Philosophy of Law

Summary: Law and Social Theory

What is a sociological perspective?

Sociologist tend to employ three important concepts, which are social structures, social satisfaction,
and social function. Social structures suggest that in any society there are a number of institutions
(legal, cultural, political, economic, etc.) which form social structure and which interact in a variety of
complex ways, thus one institution or group may exert greater political or economic influence than
another, hence the idea of social satisfaction that includes problems of class conflicts, sex, and race
discrimination. These institutions and groups may be analyzed in terms of their particular social
function. The sociologist of law, therefore is concerned to analyze and interpret the part played by
law and legal administration in effecting certain forms of conduct or behavior.

Roscoe Pound: Social interests and ‘jural postulates’

Pound, the leading exponent of ‘sociological jurisprudence’, emphasizes on the importance of the
distinction between ‘law in books’ and ‘law in action’. According to Pound, the task of lawyers and
legislators is ‘social engineering’. The law, by identifying and protecting certain interest, ensures social
cohesion. The interest is legally protected by attributing to it the status of legal right.

Pound’s elaborate theory of interests includes, for example, what he calls ‘individual interest’
comprising interest of the personality (the physical person, freedom of will, honor and reputation,
privacy; and belief and opinion), ‘domestic relations’, and ‘interest of substance (property, freedom
of industry and contracts, freedom of association, and similar interest). There are also ‘public interest’
which include ‘interest of the state as juristic person’, and ‘social interests’ (including interest in
general security, covering those branches of law which deal with safety, health, peace and order, the
conservation of social resources, and so on).

Pound proceeds to examine the various legal means (including the concepts of rights and duties) by
which they are secured. He then argues that when interests conflict, they may be ‘weighed’ or
‘balanced’ only against other interests ‘on the same plane’. Thus, an individual interest must not be
weighed against a public interest, and so on. He also presents a classification of the institutions of law:
he distinguishes between: rules, principles, conceptions, doctrines, and standards. According to
Pound, the business of the law consists in satisfying as many interest as possible.
Eugen Ehrlich
Ehrlich, like Pound, recognized that the formal sources of law provide an incomplete picture of what
law is really like—the ‘living law’. This is to be distinguished from what he called ‘norms of decision’
(rules found in the civil codes, judicial decisions, and statutes) which are the norms to be enforced by
the courts when parties resort to litigation. ‘Living law’ is ‘the law which dominates life itself even
though it has not been posited in legal propositions’.

Pound
He conceives of society as groups of
individuals united in their pursuit of
the interest in diminishing resources.
He adopts a less individualistic approach: individual
behavior is channeled by norms of social groups.
His principal concern is to harmonize
the ‘law in books’ and the ‘law in action’.
Ehrlich
He adopts a less individualistic approach: individual
behavior is channeled by norms of social groups.
He does not regard ‘norms for decision’ and ‘living
law’ as in competition: they are applied under
different conditions: the former in disputes, the
later in normal circumstances.
His conception of law is largely
rule-based.
His distinction between ‘law in books’
and ‘law in action’ is confined to
actions by citizens.
He regards law as a method of ‘social
control’, a tool for social engineering.
Norms are the claims made by
competing groups in society.
His distinction between ‘norms for decision’
and ‘living law’ reveals a more complex
conception of law.
His distinction between ‘norms for decision’ and
‘living law’ extends to decision-making by judges,
lawmakers, and other officials.
He sees law as a development from social forces
rather than a tool for social engineering.
His theory of norms is more complex: they reflect
shared feelings, behavior, and identity.