Roscoe Pound (l87O—1964) was the first jurist to make the social dimensions of law, a central concern of Anglo-American jurisprudence. He was by no means the originator of the sociological tradition in law, which in fact commenced in Germany and France. Pound’s achievement was to combine thoroughgoing technical study of the law in all its aspects with the insights and methods developed by sociologists of law. He called this branch of study sociological jurisprudence, to distinguish it from sociology of law. However, sociological Jurisprudence, as the name suggests draws inspiration, ideas and methods from sociology of law.
The study of society is as old as philosophy. Political theory, moral philosophy and even religion are concerned with society in one way or another. Sociology as a distinct discipline has a more recent origin, in the work of the French philosopher Auguste Comte (1798—1857). Sociology seeks to understand the workings of society in a scientific way. There are two main sociological schools: positivist sociology and interpretive (antipositivist) sociology. Positivist sociology Positivist sociology is based on empiricism and scientific method.
Empiricism is the belief that the only true knowledge is knowledge gathered from observed facts. It is the philosophical foundation of science. Physical science consists of theories about the behaviour of non-living things, ranging from celestial bodies to sub-atomic particles. Biological science studies living organisms, from the largest animal and plants to the smallest micro-organisms. Social science tries to do something similar with societies. Positivist sociology is a branch of social science that applies the objective methods of empirical science to the study of society. Its method typically involves the collection and analysis of empirical data and the construction and testing of theories.
If crime rates are consistently higher in poorer neighborhoods than in prosperous ones, a positivist sociologist may construct the hypothesis that poverty is a cause of crime and then test this against further evidence. Positivist sociologists have produced specific theories on subjects such as crime, family breakdown and race relations, as well as general theories about society and social change. The object of positivist sociology is to make knowledge about society less speculative and more evidence based. Interpretive sociology Interpretive sociologists maintain that the social world is very different from the natural world; hence, it cannot be studied by the methods of natural science.
Society is not governed solely by the laws of nature. Society consists not of robots but of thinking individuals, who are guided by norms, symbols, values, beliefs, ideals, ideologies and many other cultural factors. There are psychological and spiritual dimensions of society that cannot be understood or measured by external observation alone. Leading sociologists of law, including Emile Durkheim, Max Weber and Eugen Ehrlich, adopted the interpretive approach. The interpretive method has been more influential in the sociology of law, although the positivist method is alive and well in the modern socio-legal research programs in universities, particularly in the United States.
Sociology of law is that part of sociology that seeks to understand the social reality of law in all its dimensions. Sociologists, though, have a different concept of law from that commonly held by lawyers. Lawyers limit the term ‘law’ to the formal law of the state, comprising statutes, official commands, judicial precedents and such like. Sociologists have a much broader view of the law. Law in this wider sense encompasses all forms of social controls, including customs, moral codes and internal rules of groups and associations such as tribes, clubs, churches and corporations. In this context, lawyers’ law is only a highly specialised form of social control involving specialised agencies like legislatures and courts.
Sociological jurisprudence Sociological jurisprudence is a method of studying law that combines the lawyer’s view of the law, technical knowledge of the law and insights produced by the sociology of law. The term ‘sociological jurisprudence’ was coined by its most famous proponent, Roscoe Pound, who is also known as Dean Pound because of his extraordinarily long tenure as the Dean of the Harvard Law School. The sociologist of law approaches law from the viewpoint of society and its diverse forms of social control. The law, and moves towards sociology in search of ways to improve the capacity of law to serve the ends of society.
The meeting point according to the sociologist is the sociology of law, but according to Pound it is sociological jurisprudence Pound explains the role of the sociological jurist: He holds that legal institutions and doctrines are instruments of a specialised form of social control, capable of being improved with reference to their ends by conscious, intelligent effort. He thinks of a process of social engineering, which in one way or, another is a problem of all the social sciences. In sociological jurisprudence it is a special problem of achieving this engineering task by means of the legal order … It is treated as &problem of jurisprudence, and yet in its larger aspects as not merely a problem of that science.
