Sociological School OF Jursiprudence PDF

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NAME- DARSHAN MS SUBJECT-JURSIPRUDENCE CLASS- 1ST YEAR LLB ROLL NO-19DBLBT015 TOPIC - SOCIOLOGICAL SCHOOL OF JURSIPRUDENCE

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PROF SHIVANI RAJESH

TABLE OF CONTENTS

 INTRODUCTION

 FACTORS LEADING TO GROWTH

 LEON DUGUIT

 SOCIAL SOLIDARITY

 SOCIALOGY OF LAW

 CRITICISM

 CONCLUSION

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SOCIOLOGICAL SCHOOL OF JURSIPRUDENCE INTRODUCTION My topic in the sociological school of jurisprudence is about the philosophers who talked about the sociology of schools and public law in that time. Sociology school means school which considers the law as social phenomenon and studies about the law in relation to society or public.Comte was the first writer to use the term sociology which he described as a positive science of social facts.Subsequently, writers and jurists tried to find a link between sociology and law. The sociological method necessarily undertakes the widest possible range of investigation of the facts and laws of social groups, ancient as well as modem, irrespective of the degree of civilization which they have reached, so as to secure a sounder scientific theory of juridical institutions than has yet been attained. The philosophers under sociological school are : Montesquieu (1689-1755) August Comte (1798-1857) Herbert Spencer (1820-1903) Ihering (1818-1898) Eugen Ehrlich (1862-1922) Leon Duguit (1859-1928) Roscoe Pound (1870-1964)

FACTORS LEADING TO GROWTH OF SOCIOLOGICAL SCHOOLS 1.

Nineteenth-century witnessed a shift in emphasis from the individual to the society. This happened as a result of the consequences of the laissez-faire doctrine.

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The historical school which was a reaction to the intense individualism of the nineteenth century by its emphasis on the Volkgeist spirit of the people-indicated that law and the social environment in which develops are intimately related. This idea was worked out by jurists of sociological school.

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Prior to the nineteenth-century matters like health, welfare, education, etc were not the concern of the state. In the nineteenth century, state, because of the adverse effects of laissez-faire became more and more concerned with numerous matters encompassing 3

almost all aspects of life and welfare. This implied regulation through law, which compelled legal theory to readjust itself so as to take account of social phenomena. 4.

It was established as a reaction against too much theorizing in law. By this time, the shortcomings of purely formal analysis were being felt.

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Revolutions and social unsettlement provoked chaos about the shortcomings of law. Sociological jurists wanted to overcome these shortcomings.1

LEON DUGUIT Leon Duguit (1859-1928) was a French jurist who made a substantial contribution to the sociological jurisprudence in the early twentieth century. He was much influenced by Auguste Compte’s theory of law as a fact which denounced individual rights of men and subordinated them to social interest. Compte pleaded that the only right which man can possess is the right always to do his duty. This formed the basis of Duguit’s legal theory. Duguit was also influenced by the Durkheim’s work “Division of Labour in Society” which was published in 1893. Durkheim made a distinction between the two kinds of needs of men in society. Firstly, the common needs of the individuals which are satisfied by mutual assistance, and secondly, the diverse needs of individuals which are satisfied by exchange of services. Therefore, the division of labour is the most important fact which Duguit called as “social solidarity. Leon Duguit criticized the traditional notions of state sovereignty and law and sought to make a new approach to matters of social jurisprudence from the angle of society. Duguit propounded a natural law theory with strongly sociological overtones. His objective was to overthrow the traditional system of legal rights by system of his own that would recognize only legal duties . To Leon Duguit a state is not a person distinct from individuals. He was favour of a strong check on the abuse of state power through the principles of strict state responsibility. Duguit rejects the notion of the personality of state and says that a realist examination shows merely that certain persons govern and others obey. Law must limit a state. Duguit says that a rule becomes law even before it is recognized by state provided it has behind it the effective support of the community. A state cannot claim any special position or privilege. It is not a mystical entity but an organization of men that can only be justified do far it furthers social solidarity. 2 Duguit considered notion of sovereignty as meaningless. As the attribute of a monarch was personal so it was considered inappropriate and empty. When decentralization makes it difficult to locate sovereignty.Duguit told that when the state ceases to the further cause of social solidarity there was a duty to revolt against it. To Duguit law 1 https://www.legalbites.in/sociological-school-jurisprudence/ 2 https://www.sociologyguide.com/sociology-of-law/leon-duguit.php

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arises because men live together and can only live together. Law does not depend on the will of the ruler. Land and foot bind the ruler by law that he cannot change. The social function of law according to Duguit is the realization of social solidarity. According to Duguit social interdependence is an inescapable fact of human existence. Duguit regarded social solidarity not as a rule of conduct or imperative but a fundamental fact of human existence. The social solidarity gets converted into a normative principle under Duguit's rule of law and this rule of law demands from ever body that he must contribute to the full realization of social solidarity. The rule of law has to establish definition, limitation on the power of all governing authorities. As a consequence no statue or administrative order is valid which is not in consonance with the principle of social solidarity and social interdependence.

