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Sociological School Of Jurisprudence
The main features of Sociological School of Jurisprudence are
This school considers law having objectives for interrelationship between law, individuals and society. The social purposes or securing social interests rather than on sanction.It is the study of law in relation to society or the social circumstances which gives rise to legal institutions (effect of social phenomena) Law is a social fact that mould and change society to sub-serve its needs, expectations and goals (functional aspect) . Law has a purpose or interest leading to societal progress. It is viewed as “Pragmatic empirical recourse and realistic approach”.The main jurists are
August Comte, Max Weber, Herbert Spencer, Durkheim, Rudolf Jhering, Leon Duguit, Ruscoe Pound.
- Duguit was infuenced by sociologist Durkheim's writings.
- He opposed the usage of law to create social division and create social subordination.
- Law being a social fact deals with the performnce of individuals duties and not rights. Because duties lead to co-operation and rights will lead to conflicts.
- His concept was “social solidarity”. Law is to serve and secure solidarity of men within the community he is staying.
- Mutual co-operation and interdependence are necessary. State is to ensure the Justice with appropriate social and economic regulations for common good.
- He was against the significance of rights, sovereign, state, legal personality, public and private law as to him there is no social relaity to all these (but not rejected) . The state can therefore claim no special position or privilege. It is not some mystical entity, but an organization of individuals.
- In his book “Law as a means to end” he criticised individual freedom from social realities.
- Social justice can be possible only if individuals collectively work towards societal interest.
- Harmonise conflicting interests of individuals with protection of society.
- 3 postulates - Law a result of constant struggle , law's purpose is to serve social purpose (State comes here), Law cannot be in isolation.
- Punishment to serve societal justice but no retributive penal policies by state. Law being a relative value has coercive character but need to be evaluated in social context.
- The right and justice must constantly affect the social purpose of law, and that our legal system must constantly be reshaped to allow the exercise of this purpose.
- The good of the individual is never an end in itself but only a means for accomplishing a social purpose. An individual may act for his own happiness, but this is to be done not in his own interest but in the interest of society, and this relation of the individual to society cannot be determined by "any abstract theoretical formula, but by practical considerations." Bentham's theory of law is a purely individualistic one. The law is to be invoked as a means of securing and protecting the welfare of the individual.
- To, Jhering, on the other hand, law is a social force, created by society, and to be used for the benefit of the individual interest only in so far as the interest of the individual coincides with the interest of society.
- For these reasons, W Friedmann called Jhering as father of sociological jurisprudence.
American sociological Jurist . To him, Sociological Jurisprudence was "the movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles."
Social good and justice to be viewed from distribution of wealth, state, society. Law is to balance the conflicts Laws are created to shape the society and regulate the people’s behavior. It is an attempt to control the human conduct through the help of Law
- Social Engineering - maximise the fulfillment of interests of the community and its members thereby ensure the smooth functioning of society.
- 3 types of interests - public interests (State as guardian & juristic person),private interest (Personality and Domestic relations) and social interest ( general security, general morals,general progress)
- Pound summarized Five postulates, They are :
- Others will not commit any intentional aggressions upon an individual. E.g. Assault, battery, wrongful restraint etc.
- Others will act with due care and will not cast upon an individual an unreasonable risk of injury. E.g. Negligence
- Individual can appropriate what he has created by his own labour and what he has acquired under existing economic order for his own use. E.g. agricultural land and usufruct as property.
- The people with whom an individual deals with in the general intercourse of society will act in good faith. E.g. Defamation
- Individual must keep the things within his boundary and should look after those things so that their escape should not harm others. E.g. Ryland vs. Fletcher case
- These jural postulates are to be applied both by the legislators and judiciary for evaluating and balancing the various interests and harmonizing them . Now application to dispute resolution