The sociological
school of thought is among the several theories that were formulated by various
scholars from time to time. The importance of individuals was asserted by
philosophers and thinkers.
The sociological
school of thought came about with the necessity to balance the welfare of the
society and the individual. There was a tendency towards socialization. Thus,
the importance of the society should be considered in light of the individual
and the importance of the individual should be considered in light of the
society. This view was called the sociological approach.
The main focus of the
sociological school of thought is;
·
The actual circumstances which give rise
to legal institutions and which condition their scope and operation and rather
not the ethical content and aim of the law
·
Concerned with man-in-association but
not man in individual
·
It is a protest against the concept of
law as an emanation from a single body of explicit and comprehensive
propositions applicable by accurate interpretations, to all laws, relationships
and conflicts of interest.
·
The sociological jurists look upon law
as a phenomenon, a social function, an expression of human society concerning
the external relations of its individual members.
Development
Montesquieu- he was the first to take into account
the influence of social conditions on the legal process. He had this to say:
‘’law
should be determined by the characteristic of a nation, so that they should be
in relation to the climate of each country, to the quality of each soil, to its
situation and extent, to the principal occupations of the natives; they should
have relation to the degree of liberty which the constitution will bear, to the
religion of its inhabitants, to their inclinations, riches, numbers, commerce,
manners and customs’’[1]
Augustine Comte- he was of the opinion that the
legitimate object of scientific study is the society itself and not any
particular institution of government.
Man has ever
associated in groups and not as isolated individuals, and it was in these
social groups and not isolated individuals that the impulses originated which
cumulated in the establishment of law and government.[2]
Roscoe
Pound
It was while he
was Dean and Carter Professor of Jurisprudence at the Harvard University from
1916 to 1936, that he published a series of articles on Sociological
Jurisprudence.
Pound stated in
his book that; The Sociological Movement in Jurisprudence is a movement in for
pragmatism as a philosophy of law for putting human factors in the central
place and relegating logic to its true place as an instrument.
It’s always busy
in combating the exclusive consideration of any one of these factors and of a
purely logical completeness of the law in particularly and emphasizing the
final act of the balancing of interests.
His thoughts
were formed by a constant confrontation of sociological problems, problems of
legal history and problem of the works of American courts.
This
multiplicity of centres of interests aided Pound to broaden and clarify the
very vast perspective of legal sociology and to develop gradually its different
aspects.
It is not
correct to describe Pound’s attitude as purely pragmatic or utilitarian. He was
not an enemy of abstract philosophy of law.
He was impressed
by certain limitations of legal philosophy which history had constantly
illustrated.
Philosophical
theory is conditioned by the circumstances of time and place. Whole trends of
thought have been coloured by the desire to justify a theory of government, to
solve a pressing problem of government, to solve doubts created by a phase of
social change or to bridge transaction from one order of society to another.
The whole trend
of Pound’s legal philosophy is cautiously experimental, but there is much
warrant in the experience for believing that modesty of objective in social
experiment is more fruitful in the long run. His philosophy is especially one
of a practical compromise.
In his book,
Interpretations of Legal History Pound wrote:
“Law is the body of knowledge and
experiment with the aid of which a large part of social engineering is carried
on. It’s more than a body of rules. It has conceptions and standards for
conduct and for decision, but it has also doctrines and modes of professional
thought and professional rules of art by which the precepts of conduct and
decision are applied and developed and given effect”
According to
pound, sociological jurisprudence should ensure that they are making,
interpreting and applying laws that take into account the social facts. To
achieve this, there should be a factual study of social effects of legal
administration, social investigations as preliminaries to legislation, a
constant study as to making laws more effective.
To him, the
common law still bears the impress of individual rights. To achieve purposes of
legal order, there has to be an organisation of certain interests, a definition
of the limits within which such interests will be legally recognised and given
effect to, and securing of those interests within the limits as defined. In
doing so, the following needs to be done,
1.
Preparation of an inventory of interests
and classifying them.
2.
Selection of interests which should be
officially recognised
3.
Demarcation of the limits of securing the interests so
selected
4.
Consideration of the means whereby laws
might secure the interests when those have been acknowledged and delimited, and
5.
Evolution of the principles of valuation
of the interests.
Theory
of social engineering
Its aim is to
build as efficient structure of society as possible which requires the
satisfaction of maximum wants with the minimum of friction and waste. It
involves balancing of competing interests.
