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Sociological jurisprudence and sociology of law

July 15, 2024

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This article is written by Shikha Pokhriyal. This article examines the concept of a sociological school of jurisprudence with the support of various jurists and the relationship between society and law. This article shall examine various schools of jurisprudence and their interpretation of law in comparison with sociological schools.

Table of Contents

Introduction

A study of society, human behavior, social issues, causes, and social changes falls within the ambit of sociology. Sociology examines human behavior and society to help solve various societal issues. This societal study helps to find out the root causes of the problems. In the past, law evolved from the traditions and customs that were used to govern the actions of the people. In earlier times, kings were treated as supreme, and whatever a king said was considered law. As society developed, the rule of kings was gone, and proper legislation was created to govern the actions of society.

Jurisprudence is the study that laid down the principles and basic framework upon which law was drafted. This concept of jurisprudence is that it takes into account various theorists by the scholars to explain life and law. The meaning of jurisprudence is “competence or knowledge.” It contains various schools of thought, and one of them is the sociological school. The sociological school focuses on the point that laws and society are related to each other.

The word sociology was first used by Auguste Comte in the 1830s, when he stated that it was the scientific school of human behavior and activity. After that, the concept of sociology was formulated by the American scholar Roscoe Pound. This school examines the impact of the law on society. As per many jurists, there is a very crucial link between law and society. Law is created for the people living in society, and it should be structured in a way that it fulfills its purpose of maintaining harmony and peace in society.

In this article, we shall examine the concept of sociological jurisprudence along with the perspectives laid down by various jurists.

Jurisprudence

Jurisprudence is the study that provides a framework for drafting legal provisions and principles. As time passed, society evolved and developed, resulting in changes to the basic principles and framework of jurisprudence. The basic question that is raised in jurisprudence is what can be considered as a law, and what differentiates legal principles changes from ethics, customs, and etiquette. Jurisprudence is the study that provides a structure for the drafting of legislation; it can be divided into three types; philosophical, historical and scientific. The study of jurisprudence helps to create a deep understanding of law and its purpose and role in shaping society.

Jeremy Bentham is considered to be the father of jurisprudence. Bentham used the concept of jurisprudence to analyze what can be considered law. The study of jurisprudence is very closely linked with social science, as it includes society and the people living in it. The concept of social engineering was promoted by Roscoe Pound, he stated that legal principles are related to social science. Jurisprudence is a broader field that covers legal theories and principles, along with other forms of law.

In the field of law, the principles of jurisprudence are very crucial as they help to interpret the laws. Schools of jurisprudence further act as the backbone behind the legislation of the countries. One of the key characteristics of jurisprudence is that it talks about various sources of the law. With the help of detailed concepts of jurisprudence, scholars and jurists are able to understand various fields of law in depth and how various sources of law have impacted the legal system. Jurisprudence provides clarity on what is law. Law is a set of rules and regulations that society follows in order to maintain peace and harmony. Through the study of jurisprudence, law can be understood as a concept that is dynamic in nature as it changes with society and is impacted by social, religious and cultural practices.

There are various schools of jurisprudence that formulate different theories and principles of law. Some of these schools are enumerated below:

Analytical School

This school is also known as the Austanian School. John Austin played a key role in formulating the principles of this school. Under the analytical school of jurisprudence, it was observed that law must be analyzed in its present state rather than focusing on what law should be. Austin believed that law is created in favor of humans by sovereign authority. This school of thought is against the theories of natural law, which place great reliance on morals and god. This school gave importance to sovereigns and interpreted law in accordance with history and philosophy of evolving human ideas. Some of the prominent jurists belonging to this school are Jeremy Bentham and John Austin.

Historical School

This school of jurisprudence was established by Friedrich Karl. According to the theory of the historical school, law is not created, but rather discovered from history. This school was formulated during the 19th century, highlighting the importance of history and society in order to interpret the law. According to this school, laws are not universal in nature, but they evolve as society evolves along with its customs and traditions. This school observed that the main source of law is the habits and customs of the people living in society.

The historical school advocated people-centered law by rejecting the theories of John Austin in the analytical school, where law is created by the authorities. Some of the prominent jurists and scholars of this school are Montesquieu, Savigny, and Sir Henry Maine.

Philosophical School

This school is also known as a natural school. The philosophical theory states that the aim of the legislation is to maintain harmony, peace, and law and order in society. The pillars of this school are logic and reason. The natural school is the one where it is believed that law is universal in nature and should be applied to all generations. It is believed that natural law is considered the law derived from the God, that helps to maintain ethical values and morals in society. The emphasis is put on the reasons and logic. Eminent scholars that belonged to this school are Grotius, Thomas Hobbes, etc.

Sociological School

As the name suggests, this school of thought emphasizes the importance of society while interpreting legal provisions. In this, social welfare is given importance. As per the scholars of this school, “law is the social phenomenon”. This school’s main focus is to maintain the balance between society and an individual. Some of the prominent thinkers of this school are Roscoe Pound, Leon Dugit, Montesquieu, etc.

Realist School

This school observes that law is derived from the existing desires and wishes of society. The realist school opposes the traditional methods and concepts of law. The founder of this school is Axel Hagerstrom. The realist school of jurisprudence is also known as an additional branch of the sociological school. As per this school, laws are interpreted and laid down by the judges while taking into consideration the sociological factors of society that ensure maximum justice. This school questions the orthodox legal system, where law is universal. This school is divided into two parts: American realism and Scandinavian realism. Some of the scholars of this school are Karl Llewellyn, Frank John, John Chipman Grey, etc.

