Image source- The Hindu

This article is written by Anirudh Vats, second year student at Rajiv Gandhi National University of Law, Patiala. This article will first discuss the meaning and nature of the School along with the background which led to the emergence of Sociological School of Law. It will then discuss the basic tenets of the school, lay out the ideas of influential thinkers and then provide a criticism of the Sociological School of Law.

Introduction

The sociological approach to the study of law is concerned with how law affects society and vice-versa. It studies how social development affects legal institutions, law as a form of social control, the interaction between legal cultures and how law drives social change.

Meaning and Nature

The Sociological School of Law rejects law as an abstract, idealistic concept and sees it as an evolving social institution which reacts and adjusts to changes in the social circumstances. The school deals with the relation between law and society, and is concerned with the following questions:

  • How does law function in society?
  • How is law affected by social change?
  • How does law drive social change?
  • What are the social implications of a law?
  • What social groups does a law favour or deprive?
  • Can law be used as an instrument of social progress?
  • How does law manage balance of interests in Society?
  • How is law used to exercise Social Control?
  • How does law become an instrument of Power?

These are just a few central questions which explain the frontier between society and law, but this list is in no way exhaustive.

The approach of this school of law is interdisciplinary in nature. It seeks to derive out of the economic jurisprudence,social anthropology, criminology and psychology.

Sociological jurists insist on the unity of the social sciences and their interdependence, and stresses upon a more active, involved study of law by studying the underlying social phenomena in the practise of law.

Background

The Sociological school of law was born as a reaction against the Analytical and the HIstorical School of law.

Opposition to Analytical School of Law

The founder of the Analytical School of law was John Austin. He regarded law as a command of the sovereign. According to this school, law was born out of the will of the sovereign ruler, and had no ethical or social concerns.

It regarded law as a self-sufficient field and considered it detached from ethical values like justice, liberty and freedom.

The sociological approach aims to refute the idea of self- sufficiency of Law. according to it, Law is a living, breathing part of society. Law was born out of a need for social cooperation, which called for the regulation of behaviour and the granting of certain freedoms.

Therefore, as with any other social institution, law too is subject to the social phenomena surrounding it. It affects society and is in turn affected by society. To see it as detached from the ethical concerns of society was considered incorrect by sociological jurists.

Law, does not emanate from sovereign individuals. It is born out of social processes and has a distinct function in society. The validity of Law comes not from the Sovereign, but from the function it performs in society.

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Opposition to Historical School of Law

The historical school of law supposed law to be a result of the slow and silently evolving cultural processes of a certain group of people. It considered law to be something that is “found” by jurists and not “made”. Law cannot be the particular interpretation of a certain individual, it has to emanate from a culturally distinct group and their need for it.

The main opposition to the HIstorical school by the sociologists was that their approach to law was too passive. They viewed law as a gradual need which develops among people and then gets formalized, and do not adopt an active strategy to transform society through law.

Law, according to the Historical school, is a result of prevalent cultural practises, and not something that can be used as an instrument to instigate social change or progress.

Apart from this opposition, due to the rising war, strife and discontent at the beginning of the 20th century, natural law principles were being challenged, and there was a dire need to make law more relevant and contemporary, and that led to the prominence of the Sociological School of Law.

Basic Tenets

Formal law is just a portrait of law

The sociological approach (Henceforth, “SA”) to law rejects the Positivist idea that formal law is the real law.  It asserts that the real law is the law experienced by society, the law which manifests itself in the social living of people. It is not the law found in statutes, judgements, bare acts etc.

It distinguishes between the formal idea of justice and “social justice”, which is considered Justice in the real sense by Sociologists. The SA says that the inequalities existing in society are also a concern of law.

Justice should not be limited to the courtroom, justice should be seen to be done in the daily living of an individual, in the way he interacts with people and the way he functions in society.

Say a Dalit is beaten up in a caste-based incident. Legal Justice would be that the perpetrator is punished. But social justice would be concerned with how to uphold the dignity of that Dalit in society and ensure he is not discriminated against, and this social justice should become a central focus of Law.

Law is a social institution

The SA regards Law as just another Social institution akin to State, Family, Religion etc. This means that like any other institution, law is an ever evolving set of patterns which are well-established in society.  Law has its functions in society, and it is imperfect and permanently subject to change.

Moreover, the SA advocates actively getting involved in driving this change. The purpose of Law is to solve social problems and ensure a more just, fair and equitable society.

It rejects the idea that Law is separate from society and is somehow external to it. Society permeates law and vice-versa, and therefore social and legal change are complementary to each other.

