The Sociological School of Jurisprudence

A city's traffic rules say that cars must keep to 50 km per hour and stop at red lights. An old-school lawyer reads the rules and explains what they mean. A traffic engineer stands at the junction and watches what actually happens: where jams form, which rules are ignored and why. Then he redesigns the signals so that the most people get where they want to go with the least delay. The sociological school asks the lawyer to become that engineer: to look past the rule in the book to its working in society, and to judge law by how well it meets human needs.

Figure: Pound's law as social engineering: individual, public and social interests are weighed by the lawmaker and the judge to secure the most human wants with the least friction and waste

1. Meaning and Characteristics

The sociological school treats law as a social phenomenon, one institution among many (family, religion, economy) through which society regulates itself. It cares less about the logical form of rules than about their function and effects: whom the law serves and whether it achieves its purpose. It stresses law in action over law in books, sees law as a means to social ends, looks to the present and future where the historical school looked to the past, and draws on sociology, economics and psychology.

Two strands must be distinguished. Sociological jurisprudence (above all Pound) is a normative programme asking how law should be shaped in the light of its social effects. The sociology of law (Ehrlich, Max Weber) is a descriptive science of law as a social fact. See Note 6.

2. The Forerunners

Montesquieu (The Spirit of the Laws, 1748) related laws to a nation's climate, religion, commerce and manners. Auguste Comte (1798 to 1857), the founder of sociology and coiner of the word, demanded that society be studied scientifically, by observation. His positivism is scientific positivism and must not be confused with the legal positivism of Bentham and Austin. Herbert Spencer compared society to an organism whose parts, including law, must be understood by their function.

Émile Durkheim, in The Division of Labour in Society (1893), supplied the school's key sociological idea. Mechanical solidarity binds simple societies through likeness of beliefs and occupations; its law is repressive (penal). Organic solidarity binds complex societies through difference, the interdependence created by the division of labour; its law is restitutive (civil and commercial). Duguit built directly on this distinction. Max Weber (Economy and Society, 1922) analysed traditional, charismatic and legal-rational authority and the growth of formally rational law in the West.

3. Rudolf von Jhering: Purpose and Struggle

Rudolf von Jhering (1818 to 1892), also spelt Ihering, began as a Romanist (The Spirit of Roman Law) but turned against the abstract jurisprudence of concepts built by Puchta (Note 13), mocking jurists who lived in a 'heaven of legal concepts'. He is often called the father of modern sociological jurisprudence.

In The Struggle for Law (1872), a lecture given in Vienna, he rejected Savigny's picture of law growing silently like language. Every rule of law has been won by struggle against opposing interests, and every right must be maintained by struggle; asserting one's rights is a duty to oneself and to society. In Law as a Means to an End (Der Zweck im Recht, 1877) he developed his central thesis, the book's motto: 'purpose is the creator of the entire law'. No rule exists that does not owe its origin to a practical purpose. Law, in his definition (paraphrased), is the sum of the conditions of social life secured by the power of the State through external compulsion.

Society, Jhering said, moves individuals through four levers: the egoistic levers of reward and coercion, and the altruistic levers of duty and love. Law organises coercion to reconcile individual and social interests. His definition of a right as a legally protected interest founded the interest theory of rights (Notes 29 and 71).

4. The Jurisprudence of Interests and the Free Law Movement

Philipp Heck and the Tübingen school developed the jurisprudence of interests (Interessenjurisprudenz). Every statute resolves a conflict of interests, so the judge should interpret it by identifying the interests the legislator weighed, and fill gaps by extending the same value judgment. The Free Law movement went further. Its manifesto, The Battle for Legal Science (1906), published by Hermann Kantorowicz under the pseudonym Gnaeus Flavius, argued that where statutes have gaps the judge must find the law freely, guided by justice and the living law. Its spirit appears in Article 1 of the Swiss Civil Code (1907), which tells a judge, where statute and custom are silent, to decide by the rule he would lay down as legislator.

5. Eugen Ehrlich and the Living Law

Eugen Ehrlich (1862 to 1922) taught at Czernowitz in the Bukovina, a province of the Austro-Hungarian Empire whose many peoples were all formally governed by the Austrian civil code. He saw that each community actually ordered its family life, inheritance and business by its own customs. In Fundamental Principles of the Sociology of Law (1913) he wrote that 'the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself'.

