Introduction

Sociological school of jurisprudence has emerged as a result of synthesis of various juristic

thoughts. The exponent of this school considered law as a social phenomenon. They are
mainly concerned with the relationship of law to other contemporary social institutions.
They insist that the jurists should focus their attention on social purposes and interest
served by law rather than on individuals and their abstract rights. According to this school,
the essential characteristic of law should be to represent common interaction of men in
social groups, whether past or present, ancient, or modem.
The main concern of sociological jurists is to study the effect of law and society on each
other. They treat law as an instrument of social progress. The relation between positive law
and ideals of justice also affects the sociology of law.
Many authorities contend that sociological jurisprudence originated as a reaction to rigid
legal positivism which relied on the fact that law is solely based on the coercive power of
the State and completely rejected the pursuits of morality and justice as irrelevant in human
relations. Likewise, it was also opposed to historical school's undue insistence on past
customs, traditions and values which had blocked the growth and development of law and
paved way to narrow nationalism in Germany and France.
The supporters of sociological jurisprudence linked law with other social science
disciplines and treated it as a synthesis of psychology, philosophy, economics, political
science, sociology, etc. Law, according to them, was an applied science employing
functional methods of investigation and analysis for solving the social and individual
problems. In their view, law is concerned with its effect on society and therefore, it would
be erroneous to treat it as a mere command or God's will or the people's conscience. The
functional role of law and its effect on society constitute the basic philosophy underlying
sociological jurisprudence. As Dean Roscoe Pound rightly pointed out, "the sociological
jurists look more for the working of law than for its abstract content". The main
characteristic features of sociological jurisprudence as stated by Roscoe Pound are as
follows;

(1) The exponents of sociological school lay greater stress on functional aspect of
law rather than its abstract contents. In their view, law cannot be insulated from
the social complexities and objectives and practical problems of life.
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(2) They consider law as a social institution essentially inter-linked with other
disciplines bearing direct impact on the society and uphold the view that law is
designed on the basis of human experience in order to meet the needs of the
society. Law is in fact a synthesis of philosophy, psychology, political science,
economics, sociology etc. and has to be understood in terms of its utility,
purpose, effect, practices and functions.
(3) Sociological school completely discards the abstract notions of analytical
positivism which lay over-emphasis on command or power aspect of law as also
the dead weight of past culture and traditions which constituted the main theme
of the historical jurisprudence.
(4) Sociological jurists, however, differ in their approach to the perception of law.
Some prefer to adopt a pragmatic empirical recourse to study the functional
aspect of law while others emphasize on defining law in terms of court's rulings
and decisions thus adopting a realistic approach to law. For instance, Holmes has
defined law in terms of judicial prediction through the verdicts of law courts
whereas Roscoe Pound treats law as an instrument for the adjustment of human
conditions to the social forces operating in a given society.1
In other words, sociological jurisprudence is a multifaceted approach to
resolve immediate problems of society with tools which may be legal or extralegal and techniques which promote harmony and balance of interests of society.2

Four Developmental Stages of Sociological Jurisprudence

As stated earlier, the approach of jurists towards law in terms of its functions, purposes and
objectives underwent a radical change towards the end of the eighteenth century. The
prevailing social order and economic conditions due to the impact of laissez faire philosophy
generated rift and tensions between different sections of society. It was realised that liberty
with equality and freedom without security were at the root of this disorder in the society.
Therefore, there was need for a fresh approach to the study of law in terms of pressing needs
of the society as the preceding dogmatic approach had failed to deliver the goods. This led to
the emergence of the sociological jurisprudence which began from Auguste Compte, brought
to the fruition by Dean Roscoe Pound and finally culminated into Realist School of the
1

Cohen & Cohen : Readings in Jurisprudence and Legal Philosophy (Toranto 1951) pp. 416, 423.

