5

SOCIOLOGICAL SCHOOL
Sociological school of jurisprudence has emerged as a result of synthesis of
various juristic thoughts. The exponent of this school considered law as a social
phenomenon. They are mainly concerned with the relationship of law to other
contemporary social institutions. They insist that the jurists should focus their
attention on social purposes and interest served by law rather than on individuals
and their abstract rights. According to this school, the essential characteristic of
law should be to represent common interaction of men in social groups, whether
past or present, ancient, or modem.
The main concern of sociological jurists is to study the effect of law and
society on each other. They treat law as an instrument of social progress. The
relation between positive law and ideals of justice also affects the sociology of
law.
Many authorities contend that sociological jurisprudence originated as a
reaction to rigid legal positivism which relied on the fact that law is solely based
on the coercive power of the State and completely rejected the pursuits of
morality and justice as irrelevant in human relations. Likewise, it was also
opposed to historical school's undue insistence on past customs, traditions and
values which had blocked the growth and development of law and paved way to
narrow nationalism in Germany and France.
The supporters of sociological jurisprudence linked law with other social
science disciplines and treated it as a synthesis of psychology, philosophy,
economics, political science, sociology, etc. Law, according to them, was an
applied science employing functional methods of investigation and analysis for
solving the social and individual problems. In their view, law is concerned with
its effect on society and therefore, it would be erroneous'to treat it as a mere
command or God's will or the people's conscience. The functional role of law
and its effect on society constitute the basic philosophy underlying sociological
jurisprudence. As Dean Roscoe Pound rightly pointed out, "the sociological
jurists look more for the working of law than for its abstract content". The main
characteristic features of sociological jurisprudence 1 as stated by Roscoe Pound
are as follows;
(1)

The exponents of sociological school lay greater stress on functional aspect of law
rather than its abstract contents. In their view, law cannot be L, insulated from the
social complexities and objectives and practical problems of life.

(2) They consider law as a social institution essentially inter-linked with other
disciplines bearing direct impact on the society and uphold the view th

Roncou Pound ! The Sco|f And Purpoil of Soclolojjicnl Jurisprudence (1911) 25 Hnr. L. Rev; 489.

(1)

law is designed on the basis of human experience in order to meet the needs of
the society. Law is in fact a synthesis of philosophy, psychology, political
science, economics, sociology etc. and has to be understood in terms of its
utility, purpose, effect, practices and functions.
(3) Sociological school completely discards the abstract notions of analytical
positivism which lay over-emphasis on command or power aspect of law as also
the dead weight of past culture and traditions which constituted the main theme
of the historical jurisprudence.
(4) Sociological jurists, however, differ in their approach to the perception of law.
Some prefer to adopt a pragmatic empirical recourse to study the functional
aspect of law while others emphasise on defining law in terms of court's rulings
and decisions thus adopting a realistic approach to law. For instance, Holmes has
defined law in terms of judicial prediction through the verdicts of law courts
whereas Roscoe Pound treats law as an instrument for the adjustment of human
conditions to the social forces operating in a given society. 2
In other words, sociological jurisprudence is a multifaceted approach to
resolve immediate problems of society with tools which may be legal or extralegal and techniques which promote harmony and balance of interests of
society.3
Four Developmental Stages of Sociological Jurisprudence :
As stated earlier, the approach of jurists towards law in terms of its
functions, purposes and objectives underwent a radical change towards the end
of the eighteenth century. The prevailing social order and economic conditions
due to the impact of laissez fnire philosophy generated rift and tensions
between different sections of society. It was realised that liberty with equality
and freedom without security were at the root of this disorder in the society.
Therefore, there was need for a fresh approach to the study of law in terms of
pressing needs of the society as the preceding dogmatic approach had failed to
deliver the goods. This led to the emergence of the sociological jurisprudence
which began from Auguste Compte, brought to the fruition by Dean Roscoe
Pound and finally culminated into Realist School of the twentieth century. The
major stages through which the sociological jurisprudence evolved and
developed4 may briefly be stated as follows :
(1) Empirical Scientific Approach to Law.Auguste Compte (1789-1857) is said to be
the founder of the sociological jurisprudence who made a beginning to what has
been known as 'scientific positivism'. His approach to law was empirical based
on experience and observation. Thus he rejected metaphysical methods of the
study of law which was commonly resorted to by his predecessors belonging to
the philosophical and historical school. He denounced all hypothetical
considerations in the perception of law and based his study of law on empirical
observation in an effort to establish co-relation between law and society. Being a
mathematician himself, Compte was greatly influenced by mechanical analogies.

2
3
4

Cohen & Cohen : Readings in Jurisprudence and Legal Philosophy (Toranto 1951) pp. 416, 423.
Dhyani S.N.: Fundamental of Jurisprudence - The Indian Approach (2004, Reprint, 2011) p.
306.
Roscoe Pound : Jurisprudence Vol. I (1959) p. 298.

