Sociological school Essay
Sociological jurisprudence is a term coined by the American jurist Roscoe Pound (1870–1964) to describe his approach to the understanding of the law. Central to Pound’s conception was the very suggestive idea that in modern societies the law represents the principal means through which divergent interests are brought into some sort of alignment with one another. Unfortunately, perhaps because he was a jurist rather than a sociologist, he did not combine this insightful conception with a developed understanding of how these interests were formed and why some of them came to be privileged over others within the legal system. A sociologically informed account of Pound’s work, which places it in the context of the historical development of the sociology of law, will be found in Alan Hunt, The Sociological Movement in Law, 1978.
Sociological JURISPRUDENCE is one of the most important schools of legal thought in the twentieth century. Its major proponent in the United States was ROSCOE POUND (1870–1964), a prolific writer who was dean of the Harvard Law School from 1916 to 1936. A number of other legal educators and judges also contributed in varying degrees to the theory or practice of sociological jurisprudence. The movement for a sociological jurisprudence emerged during the Progressive era. Pound interpreted it as the “movement for pragmatism as a philosophy of law,” the purpose of which was to facilitate legal reform and social progress. Although legal change should take place under the leadership of lawyers, the agenda of sociological jurisprudence did not focus on changes in legal institutions. Rather, it stressed reform of prevailing conceptions of the study, interpretation, and application of law. Some of his celebrated works are the ‘Spirit of the Common Law) (1921), ‘An Introduction to the Philosophy of Law’ (1922), ‘Interpretations of Legal History’ (1923), ‘Law and Morals’ (1926), ‘The formative Era of the American Law’ (1938), ‘Contemporary Juristic Theory’ (1940), ‘Administrative Law – Its Growth, Procedure and Significance’ (1942), ‘Social Control through Law’ (1942), ‘The Task of Law’ (1944) etc.1
MEANING OF SOCIOLOGICAL JURISPRUDENCE
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 jurists should focus their attention in social purposes and interest served by law rather than on individuals and their abstract rights. According to this school the essential characteristics of law should be to represent common interaction of men in social groups, whether past or present, ancient or modern. The main concern of sociological jurist is to study the effect of law and society on each other. They treat law as an instrument of social progress. The relation between positive law and ideals of justice also effects the sociology of law. The main exponents of the sociological jurisprudence which has been characterised as “interest oriented, interest loaded, and interest directed” were Auguste Comte, Herbert Spencer, Rudolph Ihring, Eugen Ehrlich, Leon Duguit, Francois Geny, Dean Roscoe Pound etc. In United States, Justice Oliver Windell Holmesand Benjamin Cardozo the distinquished judges of the Supreme Court were also inspired by Dean Pound’s Sociological theory of law.
VIEWS OF DIFFERENT JURISTS RELATED TO THIS APPROACH
Montesquieu emphasised that “law of a particular nation should be determined by its national characteristics and must bear the relation to the climate of each country, the quality of soil, the situation and extent, the principle occupations of the native, and above all, to the religion of inhabitants, riches, commerce , manners and customs.” Auguste Comte applied scientific method to the study of sociology which he termed as “scientific positivism”. According to him, society, like any other organism can progress when it is guided by scientific principles. Herbert Spencer gave a scientific exposition to the organic theory of society. Spencer deduced four sources of law, namely: Divine law having quasi religious sanctions.
The injunctions of the past leaders.
The will of the ruler.
Collective opinion in the society.
ROSCOE POUND is said to be the father of this approach. He said “The law must be stable, but it must not stand still.” Pound placed his sociological jurisprudence in opposition to what he termed “mechanical jurisprudence,” which he characterized as a common but odious practice whereby judges woodenly applied precedent to the facts of cases without regard to the consequences. For Pound, the logic of previous precedent alone would not solve jurisprudential problems. His study of biology led him to believe that the law, like nature, was a seamless web and that change in one part might produce totally unexpected and undesirable results in a distant part.
Social Engineering : The Concept
1. Roscoe Pound was one of the greatest leaders of sociological school of jurisprudence. He introduced the Doctrine of Social Engineering which aims at building and efficient structure of society which would result in the satisfaction of maximum of wants with the minimum of friction and waste. It involved the rebalancing of competing interests.
