INDIAN INSTITUTE OF LEGAL STUDIES

TOPIC: - A STUDY ON DEVELOPMENT STAGES OF

SOCIOLOGICAL JURISPRUDENCE

SUBMITTED BY:-
NAME:-CHANDRAKANT SHARMA
Roll No.:- 01
Registration No: -
Course:-5 years BCOM LL.B 5TH SEM
Exam:-2016-17

UNDER THE SUPERVISON OF: -

Name:-SHRUTI DAS GUPTA
Subject: - JURISPRUDENCE

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 ACKNOWLEDGEMENT

First and foremost, we would like to thank to our supervisor of this project,
SHRUTI MAM for the valuable guidance and advice. SHE inspired us greatly to work in
this project. HER willingness to motivate us contributed tremendously to our project. I also
would like to thank Her for showing us some example that related to the topic of our project.
Besides, I would like to thank our Liberian of the college for providing us with a good
environment and facilities to complete this project.
Finally, an honorable mention goes to our families and friends for their understandings and
supports on me in completing this project. Without helps of the particular that mentioned
above, I would face many difficulties while doing this.

Thanking you

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 TABLE OF CONTENTS

Particulars. Page No.

1.1. RESEARCH METHODOLOGY 4

CHAPTER I
1.2. INTRODUCTION 6

CHAPTER II
2.1. SOCIOLOGICAL APPROACH (NATURE AND MEANING) 7
2.2. ANALYSIS ON SOCIOLOGICAL SCHOOL 9

CHAPTER III
3.1 EMERGENCE OF SOCIOLOGICAL JURISPRUDENCE 13
3.2 SOCIOLOGICAL JURISPRUDENCE OF ROSCOE POUND 16

CHAPTER VI
CONCLUSION 17
BIBLIOGRAPHY 18

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 1.1 RESEARCH METHODOLOGY

A) RESEARCH OBJECTIVE

The Sociological approach to the study of law is the most important characteristic of
our age. Jurists belonging to this school of thought are concerned more with the
working of law rather than its abstract content. Their principal premises is that the law
must be studied in action and not in textbooks. They have been at work upon
jurisprudence with reference to the adjustment of relations and ordering of human
conduct which is involved in group life. They are concerned with the study of law in
relation to society.

B) REVIEW OF LITERATURE

They concentrate on actual social circumstances which gives rise to legal

institutions. Sociological jurists……insist on the unity of the social sciences and
the impossibility of the wholly detached self – centered, self – sufficing science of
law. They insist that the legal order is a phase of social control and that it,
cannot be understood unless taken in its whole setting among social phenomena.

C) SCOPE AND LIMITATIONS

Sociological school of jurisprudence has emerged as a result of synthesis of various

juristic thought. The exponent of this school considered law as a social phenomenon.
They are chiefly concerned with the relationship of law to other contemporary social
institutions. They emphasize that the jurist should focus their attention on social purposes
and interest served by law rather than on individuals and their rights.

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D) NATURE OF WORK

The paper is commonsensical but again fostered with the complexities of

conscientious Elucidations. THE WORK METHOD ADAPTED IS MORE THAN
AN ARGUMENT FONDMENT AND AN INDUCTIVE REPRESENTATIONS but
the expressive ideas of the objective presence have been nurtured with substantive
truth and facts which has made it quite interesting and a well experiential work.

E) MODE OF CITATION

NLS uniform mode of citation has been adopted throughout the course of the paper.

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 1.2 INTRODUCTION

Sociological approach to the study of law towards the end of the 19th century did not
emerge in isolation. It was a reaction against the formal and barren approach of the
analytical jurists and the pessimistic approach of the historical jurists.

There was a dire need to study law not in mere abstraction, but in its functional and
practical aspects. Further, on account of economic and social conflicts towards the
beginning of 20th century led to growing disbelief in the eternal principles of natural
law which had hitherto placed an idea of harmony before the individual. These
various approaches appeared as a clog in the way of legal reform, social change and
economic justice. 1

The theory of inalienable natural rights was now being considered as an expression of
outmoded laissez – faire philosophy. This led the States to expand the dimension of
their activities to such matters as health, insurance, education, old age security and
other form of social and economic aspects of welfare.

