Sociological Jurisprudence (Sociology of Law)

Introduction

The sociology of law has often been distinguished from sociological jurisprudence. The latter is primarily concerned with debates within mainstream sociology and instead engages with some of the debates within jurisprudence and legal theory. Sociological jurisprudence seeks to base legal arguments on sociological ones.

In the study on sociology of law and sociological jurisprudence, to better understand this phenomenon the definitions on the key proponents on this study are critical and bear great importance this essay will first describe the origins of sociology of law followed thereafter on sociological jurisprudence and it proponents.

More so key elements brought to as are the definitions of the words sociology, law and jurisprudence. The word sociology is used vastly in various disciplines not only of law but economics, science this term sociology is coined from the word society and more so the word social.

  However, the application of the term sociology was first seriously attempted be applied by Auguste Comte (1798-1857), who invented the term sociology, this was part of the powerful emphasis in the nineteenth century on science as the royal road to progress. He believed that society should be understood and studied as it was, rather than what it ought to be[1]. He was first to recognize that the path to understanding the whole world and society was based in science. Marx Spencer, Durkheim and Weber further helped to define and develop sociology as a science and discipline, each contributing important theories and concepts still used and understood in the field today.

However the term Jurisprudence is the study and theory of law, Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations.

Sociology of law is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. While some legal socio-legal scholars’ see it as “necessarily” belonging to the discipline of sociology others see it as a field of research caught up in the disciplinary tensions and competitions between the two established disciplines of law and sociology.

Roger Cotterrell describes sociology of law as the systematic theoretical grounded, empirical study of law as a set of social practices or as an aspect or field of social experience.

The roots of sociology of law can be traced back to the works of sociologists and jurists of the turn of the 18^th century. The relationship between and society was sociologically explored in seminal works of both Marx Weber an Emile Durkheim. The writing on law by these classical sociologists are foundational to the entire sociology of law. Although there were other attempts, but this essay will be focusing on the works of the previously mentioned scholars with an inclusion of  Herbert Spencer ( 1820-1903) and his Laissez Faire in economic and social affairs.    

Max Weber (1864-1920)

Weber was the first to develop a systematic sociology of law, more than that he was the first to see the sociology of law as a central to sociological theory. His primary concern was to understand the development and characteristics of western society, the most distinctive feature of which its developed form was capitalism. This led him into two directions which were firstly historical and comparative studies of the world’s major civilization, secondly into studies of the origins of capitalist’s development and “rationalism”.

Weber emphasized the peculiar rational  (a belief or theory that opinions and actions should be based on reason and knowledge rather than on religious belief or emotional response, reason rather than experience is the foundation of certainty in knowledge)[2] quality of legal institutions in modern western societies. He saw law as passing through stages ranging from charismatic legal revelation through what he called “law prophets” to a systematic elaboration of law and professionalized administration of justice by persons who have received their legal training in a learned and formally logical manner. He did not suggest any evolutionally sequence but rather saw law in society as stages which were ideal types and elements from each, these elements can be found in ancient as well as in modern legal practice. 

This was also in his application on the types of irrationality and rationality characteristics in legal systems. Legal irrationality, that is a failure to be guided by general rules, may be formal as where decisions are determined by means beyond the control of reasoning for example trial by ordeal and oracle, or substantive, where the decision –maker is guided only by reaction to the individual case[3]. Weber emphasized also on substantive rationality when it is guided by principles albeit of an ideological system other than that of the law itself for example religion or justice. Such systems lack the restraints of procedural formality and the sort of consistency that we associate with a system of judicial precedent, it attained formal, logical rationality when its rule were expressed by the use of abstract concepts created by legal though itself and conceived of as constituting a complete system.

However Weber unlike Marx, Weber was not prepared to explain law as in any way determined by economic forces, but rather saw law as autonomous, though influenced by economic factors and other processes in society, “economic situations” Weber rote “ do not automatically give birth to new legal forms; they merely provide the opportunity for the spread of legal technique if it is invented “. Though law is not determined by economic forces it is perceived by Weber as “crucially related”       

In summary Weber’s standpoint can be described as an external approach to law that studies the empirical characteristics of law as opposed to the internal perspective of the legal sciences and the moral approach of the philosophy of law.