Jurisprudence : definition by some eminent scholars

Several jurists and scholars gave different definitions of the term jurisprudence. Some of these definitions are enumerated below:

John Austin

Austin defined jurisprudence as “philosophy of positive laws”. As per Austin, law is created by a political superior in order to govern and control the behavior of those who are under their authority. Austin was the first jurist to state that jurisprudence is a science. He is also known as the father of English jurisprudence. According to him, jurisprudence is the science of law that consists of legal concepts and principles. In the positive law, Austin considers law as it is and not as it ought to be. He stated that jurisprudence is not a concept of moral philosophy but a systematic study of laws created using customs, morals and ideals.

Austin divided jurisprudence into two categories:

General jurisprudence: General jurisprudence consists of principles and differences that are similar to various legal systems. As per Austin, this branch of jurisprudence is known as the philosophy of positive laws. Jurisprudence is purely based on science, and it consists of legal principles and concepts that are common to different legal systems in different countries. Some examples of general jurisprudence are principles relating to property possession, rights and obligations, etc.
Specific jurisprudence: This branch of jurisprudence studies law as a science, and it is presently prevailing in different countries as a real system. As per Austin, “only actual jurisprudence is concrete.”

This differentiation of jurisprudence was condemned by various jurists like Salmond, Holland, etc.

Holland

According to Holland, jurisprudence can be understood as the “formal science of positive law”. By formal science, Holland meant that legal consequences arise due to human relations. As per him, human relations must be governed by rules and regulations laid down by the legislature rather than any substantive regulations that have been interpreted by them only. Various scholars criticized the definition given by Holland by stating that it was narrow and cryptic.

Salmond

According to Salmon, “jurisprudence is the science of the first principles of civil law”. Salmond stated that jurisprudence consists of two kinds of law, that is civil law and state law. Jurisprudence includes precedent law and does not deal with the specifics; it is only conceded with principles and conceptions. Salmond categorized case precedent into the following kinds:

Exposure to law: purpose of the case precedent is to expose the content of the real legal system.
History of law: it also aims to present the legal history of the legislation to show how a legal system has evolved.
Science of legislation: it should state the law as it should be and not as it is. They should not be concerned about the past or present, but only about the future.

Roscoe Pound

Roscoe Pound was an American jurist; he stated that laws should be interpreted in their actual working and not as per the books. Pound formulated the theory of social engineering, in which he emphasized the importance of striking a balance in society. He compared advocates with engineers, because social engineers help to govern society in a way that provides justice and pleasure to the people living in it.

Sociological school of jurisprudence

The sociological school of jurisprudence puts emphasis on the relationship between society and law. Sociology is the study of human behavior and actions. This branch of jurisprudence states that law is impacted by changes in society. This school of thought tries to maintain a balance between society and legal theories. As per this theory, law is a social phenomenon that has evolved as per the requirement of society. Law helps to maintain discipline and decorum in society that is essential to prevail justice.

Characteristics of this school are:

Sociological school of jurisprudence focuses on how law functions.
According to this school, law is a social institution that is developed as per the needs of society.
This school ignores history and sovereign control.
As per this school, the matter that is in question in court is impacted by law and society.

The sociological school was evolved and established to meet the demands of a growing and developing society. The influence of societal needs and actions on the law was ignored by various jurists and scholars in other schools of jurisprudence. This idea of ignoring the opinions of the people in society created a difference.

Sociological schools of thought put an emphasis on what a society wants and create laws as per their requirements. This school of thought helped balance the relationship between law and society. The jurist of this school believed that the law must be interpreted in a way that it helps the people of society live a comfortable life. The focus of the sociological school is to examine the pure science of law. The jurists of this school believed that the whole purpose for creating laws was to provide solutions to the problems arising in society. This school of jurisprudence emerged as a reaction to the traditional and rigid interpretation of law by the other schools. As per this school law has a direct and indirect relationship with the existing situations in society. This school helps to create the balance between the legal viewpoint and the social view point.

For example, there might be certain practices that might be illegal in the eyes of the law, but from the perspective of society, they are important for them and hold some value. In this case, the authorities need to interpret the law while taking into consideration these social practices.

Roscoe Pound: social engineering

Every person has some kind of desire or wish that is important to them, and as these people live in a society, there exists a relationship between an individual and society. It is not possible to satisfy every person’s needs. So the concept of social engineering helps to achieve maximum satisfaction by fulfilling the needs of the people, where greater good also lies. This theory wanted to convey that one desire of a person can be converted into welfare of society at large.

According to Roscoe Pound “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”. As per him, for any legal structure to be successful and efficient, it is important to take into account an individual’s interests and opinions. Without taking social interest and perspective into consideration, the government will not be able to adjudicate justice.

According to Roscoe Pound, the legislature needs to take social facts and issues into consideration while interpreting laws. He developed the concept of social engineering, where he drew similarities between a lawyer and an engineer. The meaning of social engineering can be understood by breaking down the two words. The first one is social, which means a society consisting of the interests and opinions of the individuals living in it; and the second is engineering, which means the application of science to produce and manufacture the products based upon the results of experiments. According to Pound Law, it covers the following interests:

Interest of an individual: These include the desires, wishes or demands presented from the single point of view. This kind of interest further includes the following kinds:

Personality: this includes interests concerning physical body, freedom, privacy, dignity, honor and belief or opinions.
Domestic relationships: this kind of interest is concerned with the relationship shared between a family, like parents and children, husband and wife, etc.
Substance interest: this kind of interest is concerned with property, succession and testamentary, freedom of association, freedom to contract, etc.

