Jurisprudence Presentation

on

“Sociological School Of Thoughts”

Submitted To: Prof. Lasya Vyakaranam

 Aman Tenguria, 406

 Presenters Name  Naina Viswaraj, 410
 Isha Tiwari, 463
 Roscoe pound’s theory of sociol
ogy
“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.”

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 le
gal studies, excursions into legal history, mastery and application of philosophy t
o law, and his research into case law for purposes of understanding how law is act
ually functioning, Dean Pound has made tremendous strides toward the accompli
shment of this objective. In addition to these efforts, Pound has contributed a "the
ory of interests" which he believes to be the most effective instrument yet devised
for the scientific development and application of law
 Pounds objective of sociological j
urisprudence
• The practical objectives of sociological jurisprudence have been formulated by
Pound as follows;
• 1. A study of the social effects of legal institutions, legal precepts and legal doct
rines, of the law in action as distinct from the law in books.
• 2. A sociological study as an essential preliminary step in law making.
• 3. A study to ascertain the means by which legal rules can be made more effecti
ve in the existing conditions of life, including the limits of effective legal action.
• 4. An attempt to understand the actual growth of the law by a study of the judici
al methods and modes of thought of the great judges and lawyers.
• 5. A sociological legal history of the common law, for studying the past relation
s of law to then existing social institutions.
• 6. Individualization of the application of legal rules so as to take account of the
concrete circumstances of particular cases.
• 7. The establishment of a "Ministry of Justice" by the states to pa
 The Theory of Interests

• In the effort to accomplish the program of sociological jurisprudence, Pound

believes that the first problem confronting society is the establishment of his theo
ry of interests as a functioning part of the legal order. The development of this the
ory occurred in two steps: the formulation of the jural postulates, in 1919, followe
d by the announcement of a classification or scheme of interests two years later.
Pound claims this to be his most valuable contribution to jurisprudence. While
recognizing certain valid criticisms, he has defended it vigorously as the most
workable means yet devised for sound "social engineering."
 Critical Analysis
• Factors Responsible for emergence :
1. Mental bankruptcy of analytical approach to
meet the social demands of modern society;
2. Conflicts b/w individual interests & social in
terests & the need to reconcile them.
 Objective
To resolve immediate problems of society with
such tools – legal or extra legal and techniques
which promote harmony & balance of interest
of society.
 Main Features
Main characteristics of this school:

(i) Sociological jurists r concerned more with the working of

the law of the legal order & legal precepts rather than its n
ature.

(ii) According to Analytical jurists, law is made consciously;

