio-economic problem of the present time cannot
be solved by means of the existing laws;
 laws in the books and statutes containing formal
rules, legislations and expositions of particular subjects is
not where the real law in society is to be found;
 law is not an absolute and static body of rules in
themselves but are relative to time, place and society;
 there is a concept of ‘social justice’.
Chief propounders of Sociological
Jurisprudence

 Rudolph Von Ihering

 Leon Duguit
 Eugen Ehrlich
 Roscoe Pound
Rudolph Von Ihering (1818-1892)
(images are being used for academic purpose only)
‘Purpose Theory’
 According to him the dominant notion to be found in the exercise
of human will is that of ‘purpose’.
 Law is a part of human conduct, and in the idea of purpose Ihering
found the mainspring of laws, which are only instruments for
serving the needs of society.
 Their purpose is to further and protect the interest of society.
 In society there is an inevitable conflict between the social
interests of man with each individual’s selfish interests. To
reconcile this conflict, he employs the method of reward viz., by
ensuring that economic wants are satisfied, and also by coercion.
 He divided interest under three broad heads, viz., individual,
social and state interest.
Law and Conflicting Interests
 The success of the legal
process was to be measured
by the degree to which it
achieved a proper balance State
between social and individual Interest
interests.
 Law, according to him, was to
encourage social purposes by Individual Social
the lovers of social motion Interest Interest
viz., coercion and rewards,
duty and love is to establish a
balance of interests.
 Law, according to him, never serves the interests of an
individual as end in itself but only as a means to the good of
the society and hence is a relative concept.
 No logical or abstract theoretical refinement of the purpose
of law possible, since the purpose of law has to be in tune
with the needs of a particular society at a particular time.
 He refuted the individualistic concept of law which limited
the function of law to the securing of civil liberty by
protecting the rights of individual in consonance with those
of others.
Leon Duguit (1859-1928)
(images are being used for academic purpose only)
Duguit’s Belief
 There are two kinds of needs men in society:-
-common needs of individuals which are satisfied by mutual
assistance.
-diverse needs of individuals which are satisfied by the
exchange of services.
 Therefore, realization of social fact of inter-dependence of
individuals could replace ideological quarrels between
individuals.
 This lead to the concept of ‘social solidarity’.
Social Solidarity
 Social Solidarity is the feeling of oneness.
 The term ‘Social Solidarity represents the strength, cohesiveness,
collective consciousness and viability of the society.’
 Duguit explained Social Solidarity as the interdependence of men
on his other fellow men. No one can survive without the
depending on other men.
 Hence the social interdependence and cooperation are very
important for human existence.
 The objective of the law is to promote Social solidarity between
individuals. That law is bad law which does not promote social
solidarity. No distinction between private and public law. Both are
to serve the same end i.e., social solidarity.
Eugen Ehrlich (1862-1922)
(images are being used for academic purpose only)
Society as source of Law
 Eugen Ehrlich was held as the founder of Sociology of
law. Sociology of law is the study of law from the
sociological view.
 Ehrlich considered society as a principal source of the
law. And by society, he means “association of men”.
 He argued that “Centre of gravity of all legal developments is
not in legislation or judicial decisions but in society itself.”
 Also opined that society is the main source of law and
better source of law than legislation or judicial
decision.
Ehrlich’s concept of ‘Living Law’
 The central point of Ehrlich’s theory is that the law of a
community is to be found in social facts and not in formal sources
of law.
 He says “at 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 judicial decisions, but in society itself.” Thus living
law is the fact which governs life and a proper study of law
requires the study of all the social conditions in which the law
functions in the society.
 A statute which is habitually disregarded is no part of living. His
use of the term ‘sociological jurisprudence’ means that law in a
society should be made and administered with the utmost regard
to its requirements. To achieve this end, a very close study of the
social conditions of the society, in which the law is to function, is,
indispensible.
Roscoe Pound (1870-1964)
(images are being used for academic purpose only)
Social Study presupposes Legistations

