The sociological school: Ihering, Ehrlich, Duguit and Pound

1. Background

The school grew in the late nineteenth century, when industrialisation produced social problems that the analytical and historical schools could not address. Analytical jurists studied law in isolation; historical jurists looked backward. The sociological jurists asked what effect a law has on society and how law can be used to change it. Auguste Comte, who coined the word “sociology”, supplied the method: observation of society as a whole. Herbert Spencer applied the idea of evolution to social institutions.

2. Rudolf von Ihering

Ihering (1818–1892), sometimes called the father of modern sociological jurisprudence, defined law as “the form of the guarantee of the conditions of life of society, assured by the State’s power of constraint.” Law is a means to an end, and the end is the protection of interests. Society is a struggle of conflicting interests, individual and social; law reconciles them. Ihering stressed purpose (the title of his work is Law as a Means to an End) and the coercive power of the State, and saw two levers by which the State moves people: reward and coercion.

3. Eugen Ehrlich

Ehrlich (1862–1922) said that “the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” He distinguished:

• norms for decision, the rules courts apply in disputes; and
• the living law, the rules people actually follow in their associations (family, trade, village, church), which govern far more of life than the norms for decision ever do.

Positive law is effective only when it corresponds to the living law. The criticism is that Ehrlich blurred the line between law and other social norms, and gave no test to tell them apart.

4. Leon Duguit

Duguit (1859–1928), a French public lawyer, built his theory on social solidarity. Men depend on one another because they have common needs (solidarity by similarity) and different abilities (solidarity by division of labour). Every rule that promotes social solidarity is law; a rule that does not is not. Duguit rejected the ideas of sovereignty and subjective rights: the State is merely a group of persons with the power to govern, bound like everyone else by the duty to promote solidarity. Rights give way to social functions; property is a function its owner must exercise for the good of society. The criticism is that social solidarity is too vague to serve as a test of validity, and that his denial of State sovereignty does not match the facts.

5. Roscoe Pound

Pound (1870–1964), Dean of the Harvard Law School, is the leading figure of the school.

• Law in books and law in action. The jurist must study the actual social effects of legal institutions and doctrines, not only their text.
• Social engineering. The task of law is like that of an engineer: to build a structure of society which gives the greatest satisfaction of human wants with the least friction and waste. Law balances competing interests.
• Interests. An interest is a claim or desire that human beings, individually or in groups, seek to satisfy. Pound classified them:
  • individual interests: personality (body, reputation, belief), domestic relations (parent and child, husband and wife), and substance (property, contract, occupation);
  • public interests: those of the State as a juristic person and as guardian of social interests;
  • social interests: general security, security of social institutions, general morals, conservation of social resources, general progress, and individual life.
• Jural postulates. Each civilised society rests on assumptions (that others will not commit intentional aggression, that promises will be kept, that people will act with due care) which the law must protect.

6. Criticisms of the school

• “Social engineering” treats society as a machine; human interests cannot be measured or balanced like loads on a bridge.
• Pound gives no scale of values to decide which interest prevails when two conflict.
• The line between law and other forms of social control becomes unclear.
• The classification of interests is descriptive of American society in the 1920s and does not fit every system.

7. Influence in India

Indian constitutional law is openly sociological. The Directive Principles in Part IV direct the State to secure social, economic and political justice; Article 38 and Article 39 are statements of social interests in Pound’s sense. Land reform, abolition of zamindari, and labour and welfare legislation are law used as social engineering. The Supreme Court balances individual rights against public interest whenever it tests a restriction under Article 19(2) to (6) for reasonableness. Public interest litigation, in which the Court relaxed standing and procedure so that the poor could reach it, rests on the view that law must be judged by its effects in society.

How this is examined

As an essay: “Explain the sociological school of jurisprudence” or “Critically examine Pound’s theory of social engineering.” As a short note: social engineering, living law, or social solidarity. In the essay spend about half the answer on Pound, with the three classes of interest set out in a list, and finish with the Indian application.