Qqqqfaculty Of Law.docx

Faculty of Law

Sociological Approach In Jurisprudence

Submitted By

Class: - 3rd Semester

Under The Guidance Of

1|Page

Acknowledgement I would like to express my special thanks of gratitude to my teacher who gave me the golden opportu nity to do this wonderful topic “Sociological Approach In Jurisprudence” which also helped me in do ing a lot of Research and I came to know about so many new things I am really thankful to them.

2|Page

Table of Contents Sr. No.

Content

Page No

01.

Introduction

04

02.

Sociological Approach – Nature and Meaning

04

03.

Meaning of Sociological Jurisprudence

04-05

04.

Characteristics of Sociological Jurisprudence

05

05.

Auguste Comte’s Theory

05

06.

Rudolf Von Ihering's Theory

06

07.

Roscoe Pound’s Theory

06 - 10

08.

Criticism

10-11

09.

Sociological Jurisprudence in Indian Context

11

10.

Conclusion

12

11.

Bibliography

13

3|Page

SOCIOLOGICAL APPROACH IN JURISPRUDENCE Introduction Sociological jurisprudence is a term coined by the American jurist ROSCOE e Pound (1870–1964) to describe his approach to the understanding of the law. Central to Pound’s conception was the very su ggestive idea that in modern societies the law represents the principal means through which divergen t interests are brought into some sort of alignment with one another. Unfortunately, perhaps because h e was a jurist rather than a sociologist, he did not combine this insightful conception with a developed understanding of how these interests were formed and why some of them came to be privileged over o thers within the legal system. A sociologically informed account of Pound’s work, which places it in t he context of the historical development of the sociology of law, will be found in Alan Hunt, The Soc iological Movement in Law, 1978.

Sociological Approach – Nature and Meaning Sociological approach towards study of law was a reaction and revolt against the analytical and histor ical school both of which regarded law as self – contained system – the former deriving validity of la w from the sovereign – the law giver and the latter from the slow and silently flowing historical and c ultural processes and forces. The sociological approach considers law as a social fact or reality to sha pe, mould and change society to sub-serve its needs, expectations and goals through law. The interrel ationship between law and society and the study of community and of social phenomena, of group or individual interests and their realization and fulfilment through law is the paramount concern of law. Off – course! The Sociological approach to the study of law is of recent origin. The other Schools hav e been more concerned with the nature of law and its source rather than its actual working, functionin g and social ends which law strives to sub serve. All the jurists who define law in relation to society i n terms of ends which law serves and the interests which the law satisfies and the common good whic h the law seeks to achieve – thereby make law as an instrument of social control and social change ar e grouped together as jurists belonging to Sociological School of Jurisprudence.

MEANING OF SOCIOLOGICAL JURISPRUDENCE Sociological School of jurisprudence has emerged as a result of synthesis of various juristic thought. T he exponent of this school considered law as a social phenomenon. They are chiefly concerned with t he relationship of law to other contemporary social institutions. They emphasize that the jurists shoul d focus their attention in social purposes and interest served by law rather than on individuals and thei r abstract rights. According to this school the essential characteristics of law should be to represent co 4|Page

mmon interaction of men in social groups, whether past or present, ancient or modern. The main conc ern of sociological jurist is to study the effect of law and society on each other. They treat law as an in strument of social progress. The relation between positive law and ideals of justice also effects the so ciology of law. The main exponents of the sociological jurisprudence which has been characterised as “interest oriented, interest loaded, and interest directed” were Auguste Comte, Herbert Spencer, Rudo lph Ihring, Eugen Ehrlich, Leon Duguit, Francois Geny, Dean ROSCOE e Pound etc. In United States , Justice Oliver Windell Holmesand Benjamin Cardozo the distinquished judges of the Supreme Cour t were also inspired by Dean Pound’s Sociological theory of law.