Dhyani S.N.: Fundamental

of Jurisprudence - The Indian Approach (2004, Reprint, 2011) p. 306.

twentieth century. The major stages through which the sociological jurisprudence evolved
and developed may briefly be stated as follows :
(1) Empirical Scientific Approach to Law.Auguste Compte (1789-1857) is said to be
the founder of the sociological jurisprudence who made a beginning to what has been known
as 'scientific positivism'. His approach to law was empirical based on experience and
observation. Thus he rejected metaphysical methods of the study of law which was
commonly resorted to by his predecessors belonging to the philosophical and historical
school. He denounced all hypothetical considerations in the perception of law and based his
study of law on empirical observation in an effort to establish co-relation between law and
society. Being a mathematician himself, Compte was greatly influenced by mechanical
analogies.
According to Compte, human understanding widens with the mental developments and the
law takes shape to suit the needs of society in four stages, namely, (1) Primitive stage, (2)
Medieval stage, (3) Metaphysical stage and (4) the Modem scientific (Positive) stage. In the
first stage, theological men try to explain things by reference to supernatural forces like sun,
moon, sea, seasons etc. and believes that all the human affairs are controlled and regulated
by God. In the second stage, the God theory and forces of nature are personified in terms of
absolute power. These hypothetical considerations are discarded at the metaphysical stage
and finally the scientific stage lays greater emphasis on empirical observation and study of
corelation between observed phenomena themselves. Thus, Compte believed that the facts of
society like those of physical universe have to be explained by empirical observation,
verification and reasoning.
(2) The Impact of Darwinian Evolutionary Theory.The next stage in the development
of sociological jurisprudence has been called as the biological stage' because of the influence
of the Darwin's evolutionary theory. Herbert Spencer explained social phenomenon as a
biological process adapting itself to the changing needs of the society. He asserted that law
must evolve and adapt itself to the changing needs of the progressive society. It is through
the instrumentality of law that the conflicting interests of the members of society are
reconciled and the various groups are held within their bounds in the interest of the society
as a whole.
Supporting the biological theory of evolution of law Austrian jurist Gumplowicz
observed that all racial phenomena are an unending struggle between different elements :
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first between social groups, then between states formed by the stronger groups and finally
between classes within these states. Law is therefore an instrument of the stronger over the
weak in the unending struggle between different interests of the society. It is through law that
stronger groups attain its objectives over the weak who they govern.
(3) Impact of psychological theory. According to Dean Roscoe Pound, the third stage of
development of sociological school is psychological stage. It was a period of later half of the
19th century and the first quarter of the twentieth century during which psychology had
greatly influenced other social sciences including the law. Ottovon Gierke (1841-1921)
denounced the orthodox approach of the historical school which over-emphasised on
metaphysical approach to law and highlighted the importance of group-personality for
securing collective interests. Thus it was realised that psychological aspect of law has a close
bearing to its functional aspect. George Jellinek (1851-1911) propounded his social
psychological theory of sanction and held that law sets the norms for external conduct for
men and it proceeds from an external power.
(4) Unification Stage.The last stage of development of sociological jurisprudence consists
of unification of sociological method with other social sciences. It was realised that different
social sciences represent different aspects of human society. Therefore, they are
supplementary and complementary to each other and as such law also cannot be detached
from various socio-economic aspects of the society since it is an effective means of social
control in the society. The propounders of sociological jurisprudence, therefore, believe that
law cannot be detached from various socio-economic forces operating in the society. For
them, law is a mean of social control to be understood in the total setting of the society, it
seeks to regulate human conduct and aims at reconciling the conflict of interests.

