SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

FACULTY OF LAW

JAMIA MILLIA ISLAMIA

NEW DELHI

SUBMITTED BY

SALIK AHMAD

SUBMITTED TO

MOHD, SALEEM

1|Page
 CONTENTS

INTRODUCTION…………………………………………………………………………03

VIEW OF EUGEN EHRLICH RELATED TO THIS APPROACH………………..04

EHRLICH’S CONTRIBUTION………………………………………………………..05-07

CRITICISM OF HIS VIEWS……………………………………………………………..07

CONCUSION……………………………………………………………………………..08

2|Page
 INTRODUCTION
Sociological jurisprudence is a term coined by the American jurist Roscoe Pound (1870–1964) to
describe his approach to the understanding of the law. Central to Pound's conception was the
very suggestive idea that in modern societies the law represents the principal means through
which divergent interests are brought into some sort of alignment with one another.
Unfortunately, perhaps because he was a jurist rather than a sociologist, he did not combine this
insightful conception with a developed understanding of how these interests were formed and
why some of them came to be privileged over others within the legal system. A sociologically
informed account of Pound's work, which places it in the context of the historical development
of the sociology of law, will be found in Alan Hunt, The Sociological Movement in Law, 1978.

Sociological JURISPRUDENCE is one of the most important schools of legal thought in the
twentieth century. Its major proponent in the United States was ROSCOE POUND (1870–
1964), a prolific writer who was dean of the Harvard Law School from 1916 to 1936. A number
of other legal educators and judges also contributed in varying degrees to the theory or practice
of sociological jurisprudence. The movement for a sociological jurisprudence emerged during
the Progressive era. Pound interpreted it as the "movement for pragmatism as a philosophy of
law," the purpose of which was to facilitate legal reform and social progress. Although legal
change should take place under the leadership of lawyers, the agenda of sociological
jurisprudence did not focus on changes in legal institutions. Rather, it stressed reform of
prevailing conceptions of the study, interpretation, and application of law.

3|Page
 VIEW OF EUGEN EHRLICH RELATED TO THIS APPROACH

Ehrlich was a Professor of Roman law at the University of Czetnowitz in Austria. Like Savigny,
he believed in spontaneous evolution of law but he did not hang on the past but conceived law in
the context of existing society and thus evolved his theory of 'living law'. According to him, the
institutions of marriage, domestic life, inheritance, possession, contract etc. govern the society
through ‘living law' which dominates the human life. By 'living law' he meant extra-legal
controls which regulate social relations of men. Ehrlich made an intensive study of various legal
systems by comparative method and came to the conclusion that law develops by conscious
efforts. In his opinion, the centre of gravity of legal development in the present time or the past,
lies neither in juristic science nor in judicial decisions, but in society itself.13 His living law is
the law which dominates social life even though it has not been promulgated in the form of
enactment or decision of the courts. Thus he considers ‘living law' wider in scope than the
statutory law enacted by the State. For example, there may be some enactments in force in the
sense that a court may apply the provisions thereof if they are called in question, but frequently,
a community ignores that enacted law and lives according to rules created by mutual consent.
The Indian dowry system provides the best illustration to substantiate this view of Ehrlich. Such
rules which are based on mutual consent of the people rather than statutory enactments or court's
decisions, have been termed as ‘fact of law' a social reality which exist quite independent of
State's positive law. It is the ‘living law' of the people.

The essence of Ehrlich's theory of living law is that law need not be necessarily created by the
State or applied by the courts or have a coercive legal compulsion behind it, but it is created by
life of groups living within the society. Thus living law is the fact which governs social life and a
proper study of law requires the study of all the social conditions in which the law functions in
the society. A statute which is habitually disregarded is no part of 'living law'.

4|Page
EHRLICH’S CONTRIBUTION

Despite criticism from several quarters that Ehrlich's theory of living law is unrealistic, his
contribution to jurisprudence cannot be dismissed outright. He earnestly strived for the cause of
social justice and 'justice' according to him was not an abstract concept but had a relative
significance changing with time and place. He concentrated his attention on the functioning of
law which was not embedded in the Code or the Court's decision but which did operate and
affect the social life in a community. The greatest contribution of Ehrlich to sociological school
of jurisprudence lies in scientific approach to study of law in its social context and his emphasis
on relation between law and the life of the society. His theory of 'living law' came as a vigorous
reaction against the analytical positivism. Ehrlich adopted a more practical approach and focused
his attention on the social function of law. The purpose of law according to him, was attainment
of social justice. Taking a very practical stand, Ehrlich emphasised that while making and
administering law, the requirements of the society in which law is to operate must be taken into
consideration. Then only law may serve a really useful purpose. Ehrlich made an exhaustive
study of the variety of customs, traditions, habits and rules of succession and family relations of
nearly a dozen of tribal 14 inhabitants in Astro-Hungarian empire and concluded that they
persisted independently despite existence of state regulations on these matters. This study
inspired him to evolve his theory of 'living law' of the people. According to him, the centre of
gravity of legal development lies not in legislation nor in Juristical science nor in judicial
decisions, but in society itself. He wanted jurists to abandon purely abstract notions of law and
concern themselves with the real problems and facts of social life.