Characteristics of Sociological Jurisprudence The chief characteristics of Sociological Jurisprudence are as follows: 1. Sociological jurists are concerned more with the working of law rather than with the nature of law. They regarded law as a body of authoritative guides to decision and of the judicial and administrative processes rather than abstract content of authoritative precepts. 2. It considers law as a social institution which can be consciously made and also changed, modified o r retained on the basis of experience. In other words, it synthesizes both the analytical and historical a pproach to the study of law. 3. Sociological Jurists lay emphasis upon social purposes and social goals and expectations which are the law sub serves rather upon sanctions and coercive character of law. 4. Sociological jurists look on legal institutions, doctrines and precepts functionally and consider the f orm of legal precepts as a matter of means only to satisfy greatest good of the greatest number.

Views Of Different Jurists Related To This Approach Montesquieu emphasised that “law of a particular nation should be determined by its national charact eristics and must bear the relation to the climate of each country, the quality of soil, the situation and e xtent, the principle occupations of the native, and above all, to the religion of inhabitants, riches, com merce , manners and customs.”

Auguste Comte Auguste Comte applied scientific method to the study of sociology which he termed as “scientific pos itivism”. According to him, society, like any other organism can progress when it is guided by scienti

5|Page

fic principles. Herbert Spencer gave a scientific exposition to the organic theory of society. Spencer d educed four sources of law, namely: Divine law having quasi religious sanctions. 1) The injunctions of the past leaders. 2) The will of the ruler. 3) Collective opinion in the society.

RUDOLF VON IHERING Ihering was German jurist. He has been described as the “Father of Modern Sociological Jurispruden ce”. He rejected the Analytical & Historical jurisprudence as jurisprudence of conceptions. Accordin g to him, law is an instrument for serving the needs of individuals of society. Hence, the law should b e studied in terms of purposes or interests which it sub-serves. He observed, “The stone does not fall in order to fall, but it must fall because its support is taken away. Similarly, the man who acts does so not because of anything, but in order to attain something. As there can be no motion of the stone with out

a

cause,

so

can

there

be

no

movement

of

the

will

without

purpose.”

According to him, human will is directed towards the furtherance of individual purposes. In realisatio n of individual purposes, there is bound to be a conflict between social interest & individual’s selfish i nterests. Ihering tries to reconcile the individual interest with that of the society. So, law is only an in strument for serving the needs of the society ... its purposes & interests. The success of the legal proc ess depends on achieving proper balance b/w social & individual interests. It is through two impulses – coercion & reward, the society compels individuals to subordinate selfish individual interests to soc ial purposes & general interests. The natural impulse of duty & love also make man to sub-serve soci al ends. Therefore, Ihering views law as an instrument of social control balancing of individual intere st with that of the society.

ROSCOE E POUND

ROSCOE E POUND is said to be the father of this approach. He said “The law must be stable, but it must not stand still.” Pound placed his sociological jurisprudence in opposition to what he termed “m echanical jurisprudence,” which he characterized as a common but odious practice whereby judges w oodenly applied precedent to the facts of cases without regard to the consequences. For Pound, the lo gic of previous precedent alone would not solve jurisprudential problems. His study of biology led hi

6|Page

m to believe that the law, like nature, was a seamless web and that change in one part might produce t otally unexpected and undesirable results in a distant part.

Social Engineering : The Concept 1. Roscoe Pound was one of the greatest leaders of sociological school of jurisprudence. He introduce d the Doctrine of Social Engineering which aims at building and efficient structure of society which w ould result in the satisfaction of maximum of wants with the minimum of friction and waste. It involv ed the rebalancing of competing interests. 2. Roscoe Pound defined the legal order reference by to the end of law: 3. “The legal order may well be thought of as a task or as a great series of tasks of social engineering; as an elimination of friction and precluding of waste, so far as possible, in the satisfaction of infinite h uman desires out of a relatively finite store of the material goods of existence.” 4. ‘Interests’, ‘desires’, ‘claim’, ‘wants’ – for the most parts of words are used interchangeably in Pou nd’s writings, although ‘interests’ sometimes serves as the inclusive term.2 Like the engineer, the juri st constructs, creates – but not out of thin air. Like the engineer he must work with resistive materials, without which, however he could not build at all; and always there are adverse conditions imposed up on his activity. Friction and waste, represented by a sacrifice of interests which might be secured, mus t be overcome. The task is one for human activity; though requiring methodical care, there is neverthe less nothing static about it. Technique and materials may be improved. Jurist must work on, must crea te and ever greater, ever more serviceable structure. The engineering analogy stands out as graphic an d timely. 5. He propounds that task of jurists is to find out those factors which would help in the development o f culture conducive to the maximization of satisfaction of wants. These factors are principles as Jural Postulates.

