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Background and Characteristics of Sociological School


Authored by - Prachi Aggarwal

Keywords - Jurisprudence, sociological school, jurists, abstract content.


Abstract


The sociological school of jurisprudence is one of the principal laws of our age. It symbolizes one of the most important characteristic features of the present age society. It also laid critical emphasis on the fact that the working law is more admirable than its abstract content. In simple words, this school jurist believes that studying the law in action is better. Therefore, definite considering it better than studying the law from textbooks.


Introduction


As already stated above, the sociological school of law considered law as a social phenomenon and examine law in relation to society. The school laid the emphasis on the link between sociology and law i.e. the actual condition and situation which requires the help of law. Furthermost, the fundamental postulate of sociological school is that we cannot understand what a thing is unless we study what it does i.e. Law in Action.


Background


The factors which led to the establishment of the sociological school are as follows:


1. Laissez Faire Doctrine-


The 19th century witnessed a shift of emphasis from the individual to society. This happened as a result of the shocking consequences resulting from the ‘laissez faire doctrine’.


2. Volkgeist-


The historical school which was a reaction to the intense individualism of the 19th century by its emphasis on volkgeist -spirit of people- indicted that law and social environment in which it develops are intimately related. This idea was worked out by the jurist of sociological school.


3. prior to 19th century-


The matters like health, welfare, education etc were not the concern of the state. In the 19th century because of laissez faire doctrine became more concerned with matters encompassing all aspects of human life and welfare. This implied regulation through law take account of social phenomenon.


4. It was established as a reaction against too much theorizing of law. By the time purely format analyses were being felt.


5. Revolution and social unsettlement not only upset any complacency about social stability but also provoked anxiety about the shortcoming of law. Sociological jurists wanted to overcome these shortcomings. These factors contributed to the rise of sociological school.


Roscoe Pound (1870-1964)


Roscoe Pound is regarded as one of the most noted American Sociological jurists of the 20th century. His “Readings on the History and System of the common law,” “The Spirit of Common Law,” “Interpretation of Legal history” etc. are the most original outstanding works in the field of legal philosophy in the United States.

He defined law as containing “the rules, principles, conceptions, and standard of conduct and decision as also as also the precepts and doctrines of professional rules of art.”

According to him, “law is not a set of rules but is a method or technique for harmonizing conflicting social interests.”


Pound classified interests as: Private, Public and Social interests. Private interest includes interests of personality. The public interest includes an interest in the preservation of the state.


Pioneers of Sociological Thought


1. Auguste Comte


He first used the term ‘sociology’

Founder of ‘science of sociology’

According to his ‘Organic Theory’ – Society is like an organism


2. Rudolf Von Ihering


He was 1st great sociological jurist.

According to his ‘theory of punishment’- Punishment is a means to a social end.

Friedman called him “Father of modern jurisprudence.”


3. Ehrlich


He gave the ‘theory of living law’.

He distinguished between norms of decision and norms of conduct.


Basic Tenets of Sociological School


Following are the basis tenets or characteristics of the sociological school-


1. Sociological jurists regard the working of the law ( that is, of the legal order, of the body of authoritative guides to decision, and of the judicial and administrative processes) rather than the abstract content of authoritative precepts.


2. Sociological jurists regard law as a social institution, which may be improved by intelligent effort. Hence it is the task of the jurists to find out the best means of furthering such efforts.


3. Sociological jurists lay stress upon the social purposes which the law subseries rather than upon sanctions.


4. Sociological jurists look at legal institutions and doctrines and precepts functionally. They regard the form of legal precepts as a matter of means only.


5. According to this school, the main function of law is to fulfill the needs of society. Social requirements are accomplished by law. Law is also a social instrument for maintaining law and order in society. Paton is of the view that law is social machinery for securing order in the community. Since all the jurists of this school lay stress upon the functioning of law in society they are also known as pragmatists.