Interest of the public: These interests are the demands and desires of a group of individuals. This kind of interest consists of the following interest:

State interest as a juristic person: this includes interest concerning the state as the juristic individual. It includes interests like the claims of a society that is politically organized.
State interest as a guardian: this interest is concerned with guarding the social interest of society, like administration of trust, charitable institutions, safeguarding natural environment, regulating the employment of the state, and the welfare of the public by maintaining amenities, etc.
Social interest: these interests are claimed by charitable institutions or social groups that aim to maximize the welfare of society. Social interests consist of two types of interests like first, general security by dealing with general safety, health, peace and order; and second, interests concerning the security of domestic institutions, religious institutions and economic institutions. Social interests promotes certain recognized interests. Social interests also help to protect the morals of society by prohibiting drinks, gambling, etc.

Five jural postulates provided by Roscoe Pound

While evaluating conflicts or disputes, every society relies on some presumptions and assumptions. As per Pound, these assumptions are not universal in nature but are valuable and important in order to resolve a conflict. These assumptions of society are called jural postulates of the legal system. Pound discussed the following five jural postulates:

First postulate: It is assumed that in a civilized society, a man will not commit any act that would cause any harm or injury to another.
Second postulate : Men in a civilized society must be able to control their discoveries and innovations for their beneficial purposes. They must be able to benefit from what they have created through their own labor.
Third postulate: Men who are reasonable must assume that in a society with whomever they contract or interact, that person shall act in a good faith. Here, the men of society shall have reasonable expectations from the other party.
Fourth postulate: Men who are reasonable in nature shall conduct in such a way that would not cause any harm or injury to another party.
Fifth postulate: Men who hire agencies to perform some task on behalf that would cross some boundaries while performing the task, will take care of the rules and regulations in place and ensure that a specific task is performed within the proper bounds.

Scope and subject matter of the social engineering

Roscoe Pound also established the scope and subject matter of social engineering:

Classify inventory of interests;
Legally recognizing of the interests that are selected;
Securing limits of selected interest; and
Changes in the principles while determining the interest.

Criticism

Though social engineering gives consideration to society while interpreting the law, this theory is still difficult to apply in practical life. Therefore, it was condemned by various jurists. One of the grounds upon which the theory was criticized was that social engineering theory only considered the desire of an individual, which could be converted for the welfare of society; this theory ignores the personal freedom of an individual, which is very important for society as well as for the efficient functioning of the law. Pound’s comparison of law to the factory is not realistic, as law is a legal process that evolved with development and is not the result of applied engineering.

The theory of social engineering was criticized by several scholars and jurists by stating that it was way too technical and scientific, as he compared lawyers to engineers. The jurist observed that society cannot be compared to factories. Also, Pound did not acknowledge the difference between individual interest and the community interest; this showed that theory was not balanced. This theory of social engineering also ignores the dynamic and evolving nature of law as compared to science, which majorly relies on the facts and evidence.

Comte and sociology

Auguste Comte was a French philosopher and scholar born in 1798. He was the social scientist who established the term ‘sociology’ in 1838. Therefore, he was also known as the father of sociology. Comte contributed by establishing institutions to study human behavior and for analyzing developments of society. One of the major contributions of Comte to jurisprudence was formulating the theories of positivism. The positive philosophy was the method of study that applied scientific principles to interpret the law. Positivism can be defined as the concept that is dependent upon a piece of evidence derived from scientific principles in order to analyze the functions of society.

As per Comte, every society has its own set of rules and principles, just like the subject of science. In Comte’s view, society and human behavior must be analyzed or interpreted in a scientific manner so that some output can be generated that would be used for greater good. He stated that rather than analyzing society based on assumptions or speculations, sociological knowledge should be relied upon some facts and evidence. This study based on scientific principles can be done by identifying the patterns, observing the social phenomena and also by analyzing the relationships.

Comte also emphasized the importance of maintaining social order and stability. According to him, society is dynamic in nature and is a complex organism consisting of interdependent relationships. His contention was that in order to understand the overall stability of a society, the social scientist must study all its functions and features. Comte stated that in order to understand social phenomena and changes. As per him, changes and developments in society are framed by history.

The concept of positivism by Comte was categorized into three stages, enumerated below:

The theological phase

This phase is also known as the fictitious stage. At this stage, humans are dependent on supernatural agencies to justify what they can’t interpret or explain. In this phase, people use the supernatural forces to interpret social phenomena. This theological stage is considered as the most spontaneous form. This stage is dominated by locating the necessary nature of things, and people in this phase believe that gods and divine force are the creator of all social phenomena.

According to Comte, “all theoretical conceptions, whether general or special, bear a supernatural impression”. This phase is further divided into three categories:

Fetishism: In ancient times, all people thought in accordance with supernatural terms. As per them, all the phenomena are the result of supernatural forces. During this time, a man supported the existence of spirits and soul.
Polytheism: As time passes, the man’s mind also grows with it. Under this stage, ancient people get organized and their faith in supernatural forces and fetishes suffer as they get confused for them. Under this phase, priesthood came into existence, and people started believing in several gods and seeking blessings from the priest.
Monotheism: The last stage is monotheism. People formulated the idea of one god. In this stage, people believed that one center of power—a superhuman—guided and controlled social phenomena around the world.