Pound describes
interests as claims or wants or desire (expectations) which men assert de
facto, about which law must do something, if organised societies are to endure.
Pound classified the various interests which are to be protected by law under
three heads: private, public and social interests.
1.
Private interests- they are to be
protected by law and are the individual’s interests of personality. These
include his physical integrity, reputation, freedom of volition and freedom of
conscience.
2.
Public interests- they are claims or
demands or desires asserted by individuals involved in or looked at a
standpoint of political life. They are of two kinds: interests of a state as a jurist person and interests of the state as a guardian of social
interests. They include the integrity, freedom of action and honour of states
personality and claims of a politically organised society as a corporation to
property acquired and held for corporate purposes.
3.
Social interests- these are claims or
demands or desires of thought in terms of social life and generalised as claims
of the social group. They are said to include:
·
Social interest in the general security-
embraces those branches of law which relate to general safety, general health,
peace and order, security of acquisitions and security of transactions.
·
Social interests in the security of
social institutions-comprise domestic institutions, religious institutions,
political institutions and economic institutions.
·
Social interests in the general
morals-covers a wide variety of laws for example laws dealing with
prostitution, drunkenness and gambling
·
Social interests in conservation of
resources- cover conservation of social resources and protection and training
of dependents and defectives.
·
Social interests in general process- has
three aspects namely:
ü
Economic progress= covers freedom of use
and sale of property, free trade and free industry
ü
Political progress= covers free speech
and free association
ü
Cultural progress=covers free science,
free letters, free arts, promotion of education and learning and aesthetics
·
Social interest in individual life-
involves self-assertion, opportunity and conditions of life
For facilitating
the process of evaluation and balancing of these interests, Pound provided what
he called the Jural Postulates of Civilised Society.
Brown
v Board of Education of Topeka[1954]
Pound invokes
this case to substantiate his assertion that the Judiciary is limited in
effecting social change. This is because the Judiciary does not have a
machinery of enforcing its decision. In this case, discrimination against
Negroes in schools was abolished allowing black students to attend similar
schools as their white counterparts. It overturned the Supreme Court decision
in Plessy v Ferguson. Although the Supreme Court decision towards racial
integration, discrimination against the Negros continues in practice in the
United States of America.
CRITICISM AGAINST POUND’S THEORY:
Pound point out the responsibilities of the judge and the lawyer Pounds
contribution to jurisprudence is great. He takes a middle way avoiding all
exaggeration. He speaks of values
but says that they are relative. He emphasises engineering but does not forget
the task of maintaining of balance. His approach is experimental. Pound’s
theory stands on a practical and firm ground and it has inspired great
practical fieldwork. His emphasis on studying the actual working of legal rules
in the society, the importance of social research for good-law making and
pointing out the great constructive function which the law is to perform are is
a very valuable contribution to jurisprudence. He points out the responsibility
of the lawyer, the judge and the jurist and gives a comprehensive picture of
the scope and field of the subject.
Pound’s influence on
modern legal thought is great and the study of the subject is being undertaken
under the light of his theory. Despite Pound’s great contribution to
sociological jurisprudence and his emphasis on studying the actual working of
law in the society, his theory suffers from certain drawbacks.
Pound’s theory of social engineering has been criticised for the use of
the term engineering, which equates society to a factory like mechanism. Law is a social process rather than the
result of an applied engineering. Equating society with a factory is also not
correct because the former is changing and dynamic in nature whereas the latter
is more or less static. Again , pound’s emphasis on engineering ignores the
fact that law evolves and develops in the society according to social needs and
wants for which law may either have develops in the society according to social
needs and wants for which law may either have approbation or disapprobation.
Critics have
criticised the utilitarian in Pound’s theory as it confines the interpretation
of wants and desires to any material welfare of individual’s life completely
ignoring the personal freedoms which are equally important for a happy social
living.
It has also been argued against pound’s theory of interests that it has
no significance in a pluralistic society where there are linguistic, ethics,
and religious minorities having diverse interests. Harmonising their divergent interests is by
no means an easy task to be performed through law and courts. A general
criticism against pound’s theory is regarding his use of the word
‘engineering’, because it suggest a mechanical application of the principle to
social needs, the word “engineering” is used by pound metaphorically to
indicate the problems which the law has to face, the objectives which it has to
fulfil and the method which it will have to adopt for this purposes.