Hence a new approach towards the study of law in relation to its ends, purposes and
functions for ordering and regulating to its ends, purposes and functions for ordering
and regulating to its ends, purposes and functions for ordering and regulating to its
ends, purposes and functions for ordering and regulating to its ends, purposes and
functions for ordering and regulating relationship between individuals and groups of
individuals emerge which is described as the sociological jurisprudence.2

Among the foremost writers who made an attempt to apply scientific methods to
social phenomenon was Auguste Comte (1798 – 1851). He is known as the founder of
sociology as a science. He laid stress upon empirical methods such as observation and
experiment for the study of society. It is the task of sociology to provide methods,
tools and a basis for purposeful and realistic appraisel of social phenomena which
interact in society.

1
Pranjape, N. V., Studies in Jurisprudence and Legal Theories, Central Law Publication, Ed. 2001, p 59
2
IBID
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 2.1: SOCIOLOGICAL APPROACH (NATURE AND MEANING)

Sociological approach towards study of law was a reaction and revolt against the
analytical and historical school both of which regarded law as self – contained system
– the former deriving validity of law from the sovereign – the law giver and the latter
from the slow and silently flowing historical and cultural processes and forces. The
sociological approach considers law as a social fact or reality to shape, mould and
change society to sub-serve its needs, expectations and goals through law. The
interrelationship between law and society and the study of community and of social
phenomena, of group or individual interests and their realization ans fulfillment
through law is the paramount concern of law. Of – course! The Sociological approach
to the study of law is of recent origin. The other Schools have been more concerned
with the nature of law and its source rather than its actual working, functioning and
social ends which law strives to subserve. All the jurists who define law in relation to
society in terms of ends which law serves and the interests which the law satisfies and
the common good which the law seeks to achieve – thereby make law as an
instrument of social control and social change are grouped together as jurists
belonging to Sociological School of Jurisprudence.3

3
Dhyani S. N., Fundamental of Jurisprudence – the Indian Approach, Ed. 1997, p 199
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 Characteristics of Sociological Jurisprudence4

THE CHIEF CHARACTERISTICS OF SOCIOLOGICAL JURISPRUDENCE

ARE AS FOLLOWS:

1. sociological jurists are concerned more with the working of law rather than with
the nature of law. They regarded law as a body of authoritative guides to decision
and of the judicial and administrative processes rather than abstract content of
authoritative precepts.

2. It considers law as a social institution which can be consciously made and also
changed, modified or retained on the basis of experience. In other words, it it
synthesizes both the analytical and historical approach to the study of law.

3. Sociological Jurists lay emphasis upon social purposes and social goals and
expectations which are the law subserves rather upon sanctions and coercive
character of law.

4. Sociological jurists look on legal institutions, doctrines and precepts functionally

and consider the form of legal precepts as a matter of means only to satisfy greatest
good of the greatest number.5

4
Dhyani, S.N., Jurisprudence Indian Legal Theory, Central Law Agency, 4th Ed. 2002, p 88
5
Dhyani, S.N., Jurisprudence Indian Legal Theory, Central Law Agency, 4th Ed. 2002, pp 88 – 89
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 2.2 ANALYSIS ON SOCIOLOGICAL SCHOOL

Bentham’s theory of utility, i.e., the greatest good of the greatest number has been
utilized by the sociological jurist for legal reform, social progress and general welfare.
It would be useful to dilate upon the contributions made by important jurists towards
the growth and development of the Sociological School of Jurisprudence.6

Scope

The sociological school’s idea of law is a continuation of this persistent process of

enquiry into the origin of law as begun by the Historical School. This view of the
sociological school is in tandem with the knowledge of law with regard to society:
what it is doing; what it has done; and what it is expected to be doing. The
sociological school carry forward the mission of the historical school and reject the
formal and logical idea of law according to the positivists on the ground that the
formal law presents only a portrait of the law. In effect, the preoccupation with the
study of the science gave law a prominent place in the new studies and the 19th
century unearthed a number of leading sociologists in Europe (and America)
especially Germany who began to look to the newly found studies of society as a key
to a better understanding of law than had been gained from the Natural Law School
and the Positivists.7

The contribution of the various scholars and jurists of sociological persuasion

highlighted several points which need mention:

a. That law is not unique but only one of the social control norms;

b. That the socio – economic problem of the present time cannot be solved by means
of the existing law;

c. That the laws in the books and statutes containing formal rules, legislations and
expositions of particular subjects is not where the real law in society is to be found;
6
The Idea of Law, Dennis Lloyd, at p 207
7
Dias – Jurisprudence, 4th Ed., at p 581
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 d. That the law is not an absolute and static body of rules in themselves but are
relative to time, place and society; that there is such a thing as ‘social justice’.
However, view differ greatly as to what constitutes social justice and the
achievement thereof.8

Comte had stated that the advancement of knowledge could be through only
“observation and experiment” and he furnished a classification of the social sciences
that was hierarchical. Comte considered it most fruitful to apply the scientific method
to sociology despite the inherent difficulty. He compartmentalized sociology into two
i.e., social statics and social dynamics all emanating from his description of sociology
as the science of social order and progress. He saw society as an object constantly in
development which if viewed in a scientific way could have its growth harnessed for
one purpose: progress. The object of the sociological school was to work out in a
scientific way the process of determining the variables by which society functioned
with regards to law and vice versa.