The metaphysical phase

This stage is also known as the abstract stage. This stage was developed during the middle age, around 1300. Under this phase, human beings interpreted the world and its events as “natural reflections of human tendencies.” This stage replaced explanations and theories laid down in the theological stage, consisting of supernatural and divine forces. As society developed, the concept of rationalism grew, which stated that God does not have a direct effect upon every event. This phase stated that God is an abstract being. This phase is a transitional stage.

The positive phase

This stage is also known as the scientific stage. This phase is considered the last work of Comte’s. In this phase, the actions of society are explained with the help of scientific principles. As Comte stated in the scientific stage, there is no place for superstitious notions, as everything under this stage is explained with some evidence and facts.

Herbert Spencer

Herbet Spencer was a sociologist and philosopher who was a supporter of the sociological school of jurisprudence. He discussed the sociological theories and principles in his work, known as “principles of sociology”. Spencer perceived society as an organism. He was more focussed on the framework of society and the interdependence of different aspects of society. Spencer compared society with the living organism by stating that society also grows and develops like organisms. He explained this concept under social Darwinism.

Social Darwinism

Spencer’s theory of social Darwinism was adopted from Charles Darwin’s theory of the evolution of society through a process of ‘survival of the fittest’. It was suggested that individuals living in society develop by passing the test of survival. Some of the features of Herbert Spencer’s Darwinism theory are enumerated below:

Evolution of biology is applied to society– According to Spencer, humans in society grow and adapt through the process of natural selection by choosing what is right or wrong based on their senses and judgment, just like organisms in an environment do. When organisms are formed, they are not complicated, just like when society is formed, it is also very simple and basic. But as organisms and society both grow and develop, they become complex in nature.
Focus on individualism: The theory of social Darwinism places a strong emphasis on individuality. As per Spencer, an individual who possesses traits of being smart, intelligent, passionate and resilient is more likely to grow in society. These features stated that an individual’s efforts can contribute to the growth of society.
Fittest of all will survive: The whole theory of social Darwinism is based upon this feature. Spencer stated that competition in society is an important and crucial aspect in the development of society. Competition makes an individual push their boundaries and come out of their comfort zone. As per him, people who are more fit and adaptable will be able to thrive in society, just like organisms that are more adaptable in an environment thrive.
Government role must be limited: Spencer stated that the government’s interference in the affairs of society must be very minimal. He stated that individuals in society must be able to compete freely, and in accordance with that, one should move forward in society. Spencer was against the social reforms and reservations that would aim to reduce the inequalities in society, as these reforms were not natural and interfered with the process of evolution.

Laissez Faire

The meaning of the word laissez-faire is “allow to do”. This is the policy that states that the role and interference of the government in matters of economics and society must be limited. This theory was formulated in the 18th century and placed emphasis on minimal intervention by the government in the affairs of the people living in society and giving them freedom to perform the tasks as they like. The whole aim of this theory is to allow people to do their work as per their wishes and commands, as this would result in the growth of the economy.

The theory of laissez-faire was developed by the economist Adam Smith. According to Smith, a free market would be beneficial to every person in society, not just the upper rich class, as it would allow unregulated transactions of goods and services. Under this theory, key principles, including business owners, were given the authority to hire labor and control markets with minimal government intervention.

In this theory, the role of the government is limited to overseeing and safeguarding the interests of individuals in cases of dispute or conflict. In the sociological school, people attempted to interpret the law as per the social origins and institutions and also by interpreting the law in accordance with the social utility. The sociological school was developed against the reaction of the theory of laissez-faire. This theory gave importance to the growth of a single individual, which resulted in ignorance of the welfare of society. A sociological school was established to strike a balance between society and an individual. Sociological theory observes that freedom to businesses is given so that the interest and welfare of society is achieved.

The theory of laissez-faire gave importance to the interests of an individual, while the social school of jurisprudence placed importance on the welfare of society. Laiseez faire gave rise to capitalism, which resulted in a wedge between rich and poor. Therefore, through the emergence of sociological schools, it was highlighted that greater good must be given more importance than individual interest to achieve the ends of justice.

Max Weber

Max Weber is one of the founding fathers of sociology. Weber defined sociology as a science that is considerate of “interpretive understanding of social actions.” As per Weber, social scientists examine society in more depth. He stated that, as social scientists are also humans, they have a fair idea about how their brains work. Weber placed his reliance on understanding human actions and behaviors subjectively. The consciousness of the individual helps to understand their behavior. Weber approved the theories of positive science, but he also stated that while conducting a social study, it must be examined in a casual and meaningful manner.

Social action theory

The theory of social action was established by Max Weber, who highlighted the examination of human behavior. According to Weber, the actions of human beings are influenced by society, and what is the impact of these actions upon another individual. Social action can be defined as a concept where human behavior, actions, and consequences are studied with respect to their influence on the behavior and actions of other people. When these actions are adopted by other members of society as well, it is known as a social movement that shows that specific behavior is no longer limited to one person only but is a part of society as a whole. These social actions can trigger the end of justice. The aim of this theory is that “the actions of others develop one’s own behavior”.

