Sociological school of Jurisprudence

CONTRIBUTION OF IHERING TO SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

SUBJECT: JURISPRUDENCE

SUBMITTED BY: KRITIKA MISHRA

SECTION - B
ROLL NO. - 78
SEMESTER - V

SUBMITTED TO: DR. KAUMUDHI CHALLA

SUBMITTED ON: OCTOBER 8, 2015

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH
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Sociological school of Jurisprudence

DECLARATION

I hereby declare that this project report titled

CONTRIBUTION OF IHERING TO SOCIOLOGICAL SCHOOL OF
JURISPRUDENCE
is written by me and is my own effort and that no part has been plagiarized without
citations.

KRITIKA MISHRA
DATED : 08/10/2015

CERTIFICATE
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Sociological school of Jurisprudence

This is to certify that KRITIKA MISHRA, SEM V, BALLB(Hons.) has successfully
completed her Research project Titled Contribution of Ihering to Sociological School of
Jurisprudence under the guidance of

Dr. KAUMUDHI CHALLA, Faculty of

Jurisprudence, HNLU, Raipur.

Dr. KAUMUDHI CHALLA

Faculty of Jurisprudence
HNLU, RAIPUR.

Sociological school of Jurisprudence

ACKNOWLEDGEMENTS
I would like to place on record a special thanks to Dr. Kaumudhi Challa, faculty of
Jurisprudence, for her personal care, timely suggestions, critical evaluation and creative
guidance throughout this project research and with whose help the practical realization of
this project has been possible.
The other person I owe a great deal of gratitude is to the Vice Chancellor of this University,
Dr. Sukhpal Singh for providing extensive database resources in the Library and through
internet.
Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

KRITIKA MISHRA
SEM V
BATCH XIII
SECTION- B
ROLL NO. 78

CONTENTS

Sociological school of Jurisprudence

INTRODUCTION.......................................................................................................VI
RESEARCH METHODOLOGY.......................................................................VII - IX
EVOLUTION OF SOCIOLOGICAL SCHOOL OF JURISPRUDENCE......10-14
Growth of the sociological school of Jurisprudence
Sociological Jurisprudence as per few Renowned Jurists
Sociological Jurisprudence : Area of Study
Methods adopted by Sociological school of Jurisprudence
IHERINGS CONTRIBUTION TO SOCIOLOGICAL SCHOOL..................15-20
Rudolf von Jhering : Life and Works
Rudolf von Jhering: Law and Social Purpose
Coercion : an important element
Levers of Social Motion
Conditions of Social Life
CRITICISM OF IHERINGS THEORY..........................................................21-22
CONCLUSION.........................................................................................................23
BIBLIOGRAPHY.....................................................................................................24

INTRODUCTION
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Sociological school of Jurisprudence

Law is the sum of the conditions of social life, in the widest sense of that term, as secured by the
power of the state through the means of external compulsion"1
With the passage of time, the way of understanding law and viewing it differed. 2 Coming from
Natural School to Positivism and the respective schools of thoughts therein, the definition of law
is done differently in different schools. As a result, the dissatisfaction to the definition provided
by the jurist of one school has led to the definition of law from a different viewpoint and a
different level of understanding, bringing about the emergence of new school of thought.
However, this notion does not necessarily connote that the failure of one school led to the rise of
another school. Sociological School of thought thus is a continuation of enquiries into the idea of
law which has started from the dissatisfaction in viewing the law from the perspective of
Historical School of Thought. Sociological School thus is an outcome to the rejection of the
concept of law as a growth conceived by a national will which is highly central to the idea that
historical and evolutionary analysis of past can help understand the law of present.
Despite the fact that Historical School of law also accepts law as found, it disregarded the
importance of the existence of heterogeneous society where customs may not be Iherings
concept of law being associated largely with society and societal needs and behaviors, he is
categorically being placed under sociological school of thought, and regarded as one of the
prominent propound of this school. In many areas of social transactions custom may not
necessarily be present at all. For example, the law governing negotiable instrument, money
laundering, terrorism etc. have not developed from custom and that legislation progressive
society. This was highly disregarded by the jurist of historical school, making jurist to view it
from a different sociological perspective, beyond the standards of custom and manifested
national will.