2. Roscoe Pound defined the legal order by reference to the end of law:
3. “The legal order may well be thought of as a task or as a great series of tasks of social engineering; as an elimination of friction and precluding of waste, so far as possible, in the satisfaction of infinite human desires out of a relatively finite store of the material goods of existence.”
4. ‘Interests’, ‘desires’, ‘claim’, ‘wants’ – for the most parts of words are used interchangeably in Pound’s writings, although ‘interests’ sometimes serves as the inclusive term.2 Like the engineer, the jurist constructs, creates – but not out of thin air. Like the engineer he must work with resistive materials, without which, however he could not build at all; and always there are adverse conditions imposed upon his activity. Friction and waste, represented by a sacrifice of interests which might be secured, must be overcome. The task is one for human activity; though requiring methodical care, there is nevertheless nothing static about it. Technique and materials may be improved. Jurist must work on, must create and ever greater, ever more serviceable structure. The engineering analogy stands out as graphic and timely.
5. He propounds that task of jurists is to find out those factors which would help in the development of culture conducive to the maximization of satisfaction of wants. These factors are principles as Jural Postulates.3
Theory of Social 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 make an effort to maintain a balance between the competing interests in society. He enumerated the various interests which the law should seek to protect and classified them into three broad categories namely:-
1. Private Interests
2. Public Interests
3. Social Interests
a.) Individual’s interests of personality, namely interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by laws 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 interests. c.) The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc. are also included in the category of private interests. 4
The main public interests according to Pound are –
a.) Interests in the preservation of the State as such.
b.) State as a guardian of social interests such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, sea shores, regulation of public employment and so on.
The social interests 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.) Interests preserving general morals by prohibiting transactions which are against morality such as prostitution, drunkenness, gambling etc.
d.) Interests in conservation of social resources eg. Natural resources, reformation of delinquents, protection of economically weaker section of the society.
e.) Social interests 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.
f.) Interests which promote human personality by enabling a person to live political, physical, cultural, social and economic life to suit his taste and improve his personality. 5
When he conceives law as a social engineering, he is reading law and its administration as a part of much wider process of social ordering, functioning through courts and administrative agencies with the aid of legal precepts serving as partial guides. The task of social ordering presupposes a sincere effort to avoid or at least ameliorate, collisions resulting from conflict of interests. All the varied activities of legal order or the efforts of the courts, administrators, legislatures, jurists are to be directed toward the adjustment of relations the compromise of conflicting claims, the securing of interest by determining of boundaries wherein each maybe asserted with a minimum of friction and the finding of means whereby greater number of claims may be satisfied with a sacrifice of fewer. If law is viewed as social engineering, its end is conceived to be satisfaction of all demands and securing of all interests with a minimum of conflict so that the means of satisfaction have the widest possible distribution. It may be noted that Pound’s techniques of Social Engineering are – a.) Study of actual social effects of legal institutions and legal doctrines b.) Study of the means of making the legal rules effective
c.) Sociological study for law making
d.) Study of judicial method
e.) A sociological history
f.) The importance of reasonable and just solutions of individual cases 6
g.) Of a ministry of justice to make efforts more effective toward the purpose of legal order. The above facts and considerations should be taken into account by the jurists of sociological jurisprudence to make law purposive, need based and goal oriented.
In essence the sociological jurists look at law functionally. They ask how the methods of Jurisprudence work. What consequences have flowed from these methods in action? How far they have enabled the law to achieve its end or on the other hand interfered with its achieving them? Pound is pragmatic, functional and experimental advocating social ordering and control through law,‘to promote and maintain ideal relations among mankind.’ Law, therefore as a science of social engineering is more concerned with actual operation of law rather than its abstract content. Such an approach considers law as an authoritative guide to decision making. It stresses on social purposes which law serves rather than sanction. Just as engineers minimize friction and waste when dealing with machines similarly jurists ought to enable to resolve conflicts in society in the interests of harmony, reform and progress. This methodology is described by Pound as Social Engineering.7
Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the actual working of law in society, his theory suffers from certain drawbacks. Pound’s theory of social engineering has been criticized for the use of the term ‘engineering’ which equates society to a factory like mechanism. Law is a social process rather than the result of an applied engineering equating society with a factory is not correct because the former is changing and dynamic in nature whereas the latter is more or less static. Again Pound’s emphasis on ‘engineering’ ignores the fact that law evolves and develops in the society according to social media and wants for which law may either have approbation or disapprobation. Dr. Allen has criticized the utilitarian in Pound’s theory as it confines the interpretation of ‘wants and desire’ to only material welfare of individual’s life completely ignoring the personal freedoms which are equally important for a happy social living. It has also been argued against Pound’s theory of interests that it has no significance in a pluralistic society where there are linguistic, ethnic, and religious minorities having diverse interests. Harmonizing their divergent interest is by no means an easy task to be performed through law and courts. Dr.Friedmann has expressed doubts about the value of classification of interests and remarked that there are changing conceptions that had been accepted by Pound himself. Not only that, the respective value of these interests and their evaluation also depends on changing political and legal system. For example, a liberal progressive government would lay greater emphasis on freedom of individual rights and of established institution but a totalitarian state would suppress the interests of individual in favour of the interest of the state.