The importance of sociological school of law may be immediately noticed when the
attitude of law and state is compared. The previous attitude of the state was ro confine
itself to law and order enforcement and thereby striving to enforce stability in society
by enforcing the norms regulating the existing relationship between individuals and
society as well as between individuals. This in many ways ways (which we will
evaluate) can be futile. Therein lies the allure of the sociological school: in the failure
of the laissez fair notion of law and state.

Objective
8
Tripathi, B.N., Jurisprudence Legal theory, Allahabad Law Agency, 14th Ed. 1999, p 34.
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 The objective of sociological source of jurisprudence is to resolve immediate
problems of society with such tools – legal or extra legal & techniques which promote
harmony and balance of Interest of society. Further the Jurist of sociological
schooling rejected the analytical and historical jurisprudence as Jurisprudence of
concepts & considers law as an Instrument of serving the head of Individuals in
society. The chapter apprises, how the school cause into being passing through
various stages and how for it is different from others schools of jurisprudence.9

The main field of study – effect of law and society on each other

Sociological school includes a number of approaches made since the end of the last
century. These approaches are more diverse than uniform. The main and the common
field of study of the jurist who made such approaches is the effect of law and society
on each other. This approach takes law as an instrument of social progress. Therefore,
it is concerned with values also. And many jurists have pleaded that under sociology
of law the relation between positive law and ideals of jurists should also be studied.
Many jurists of great authority have been their definitions of sociology of law but, as
pointed out above, it is not possible for a single definition to cover the wide range of
study under this approach. To know these approaches in their proper historical
context, a discussion of the views of representative jurists of various approaches is
necessary.

Backdrops of Sociological Jurisprudence

9
Pranjape, N. V., Studies in Jurisprudence and Legal Theories, Central Law Publication, Ed. 2001, pp 61 – 62
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 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 changing.
For instance, the early society 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 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 individuals 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
realized that socialization 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 system.

3.1 EMERGENCE OF SOCIOLOGICAL JURISPRUDENCE

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 EMERGENCE OF SOCIOLOGICAL JURISPRUDENCE10

There are following factors responsible for emergence of Sociological School of

Jurisprudence. They can be summarized as follows;

i) Mental bankruptcy of analytical approach to meet the social demands of modern

society.

ii) Conflicts between individual interests and social interests and the need to
reconcile them.

iii) Inter – connection between law and society.

iv) Works of the earliest pioneers of the new interests in society, i.e., Bentham,
Renner, Weber and other etc.

Sociological Thinking and its Relevance to Law Making

The sociological school of thought may be said to have made some inroads into
legislation making in Nigeria but its impact is felt more in trial proceedings than
anywhere else. It is unclear if this importation of sociology into law making is by
inadvertence or by design but its relevance for use in our courts may not now be
disputed by the discerning eye. This importation is by means of Evidence Act. The
Act provides that;

“facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction are
relevant.”

The question will often be asked why trial proceeding in Nigeria for instance will
allow evidence derives from the sociological fields while such considerations are not

10
Lectures: obafemi Awolowo University, Ile – Ife Jurisprudence and Legal Theory Class, 1997
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 taken into cognizance in the codification of laws. For, in many countries, not least of
all Nigeria, legislation has not appeared to follow sociological precepts thereby
leading to laws being ignored or out rightly contravened. There are myriad reason
adduced for this.

The most significant of which is the specific sociological setting in Nigeria that
allows for permissiveness. In many cases corruption has rendered laws ineffective
largely due to the fire brigade approach to legislation devoid of sociological
investigation and also coupled with an abundance of lack of enforcement. The
Taxation laws and the Bankruptcy laws are called to question. Prof. D.A. Ljalaiye
cited othoi cases which include the ownership of land vested in the governor of states.

Sociological Jurisprudence and Sociology of Law Distinguished11

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 harmonizing the conflicting
interest 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 functional jurisprudence or jurisprudence of interests or
jurisprudence of social engineering.