Ehrlich contrasted the norms for decision used by courts with the living law: the rules people actually follow in their associations (family, village, firm), whether or not a court would enforce them. It is found by observing life, in business usages, marriage settlements and wills, and arises from four facts of law: usage, domination, possession and declaration of will. State law succeeds only when it corresponds to the living law. Ehrlich is a founder of the sociology of law rather than of Pound's normative programme.

6. Léon Duguit and Social Solidarity

Léon Duguit (1859 to 1928), professor at Bordeaux, built his theory on social solidarity and expressly took its two forms from Durkheim: solidarity by similarity (mechanical), from common needs, and by division of labour (organic), from different aptitudes. From this fact he derived an objective law binding rulers and ruled alike: do nothing that impairs solidarity and everything that promotes it.

In works including Law in the Modern State, Duguit denied sovereignty: the State is only a group of governors whose power is justified by the public services they perform. He denied subjective rights: individuals have only social functions and duties. Property is not an absolute right but a social function. These ideas shaped French administrative law and the modern idea that property carries social obligations.

7. Roscoe Pound and Social Engineering

Roscoe Pound (1870 to 1964), trained first as a botanist, was Dean of the Harvard Law School from 1916 to 1936. His key writings are 'Mechanical Jurisprudence' (1908), attacking the mechanical deduction of decisions from fixed concepts; 'Law in Books and Law in Action' (1910); An Introduction to the Philosophy of Law (1922); and Social Control through Law (1942).

Law, for Pound, is a form of social control, and the lawmaker's and judge's task is social engineering. As an engineer builds with the least waste, law must order human relations to satisfy the maximum of human wants with the minimum of friction and waste. People press countless conflicting claims; law recognises some, defines the limits within which they are secured, and secures them, so as to give effect to the greatest total of interests with the least sacrifice.

8. Pound's Theory of Interests

An interest is a claim, demand or desire that human beings, individually or in groups, seek to satisfy and that the legal order must take into account. Pound's three classes give the lawmaker and judge a checklist of what is at stake in any dispute.

Pound warned that interests must be compared on the same plane. Weighing an individual interest against a social one decides the result by the labels; the individual claim should first be restated as the corresponding social interest and then weighed.

9. The Jural Postulates and the Stages of Law

To guide the weighing, Pound identified the jural postulates of civilised society, the assumptions people must be able to make about one another's conduct. In his Introduction to the Philosophy of Law (1922) they run in substance as follows.

Pound treated the postulates as relative to a civilisation and expected new ones, such as claims to job security, as society changed. He also traced five stages of legal development.

10. Cardozo and the Judicial Process

Benjamin Cardozo, of the New York Court of Appeals and later the United States Supreme Court, applied sociological thinking to judging in The Nature of the Judicial Process (1921). A judge uses four methods: philosophy (logic and analogy), history (the evolution of a rule), custom (community practice) and sociology (justice, morals and social welfare). Where the first three leave the answer open, the welfare of society decides. Cardozo, like Holmes, bridges sociological jurisprudence and American realism (Note 15).

11. The Masters Compared

12. Sociological Reasoning in Indian Courts

Indian courts have not formally adopted any school, but the language of balancing interests runs through Indian constitutional law, and the Directive Principles read like a list of Pound's social interests. The cases below illustrate sociological reasoning; they do not adopt Pound's theory as such.

13. Merits and Criticisms

The school brought law down to earth, shifted attention from the form of rules to their effects, and inspired welfare legislation and purposive interpretation. Pound's interests give a practical checklist, and balancing is now part of the ordinary reasoning of constitutional courts everywhere.

14. Frequently Asked Questions

Q. What is social engineering in Pound's theory?
A. The idea that law, like engineering, should order human relations so as to satisfy the maximum of human wants with the minimum of friction and waste, by recognising, weighing and securing competing individual, public and social interests.

Q. How does Ehrlich's living law differ from State law?
A. State law consists of the norms courts use to decide disputes. Living law consists of the rules people actually follow in their associations in daily life, whether or not courts enforce them. For Ehrlich the living law is the larger and more real part of law.

Q. Have Indian courts adopted Pound's theory?
A. Not formally. But they regularly balance competing interests, as in V.G. Row (1952), Olga Tellis (1985), RLEK (1985) and M.C. Mehta (1987). These cases illustrate sociological reasoning rather than an adoption of the school.

See also: Note 6 (jurisprudence versus sociology of law), Note 13 (historical school), Note 15 (realist school), Note 29 (theories of rights), Note 41 (law and social change), Note 57 (historical versus sociological), Note 58 (analytical versus sociological), Note 68 (Savigny versus Jhering), Note 69 (Pound versus Duguit).