CHAPTER VI

THE FUNCTIONAL SCHOOL

The scope and purpose of sociological jurisprudence

SOCIOLOGICAL JURISPRUDENCE
The sociology of law is often distinguished from sociological jurisprudence.
The latter is not primarily concerned with debates within mainstream
sociology and instead engages with some of the debates within jurisprudence
and legal theory. Sociological jurisprudence seeks to base legal arguments on
sociological insights and, unlike legal theory, is concerned with the mundane
practices that create legal institutions and social operations which reproduce
legal systems over time.

THE SCHOOLS OF JURISTS

AND THE METHOD OF JURISPRUDENCE
It has been possible to divide the jurists into three principal groups:
1.PhilosophicalSchool
1.1 18thCentury Law-of-Nature School;
1.2. Metaphysical School during the first half of 19 th century; and,
1.3.Social-Philosophical School the Neo-Hegelians seems to have the most fruitful program
2.HistoricalSchool
2.1.German Historical School; and
2.2.English Historical School
3.Analytical School

ANALYTICAL SCHOOL
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be
modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out
that legal formalism is fundamentally mistaken as a theory of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when referring
to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of
what law is and what it ought to be.

David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing
that the world is a certain way to saying therefore we ought to conclude on a particular course of action.

But as a matter of pure logic, one cannot conclude that we ought to do something merely because
something is the case. So analysing and clarifying the way the world is must be treated as a strictly
separate question to normative and evaluative ought questions.

 The analytical jurists pursues a comparative study of the purposes, methods

and ideas common to developed systems of law by analysis of such systems
and of their doctrines and institutions in their matured forms.
Putting differences and taking of diversities

Hence, it is appropriate to a developed system only.In its crudest form, this

is expressed in Austins dogma that a law is a command. The kernel of it is
that law is a product of conscious and increasingly determinate human will.

The Analytical School characteristics may be said to be:

They consider developed systems only;
They regard the law as made consciously by lawgivers, legislative or judicial;
They see chiefly the force and constraint behind legal orders;
For them the typical law is a statute;
Their philosophical views are usually utilitarian or teleological.

HISTORICAL SCHOOL OF JURISPRUDENCE

The historical school of jurists was founded by Friedrich Karl von Savigny
(17791861). Its central idea was that a nation's customary law is its truly
living law and that the task of jurisprudence is to uncover this law and describe
in historical studies its social provenience. As in other schools of thought,
acceptance of this approach did not necessarily mean agreement on its
theoretical or practical consequences.

 In opposition to the analytical jurist, the historical jurist and philosophical

jurist agree that law is found, not made.
They deny that law is a product of a conscious or determinate human will.
They hold that the living organs of law are doctrinal writing and judicial
decision, whereby the life of a people, expressed in the first instance in its
traditional rules of law, makes itself felt in a gradual development by molding
those rules to the conditions of the present.

Hence, the historical jurists may be characterized thus:

They consider the past rather than the present of the law;
They regard the law as something that is not and in the long run cannot be
made consciously;
They see chiefly the social pressure behind legal rules;
Their type of law is custom;
As a rule, their philosophical view have been Hegelian.