Critics on Max Weber

Weber is the most influential of sociologists in law, but how well do his categories serve those who study law and society today? One problem that concerns legal sociologists is the limits of the law why anti-discrimination law or rent control legislation are less successful than their proposers intend, he would suggest that laws would fail where the legal system was insufficiently autonomous or legal reasoning insufficiently legalistic. For example can problems like racial discrimination be tackled by more narrowly drawn rules?  Can weber’s theory serve in a more interventionist welfare state or a technological state like now in the 21^st century, the rules of such a system tend to be characterized by looseness and the emphasis is on discretion. Weber’s theory is incapable of embracing welfare state concepts.[4]

Emile Durkheim (1858-1917)

Durkheim, was one of the greatest French sociologists like max weber he also had a keen interest on the legal phenomenon. He was one of the earliest thinkers about the criminal process he wrote on punishment on the law of contract and notably in The Division of Labour in Society.

 However, his claim was that as society became more complex in its growth the body of civil law concerned primarily with restitution and compensation hence contract law grows at the expense of criminal law and penal sanctions. Over time law has grown from repressive (cruel) to restitutive law (contract law). Restitutive law operates in societies in which there is a degree of individual variation and emphasis on personal rights and responsibilities. For him law is an indicator of the mode of integration of a society which can be mechanical, among identical part or organic among differentiated parts, such as industrialized societies.

Durkheim also argued that sociology of law should be developed alongside, and in close connection with, sociology of morals, studying the development of value systems reflected in law.                                      

Criticisms Durkheim

For him law was barely distinguishable from morality. He tended to see the law as derived from and expressive of society’s morality. He wrote on social solidarity as “a wholly moral phenomenon” and saw law as an external index which symbolized it. That the law influenced social harmony and there is a close relationship between law and morality, but there are conflicts between legal and moral rules and indeed, between different moral principles. Durkheim tended to under estimate conflict especially on law and morals on how both can come into conflict with each other. Durkheim presents a consensus view on the relationship between law and social order which overestimates groupings and fails to explain why disputes resolving institutions come into existence.

Durkheim focused on the part of law which limits individual activities that is criminal law and punishments, sanctions and obligations, like hart on Austin’s criticism one problem was that it prohibited any systematic inquiry into the facilitative aspects of the law, for example why would someone be punished or investigation into why people commit crimes, criminal procedure that is facilitated in law.

His arguments that contracts become more just until they move into the realm of “social equity” he thought that “just contract” required that private ownership should not be misused he was opposed to inheritance because he so this as conflicting with contractual solidarity. 21^st century is in conflict to this notion since we have since seen vast inroads on freedom to contract.                             

          

Herbert Spencer (1820-1903)

Although it is important to note, firstly that Spencer was a firm believer in the deism, which is the belief that reason and observation of the natural world are enough to determine the existence of God and positivism which is a theoretical position that all rational assertions can be scientifically backed.

Most important to our discussion is the fact that Spencer’s support of Charles Darwin’s theory of evolution led him to formulate his theory of Social Darwinism. Which expressed that human progress and legal and social development could be understood by basing the conceptualization on the natural selection evolution in Biology. His view was that in the process of man’s biological evolution, social evolution would also arise automatically and independently.

 He stated that society as a [5]social organism evolved from a simple state to its complex being, which comprised of intricate institutions which had very little dependence on each other.

Spencer is most known for the coining of the term “survival for the fittest” which basically summarizes the idea of Social Darwinism. An example is given whereby a student who performed well in his academics is academically fit and hence is able to survive in the learning environment. His success is as a result of his own qualities.

Spencer in his writings propounded that science, through positivism could be used to uncover the laws that explained social life.

Criticism

It has been stated that this theory of “survival for the fittest” has led to racialism, nationalism, Imperialism which in nations such as Nazi Germany were backed by the law. The theory justified the exploitation of lesser people. This may even be argued as among the causes of colonialism throughout the world.

Talcott Parsons

 Parsons in his works of sociological jurisprudence used a functional approach and also came up the Parsonian Social System model.

Parsons functional approach sums up the major function of the legal system as integrative which serves to lessen potential elements of conflict and to oil the machinery of social intercourse.[6] The functional approach views society as a complex system whose parts work together to promote solidarity and stability. It focuses on social structures and functions that shape society as a whole. It considers the norms, customs, traditions and institutions of a society.

Ordinarily in any society the norms which are a standard especially of social behavior that is expected of a group of people or in this case society, traditions and customs could be put together as beliefs of a particular people in society which may tell them right from wrong or what is expected of them institutions are founded in society by the people for a purpose often regulation. More often norms, customs, traditions and institutions are passed on from generation to generation in society. These became rules in society and are enveloped in the society’s legal system. 

The social system theory model is one of parsons’ greatest achievements. The basic components of the system are goals, means, situational conditions and normative orientation[7]. Normative orientation which includes norms, values and ideas. He assumes a value of consensus within society. This refers to the situation in which all members of society agree on acceptable norms, customs and traditions which then became the rules of the society.