Be that as it may, there is no doubt that through his legal theory Pound has attempted to bring law into closer relation with other social sciences and tried to strike a balance between freedom of individual and social control through the instrumentality of law. His greatest contribution to jurisprudence is that he is practical in approach and concentrate of law in society.8 Law as a tool for social engineering comes into play only when there is unequal distribution of wealth in society or when social justice is denied to certain sections of the people, so to bring equilibrium. Law tries to remove inequalities and the to benefit whole community rather than a few individuals.
SOCIOLOGICAL JURISPRUDENCE IN INDIAN CONTEXT
For an appraisal of sociological jurisprudence in its Indian perspective it would be necessary to survey the present as well as the pre-independence Indian law. The law during the British Colonial rule in India was coercive and counter-productive to social needs of the Indian people. It was suppressive and insensitive to the sentiments and expectations of the Indians. The British rulers paralysed the peace and prosperity of Indian by dividing Indians on the basis of caste, creed, religion, language and occupation so as to perpetuate tension and conflict between different communities to meet their self ends. Thus the law in India as it stood before the Indian independence was formal, rigid, repressive, and punitive as contemplated by Austinian conception of imperative theory of law. The legislature, executive and judiciary- three organs of the government used to law to protect the interests of the British in complete disregard of the aspirations and needs of the Indian masses who were exploited and denied even the basic human rights. In strict Austinian sense sanctions were imposed on Indians in name of “justice is according to law”. The British residents in India enjoyed many exemptions and special privileges under the then existing laws. Thus there was “one law for the ruler and other for the ruled”
IMPORTANCE OF SOCIOLOGICAL JURISPRUDENCE IN GROWTH OF LEGISLATURE AND JUDICIARY SYSTEM IN INDIA
With the introduction of sociological jurisprudence in India there has been a tremendous growth in the Legislature and Judiciary functions of Indian constitution. Both these functions of the Parliament of India advanced to great heights because of the introduction of this context.
INFLUENCE OF SOCIOLOGICAL JURISPRUDENCE ON JUDICIARY SYSTEM OF INDIA
With the wave of nationalism and awakening of intellectuals, demands for civil liberty and basic human rights were persistently made but it fell on deaf ears and suppression, oppression, and exploitation of the people continued unabated under the British Colonial Rule. The lawyers and judges interpreted and applied law mechanically without considering the “felt needs” of the people. The Indian National Leaders, notably, Mahatma Gandhi, Pandit Jawaharhar Lal Nehru and other were convinced that British Law had failed to meet the needs of the Indian Society because of the rigid adherence to the Doctrine of precedent. Pandit Nehru observed more than once that the nineteenth century dogmas and legal precepts had little validity in the changed conditions of the twentieth century and therefore, undue reliance on precedent was of little use as it may fail to give a new sociological approach to law. With the independence of India, a new constitution was adopted for the country for embodying the social philosophy and economic values towards attainment of an egalitarian welfare state. A separate chapter on fundamental rights including individual rights and freedoms and a chapter on Directive Principles on State Policy comprising social rights has been incorporated in constitution of India9 and the judges have endeavoured to harmonise the individual rights with the social interests of the community through their judicial decisions. The function of law is now to resolve the conflict between Fundamental Rights and Directive Principles of state Policy as both are aimed at ushering a egalitarian society for the welfare of the nation as a whole.10 The philosophy enriched in the preamble and the chapters on fundamental rights, directive principles, fundamental duties11 , provisions relating to the powers and functions judiciary and amendment of the Constitution amply demonstrate that the entire focus is on the welfare of the Indian masses and making law responsive to the social needs.