SOCIAL SOLIDARITY Social Solidarity is the spirit of oneness. The term ‘Social Solidarity it represents the strength, cohesiveness, mutual consciousness and viability of the society.’ Social solidarity emphasizes the interdependence between individuals in a society, which allows individuals to feel that they can enhance the lives of others. It is a core principle of collective action and is founded on shared values and beliefs among different groups in society. Leon Duguit’s Social Solidarity explains the interdependence of men on his other fellow men. No one can remain without depending on other men. Hence the social interdependence and cooperation are very important for human existence. The purpose of the law is to promote Social solidarity between individuals and men. And Leon Duguit felt that law as bad law which does not promote social solidarity and social interest . Moreover, he also concluded that every man had the right and duty to promote social solidarity. In India, the codified laws are followed by each and everyone. Hence, it promotes Social Solidarity. Duguit went on to say that when the state has stopped promoting social solidarity, it has a duty to rebel against it.

The interdependence of men is a fact, but `` social solidarity '' is an ideal: because, in the first place, it becomes a question of personal evaluation when the question to be decided is whether a certain behavior is favorable (favorable) to social solidarity or not. Does a law that imposes or prohibits racial segregation (discrimination) promote social solidarity? It is difficult to see how to respond objectively and in any other way than in light of political, religious and moral evaluations. Second, who should have the social solidarity assessment? There is evidence that the forces of social disruption are as powerful as those of solidarity. It seems that Duguit unfortunately fell into the mistake of expanding a limited truth into an absolute.

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SOCIOLOGY OF LAW The sociology of law analyzes sociology from a legal point of view. In India, the sociology of law is a recent area of research. Indian defenders of sociological jurisprudence are P.B Gajendragakhar, and Upendra Baxi looks at society from a legal point of view. The sociology of law is the interdisciplinary or sub-disciplinary approach to sociology. It also views society from the legal side. And this demonstrates the interdependence of society and the law. Sociology law explains the interdependence of law and society. Podgorecki listed the following functions of the sociology of law: 1. The sociology of law aims to understand the law in its functioning; 2. This is to provide expert advice in social engineering; 3. The sociology of law attempts to shape its studies to be useful for practical applications; 4. The sociology of law struggles with reality. Consequently, the sociology of law aims to understand legal and social phenomena, while the central concern of the traditional approach of jurisprudence is to attempt analytical-linguistic studies.

CRITICISM AGAINST DUGUIT’S DEFINITION

Duguit’s definition is criticised on many grounds – •He excluded the notion of ‘right’, from law. This is not a correct view. •Because he relegated the sovereign to the status of an agency, simply endorsing the popular acceptance, Whereas in reality the sovereign is still the ‘electron’ in the atom of the state. •Because the term ‘social solidarity’ is very vague and it can be interpreted toserve almost any end (as was done by fascists.)There are no rules or tests to determine the ‘social solidarity’. It involves a question of ‘justice’ and ultimately it turns into a principle of ‘natural law’. Thus the 6

definition of law as a ‘social fact’ is vague and confusing. The merit of this definition(which entitles it to be called ‘sociological’) is that it emphasizes the fact that law is essentially the product of social facts

CONCLUSION In the last three decades, sociological jurisprudence has engaged in India on a macrocosmic scale. The need for studying law on nature of socio economic reality is very important. Legal scholars, judges, jurists all have emphasized the importance of relationship of law, society, and social laws. Leon Duguit stated that social law and men have to go in hand to hand. Leon Duguit refutes the doctrine of state sovereignty and considers the state merely as an expression of the will of individuals who govern. • The unity of state is not inconsistent with the collectivist associations. • Law is only an embodiment of duties which an individual is supposed to perform as a part and parcel of the social organization for further once of social solidarity. • He contemplates gradual withering away of the state and its replacement by groups or associations which are engaged in the service of the society.

DUGUIT’S CONTRIBUTION Despite defect and weakness In Duguit’s theory, his contribution and influence were great. His approach is very comprehensive and sincere. Though his theory ultimately becomes a theory of natural law, or a theory of justice, what we find in it is perfectly in social terms and derived from social facts. He shaped a theory of justice out of the doctrines of sociology. Many later jurists, though proceeding from different 22 premises, reached similar conclusions as duguit had reached7 (especially about the state, right and public and private law). National socialists and soviet jurists both adopted many of the principles from Duguit’s theory but interpreted it in such a way as to suit their purpose or took only such part of the theory which supported their activities. Inspired by Duguit’s emphasis on the importance of ‘group’ many later jurists such as Hauriou and Renard propounded ‘Institutional theory’. Though Duguit’s theory holds well hardly on any point, he is credited for his original and comprehensive approach which inspired many jurists to propound new theories.

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