Unit 1: SOCIAL BASIS OF LAW

INTRODUCTION & BACKGROUND: LAW & SOCIETY

Sociology and Law

Laws form an integral part of the society as they help in maintaining order, remind us of our rights
and duties and help prevent miscarriage of justice. Every society is bound by a specific set of laws.
Therefore, the combined study of sociology and law becomes inevitable. Law can be rightly referred
to as a social phenomenon as every social institution needs and has a different set of laws
governing them.

American sociologist, Talcott Parsons, in his work shared that law is the essential part of social
control. Hence, in sociology, law is believed to be a mechanism of social control over society. Niklas
Luhmann, a German sociologist, said “All collective human life is directly or indirectly shaped by
law. Law is like knowledge, an essential and all-pervasive fact of the social condition.” Therefore, in
order to study law, one must possess basic knowledge of how society and various social institutions
function.
Sociological Jurisprudence

The main subject matter of sociology is Society. Sociology is the study of society, human
behaviour, and social changes. jurisprudence is the study of law and legal aspect of things. The
Sociological school of Jurisprudence advocates that the Law and society are related to each
other. This school argues that the law is a social phenomenon because it has a major impact on
society. Sociological school of law focuses on studying the law in practice with relation to the
society. They lay emphasis on actual social conditions and situations which require the help of
the law.

Meaning of Sociological school of Jurisprudence: The idea of Sociological School is to

establish a relation between Law and society. This school laid more emphasis on the legal
perspective of every problem and every change that take place in society. Law is a social
phenomenon and law has some direct or indirect relation to society. Sociological School of
Jurisprudence focuses on balancing the welfare of state and individual was realized.
The characteristics of Sociological school of law

1. Sociological School of Law lays emphasis more on the functional aspect of law rather than its abstract
content.
2. They consider law as a social institution essentially interlinked with other scientists and the direct impact of
the law on society with its formation according to social needs.
3. Sociological School of Law completely neglects positivism i.e., the command of sovereign and also
historical jurisprudence.
4. Sociological jurists describe the perception of the law in different ways like the functional aspect of law or
defining the law in terms of the court’s rulings and decisions with a realistic approach of law.
5. The sociological jurists have greater concerns when it comes to the functioning and working of the law
rather than the nature of the law.

The main exponents of sociological jurisprudence are Montesquieu, Auguste Compte, Albert Spencer,
Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is regarded as
‘founding the father of the sociological school of law’.
Law as a social phenomenon
In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal development
lies not in legislation, nor in the juristic decision, but in society itself. ” Law is a social phenomenon and law has
some direct or indirect relation to society. Every problem or concept has two different aspects. One is sociological
view and other is a legal aspect. For example, Sati.

Legal and Sociological aspect of Sati

Sati was the ancient Indian practice of burning the widow on her husband’s funeral pyre.

The legal aspect:

Sati Pratha was first abolished in Calcutta in 1798. A territory that fell under the British jurisdiction. A ban on Sati
was imposed in 1829 in the British territories in India. In today’s time, the practice of Sati is banned under the
Prevention Of Sati Act (1987) which makes it illegal to force or encourage anyone to commit Sati.

The sociological aspect

In today’s era of escalating feminism and focus on equality and human rights, it is difficult and amiss to digest
the ruthless Hindu practice of Sati. Indeed, the practice is outlawed and illegal in today’s India.
 Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of jurisprudence.
He was of the view that the legal process is somehow influenced by the social condition of society. He also
recognized the importance of history as a means for understanding the structure of society. And explained
the importance of studying the history of society before formulating the law for that society.

In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of a nation so
that they should be in relation to the climate of each country, to the quality of each soul, to its situation and
extent, to the principal occupations of the natives, whether husbandmen, huntsmen or shepherd, they
should have relation to the degree of liberty which the constitution will bear, to the religion of the
inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.”
Eugen Ehrlich (1862-1922)

Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of law from
the sociological perspective. Ehrlich considered society as a main source of the law. And by society, he
means “association of men”.

Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or judicial decisions
but in society itself.”

He argued that society is the main source of law and better source of law than legislation or judicial decision.
Roscoe Pound (1870-1964)

Theory of Social Engineering: Roscoe Pound gives the theory of Social Engineering in which he compared lawyers
with the Engineers. Engineers are required to use their engineering skill to manufacture new products. Similarly, social
engineers are required to build that type of structure in the society which provides maximum happiness and minimum
friction. According to Pound, “Law is social engineering which means a balance between the competing interests in
society,” in which applied science is used for resolving individual and social problems.