Focus on Social purpose rather than Sanction

The SA regards law as an institution whose function is to solve legal and judicial problems facing society. Law should be cognizant of the condition of the society its operating in and actively aim to fulfill its needs.

This assertion is in direct contrast to the Positivist approach which aims at establishing law as a system of rules backed by sanctions. For this approach, Law begins and ends with a violation and a sanction. It has no moral purpose or ethical direction. It has no regard for the time it is operating in or the place it is applicable to, it is objective, absolute and unquestionable.

For the sociologists, this idea is false. Law, like all  Law cannot be separated from its ethical ends, in fact, the ethical concerns of Law should be given precedence over a sanction-based perspective of law.

Study of Legal Cultures

This is a relatively new term but forms one of the central concepts of Sociology of Law. Legal culture distinguishes between “law in books” and “law in action”, and studies how the two relate to one another.

It studies the attitude and behaviour of society towards legal institutions and how the legal system is perceived by individuals.

Legal culture goes beyond the Legal system and is understood at different levels of abstraction. Legal Culture exists in the State, The country and community.

Internal Legal Culture refers to the culture within the formal legal system, like the judiciary, the bar council etc. External legal cultures refer to the attitudes towards the Legal system adopted by people external to it.

Critique

It undermines individual interest

A fundamental problem in society is the constant conflict between individual and societal interest. The Sociological School disregards individual interest as it supposes Law to be primarily applicable to society and not the individual.

Suppose a judge is deciding a case of Rape. The accused is viewed by everyone as guilty and society has already passed judgement on him. In this case, it is the judge’s duty to view the facts and evidence objectively and decide accordingly. The social interest or opinion should be of no importance to the judge, and if there is a lack of evidence, the accused must be set free.

This shows that Individual identity holds more interest in the eyes of Law then Group identity. People are not products of their race, sex, nationality etc. but distinct, independent beings who cannot be tyrannized due to their conflicting interests by Society.

The Sociological School attempts to shift the focus of Law towards society, in turn undermining the interest of the individual, which is often in contrast to the interest of society.

Social Justice, while a noble idea, cannot be the sole focus of law, as Individual justice is much more important to Law.

Subjectivity of Social Ideals

According to the SA, Law should help society progress towards an ideal. This poses two problems. First of all, who decides what direction a society can take? After all, society is just a combination of conflicting individual interests. For some, Homosexuality is a valid sexual orientation, for others it is sin. Which interest should prevail and should law be conscious of every differing interest?

A social ideal is a metaphysical idea. If law starts actively heading towards these abstract ideals, it ceases to be a definite science, with objective rules and a definite system of social regulation.

Another problem is, it is impossible to know the consequences of a social change beforehand, and if Law becomes an active catalyst for it, it might overstep its boundaries and become oppressive.

For example, in the early 20th century America, alcohol was prohibited and sale of it was banned. This meant people’s productivity increased, crime decreased and married women were happy. But ultimately, an underground mafia developed which started a huge black market of alcohol, this brought in much more crime and death, along with frequent clashes between police and criminals. Moreover, the law had overstepped by taking away the free choice of a person to consume what he wants.

Therefore, the law cannot be solely motivated by driving social change, as it is a definite science which seeks to impose objective rules and regulations on society.

Law cannot be a mere balance of interests

If society is made up of individual interests, there are bound to be disagreements. Social jurisprudence says that Law should act as a mediator between these interests, trying to fulfill the needs of as many people as it can. This is in consonance with Bentham’s idea of the greatest good for the greatest number, and this is a principle law should abide by.

But this assertion assumes that Law is an impartial overseer, but we know that Law is also not free of opinion, law has its own ideas of justice, and interprets liberty and fairness in its own way.

Law cannot balance all the interests in society. It is objective and chooses, as per its own biases and standards of judgement, what is lawful and what is not.

Therefore, the idea that law is impartial and a mitigator if all interests is flawed and inadequate.

Goes beyond the tenets of Sociology

Sociology is essentially a descriptive study of social facts, but Sociological School of Law delves into jurisprudence, which is the philosophy of Law, and here the Sociological School makes a leap into being a normative study, directing and aspiring towards something, and actively trying to realize it.

Roscoe Pound, an influential thinker of the school, regarded Sociological School as jurisprudential, advocating for an involved, active study of Law.

Therefore, it ceases to be a mere description of a sociological perspective of law, and becomes a normative study of law as a catalyst for social change.

Conclusion

The Sociological School of Law offers an alternate perspective towards understanding Law, and has done great work to make Law more relevant, contemporary and sensitive to the social climate it operates in.

Its merits are plenty, and its critics too do not deny its utility, but help in an evolution of this School to a broader, encompassing theory of understanding Law.

 

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