Sociological jurisprudence and sociology of law distinguished

It would be pertinent to draw a distinction between sociological jurisprudence and sociology
of law which appear to be similar concepts. Though it is difficult to draw a hard and fast line
of demarcation between the two because of their identical subject-matter, they do differ in
respect of their theme and approach to law. Sociological jurisprudence is a functional study
of law applied to concrete social problems in order to make law an effective instrument of
social control for harmonising the conflicting interests of individuals in the society. In this
sense law has a wider connotation and includes judicial decisions and administrative
processes used for reconciling the competing interests of the people. It is for this reason that
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sociological jurisprudence has also been called as functional3 jurisprudence or jurisprudence

of interests4 or jurisprudence of social engineering.5
Sociology of law, on the other hand, is a descriptive study of law and legal
institutions of a given society. As Roscoe Pound rightly remarked, sociology of law is mainly
a descriptive study of law in a theoretical manner. It treats law as just one of the several
aspects of a society and, therefore, has a secondary position as compared to society which is
the main theme of sociology. Thus, strictly speaking, sociology of law is just a branch of
sociology. According to Hall, sociology of law is a theoretical science which consists of
generalisation regarding social phenomenon so far as they refer to contents, purposes,
application and effects of legal rules. Sociological jurisprudence, on the other hand, looks at
law as a means of social control. Thus, these are two distinct and independent concepts.
According to Dr. Timasheff, "sociology of law exists as a distinct science whereas
sociological jurisprudence is merely a branch of science of jurisprudence. However, both
consider society as the matrix of their common interest".
Max Weber has traced the development of law from irrational conceptions to its
logical conclusions in his work Sociology of Law. Huttington Cairns also expounded his
legal theory with greater emphasis on sociological approach. According to him, sociological
or functional jurisprudence would remain a myth without the progress of social science
because jurisprudence is a mere tool to serve the social interests of the community.6
Eugen Ehrlich explained legal sociology in terms of 'living law' which meant that law
is to be understood as it lives in society. He observed that the law develops not through
legislation nor through judicial decisions, but in society itself. Thus, rejecting analytical
jurisprudence, Ehrlich pointed out that law is closely inter-related with life of society and
therefore sociology of law is the source of all legal development. He denies that law has
emanated from the State, it emanates from the society itself and adopts itself to the changing
needs of the transient society.

Paton G.W.: Jurisprudence (1964) p. 21.

Lioyd Denis : Jurisprudence (1959) p. 177.

Roscoe Pound : Jurisprudence, Vol I (1959) p. 344.

Paton G.W.: Jurisprudence (1971) p. 29.

Back-drop of Sociological Jurisprudence

It is well known that the relations between individual, society and State are never static, they
have always been changing with the exigencies of time and needs of the society. Therefore,
various theories regarding their relationship have also been changing. For instance, the early
societies were governed by customs which were only a social sanction. Then came the period
of the supremacy of the Church, i.e., the priestly class. To counter the growing influence of
the Church, the secular State emerged powerful dominating all other institutions. The
omnipotence of the State gave rise to the period of renaissance and the legal philosophers
began to think in terms of freedom of individual and their rights and liberties. This resulted
into political upheavals giving rise to despotic rule, i.e., Nazism in Germany and Fascism in
Italy. As a result of this, there was need to review the legal theory for maintaining a balance
between the State, welfare of the society and the individual interests. Finally, it was realised
that socialisation of law and legal institutions would perhaps best sub-serve the common
good and interests of the society. Consequently, a synthetic approach to jurisprudence by
evolving a new legal philosophy called the sociological school emerged out of the synthesis
of historical and philosophical movement and the comparative study of legal systems.

Sociological School of law: USA

I. Roscoe Pound (1870-1964)

Roscoe Pound was one of the most leading and influential jurists who developed the
American Sociological Jurisprudence in a systematic form. He emphasised on interdisciplinary approach to law so that rule of law and life may flow together. He treated law as
a means for affecting social control and did not believe in the abstract or mechanical
application of law. He is considered to be the father of American Sociological Jurisprudence
for his unique contribution to the science of law and legal philosophy. The emergence of
Realist School in America in later years owes its origin to Pound's functional jurisprudence
and theory of interests.

