Jurisprudence 2022 Sociological School

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The sociological school considers law as a social phenomenon and

examines law in relation to society.
It was a response to laissez-faire doctrine.
The driving principle behind laissez-faire, a French term that translates as
"leave alone" (literally, "let you do"), is that the less the government is
involved in the economy, the better off business will be—and by extension,
society as a whole.
Sociological school is a shift from this doctrine, a Shift from ‘laissez-faire state’ to
‘Welfare state’, shift from Individual interests to social interests.

How is it different from Historical School?

Historical School explained the relationship between law and society,
sociological school defines law with society as a major consideration in the
DEFINITION of law but Historical school tries to find out the ORIGIN of law and
how it develops (and society obviously has a major influence in origin and
development of law)
So, it might be easy to be confused between both these schools because they both
revolve around society but as I explained they are clearly differentiated on basis of
their approach.

Don’t Forget that:

The schools are just rough demarcations and there is no strict division between
thought process of various jurists of these schools.
We can see that Bentham who was a positivist and belongs to the analytical
school also provides support to the ideology of sociological school with his
utility principle. (i.e. maximum benefit of maximum number of people)

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Jurisprudence 2022 Sociological School

Auguste Comte
Founder of Sociology
The word ‘Sociology’ was coined by a ‘Emmanuel-Jospeh
Sieyes’, but was popularized and reinvented by Auguste
Comte.
Auguste Comte defined ‘society’ as an organism which can
progress when guided by scientific principles which should
be formulated by observation and experience of facts
excluding all metaphysical and similar considerations.

Léon Duguit
Duguit Took inspiration from
Famous Works:
Durkheim, Durkheim defined
Law in the modern State the term Solidarity.
The Law and the state
Mechanical Solidarity
(Solidarity by similitude) -
Common needs satisfied by men lending each other
mutual assistance and putting together their similar
aptitudes.
Organic Solidarity (Solidarity by division of labour) - Men have different aptitudes
and diverse needs, they are satisfied by an exchange of services each using his own
aptitudes to satisfy needs of others.
According to duguit ‘solidarity’ or ‘cohesion’ is the principal requisite of existence of
social life. All Human activities, organisation should be directed to the end of
ensuring the smoother and fuller working of men with men. This Duguit calls the
principle of social solidarity.
According to Duguit ‘The only right which any man can possess is the right to always
do his duty’
Criticism - Duguit wants to establish an absolute and uncontestable rule of law, just
like ‘natural law’ theories. It is said for Duguit that he “pushed natural law out
through the door and let it come by the window”

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Jurisprudence 2022 Sociological School

Rudolph von Ihering

Famous Works:
Divided ‘interest’ into:

Law as a means to an end - Individual

- Social
The Struggle for law
- State Interest
These interests are balanced with ‘reward’ and ‘coercion’,
Laws are made as such that they create a balance between
them.

Eugen Ehlirich
Famous Works:
Law is derived from social facts and
depends not on state authority but on
Fundamental
social compulsion. Society is made by
Principles of
Sociology of law
‘Men in Association’

Ehlirich differentiated between ‘formal law’ and ‘living law’

Law is not statutes or reported cases, law is the activities of society itself.
There is a ‘living law’ underlying the formal rules of the legal system. The
‘formal law’ trails behind ‘living law’.

Roscoe Pound
Father of Sociological School
Famous Works:
An introduction to the
Pound compared the task of the
philosophy of law lawyer to the engineers. He
stated that the aim of social
The Spirit of Common Law
engineering is to build a
Social Contract through Law structure of society as possible
Law and morals which requires the fulfilment or
satisfaction of maximum wants
with minimum usage of resources. It involves the balancing of

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all competing interests (private, public and social). He called this theory as the theory
of “Social Engineering”
He was Inspired by Kohler. Kohler says all laws are relative and conditioned by the
civilization in which they arise. Every civilization has some jural postulates, which are
ideas of right to be made effective by legal institutions.
Following the idea of Kohler Pound gave 5 jural postulate
1. Men must be able to assume that others will commit no intentional
aggressions upon them. (Basis of Criminal Law)
2. Men must be able to assume that they may control for beneficial purposes
what they have discovered and appropriated for their own use, why they
created from their own labour, and what they have acquired under own
labour, and what they have acquired under the existing social and economic
order. (Basis of Right to Property)
3. They must be able to assume that those with whom they deal in the general
intercourse of society will act in good faith.
4. They must be able to assume that those who are engaged in some course of
conduct will act with due care not to cast an unreasonable risk or injury on
others. (Basis of Law of Torts)
5. They must be able to assume that others who maintain things likely to get out
of hand or to escape and do damage will restrain them or keep them within
their proper bounds. (Basis of Liability)
This is not a priori claims, these are just hypothesis.

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