1 Stone Julius, Human Law and Human Justice, Maitland Publications Pty. Ltd. , Sydney, NSW , 157,
available at http://books.google.com.au/books?id=TP
2 Calabresi Guido, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of
Body Parts, Yale Law School Legal Scholarship Expository, Faculty Scholarship Series, (2003), 2113.
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Sociological school of Jurisprudence

RESEARCH METHODOLOGY
ISSUE:
The study of the relevance of Sociological School in the science of Jurisprudence and the
contribution of Ihering to this school of Jurisprudence

RATIONALE:
The sociological schools idea of law is a continuation of the persistent process of enquiry into
the origin of law as begun by the historical school. This view of the sociological school is in
tandem with the knowledge of law with regard to society : what it is doing; what it has done; and
it is expected to be doing. The sociological school carry forward the mission of the historical
school and reject the formal and logical idea of law according to the positivists on the ground
that the formal law presents only a partial portrait of the law. Thus these points prove the
rationale behind the study of the sociological school of Jurisprudence with special emphasis on
the study of one of its main propagators Ihering who is also known as the father of sociological
Jurisprudence by a few.
.OBJECTIVES:
To study the evolution and development of Sociological School of Jurisprudence.
To mainly study Iherings contributions to this school of Jurisprudence along with a few other
jurists .
To analyse Iherings theory by acknowleging the criticisms faced by him in his study related to
sociological school of Jurisprudence.

HYPOTHESIS :
Even after facing a few criticisms, Iherings theory on sociological Jurisprudence rightly
establishes the purpose behind formation of this school and the relation of law and jurisprudence
with the society.

SOURCES OF DATA
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Sociological school of Jurisprudence

This research project is qualitative doctrinal in nature. It is largely based on secondary &
electronic sources of data. Books & other reference as guided by the faculty are primarily
helpful for the completion of this project.

REVIEW OF LITERATURE
Mahajan V.D. , Jurisprudence & Legal Theory, 5 th Edn. (2012) , Eastern Book Co. The
present work attempts to explain the legal concept and theories of law including its sources in
simple and understandable language. It is a detailed analytical work on the subject givivng due
consideration to the recent developments and latest research in the field. The chapters have been
devoted to study the nature, scope, classification and teachings of various schools of
jurisprudence. The book is complete with full critical analysis of the subject containing various
views of the distinguished jurists arranged under appropriate heads on all the basic concepts
which underline most systems of law.
Eugen Ehrlich, Fundamental Principles of the Sociology of Law, Volume 5 , Harvard
studies in jurisprudence ,Transaction Publishers, 1962
This book contains in it the most recent contribution to the series of translations of continental
master-works on legal philosophy, edited by a Committee of the Association of American Law
Schools, is the first volume of "Der Zweck im Recht," by Rudolph von Ihering, translated under
the title of "Law as a Means to an End." "The fundamental idea of the present work consists in
the thought that purpose is the creator of the entire law, that there is no rule which does not owe
its origin to a purpose, i. e., to a practical motive." In these words, we have the kernel of von
Ihering's philosophy of the law.

Mnica Garca-Salmones Rovira, The Project of Positivism in International Law, Oxford

University Press (Oxford : 2013)
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Sociological school of Jurisprudence

In this work the authors seek to explore and develop Luhmann's claim that jurisprudence is part
of law's self-description; a part of the legal system which, as a particular kind of legal
communication, orientates legal operations by explaining law to itself. This approach has the
potential to illuminate many of the interminable debates amongst and between different schools
of jurisprudence on topics such as the origin and/or source of law, the nature of law's
determinacy or indeterminacy, and the role of justice. From this beginning, the book goes on to
offer a sustained and methodical application of systems theory to some of the traditional forms of
jurisprudence: natural law and its relationship with legal positivism, Dworkin's version of natural
law, Kelsen's version of legal positivism, and Critical Legal Studies. This application of systems
theory alters our perception of jurisprudence and better enables us to understand its role within
law.

