THE Sociological School OF Thought PDF

Preview

Summary

Jurisprudence, or legal theory, is the theoretical study of law. ... Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever fo...

Description

THE SOCIOLOGICAL SCHOOL OF THOUGHT This school of thought is concerned with sociology which is the science of social order and progress. Sociology endeavors to discover and observe the patterns of behavior of people in society. The subject also endeavors to assess the needs of society and looks at the interests of different groups in society. The theorists associated with this school of thought include Ihering, Ehrlich and Roscoe Pound. The approach under this head is that a historical background of the school of thought is given first, then a general statement of what the school of thought states follows, and lastly the specific theories are given. 2.3.1 Historical Background The rise of this school of thought was largely influenced by the industrial revolution of the seventeenth and eighteenth century. Apart from bringing industrial progress, the industrial revolution also brought about inequalities such as the exploitation of workers in industries; the main aim of an industry being maximization of profits, workers were made to work for long hours for very little wages. At the time of the industrial revolution the State was not involved in the private and social affairs of the people; it was a laissez faire scenario that existed. However, the situation of inequalities reached a stage at which it became unmanageable and the state could no longer watch from the side lines; it became interested in matters of the welfare of the people and these included health, education and employment conditions. At this stage it was realized that the state could not promote the welfare of the people without the use of the law. It was realized that society had capacity to change for the better through the instrument of law. 2.3.2 What the School of Thought States The sociological school of thought states that you develop the legal order which fits into a certain type of society. The law cannot be read outside the social context in which it operates. The making of the law, the interpretation of the law, and the application of the law should take into account social factors. Certain societal interests should be recognized and given legal interest. The law is an instrument for serving the needs of society. The real source of law is not the statutes or precedents as positivists say but the activities of the society itself as the law is not immobile but rather dynamic and living. The major proposition of the sociological school of thought theorists is that the law in the books is different from the law in the field. The positivists are content with the law in the books, while the sociological theorists assert that the law in the field is most important. They argue that there should be a sociological study before the passing of any law. It is their contention that the lawyers’ function should not start with law books and end with court decisions; lawyers should widen their perspective of society in order to be effective. The emphasis by this school of thought is that one should not merely be content with what the law is; one should assess the kind of society he is in and suggest laws which could serve the particular society better. 2.3.3 Specific Theories a) Ihering (1818 – 1892) This argument is that the success of any legal process is measured by the degree to which it achieves a proper balance between competing social and individual interests. There is an inevitable conflict between social interests of men and each individual’s selfish interests. Man is in a constant search for good things in society; things such as shelter, food, and pleasure. According to him, the law should be used to control such desires but that at the same time the law should strive to provide equal opportunity to everyone. He argues that it is State’s duty to enact legislation which will balance individual interests against social interests. b) Ehrlich (1862 - 1922) His argument centers on the impact of law in society. He looks at the social basis of law. He says the centre of gravity of legal development does not lie on the legislative juristic science, but in the society itself. The law is derived from social facts and the real source of the law is the activities of society itself. The sociology of law, he argues, must begin with the living law. By the living law he meant the way people regulate themselves in their everyday lives.

He criticized positivists for ignoring the activities and beliefs of the people in the society. He asked the question: ‘how far is the formal law observed?’ He said many disputes that affect individuals inter se are regulated by the living law and not the book law and court decisions. He also argues that the scope of jurisprudence should be enlarged to concern itself with the study of society. According to him, the duty of legislative and judicial authorities is to give effect to the living law. c) Roscoe Pound He starts by saying law is an instrument of social engineering. There are certain interests which a legal system must consider. He identified three such interests: i. Individual interests; ii. Public interests; and iii. Social interests. By individual interests he meant those interests which pertain to someone’s personality such as health, freedom of contract, freedom of belief, and reputation. By public interests he meant interests of society to be politically organized in order to maintain the dignity of the society and protection of such society. By social interests he meant people’s claims to peace and order and safety, security of acquisition of property and social, economic and cultural progress. He emphasized that the law should strive to achieve the maximum satisfaction of human wants or needs; and by human needs he meant the three interests referred to above. His conclusion is that the rigid confines of jurisprudence should be broken down so that the law should strike an alliance with other disciplines such as sociology and politics. The old objective of law of merely keeping peace and order should be done away with. Mulundika and 7 Others v. The People - In this case the court was trying to strike a balance between the need to maintain peace and order, and the need for people to freely express themselves. ‘Zambia’s Elusive Search for a Valid Public Order Act’ in Zambia Law Journal. Vol. 25-28 (19931996)

Striking a balance between law and order, on the one hand, and the constitutional right to free speech and assembly, on the other, has proven to be a contentious issue in independent Zambia. The author examines the historical underpinnings and development of the Zambian Public Order Act, a direct legacy of the colonial government of Northern Rhodesia, which used the law as a pretext to suppress political dissent. The author next compares English and Zambian case law on the issue of public order and argues that Zambian courts have failed to use and follow English case law on the subject in an adequate manner. He traces Zambia's legal decisions on the public order issue, up to the historic Supreme Court decision in Christine Mulundika and Seven Others v. The People, which he analyses in detail. He then examines the government's reaction and the latest amendments (1996) to the Public Order Act. In conclusion, he offers a number of suggestions for those who aspire to draft a constitutional Public Order Act. Notes, ref.