According to Weber, social theory can be divided into four categories. The actions provided below help to understand the behavior of a human and their actions :

Customs: Customs are actions that are a result of habit and consistency. A tradition that is passed on from one generation to another is custom, and one that has been followed for years is custom. Habit is the essential feature of a custom, which is learned every day, and then it gets normalized in a daily routine. These habits that one performs every day also get associated with one’s personality.
Rational actions: Any action that is performed instrumentally, effectively and efficiently to achieve the result.
Actions of value: Actions that are performed because they are desirable or expressive in value.
Actions of affection: These are the actions by which emotions are expressed.

The theory of social action has its own set of pros and cons. This theory allows individual institutions to make an impact on society. Under this theory, an individual is not seen as a single person but is perceived as a member of society. The actions that Weber covered were not enough to examine human behavior and actions. This theory ignores individualism and believes that society is responsible for shaping an individual. One example of social action is capitalism, where all the employees of a company are delegated different roles to help each other, but their ultimate goal is the same, which is to serve the company. In capitalism, individual growth is not the goal, but the growth of the company is the desired result.

Emile Durkheim

Emile Durkheim is also considered one of the founding fathers of the sociological school of jurisprudence. Durkheim was the French sociologist who established theories on modern society. He presented these theories in his works like “The Division of Labour in Society”, “The Rules of Sociological Method”, etc. Durkehim wanted to achieve the following goals:

Recognition of sociology as social science in the modern world.
Despite having people from different cultures, backgrounds, religions, a modern society can maintain unity and function as a team.
Exploring the role of scientific knowledge in modern society.

The division of labor

The concept of division of labor presented by the economist stated that the purpose of division of labor is to rationally divide individuals into groups to achieve maximum output. According to Durkheim, division of labor is the process that helps to bifurcate the jobs for specific people depending upon their skills and knowledge. This process will result in maximum output and will also help to develop a sense of belongingness to the community by working together. Durkheim believed that the division of labor helps to achieve economic and societal purposes. As per him, the division of labor is determined by taking into account dynamic density. Dynamic density refers to the total number of people in a society and the amount of interaction happening within that population. Dynamic density can happen in these ways:

People living together increase in number;
Development of society; and
Channels of communication are increased and advanced.

According to Durkheim, division of labor happens when there is an occurrence of one or two situations mentioned above. These tasks are performed by allocating specific tasks to a skilled worker, which also binds people belonging to different communities, resulting in social solidarity.

Social solidarity

According to Durkheim, the concept of social solidarity is divided into two categories:

Mechanical solidarity: Here society works as a group, as there is no middleman between society and an individual. Here, everyone has the same set of beliefs and actions that are also similar to one another. This is called “collective consciousness,” which means every person in society has the same set of rules and regulations that connect everyone to one another.
Organic solidarity: Here, society is complex in nature. The functions of an individual living in society are different, but they are connected to each other by certain relationships. Here, the job taken by each person is different and unique in their own way, which connects all the people in society.

The whole purpose of Emile Durkehim’s formulating the theory of division of labor was to examine society as per the changes that occurred due to industrialization. But this theory of Durkehim was disapproved by many jurists. An American scholar, Eliot Freidson, stated that the term labor is interpreted in a way that is concerned with technology and manufacturing things. As per him, administrative authority does not care about how these people interact in these divisions. Also, this theory of Durkehim was criticized by saying that division of labor discriminated between different genders living in society, which created a problem of inequality.

Eugen Ehrlich

Eugen Ehrlich defined sociology as “the Centre of gravity of all legal developments is not in legislation or judicial decisions, but in society itself”. According to Ehrlich, law has a great impact upon society and its various aspects. The picture of society that is presented through judicial precedents and legislation does not give a full picture of what actually goes on in a society. These cases and laws are partial and imperfect. As per him, in order to interpret the law, one should study society and the living body of laws that are not provided in the statute. Ehrlich’s whole theory was based on the fact that society and its individuals are the main source of law, and this is what he called living law.

Ehrlich emphasized the living law more, but he also gave equal importance to history and judicial decisions. He analyzed this in his work known as “Principles of the Sociology of Law”. According to him, laws are made based on the existing conditions and requirements of society. He stated that laws must be created by taking inspiration from marriages, domestic life, contracts, wills, etc. He focused on the point that the center of creating laws lies with the living law, society or the prevailing conditions in society.

Rudolf Von Jhering

Jhhering was known as the father of modern sociological jurisprudence. Jhering formulated a principle that stated “law as a means to an end”. He did not approve of analytical and historical theories of jurisprudence. According to him, in order to maintain a balance between society and individuals, law should be implemented according to society. As per Jhering, law consists of the following features:

Law has an intimidating character that forces people to do things they do not want to do.
The value of law is relative in nature as it judges and compares the one issue with the precedent case.
The law needs to be analyzed and interpreted as per the needs and growth of society.

Human conduct is the only way to achieve the ends of the law. As per him, in order to attain legal efficiency, legislators need to take into consideration societal aspects of the community. According to Jhering, humans can be influenced to contribute towards the welfare of society or achieve the ends of law by following the principles enumerated below:

Reward and appreciation
Coercion
Duty and obligation
Love and affection

Disapproval of Jhering’s theory

Jhering theory gave priority to the humans living in society, but his theory was not approved for mainly two reasons provided below:

Jhering’s theory only explains that the law acts as a reconciling force with society, but it does not provide any explanation or solution on how laws can be interpreted in accordance with the requirements of society.
Several scholars and jurists have observed that law is created to safeguard the interest and will of the people living in society and is not created to fulfill the purpose or any aim, as stated by Jhering in his theory.