Sociological school of Jurisprudence

EVOLUTION OF SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

Sociological Jurisprudence has a long and distinguished history and can be traced as far back as
the writings of Hume who in "A Treatise on Human Nature" argued that law's origin did not lie
in a peculiar common conception of human nature at all.
According to Hume, law owes its origins to social conventions and was in itself a developing
social institution. In addition to Hume's start on describing law as a social phenomenon,
Montesquieu put forward the idea that law originated out of social custom and good laws
therefore had to be in accordance with the spirit of the society. Other jurists over the years like
Weber, Durkheim, Pound, Comte and many more also contributed to this school of thought
forwarding various views on how law can be understood in the wider context as a social
phenomenon theoretically, but also drawing on real and independent studies of society.
Sociological School thus can be referred to as a reflection to the relationship between sociology
and law and the respective interactions. However, this school of thought is not about how a
sociologist would look at law. Rather, it is about how a lawyer would look at law from a
sociological perspective.3

Growth of the sociological school of Jurisprudence

The Historical jurisprudence of the earlier part of the 19th century became subject to the
influence of the developing social sciences, which attempted to explain law in its social context.
The result was the emergence of a sociological school of jurisprudence.
The most eminent pioneers and champions of 20th-century sociological jurisprudence
were Roscoe Pound in the United States and Hermann Kantorowicz in Europe. For both, the task
of sociological jurisprudence, though orientated mainly to practical administrative or legislative
problems, included that of framing hypotheses (as to the limits of effective legal action, for
example) on which to base general laws of the operation of law in society.
3 James A. Gardner, The Sociological Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1 (1961)
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Sociological school of Jurisprudence

An outstanding figure of the early sociological school was a German, Rudolf von Jhering, who in
the 1860s contributed to the intellectual stream a theory of justice predicated on a view of law as
a social phenomenon. He saw law as an outcome of the struggle of individuals and groups to
fulfill their purposes and of the force that they marshal behind this.
Another historical jurist, the German Otto von Gierke, stirred a related interest with his emphasis
on the importance of the inner life and activities of groups and associations as sources of binding
social norms. This opened up jurisprudence to some psychological issues. Gierkes work also
contributed to the subsequent American neorealism through its influence on Oliver Wendell
Holmes, Jr., and to the theory of the living law of the Austrian jurist Eugen Ehrlich in the first
decade of the 20th century. Ehrlich insisted on the profuse norm-creating activities of the
countless associations in which people are involved.

Sociological Jurisprudence as per few Renowned Jurists

According to Dias,4 a lawyers sociological perspective of law has necessarily assumed four
forms:
1.
2.
3.
4.

There are inquires which seek the social origin of Law and legal institutions.
There are also examinations of the impact of Laws on various aspects of society.
There are other inquires which deal with the task which laws should perform in society.
An attempt to find some form of social criterion by which to test the validity of Laws.

4 Dias, R. W. M. 1970, Jurisprudence, Butterworths (London).

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Sociological school of Jurisprudence

Furthermore, according to Professor Freeman,5 central propositions of sociological jurisprudence
may include:
1. Belief in the non-uniqueness of law: a vision of law as but one method of social control
2. Rejection of a jurisprudence of concepts, i.e. jurisprudence should care more about the
practical purposes of law rather than being obsessed with formal logical analysis. Rejection
of the idea that law is a closed logical system.
3. Skeptical about law in textbooks and are concerned about "law in action".
4. Espouse relativism, thus reject the belief of naturalism that an ultimate theory of values can
be found.
5. Reality as socially constructed, therefore no natural guide to the solution of many conflicts.
6. Importance of harnessing the techniques of social sciences towards creation of more
effective science of law.
7. Concern with social justice, but views differ on how to attain.

