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  • Manvi Priya

"Exploring Sociological Jurisprudence and Its Role in Shaping Society"

Manvi Priya 

BVDU, New Law College, Pune, Maharashtra.

Exploring Sociological Jurisprudence and Its Role in Shaping Society

I. Introduction 

The sociological school of jurisprudence has emerged from the synthesis of various schools of thought. With the rise of social developments, there came to exist among jurist a consensus of belief in the possibility of applying the ‘scientific method’ to the study of law more effective as to an instrument of social control for the ends which law is designed to accomplish in the civilization of the time and place.  

Sociological school emphasizes the use of law as an instrument to bring social progress, focusing its attention on social purposes and interest served by law rather than on individual and their abstract rights. According to this school, the essential characteristic of law should be to represent common interaction of man in the society, whether past or present, ancient or modern. 

Many authorities contended that sociological jurisprudence emerged as a reaction to rigid legal positivism which relied on the fact that law is entirely based on the will of sovereign and has no nexus with morality and justice. It is also opposed to the past customs, traditions and values of historical school. 

The exponents of sociological jurisprudence treated it as a combination of psychology, economics, political science, sociology, etc. They expounded that law was an applied science applying functional methods of investigation and analysis for solving social and individual problems. According to them, it would be erroneous to address it as mere command or God’s will or the people’s conscience as the functional role of law and effects on society constitute the basic philosophy underlying sociological jurisprudence. 

Sociological jurists differ in their approach to the perception of law. Some prefer to adopt a pragmatic empirical recourse to the functional aspect of law while others emphasize defining law in terms of court's rulings and decisions thus adopting a realistic approach to law.

Jurists under sociological school might differ in their approach but their idea to perceive law is same, I.e., to be perceived in terms of society and its well-being. The impact of this school is evident on Indian legal system as well. Judiciary in India over the years has passed the judgement that promotes social welfare and has also diverted the attention of legislator on matter where law need to be formulated.

II. Propounds of Sociological School of Jurisprudence.

1.Leon Duguit (1859-1928) – 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 men’. Social interdependence was an inevitable feature of human existence, which necessitated active cooperation between people. Duguit called this ‘social solidarity’. He promotes greater cooperation of individuals in a society by emphasizing more on duties than on rights.  He rejected the notion of ‘state sovereignty and subordinated the state to the social needs and asserted that all state function is to be tested by the courts with reference to social solidarity.  

2.Rudolph Von Ihering (1818- 1892) - The nineteenth century German Jurist was born at Aurich Germany in 1818. The pioneer of the basic modern trend in jurisprudence, in his work - ‘Law as a means to end” criticizes the notion of individual freedom and liberty as propounded by Immanuel Kant and Jeremy Bentham as they had separate legal theory from social realities. His philosophy was of social utilitarianism, which is an action that results in greatest pleasure for the utility of the society is the best action. His philosophy was different from Bentham as Ihering 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 on the contrary Bentham advocated to resolve the conflicting interest of the individuals in the society. Therefore, Ihering’s legal philosophy is known as the “jurisprudence of interests’ which emphasizes sociological aspects of law.  Further, he exposed the weaknesses of individualism, which had made the individual the focus of moral and legal order, to which Ihering contended it as antisocial and contradictory to social justice. Thus, he was a great critic of Austinian positivism and Benthamite individualism. 

3. Eugen Ehrlich – As a noted Professor of Roman law at the University of Czernowitz in Austria, he believed in the evolution of law concerning the existing society and thereby evolved his theory of ‘living law’. The significant contribution of Ehrlich to sociological school of jurisprudence rests in scientific approach to study of law in social context and his special importance to relation between law and life of the society. He adopted a more practical approach and focused his attention on the social functions of law. According to him the society is governed by the institutions of marriage, domestic life, inheritance, possession, contract etc., which dominate human life. According to him, the law is the attainment of social justice. He contended that ‘the center of gravity of legal developments in the present time or the past, lies neither in juristic science nor in judicial decisions, but in society itself. 

4. Roscoe Pound (1870 – 1940) – Roscoe Pound is considered the leader of the sociological school. He was an auxiliary Judge of the Supreme Court of Nebraska for a short period of two years during 1901-1903. Thereafter, he worked as a Dean of the Law school in Nebraska. He also served as a professor of Jurisprudence in Harward University and was Dean of its law school. 

Pound’s Theory of Sociological 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 try to maintain a balance between the competing interest in society. He defined interest as a claim, a want or a demand, of human being or group of human beings which they seek to satisfy and which the social engineering in civilized society must consider. Thus, security of person, property, reputation and freedom of speech etc., are interest since they are to a man’s advantage.

1. Private Interest – These include -

a. Individual's interest of personality, namely, Interest of physical integrity, reputation, freedom of violence and freedom of conscience. They are safeguarded by the law of crimes, torts, contracts, constitutional law, etc.

b. The interests of Domestic relations of persons such as husband and wife, parent and children, marital life as also the individual’s private interest.

c. The interests of subsistence such as property, succession, testamentary disposition, freedom of contractual relations, associations etc., are also included in the category of private interest.

2. Public Interest – The main public interests according to Roscoe Pound are - 

a. Interests in the preservation of peace, general health, security of transactions etc.

b.State as a guardian of social interest such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, seashores, regulation of public employment and so on.

3. Social Interest – The social interest 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. Social interest in general 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.

d. Interests which promote human personality by enabling a person to live a political, physical, culture, socio and economic life to suit his taste and improve his personality. 