 Social investigations are

preliminary to legislation.
Social
Fact
 Factual studies of social
effects are essential for
Application effective administration.
of laws
 Constant study is required
Interpretation
in order to make laws
Making
of laws
more effective.
 Essential for adjudication
of individual cases and
disputes.
 He laid emphasis to accumulate factual information and statistics
and paid little attention to conceptual thinking.
 Pound called for a new ‘functional approach to law’ based on
sound theorizing as to its purpose in a particular age.
 For him ‘Law is the body of knowledge and experience with the aid of
which a large part of social engineering is carried on. It is more than a
body of rules, it has rules and principles and conceptions and standards for
conduct and for decision, but it has also doctrines and modes of
professional thought and professional rules of art by which the precepts for
conduct and decision are applied and developed and given effect. Like an
engineer’s formulae, they represent not only experience, scientific
formulations but also inventive skill in conceiving new devices and
formulating their requirements by means of a developed technique’.
Five Jural Postulates
 Men must be able to assume that others will commit no
intentional aggressions upon them.
 Men must be able to assume that they may control for beneficial
purposes what they have discovered and appropriated for their
own use, what they have created by their own labour, and what
they have acquired under the existing social and economic order.
 They must be able to assume that those with whom they deal in
the general intercourse of society will act in good faith.
 They must be able to assume that those who are engaged in some
course of conduct will act with due care not to cast an
unreasonable risk of injury on others.
 They must be able to assume that others who maintain things
likely to get out of hand or to escape and do damage will restrain
them or keep them within their proper bounds.
Theory of Social Engineering
 Pound gave the theory of Social Engineering in which he
connected lawyers with the Engineers. Engineers are
expected to use their engineering skill to manufacture
new products. Likewise, social engineers are required to
build that type of structure in the society which provides
maximum happiness and smallest friction.
 According to him, “Law is social engineering which means a
balance between the competing interests in society,” in which
applied science is used for resolving individual and social
problems.
 Social Engineering is the
balancing the different
interest of Individual and Individual
the state with the help of
law.
 Law is a body of awareness
with the help of law the Public

large part of Social

engineering is carried on.
 Law is applied to solve the Social

conflicting interest and

problems in society.
Individual Interests
Domestic Interests of
Personality Relations Substance
• Physical Person • Parents • Property
• Freedom of Will • Children • Freedom of
• Honour and • Husband Industry and
Reputation • Wife contract
• Privacy • Promised
• Belief and advantages
opinion • Freedom of
association
• Continuity of
employment
Public Interests
Interest of the State
Interest of the State
as Guardian of
as Juristic Person
social interests
• Integrity, freedom of • Check Overlapping
action and honour of with social interests.
State’s personality.
• Claims of a politically
organized society as
corporation to a
property.
Social Interests

Security of Social
General Security General Morals
Institutions
• General Safety • Domestic • Prostitution
• General Health Institutions • Drunkenness
• Peace and order • Religious • Gambling
• Security of Institutions
acquisitions • Political
• Security of Institutions
transactions • Economic
Institutions
Continued
Conservation of
General Progress Individual Life
Resources
• Natural Resources • Economic • Self- assertion
• Human Resources including • Opportunities
freedoms-property, • Conditions of life
trade, industry,
inventions etc.
• Political freedoms-
speech n
association.
• Social Progress-
free arts, letters,
science, education
and learnings
Balancing of Interests

Social Engineering

Personality Security Interests

General Morals and

Domestic relations
General Progress

Interests of Conservation of
Substance Resources

Public Interests Individual Life

 Pound had not only listed the interest
recognized by law but he has also
considered the ways by which they
are to be secured. This consists of the Means Ends
device of legal persons and Device of
attribution of claims, duties, liberties, Remedial
Legal
Person Machinery
powers and immunities. There is also
the remedial machinery behind them, attribution Aims at
which aims sometimes at of claims, punishment
punishment, sometimes at redress duties, Redress and
liberties, prevention
and sometimes at prevention. Pound powers
has also maintained that a balance of and
immunities
interest is to be brought about. .
Pound further says that the class to
which an interest belong and its
relative weight is subject to change
from one class to another and form
time to time depending upon
political conception acceptable to a
society at a particular time.
Predominance of Social Interest

Social Interest

State Interest

Individual
Interest
Sociological jurisprudence: Indian
position
 Legal scholars, judges, jurists all have emphasized the
importance of the relationship of law, society and social
changes which are taking place so fast.
 In the past few decades, many judges of the Hon’ble
Supreme Court of India have suggested for the adoption of
sociological approach in the interpretation of law to writ the
needs and necessities of the people of India.
 Since law is a social science, judges would not depend only
on abstract principles or rigid legal cannons alone but on
social circumstances, demands and needs of time.