An Analysis of the Sociological Jurisprudential School of Thought

By Charlene Mwaura LLB (Hons)

What distinguishes the Sociological School of Thought from other schools of thought and, does social change precede the law or does the law precede social change?

INTRODUCTION

My focus for the following essay will be the Sociological School of Jurisprudence. I will base my choice on two questions; what distinguishes this school of thought from the others and, does social change precede the law or does the law precede social change?

In comparison to ages such as the Augustan and Victorian ages, I am of the view that this school of thought is most applicable to the 21^st century and reflects more on the society as it currently is, along with the the laws that exist as a result.

The Augustan period was predominantly dominated by monarchs, whereas the Victorian age was specifically an era of the British Empire. Both were dominated by the monarchy system of governance. The former however has been overtaken by time; as very few monarchs in the traditional sense of a monarch, exist today. The latter on the other hand fits more into Realism jurisprudential school of thought, which suggests that law is judge-made. This is because of the development of common law; which consists of judicial precedent.

DISCUSSION

What distinguishes this school of thought from the others?

The Sociological School of Jurisprudence distinguishes itself from the other schools of thought as it attempts to discover the sources, effects and functions of the law. Most, if not all of the other schools of thought emerged as a response to another school. This essentially implies that the other schools of thought were merely analyzing what was said by another school, and forming a theory around the criticisms of each others schools of thought. An example of this would be; Natural Law and Legal Positivism. The jurists belonging to the latter school developed their theory as a response to Natural Law.

Although Sociological Jurisprudence emerged from Historical Jurisprudence, it did not attempt to criticize or focus its work on what was already formulated by the latter. In my view, it did not deviate from its essential area of interest; which was discovery of the origin of the law, as opposed to analysis of the law and how it is or ought to be. The jurists belonging to this school of thought focus on developing their theory, as opposed to an in depth criticism of other jurists’ work.

The foundation of this school of thought is the study of the law as means of social control. This essentially suggests that law and legal institutions originated from society, and not legislation. This goes on to form the relationship between law and the society, which is a symbiotic one. It is symbiotic in the senses that, it is the society’s duty to shape law in order to suit its ever changing, recurring and unlimited wants and demands. This was evident in Plessy v Ferguson, a case that was decided in the 18^th century when racial discrimination was at its peak. In this case, racial segregation was allowed on railway facilities and the judicial system was of the view that no amount of legislation could change that reality. This in itself disputes the idea that law is made by judges as is suggested by American Realism. If that were the case, the judges would have made a law to annul racial segregation. However, 54 years later, the consciousness of the American society in Sweatt v Painter was that segregation was no longer an acceptable way of life, illustrating the power society has in influencing law.

REFLECTIVE RESPONSE

Does social change precede law or does law precede social change?

I understood the sociological jurists to be saying that law originates as a result of social change; forcing either the existing law to adapt, or creating an entirely new law. Ever heard of the saying, “Only the wearer knows where the shoe pinches?” This is the most effective way to illustrate the idea that law originates and develops as a result of social change. This is however easier said than done, but nonetheless practical. The two American cases previously discussed support the idea that law originates from society, and not legislation as positivist theorists would argue.

The most practical example I can think of to support this argument is the emergence of human rights laws. They came about as a result of the society rallying together to advocate and fight for individual rights. This demonstrates the coming into effect of law as a result of social influence. It is commendable that in such cases, individual, public and social interests did not clash; as more often than not, they have a way of conflicting. Additionally, it is important to note that, no one particular individual’s interests are greater than the society’s, and public interest more often than not overrides the interests of the society.

I do however understand where the Realists are coming from, by recognizing the existence and application of common law. However, Lord Denning issued a warning when applying common law, which was later reiterated by sociological jurists. Lord Denning stated that, “One cannot take an English Oak to the African continent and expect it to bloom as well as it would in England.” What he meant by this was that common law should be applicable only as far as circumstances allow. This means that due regard must be given to particular circumstances when applying common law, because situations differ.

Sociological jurists were in agreement with the wise Lord when they suggested that societies should make laws that best suit their needs. This essentially means that societies should avoid blindly adopting laws already made, simply because they come from a “higher” power; such as Judges (Realism), the Sovereign (Legal Positivism), and a Supernatural being (Natural Law).

Moreover, law should be living and not just statutory. Living law means law that is in conformity with the needs and nature of a society. Sociological jurisprudence is the first school of thought with the mention and distinction of living law from statutory law. Living law is just as important, as it reflects either the primitive or progressive nature of a society. What is the essence of having statutory laws that do not conform, reflect or accommodate changes in the society? Who are they meant to serve? Such laws would be oppressive and contrary to social order.

I do however acknowledge that living law may not always accurately reflect the changes in society due to the concept of “lag.” This concept dictates that society evolves ahead of law and as result, law “lags behind.” This concept seems to be offering criticism to Sociological Jurisprudence however, it unintentionally acknowledges that society influences the law. Why else then would law “lag behind” if social change had no effect on it whatsoever?

CONCLUSION

Social change to date has to be the most influential factor that determines the progressive or stagnant nature of the law. This is however not to say that there are no other factors that influence the law. The argument that sociological jurists attempt to put across is that the law cannot operate in a vacuum. Such factors ensure the continuity and progression of the law which is very much needed in a world where society is ever changing and the values of a society are determined by the progressive or retrogressive nature of its laws.