According to Compte, human understanding widens with the mental

developments and the law takes shape to suit the needs of society in four
stages, namely, (1) Primitive stage, (2) Medieval stage, (3) Metaphysical stage
and (4) the Modem scientific (Positive) stage. In the first stage, theological men
try to explain things by reference to supernatural forces like sun, moon, sea,
seasons etc. and believes that all the human affairs are controlled and
regulated by God. In the second stage, the God theory and forces of nature are
personified in terms of absolute power. These hypothetical considerations are
discarded at the metaphysical stage and finally the scientific stage lays greater
emphasis on empirical observation and study of corelation between observed
phenomena themselves. Thus, Compte believed that the facts of society like
those of physical universe have to be explained by empirical observation,
verification and reasoning.
(2) The Impact of Darwinian Evolutionary Theory.The next stage in the
development of sociological jurisprudence has been called as the biological
stage' because of the influence of the Darwin's evolutionary theory. Herbert
Spencer explained social phenomenon as a biological process adapting itself to
the changing needs of the society. He asserted that law must evolve and adapt
itself to the changing needs of the progressive society. It is through the
instrumentality of law that the conflicting interests of the members of society
are reconciled and the various groups are held within their bounds in the
interest of the society as a whole.
Supporting the biological theory of evolution of law Austrian jurist
Gumplowicz observed that all racial phenomena are an unending struggle
between different elements : first between social groups, then between states
formed by the stronger groups and finally between classes within these states.
Law is therefore a instrument of the stronger over the weak in the unending
struggle between different interests of the society. It is through law that
stronger groups attain its objectives over the weak who they govern.
(4) Unification Stage.The last stage of development of sociological jurisprudence
consists of unification of sociological method with other social sciences. It was
realised that different social sciences represent different aspects of human
society. Therefore, they are supplementary and complementary to each other
and as such law also cannot be detached from various socio-economic aspects of
the society since it is an effective means of social control in the society. The
propounders of sociological jurisprudence, therefore, believe that law cannot be
detached from various socio-economic forces operating in the society. For them,
law is a mean of social control to be understood in the total setting of the
society, it seeks to regulate human conduct and aims at reconciling the conflict
of interests.
Sociological Jurisprudence and Sociology of Law Distinguished
It would be pertinent to draw a distinction between sociological
jurisprudence and sociology of law which appear to be similar concepts. Though
it is difficult to draw a hard and fast line of demarcation between the two
because of their identical subject-matter, they do differ in respect of their theme
and approach to law. Sociological jurisprudence is a functional study of law
applied to concrete social problems in order to make law an effective instrument

of social control for harmonising the conflicting interests of individuals in the

society. In this sense law has a wider connotation and includes judicial decisions
and administrative processes used for reconciling the competing interests of the
people. It is for this reason that sociological jurisprudence has also been called as
functional5 jurisprudence or jurisprudence of interests or jurisprudence of social
engineering.6
Sociology of law, on the other hand, is a descriptive study of law and legal
institutions of a given society. As Roscoe Pound rightly remarked, sociology of law
is mainly a descriptive study of law in a theoretical manner. It treats law as just
one of the several aspects of a society and, therefore, has a secondary position
as compared to society which is the main theme of sociology. 7 Thus, strictly
speaking, sociology of law is just a branch of sociology. According to Hall,
sociology of law is a theoretical science which consists of generalisation
regarding social phenomenon so far as they refer to contents, purposes,
application and effects of legal rules. Sociological jurisprudence, on the other
hand, looks at law as a means of social control. Thus, these are two distinct and
independent concepts.
According to Dr. Timasheff, "sociology of law exists as a distinct science
whereas sociological jurisprudence is merely a branch of science of
jurisprudence. However, both consider society as the matrix of their common
interest".8
Max Weber has traced the development of law from irrational conceptions
to its logical conclusions in his work Sociology of Law. Huttington Cairns also
expounded his legal theory with greater emphasis on sociological approach.
According to him, sociological or functional jurisprudence would remain a myth
without the progress of social science because jurisprudence is a mere tool to
serve the social interests of the community.9
Eugen Ehrlich explained legal sociology in terms of 'living law' which meant
that law is to be understood as it lives in society. He observed that the law
develops not through legislation nor through judicial decisions, but in society
itself.10 Thus, rejecting analytical jurisprudence, Ehrlich pointed out that law is
closely inter-related with life of society and therefore sociology of law is the
source of all legal development. He denies that law has emanated from the
State, it emanates from the society itself and adopts itself to the changing
needs of the transient society.
Back-drop of Sociological Jurisprudence
It is well known that the relations between individual, society and State are
never static, they have always been changing with the exigencies of time and
needs of the society. Therefore, various theories regarding their relationship
have also been changing. For instance, the early societies were governed by
customs which were only a social sanction. Then came the period of the
supremacy of the Church, i.e., the priestly class. To counter the growing
5
6
7
8
9
10

Paton G.W.: Jurisprudence (1964) p. 21.

Lioyd Denis : Jurisprudence (1959) p. 177.
Roscoe Pound : Jurisprudence, Vol I (1959) p. 344.
Julius Stone : Province and Function of Law (1946) p. 393.
Paton G.W.: Jurisprudence (1971) p. 29.
Alien C. K.: Law in the Making (1964) p. 29.

influence of the Church, the secular State emerged powerful dominating all
other institutions. The omnipotence of the State gave rise to the period of
renaissance and the legal philosophers began to think in terms of freedom of
individual and their rights and liberties. This resulted into political upheavals
giving rise to despotic rule, i.e., Nazism in Germany and Fascism in Italy. As a
result of this, there was need to review the legal theory for maintaining a
balance between the State, welfare of the society and the individual interests.
Finally, it was realised that socialisation of law and legal institutions would
perhaps best sub-serve the common good and interests of the society.
Consequently, a synthetic approach to jurisprudence by evolving a new legal
philosophy called the sociological school emerged out of the synthesis of
historical and philosophical movement and the comparative study of legal
systems.
Main Exponents of Sociological Jurisprudence
The main exponents of the sociological jurisprudence which has been
characterised as "interest oriented, interest loaded and interest directed" were
Montesquieu, Auguste Compte, Herbert Spencer, Rudolph Ihring, Eugen Ehrlich,
Leon Duguit, Francois Geny, Dean Roscoe Pound, etc. In United States, Justice
Oliver Windell Holmes and Benjamin Cardozo, the distinguished American
Judges of the U.S. Supreme Court were also inspired by Dean Pound's
sociological theory of law. It would, therefore, be pertinent to discuss the juristic
contribution of these pioneers of sociological school in the succeeding pages.
Montesquieu (1689-1755)
Montesquieu was a French legal thinker who is considered to be the forerunner of the sociological school of jurisprudence. He was first in point of time to
perceive the influence of social conditions on law and legal institutions. In his
book, The Sprit of Law, (L'Esprit des bois), he emphasised that "laws of a
particular nation should be determined by its national characteristics and must
bear relation to the climate of each country, the quality of each soil, the
situation and extent, the principal occupations of the natives and above all, to
the religion of the inhabitants, to their inclinations, riches, commerce, manners
and customs'. Therefore, though not a propounder of sociological jurisprudence,
Montesquieu's name deserves mention as a fore-runner of this school of
thought. He acknowledged the importance of history as a means of
understanding the structure of society and drew attention to the role of
economic factors.
Auguste Compte (1786-1857)
The noted French legal thinker and philosopher Auguste Compte is
regarded as the founding father of science of sociology because he was the first
to employ the term sociology' to connote an independent discipline. He applied
scientific method to the study of sociology which has been termed as 'scientific
positivism'. According to him, society, like any other organism can progress
when it is guided by scientific principles. These principles should be formulated
by observation and experiment of facts and all other metaphysical
considerations should be excluded frorr its purview. He further pointed out that
man cannot live in isolation as he is essentially a social being and all his
impulses originate from his social life which are to be regulated and controlled
by law and the government. Therefore, it is the 'society' and not the 'individual'
which should be the focal point of law. The legal theory of Auguste Compte