The value of consensus is a common feature in both the functional approach and social system theory model. According to Talcott it is important that there is adherence to a system of rules that systems of social interaction can function without breaking down into chronic covert conflict. The system of rules being referred to in this case is a legal system. He further insisted on analytical separation of the legal system and political system.

Criticism

1) On the functional approach

Inability to sustain status quo: criticisms arose due to the static and abstract focus on social order, social stability and the structures within society and its lack of knowledge in social change and conflict.

Inability to approach historical situations effectively yet the legal systems arose due to value of consensus and is believed to become rules which  due to their use over a period of time and were passed on from generation to generation.

2) On the social system theory model

Talcott approach on his social system theory which was based on legal systems was criticized by Stone who stated that the problem that sociological jurisprudence labored with was its methodology of working outwards from legal problems to the relevant social science.

Bredemeier who developed the Parsonian model criticized it by asking the question ‘should it be assumed that the legal system is integrative?’ in some occasions other than being a contributive force to the good of society, legal system is dysfunctional. He also goes further to say that there are too many problems with the Parsonian type models to invest hope in them.

Roscoe Pound (1870-1964)

Law as a Consensus Model to Society

 Pound views the law as an instrument that satisfies social needs and requirements. The law therefore is the voice of society as it represents the conscience of society. Pound views society as a homogenous group of people who share similar views, values and traditions.

Many legal philosophers have dispelled Pound’s theory of a value consensus society citing diversities in interests of various communities’ and class setting. It is argued that the law protects the interests of the powerful in society, not necessarily in terms of wealth but authority[8]. In a value consensus society all individuals agree to behave and act in a certain manner even if not necessarily prescribed by law. For instance the act of wearing clothes is an acceptable and practiced behavior by the majority if not all individuals in a society, this is an example of a value consensus society. It is not necessarily a provision in any law that all people should wear clothes but it is practiced nevertheless, even in an instance where one is at liberty to disregard the law but continue to behave in the previous manner.

However, not all groups of people agree to similar views on varying subjects. Darhendorf in his theory criticizes how narrowly the term class was used and its application to a historic-specific group. He envisions a theory of class conflict in post capitalist society. In such a society all groups of people seek to protect their interests which are all distinct from one another. In Gus field view on the temperance movement and prohibition there is a great outlook at the diversity of views and interests and the ultimate victor in the scenario and not just the reformist ideology as earlier perceived[9]. In a temperate movement against alcohol consumption certain groups and movements were to profit from the act itself. Entrepreneurs stood to benefit from the act in terms of effective performance as a result of a sober mind and ultimately increased profits. Other parties may not necessarily have a gain in economic instances but would yield to the wishes of those with a greater voice supported by legislation. In other instance the temperance was purely based on conscience, in the colonial period the Europeans regarded alcohol as the root of all evil while the Africans thought of it as an almost sacred beverage, in this case the Africans had to yield to he who held the mantle due to the interplay of the power game.

Quinney, a philosopher, argues that the law consists of interests of a specific segment of people[10]. He is supported by Hill who argues that power and coercion is the basis of principles of protecting the interests of such groups. Pound views the law as a social force while Quinney views it as a social product. Social force is any effective urge or impulse that leads to social action. Specifically, a social force is a consensus on the part of a sufficient number of the members of society to bring about social action or social change of some sort[11]. As a social product the law is expected to face various oppositions even the most basic of law. An instance would be where the law prescribes sanctions for husbands who practice marital rape, a law which is not fully embraced to date.

However, it has been challenging to classify laws that limit activities of the ‘ruling’ class who are thought to influence legislation. It is argued that the legislation such as the pollution and anti-factory legislation which may constrain those regarded as the elite, these laws though enacted may not be effectively enforced to serve its purpose. It is also fact supported by a number of researches that the class interest is not the only indirect directive to the passage of legislation, there is professional organization, bureaucracies and in instances more often than not middle-class crusaders popularly known as the civil society[12].

The law as an outcome of group conflict is therefore a power elite system. It has not been established yet which elite is the all-powerful one. Most writers prefer a pluralistic model of conflict where different groups possess varying amounts of power[13].

Criticisms’ On Roscoe Pound’s Social Engineering Theory 

Selznick pinpoints stages of sociology of law.

The first stage consists of theories of Pound and continental progenitors. He identifies a lawyer as a ‘social engineer’ whose task is to enforce the individual and societal needs and interests. Most of the research is carried out by contemporaries who focus on substantive legal problems rather than the working of legal institutions. Furthermore, most of the legal research was done by lawyers and practitioners rather than jurists whose conclusions and implications were more complicated or more elaborate than necessary.

