Jurisprudence versus the Sociology of Law

Think of cricket. The umpire and the rules expert ask what the Laws of Cricket mean: was that delivery a no-ball, is the batter out? They reason from inside the game. A sports sociologist watches a thousand matches and asks different questions: how often do umpires actually call no-balls, which teams get the benefit of the doubt, how do players bend the rules without breaking them? She observes the game from outside. Then a cricket administrator reads her findings and changes the rules so that the game works better, for example by introducing a review system. All three study the same rules. The first is doing jurisprudence, the second the sociology of law, and the third sociological jurisprudence, which is exactly what Roscoe Pound asked lawyers to do. Most confusion in this topic comes from collapsing the second and the third.

Figure: Jurisprudence and the sociology of law contrasted: legal concepts studied from within against law studied as a social fact from outside

1. Three Fields, Not Two

Textbooks often set 'jurisprudence' against 'the sociology of law' as if the whole contrast were law in books against law in action. That is too simple, and it misplaces Pound. Jurisprudence in the classic analytical sense studies law as a system of concepts, rules and norms: what a right is, what makes a rule valid, how a legal system is structured, and (in its ethical branch) what law ought to be. The sociology of law is a branch of sociology. It treats law as one social institution among others and asks, by empirical observation, what law actually does, how people really behave under it, and what social forces produce it. Between the two stands sociological jurisprudence, the name Pound himself gave to his programme. It is still jurisprudence, done by lawyers for lawyers, but it borrows the findings of social science in order to make law work better. Pound's 'law in books and law in action' is the slogan of this middle field. Ehrlich's 'living law' belongs to the sociology of law proper.

2. Jurisprudence: Law Studied from Within

Jurisprudence begins from the standpoint of those who use the law: judges, lawyers, officials and citizens who treat legal rules as reasons for action. Its questions are internal to law. Is this rule valid? What does the concept of possession mean? Does a time-barred debt still carry a right? What is the source of a court's authority? Its method is analytical and normative: it clarifies concepts, arranges them into a system and evaluates them. Austin's command theory, Kelsen's pure theory and Hart's theory of rules are all jurisprudence in this sense. Kelsen went furthest in keeping sociology out. His Pure Theory of Law (1934) was meant to be a science of norms, dealing with what ought to happen, cleansed of facts about what does happen (see Note 12). For him the sociology of law was a legitimate discipline, but a different one.

3. The Sociology of Law: Law Studied from Outside

The sociology of law grew out of the new science of society that Comte named in the nineteenth century. Its founders were sociologists rather than jurists, and its aim is to explain law as a social phenomenon, not to tell judges how to decide. Three names dominate the exam.

Eugen Ehrlich and the living law

Eugen Ehrlich, an Austrian jurist teaching at Czernowitz in the Bukovina, a province where many peoples lived under one Austrian code, noticed that the rules people actually lived by in their families, villages and trades were often quite different from the code. In Fundamental Principles of the Sociology of Law (1913) he called these rules the living law: the law that dominates social life itself even though it has never been laid down in legal propositions. The State's law, and especially the norms courts use for deciding disputes, is only a small part of the ordering of society. The larger part is produced by the inner order of social associations. Hence his famous foreword: 'the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself'. To find the living law, Ehrlich said, one must study business documents, contracts and the observed practice of life, not only statutes and judgments.

Max Weber: authority and rationality

Max Weber, in Economy and Society (published after his death, in 1922), treated law as an order backed by the probability that a staff of people will apply coercion to secure conformity. He classified legitimate authority into three pure types: traditional (obeyed because it has always been so, as with a hereditary chief), charismatic (obeyed because of the extraordinary personal qualities of a leader or prophet) and legal-rational (obeyed because it is exercised according to impersonal, enacted rules, as in a modern bureaucracy). He also classified legal thought by its rationality. Formal rationality decides cases by general, logically ordered rules applied to legally relevant facts; substantive rationality decides by ethical, political or utilitarian considerations outside the legal rules. Weber linked the formally rational law of the modern West with the predictability that capitalist enterprise needs, and used the image of 'kadi justice' for decision by the judge's sense of the individual case.

