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.
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