Sociological Jurisprudence : Area of Study

There is no consensus and common thinking that can readily be identified as the central approach
to sociological jurisprudence because of the wide range of areas of studies that have influence on
the development of this school of thought. However, there are some core basic assumptions
which characterize the thinking of a good proportion of sociological jurists including the
following ideas:
Law is only one of a number of methods of social control and as such it is not unique in its
function and place in society.

Law must be seen as being open to modification through the influence of various social

factors as law is not a closed system of standards and structures that are purely legalistic.
Sociological jurists tend to emphasize more on the actual operation of the law arguing
that this is where the real nature of the law may be seen rather than in theoretical and
academic sources.

5 Freeman, M.D & Lloyd of Hampstead, D.L, Lloyd's introduction to jurisprudence. Sweet & Maxwell,
(London : 2001), 659.
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Sociological school of Jurisprudence

Sociological jurists disagree with the approach of the Natural Law schools that rely on
absolute values as the basis of law. Instead the Sociological Jurists take a relative

approach and regard law as a socially constructed reality.

Sociological jurists also disagree with the command notion of law favored by the
analytical jurists who see law as a set of enforceable norms set down by an identifiable
sovereign. As far as most sociological jurists are concerned, law bases itself in social
customs that governments must enforce. So, there are numerous worthwhile theories that
can be looked at and common features that can be observed. For the purposes of this note,
certain prioritization has to be made to cover some of the core theories within the school
of thought. It is therefore necessary once more to select proponents of sociological
jurisprudence to study the development of the theories.

However, the rationale for this study lies in the fact that they all viewed sociological
jurisprudence as describing and explaining how the law changes in society and advanced some of
the most influential concepts in this school of thought without which any discussion of the theory
would be inadequate.

Methods adopted by Sociological school of Jurisprudence

As with the social sciences, the principal methods available to sociological jurisprudence are
surveys, statistical analyses, comparative observations, and experimentation. The controls and
corrections available usually fall far short of those of the natural science models. Much work in
sociological jurisprudence merely brought to bear upon the law relevant findings from other
social sciences. But it may also generate its own findings, as it did in relation to traffic laws,
control of moneylending, credit unions, bankruptcy laws, the effect of antitrust practices or of
poverty on legal rights, the theory of appellate judicial decision making, and a host of other
matters. Examinations of the prehistory and aftercareers of convicted criminals and of persons
on probation or parole, probings of family and environmental influences bearing on potential
deviance, and attempts to identify decisive factors predictive of future deviance have been
among the staples of sociological jurisprudence.

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Sociological school of Jurisprudence

Sociological jurisprudence is confronted by the questions whether (and, if so, how and how far)
it is possible through empirical methods to approach central issues of social action that involve
value judgments. The fact that lawyers are necessarily involved with ideas of obligation, values,
and norms sharpens this confrontation.
A second group of problems arises from the high level of individuality of persons, groups, and
societies, from the unending variety of their emotions, roles, and expectations, and from the
feedback effects on human behaviour that the empirical observation and testing of that behaviour
brings about.
These problems give central importance to efforts to develop frames of social knowledge that
give due place to both facts and values. Such inquiries show the great complexities of values
held and their intricate and dynamic relation to the physical and cultural environments.
The study of law in society thus shares with anthropology and other social sciences a central
interest in roles and functions as basic meaningful categories and in certain mechanisms and
channels whereby conduct is thought to become socially meaningful. These notions are thought
to permit the analysis of complex social situations into more refined terms, such as constituent
goals, tasks, expectations, and allocated rights, powers, and duties.
As to the mechanisms or channels through which conduct becomes socially meaningful, earlier
thought tended to explain social norms as built up from individual instances through group
usages and mores that then crystallize in institutions such as law. Insofar as this suggests a
cumulative movement or process, current thought would regard it as oversimplified. The growth
of socio-ethical convictions is rather to be seen in terms of symbolic interaction between
individuals. A particular society may be seen, in this light, as a collection of individuals with a
culture that has been learned by symbolic communication from other individuals back through
time, enabling members to gauge their behaviour to each other and to the society as a whole.
.