Emile Durkheim: law as the index of solidarity

Emile Durkheim, in The Division of Labour in Society (1893), argued that law is the visible symbol of the kind of solidarity that holds a society together. In simple societies, people are alike in beliefs and occupations, and cohesion rests on that likeness: mechanical solidarity. Their law is chiefly repressive (penal): it punishes conduct that offends the common conscience. In advanced societies, people differ and depend on one another through the division of labour: organic solidarity. Their law is chiefly restitutive (civil, commercial, administrative): it restores the disturbed relationship rather than punishing. By measuring the proportion of repressive to restitutive law, one could measure the type of society. Duguit later built his theory of social solidarity on Durkheim's work (see Note 69).

4. Sociological Jurisprudence: Pound's Bridge

Roscoe Pound, later Dean of the Harvard Law School, attacked what he called 'Mechanical Jurisprudence' (1908): the deduction of decisions from fixed concepts without regard to their results. In 'Law in Books and Law in Action' (1910) he showed that the rules stated in the books were often not the rules actually applied, and that the gap was a sign that the books needed changing. He had called for a sociological jurisprudence as early as 1907, and in articles on the scope and purpose of sociological jurisprudence in the Harvard Law Review (1911 to 1912) he set out its programme: study the actual social effects of legal institutions, study the means of making rules effective, and use the results in law-making and judging.

Pound's central image was social engineering. Law is a tool for satisfying as many human demands as possible with the least friction and waste. He classified the interests law must balance into individual, public and social interests, and stated jural postulates, the assumptions of a civilised society at a given time, to guide the balancing. The European forerunner was Jhering (also spelt Ihering), whose Law as a Means to an End (1877) carried the motto 'purpose is the creator of the entire law'. The point to grasp is that Pound's aim is practical and normative: he wants better law. The sociologist's aim is explanatory: she wants to understand law, whether or not it can be improved. That is why Pound is placed in the sociological school of jurisprudence (Note 14), not in the sociology of law.

5. From Within and From Outside: Hart's Frame

6. The Classic Statements

7. The Three Fields Compared

8. The Indian Perspective: Books and Action Apart

India offers striking illustrations of the gap Pound described. The Constitution and the codes promised speedy trial, bail and access to courts; in practice the poor spent years in jail without trial and could not reach the courts at all. When Indian judges closed that gap, they were doing sociological jurisprudence: looking at the law in action and reshaping the law in the books to match the constitutional promise. Indian scholarship has also produced sociology of law in the strict sense, such as Upendra Baxi's The Crisis of the Indian Legal System (1982) and Marc Galanter's Competing Equalities (1984), a study of law and the backward classes.

9. Evaluation

The fields are complementary. Jurisprudence without sociology risks becoming what Pound called mechanical: elegant concepts that produce harsh or absurd results because no one checks how they work. The sociology of law without jurisprudence risks losing sight of what makes law law: its normative character. Kelsen's criticism of Ehrlich was that the living law confuses what people do with what they ought to do, and that a description of social behaviour cannot tell a judge which rule is valid. Hart's frame explains why both sides are partly right: a full account of law needs the participant's view of rules as reasons and the observer's view of rules as social facts. Sociological jurisprudence, at its best, is the meeting point, and Indian public interest litigation shows it at work.

10. Frequently Asked Questions

Q. Is Pound a sociologist of law?
A. Not in the strict sense. Pound called his approach sociological jurisprudence: a school of jurisprudence that uses the findings of social science to improve law through social engineering. The sociology of law proper, the empirical study of law as a social fact, is associated with Ehrlich, Weber and Durkheim.

Q. What is the difference between living law and law in action?
A. Living law (Ehrlich) is the order that social associations actually live by, whether or not the State has laid it down. Law in action (Pound) is the State's law as it actually operates in courts and society, contrasted with the same law as written in the books.

Q. How does Hart's internal and external point of view help here?
A. It shows that the difference is one of standpoint. Jurisprudence mainly studies rules from the participant's internal view, as reasons for action; the sociology of law mainly studies them from the observer's external view, as regularities of behaviour.

Q. Which Indian cases show the gap between law in books and law in action?
A. Hussainara Khatoon (1979), where undertrials languished in jail despite the law of bail and trial, and S.P. Gupta (1981), where the Court relaxed standing so that those unable to reach the courts could be represented through public interest litigation.

See also: Note 4 (allied social sciences), Note 12 (Kelsen), Note 14 (sociological school), Note 41 (law and social change), Note 58 (analytical versus sociological), Note 69 (Pound versus Duguit).