The other stage is concerned with the method and skill adopted. In this stage the skill of the academic lawyer and sociologists are synthesized[14]. The jurists played a number of roles; they were tasked with suggesting the field of activities, posing questions, trained themselves in techniques of sociology, the mechanics of social survey, the use of statistics and other necessary technological skills. The sociologist collaborated the research of the jurist and adapted their techniques from the main stream of sociological inquiry.

According to Selznick, the third stage has not been reached yet. He argues that sociological jurisprudence will be reached when some factors of law have been fulfilled; such include the function of law, the role of legality and the meaning of justice. Some scholars, however, argue that Selznick third stage has been reached with the development of sociological law.

Some scholars see sociology of law as belonging "necessarily" to the field of sociology whilst others tend to consider it a field of research caught up between the disciplines of law and sociology. Still others regard it neither as a sub-discipline of sociology nor as a branch of legal studies but as a field of research on its own right within the broader social science tradition. Accordingly, it may be described without reference to mainstream sociology as "the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience", or by referring to law and justice as fundamental institutions of the basic structure of society mediating "between political and economic interests, between culture and the normative order of society, establishing and maintaining interdependence, and constituting themselves as sources of consensus, coercion and social control".

More specifically, sociology of law consists of various approaches to the study of law in society. Which empirically examines and theorize the interaction between law, legal, non-legal institutions and social factors.

The relationship between law and society was sociologically explored in the seminal works of both Max Weber and Emilee Durkheim. The writings on law by these classical sociologists are foundational to the entire sociology of law today. A number of other scholars, mainly jurists, also employed social scientific theories and methods in an attempt to develop sociological theories of law. Notably among these were Leon Petrazycki, Eugen Ehrlich and Georges Gurvitch.

other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well.

The main difference between the sociology of law and Law and Society is that the latter does not limit itself theoretically or methodologically to sociology and tries instead to accommodate insights from all social science disciplines.

Some important research has been produced by South American researchers as well as by Indian scholars, but we find only a limited amount of socio-legal work by researchers from, for example, the Middle East or central and northern parts of Africa. Thus, the global spread of sociological studies of law appears uneven and concentrated, above all, in industrialized nations with democratic political systems. In this sense, the global expansion of legal sociology “is not taking place uniformly across national boundaries and appears to correlate with a combination of factors such as national wealth/poverty and form of political organization, as well as historical factors such as the growth of the welfare state.

Sociological jurisprudence shifts the focus of attention to the study of the “living law,” that is, systems of specific legal relationships and of human behavior in a legal context. This is in contrast to legal positivism, which reduced jurisprudence to a formal and logical study of the law in force,

Sociological jurisprudence seeks to base legal arguments on sociological insights and, unlike legal theory, is concerned with the mundane practices that create legal institutions and social operations which reproduce legal systems over time.

Sociological jurisprudence is a term coined by the American jurist Roscoe Pound to describe his approach to the understanding of the law. This philosophical approach to law stresses the actual social effects of legal institutions, doctrines, and practices.

Talcott Parsons’ argues that law is conceived as an essential mechanism of social control.

Philip Selznick argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well.

Importance.

Roscoe Pound also made a significant contribution to jurisprudence in the tradition of sociological jurisprudence, which emphasized on the importance of social relationships in the development of law and vice versa. According to Pound, a lawmaker acts as a social engineer by attempting to solve problems in society using law as a tool.

African Sociological Transformation.

Social transformation is really important in the Third World Countries which are mostly found in Africa and this is the instance where many of the people live below the poverty line and in extremely poor conditions. We depict that the role of law here is to bring about social change and particularly in the positive and progressive social transformation. There have been attempts to propagate socialist change without violent revolutions.

The provision of education in Uganda through the U.P.E program .The program is not backed by legislation through the constitution provides for the right of education.

The law in Uganda has fostered democratic transformation through the power and will of the sovereign. The constitution also introduced the important concept of the rule of law and the separation of power which has prevented the re-occurrence of an anarchy experience.

The same constitution has also protected against the violation of human rights which are entailed in the bill of rights. For instance; oppression, discrimination of women, child abuse and child labour.

The law has also helped the republic of Uganda towards the achievement of economic growth. The law has attracted and tapped foreign investors by passing supporting acts. Chiefly, the Investment Code Act as repealed that granted incentives like the low tax rates. The foreign investors might have led the mobilization of economic, political and psychological forces to accelerate developmentalism such as the Poverty Eradication Action Plan (PEAP)

The law has also incorporated the application of feminist approach in judicial ruling. The law is constitutional. It has been used to improve the socio-economic and political position of women. Recent cases have been ruled in favor of the women charged for various cases.