IHERINGS CONTRIBUTION TO SOCIOLOGICAL SCHOOL

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Rudolf von Jhering : Life and Works

Rudolf Von Ihering, most popularly spelled as Ihering was born in 22nd August, 1818 in Aurich,
Germany. He is also known as the Father of Sociological Jurisprudence and is known for his
teachings in Social Utilitarianism and Roman law. The philosophy of social utilitarianism
however, highly differed from that of Jeremy Bentham (advocating law as means to an end)
despite the fact that American Lawyers termed Ihering as German Bentham. This sort of the
similar recognition came from the very fact that they understood the respective context of
transition in their country in the same line and also suggested the similar level of correction to
the legal complexities arriving in that particular time. However, difference of Ihering compared
to Bentham is Ihering rejects hedonism and eudemonism as he believes the nature of people is to
reject the pain. He finds no shortcuts as to compare the competing purposes like Benthams
Calculus of Hedonism.
Ihering had taught Roman law at Giessen from 1852-1868 and Gottingen from 1872. This also
included his teachings at other four universities. In between the duration of 1852-65, his most
ambitious work was released i.e. Geist des romischen Rechts (The Spirit of the Roman law)
where he linked the essence of social change to Law by studying in particular the law of
possession and expressing Law as serving certain purpose. It was commendable of Ihering to
study the Roman law as existing law, trace out the historical development; find out the history
was all of value for all time. However the Roman law had no universality in one hand and at the
other hand it was never complete, allowing more and more innovation and change. In the last
part of the work, which appeared of the spirit, he found the treatment of law to be of logical
categories where law came to serve certain purpose which was one determining outcome but his
law could not be content to expound the fundamental doctrines under the critics of the ancient
law. It was then the Zweck in Recht written that freed German legal thought from the usurpations
of philosophical systems. His main works include Kampf ums Recht ( The struggle for law),
1872, translated into English in 1879, his lectures on Geist des romischen Rechts, Geist des
romischen Rechts auf den verschiedenenStufen seiner Entwicklung (1852-1865), Der
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Sociological school of Jurisprudence

ZweckimRecht ( Law as a means to an end, 1877-1883), which reflected the intellectuality of
Ihering and Jurisprudenz des taglichenLebens 1870 translated to English in 1904.

Rudolf von Jhering: Law and Social Purpose

Generally credited as being the father of sociological jurisprudence, Ihering's theory of law bases
itself on social interests. In short, for Jhering, law exists to serve social interests. Law according
to Ihering is: "the sum of conditions of social life in the widest sense of the terms as secured by
the power of the state thorough the means of external compulsion".
For Ihering, law is but a part of human conduct and it is only on instrument for serving the ends
of society, its purpose is its essential mark which it is to further and protect the interest of the
society. Ihering advocates that the standard of the law is not the absolute one of truth but the
relative one of purpose. Thus purpose is the basic aspect of law to realize, protect, promote as
well as to serve, satisfy and secure the interest of society. Purpose has been identified by Ihering
as the motivating incentive of the human will. According to him human conduct is determined
not by a because but by a for. In substance, Ihering came to the final conclusion that the
dominant motivation in the exercise of human will is the notion of purpose which he terms, the
law of purpose.
The problem of society is to reconcile selfish with unselfish purposes when there is clash
between these two purposes the selfish purpose has to be suppressed. Ihering stressed that law
doesnt exist for the individual as an end in himself, but serves his interest with the good of
society in view

Coercion : an important element

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Sociological school of Jurisprudence

