The main idea of the sociological school is to establish a relationship between society and the law. It laid more emphasis on the legal perspective of every problem and changes that occur in society. Law can be regarded as a social phenomenon that has some indirect or direct relation with the happenings of society. This school focuses on trying to balance the welfare of the state as well as the welfare of each individual. The relationship between law and sociology is dwelved into.
Laissez faire is said to be the policy of minimum governmental interference in the economic affairs of the state and individuals. It is the unrestricted freedom given to the individual by the government. In this type of an economy, the only role that is there for the law and government is that of preventing any conflict and coercion against an individual – like fraud or theft etc. The sociological school of jurisprudence which can be said to be resulted out of the change in the political shift from the doctrine of laissez-faire, the technological and industrial revolution and finally the historical school that has brought in the focus the relationship between social welfare state of the modern society and law, has made an attempt to study the law as seeking social origin of legal and law institutions, at the same time testing law as a given social phenomenon. Due to the before mentioned doctrine, most people have been giving more importance to the individual interest over the state or general interest and welfare of the state.
Monteaquieu – he was a French philosopher that has paved the way of the sociological school of jurisprudence. It was his view that the legal process is influenced by the condition of society. He’s recognized the importance of history in trying to understand the structure of society. He believes that law had to be determined by the characteristics of a nation to the climate and quality of each soul.
Eugen Ehrlich – he considered the founder of this school. He believes that sociology is the study of law from a sociological perspective. He considered society as a main source of law. The association of men is what made up society. He criticized and propounded ‘living law’ which is a law that dominates life itself, even though it has not been posited in legal propositions. He regards norms as applicable in decision making, but living law is something that applies in daily life. Norms were procedural in aspect and living law was substantial. In order to obtain a reliable insight into the actual practice of law, one has to penetrate deep into the social context in which it is played out
Roscoe Pound- he is the founder of the American sociological school. he tries to differentiate between law in fact and law in action – Where the harmonious existence of the law creates a functional society. He also talks about lawyers as social engineers where lawyers ensure social cohesion by identifying various interests in society. Every human being has interests, desires which he seeks to satisfy and this must be protected by rights.
He classified the interests to three –
Individual interests, public interest and social interest
He believes that law is aimed at balancing these interests where social interests are the most important and individual interests are the least important. But what would happen if there is a conflict between two interests of the same category? To this he Comes up with Jural postulates which are certain guidelines that all civilized societies must follow –
- In Civilized societies, men must be able to assume that others will not commit intentional aggressions on them
- Men must be able to control their required property and keep it safe from theft or trespass
- Men must be able to assume that promises which are made with good intentions and which are intended to be fulfilled and in any case of breach, they will be compensated.
- In society, men must be able to assume that those who maintain good will do so responsibly
- Men must assume that dangerous activities will be controlled
Emile Durkheim –
He tried to understand what was it that held society together. Earlier there was mechanical solidarity where the society was homogeneous, but now there is organic solidarity. Mechanical solidarity focused on collectivism rather than individualism whereas the laws were repressive. Organic solidarity is built upon the division of labor which breeds into dependence governed by restitutive laws. Law holds all of us together and it is the basis of any kind of solidarity. so to understand what holds society together all we have to do is study the law and the type solidarity it propagates. He treated law on morality as one. So, society does not want something, it won’t become law. Changes in morality creates changes in law. He believes that a night is criminal because it shocks the common conscience and validates punishment by saying that it is the only way for the state to restore order.
R Von Jherring –
law seen as a mean to serve the end of humanity and this is it’s primary function. law is to balance the needs by methods of reward and cohesion. Law is an organized manner of coercion used by the state. There are two forms of altruistic social contracts known as duty and love. Laws would be successful if it balances the needs of society and social control is the end of law. Humans are motivated by interests and it is a method of reconciling conflicting interests.
Karl Luhmann- he believed in the autocratic theory of law. A single organism that is self- reproductive ( autopoiesis) is likened to law where it takes it takes all the extra-legal information and digests it and turns it into something entirely new. This is a theory of legal closure where law is a self- sufficient autonomous body that sustains itself and it doesn’t need help to change. This theory was criticized because he in fact had no explanation as to why the law came into being in the first place.
Author: Palguna M,
School of Law Christ University 2 year