greatly inspired Durkheim and later the great sociological jurist Leaon Duguit
founded his theory of social solidarity taking inspiration from these legal
thinkers.
Herbert Spencer (1820-1903)
Herbert Spencer was an English sociological thinker who traced the
evolution of society from simple to the modem complex structure. Thus he gave
a scientific exposition to the organic theory of society. Spencer deduced four
sources of law, namely, (i) divine laws having qudsi-religious sanctions; (ii) the
injuctions of the past leaders; (iii) the will of the ruler; and (iv) collective opinion
of the society.11 He pointed out that divine laws are clearly distinguishable from
man-made laws. He considered law nothing more than a hardened custom. The
purpose of law according to Spencer is to resolve the conflicting interests of the
individuals in the society. According to Dr. Allen, the essence of Spencer's
organic theory lay, "in the inter-dependence of organism, in its sociological
aspect, which means the mental relation of all members of civilised society and
the distribution of a sense of responsibility far wider than can be comprised with
the formula 'sovereign and subject'. It directed attention to the necessity of
considering law in relation to other social phenomenon". 12 Spencer's theory
inspired subsequent jurists to carry further their socio-legal researches and
relation of law and society.
Rudolph Von Ihring (1818-1892)
Ihring was educated at Berlin in Germany. He was Professor at Basel,
Rostock, Keil, Vienna, Strausburg and Gottingen. His monumental work, Spirit of
Law was published in four volumes during 1852-1865. Later, he published his
principal work which was translated as 'Law As Means To An End' in 1913. In this
work he criticised the notion of individual freedom and liberty as advocated by
Kant and Bentham as they had divorced legal theory from social realities. He
thus opposed the doctrine of individualism, which in his view was incompatible
to the cause of social justice. Ihring opined that social interest of the society
must gain priority over individual interest and the purpose of law should be to
protect the interest of the society. In his view, social interest must gain priority
over individual interest. Exposing the absurdities and weaknesses of
individualism, which had made the individual as the focus of moral, political
and legal order, Ihring condemned it as being anti-social and incompatible to the
claims of social justice. Thus, he was a great critic of Austinian positivism,
Benthamite individualism and Herbert Spencers biological theory of evolution of
law all of them being theories which were divorced from social realities. His legal
philosophy is therefore, known as the jurisprudence of interests' which
emphasises on sociological aspects of law. The main tenets of Ihring's
jurisprudence of interests may briefly be stated under the following heads :
1.

Law is result of constant struggle.Ihring pointed out that the origin of law is to
be found in social struggles. He accepted that the role of law is to harmonise
conflicting interest of individuals for the purpose of protection of the interest of
the society as a whole. He rejected the philosophical view that law evolves

11 Spencer Herbert: Principles of Sociology p. 537.

12 Dr. Allen C.K.: Law in the Making (7th ed. 1964) p. 85.

spontaneously like language and thus he gave importance to 'living law' which
was later developed by his disciple Eugen Ehrlich. The legal philosophy of Ihring
greatly influenced the American sociological school which eventually culminated
into Realist School of Jurisprudence.
2.

Law is to serve a social purpose.Ihring considered law as a means to an end.

The ultimate end of law is social purpose and not the individual purpose or
interest. It is the duty of the State to promote social interest by avoiding a clash
between the individual and social interest. He even justifies coercion by the
State for the purpose of protection of the social interest. For him, 'law is a
coercion organised in a set form by the State.

3.

Law alone is not a means to control the society.Ihring made it clear that law
alone was not the means to control the social organism. There are some other
conditions such as climate, topography etc. wherein law need not intervene.
There are, however, certain aspects of social life which can be regulated and
controlled exclusively by the intervention of law, such as raising of taxes and
revenues. Like Bentham, Ihring also defines 'interest' in terms of pleasure and
pain, that is, pursuit of pleasure and avoidance of pain may be called as
'interest'. It is mainly for this reason that Ihring's theory has been called as
"social utilitarianism". He considers punishment as a means to a social end. He
is opposed to retributive penal policy.
Ihring's Contribution
Ihring's contribution to the science of jurisprudence has been
acknowledged by Friedmann who calls him the 'father of modem sociological
jurisprudence'. Ihring traced the development of various legal systems by
adopting comparative method of study and came to the conclusion that law
develops by conscious efforts. He was a critic of Savigny's historical theory and
natural law theories propounded by his predecessors.
Ihring laid the foundation of modem sociological jurisprudence by this
insistence on heating law as one of the important factors to control the social
organism. According to him, (i) law has a coercive character; (ii) it has only a
relative value; and (iii) it has to be evaluated in the social context. Thus he
treated law as an effective instrument for the attainment of social purpose. His
theory was later developed by Duguit, Roscoe Pound and others.
According to Ihring, "the social activities of people are controlled by
reward and coercion; duty and love". For him, laws were only one way to
achieve the end, namely, social control. He emphasised that law was an
instrument for serving the needs of society where there is inevitable conflict
between the social needs of man and each individual's self-interest. He
believed that law does not exist for the individual as an end in himself, but
serves his interest with the good of society. Thus, property for him was both, a
social and individual institution.
Criticism Against Ihring's Theory
Ihring's legal theory has been criticised for two reasons. Firstly, in
suggesting that the function of law is to reconcile the conflicting interests, he is
pointing out the problem, but does not come out with any solution to it.