Pound does not give an ideal scale of values with reference to interests. In fact Pound’s himself has admitted that
philosophy has failed to provide an ideal scale of values and that the best
that jurist can do is to proceed with the task of adapting law to the needs of
his generalisation the choice between conflicting ideologies is one for the
community at large. Another criticism against his theory is that emphasis on
engineering ignores an important part of law which develops and evolves in the society
according to social needs the law simply recognises or approves it. This
dynamic feature of law is undermined.
Pound himself has inserted a certain evaluation by describing the
interest in individual life as the most important of all. However, there is a danger of an implicit
evaluation in the grading of interests as individual, public or social. What
are an individual and what is a social interest is itself a matter of changing
political conceptions. Many interests come under different categories. there is
no obligation to respect the personal interests of those who evade the
responsibility of standing for themselves .this attitude results in the
pressure –group theory of government which sees the legislature as a scene of
struggle between competing interests and the cabinet as made up of the
representative of various classes.
Pounds theory shifts the centre of gravity in the legal order from
legislation to court judgements, but the judiciary have its decisions and therefore cannot really do
effective social engineering. Justice can give ad hoc judgements on specific
issues coming up before them but they cannot frame a broad plan for
restructuring society. Of course, a judge can focus attention on a pressing
social problem and through his judgement can create a modern legal principle or
suggest some alteration in the law, but he cannot do what the legislature can
do. Justice without law can result in total lawlessness and arbitrariness. The
rule of law, that is, the view that decisions should beamed by the application
of known rules and principles, was a great achievement of positivist
jurisprudence. To abandon it would be a retrograde step.
Pounds engineering analogy is apt to mislead. What, for instance, is the “waste and
friction” in relation to the conflict of interests? Further, the construction,
for example of a bridge, is guided by a plan of the finished product and the
stresses and strains to be allowed to each part are worked out with a view to
producing the best bridge of that kind in that place. But with law there can be
no plan, worked out in detail, of any finished product, for society is
constantly developing and changing and the pressures behind interests are
changing too. Therefore, the value or importance to be allotted to each interest
cannot be predetermined.
Pound assumed that de facto claims pre-exist laws which are required to
“do something” about them.
Although pound did not
ignore ideals of guidance, he devoted too little attention to them. His
awareness of them is evident in his distinction between “natural law” and
“positive natural law”. According to him, the former is “a rationally conceived
picture of justice and an ideal relation among men, of the legal order as a
rationally conceived means of promoting and maintaining that relation, and of
legal precepts as rationally conceived ideal instruments of making the legal
order effective for its ideal end”. The latter is” a system of logically
derived universal legal precepts shaped to the experience of the past,
postulated as capable of formulation to the exigencies of universal problems
and so taken to give legal precepts of universal validity.’ The view of Dias is
that it would have been preferable if pound had enlarged on the criteria of
evaluating interests instead of developing particular interests. His work has
not much practical impact on account of his sterile preoccupation with
interests and too little attention to the criteria of evaluation.
CONTEMPORARY
SCHOOLS OF SOCIOLOGICAL THOUGHT.
Sociological
school of thought has developed throughout the years as the social structure of
different societies evolved. The roles of institutions have also substantially
changed prompting modern philosophers to advance diverse theories on the effect
on sociology on the philosophy of the law. Monumental factors in history have
also greatly influence the rise of contemporary sociological schools of
thought.
Functionalist
Theory
The greatest
proponents of the functionalist theory are Herbert Spenser (1880-1903) and
Robert Merton (1910-2000). They argue that the society is similar to the human
anatomy as it composes of cooperating parts. Different institutions in the
society perform various functions. The institution act as a living law as they
determine the law as it is applied in everyday life. Law in action might be
very different from the law in books.
Whereas some
believe that the functions are important, a few functionalists consider some
aspects of the society as destructive.
1.
Functions: Institutional practices that are
beneficial to the survival of the society.
2.
Dysfunction: Consequences that is destructive to
the society. They might have been once beneficial but turned detrimental.
Religion may have been important in the past before pivotal scientific
discoveries are made. In this age, some philosophers have argued that science
has killed God in the minds of rational men in that religion may no longer be
serving any positive function in the society.
3.
Manifest
functions: These are the intended and obvious functions
of social institutions. An institution before establishing itself in the
society, must prove to be of relevance in the wellbeing of the society.
