The sociological school deals with society or we can say that the subject matter of sociology is society. Along with society, under this we do study human behavior and social changes.
Under the jurisprudence we study law and the legal aspects of things. According to this sociological school, society and the law are related to one another. This school says that law is a social phenomena because it has a significant influence on the community.
The main object of the sociological school of law is to examine how the law is applied in society. They underline the real-world societal problems and circumstances that call for assistance to the law.
The characteristics of Sociological school of law:
1. This school of jurisprudence mainly focuses on the functional aspects of law rather than abstract content.
2. Completely ignores positivism for example - the command of sovereign.
3. Jurists of the Sociological school describe their perspective of law in different forms like - functional aspect of law (law in terms of the court’s rulings) and decisions (realistic approach of law).
4. The sociological jurists facing difficulties when it comes to the functioning and working of the law rather than the nature of the law.
There are some main exponents of sociological school of jurisprudence - Montesquieu, Auguste Compte, Albert Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The founding father of this school was Auguste Compte (French Thinker).
Meaning of Sociological school of Jurisprudence:
The Sociological School is connected with the application of law in society. It helps to establish a relation between Law and society. The school highlights all the legal perspectives of each issue and changes society.
According to the school, Law is a social occurrence which has direct or indirect connection to the society. This Sociological jurisprudence focuses on balancing the welfare of the state and individual of the society.
Reason For Emergence:
Laissez-Faire is a Latin phrase that is the most important reason for establishment of the sociological school of jurisprudence. It refers to the policy where the people live with freedom and without government interference. This concept is important for the economic growth of the country.
It has become necessary for implementing the practice of Laissez-Faire because of this people can easily do their business who live in the society. Also it is good for the country's economic growth.
Sociological school also helps to improve individual growth. This school emerged as a reaction against the laissez-faire because it supports the balance between the welfare of the state and individual interest.
It helps to solve societal problems and identify justice and the public good, and try to achieve them. The basis for establishment of “sociological school” is the concept of pragmatism, which are defined in the functional and instrumental approach to the law.
Montesquieu (1689-1755)
He was a famous philosopher from France, who carved out the path for the sociological school of jurisprudence. According to his perspective, the legal process is in some way influenced by the social condition of the society.
Also he recognised the importance of history in order to understand the structure of society. He talked about the importance of studying History of the society before implementing the laws into the society.
The book “the spirit of laws” Which was written by the montesquieu, he stated - law should be decided by the features of a nation thus it will be effectively applicable on the citizens of that nation. It should be in relation to the climate of the country for which the law is made.
While determining the laws one should keep in mind:
Eugen Ehrlich (1862-1922)
Another eminent jurist of this school was Ehrlich, who believed that evolution of law is spontaneous (same as savigny). He did not connect their thoughts to the past for the evolution of law but created law in the present context or in existing society. That is how he evolved the theory known as Living Law.
According to him, domestic life, possession, contract, inheritance, succession, marriage, divorce etc. are governed by the living law in the society. These laws are made to dominate human life so that peace and happiness could be maintained.
He was thinking that in today’s time, the center of legal development - does not lie in legislation or judicial order, nor customs, nor juristic interpretation but it is made through the society itself.
The living law is the law which governs human life and makes it possible to properly study laws that require persons who have a good knowledge of law and they study all the social circumstances in which the law functions in the society.
The word “Sociological jurisprudence” is used for the law which is made in society and it needs a written statute to govern the people more effectively.
There are some laws that are enacted by the government even though it is ignored by the community and live according to the rules created by their mutual consent, for example - the dowry system. It is banned in India but majority people take and give the dowry in their marriages.
Inhering (1818-1892)
Inhering was a prominent German jurist who was often known as “the father of modern sociological jurisprudence”. He is popular for their principle:
Wor Der Zweck in Reett = ‘Law as a means to an End’
He had the perspective that law is a path to achieve balance between the social and individual interest. Also inhering rejected the Analytical and Historical school of jurisprudence. He says - law is forcefully organized in Act by the state.
He outlined the law in following way ➖
Law - result of consistency struggle: Ihering describes law as a result of constant struggle which takes birth by the social struggle. He believes that the role of law is to harmonize the contrary interest of individuals in order to protect the interest of society. He gives importance to living law that emerges through the struggle of society.
Law - serve the social purpose: According to ihering the utmost aim of law is to serve the social purposes because it is made for the society. State has a duty to avoid the conflicts between individual and social interest. He considered “law as a coercion statute that is formed by the state”. Imposition of coercion (force) should be necessary by the state to maintain society’s welfare.
Law - as a control society: Alone it is not considered as a control society but there are some other factors which formed it like climate, people, position of residents etc. Along with bentham, Ihering also favors the achievement of pleasure and avoidance of pain for society, that is how Ihering theory is also known as the “Social Utilitarianism”.
I didn't believe that the social activities of the individuals can be curbed by the state through implementing the rules and regulations by means of coercion, reward and duty to get social control in the society for the welfare of it.