Secondly, the main criticism against Ihring's theory of purpose is that law in
fact protects 'will' and not the 'purpose'. But this criticism has not attracted
much attention because many jurists including Korkunov believe that law seeks
to protect 'purpose' and not the 'will' of the society. Ihring's theory was mainly
based on the Benthanmite principle of utilitarianism and he sought to reconcile
competing social and individual interests.
The true position as per Ihring is that law is a process to achieve a proper
balance between social and individual interests. Thus, law has a purpose to
promote social interest and as such there can be no law which does not owe its
origin to a definite purpose. Ihring's theory of purposive law inspired

subsequent jurists, notably Roscoe Pound to develop of his theory, social

interest and social justice in subsequent years.
Eugen Ehrlich (1862-1922)
Ehrlich was a Professor of Roman law at the University of Czetnowitz in
Austria. 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 him, the institutions
of marriage, domestic life, inheritance, possession, contract etc. govern the
society through living law' which dominates the human life. By 'living law'
he meant extra-legal controls which regulate social relations of men. Ehrlich
made an intensive study of various legal systems by comparative method
and came to the conclusion that law develops by conscious efforts. In his
opinion, the centre of gravity of legal development in the present time or
the past, lies neither in juristic science nor in judicial decisions, but in
society itself.13 His living law is the law which dominates social life even
though it has not been promulgated in the form of enactment or decision of
the courts. Thus he considers living law' wider in scope than the statutory
law enacted by the State. For example, there may be some enactments in
force in the sense that a court may apply the provisions thereof if they are
called in question, but frequently, a community ignores that enacted law
and lives according to rules created by mutual consent. The Indian dowry
system provides the best illustration to substantiate this view of Ehrlich.
Such rules which are based on mutual consent of the people rather than
statutory enactments or court's decisions, have been termed as fact of law'
a social reality which exist quite independent of State's positive law. It is the
living law' of the people.
The essence of Ehrlich's theory of living law is that law need not be
necessarily created by the State or applied by the courts or have a coercive
legal compulsion behind it, but it is created by life of groups living within the
society. Thus living law is the fact which governs social life and a proper study
of law requires the study of all the social conditions in which the law functions
in the society. A statute which is habitually disregarded is no part of 'living
law'.
Ehrlich's Contribution
Despite criticism from several quarters that Ehrlich's theory of living law
is unrealistic, his contribution to jurisprudence cannot be dismissed outright.
He earnestly strived for the cause of social justice and 'justice' according to
him was not an abstract concept but had a relative significance changing with
time and place. He concentrated his attention on the functioning of law which
was not embedded in the Code or the Court's decision but which did operate
and affect the social life in a community.
The greatest contribution of Ehrlich to sociological school of
jurisprudence lies in scientific approach to study of law in its social context and
his emphasis

13 Allen C.K.: Law in the Making (1964) p. 28.

on relation between law and the life of the society. His theory of 'living law' came
as a vigorous reaction against the analytical positivism. Ehrlich adopted a more
practical approach and focused his attention on the social function of law. The
purpose of law according to him, was attainment of social justice. Taking a very
practical stand, Ehrlich emphasised that while making and administering law, the
requirements of the society in which law is to operate must be taken into
consideration. Then only law may serve a really useful purpose.
Ehrlich made an exhaustive study of the variety of customs, traditions,
habits and rules of succession and family relations of nearly a dozen of tribal 14
inhabitants in Astro-Hungarian empire and concluded that they persisted
independently despite existence of state regulations on these matters. This
study inspired him to evolve his theory of 'living law' of the people. According to
him, the centre of gravity of legal development lies not in legislation nor in
juristical science nor in judicial decisions, but in society itself. He wanted jurists
to abandon purely abstract notions of law and concern themselves with the real
problems and facts of social life.
Criticism Against Ehrlich's Theory
Friedmann has criticised Ehrlich's theory for extending the scope of
sociology of law and its relation to other social sciences too far and even to the
limit of absurdity.15 Ehrlich makes no distinction between legal norm and other
social norms and confuses between the twc. He also overlooks the fact that
many a times formal law influences and even changes the prevalent practices of
the society in the interest of the community as a whole. The significance of
state-made positive law in the modem welfare states cannot be undermined.
Legislation has become one of the important sources of law for regulating social
life giving way to age-old customs and traditions. Undoubtedly, modem social
conditions call for more and more intervention of the State to control social life,
therefore, the importance of custom is receding in favour of articulate law of the
State.
Friedmann asserted that law is a focal point that generates standards of
behaviour. The validity of law is, however, based on social conventions and not
on morality. While enacting the law, totality of 'legal culture' has to be taken into
consideration in order to make the law well 'reasoned' and acceptable to people
at large. Friedmann's 'legal culture' purports to cover the ideas, attitudes, values
and beliefs which people hold about the legal system. Thus validity of law is
based on social conventions and not on morality alone. 16
Leon Duguit ( 1859-1928)
Leon Duguit 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. During his
time individualism was crumbling in Europe giving way to collectivism in
which State's role extended to public service. 1 The reflection of collectivist
ideologies could be found in the writings of Durkheim, Piaget, Max Weber
14 In those days Astro Hungarian Empire consisted of a number of gaces, namely, Germans,
Czechs, Slovaks, Croats, Serbs, Solvenes, Jews, Ploes, Hungarians, Russians, Rumanians.
15 Friedmann : Legal Theory (1967) p. 248.
16 Friedmann, L.M.: Dilemmas o/Uno in the Welfare State, (1986) p. 26.

