The sociological school: Montesquieu, Ihering, Ehrlich and Duguit

1. What the sociological approach changes

Analytical jurists ask what law is; historical jurists ask where it came from; sociological jurists ask what it does and what it is for. Law is a social institution that must be judged by its effects. The approach emerged in the late nineteenth century, when industrial society and the welfare state made formal, individualist law look inadequate.

2. Precursors: Montesquieu and Comte

• Montesquieu (The Spirit of the Laws, 1748) argued that laws should be relative to the physical character of a country, its climate, soil, size, the way of life of its people, their religion, commerce and manners; the totality of these relations he called the spirit of the laws. He therefore treated law comparatively and empirically, which makes him a forerunner of both sociological and comparative jurisprudence. He is best known for the separation of powers, drawn from his reading of the English constitution.
• Auguste Comte coined “sociology” and proposed a positive science of society based on observation, passing through theological, metaphysical and positive stages. He supplied the method; jurists applied it to law.
• Herbert Spencer and Émile Durkheim (The Division of Labour in Society, 1893) followed. Durkheim’s distinction between mechanical solidarity (based on likeness; repressive, penal law) and organic solidarity (based on division of labour; restitutive, civil law) is the source of Duguit’s theory.

3. Bentham as a sociological jurist

The syllabus lists Bentham under both positivism and sociology. His sociological side is the principle of utility as the test of good law, the view of the legislator as a social engineer who uses sanctions to make private interest serve the public interest, and his insistence on empirical reform. Ihering is often described as having applied Bentham’s utilitarianism to the interests of society rather than individuals.

4. Rudolf von Ihering (1818–1892)

Works. The Spirit of Roman Law (1852–65), The Struggle for Law (1872) and Law as a Means to an End (Der Zweck im Recht, 1877–83). He began as a conceptualist and then turned on conceptual jurisprudence, satirising jurists who lived in a “heaven of legal concepts” detached from life.

Main tenets.

1. Purpose. Purpose is the creator of all law. There is no legal rule that does not owe its origin to a purpose, a practical motive.
2. Interests. Law is the protection of interests. The purpose of law is to secure the conditions of social life. A right is a legally protected interest, which is the origin of the interest theory of rights (see Legal Concepts, rights).
3. Conflict of interests. Individual and social interests conflict; law reconciles them, and its task is to secure the social interest while protecting the individual.
4. Levers of social motion. Society moves its members by egoistic levers (reward and coercion) and altruistic levers (the sense of duty and love). Law is the organised use of coercion by the State.
5. Struggle. Law is not a peaceful growth, as Savigny thought, but the product of struggle between interests; asserting one’s right is a duty to oneself and to society.
6. Law as a definition. Law is the form of the guarantee of the conditions of life of society, assured by the State’s power of constraint.

Assessment. Ihering founded the jurisprudence of interests (Interessenjurisprudenz, developed by Philipp Heck), influenced Pound’s theory of interests, and challenged both conceptualism and the historical school. Critics say he gave no scale to rank interests, and that his emphasis on State coercion conflicts with his sociological starting point.

5. Eugen Ehrlich (1862–1922)

Ehrlich (Fundamental Principles of the Sociology of Law, 1913), working in the Bukovina region of the Austro-Hungarian Empire, where many ethnic groups lived under a common Austrian code, found that people actually followed their own customs rather than the code. Hence his central idea: the centre of gravity of legal development lies not in legislation, juristic science or judicial decision, but in society itself.

• Living law: the inner order of associations (family, village, guild, business) that governs life, as opposed to norms for decision applied by courts.
• Method: study of documents of practice (contracts, wills, articles of association) and direct observation, not only statutes and judgments.
• Criticism: blurs law and other social norms; underestimates legislation as an agent of change; Kelsen accused him of confusing the ought with the is.
• India: the gap between statute and practice in dowry, child marriage and land tenure laws illustrates Ehrlich’s point; so does the persistence of caste panchayats beside State courts.

6. Léon Duguit (1859–1928): social solidarity

Duguit, a French public lawyer (Law in the Modern State, Traité de droit constitutionnel), built on Durkheim and Comte.

1. Social solidarity is a fact. Men live in society and depend on each other through similar needs (solidarity by similarity) and diverse needs exchanged through the division of labour (solidarity by division of labour).
2. The rule of law (règle de droit) follows from this fact: each person must refrain from acts that harm solidarity and do what promotes it.
3. Validity. A statute is valid law only so far as it conforms to and promotes social solidarity. A statute against solidarity is not binding, and he even contemplated a right of resistance.
4. No sovereignty, no subjective rights. He rejected the State’s sovereignty and natural rights as metaphysical fictions. Persons have social functions, not rights; property is a social function, not an absolute right.
5. The State is simply the governors, who must provide public services; their acts are lawful only when they serve solidarity. This shaped French administrative law (service public) and State liability.

Elucidating the validity claim. Duguit replaced the formal test of validity (enacted by the sovereign, or authorised by a higher norm) with a substantive social test. That makes him, curiously, a natural lawyer in structure: there is a standard above enacted law. But his standard is a sociological fact, not reason or God. Criticisms: solidarity is vague and can be invoked by any regime (Fascist corporatism borrowed the language); it gives no criterion for deciding between competing claims of solidarity; and denying individual rights leaves the person exposed to the group. His idea of property as a social function did, however, enter constitutions (the German Basic Law, Article 14(2): property entails obligations) and Indian thinking on land reform and Article 39.

7. The Indian perspective on sociological jurisprudence

• Directive Principles (Part IV) are a sociological programme: social justice, livelihood, equal pay, living wage, protection of weaker sections.
• Public interest litigation relaxed standing and procedure so that law could reach the poor; see Bandhua Mukti Morcha v. Union of India (1984) and the bonded labour cases.
• Judge-made law to meet social facts. In M.C. Mehta v. Union of India, 1987 INSC 261 (Oleum gas leak), the Court refused to be bound by Rylands v. Fletcher and laid down absolute liability for hazardous industries, saying law must grow to meet the needs of an industrial economy. In Vishaka v. State of Rajasthan, 1997 INSC 604, it framed guidelines on workplace sexual harassment in the absence of legislation.
• Social legislation: land reforms, the abolition of untouchability, the Protection of Women from Domestic Violence Act, 2005, and the Labour Codes in force from 21 November 2025 show legislation leading social change, against Ehrlich.
• Writers: Upendra Baxi on social action litigation, and Krishna Iyer J.’s judgments on law and the poor.

How this is examined

For Duguit: Durkheim’s two solidarities, the rule of law, validity, no sovereignty or rights, property as function, criticism. For Ihering: works, the six tenets, assessment. A short note on Montesquieu should mention the spirit of the laws, relativity of law to social and physical conditions, the comparative method, and the separation of powers.