Zambia national holding ltd and unip v ag Sc No.7 of 1994 The appellants brought a petition in the High Court to challenge the decision for the respondent to acquire compulsorily under the Lands Acquisition Act the appellants' land being Stand number 10934 Lusaka which is also known as the New UNIP Headquarters. The President resolved that it was desirable or expedient in the interests of the Republic to

acquire this property whereupon the appropriate Minister gave notice to the appellants of the Government's intention in that behalf and the steps and formalities under the Act for such acquisition were commenced. The appellants wrote to the respondent suggesting a sum of money to be aid as compansation but as it turned out, and as the parties specifically informed the learned trial judge, they wished the question of compensation to be postponed until the court had disposed of the challenge to the legality and constitutionality of the compulsory acquisition. The petition was unsuccessful and the appellants appealed. Held: (i) Although Article 94 of the constitution gives the High Court unlimited jurisdiction that court is bound by all the laws which govern the exercise of such jurisdiction (ii) Statutory instruments only come into force in when made in accordance with the relevant section of Cap 2 and Article 80 of the Constitution (iii) The LandsAcquisition Act did not contravene the spirit and intent of Article 16(1) of the Constitution (iv) The appellants did not discharge the burden which was on them to demonstrate mala fides on the part of the President (v) The acquisition here was not unlawful for want of a prior tender of compensation

Feliya Kachasu v attorney General Miyanda v AG THE State Security Act v Open Society. Does Democracy have secrets by AW Chanda Journal vol. 99 of 1997 The state security act in light of the need of an open society in a democracy. Some of the provisions in the act are legitimate for security purposes. There are some factors that seriously undermine the pillers of a democracy particulariy freedom of expression, transparency and accountablility of government.  The preamble to the Zambian Constitution declares that Zambia will 'uphold the values of democracy, transparency, accountability and good governance. An open society is, doubtless, one that upholds these values. Transparency, accountability and good governance are only possible where there is freedom of expression and therightof the public to know is assured. In this connection, Article 20(1) of the Constitution  State security act Under Section 4 of the Act, it is an offence punishable with up to between fifteen years and twenty-five years imprisonment to retain without permission, or fail to take reasonable care of, information obtained as a result of one's present or former employment under the government or a government contract; or to communicate information so obtained, or entrusted to one in confidence by a person holding office under the government, or obtained in contravention of the Act, to anybody other than a person to whom one is authorised to convey it or to whom it is one's duty to impart it in the interests of the State; or to receive such information knowing or having reasonable cause to believe it has been given in contravention of the Act.  The People v. Fred M'membe, Masautso Phiri and Bright Mwape, 21 three Editors of The Post, the only independent daily newspaper in Zambia, were charged with receiving documents, article or information knowing or having reasonable grounds to believe at the time that the same documents, article or information were communicated or received in contravention of section 4(3) of the State Security Act. The High Court held that the accused had no case to answer as the essential ingredient of knowledge or reasonable ground for belief that the information was covered by the State Security Act had not been proved. Moreover, it had not been proved that the contents of the documents in issue were in fact matters of public security.

Justice Chitengi held that the subject matter of the document, a referendum, could not be said to be prejudicial to public security.  It is submitted that sections 4 and 5 of the State Security Act fail to satisfy the requirements of restrictions prescribed by law. As already noted, these sections are vague, overbroad and do not provide any safeguards against abuse. No procedure for making information available to the public is provided. In Christine Mulundika and 7 Others v. The PeopleM the Supreme Court invalidated some provisions of the Public Order Act, which gave the police broad discretionary powers to regulate public meetings and processions. Chief Justice Ngulube, delivering the judgment of the Court, said inter alia: Fundamental rights should not be denied to a citizen by any law which permits arbitrariness and is couched in wide and broad terms.

Points to consider : from A CRITICAL REVIEW AND ASSESSMENT OF THE SOCIOLOGY OF LAW* Arlene Sheskin

Ehlrich criticism: Ehrich and his followers base their theory heavily in faith. Thus in anaylsing his theory we should not be limited to the nature of law and society. We must look further and criticise the state. He views the state as non coersive. He assumes that state actions are predicted upon the will and needs of the people and the efficacy of the law is dependent upon its correspondence with the majority of inner impulses.  He is not trubled by a state’s continuous increasing role in the administration and creation of law because he views the state as merely a reflection the proclivities of its citizens.  “Those persons who master the learning of decisions achieve a great influence in the development of the law; they become jurists who, occasionally as judges but more often as writers of opinions and counselors determine the course of decisions” (Ehrlich, 1922:134).  Only in a world where power is viewed benignly and is not associated with force or coercion can one rest content with such a statement.  One who eschews the assumption of general interests which are naturally or neutrally determined and then reflected in law is prompted to inquire which members of society master the learning of decisions, whether those who achieve great influence are members of a particular strata, and of course, the paramount question, the degree and extent of their influence. As we have seen, the fact that these questions remain unanswered tells us more about Ehrlich's assumptions about the world than it does about the importance of such concerns. Pound while Pound and Ehrlich shared fundamental assumptions about the nature of law, Pound's assumptions were somewhat more complex in that he, at least, recognized the competing interests with which the law deals. The law is an attempt to satisfy, to reconcile, to hannonize. To adjust these overlapping and often conflicting claims and demands, either through securing them directly and immediately or through compromises of individual interests so as to give effect to the greatest total of interests or to the interests that we~ most in our civilization, with the least sacrifice to the scheme of interests as a whole (Pound, 1943:39).  Here we see the law as a reified, neutral, mediative agent in a pluralistic world. From this perspective, the full satisfaction of interests is not so important as the fact that the effort towards satisfaction is made. This effort is the salient feature of. l~gal

institutions in Pound's work. That certain interests are sacn~l~ed for the sake of others is taken for granted as a necessary con~lt10n of social order. That some interests may be more fully satisfied than others posed no problems for Pound.  We have seen that when such assumptions are eschewed the law appears very differently. In short, critical analyses oflaw have shown that law does not naturally or neutrally reflect the interests of the populace-that it is more likely to be determined by and reflect the interests ofthe economically dominant classes. As such, legal change is not dependent upon scientific knowledge and ...