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 society and therefore has a secondary position as compared to
society which is the main theme of sociology. Thus strictly speaking, sociology of
law is justa branch of sociology. According to Hall, sociology of law is a theoretical

11
Paton: Jurisprudence (1964) at p 21
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 science which consists of generation regarding social phenomenon, so far as they
refer to contents, purposes, application and effects of legal rules.12

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.”

3.2 SOCIOLOGICAL JURISPRUDENCE OF ROSCOE POUND

12
Dias: Jurisprudence (1976), at p 587
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 “A desire for an ideal relation among men which we call justice leads to thinking
in terms of an achieved ideal relation rather than of means of achieving it.”

With the rise of the modern Science, there came to exist among jurists an apparent
unanimity of belief in the possibility of applying “the scientific method” to the study
of law and legal philosophy. Under the influence of the Comtian positivist sociology,
there developed a sociological jurisprudence having in view the understanding of the
role of law in society and the application of the social sciences to the study of law in
action and the rendering of law more effective as an instrument of social control for
the ends which law is designed to accomplish in the civilization of the time and place.

As the recognized leader of the sociological school in America for more than half a
century, Roscoe Pound has devoted his efforts to this work. Through his vast legal
studies, excursions into legal history, mastery and application of pbilosophy to law,
and his research into case law for purposes of understanding how law is actually
functioning, Dean Pound has made tremendous strides toward the accomplishment of
this objective. In addition to these efforts, Pound has contributed a "theory of
interests" which he believes to be the most effective instrument yet devised for the
scientific development and application of law. A brief consideration of Pound's
theory of interests in the context of sociological jurisprudence is the subject of this
article.13

CONCLUSION

13
Jhering's principle work is DER ZWxCK IM RgCHT, translated in English as LAW AS A MEANS TO AN END
(Husik transl. 1913). Good short accounts of Jhering's philosophy are found in the following sources:
FRIZDMANN, LEGAL THEoRY 213-217 (2d ed. 1949); PATTERSON, JURISPRUDENcz 459-464 (1953); RsuscHLEiN,
JURISPRUDENCE 107-112 (1951); STONE, THE PROVINCE AND FUNCTION or LAW 299-316 (2d ed. 1950)
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It is to stated that however divergent the view of various sociological jurists may appear, they
have 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. Still there are advocates of natural law though with a ‘variable
content’, there are Catholic jurists who plead for maintaining a close relationship between
law and morals, but these approaches are in many respects, basically different from earlier
approaches of this type on the subject and are influenced by sociological approach.

To India, sociological school of jurisprudence has much relevance in terms of realisation of

the social and economic goals of the community. Law in free India is being adjusted to serve
the common needs and ends of society along with individual interests. However, before 1947
the judges, the lawyers and law administrators did not look around while making new laws.
The pace of social change was very slow as the law was conceived either in analytical fashion
emanating from the British Parliament or the law had no relationship or relevance with the
life of people of India. The role of judges was not to discover the ‘inarticulate major
premises’ or ‘felt needs’ of the people but to interpret the law in its logical manner
irrespective of the considerations of social justice. The law was mostly imposed from above.
It had no roots in the Indian soil and its language too was foreign.

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BIBLIOGRAPHY

1. BOOKS REFFERED.

Acton, Lord. SOCIOLOGICAL JURISPRUDENCE, edited and with an introduction

by William H. McNeill. Chicago: University of Chicago Press, 1967.

Alland, Alexander, Jr. The Human Imperative. New York: Columbia University
Press, 1972.

Ansbacher, Heintz, and Rowena Ansbacher (Eds.). The Individual Psychology of

Alfred Adler. New York: Harper & Row, 1956.

Dhyani, S.N., Jurisprudence Indian Legal Theory, Central Law Agency, 4th Ed. 2002

Tripathi, B.N., Jurisprudence Legal theory, Allahabad Law Agency, 14th Ed. 1999,

Pranjape, N. V., Studies in Jurisprudence and Legal Theories, Central Law

Publication, Ed. 2001

2. ORGANISTION’S AUSPICES.
 Indian Law Institute, Index to Indian Legal Periodicals (ILI, Delhi, 2002)

3. REFFERENCE OF A JOURNAL.

 K. Madhusudhana Rao, “Authority to Recommend” 46 JILI 125 (2004).

4. INTERNET SOURCE(S)
 http://cgat.gov.in/intro.htm
 http://www.legalservicesindia.com/article/article/ -508-1.html

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