Ihering highlights the role of coercion (external compulsion) in securing the purpose of the law
which is the condition of social life. For Ihering, law consists of those rules laid down by society
that have coercion. This notion of coercion is similar to the notion emphasized by command
theorists. Since the state is the sole possessor of coercion in society, it is the only source of law.
The criterion that distinguishes law from ethics and morality therefore lies in the fact that Law is
recognizable and realizable due to the force of the state.
To reconcile conflicting interests of society vis--vis individual, the state employs methods of
reward by enabling economic wants to be satisfied and also the method of coercion. For instance,
economic wants of man must be satisfied. Therefore, society in larger interest puts such social
control which may reduce the quantum of profits this can be done both by means of reward and
by coercion which is called law. Law therefore, is coercion organized in set form by the state. It
is a process to achieve a proper balance between social and individual interest. It is through two
impulses coercion and rewards that society compels individual to subordinate selfish individual
interests to social purposes and general interests. The natural impulses or duty of love i.e.
ecological instincts of services and sacrifices also makes man to serve social ends.
However, unlike command theories, Ihering goes further in identifying coercion as the outer side
of law while he states that norms make up the inner element of law. The norm is a proposition of
a practical kind (or rule) in as much as it is a direction for human conduct and Ihering describes
it as an abstract imperative. Abstract imperatives in the ethical world order which Ihering
describes are social imperatives such as law, morality, ethics etc. However, laws are regularly
laid down by the state. The legal imperatives are directed to the organs of the state that are
entrusted with the management of coercion. Thus norm is a purely formal element leading to the
core concept of the coercion which is central to Jhering's theory. As both norms and coercion are
formal elements of law as per Ihering, they do not inform the reader of the specific contents of
the law. It is however through the content of law that the purpose served by law in society may
be revealed. While a key consideration, this therefore means that the content of law is infinitely
varied and relative to the different societies.

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Sociological school of Jurisprudence

On this milieu, he further explains that true aim of the law is the realization of equilibrium of
individual and social principles and purposes. The law is, in effect, the realized partnership of
the individual and society.6 The ultimate objective of law is to assist society in achieving its
goals, its betterment and, in attempting to achieve that goal; it creates a unity from diversity,
allowing individuals to realize their purposes, and, in so doing, creating a strong social fabric.
Legal institutions enable man to add to the very quality of his being; individually, man may be
able to achieve only relatively limited objectives, but in collaboration with his fellows within
society his capacities for self-realization are greatly increased. The law will provide the
institutional framework within which the individuals life can be enhanced. Thus, law is the
mediator, the balancer, the harmonizer.7

There is thus the possibility of describing the contents of law as per the social conditions of life.
It is vital to highlight that for Ihering, law cannot make the same regulations for all the time and
for all the people. It must adapt them to the conditions of the people to their degree of
civilization and to the needs of the time.
The standard of law is not truth (which is an absolute) but purpose which is relative (even if they
may on occasion resemble each other) and this purpose is to secure conditions of social life.
Conditions of social life include the condition of physical existence as well as those goods and
pleasures that give one's life its true value in his judgment. All legal principles for Ihering can be
reduced to the security of condition of social life.
Ihering stated that his theory of law was an effort to demonstrate that purpose is the creator of the
entire law. According to him, law is a result of human will and every legal rule originated in
some purpose or some practical motive. His idea of purpose made him categorically reject
historical school, especially Savignys Volkgeist.8 Ihering further argued that law emerged in
6 L.B Curzon, Jurisprudence, Lecture notes, Cavendish publishing Limited, (1995), 149-150.
7 ibid
8 Thomas Erskine Holland, The Elements of Jurisprudence, The Law Book Exchange Ltd, 7th Ed, (New
Jersey: 2006).
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Sociological school of Jurisprudence