etc. Duguit was much influenced by Auguste Compte's theory of law as a

fact which denounced individual rights of men and subordinated them to
social interest. Compte pleaded that 'the only right which man can possess is
the right always to do his duty'. This formed the basis of Duguits' legal
theory.
Duguit was also influenced by Durkheim's work 'Division of Labour in
Society' which was published in 1893. Durkheim made a distinction between
two kinds of needs of men in society. Firstly, the common needs of
individuals which are satisfied by mutual assistance, and secondly, the
diverse needs of individuals which are satisfied by exchange of services.
Therefore, the division of labour is the most important fact which Duguit
called as 'social solidarity.
Doctrine of Social Solidarity.Duguit's theory of social solidarity was
based on the fact that interdependence of man is the essence of society.
Every individual has his existence owing to his membership of the society.
Each individual cannot procure the necessities of life by himself. Therefore,
each in his turn has to depend on other for his needs. The ultimate end of all
human activities is to ensure the interdependence of men. Duguit 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 live as members of society. He rejected the traditional notions of rights,
sovereign, state, public and private law, legal personality as fiction and
unreal because they were not based on social reality. His entire thrust was on
mutual co-operation and mutual interdependence between individuals,
groups and societies according to the principle of division of labour for the
purpose of social cohesion.
Law to secure and serve Social Solidarity
According to Duguit, the essence of law is to serve arid secure social
solidarity which is duty oriented as it expects individuals to perform their
obligations as a member of the community. There is therefore, no scope for
natural or private rights. Thus Duguit stated that law consists of duty which
is the basis of co-operation and rejects the abstract concept of right which is
the source of conflict. In other words, Duguit exhorts every one to perform
his duties to the society which would help development of co-operation 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. Law is essentially an objective social fact concerned
with the relation between man and man on the one hand, and man and the
State on the other.
Theory of Justice.Duguit dpfines justice in terms of fulfilment ot social
needs and obligations. According to him, law must seek to promote social
solidarity so as to attain maximum good of the society as a whole. State
regulations should be directed towards achieving the ends of social and
economic justice for common good. He considers 'justice' as a social reality its
roots being in the society itself and not in the will of the sovereign.
Duguit's views about the State and its functions.Duguit rejected
hypothetical notions about the State and sovereignty and built his own theory
which was pragmatic and scientific in character. He attacked State sovereignty
and held that State is in no way different from other human organisations and
therefore, its activities should be judged from the point of view of social solidarity

and common good of society. He favoured minimisation of State functions and

decentralisation of State power. He contended that legislators do not make law
but merely give expression to judicial norms formulated by the consciousness of
the social group. Duguit firmly believed that the State exists for performing the
functions which promote social solidarity and not for the exercise of sovereignty.
Duguit's Legal Philosophy
Duguit denounced traditional conceptions of state, sovereignty and law and
preferred to interpret these institutions from the point of view of society.
According to him, the outstanding feature of society was interdependence of
men1. Social interdependence was the inevitable characteristic of human
existence which necessitated active co-operation between people. Duguit called
this as 'social solidarity'. Thus, his legal philosophy centered round the doctrine
of social solidarity, which may briefly be summarised as follows 17 :
1.

He rejects the doctrine of state sovereignty and considers state merely as an

expression of the will of the individuals who govern.

2.
3.

The unity of State is not consistent with the collectivist associations.

Law is only an embodiment of duties which an individual is supposed to perform
as a part and parcel of the social organisation for furtherance of social solidarity.
Law forbidding racial segregation promotes social solidarity.

4.

The sole emphasis of Duguit was on interdependence of men as a member of the

community.

5.

There are three formative laws, namely, respect for property, freedom of contract
and liability for fault which achieve validity when approved by the people. Public
opinion is thus expression of social solidarity.

6.

There is no distinction between public and private law as all laws are weant to
serve the end of social solidarity. Duguit denied the existence of rights and held
'duty' as the core of law to attain public good.

7.

He contemplates gradual withering away of the State and its replacement by

group of associations which are engaged in the service of society.
Duguit's Contribution
The substantial contribution of Duguit to juristic thought is that he
denounced the omnipotence of the State which had led to despoticism and
totalitarian rule. He also rejected the notion of natural rights of m .n which made
individual hostile to larger interests of the society. His over-emphasis on duties
rather than rights was directed towards greater inter-co-operation between
individuals of a society. Duguit used law as an instrument to promote justice. By
rejecting the notion of State sovereignty, he subordinated the State to the social
needs and asserted that all State actions are to be tested by the Courts with
reference to social solidarity. Thus he acknowledged the superior role of the
judiciary in adjudicating vires of State actions or laws. The impact of Duguit's
legal theory was so great that the later jurists were inspired to propound their
own theories relating to law and jurisprudence.
Criticism against Duguit's Theory
The critics of Duguit suggest that his theory of social solidarity suffers from
many weaknesses, the first being that it excludes all metaphysical considerations