Montesquieu

Montesquieu was a French scholar and philosopher who supported the sociological school’s theory. Montesquieu was the first to recognize the importance of social conditions upon the legislature. He analyzed this concept in his work “The Spirit Of Law”. According to him, the legislative structure of every country must be in accordance with the societal structure of that country. As per him, the government must consider the religion, inhabitants, equality, commerce, customs, traditions or any other feature that is important to that specific country. Along with the factors of society, he also highlighted the importance of history in order to interpret the law.

Spirit of law

According to Montesquieu, laws are derived from the nature of things. The rule of law is invariable. His work talks about different political and civil rights. According to Montesquieu, there are three kinds of government: monarchies, republics and despotic regimes.

Separation of power

Montesquieu also formulated the theory of separation of power. In this theory he divided the government into three branches having separate and independent authority upon the delegated task. The powers are divided among legislature, executive and judiciary. In the USA, the legislative authority is the Senate and the House of Representatives, the executive authority lies with the President; and the power of the judiciary lies with the Supreme Court and Federal Courts. This theory helps society from arbitrary rules and abuse of power. The division of powers and functions of each branch of the system will result in effective and efficient functioning of the government.

The whole idea of the theory of separation of power has the following features:

A person will be a member of only one branch, i.e., he will not hold any office of profit
The branches will not interfere with the functioning of the other branch. For example, that legislature is not allowed to interfere with the actions of the judiciary and vice versa.
The power and duties that are delegated to each branch of the government shall be exercised and performed by the respective branches only, and neither of the branches shall interfere with the other.

The President, under the Constitution of the US, is trusted with various types of power and authority. To elect a President, a separate election is held, and the tenure of the same person will be for four years. The President is given the power to select the ministers of the cabinet to carry out the high level post. This is done by the President to create a distinction of powers between the executive and the legislature. The President and their secretaries are not allowed to be members of Congress or be affiliated in any way when they are serving their tenure.

Leon Duguit

Duguit was the French scholar and jurist who came up with the theory of ‘social solidarity’. According to Duguit, the state is not a sovereign power or authority but has been instituted out of human needs. He stated that just like the people living in society, the government is under an obligation to follow the laws arising out of social requirements. Duguit was not in support of the traditional methods of society and law and wanted to interpret the law from the eyes of society. Duguits sociology theory only highlighted the legal duties and ignored the traditional system of law. He wanted to implement a structure that would punish the ‘system’ in cases of abuse of power. Duguit did not approve of the power vested with the sovereign and the authority, and wanted to take that power away from the authority and give the power to the people of society.

As per him, even before the rule is recognized by the state, it becomes law when that rule has the support of the certain community. Duguit stated that the function of the law is to determine social solidarity. He defined social solidarity as the “strength, cohesiveness, mutual consciousness and viability of the society”. Duguit highlighted that a society runs on one thing that is interdependence of one man onto other men. His key component of the theory is the interdependence and cooperation among the people living in society. Duguit observed that the law is created to promote solidarity between the people living in society.

Duguit differentiated needs of the people living in society into following categories-

Through mutual assistance, common needs of the people can be fulfilled by putting together their minds and purposes.
In cases of different needs, people can be satisfied by exchange of services. Where everyone uses their specialization and skills to solve the problem and satisfy the needs of others. One of the theories that is used to satisfy the diversified needs of society is division of labor.

Duguit explained law as a social fact that was concerned with relationships shared by the people living in society. He emphasized the fact that every man living in society must contribute to the welfare of society. Duguit observed that state authorities should aim to achieve the social and economic welfare of society.

The theory of Duiguid was criticized by stating that the definition of law highlighted by him was not clear as it did not specify the principles upon which law must be based. Also, Duguit ignored the metaphysical consideration of the laws.

Jurgen Habermas

Jurgen Habermas was a German scholar and philosopher who actively contributed to the field of sociology. The main focus of Jurgen was to combine philosophical and societal aspects in order to interpret the law. He established many theories analyzing the role of law in modern society and also problems arising in modern society. According to Habermas, the traditional history of law plays a crucial step in interpreting modern society and its challenges.

Reconstructive theory

Jurgen Habermas, to interpret law, established a theory of law and democracy that is known as “reconstructive theory”. Under this theory, Habermas aims to analyze conditions under which law and political aspects of society can come together. This theory of Habermas is divided into stages:

Analyzing an idea of law that is legitimate. According to him, the law is written in a philosophical manner. This first stage of this theory is called as “the system of rights”
The second thing that Habermas aims to do is application of the discovered theories into modern society. This second stage of the theory is known as the “constitutional state”.

As per Habermas, amending the disputes between the parties is the sole purpose of law. Habermas focuses on the private freedom that is to be given to the individuals living in society, he categorizes this into four categories;

first, right to equal personal liberties;
second, equal membership rights in the community of law;
third, rights of equal protection;
fourth, right to equal and active participation in the procedure of creating legislation.