India and Sociological Jurisprudence


In India, Sociological Jurisprudence has been adopted in the Indian Constitution. Part III of The Constitution of India solely deals with the Fundamental Rights of the citizen and people of this country wherein the citizens and the people are provided with certain rights. These rights are provided by recognizing the public and private interests of the individual. Further, the rights that are provided in this chapter have certain limits and hence these rights will not be accessible under certain situations and certain circumstances. Further, satisfying the third condition of Pound these rights have been secured as the Constitution of India says that any law that is in the conflict of the Fundamental Rights will be held ultra-vires.

Further, there are several cases wherein the concept of Sociological Jurisprudence has been mentioned and has been taken into consideration while delivering the judgment.

In the case of Ashok Kr Gupta & others v State of Uttar Pradesh[1] it was held that this court is not bound to accept an interpretation that retards the progress or impedes social integration.


In the case of Union of India & Anr v Reghubir Singh[2] the court observed that the aspect of the social conduct and experiences of the ages has to be considered while determining and framing the new laws and norms.


In the case of State of Madras v Champakam Dorairajan[3] the Court held that Article 46, being a directive principle cannot override the fundamental rights.

In the case of N. Adithayan v Travancore Devaswon Board and Ors[4] the observed that distinction based on cast could not be allowed to permeate in the social fabric of the society. Thus, the Court reaffirmed its stand that discrimination of any sort, amounting to untouchability would not be tolerated.

Comparison between Historical, Analytical and Sociological School


Sociological school is the revolt of function against fact (of the Historical School) and it is the protest against the orthodox conception of law as an emanation from a single authority in the state (Analytical School). The sociological school draws its inspiration from historical school and like the historical school; it attaches importance to relations of law to social institutions. But, unlike historical school which gives primacy to primitive legal institutions, it concerns itself primarily with contemporary institutions of the society. This school devotes its attention, not on the ethical content society. This school devotes its attention not to the ethical content and aim of the law, but to actual circumstances which give rise to legal institutions and which condition their scope and operation.


Conclusion


Thus according to the sociological school, the law is not an isolated fact but a part of social phenomenon. Sociological School of Jurisprudence studies the relationship between and society. It explains the interdependence of law and society. One can’t formulate better and effective laws without looking and studying the need and structure of society. For the betterment and harmonious society, we need better and effective laws. For Example, after the 2012 Delhi gang Rape happened (Nirbhaya Gang Rape). Rape laws are amended in India.


Every problem in Indian has two aspects, one is legal and the other is the Sociological aspect. like, the legal aspect of Female Infanticide is in 1795, infanticide was declared to be murder by Bengal Regulation XXI. The British government took steps against the evil of female infanticide and propaganda the same. And its sociological aspect is that nature designed both sexes for the perpetuation of the human races. Gender equality and the empowerment of women were considered one of the eight Millennium Development Goals by the United Nations Population Fund in 2001.


[1] Ashok Kr Gupta & others v State of Uttar Pradesh (1997) 5 SCC 201

[2] Union of India & Anr v Reghubir Singh (1989) 2 SCC 754. [3] State of Madras v Champakam Dorairajan AIR 1951 SC 226. [4] N. Adithayan v Travancore Devaswon Board and Ors 9 AIR 2002 SC 3538.


References


1. Misha, Sociological school of jurisprudence, LAWORDO (February 1, 2019), http://www.Lawordo.com/sociological-school-of-jurisprudence-an-overview/

2. Saurav Bhola, Sociological school of jurisprudence, IPLEADER (January 11, 2019), https://blog.ipleaders.in/sociological-school-of-jurisprudence/

3. PROF.NOMITA AGGARWAL, JURISPRUDENCE 323-334(CENTRAL LAW PUBLICATIONS1997)(2016)

4. ASHOK K JAIN, JURISPRUDENCE-1 50-57(ASCENT PUBLICATIONS1996)(2008)