Social Engineering is the balancing the conflicting interest of Individual and the state with the help of law. Law is a body
of knowledge with the help of law the large part of Social engineering is carried on. Law is used to solve the conflicting
interest and problems in society. He mentioned that everybody has its own individual interest and considered it supreme
over all other interest. The objective of the law is to create a balance between the interests of the people.

For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but on the other side, State
put some restriction on this right. And when the conflict arises between Individual right and State’s restriction, then the
law comes to play its part. And solve the conflict between the interests.
INTEREST THEORY

Roscoe Pound in his interest theory mentioned the ● Public Interest

three kinds of interest. To avoid the overlapping of
the interests, he put boundaries and divide the kinds These are the claims or desires asserted by the
of interests. individual from the standpoint of political life which
means every individual in a society has a
responsibility towards each other and to make the
● Individual Interest use of things which are open to public use. Interest in
the preservation of state.
These are claims or demands involved from the
standpoint of the individual life which consists of ● Social Interest
interest of personality, interest in domestic relations
and interest of substance These are the claims or demands in terms of social
life which means to fulfill all the needs of society as a
whole for the proper functioning and maintenance of
it. Interest in the preservation of general peace,
health, security of transaction’s, preserving social
institutions like religion, politics, economic.
Jural Postulates by Roscoe Pound

Roscoe Pound mentioned the five Jural Postulate and

mentioned that the interest mentioned in these jural 3) Contract: The interest in making the contract and
postulates should be protected and nourished. getting of reasonable remedy or compensation when
his right violate

1)Criminal: An interest of protection from any

intentional aggression. For Example, Assault, 4) Torts: Protection against Defamation and
Wrongful restraint, Battery, etc. unreasonable injury caused by the negligent act of
another person.

2)Law of Patent: An interest of securing his own

created property by his own labour and hard work. 5) Strict Liability: Similarly, In case Ryland v.
E.g. agricultural land, any music or artistic things. Fletcher, Protection of our interest if the injury caused
by the things of another person. It is the duty of
other people to keep his/her things within his/her
boundary and should look after that thing to avoid
injury to other people.
Leon Duguit (1859-1928)

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). He was greatly influenced
by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social
cooperation between individuals for their need and existence.

Social Solidarity

Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength, cohesiveness,
collective consciousness and viability of the society.’ Leon Duguit’s Social Solidarity explain the
interdependence of men on his other fellow men. No one can survive without the depending on other men.
Hence the social interdependence and cooperation are very important for human existence.

The objective of the law is to promote Social solidarity between individuals. And Leon Duguit considered that
law as bad law which does not promote social solidarity.Further, he also said that every man had the right
and duty to promote social solidarity.

For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity.
Sociology of law

Sociology of law studies sociology from the legal point of view. In India, Sociology of law is a recent field of
inquiry. Indian advocates of Sociological jurisprudence are P.B Gajendragakhar, and Upendra Baxi views society
from the legal point of view.

The Sociology of law is the interdisciplinary approach or sub-discipline of sociology. It views the society from the
legal side. And explains the interdependence of Society and law. Sociology law explains the interdependence of
the law and society. Podgorecki has listed the following functions of the sociology of law:

● The sociology of law aims at grasping law in its working;

● it is to provide expert advice for social engineering;
● the sociology of law makes an attempt to shape its studies so as to make them useful for practical
applications; and
● the sociology of law struggles with reality.

Thus, the sociology of law aims at the understanding of legal and social phenomena.
CONCLUSION

One can’t formulate better and effective law without looking and studying the need and structure of society.
For the betterment and harmonious society, we need better and effective laws.

For Example, After the 2012 Delhi gang Rape happened (Nirbhaya Gang Rape), rape laws were amended in
India.

Every problem in Indian has two aspects, one is legal and other is Sociological aspect. like, the legal aspect
of Female Infanticide is in 1795, infanticide was declared to be murder by Bengal Regulation XXI. The British
government took steps against the evil of female infanticide and propaganda the same. And its sociological
aspect is that nature designed both sexes for the perpetuation of the human races. Gender equality and the
empowerment of women were considered one of the eight Millennium Development Goals by the United
Nations Population Fund in 2001.