According to Habermas, legal rights can only be enforced through a lengthy and mindful law making procedure. The Habermas theory of reconstruction highlights the connection between the law and the government. As basic rights and protection are derived from democracy. According to him, principles of law and the government must be in accordance with modern society’s requirements. He places reliance on the fact that while executing the law, the authorities must take the perspective of the people living in society as they would be better judges of the rules that will be applicable on them in the future.

Habermas’s Theory of Communicative Action

Habermas’s “Theory of Communicative Action” talks about rational communication. This theory was established with two aims: methodological and substantive. But under this theory, he has not provided a procedure or way out on how this communication can take place between the law making authorities and society. The theory is explained well in favor of society, but in reality, the practical implementation of this theory is not possible. As all the branches of the government cannot function without overlapping with each other.

Features of Communicative Action Theory

Jurgen Habermas’s communicative action theory is based upon the idea of rationality, which states that activity of society is influenced by knowledge. According to this theory, there are three components of this theory; society, culture, and personality. This theory talks about the visiting situations along with the situations that might arise in future in society. The component of personality in this theory states that the socialization process forms individuals with interactive competencies. This communication theory allows an individual to develop a separate identity in society.

Habermas stated that human communication is the most important component of society. Communication between individuals means agreements and understanding between them, after not achieving any goal. According to communicative action theory, communication is considered as more desirable than strategic rationality, that is viewed as unsociable and undesirable.

Pierre Bourdieu: Habitus

Pierre Bourdieu was a French scholar and sociologist. He developed the concept of habitus that highlights the importance of social resources and skills that guide the engagement between people around the world. Habitus can be defined as the concept or set of skills through which an individual interacts and engages with the social world. The habitus as per the Bourdieu comes from the upbringing of the family that presents one’s position in the social structure.

The gist of the concept of habitus is how a person who is a part of society regulates their behavior and actions to meet the expectation set by society and fit within society. It is an emotion or feeling that comes internally and naturally. Rather than following rules and regulations set by society, by following habits, one knows what to do in order to integrate with other people of society. Shared habitus can be defined as a shared sense of taste, activities, skills, and disposition in a group of people belonging to the same backgrounds.

Bourdieu stated that “all of my thinking started from this point: how can behavior be regulated without being the product of obedience to rules?”. For example, language is habitus where everyone in society speaks one language. There are rules pertaining to language, such as grammar and vocabulary. But while engaging in conversation with friends and family, an individual says new words and sentences, sticking to the rules of the language. This is how the concept of habitus works, an individual is given freedom to innovate new words and sentences by adhering to the rules of the language.

The concept of habitus by Bourdieu stated that habitus is not the same for all the people living in society. One of the essential factors that divides the habitus of people is the environment and class they belong to. Habitus is formed from the class, race, gender, religion, family, background, to which one belongs.

Factors of Habitus

One of the most important factors of internalizing habitus is capital gains. Capital gains are divided into three principles; economic, social and cultural.

Cultural gain: Cultural capital means that an individual is born into a well family where an individual is taught proper manners, fine art, and where family is connected to influential and powerful people. The people born into these kinds of families will always have a way ahead, and it’s easier for them to grow.
Economic gain: As the name suggests, it means a person who is well financed and has resources can make more money by using the present resources rather than the person who has no financial resources present with them.
Social gain: Social gain can refer to the norms, values, and attributes of society to which an individual belongs. If an individual belongs to a society that is well-mannered and financially sound, then that person would always have a priority over other people who lack this habitus.

Niklas Luhmann: Autopoiesis and Law

Niklas Luhman was the German scholar and sociologist that coined the term ‘autopoiesis’. According to him, society is a closed society that is engaged in communication that constantly, through their own operations and repetitions, reproduces and evolves itself. The word autopoiesis means “self-reproduction”. The autopoiesis system of law is the one that evolves automatically in its terms and conditions that exist both internally and externally in society, known as the environment. As per this theory, the systems are interdependent upon each other. Each task affects the other; therefore, every individual in society must work in coordination to achieve the desired result.

Towards a Sociology of Law

Sociology of law refers to interpreting and executing legal provisions in accordance with societal norms. It refers to examining human behavior and their actions. The law is derived from the people living in society.

The work of Marxist scholar “The Institution Of Private Law and Their Social Functions” observed that the legal structure consisting of property, contract, succession, and other legal norms changes in capitalist society in accordance with the social relationships and development of society. Max Weber theories of law had a great impact in promoting the sociological school. According to him, laws are developed to manage the conflicting interests of the people living in society. Max Weber defined law as “law is an order, the validity of which is guaranteed by the probability that deviation will be met by physical or psychic sanction by a staff specially empowered to carry out this sanction”.

In modern society, the government formulates laws to control the actions of the people. In the earlier times, customs and traditions used to guide the actions of society, and now this has been replaced by legal rules and principles. When the state is satisfied, then it enforces a custom as law. Therefore, law can be understood as the rules and regulations that are enacted by the authorities of the state by taking into account the considerations and requirements of society. Some of the features of law are:

The state authorities lay down laws as a general condition that will guide human activities.
The law is the result of planning, executing and deliberate formulation. A law can be considered a law when it is enacted by the authorities with proper strategy.
The law has to be concise and definite. It should clearly state right and wrong, and respective liabilities.
The law is applicable to every person in society. No person can be above law. If there are any exceptions, then it should be given in the law itself along with reasonable justification.
The state authorities determine the extent of punishment and liability in case of violation of any law. They should determine these punishments with a logical and reasonable mind.