The National Social Security Fund (NSSF), a National Saving Scheme mandated by Government through the National Social Security Fund Act, Cap 222 (Laws of Uganda) provides social security services to employees in Uganda. It was established by an Act of Parliament (1985) to provide for its membership, payment of contributions to, and payment of benefits out of the Fund. NSSF is a provident fund. It covers all employees in the private sector including Non-Governmental Organizations (NGOs) that are not covered by the Government's pension scheme. This scheme was instituted for the protection of employees against the uncertainties of social and economic life.

Examples of African Sociological Transformation in other Third World Countries

In other third world countries, the efforts of using law as a tool of social transformation have been a failure. For example during the cold war international capitalism led by the US, the act of imposing sanctions on countries for example Chile and Nicaragua failed to change the economy meaning that no social and economic transformation took place.

In the case of Nicaragua, the US made sure that the country’s ruling party lost their elections in 1990 because economic sanctions had a serious effect on the economy and fuelled discontent against the regime.

CHILE

In Chile, the socialist Allende was overthrown with the help of the CIA (Central Intelligence Agency) and the Military Junta came to power with the help of the United States and terrorized the citizens of Chile for many years under Augosto Pinochet’s rule.

TANZANIA

Tanzania partly succeeded in the reformist type of socialism. Tanzania did not break with the colonizers but instead made welfare provisions with the situation of under development. It was successful in the case that it brought unity through the formation of a national language known as Swahili and national consciousness led to the provision of basic education. It partly failed it did not transform the country side and also national or international economic transformation.

MOZAMBIQUE

In Mozambique, intervention of Renamo which used to be a conservative party under Afonso Dhlakama intervened and were supported by South Africa and also in Angola the continuous war waged by the Unita which was the second largest political party in Angola both made development and transformation difficult and therefore the socialist experiments didn’t improve the lives of the majority

This shows that for law to cause social transformation there is need to include in the policy making process majority of the productive members of society. An example of this is through the budget making process which is presented to the Parliament by the executive. Also including the general public in making of decisions enables the masses to identify themselves with the laws and easily implement them.

UGANDA

Also so as to remedy such failings of attempts to use law to cause social transformation, an example of Uganda may be used whereby Parliament makes little input with the end result that money may be allocated to non-priority sectors for example the agricultural sector receives less spending although it is the mainstay of the economy as compared to the defense sector.

One would use law to bring up changes but the effectiveness of such change is limited by the wider social-economic order of capitalism that maintains the third world countries at the periphery of the system[15]

   BIBILIOGRAPHY

A General Theory of Action by Talcott Parsons

Lloyd’s Introduction to Jurisprudence by M.D.A Freeman

Sociological Theory and Modern Society by Talcott Parsons

Social Control through Law by Roscoe Pound.

Beyond Law In Context by David Nelken.

The Legislation of Morality: Law, drugs and moral order by Troy. S. Duster.

Trade Cloth by Henry. P. Fairchild.

Symbolic Crusade by Joseph Gusfield.

Critique of the Legal Order by Quinney

The Child Savers by Anthony  Platt.

Victimless by  Crime Edwin Schur.

              

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[1] Lloyd’s introduction to jurisprudence Michael Freeman( first published more than 50years ago, sweet and Maxwell October 13,2007)  pg 836

[2] Black law’s Dictionary( first published 1904 ,ST Paul Minn west publishers 1979)

[3] Ibid n1 pg 839

[4] Robin west normative jurisprudence an introduction (cambridge international law first published august 22 2011)

[5] Herbert Spencer (1860) The Social Organism Herbert Spencer.

[6] Lloyd’s Introduction to Jurisprudence by M.D.A Freeman

[7] Talcott Parsons A General Theory of Action

[8] Darhendorf; Class and Class Conflict in Industrial Society.

[9]  Joseph Gusfield, Symbolic Crusade.

[10]  Quinney; Critique of The Legal Order.

[11] Fairchild Henry, The Trade Cloth 1970.

[12] Hall Jerome, Theft, Law and Society.

 Chambliss William, The Law of Vagrancy.

1973 victimless crimes

[13] Darhendorf; Class and Class Conflict in Industrial Society.

[14] The Chicago Jury Project.

[15] Omony.J.Paul-Key issues in Jurisprudence Pg.226

All this valuable information was assembled by the L.L.B Students of Riara University May intake 2013