SOCIOLOGICAL SCHOOL

• Common field of study – effect of law and society on

each other – studies the inter-relationship between
law and society
• Law is an instrument of social progress
• Considers law as a social fact or reality to shape,
mould and change society to subserve its needs,
expectations and goals
• Concerned with the actual working of law and not
with the nature of law
• Sociological jurists - sceptical of the rules presented in
the textbooks and concerned to see what really
happens, “the law in action”
AUGUSTE COMTE (1786-1857)
 AUGUSTE COMTE...
• Considered as the founder of sociology as a
science
• Comte’s Method – Scientific Positivism
• Scientific method needs to be applied to the
science of sociology
• Society – like an organism which can progress
when guided by scientific principles
• Stressed on empirical methods for the study
of society – observation and experience
EMILE DURKHEIM (1858-1917)
 LAW AND SOCIAL SOLIDARITY
Society – not just an aggregate of individuals
A collection of individuals not society simply
because they happen to be in close proximity to
each other
Solidarity - Society exists because of
interdependence and bonding among a group of
individuals.
Division of labour – marked by people depending
on each other for various needs gives rise to a
social cohesion
 Cause of Social Solidarity
• Principal Cause of Social Solidarity – Division of Labour
• Specialisation and Division of Labour – powerful forces for
social solidarity
• Division of Labour – usually associated with economic
efficiency
a system under which
blacksmith - makes the plough
farmer - uses the plough to till the land
(is far more efficient than a system under which farmers have to
make their own tools)
Packers and Movers – (helping people shift their luggage from
one place to another), would be far more efficient
Food delivery services, apps etc.
 contd...
• People in all parts of the world benefit from the
economic efficiency that division of labour
produces
• More important function of division of labour –
bringing people together in a diverse society
• Apart from creating a technologically advanced
society, it also maintains its social cohesion by
making people depend on each other’s
functions
Producers and consumers depend on each other
“We are thus led to consider the division of
labour in a new light. In this instance, the
economic services that it can render are
picayune compared to the moral effect that it
produces, and its true function is to create in
two or more persons a feeling of solidarity. In
whatever manner the result is obtained, its
aim is to cause coherence among friends and
to stamp them with its seal.”
In primitive societies – division of labour less
pronounced as individuals are very similar to
each other (they hunt and gather food in the same manner,
jointly defend their territories and live their lives in the same way)
Modernity – brings dissimilarity through
specialisation
Specialisation – brings about division of labour and
a new form of social solidarity based on mutual
need
 How can Social Solidarity be
measured?
Durkheim – Social Solidarity is a moral (mental)
phenomenon – cannot be accurately measured
Though it cannot be directly measured, recourse could be
taken to the evidence or visible symbols of it.
Visible evidence – laws of the society
Durkheim’s key sociological insight – Contours of society
are reflected in its laws
Nature of social life of a society can be found by looking
at its laws.
Law mirrors society
• What form of solidarity prevails in society?
In order to understand it, it is important to know the meaning
of law.
Durkheim – Law is a ‘rule of sanctioned conduct’
Laws can be classified according to the nature of the
sanctions
Two types of sanctions
Repressive sanctions – take the form of punishments –
typically relate to crimes (Mechanical Solidarity)
Restitutive sanctions – meant not to inflict sufferings but to
restore the parties to the position that they were in before
the unlawful act was committed – characteristic of civil law
(Organic Solidarity)
• The type of law in a society is the indicator of the type
of social solidarity
Type of sanction is the indicator of the type of law
• Two kinds of laws represent two kinds of solidarity
Repressive law – represents a mechanical form of
solidarity (characterised by like individuals and little
division of labour)
Restitutive law – reflection of an organic form of
solidarity (predominant in societies with a high
degree of specialisation and division of labour)
Every society has both forms of law
 EUGEN EHRLICH (1862–1922)
• Law of a community is to be found in Social
facts and not in formal sources of law
“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 decision, but in society itself.”
The real source of law is not the State or
Sovereign but the society itself.
 Legal Norm and Legal Proposition
• Legal norm – rule found in the form of actual
practice
• Legal Proposition – precise, universally binding
formulation of a precept in a book of statutes or
in a law book
• The legal norms in the form of social practice
exist even without the legal propositions
• The legal norms, the rules of inner order,
represent the living law and legal propositions
comprise the law in the books
• Living law gives content to the law in the books
 Living Law
• Formal law (legislations or judge-made laws) only partly
reflects the norms which, in fact, govern social life
• Essential body of legal rules is always based upon the social
‘facts of law’
• ‘Fact of law’ underlying all laws – usage, domination,
possession and declaration of will – these facts regulate
the social relations and make the ‘living law of the people’
• Formal or State-made law i.e. Statutes and decisions is
only a part of the ‘fact of law’ and generally lag behind the
living law
• A proper study of law requires the study of all the social
conditions in which the law operates
 Formal legal norms and customs,
usages etc.
• No substantial difference between formal legal norms
and the norms of customs, usage – Reason – sanction
behind both of them is same i.e. Social pressure
• If a statute is not observed in practice, it is not a part
of ‘living law’
• Sociological jurisprudence, as per Ehrlich – law in a
society should be made and administered with utmost
regard to its requirements.
• In order to achieve this end, a very close study of the
social conditions of the society where the law
functions is of utmost importance
 Ehrlich - Criticism
• No distinction between legal norms and other social
norms – gives rise to confusion – such distinction
necessary for proper study of jurisprudence
• Friedmann – ‘Ehrlich’s sociology of law is always on the
point of becoming a necessarily sketchy, general sociology’
• Ehrlich expands the scope of the subject and its relation to
other social sciences to absurd limits
• Allen calls this approach– Megalomaniac Jurisprudence –
which suggests that jurisprudence should be all embracing
and know no boundaries.
• ‘Jurisprudence cannot hope to be compendium of all the
social sciences... Knowledge of everything usually ends in
wisdom of nothing’
 Ehrlich - Contribution
• Adopted a scientific and comprehensive
approach
• Suggested that law should be studied in its social
context and emphasises its close relationship
with life of the society
• Points out the social function of law
• In making and administering law, requirements
of society need to be taken into consideration –
for this, the social conditions in which law is to
operate has to be closely studied
Recognition of living law
Eg. Brown v. Board of Education
Separate but equal principle
The storm over The School Segregation Cases and
the climate existing in this land in the decade
since the Brown decision indicates that the Court
correctly gauged the living law and properly
interpreted the sense of justice existing
in America.
ROSCOE POUND (1870-1964)
• Most prominent American Sociological Jurist