17 Leon Duguit: The Law and the State (1917) 31 Harv. Law Review 1.

from law and it is itself based on the ideal of natural law. They allege that Duguit,
"pushed natural law out through the door and let it come in by window".
Duguit's definition of law is also confusing as in laying down the
fundamentals to which the law must conform, he confuses to distinguish
between what the law is and what it ought to be. For him, anything which does
not encourage social solidarity is no law at all.
Perhaps the greatest shortcoming of Duguit's theory lies in the fact that he
overlooked the growing role of State in modem times. He favoured minimum
State interference completely ignoring the fact that the complexities of modem
social life and interdependence in society necessitates greater intervention of the
State in regulating human behaviour.
Another weakness of the theory propounded by Duguit is the vagueness of
his doctrine of social solidarity. After all, who is to decide whether a particular act
or rule is in furtherance of social solidarity or not? If it is to be decided by the
Court, then the social solidarity would become a question of personal evaluation
of the Judge, which would not be a happy situation since Judges too have their
own limitations and convictions. Again, 'social solidarity' may be differently
interpreted by different persons to suit their own purposes. For example, Marxists
used this theory for denial of individual rights and the Fascists used it to suppress
the trade union movement.
Francois Geny (1861-1944)
Geny was a French jurist who was a Professor of Law in the University of
Nancy. He published his work Method and Interpretation of Sources of Law >n
1899 which won appreciation from American jurists like Holmes, Cardozo, Frank
and others. He was the first legal thinker in the continent to accept the
importance of judicial decisions in moulding any system of law. He denounced
the traditional French method of logical interpretation of law and suggested that
it be substituted by the new scientific research in the field of law. His later work
Science and Technique of Law was published in four volumes between 1914 to
1924 in which he pleaded for the revision of the French logical method of
interpretation of law being out of tune with the requirements of changed social
context. Rejecting abstract and logical approach to law, Geny believed that law
was essentially a social science which needed to be modified and changed with
the changing patterns of life and society. He gave primacy to courts and held
that it was for the Judge to ensure that justice is being done to everyone without
any discrimination.
Besides the French Code for which Geny had no faith, he refers to three
additional sources18 of law, namely, (1) custom, (2) authority of judicial
decisions, and (3) free scientific research.19 Elaborating his concept of free
scientific research, Geny stated that when a case is not covered by any of the
provisions of the Code, the Judge seems to have unlimited powers to interpret it,
but he should not do so arbitrarily, instead he should try to find out the solution
freely, i.e., without any external influence, and scientifically, i.e., his decision
should be based on reason and conscience. Thus the ultimate aim of law is to
impart justice.
18 Friedmann : Legal Theory (1967) p. 328.
19 Reuschlein Harold Gill: Jurisprudence, its American Prophets (1971) p. 113.

Geny further stated that the solution of social problems lies in the free
scientific research20 which itself is based on three principles, namely, (1)
autonomy of will, (2) maintenance of public order and public interest and (3)
proper balancing of conflicting private interests of individuals. Thus while
resolving the social problems the judge must bear in mind the common good of
the people in general.
Geny's sociological approach to jurisprudence with emphasis on 'free
scientific research' was supported by Professor Kantorowicz who was his
contemporary sociological jurist. The latter opposed analytical approach to law
which was based on abstract logical derivations and supported the view that law
should attempt to balance the conflicting interests of life. 21 Thus he laid greater
stress on sociological study of law.
Hermann Kantorowicz (1877-1940)
Professor Hermann Kantorowicz also contributed to the development of
sociological jurisprudence. He opposed the analytical approach to law which was
based on mere logical propositions and supported the existence of law as a
means for protecting the social interests of individuals in society. He emphasised
on social implications of law and legal institutions, instead of resorting to logical
interpretation of law.
Roscoe Pound (1870-1964)
Roscoe Pound was bom in Lincoln Nearaska (New Jersey) in 1870. He was
an auxiliary Judge of the Supreme Court of Nebraska for a sh ort period of two
years during 1901-1903. Thereafter, he worked as a Dean of the Law school at
Nebraska. He also served as a Professor of Jurisprudence in Harward University
and was the Dean of its law school. He was a prolific writer and his major works
include the Spirit of the Common Law (1921); An Introduction to the Philosophy
of Law (1922); Interpretations of Legal History (1923); Law and Morals (1926);
The Formative era of the American Law (1938); Contemporary Juristic Theory
(1940); Administrative LawIts Growth, Procedure and Significance (1942);
Social Control Through Law (1942); The Task of Law (1944), etc.
Roscoe Pound was one of the most leading and influential jurists who
developed the American Sociological Jurisprudence in a systematic form. He
emphasised on inter-disciplinary approach to law so that rule of law and life may
flow together. He treated law as a means for affecting social control and did not
believe in the abstract or mechanical application of law. He is considered to be
the father of American Sociological Jurisprudence for his unique contribution to
the science of law and legal philosophy. The emergence of Realist School in
America in later years owes its origin to Pound's functional jurisprudence and
theory of interests.
The contribution of Roscoe Pound to sociological jurisprudence may be
studied under the following heads :
1.

Emphasis on Functional Aspect of Law :

Roscoe Pound added new dimensions to sociological school of
jurisprudence. His approach to sociological jurisprudence was different in the

20 Friedmann : Legal Theory (1967) p. 329.

21 Newman, R.A.: Essays In Honour of Roscoe Pour.d (1977) p. 113.

sense that he attempted to cover social-life as a whole unlike his predecessors

who considered law as the main subject of study and society is merely subsidiary
to it. Pound laid greater stress on functional aspect of law. This is why his
approach has been termed as 'functional school' by some writers. 22 He defined
law as containing "the rules, principles, conceptions and standards of conduct
and decision as also the precepts and doctrines of professional rules of art". He
thus considers law as a means of a developed technique and treats jurisprudence
as a 'social engineering'. The end of law according to him, is to satisfy a
maximum of wants with a minimum of friction or confrontation.
Elaborating the functional aspect of law, Roscoe Pound stated that the
function of law is to reconcile the conflicting interests of individuals in the
community and harmonise their inter-relations. He termed this as 'social
engineering'.
2.