Theory of Social Engineering Roscoe Pound conceived law as a ‘social engineering’, its main task being to accelerate the process of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the societ y. Thus, Courts, Legislators, Administrators, and Jurists must work with a plan and make an effort to maintain a balance between the competing interests in society. He enumerated the various interests w hich the law should seek to protect and classified them into three broad categories namely: 1. Private Interests 2. Public Interests 3. Social Interests 7|Page

In other words, social engineering is a term used to define the act of balancing of different interests, i. e., individual interests, public interests & social interests. The aim of social engineering is to build as efficient a structure of society as possible, e.g., if a factory is polluting the environment & an injuncti on suit is filed for closing it, the court must balance various claims & interests –claim of the mill own er to do his business, claims of the workers in the factory to retain their jobs, claim of local residents t o have a clean environment, etc Roscoe Pound theory is that the interests are the main subject-matter of law & the task of law is the sa tisfaction of human wants & desires. It is the duty of law to make a valuation of interests. He classifi ed interests under three heads.

Private Interests a.) Individual’s interests of personality, namely interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by laws of crimes, torts, contracts, constitu tional law etc. b.) The interests of domestic relations of persons such as husband and wife, parent and children, marit al life as also the individual’s private interests. c.) The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc. are also included in the category of priv ate interests.

Public Interests The main public interests according to Pound are – a.) Interests in the preservation of the State as such. b.) State as a guardian of social interests such as administration of trusts, charitable endowments, prot ection of natural environment, territorial waters, sea shores, regulation of public employment and so o n.

Social Interests The social interests which need legal protection are – a.) Interests in the preservation of peace, general health, security of transactions etc. b.) Preserving social institutions such as religion, political and economic institutions etc.

8|Page

c.) Interests preserving general morals by prohibiting transactions which are against morality such as prostitution, drunkenness, gambling etc. d.) Interests in conservation of social resources e.g. Natural resources, reformation of delinquents, pro tection of economically weaker section of the society. e.) Social interests in general progress including economic, political and cultural progress. For examp le, freedom of trade and commerce, freedom of speech and expression, encouragement to arts and pro motion of higher education etc. f.) Interests which promote human personality by enabling a person to live political, physical, cultural , social and economic life to suit his taste and improve his personality. When he conceives law as a social engineering, he is reading law and its administration as a part of m uch wider process of social ordering, functioning through courts and administrative agencies with the aid of legal precepts serving as partial guides. The task of social ordering presupposes a sincere effort to avoid or at least ameliorate, collisions resulting from conflict of interests. All the varied activities o f legal order or the efforts of the courts, administrators, legislatures, jurists are to be directed toward t he adjustment of relations the compromise of conflicting claims, the securing of interest by determini ng of boundaries wherein each maybe asserted with a minimum of friction and the finding of means w hereby greater number of claims may be satisfied with a sacrifice of fewer. If law is viewed as social e ngineering, its end is conceived to be satisfaction of all demands and securing of all interests with a m inimum of conflict so that the means of satisfaction have the widest possible distribution. It may be n oted that Pound’s techniques of Social Engineering are – a.) Study of actual social effects of legal inst itutions and legal doctrines b.) Study of the means of making the legal rules effective c.) Sociological study for law making d.) Study of judicial method e.) A sociological history f.) The importance of reasonable and just solutions of individual cases g.) Of a ministry of justice to make efforts more effective toward the purpose of legal order. The abov e facts and considerations should be taken into account by the jurists of sociological jurisprudence to make law purposive, need based and goal oriented. In essence the sociological jurists look at law functionally. They ask how the methods of Jurisprudenc e work. What consequences have flowed from these methods in action? How far they have enabled th 9|Page

e law to achieve its end or on the other hand interfered with its achieving them? Pound is pragmatic, f unctional and experimental advocating social ordering and control through law,‘to promote and maint ain ideal relations among mankind.’ Law, therefore as a science of social engineering is more concern ed with actual operation of law rather than its abstract content. Such an approach considers law as an authoritative guide to decision making. It stresses on social purposes which law serves rather than san ction. Just as engineers minimize friction and waste when dealing with machines similarly jurists oug ht to enable to resolve conflicts in society in the interests of harmony, reform and progress. This meth odology is described by Pound as Social Engineering.