The contribution of Roscoe Pound to sociological jurisprudence may be studied under the
following heads :
1. Emphasis on Functional Aspect of Law :
Roscoe Pound added new dimensions to sociological school of jurisprudence. His approach
to sociological jurisprudence was different in the sense that he attempted to cover social-life
as a whole unlike his predecessors who considered law as the main subject of study and
society is merely subsidiary to it. Pound laid greater stress on functional aspect of law. This
is why his approach has been termed as 'functional school' by some writers. He defined law
as containing "the rules, principles, conceptions and standards of conduct and decision as
also the precepts and doctrines of professional rules of art". He thus considers law as a
means of a developed technique and treats jurisprudence as a 'social engineering'. The end of
law according to him is to satisfy a maximum of wants with a minimum of friction or
confrontation.
Elaborating the functional aspect of law, Roscoe Pound stated that the function of law is to
reconcile the conflicting interests of individuals in the community and harmonise their interrelations. He termed this as 'social engineering'.
2. Pound's Theory of Social Engineering :
Roscoe Pound conceived law as a 'social engineering', its main task being to accelerate the
process of social ordering by making all possible efforts to avoid conflicts of interest of
individuals in the society. Thus courts, legislators, administrators and jurists must work with
a plan and make an effort to maintain a balance between the competing interests enumerated
the various interests which the law should seek to protect and classified them into three
broad categories, namely, (1) Private interests, (2) Public interests, and (3) Social interests.
(i) Private Interests.These include
(a)Individual's interests of personality, namely, interests of physical integrity, reputation,
freedom of volition and freedom of conscience. They are safeguarded by laws of crimes,
torts, contracts, constitutional law, etc.
(b)

The interests of domestic relations of persons such as husband and wife, parent and

children, marital life as also the individual's private interests.

(c)

The interests of property, succession, testamentary disposition, freedom of contractual

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relations, association etc. are also included in the category of private interests.
(ii) Public interests.The main public interests according to Roscoe Pound are
(a)

Interests in the preservation of the State as such; and

(b)

State as a guardian of social interests such as administration of trusts, charitable

endowments, protection of natural environment, territorial waters, sea-shores, regulation of

public employment and so on.
(iii) Social interests.The social interests which need legal protection are
(a)

Interests in the preservation of peace, general health, security of transactions etc.

(b)

Preserving social institutions such as religion, political and economic institutions etc.

(c)

Interests preserving general morals by prohibiting transactions which are against

morality such as prostitution, drunkenness, gambling, etc.

(d)

Interests in conservation of social resources, e.g., natural resources, reformation of

delinquents, protection of economically weaker sections of the society.

(e)

Social interests in general progress including economic, political and cultural

progress. For example, freedom of trade and commerce, freedom of speech and expression,
encouragement to arts and promotion of higher education etc.
(f)

Interests which promote human personality by enabling a person to live political,