order that problems might be solved and social needs met. Purposes of law, in turn, is dictated by
interests. A persons individual interests should be linked to the interests of others so that a social
purpose might be enunciated and achieved. The linking of interests(the fusing of many sets of
individual interests into a unity which reflects common, social purpose) is one of the most
important functions of the law.
For Ihering, individuals' demands are to be viewed within the context of society as a whole, and
the social framework. And law exists for the pursuit and attainment of social purpose. For
Ihering, common interest of all was more important than particular individual interests. Ihering
argued every person exists for the world, and the world exists for everybody. 9 Since, human
needs and purposes are disproportionate, it is essential that individuals should unite/associate
with other individuals in order to be able to achieve the purposes. The protection of this common
interest and consequently the protection of society is the ultimate purpose of law. In addition, law
also assists in the creation and maintenance of the circumstances in which an individual can add
to his/her capacities for self-realization by being a part of the social whole. Ihering then goes on
to identify conditions in which common interest will thrive. First, he presents that selfish
purposes should be reconciled with unselfish purposes and that former should be suppressed.
Second, balancing of interests requires encouragement of the social activities of people. This in
turn is achieved by means of the levers of social motion.

Levers of Social Motion

Ihering distinguishes two types of levers : Egoistic and Altruistic.
Egoistic levers further include reward and coercion. Reward is seen in terms of private gain.
The threat of coercion is seen in terms of compulsion and force, in addition the state should have
absolute monopoly over the exercise of coercion.

9 L.B Curzon, Jurisprudence, Lecture notes, Cavendish publishing Limited, (1995), 149-150.
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Sociological school of Jurisprudence

Altruistic levers include feeling of Duty and Love. Altruistic levers too direct men towards
social ends by creating social interest. Levers are to be utilized in a combination which will
create and intensify the significance of 'social ends'.
Even though, Ihering talked about altruistic levers, he recognized that these would not suffice
without the coercive form of social control provided by Law.

Conditions of Social Life

Further, According to Ihering, the conditions of social life as related to the attitude of law toward
them are three types:
(1) extra-legal,
(2) mixed legal, and
(3) purely legal.

Extralegal condition of life belongs to nature and man receives them without expending
any effort. Law has nothing to do with man in nature. Example : food

Mixedlegal condition belongs exclusively to man and includes preservation of life,

reproduction, labor and trade corresponding to his instincts of self-preservation, sex and
acquisition and law comes to assist these instincts when they fail.

Purely legal conditions are those that depend entirely on legal command for e.g. the
command to pay debts or taxes.
Ihering insists that the realization of the law by the state enables the individual to desire
the common interest as well as his own individual interest, thus individual interest
becomes part of social purpose by connecting one's purpose with the interests of
others/the society.
State should use levers to provide the basis for the satisfaction of human wants. The
social purposes are however not fixed. They may change with time and society. Here he
differs from Naturalist conception of teleological account of law. Ihering rejects the

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Sociological school of Jurisprudence

notion that all societies can have same purpose as law comes as a result of the contextual
changes and the actions performed in a society.
For example, A gay marriage may be punishable in certain societies but not in certain.

CRITICISM OF IHERINGS THEORY

Ihering has been criticized for his inability to provide a scale of values for achieving his conflict
between the ideas of interest and purpose. He gave very little insight into how this balance could
be achieved through observation and prediction. Some scholars posit that Iherings genius was in
the origin of laws rather than in its application.10 Julius stone, in his book Human Law and
Human Justice further criticize by alleging Iherings theory being a built system based upon an
assumed egocentric individual who gradually develops socially minded member of the group and
that in the modern view such sharp opposition of individual and society is false. He further
clarifies, Iherings explanation of how individual purposes are transformed into social purposes a
reaching out for Roscoe Pounds point that is final resort all demands are demands of human
beings and can be looked at as either individual or social.11
His critics believe that he fails to clarify or determine a way in which one can deal with
conflicting purposes and interests thereby making his theory such that there will be a heavy
reliance on the concept which does not allow for a proper balancing of interests between the
individual and collective interests.
To clarify, it is in fact likely that the social motions of the levers of reward and coercion can
subjugate individual interests instead of reconciling them. Moreover to say that deeply abiding
conflicts of interests can be eliminated by feelings of duty and love seem inadequate in truly
providing for mechanisms for balancing interests.

