Sociological School of Jurisprudence and its criticism

In this article we are going to learn about Sociological School of Jurisprudence and Its Criticism. We will learn about the exponents of Sociological School of Jurisprudence and their theories.

In early time, rules and laws are originated from the only custom to govern the society which had only a social sanction. Then, the supremacy of King and priest came. then, after the revolution and changes, the balance between the individual interest and welfare of society was realized.

The main subject matter of sociology is Society. Sociology is the study of society, human behavior, and social changes. And jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society.

Sociological approach towards study of law was a reaction and revolt against the analytical and historical school. If we talk about the analytical school it derives validity of law from the sovereign and if we talk about the historical school it derives its validity of law from the slow and silently flowing historical and cultural process and forces. But sociological approach is different from both the approaches and exponent of sociological school treat law as a social phenomena.

According to them law is a social function, sociological school mainly concerns with the relationship of law and other social institution. Supporter of Sociological school Jurisprudence linked law with other social science discipline and treated it as as synthesis of psychology, Philosophy, economic, Political science, sociology etc. According to them law is applied science. Law is concerned with thee effect on the society.

1.The exponents of this school lay greater stress in functional aspects of law rather then abstract contents.

2.They considered law as social institution essentially interlinked with other discipline bearing direct impact on society.

3. According to them, law is designed on the basis of Human experience in order to meet the needs of society.

4.Law is in fact a synthesis of philosophy, Political science, Economics, Sociology etc. and has to be understand in the term of utility, purpose effect functions.

5.This school totally ignored the concept of Historical school and analytical school.

6. Sociological jurists, However differ in their approach to the law, some prefer to adopt pragmatic recourse (Law emerged from society ) to study the functional aspect of law while other emphasise on defining law in the term of court’s ruling and decision adopted realistic(Judge made law) approach of law.

7.Sociological school mainly focus on the working of law rather than nature of law.

8.Sociological schools takes the law as instrument of social progress.

1. Roscoe Pound
2. Leon Duguit
3. Montesquieu
4. Herbert Spencer
5. Auguste Comte

The American jurist Roscoe Pound was born in Lincoln Nebraska. In 1903 he became dean of the law school of the University of Nebraska. He also served as professor of Jurisprudence in Harvard University from 1916 to 1936.

His view is that law should be studied in its actual working and not as it stands in the book. He gives the theory of social engineering and His major works are

1. Spirit of Common law
2. An Introduction to the Philosophy of law
3. Interpretation of Legal history
4. Law and Morals
5. Social control through law

Roscoe Pound was one of the most leading and influential jurists who developed the American sociological Jurisprudence in a systematic form. He is the father of American Sociological Jurisprudence.

1. Pond’s theory of social engineering has been criticised for the use of the term engineering which equates society to a factory- like mechanism. Law is a social process then the result of an applied engineering. Ponds emphasis on engineering ignores the fact that the law evolves and develops in society according to social needs.

2. Dr. Allen criticised pond’s theory by saying that it completely ignoring the personal freedom which are equally important for a happy social living.

3. Pond’s theory is criticised by saying that this theory of interest has no significant in pluralistic society, where there are linguistic,ethnic, religious, minorities having diverse interests.

Leon Duigit was a french jurist who made substantial contribution to the sociological jurisprudence in early twentieth century. He was a professor of constitutional law in the University of Bordeaux for many years.

He was greatly influenced by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social cooperation between individuals for their need and existence.

Duigit’s Theory of Social solidarity was based on the fact that interdependence of a man is the essence of society. Each Individual has his existence owing to his membership of the society. Each individual can’t procure the necessities of life himself.Therefore, ranch in turn has to be depend on other for his needs. The ultimate end of all human being is to ensure the interdependence of men.

Duigit further stated that law also serves the same end. He pointed out that law is a rule which men obey not by virtue of any higher principle but because they have to liv as member of society.

He rejected the notion of rights, sovereign,state, public and private law, legal personality as fiction and unreal because they were not based on social reality.

Law to secure and serve social solidarity

According to Duguit, the essence of law is to serve and to secure social solidarity which is duty oriented as it expects individuals to perform their obligation as a member of the community. There is therefore no scope for natural or private rights.

Thus Duguit stated that. Law consists of which is the basis of cooperation and rejects the abstract concept of rights which is the source of conflict. In other words Duguit exhorts everyone to perform his duties to society which would help development of cooperation and social solidarity.

For Duguit, law is not a body of rights.The only real right of man in society is to do his duty.

Theory of Justice

Duguit defines justice in the term of fulfillment of social needs and obligation. According to him, Law must seek to promote social solidarity so as to attain maximum good of the society as a whole.

Duguit’s legal philosophy

1.He rejects the doctrine of state sovereignty and consider state merely as an expression of the will of the individual who governs.

2.Sole emphasis of Duguit was on interdependence of men as a member of the community.

3. There is no distinction between public and private law as all law are meant to serve the end of social solidarity.

The critics of Duguit’s suggest that his theory of social solidarity suffer from many weaknesses, The first being that it excludes all metaphysical consideration from law and it is itself based on the ideal of natural law. They alleged that Duguit “ Pushed Natural law out through door and let in come in by window”.