III.  Sociological Jurisprudence and Realist Theory of Law

The realist movement emerged around 1920s and 1930s to debunk formalist views of law in

United States where some American Jurist notably O.W. Holmes, Benjamin N. Cardozo and Gray raised their voice against legal conceptualism and stressed on the study of law as it functions. Realism is the modern branch of sociological jurisprudence which is centralized on decisions of law courts as realists believed that judicial decisions are not based on abstract formal law, but the human prospect of the judge and lawyer also has an influence on the court's decisions. Therefore, law emanates from judges. Karl Llewellyn asserted – some jurists refuse to accept realism as a separate school of jurisprudence and hold that at the best it may be called a branch of sociological jurisprudence.

Meaning of Realism  

•Roscoe Pound defines realism as, ‘’fidelity to nature, accurate recording of things as they are, as contrast with things as they are imagined to be or as one feels they ought to be”. Realism is centered on the actual working and effects of law. It rejects the belief of natural law which believes in unvarying principles of justice. Thus, Realism is the observation of law in action.  

•Karl Llewellyn asserted - “It is society and not the courts which give rise to, which shapes in the first instance the emerging institution, which kicks the court into action. It is only from observation of society that the courts can pick their notions of what needs the new institution serves, what needs it baffles. In any event, if the needs press and recur, sooner or later recognition of them will work into the law”.  

IV Sociological Jurisprudence in Indian Context 

•After freeing itself from the British regime, India adopted the constitution that embodied the social and economic values. Earlier the nature of law was suppressive and depraved to the sentiments of people. It was more into the form of Austinian conception of imperative theory of law. The supreme law of the land that is Constitution of India contains significant provisions that not just protect but also promote human rights in the form of Fundamental Rights (Part III) and Directive Principle of State Policy (Part IV). Moreover, if fundamental rights of any citizen get violated, he can directly approach the Supreme Court under Article 32 and High Court under Article 226. It is seen over the years that judiciary in India with its authority to interpret the law has come up with multiples principles and instruments that have given the values enshrined in the constitution a voice. A bunch of cases are there for reference where the judiciary has not only made law but guided the legislature to make laws.

India population distribution is diverse in nature, and various issues arises answer of which is not already existing in law then, judiciary comes to action and impart justice. 

•The institution of judiciary is extremely precious and holds a great significance in democracy being its third pillar. The responsibility of a judge is not just to impart justice but to impart it in a true sense. Therefore, judges also interpret the statutes so that law is perceived in the manner it is intended to be perceived by the legislature. Judge is an

elite and learned section of the society because his actions have wide impact in the society. 

The legislature makes law, but judiciary shapes it by applying it in the desired manner. This task can be done when the judge thinks of its implication on society. 

•The Indian Jurisprudence does not formally support the realist legal philosophy and realism in its true sense is not accepted because of the reason that Indian social life is different from America. However, the Indian jurisprudence lays great importance on the functional aspects of law and relates law to the realities of social life. Although law provides judges an extensive judicial discretion, it does not provide them an absolute power to make laws. They have only constructive power and not legislative power. The concept of Public Interest Litigation has directly joined the public to the judiciary and enhanced the role of judiciary in addressing the problem of mass. Justice to public, should not be awaited till the time legislature comes up with a legislation on concerned matter it is the concept of PIL that has fastened the delivery of justice and made the institution of judiciary robust.  

Indian jurisprudence rejects the realists’ view that judge made law is the only real law and other law are worthless, simultaneously it does not completely refuse the role of judges and the lawyers in shaping the law. 

V. Sociological School Application in India 

a. Affirmative Actions – Affirmative actions can be traced in the Constitution. It is also known as positive discrimination. The purpose of this phenomenon in the picture is to pay fair due to the segments of society who are unprivileged. Under Article 15, we see the measures to protect the interest of woman and children is mentioned. In DPSP as well there exists provision that directly lend support to the woman for her development in the form of – equal pay for equal work, maternity relief etc. 

b. Panchayati Raj Institution – In Article 40 of the constitution, we have seen their existing concept of Panchayat Raj Institution. This concept was brought on through 73rd and 74th Amendment Act, 1992. The idea of decentralized power mechanism is long envisioned. From the sociological jurisprudence aspect, it promotes the good of people. With this the governance will have a better reach and access that will eventually promote people’s welfare.

c. New Economic Policy, 1991 – India was struggling with major economic crisis when the concept of Liberalization, Privatization and Globalization was introduced. It opened the Indian economy for globe as a result we see revival in economic breakdown. People were given access to world class products and services that automatically aided in the improvement of their life.

d. Right to Education – Education is already a much-emphasized point for human development. It can change your strata in society. From the perspective of this school, promotion of elementary education is the most suitable act of the law makers.

e. Article 21 – Right to life and personal liberty is an ever-evolving concept and has a very wide ambit. Over the years it has been interpreted by the judiciary to protect the life of people as per the changing dynamics of society. It has a wide implication. The latest being the Right to privacy, with the advancement of technology and change in mode of interaction and transaction judiciary recognized its significance and interpreted it within the realm of right to life.

e. Series of Judgement – There are series of judgement by the Supreme Court of India in the interest of society at large. From NALSA to Naz foundation judgement, From SSC Permanent Commission judgement to Vineeta Sharma judgement, all these judgements will help in the building of progressive society, as they have attempted to change the age-old practices on orthodox notion now the effect has better reasoning.

f. Revocation of Farm Laws – In 2020, three farm laws were passed that attracted mass agitation and violent protest. Supreme Court revoked this law. Law introduced by legislator must pass the test of constitution otherwise it cannot withstand. This school specifically talks about putting society into picture before formulation of law. 

VI. Conclusion 

It is to be stated that howsoever divergent the views of various sociological jurists may appear, they have one common point that the law must be studied in relation to society. This view has a great impact on modern legal thought. But it should not be taken to mean that other methods have completely ceased to exist. A law should not be separated from public opinion and wants. Law and society go hand in hand, both aiding each other's transformation.

References 

 

 

 

 

 

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