10 P. Vasantha Kumar, An Analysis on Law Vs. Ethics and Morals in a Changing Society, available at
http://www.internationalseminar.org/XIII_AIS/TS%204/3.%20Dr.%20P%20Vasantha%20Kumar.pdf.

11 Julius Stone, Human Law and Human Justice, Stevens & Son Ltd. (London : 1964).
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Another area of weakness of the theory may lie in the fact that while the main concern of his
theory is to consider those conditions of man and society that are independent of law, or those
conditions that emerge prior to law and that define law's function and goals, it would be
reasonable to expect an inquiry into extra-legal sources of law in detail. However, Ihering's
subsequent inquiry confines itself to analyzing concepts and techniques of law instead of
clarifying objective conditions and purposes that call for the application of law and define the
functions which makes the theory somewhat too limited compared to the wider scope that would
be expected from a theory of this nature.

Hans Kelson further attacks Iherings theory of subjective rights, which Ihering famously defined
as 'legally protected interests', denying the idea that interests constituted the substance of law,
and by implication against meddling with the notion of interests in the legal world. For him,
Ihering's interest and natural lawyers' freedom simply constituted the same sphere, which aimed
at legal substance, in opposition to the objectivity of the legal form. Further, he challenges 'the
interest' of Ihering being simply a psychological fact (like what do I feel to be my interest and to
that extent his theory was another example of the intrusions of legal theory in the territory of
psychology).12

12 Mnica Garca-Salmones Rovira, The Project of Positivism in International Law, Oxford University
Press (Oxford : 2013).
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Sociological school of Jurisprudence

CONCLUSION
Going by the study of Iherings theory with regard to the sociological school of jurisprudence it
can very well be inferred that law is an instrument for serving the needs of individuals of society.
Hence, the law should be studied in terms of purposes or interests which it sub-serves.
He observed, The stone does not fall in order to fall, but it must fall because its support is taken
away. Similarly, the man who acts does so not because of anything, but in order to attain
something. As there can be no motion of the stone without a cause, so can there be no movement
of the will without purpose.
Human will is directed towards the furtherance of individual purposes. In realisation of
individual purposes, there is bound to be a conflict between social interests & individuals selfish
interests. Ihering tries to reconcile the individual interest with that of the society. So, law is only
an instrument for serving the needs of the society, its purposes & interests. The success of the
legal process depends on achieving proper balance between social & individual interests.
Therefore, Ihering views law as an instrument of social control balancing of individual interest
with that of the society.

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Sociological school of Jurisprudence

BIBLIOGRAPHY
BOOKS & ARTICLES

Friedman W. , Legal Theory, 5th Edn. , Universal Law Publishing Pvt. Ltd.
Freeman M.D.A. Lloyds, Introduction to Jurisprudence, Sweet and Maxwell

Jurisprudence (7th Edn)

Bodenheimar, Edgar, Jurisprudence : The Philosophy and Method of Law, Rev. Edn. ,

(1996) , Universal Book Traders , New Delhi

Mahajan V.D. , Jurisprudence & Legal Theory, 5th Edn. (2012) , Eastern Book Co.
Eugen Ehrlich, Fundamental Principles of the Sociology of Law, Volume 5 , Harvard

studies in jurisprudence ,Transaction Publishers, 1962

Stone Julius, Human Law and Human Justice, Maitland Publications Pty. Ltd. , Sydney
Thomas Erskine Holland, The Elements of Jurisprudence, The Law Book Exchange Ltd,

7th Ed, (New Jersey: 2006).

Mnica Garca-Salmones Rovira, The Project of Positivism in International Law, Oxford

University Press (Oxford : 2013)

Nathan Isaacs,The Schools of Jurisprudence. Their Places in History and Their Present

Alignment,Harvard Law Review, Vol. 31, No. 3 (Jan., 1918)

James A. Gardner, The Sociological Jurisprudence of Roscoe Pound (Part I), 7 Vill. L.
Rev. 1 (1961).

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