The developing trends in public litigation have opened new vistas for interpreting law in the context of social settings. The contribution of judges notably, Dr. P.B Gajendragadkar, P.N Bhagwati, D.A Desai, Krishna Iyer and others to the development of new Indian jurisprudence based on hard realities of life further shows that law can be effectively be used as a tool of social transformation for creating a new social order with primacy to social justice. In Indira sawhney v. Union of India, 12Mr. Justice P.B Sawant observed: “The Constitution of India being essentially a political document has to be interpreted to meet the “felt necessities of time”. Our constitution, unlike many others, incorporates in the framework of the social change that is desired to be brought about. The change has to be ushered in as expeditiously as possible but at the same time with the least friction and dislocation in National life”. In S.R Bommai v. Union of India,13 a special nine Judge Bench of the Supreme Court passed a landmark verdict on the issue of the secularism and held that the State is enjoined that to award equal treatment to all religions and religious denomination. The court remarked: “Secularism is part of the fundamental law and the basic structure of the Indian Political system to secure all its system to secure to all its people socio-economic needs essential for man’s excellence with material and moral prosperity and political justice.”
INFLUENCE OF SOCIOLOGICAL JURISPRUDENCE ON LEGISLATIVE SYSTEM OF INDIA
The welfare legislations enacted during the post-independence era amply demonstrate that the British-Oriented Austinain concept of law has no place
in modern Indian democracy and an instrument of social change. The establishment of Human Rights Commission, Women’s Commission, Family Courts, Industrial tribunals, Administrative Tribunals, Ombudsman, Panchayti Raj, Lok Adalats etc. are only a few illustrations to suggest that sole objective is to make justice available to a common man and weaker sections of the society. The laws relating to consumer protection, dowry prohibition, abolition of bonded labour, control of environmental pollution etc. have been enacted to provide social justice echoing the hopes and aspirations of the people. Some of post independence socio-economic legislations to meet the social meets the social needs and establish a social order as contemplated by the constitution, are enumerated as follows:-
1. The Civil Rights Act, 1955
2. The Immoral Traffic (Prevention) Act,1976
3. The Probation of Offenders Act, 1958
4. The Medical Termination of Pregnancy Act, 1971
6. The Family Courts Act, 1984
7. The Child Labour (Prohibition and Regulation) Act, 1986
8. The Legal Services Authorities Act, 1987
9. The Environmental (Protection) Act, 1986
10. The Juvenile Justice (Care and Protection of Children) Act,2000 11. The SC &ST Act, 1989
12. The Child Marriage Restraint (Amendment) Act, 1978
13. The National Commission for Women Act, 1990
14. The Public Liability Insurance Rights Act, 199314
“Rules derived by a process of logical deduction from pre-established conceptions of contract and obligation have broken down before the slow and steady and erosive actions of utility and justice. We see the same process at work in other fields. We no longer interpret contracts with meticulous adherence to the letter when in conflict with the spirit. We read covenants into them by implication when we find them in conflict with them ‘instinct with an obligation’ imperfectly expressed. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman and every slip was fatal.” “There has been much debate among the foreign jurists whether the norms of right and useful conduct, the patterns of social welfare, are to be found by the judge in conformity with an objective or a subjective standard… His duty to declare the law in accordance with reason and justice is seen to be a phase of his duty to declare it in accordance with custom. It is the customary morality of right-minded men and women which he is to enforce by his decree.” The above two paragraphs of J. Cardozo clearly define the progress of the legal system while also summarising the duty of the judge in the evolution of this social process. The role of the judge, therefore, to ensure social progress rests undisputed. Evaluating the part played by the Supreme Court in this role, it goes without saying that the Court have indeed came up to the occasion almost whenever it was required to interpret and mould social norms and practices in line with the social aim that it envisaged for the national strata.
Dhyani, S.N., “Fundamentals of Jurisprudence”, Central Law Agency, Allahabad Makkar, Karandeep, “Law as a tool for Social Engineering”, Manupatra Paranjape, N.V., “Studies in Jurisprudence and Legal Theory”, Central Law Agency, Allahabad, Seventh edition,2013