Pound's 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 society. Thus courts, legislators,
administrators and jurists must work with a plan and make an effort to

1 01

SOCIOLOGICAL SCHOOL
maintain

balance

between

the

competing

interests

enumerated
the various interests which the law should seek to protect mcfclassified them
into three broad categories, namely, (1) Private interests, (2) Public interests,
and (3) Social interests.
(i) Private Interests.These include
(a) Individual's interests of personality, namely, interests of physical integrity,
reputation, freedom of volition and freedom of conscience. They arfc.
safeguarded by laws of crimes, torts, contracts, constitutional law, 23 etc.
(b) The interests of domestic relations of persons such as husband and wife, parent
and children, marital life a^ 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
private interests.
(ii) Public interests.The main public interests according to Roscoe Pound are
(a) Interests in the preservation of the State as such; and

22 Paton G.W.: A Text-Book of Jurisprudence (4th ed.) p.17.

23 For example. Arts. 24 and 26 of the Constitution of India.

(b) State as a guardian of social interests such as administration of trusts, charitable

endowments, protection of natural environment, territorial waters, sea-shores,
regulation of public employment and so on.
(iii) 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.
(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, protection of economically weaker sections of the society.
(e) Social interests in general progress including economic, political and cultural
progress. For example, freedom of trade and commerce, freedom of speech and
expression, encouragement to arts and promotion 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.

3.

It may be stated that Pound's classification of interests in his theory of

social engineering cannot be said to be fool-proof for there may be overlapping
of interests here and there. Pound himself accepted that the various interests of
individuals in a society can only be broadly classified and they cannot be placed
in water-tight compartments. Julius Stone has rejected the division of public
interests and social interests on the ground that in fact they are all social
interests.24 However, appreciating Pound's classification of interests he
observed, "it greatly helps to make legislator as well as the teacher and
practitioner conscious of the principles and valuei involved in any particular
issue. It is thus an important aid in the linking of principles and practice."
Pound tackled the problem of interests in terms of balancing of individual
and social interests. It is through the instrumentality of law that these interests
are sought to be balanced. As Justice Cardozo rightly remarked, "Pound
attempted to emphasise the need for judical awareness of the social values and
interests."
Jural Postulates of Roscoe Pound
In order to evaluate the conflicting interests in due order of priority, Pound
suggested that every society has certain basic assumptions upon which its
ordering rests, though for most of the time they may be implicit rather than
expressly formulated. These assumptions may be called as jural postulates of
the legal system of that society. Pound has mentioned five jural postulates 25 as
follows :
Jural Postulate I.In a civilised society men must be able to assume that
others will commit no intentional aggression upon them.

24 Stone Julius : Province And Function of Law (1946) p. 491.

25 Pound Roscoe: Jurisprudence (Vol. Ill, 1959) pp. 7-8.

Jural Postulate II.In a civilised society men must be able to assume that
they may control for beneficial purposes what they have discovered and
appropriated to their own use what they have created by their own labour and
what they have acquired under the existing social and economic order.
Jural Postulate III.In a civilised society men must be able to assume that
those with whom they deal as a member of the society will act in good faith and
hence
(a) will make good reasonable expectations which their promises or other conduct
reasonably create;
(b) will carry out their undertaking according to the expectations which the moral
sentiment of the community attaches thereto;
(c) will restore specifically or by equivalent what comes to them by mistake, or
failure of the pre-suppositions of a transaction, or other unanticipated situation
whereby they receive at other's expense what they could not reasonably have
expected to receive under the actual circumstances.
Jural Postulate IV.In a civilised society men must be able to assume that
those who engage in some course of conduct will act with due care not to cast
an unreasonable risk of injury upon others.
Jural Postulate V.;In a civilised society men must be able to assume that
others who maintain things or employ agencies, harmless in the sphere of their
use but harmful in their normal actions elsewhere, and having a natural
tendency to cross the boundaries of their proper use will restrain them and keep
them, within their proper bounds.
Pound confessed that these jural postulates are not absolute but they have
a relative value. They are a sort of ideal standards which law should pursue in
society. They are of a changing nature and new postulates may emerge if the
changes in society so warrant. 26 Thus, the jural postulates propounded by
Roscoe Pound provide guidelines for righteous and civilised life and they also
seek to strike a synthesis between reality and idealism as also power and social
accountability of men in the community.
Pound's Contribution to Jurisprudence :
Roscoe Pound based his theory of social engineering on the assumption
that protection of interests is the main subject-matter of law and it is the duty of
jurists to make a 'valuation of these interests' for the satisfaction of human
wants in order to strike a balance between stability and social change. Thus
adopting a functional approach to law, Pound stressed upon the need for study
of law in relation to and as a part of the whole process of social control.
Criticism Against Pound's Theory :
Despite Pound's great contribution to sociological jurisprudence and his
emphasis on studying the actual working of law in the society, his theory suffers
from certain drawbacks. Pound'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 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 is more or less static. Again,
26 Roscoe Pound : Jurisprudence (Vol. Ill 1959) p. 3.

Pound's emphasis on 'engineering' ignores the fact that law evolves and
develops in the society according to social needs and wants for which law may
either have approbation or disapprobation.
Dr. Allen has criticised the utilitarian in Pound's theory as it confines the
interpretation of 'wants and desire' to only material welfare of individual's life
completely ignoring the personal freedoms which are equally important for a
happy social living.27
It has also been argued against Pound's theory of interests that it has no
significance in a pluralistic society where there are linguistic, ethnic, and
religious minorities having diverse interests. Harmonising their divergent
interests is by no means an easy task to be performed through law and courts.
Dr. Friedmann has expressed doubts about the value of classification of
interests and remarked that "there is danger of an implicit grading of interests
as either individual, public or social because these are changing conceptions as
has been accepted by Pound himself. Not only that, the respective value of
these interests and their evaluation also depends on changing political and legal
system". For example, a liberal progressive government would lay greater
emphasis on freedom of individual rights and of established institutions buL a
totalitarian 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 and' social control
through the instrumentality of law. His greatest contribution to jurisprudence is
that he is practical in approach and concentrates his attention on the actual
functioning of law in society.