4.
Latent
functions:
Unintended or hidden functions of social institution or practices. The
government may be legally mandated to protect the security of the citizens and
to run the economy. Nonetheless, it still performs unintended functions such as
eliminating radical politicians and revolutionists who aim to destabilise the
state and overthrow democratically elected government. Whether this is a
function or dysfunction is subject to a debate.
Conflict
Theory
This theory
emphasises that social divisions are weightier than unity. The society is divided into a number of
groups with discrepancies in resource and power. The different groups are often
in conflict due to the competition for resources to survive. It is the contrast
of cooperation of different social divisions. However, different theorists have
classified the social divisions in different ways.
There are three sources of divisions. First is
the reaction against fundamentalism over emphasis on social harmony. Second is
the continuation of Marx’s and Weber’s focus on division, inequality and
conflict. Third, new studies of social differences such as gender and
ethnicity.
Social
Exchange Theory, Rational Choice
The theory
George Homans (1910-1909) and Peter Blau (1918-2008) was furthered by assumes
that individuals try to interaction in order to obtain maximum personal reward
and minimise costs. All social interaction is structured by reciprocity. They
suggest that people act rationally on the basis of past experiences.
Case Study
Google’s
decision to change google.ps’tangline to
‘’Palestine’’,implicitly recognized it as a state. It also encapsulated a
jurisprudence that harkens back to a world-wide quasi-revolution in law from
100 years ago, called by many at the time, the solution to ‘’crisis of
democracy’’.
Today, that
approach may herald a new period of legal transition as recent technologyand
new economic realities collide with old laws and rights. Larry Page’s decision,
after noting international practice and consulting with international social
and economic organizations (UN, ICANN, ISO), illustrates what was termed
“sociological jurisprudence” 100 years ago. It is worth a closer look because
of its attractiveness to the 21st century mind.
If almost
everyone treats Palestine as a country in all other respects, then that should
settle it. It puts actual practice over law in theory or “law in books” as
promulgated by political entities. Yes, both international law and the UN
Charter calls for territorial integrity
but the fact of the matter is that a people called the Palestinians elect a
government, police themselves, and send and receive diplomats to other
countries. In the sociological
jurisprudence sense, Palestine is a state.
AFRICAN SOCIOLOGICAL JURISPRUDENCE
Functionality should be the running theme while
trying to develop jurisprudence in African countries. The repugnancy clause in
many African states like Kenya, which only allows the application of Customary
law to the extend it does not contradict the written laws, is the main
contributor to the lack of development of African sociological jurisprudence.
The argument against prohibiting the customary laws if they are repugnant to
the written laws which mostly emanated from the western countries is that,
people are more willing and readily assimilate laws that are democratically
passed than those that are imposed on them.
Jurisprudence as
taught in Africa is largely dependent on articles and scholars like Austin and
Kelsen. This is good as it assists in learning process but also it is
inappropriate as it does not respond to the diversity of the African culture.
The knowledge from these great scholars can only act as analytical and guiding
in the formation of African own sociological jurisprudence.
This encourages
lack of indigenous development of jurisprudence that depicts the pluralistic
state of Africa since the existing materials are only analytical.
The two main
arguments in support of the development of a unique sociological jurisprudence
in Africa are that Africa is pluralistic
in nature and the constant developing behaviors in the urban centers.
Critique of the Socialist school of
Jurisprudence
Socialists, especially
Roscoe Pound asserted in his work that the law is an attempt to satisfy, to
reconcile, to canonize. 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.
This shows that for
Pound some interest may be more fully satisfied;that certain interests are
sacrificed for the sake of others is taken for granted as a necessary condition
of social order.
Roscoe Pound fails to'
consider instances where social control is exerted effectively without a
corresponding belief, on the part of the majority, in the morality of law. The
limits of effective legal action may have less to do with the limitations
inherent in law as an institution than they do, for example, in the inclination
of law enforcers or legislators not to enforce the law in its newly prescribed
form. The many instances where law has been used to affect changes which were
at odds with the populace are conveniently overlooked.
Socialists’ adherence
to concrete situations and its concern with the immediate without an
examination of the social structure in which it exists, its tendency to see the
present as the finished and inevitable product of a long process of growth and
concomitantly to guard what is, rather than imagine what might be.
Notes courtesy of KUSOL 2014 Class of jurisprudence, Group 2
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