In order to effectively function, a society needs a law that will govern its actions. The law helps to maintain balance in society by promoting peace. If law does not exist, anarchy would prevail. That would hinder the concept of justice. Since ancient times, law, and sociology have been linked with each other. One cannot exist without another. The concept of sociology helps to interpret the law in a manner that will be acceptable to society. As law is created for the people of society,.

Critical Empiricism

Empiricism is a Greek word that can be defined as an experience. The concept of empiricism is that “all concepts are about or applicable to things that can be experienced, or that all rationally acceptable beliefs or propositions are justifiable or knowable only through experience”. Empiricism can be divided into three categories-

Absolute;
Substantive, and
Partial.

The theory of empiricism was centered around the experience and knowledge that a person gains from that experience by living in a society. This theory was propounded by David Hume and John Lock. As per these scholars, all the knowledge and ideas about society and people living in it come from experience. Locke stated that a human being develops a sense of understanding through exposure and experience.

Analysis of Sociological School with other schools

Sociological School and Realist School

Realist school is also known as a branch of the sociological approach. But they are still different from each other, as the sociological school is more concerned with meeting the ends of justice by considering social factors, whereas the realist approach focuses upon the observation of law and its present functioning. Though there are many jurists that emphasize the fact that theories of analyst school should be added to the sociological schools as a new approach and realist school should not be treated differently from the sociological school.

Sociological School and Analytical School

The sociological school is based upon the principle that “law is the spirit of people”. Whereas the analytical school is based upon the concept that “law is the command of the sovereign”. The analytical school aims at promoting the law and rules laid down by the authority, whereas the sociological schools put emphasis upon the fact that the will of the people living in society is the most important feature of law. The analytical school was formed by John Austin, who believed that the actions of the people are governed by the authorities by dividing it into what is right and what is wrong.

Sociological school and Historical School

Both sociological and historical schools place great reliance upon the importance of society and consideration of the people living in it. Historical school considers customs, traditions, values, and other norms of society as the source of law; whereas the jurists of the sociological school do not approve of these sources because, as per them, law must evolve with society. Also, the historical school places authority with the judges and the state in order to create the laws, whereas the sociological school places the power to create laws with the people of society. The historical school is more concerned with the past habits and practices to interpret law, but the jurist of the sociological school states that as society grows and develops, the laws need to evolve accordingly to guide society. The scholars of the sociological school place reliance upon the existing conditions of society.

Conclusion

A law is a set of rules and regulations that helps society to function properly in an efficient and effective manner. Law is the study that influences every aspect of society, economics, politics, business, and actions of every human being. Sociology and law is the concept that emerged by rejecting the traditional system of law. Law is the command of the sovereign. It is a matter of fact who is sovereign. In traditional times, it was kings and rulers and nowadays, we have a parliamentary system of government. The sociological study of jurisprudence helps to put forward the interests of the people living in society and interpret the law according to those interests.

This school of thought highlights the interest of society. The central idea of this school was that law is a social phenomenon, and it should grow and change with society. The law has to evolve as society evolves to tackle the problems of the modern world. For example: in the earlier times there were no laws for women empowerment and giving equal opportunity to women, but as society grew and developed and women of society demanded equal rights, the Constitution under the 14th Amendment laid down that no discrimination shall be done between a man and woman.

The sociological school of jurisprudence is supported by various jurists and scholars that keep the interests of society at the highest. Some of the prominent supporters of this school are Auguste Comte, Eugen Ehlrich, Montesquieu, Roscoe Pound, Duguit, etc. These jurists have provided several theories in support of society like, social solidarity, social engineering, division of labor etc.

Frequently Asked Questions (FAQs)

What is jurisprudence?

Jurisprudence is the study that provides a framework to draft legal provisions and principles. The principles of jurisprudence have evolved from ancient period to modern period as many developments and changes took place in society.

What are the different kinds of schools of jurisprudence?

Jurisprudence consists of five schools that interpret law differently. In these theories, law has been interpreted through history, sovereign, society, etc. Some of these schools are historical school, analytical school, realist school, sociological school, and philosophical school.

What is the sociological school of jurisprudence?

The sociological school of jurisprudence puts emphasis upon the relationship between society and law. Sociology is the study of human behavior and actions. This branch of jurisprudence states that kaw is impacted by changes in society. The whole idea of sociology was formulated by the great French philosopher Auguste Comte.

Who are some of the prominent thinkers of the sociological school?

Some of the prominent thinkers of the sociological school that are discussed in this article are Auguste Comte, Herbert Spencer, Jurges Habermas, Emile Durkheim, Montesquiue, etc.

What is social engineering?

The theory of social engineering was formulated by jurist and scholar Roscoe Pound. The meaning of social engineering can be understood by breaking down the two words. The first one is social, that means a society consisting of interest and opinions of the individuals living in it and the second is engineering that means application of science to produce and manufacture the products based upon the result of experiments.

What is Laissez Faire?

The meaning of the words laissez faire is “allow to do”. This is the policy that states that the role and interference of the government in the matters of economics and society must be limited. This theory was formulated in the 18th century that placed emphasis upon menial intervention by the government in the affairs of the people living in society and giving them freedom to perform the tasks as they like. The whole aim of this theory is to allow people to do their work as per their wish and command as this would result in growth of the economy.