Many epoch-making events in the field of jurisprudence have occurred since Ehrlich's main work
reached the American scene in 1936. A great global movement for world peace through law has
been nurtured by men of vision; in the United States, an upheaval in civil rights has been
experienced as the colored man finally begins to demand that he be given equal protection under
the law; civil disobedience has run rampant and has at times approached anarchy; civil liberties
and the rights of free men have become an ideological battleground as legislative and
investigatory agencies, as well as law enforcement officers, have oftentimes been at loggerheads
with the citizen's right to be secure in his home, property, employment, and reputation; the death
penalty in criminal cases has been re-examined and the rights of defendants in criminal cases

5|Page
redefined; long-established contract, tort, property, procedural, and other legal concepts have
been drastically revised and often overturned; New Deal, Fair Deal, New Frontier, and Great
Society social and civil rights legislation has had a profound impact on virtually every area of the
law; the apportionment of rural-dominated state legislatures has been reexamined as the "one
man-one vote" rule is enunciated; the magic of electronics may change the whole concept of
legal research; and efforts towards uniformity among the statutes in corporate, commercial,
probate, criminal, property, domestic relations law, and in other areas of the law, have proven to
be eminently successful. The above-described trends, but a few in the kaleidoscope of changing
concepts which have shaped our lives and will alter our futures, are in varying degrees
interwoven historically, sociologically, and jurisprudentially into a single theme which pervades
the writings of Eugen Ehrlich. The touchstone of Ehrlich's legal philosophy is set forth in his
foreword to Fundamental Principles where he states: "At the present as well as at any other time,
the center of gravity of legal development lies not in legislation, nor in juristic science, nor in
judicial decision, but in society itself.

In Ehrlich's view, no statutory enactment or judicial decision of any people or culture is truly
effective unless the underlying law, which he termed the "living law," is also known and
considered.' To determine what is the living law, Ehrlich suggested that one must look outside
the statute books, the reported decisions, the texts, and the legal tomes, so that a true legal order,
consistent with the social habits of the citizens, can be achieved.' Ehrlich's thesis is that the
whole economic and social order is based upon relatively few concepts: usage, domination,
possession, and disposition.' The living law reveals how men relate their activities, in light of
such concepts, in association with their fellow men. Ehrlich contended that the living law is to be
found to some extent in the legal documents governing legal relationships but more fully in the
way people conduct themselves in their associations and activities."° Ehrlich was of the belief
that the jurist, in order to discern the living law and thereby more effectively adjudicate the cases
which come before him, must learn from his own observations and not from sections of a code or
from "bundles of legal papers."' 1 Ehrlich acknowledged that this process would make exacting
demands upon jurists; however, he maintained that such a task was unavoidable and that the
results which could be achieved by this approach might well be "marvelous."" Whether recent
times have borne out Ehrlich's high hopes or whether he should be looked upon as merely
another overly optimistic legal-social philosopher, will be the subject of this discussion. In

6|Page
revisiting Ehrlich's living law, this article will first analyze the impact of the man on his times
and on the contemporary science of law. Then, one of the significant jurisprudential events
occurring in modern times, and especially since Ehrlich's Fundamental Principles was translated
into English in 1936, will be examined in depth, as to whether it serves to substantiate Ehrlich's
hopeful prediction made some fifty years ago. This milestone of jurisprudence is the decision of
the United States Supreme Court in the so-called School Segregation Cases.' The Court's
decision, it is felt, serves to emphasize the lasting impact of the various ideas offered by Eugen
Ehrlich, one of the pacesetters of juristic thinking in the twentieth century.

CRITICISM OF EHRLICH’S THEORY

Friedmann has criticised Ehrlich's theory for extending the scope of sociology of law and its
relation to other social sciences too far and even to the limit of absurdity.15 Ehrlich makes no
distinction between legal norm and other social norms and confuses between the two. He also
overlooks the fact that many a times formal law influences and even changes the prevalent
practices of the society in the interest of the community as a whole. The significance of state-
made positive law in the modem welfare states cannot be undermined. Legislation has become
one of the important sources of law for regulating social life giving way to age-old customs and
traditions. Undoubtedly, modem social conditions call for more and more intervention of the
State to control social life, therefore, the importance of custom is receding in favour of articulate
law of the State. Friedmann asserted that law is a focal point that generates standards of
behaviour. The validity of law is, however, based on social conventions and not on morality.
While enacting the law, totality of 'legal culture' has to be taken into consideration in order to
make the law well 'reasoned' and acceptable to people at large. Friedmann's 'legal culture'
purports to cover the ideas, attitudes, values and beliefs which people hold about the legal
system. Thus validity of law is based on social conventions and not on morality alone

7|Page
 CONCLUSION

“Rules derived by a process of logical deduction from pre-established conceptions of contract

The law has outgrown its primitive stage of formalism when the precise word was the sovereign
talisman and every slip was fatal.” “There has been much debate among the foreign jurists
whether the norms of right and useful conduct, the patterns of social welfare, are to be found by
the judge in conformity with an objective or a subjective standard… His duty to declare the law
in accordance with reason and justice is seen to be a phase of his duty to declare it in accordance
with custom. It is the customary morality of right-minded men and women which he is to enforce
by his decree.”

The above two paragraphs of J. Cardozo clearly define the progress of the legal system while
also summarising the duty of the judge in the evolution of this social process. The role of the
judge, therefore, to ensure social progress rests undisputed. Evaluating the part played by the
Supreme Court in this role, it goes without saying that the Court have indeed came up to the
occasion almost whenever it was required to interpret and mould social norms and practices in
line with the social aim that it envisaged for the national strata.

8|Page