Sociological Perspectives in Law: Duguit, Holmes, and Pound

1. Module I Sociological School of Law

2. Duguit • The Study of law in relation with society is known as sociological school • The theory of Duguit is based on interdependence of men in society which is known as “Social solidarity”. • To procure and to manufacture necessities of life men depend upon society. • Functions to behave in the society are also dependable upon each other. • The end or the result of all human activities and organization is is to ensure interdependence of men which is social solidarity or theory of social fact which means men should live together as formation of law is very essential for community life. • The aim is to safeguard interdependence or to fulfill all necessities and till this end is not achieved aim of the law is not fulfilled.

3. Criticism • Duguit was against State sovereignty. He think it is the will of the people that who will govern them. So state is also under a duty to ensure ‘social solidarity’. • No difference between public law and private law because it will elevate power of State above the rest of the society. • His principle social solidarity itself a natural law ideal. • Social solidarity is vague because judges will decide whether an ‘Act’ or ‘Rule’ is furthering social solidarity which is very dangerous for the judicial system as judges have their known limitation. • His law confuses with natural law theories because if law does not further ‘social solidarity’ then it is no law at all. • Though Duguit emphasis of interdependence in society but his theory does not perform well due to minimum interference of state because in modern times social problems of modern community can be solved better by state activity.

4. Justice Holmes (1841-1935) • Justice Holmes considered law as a means to protect and promote the collective group interests as compared with individual interests. He aptly remarked “ life of law has not been logic, it has been experience” which means that while determining the law and legal rules by which men should be governed, the lawyers and judges must take into consideration the needs of the time, prevalent moral and political percepts, public policy and public opinion. Being a judge ‘he was convinced that judges play a significant role in “turning law to life’s needs and satisfaction.” According to Prof. Albert Holmes not believe in divinely imposed distinction between right and wrong. He believed in relativity in all human conduct. According to him, law does not deal with absolutes but has to be applied according to varying circumstances of the case and a variety of other factors associated with it.

5. Criticism of Holmes • Holmes theory purely based on judge made laws which are very important for present times but then all other historical, analytical, political factors are also important for law formation. • Customs and legislation are also very important factor in law formation. • Natural law is also very important for the existence of laws which Holmes has denied. • Yet Holmes approach was near to practical approach but it denies all other factor and aspect of the society.

6. Roscoe Pound • Roscoe Pound concentrates more on functional aspect of law. So his approach may also be known as functional approach. • According to him “The end of law should be to satisfy a maximum of wants with a minimum of friction.” • He has given a theory of ‘Social engineering’ which means a balance between the competing interests in society. • He thinks that jurist should work with a plan and accordingly various interests of society should be protected by law.

7. Roscoe Pound • He says jurists must study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective, sociological study in preparation of law making, study of judicial method, study sociological legal history and the importance of reasonable and just solutions of individual cases.

8. Roscoe Pound • The interest has been classified into two categories : • Private Interests – which are as follows : I. Interests of personality – Physical integrity, reputation, freedom of violation and freedom of conscience. For eg: law of Torts, law of Contracts, Criminal law. II. Interest of domestic relations – Marriage, parents and children, maintenance. III. Interest of substance – Inheritance, occupational freedom, property.

9. Roscoe Pound • Public Interests are : • Interest in the preservation of State. • Administration of trusts, charitable endowments, territorial waters, natural environment etc.

10. Roscoe Pound • Social interests are as follows: • Securing peace , general health, sanitation, agriculture. • Preserving social institutions such as religion, political and economic institutions etc. • Preserving general morals by prohibiting transactions which are against morality such as gambling, prostitution, drunkenness etc. • Preservation of natural resources, reformation of delinquents, protection of economically weaker sections of society.

11. Roscoe Pound • Freedom of trade and commerce, freedom of speech and expression , encouragement of arts and promotion of higher education. • To promote human personality enabling to live political, physical, cultural, social and economic life to suit his taste and personality. Thus Roscoe has tackled the problem of interests in terms of balancing of individual and social interests. According to him for the formation of laws these interests has to be properly balanced in society .

12. Jural Postulates of Roscoe Pound • In order to evaluate the conflicting interests Pound suggested that every society has certain basic assumptions upon which its ordering rests. These assumptions may be called as jural postulates of the legal system of that society. And they are as follows: • (i) In a civilised society men must be able to assume that others will commit no intentional aggression upon them. • (ii) In a civilised society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use what they have created by their own labour and what they have acquired under the existing social and economical order

13. Jural Postulates of Roscoe Pound • In a civilised society men must able to assume that those with whom they deal as a member of the society will cat in good faith and hence – • Will make good reasonable expectations from them. • will carry out their undertaking according to the expectations which the moral sentiment of the community attaches thereto. • Will not receive anything which come by mistake and does not belong to them.

14. Jural Postulates of Roscoe Pound • In a civilised society men must be able to assume that those who engage in some course of conduct will act with due care not to cast unreasonable risk injury upon others. • In a civilised society men must able to assume that others who maintain things or employ agencies, harmless in the sphere of their use but harmful in their normal actions elsewhere, and having a natural tendency to cross the boundaries of their proper use will restrain them and keep then within their proper bounds. Pound confessed that these jural postulates are not absolute but they have a relative value. They are a sort of ideal standards which law should pursue in society.

15. Criticism of pound’s theory (i) Engineering ignores importance of law and it is dangerous for individual freedom. (ii) This word social engineering is used to indicate the problem that law faces, the objectives that have to be fulfill and the method which it will adopt for the purpose of interest. (iii) No ideal scale of values with reference to interest. (iv) By the word’ engineering’ no balance has been made between social needs and interests. Only this theory simply recognizes or approves it. (v) Classification of interest is not useful. Since the social interests always change with the society and to put them into specific order then they will lose their character and importance.