Other American Sociological Jurists

Justice Oliver Windell Holmes28 and Justice Cardozo of U.S.A. are
considered to be the forerunners of the sociological jurisprudence to which
Pound gave a concrete shape through his theory of sociological engineering.
Justice Holmes (1841-1935)
Justice Oliver Windell Holmes considered law as a means to protect and
promote the collective group interests as compared with the individual
interests. Thus he approached law in a pragmatic manner adoptingrealistic
attitude to analyse its working in the society. He aptly remarked, life of law has
not been logic, it has been experience" which meant that while determining the
law and legal rules by which men should be governed, the lawyers and Judges
must take into consideration the needs of the time, prevalent moral and
political precepts, public policy and the public opinion. Being a Judge of the
Supreme Court of America for over thirty years, Holmes was convinced that
Judges can play a significant role in "turning law to life's needs and

27 Allen C.K.: Lmu in the Making (1964) p.33.

28 He was a practising lawyer and teacher at Harward Law School. He was subsequently
appointed as a Judge of the Supreme Court of Massachusetts of which he became the Chief
Justice in 1890. Later, he was Judge of the Supreme Court of USA from 1902 to 1933.

satisfaction". Through his monumental work The Common Law he took

sociological jurisprudence across the Atlantic.29
Professor Albert W. Alschuler who wrote Justice Holme's biography writes
that Holmes did not believe in a divinely imposed distinction between right and
wrong. He believed in relativity in all human conduct. According to him, law
does not deal with absolutes but has to be applied according to varying
circumstances of the case and a variety of other factors associated with it.
Cardozo : Benjamin Nathan (1870-1938)
Another Judge of the US Supreme Court, Justice Cardozo 30 also viewed law
in its sociological perspective. He totally rejected Austinian concept of logical
interpretation of law and his analytical approach to the judicial process and
emphasised on the need to interpret law in the light of the social necessities
and realities of life. In his famous work Nature of Judicial Process, Cardozo
exhorted the Judges to shed aside their subjective approach and apply law
objectively keeping in view the prevailing traditions, customs, morals and needs
of the society. He was primarily concerned with two aspects of law, namely, (1)
how the Judges should apply law for deciding cases before them, and (2) how
the'law grows in society.
According to Justice Cardozo, Judges cannot keep themselves secluded from
social realities and developments in other fields of social sciences which have a
direct bearing on the life of the people. Therefore, law must keep pace with the
social developments and shape itself to the changing needs of society in order
to attain the ends of justice 31 and undoubtedly, Judge's role is crucial in this
judicial process. He remarked, "logic, history, custom, utility and the accepted
standards of right conduct are forces which singularly or in combination, shape
the process of law. Which of these forces shall dominate in a given case, shall
depend largely upon the cooperative importance or value of social interests that
will thereby be promoted or impaired. The judge should get his knowledge as
legislator gets it from experience, study and reflection, from life itself. 32
Social JusticeIndian Perspective
An appraisal of the sociological jurisprudence in its Indian perspective
would necessitate a survey of the present as well as the pre-independence
Indian law. The law during the British colonial rule in India 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 and prosperity of Indian by dividing Indians on the basis of
caste, creed, religion, language and occupation so as to perpetuate tension and
conflict between different communities to meet their selfish ends. Thus the law
in India as it stood before the Indian independence was formal, rigid, repressive
and punitive as contemplated by the Austinian conception of imperative theory
of law. The legislature, executive and judiciarythe three organs of the
government used law to protect the interests of the British in complete
disregard of the aspirations and needs of the Indian masses who were exploited
and denied even the basic human rights. In the strict Austinian sense, sanctions
29 Dhyani S.N.: Fundamentals of jurisprudenceWe Indian Approach (2004, Reprint, 2011) p.
327.
30 He was Associate Judge of the US Supreme Court during 1932-38.
31 Cardozo Benjamin Natham : The Nature of Judicial Process (1931) p. 142.
32 Cardozo Benjamin Nathan : The Nature of Judicial Process, (1931) p. 142.

were imposed on Indians in the name of 'justice according to law'. The British
residents in India enjoyed many exemptions and special privileges under the
then existing laws. Thus there was 'one law for the ruler and other for the ruled'.
From the point of view of Kelsonite concept of pure theory of law, the
Grundnomi of the Indian law was the British Crown who possessed unlimited and
unbridled powers of suppression and subjugation of the native Indians.
Expressing his impressions about the nature and quality of justice delivery
system administered in the Indian law courts, Castairs has commented that the
(3) Impact of Psychological Theories.According to Dean Roscoe Pound,
the third stage of the development of sociological school is the psychological
stage. It was a period of later half of the 19th century and the first quarter of
the twentieth century during which psychology had greatly influenced other
social sciences including the law. Ottovon Gierke (1841-1921) denounced the
orthodox approach of the historical school which over-emphasised on
metaphysical approach to law and highlighted the importance of grouppersonality for securing collective interests. Thus it was realised that
psychological aspect of law has a close bearing to its functional aspect. George
Jellinek (1851-1911) propounded his social psychological theory of sanction
and held that law sets the norms for external conduct for men and it proceeds
from an external power.
6. Dias: Jurisprudence (1976) p. 587.
18. ]ulius Stone: Province of Law (1945) p. 690.
30. Friedmann : Legal Theory (5th ed.) p.340.