physical, cultural, social and economic life to suit his taste and improve his personality.
Pound's Contribution to Jurisprudence :
Roscoe Pound based his theory of social engineering on the assumption that protection
of interests is the main subject-matter of law and it is the duty of jurists to make a 'valuation
of these interests' for the satisfaction of human wants in order to strike a balance between
stability and social change. Thus adopting a functional approach to law, Pound stressed upon
the need for study of law in relation to and as a part of the whole process of social control.
Criticism Against Pound's Theory :
Despite Pound's great contribution to sociological jurisprudence and his emphasis on
studying the actual working of law in the society, his theory suffers from certain drawbacks.
Pound's theory of social engineering has been criticised for the use of the term 'engineering',
which equates society to a factory like mechanism. Law is a social process rather than the
result of an applied engineering. Equating society with a factory is not correct because the
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former is changing and dynamic in nature whereas the latter is more or less static. Again,
Pound's emphasis on 'engineering' ignores the fact that law evolves and develops in the
society according to social needs and wants for which law may either have approbation or
disapprobation.
It has also been argued against Pound's theory of interests that it has no significance in a
pluralistic society where there are linguistic, ethnic, and religious minorities having diverse
interests. Harmonising their divergent interests is by no means an easy task to be performed
through law and courts.
II. Justice Holmes (1841-1935)
Justice Oliver Windell Holmes considered law as a means to protect and promote the
collective group interests as compared with the individual interests. Thus he approached law
in a pragmatic manner adoptingrealistic attitude to analyse its working in the society. He
aptly remarked, life of law has not been logic, it has been experience" which meant that
while determining the law and legal rules by which men should be governed, the lawyers and
Judges must take into consideration the needs of the time, prevalent moral and political
precepts, public policy and the public opinion. Being a Judge of the Supreme Court of
America for over thirty years, Holmes was convinced that Judges can play a significant role
in "turning law to life's needs and satisfaction". Through his monumental work The Common
Law he took sociological jurisprudence across the Atlantic.7
Professor Albert W. Alschuler who wrote Justice Holme's biography writes that Holmes did
not believe in a divinely imposed distinction between right and wrong. He believed in
relativity in all human conduct. According to him, law does not deal with absolutes but has
to be applied according to varying circumstances of the case and a variety of other factors
associated with it.
III. Cardozo : Benjamin Nathan (1870-1938)
Another Judge of the US Supreme Court, Justice Cardozo also viewed law in its sociological
perspective. He totally rejected Austinian concept of logical interpretation of law and his
analytical approach to the judicial process and emphasised on the need to interpret law in the
light of the social necessities and realities of life. In his famous work Nature of Judicial
Process, Cardozo exhorted the Judges to shed aside their subjective approach and apply law
objectively keeping in view the prevailing traditions, customs, morals and needs of the
society. He was primarily concerned with two aspects of law, namely, (1) how the Judges
7

Dhyani S.N.: Fundamentals of jurisprudenceWe Indian Approach (2004, Reprint, 2011) p. 327.

should apply law for deciding cases before them, and (2) how the law grows in society.
According to Justice Cardozo, Judges cannot keep themselves secluded from social
realities and developments in other fields of social sciences which have a direct bearing on
the life of the people. Therefore, law must keep pace with the social developments and shape
itself to the changing needs of society in order to attain the ends of justice 8 and undoubtedly,
Judge's role is crucial in this judicial process. He remarked, "logic, history, custom, utility
and the accepted standards of right conduct are forces which singularly or in combination,
shape the process of law. Which of these forces shall dominate in a given case, shall depend
largely upon the cooperative importance or value of social interests that will thereby be
promoted or impaired. The judge should get his knowledge as legislator gets it from
experience, study and reflection, from life itself.9

Sociological School of law: UK

I. Herbert Spencer (1820-1903)
Herbert Spencer was an English sociological thinker who traced the evolution of society
from simple to the modem complex structure. Thus he gave a scientific exposition to the
organic theory of society. Spencer deduced four sources of law, namely, (i) divine laws
having quasi-religious sanctions; (ii) the injuctions of the past leaders; (iii) the will of the
ruler; and (iv) collective opinion of the society. He pointed out that divine laws are clearly
distinguishable from man-made laws. He considered law nothing more than a hardened
custom. The purpose of law according to Spencer is to resolve the conflicting interests of the
individuals in the society.10
According to Dr. Allen, the essence of Spencer's organic theory lay, "in the inter-dependence
of organism, in its sociological aspect, which means the mental relation of all members of
civilised society and the distribution of a sense of responsibility far wider than can be
comprised with the formula 'sovereign and subject'. It directed attention to the necessity of
considering law in relation to other social phenomenon". 11

Spencer's theory inspired

subsequent jurists to carry further their socio-legal researches and relation of law and society.
8

Cardozo Benjamin Nathan : The

Nature of Judicial Process, (1931) p. 142.

Cardozo Benjamin Nathan : The

Nature of Judicial Process, (1931) p. 142.

10 Spencer Herbert: Principles of Sociology p. 537.

11 Dr. Allen C.K.: Law in the Making (7th ed. 1964) p. 85.

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