Criticism Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the act ual working of law in society, his theory suffers from certain drawbacks. Pound’s theory of social eng ineering has been criticized for the use of the term ‘engineering’ which equates society to a factory lik e mechanism. Law is a social process rather than the result of an applied engineering equating society with a factory is not correct because the former is changing and dynamic in nature whereas the latter i s more or less static. Again Pound’s emphasis on ‘engineering’ ignores the fact that law evolves and d evelops in the society according to social media and wants for which law may either have approbation or disapprobation. Dr. Allen has criticized the utilitarian in Pound’s theory as it confines the interpret ation of ‘wants and desire’ to only material welfare of individual’s life completely ignoring the person al freedoms which are equally important for a happy social living. It has also been argued against Pou nd’s theory of interests that it has no significance in a pluralistic society where there are linguistic, eth nic, and religious minorities having diverse interests. Harmonizing their divergent interest is by no me ans an easy task to be performed through law and courts. Dr.Friedmann has expressed doubts about th e value of classification of interests and remarked that there are changing conceptions that had been a ccepted by Pound himself. Not only that, the respective value of these interests and their evaluation al so depends on changing political and legal system. For example, a liberal progressive government wo uld lay greater emphasis on freedom of individual rights and of established institution but a totalitaria n state would suppress the interests of individual in favour of the interest of the state.

Be that as it may, there is no doubt that through his legal theory Pound has attempted to bring law into closer relation with other social sciences and tried to strike a balance between freedom of individual a nd social control through the instrumentality of law. His greatest contribution to jurisprudence is that he is practical in approach and concentrate of law in society.8 Law as a tool for social engineering co 10 | P a g e

mes into play only when there is unequal distribution of wealth in society or when social justice is de nied to certain sections of the people, so to bring equilibrium. Law tries to remove inequalities and to the benefit whole community rather than a few individuals.

SOCIOLOGICAL JURISPRUDENCE IN INDIAN CONTEXT For an appraisal of sociological jurisprudence in its Indian perspective it would be necessary to surve y the present as well as the pre-independence Indian law. The law during the British Colonial rule in I ndia was coercive and counter-productive to social needs of the Indian people. It was suppressive and insensitive to the sentiments and expectations of the Indians. The British rulers paralysed the peace an d prosperity of Indian by dividing Indians on the basis of caste, creed, religion, language and occupati on so as to perpetuate tension and conflict between different communities to meet their self ends. Thu s the law in India as it stood before the Indian independence was formal, rigid, repressive, and punitiv e as contemplated by Austinian conception of imperative theory of law. The legislature, executive and judiciary- three organs of the government used to law to protect the interests of the British in complet e disregard of the aspirations and needs of the Indian masses who were exploited and denied even the basic human rights. In strict Austinian sense sanctions were imposed on Indians in name of “justice is according to law”. The British residents in India enjoyed many exemptions and special privileges und er the then existing laws. Thus there was “one law for the ruler and other for the rule.

Conclusion Auguste Comte applied scientific method to the study of sociology which he termed as “scientific pos itivism”. According to him, society, like any other organism can progress when it is guided by scienti

11 | P a g e

fic principles. Herbert Spencer gave a scientific exposition to the organic theory of society. Spencer d educed four sources of law, namely: Divine law having quasi religious sanctions.

The injunctions of the past leaders. The will of the ruler. Collective opinion in the society.

12 | P a g e

Bibliography

1) Paranjape, Dr. N.V, Jurisprudence and Legal Theory, 8th edition, central law agency, Allahabad, 2016 2) Mahajan’s, V.D, Jurisprudence and Legal Theory, 5th edition, eastern book co mpany, lucknow, 2016

13 | P a g e