Historical jurists, it is something found; but the Sociological
jurists regard law as social institution.
(iii)Sociological jurists lay stress upon the social purposes /
securing social interests rather than on sanction.s
(iv)Sociological jurists look on legal institutions, legal doctri
nes & legal precepts functionally ... this is the functional vi
ew of law.
 Criticism
1. First, it is not all the time that conduct influences the law.
There are situations in which the law influences the con
duct of members of the society. For instance, vehicle ow
ners register their vehicles because of the law mandatin
g them to do so.
2. Another criticism is the fact that it is quite risky to “go
with the flow”. Just because every other person is disobe
ying the law would not excuse an offender who is caught
and Is being made a scape goat. The present Dasuki arms
gate scandal is a good example of this. Assuming but not
conceding that he is guilty, it would not be a valid excuse
that the perpetrators should not be punished because virt
ually everyone in government at that point was corrupt.
Examples Of Sociological Schoo
l Of
Jurisprudence In Indian Society
• M.N. Srinivas had observed
 sanskritisation,westernisation, caste mobility, secular
isation, the alteration in value arrangement that India
has witnessed, could be seen as examples of social ch
ange.
• Yogendra Singh,observed
 abolishment of untouchability, other discriminatory
practices such as child marriage and sati and in mode
rn India, the reaffirmation of importance of Panchaya
ti Raj System through constitutional amendment coul
d be very well perceived as instances of law induced
social transformation.
• Upendra Baxi
 also points out the implementation of the Inf
anticide Act and demonstrates that this partic
ular legislation was a purposive legislation whi
ch has positive and negative sanctions, along
with the effective administrative mechanism, w
hich had led to substantial decrease in the fe
male infanticide practice.
 This could be very well being understood as a
use of law as an instrument for social control
by the colonial administration.
 Indian Constitution
• Affirmative Action Affirmative action in India could
be traced to the Constitution.
 affirmative action are Article 46,31 in Part IV of the
Constitution, which deals with directive principles of
State policy and
 also in Part III dealing with fundamental rights by wa
y of Article 15(4)32 and Article 16(4)33 for educatio
n and government jobs.
Article 15(4) and Article 16(4) are brought about by the
first amendment to the Constitution, so as to balance th
e original provisions, prohibiting any discrimination on
the basis of caste, class, and sex.
 Public Interest Litigation
• Access to justice and PIL The greatest contribution the Indian judiciary has provided regarding a
ccess to justice for
• the people of India, could very well be identified as the concept of public interest litigation (PIL).
Prof. Upendra Baxi has
• referred this judicial activism trend by the nomenclature of Social Action Litigation (SAL) as this i
s an Indian brand of
• class action suits and noted that the Supreme Court of India is â€oetaking suffering seriously―.
45 The most important aspect
• regarding PIL is that of relaxing the locus standi concept, any â€oepublic-spirited person―46 ca
n approach the constitutional
• courts and could bring into the courts notice the blatant violations of fundamental rights of peo
ple who are not capable of
• being approaching the courts themselves. PIL is a concept aimed at increasing the accessibility t
o justice and forms a
• part of constitutional jurisprudence in India. An academic article has mentioned that â€oe[T]he n
eed was more pressing in a
• country like India where a great majority of people were either ignorant of their rights or were t
oo poor to approach the
• court … especially when the actual plaintiff suffers from some disability or the violation of colle
ctive diffused rights is at
• stake―.
 Khap Panchayat
• Khap Panchayat :which are tribal councils formed for their intra and int
er-conflict resolution, recentlt giving rulings for honour killing have s
hown :
 the importance of sociology of law based study under the sociological ju
risprudence.
 Aspect of how law as a tool for social engineering could affect the issue
s of social ostracism and peer pressure on the basis of caste has now co
me to the forefront.
 Even though the marriages in the same gothra are valid as the Hindu M
arriage Act, the peer pressure and fear of social ostracism have made the
families to follow the rulings of Khap Panchayat and even led to killing
of their own relatives.
 Demand of society for moulding criminal laws so as to make the people
who issue such illegal rulings for honour killing is an example of deman
d of people for change in the law from sociological jurisprudential persp
ective.
Judicial Interpretation to Sociologi
cal School Of Thoughts
• In Ashok Kr Gupta & others vs State of Uttar Pradesh(1997) 5 S
CC 201 it was held that this court is not bound to accept an interp
retation which retards the progress or impedes social integration
• In the case of Union of India & Anr v Reghubir Singh(1989) 2 S
CC 754 the court observed that the aspect of the social conduct a
nd experiences of the ages has to be considered while determinin
g and framing the new laws and norms.
• In Sarla Mudgal v Union of India(1995) 3 SCC 635, the court em
bracing the concept of Sociological Jurisprudence said that marri
age celebrated under one personal law cannot be dissolved by ap
plication of any other law. This observation matches up with the
concept of Pound wherein he said that in case of conflict between
interests, theinterest of same plane will be weighed together.
 Conclusion
• The sociological jurisprudence based analysis has helped us to understand :
1. the way law and society had interacted with each other.
2. How sociological jurisprudence has contributed much to the social transformatio
n and judicial process in India.
• From analysing the issues such as affirmative action, Hindu law codification, Pan
chayati Raj Institutions from the perspective of sociological jurisprudence, we co
uld see that though social change have taken place, we cannot claim thatthere wer
e social transformation in a developmental sense.
3. While looking at the Indian Supreme Court interpretation we analysed
• How important role it played in policy control in important matters which have h
elped in furthering social change.
4. The post liberalisation situation in India, helps us to understand the existence of
a conflict model in India and the Khap Panchayat situation throws light to the un
derstanding of importance of the sociology of law perspective even in modern In
dia.
Glanville Williams in his book ‘Learning the Law’,
defined law as:

“Law is the cement of society and also an essenti

al medium of change in the society.”
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