• Difference in approach as compared to some other

theorists of sociological school – i.e. -others were
concerned with the law in the broader social sense
Pound mainly focused on lawyer’s law – law made by
legislators, judges and other authorised officials

• His focus – discovering how formal legal order (i.e. The

whole legal system comprising its institutions,
doctrines, rules and techniques) serves its social
purpose
 TASK OF FORMAL LEGAL ORDER
• Changed over time
In Primitive Societies – nothing more than
keeping the peace... Putting an end to revenge
and private war as the means of redressing
injuries – law was not an instrument of social
change

Role of law in Greek city states – orderly

maintenance of status quo
Greek teleological view assigned individuals to
specific roles according to a cosmic plan
Teleological view of Plato – everything and
everyone has an appointed purpose within
the scheme of the universe and therefore
each has a peculiar excellence. Justice means
to serve that purpose and strive for that
excellence. A horse has a purpose... So has a
man..
This theory persisted through Roman law and
Middle ages
Then came reformation – marked by individual
freedom
17th and 18th centuries
primary role of law – provision of maximum
individual liberty consistent with the similar
liberty of others
Law’s role (according to Pound) – to recognise and
adjust competing interests with a minimum of
friction and waste
Judicial and legal activity – a form of social
engineering
Social Engineering – comparison of legal task to
that of a problem-solving design engineer
who tries to make the machine run more
efficiently and smoothly
Law – problem-solving design engineer
Machine – Society
Task of law – to make society run more
efficiently and smoothly
 INTERESTS
Meaning – Interests are claims that persons make of legal system
Some claims are recognised
Some are not
Examples – Claim not to be subjected to theft, robbery, assault etc.
recognised by criminal law; a transgender person’s claim for
freedom to determine its gender identity
Pound identified 3 kinds of interests
Individual Interests – relating to person, property and personal
relations
Public Interests – relating to dignity of state as a juristic entity
Social Interests – include interest in public safety, peace and order,
public health. Interests in Security of social, domestic, religious
and economic affairs
Interests are frequently in conflict
• A factory owner’s claim to operate machinery may
conflict with a neighbour’s claim against noise
• Claim of parliamentary privilege may conflict with a
claim for damages for defamation in Parliament
There are continuous and consistent efforts by individuals
and groups to gain recognition of new rights and to
defend established rights
RESULT – Conflicts – which have to be resolved by
legislature
In the absence of legislation – by the Courts
 Principle of valuing and adjusting
competing Interests
• Legislature resolves them according to
political convenience
• Courts – courts must secure as much as
possible of the scheme of interests as a whole
with the least friction and waste
• There is no theory available to judges other
than judicial pragmatism that has served
society well
• Pound’s main contention – whatever theory of
adjudication we use, we cannot get away
from the problem of reconciling and
balancing competing interests
“For the purpose of understanding the law of
today I am content with a picture of
satisfying as much of the whole body of
human wants as we may with least
sacrifice...”