Law in all its senses is studied as a specialized phase of what in a larger view is a science of society. (1943, 20) Emile Durkheim (1858—1917) is considered to be one of the founders of sociology, together with Weber. Division of labour as the cause of social solidarity Durkheim regarded society not as an aggregate of individuals but as a system that has an independent existence. This is true even from a commonsense viewpoint, arid was well known to earlier thinkers. A collection of individuals is not a society simply because they happen to be in close proximity to each other. They may have gathered to fight on a battlefield, or to watch a football match, or to catch planes to different destinations around the world.
A society exists because of interdependence and bonding among a group of individuals. Durkheim called this solidarity’. An evaluation of Durkheim’s sociology of law Durkheim’s views of the evolution of restitutive law through mutual convenience and the division of labour closely follow the insights established by Adam Smith and other evolutionary thinkers of the 18th century. The value of his work lies in his explicit application of these insights to the law in a more technical way. Durkheim’s treatment of repressive law, though, is deeply flawed. He identified repressive law with penal law. Repressive law punishes acts that shock the collective conscience.
He contrasted repressive law with restitutive law, which is at the periphery of collective conscience or outside it. It is historically indisputable that many of the wrongs against person, property and honour that are now considered crimes were initially simply private wrongs settled between wrongdoers and victims or their families. Even today these crimes give rise to both penal sanctions and civil remedies. The attachment of penal sanctions to these acts was a later development. There are crimes against the state (treason, sedition etc) and against religion (blasphemy etc) and public order (rioting etc) that are not private in nature. These fit better into Durkheim’s category of repressive laws.
Even in such cases, their recognition as crimes has more to do with the threat they pose to public safety and the legal process than to some notion of collective conscience. Roscoe Pound and law as social engineering Nathan Roscoe Pound (1870—1964) was the most prominent American sociological jurist. He differed from the previously considered theorists in an important way. Whereas the others were concerned with the law in the broader social sense, Pound was mainly focused on the lawyer’s law, the law that legislators, judges and other authorized officials make. He was not unmindful that the term ‘law’ has wider connotations, but the task he set himself was the discovery of the ways in which the formal legal order serves its social purpose.
The legal order is not simply the set of legal rules but the whole legal system, comprising its institutions, doctrines, rules and techniques. What is the task of the formal legal order? According to Pound, it has changed over time. In primitive societies, ‘the law aimed at nothing more than keeping the peace, putting an end to revenge and private war as the means of redressing injuries’ The law was not an instrument for social change. The role of the legal system in the Greek city states was the orderly maintenance of the status quo. The law served to keep society in harmony with this universal scheme of things. Pound’s view of the law’s role is practical and modest, law’s task is to recognize and adjust competing interests with a minimum of friction and waste.
He identified legal and judicial activity as a form of social engineering. Pound did not use the term ‘social engineering’ in the modern sense of deliberate attempts to restructure society or rearrange social relations. Rather, it was a comparison of the legal task to that of a problem-solving design engineer who tries to make the machine run more efficiently and smoothly. Pound thought that the adjustment of competing interests with minimum friction and waste had a philosophical value, but did not elaborate on the question. The achievements of the sociological tradition The sociologists of law and sociological jurists enriched jurisprudence and expanded its frontiers in a number of ways. First, they demonstrated the inseparability of the legal order from the order of society.
There is no society without law and no law without social order. Second, they showed that the lawyer’s law or the law in the books is not the only law by which people live and not the only law that determines the structure of society. This is the case for two reasons. One is that there are many more social rules that people observe than are recognized or enforced by the official legal system, and yet without them social order is unsustainable. A second reason is that many of the rules in the law books would be ineffectual but for the fact that they are already observed as social rules. The law of contract would be meaningless if people routinely broke their promises.
Criminal law is effective not because of super-efficient crime prevention and crime punishment but because most people live by its rules most of the time any way. Third, the sociologists and sociological jurists demonstrated the dynamic and adaptive nature of the legal order. The legal order, being part of the social order, changes with it. Tribal law, feudal law and the liberal law of industrial societies each reflect a stage of social development. Fourth, they demonstrated that the law as a social phenomenon has a life of its own and that the path of the law is not entirely, or even mainly, determined by legislators. Fifth, by all this they demonstrated the poverty of jurisprudence that limits itself to the study of the law in the books.