Historical School versus Sociological School

Two people study a river. One walks upstream to find the springs and explain why the river runs where it does. The other stands at the dam and asks how much water reaches the fields, who gets it, and how the sluice gates should be set. The historical school walks upstream to the Volksgeist and ancient custom; the sociological school works the sluice gates. This note compares them, drawing on Note 13 and Note 14 without repeating them.

Figure: A tree in which the roots (custom, the past, Volksgeist, origins, tradition) stand for the historical school and the crown (interests, effects in society, social control, social change) for the sociological school

1. A Shared Rejection, Different Tenses

Against the analytical school, both insist that a statute book is not the whole of law. Savigny said law lives in the consciousness of the people; Ehrlich said it lives in the family, the village, the market and the firm. The difference lies in tense and in attitude to change. The historical jurist reads law in the past tense and counsels patience. The sociological jurist reads it in the present and future tense and counsels intervention: find out how law actually works and adjust it. The figure's roots-and-fruits image captures the tense, but it should not be read as saying the sociological school simply grew out of the historical one. Its family tree has several roots.

2. The Family Tree of the Sociological School

3. Jhering: the Break with Savigny

Rudolf von Jhering began as a Romanist in the historical tradition, and his Spirit of Roman Law (Geist des römischen Rechts) still read legal history closely. But he ended as the school's most famous critic, so this comparison is really his quarrel with Savigny (see Note 68). Savigny pictured law growing quietly, like language. Jhering's Der Kampf ums Recht (The Struggle for Law, 1872) replied that every right has been won by struggle against resisting interests, and that a person who defends his right defends the legal order itself. Der Zweck im Recht (Law as a Means to an End, 1877) made law a conscious means of securing the conditions of social life by reconciling individual and social interests. Jhering also mocked the German school's conceptual jurisprudence as a heaven of legal concepts cut off from life, and his interest theory of rights led straight to Pound.

4. Ehrlich: Where the Two Schools Nearly Meet

It is a common error to say that the sociological school 'favours legislation' while the historical school distrusts it. Eugen Ehrlich, in Fundamental Principles of the Sociology of Law (1913), held that the living law, the rules people actually follow in their associations, is far larger than the norms judges apply or statutes enact, and that the centre of gravity of legal development lies in society itself. A statute that contradicts the living law is likely to stay a dead letter. That is a Savignian thought moved from national history to present social fact. The real difference is method: Savigny found law in a mystical national spirit, Ehrlich in observable associations, which he studied among the many peoples of Bukovina.

5. Pound and Duguit: the Engineering Wing

Roscoe Pound made the sociological approach active. Law is social engineering: ordering human relations so as to satisfy as many wants as possible with the least friction and waste. He classified interests as individual, public and social, and in An Introduction to the Philosophy of Law (1922) stated the jural postulates of civilised society: roughly, that people may assume others will not intentionally attack them, may control what they create or acquire, may expect good faith from those they deal with and due care from others, and may expect those who keep dangerous things to restrain them. Léon Duguit built on Durkheim's distinction between mechanical solidarity, the cohesion of simple societies whose members are alike, and organic solidarity, the interdependence of modern societies built on the division of labour. For Duguit the objective rule of social solidarity is the only foundation of law, and he rejected both State sovereignty and natural individual rights: people have social functions and duties, not innate subjective rights. Neither waits for the Volksgeist; both ask lawmakers and judges to shape law to present needs.

6. Classic Statements

7. Side by Side

8. Indian Illustrations

Indian courts have declared allegiance to no school, but public interest litigation is often cited as sociological jurisprudence in action.

9. Weak Points of Each

The historical school gives no guidance when a society must change quickly, and in a society divided by caste, class or gender it risks treating the customs of the powerful as the spirit of all. Its central idea, the Volksgeist, was later exploited by romantic nationalism, and it cannot explain the reception of foreign law, from Roman law in Germany to English law in India. The sociological school has the opposite weakness. Its interests are hard to rank, Pound's lists read like the values of early twentieth-century America, Ehrlich's living law blurs legal rules into every other social norm (Kelsen's complaint, see Note 58), and social engineering can hand wide discretion to judges without saying whose idea of welfare should prevail.

The engineering metaphor itself has drawn criticism: it pictures society as a machine that experts can adjust, when legal change often works slowly through habits and expectations, which is exactly the historical school's warning. Duguit's solidarity is too vague to tell a legislator which statute is valid. The fairest verdict is that each school corrects the other's excess: the historical school warns the engineer against reforms that ignore how people actually live, and the sociological school warns the historian against treating inherited custom as beyond criticism.

10. Frequently Asked Questions

Q. Did the sociological school grow out of the historical school?
A. Only in part. The historical school taught that law is bound up with society, but the sociological school also descends from Comte and Bentham, and Jhering built his theory by attacking Savigny.

Q. Why is Maine called a bridge between the two schools?
A. Although he belongs to the historical school, he used comparative evidence rather than a mystical national spirit and saw legislation as an agency of progress, both features of sociological jurisprudence.

Q. Does the sociological school always favour legislation?
A. No. Pound and Duguit favoured purposive law-making, but Ehrlich held that the centre of gravity of legal development lies in society itself, not in legislation, a view close to the historical school.

Q. Is Ehrlich's living law the same as Pound's law in action?
A. No. Pound's law in action is the way official legal rules actually operate, as opposed to how they read in books. Ehrlich's living law is the order that people create and follow in their own associations, whether or not any court or statute recognises it.

See also: Note 13 (historical school), Note 14 (sociological school), Note 41 (law and social change), Note 67 (Savigny versus Maine), Note 68 (Savigny versus Jhering), Note 69 (Pound versus Duguit).