Sociological School of Law || Jurisprudence ||

Sociological School of law || Jurisprudence||

    In this article, we will discuss the essential topic of jurisprudence “Sociological School of Jurisprudence”. Let’s begin.

Introduction:-

                            In the ancient time, rules and laws are originated from the only custom to govern the society which had only a social sanction. After that, the supremacy of king and priest came. By the passing of time and the revolution and changes, the balance between the individual interest and welfare of society was realized. Then the concept of sociology was recognized.

   August Comte was the first writer to use the term ‘sociology’ which he described as a positive science of social facts. After that, many writers and jurists tried to find a link between sociology and law. Comte said that Society is like an organism and it could progress when it is guided by Scientific Principles.

Meaning of Sociological school of jurisprudence:-

                                                                             In sociological school, law is considered as instrument of social welfare. The main idea of Sociological school is to establish a relation between the law and society. Sociological jurists see society as one single unit. Law is the only source, which controls the behavior of the individual in a society. In such a society, they found that there was a certain conflict of interest. For this purpose, the notion of law was linked with sociology and it becomes sociological Jurisprudence.

     August Comte as a father of sociology laid down certain means of social investigation. Those are:

Observation

Experiment

Comparison

Historical Methods

 According to Ehrlich,

                                      “At the present as well as at any other time the centre of gravity of legal development lies not in legislation, nor in the juristic decision, but in society itself.”

   The main focuses of the sociological school is on balancing the welfare of state and individual was realized.

August Comte (1798-1857):-

                                                          The honor of the founder of the word ‘sociology’ belongs to the French philosopher August Comte. The legitimate object of scientific study, according to Comte, is society itself and not any particular institution of government. He emphasized the fact that men have ever been associated in groups and that it was in the social group and not in isolated individuals that the impulses originated, which culminated in the establishment of law and government. They rejected this view that the society rests on a person-oriented basis and the individual is the center point of law. His philosophy is thus an intense contract to the mechanistic philosophy current before his time.

Eugen Ehrlich (1862-1922):-

                                                          Ehrlich another eminent jurist of the sociological school primarily expounded the social basis of law. Like Savigny, he believed in spontaneous evolution of law but he did not hang on the past but conceived law in the context of existing society and thus evolved his theory of living law.

   According to Ehrlich, the institution of marriage, domestic life, heritage, possession, contract, etc. governs society through living law which dominates human life. By living law, he meant the extra-legal control that controls my social reality. The central point of Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal sources of law.

     He says, “at present as well as at any other time, the center of gravity of legal development lies not in legislation nor in juristic science, nor in judicial decisions, but in the society itself.” Hence the living law is the fact which governs life and a proper study of law requires the study of all the social circumstances in which the law functions in the society. A statute which is habitually disregarded is no part of living.

         The use of the word ‘sociological jurisprudence’ means that the law should be made in society, and its needs should be given more attention. To achieve this end, a very close study of the social conditions of society, in which law is to be worked, is indispensable.

Inhering (1818-1892):-

                                      Inhering was a German jurist and described as ‘the father of modern sociological jurisprudence’. His main work is ‘The spirit of law’. But he is very well known for his principal Wor Der Zweck in Reett (1877-83) translated or ‘Law as a means to an End’. He rejected the Analytical and Historical jurisprudence as the jurisprudence of conceptions. He says that the law is coercion organized in Act from by the state. It is a way to achieve a proper balance between social and individual interests. It is through two impulses- coercion, and reward that society compels individuals to subordinate selfish individual interest to social purposes and general interests. Thus his insistence on the need to reconcile competing individuals and social interest made him ‘the father of the modern sociological jurisprudence that inspired jurists like Roscoe Pound and others.

Leon Duguit (1859-1928):-

                                              Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law) who made a substantial contribution to the sociological jurisprudence in the early twentieth century. He was much influenced by the Auguste Comte’s theory of law as a fact which denounced individual rights of men and subordinated them to social interest and Durkheim’s work “Division of Labour in Society”. In this theory, he made a distinction between the two kinds of needs of men in society namely:-

1.     Common needs of the individuals who are satisfied by mutual assistance,

2.     Diverse needs of individuals who are satisfied by the exchange of services.

                                                 

         Therefore, the division of labour is the pre-eminent fact which Duguit called as “Social Solidarity”. In his theory, he explained the social cooperation between individuals for their need and existence.

Social Solidarity:-

                                 Social Solidarity is the feeling of unity. The term ‘Social Solidarity’ represents the strength, cohesiveness, collective consciousness and viability of the society. Solidarity is nothing more or less than the fact or interdependence uniting the members of human society, and particularly the members of a social group by reason of the community of needs and the division of labour. Law is an instrument of social solidarity and cohesion. Because man cannot live apart from society, as a social animal. Law is not a body of rights. The only real right of man in society is to do his duty. All human being’s activities, organizations should be directed to the end of ensuring the smoother and fuller working of men with men. This Duguit calls the principle of social solidarity.