Jurisprudence - Sociological School

Jurisprudence class. Credits to lecturer.

1. JURISPRUDENCE Sociological school Social study of law

2. What? The study of law in relation to society. The subject is the ‘law’, not the ‘society’. How law fit into the society and how it can function effectively.

3. DIFFERENCE BETWEEN LEGAL SOCIOLOGIST AND SOCIOLOICAL JURIST OUTLOOK OF LAW SOCIOLOGIST Concerned with the society. Legal administration is regarded as part of the society, thus it influence the behaviour of the society. SOCIOLOGICAL JURIST Concerned with laws and the tools of a lawyer’s trade. Study about law functions and how does law functioning in society .

4. Differences from other approaches Look at the function of law in community; Emphasize on social duties not individual rights; Law can only be understood if viewed as ‘social phenomenon’; Analysis on legal concept is inadequate; Law is a form of social control.

5. EMERGENCE Changes in the role of the state. Law have to dealt with numerous social activities, thus laws are not only instruments of control. The inadequacy of ‘mechanical approach’.

6. SOCIAL STUDY OF LAW FOUR METHODS OF STUDY On the social origins of laws and legal institutions, e.g.: the court. Impact of law on society, e.g. Law that prohibited the practice of ‘ sathi ’ ; Task that law should perform in society, e.g.: law as an agent of control; Social Criterion of the validity of law:

7. On the social origins of laws and legal institutions Ihering (1818-1892) The idea of purpose; cause and effect “The stone does not fall in order to fall, but because it must fall, because its support is taken away; whilst the man who does so, not because of anything, but in order to attain to something. This purpose is as indispensable for the will as cause is for the stone. As there can be no motion of the stone without cause. So can there be no movement of the will without purpose.” The creation of a law relies upon the need of @ occurrence in the society. Sexual Offences Against Children Act 2017 Domestic Violence Act 1994

8. Law as a means to achieve an end. Law must operates as a social control. ‘Law is the sum of the conditions of social life in the widest sense of the term, as secured by the power of the State through the means of external compulsion .’

9. Conditions of social life Extra legal conditions: those under the control of nature, e.g. climate (Can we resolve climate change problems through law?) Mixed legal conditions: those where law does not play a major part, reproduction, commerce and labour ; (family planning) Purely legal conditions: interests which are secured solely by legal regulation, raising revenue ; (taxation law, property) and Coercive conditions: compulsive nature of law . (criminal law )

10. Impact of law on society Ehrlich (1862-1922) Laws found in formal legal sources (statutes and case law) give only an inadequate picture of what goes on in society. The formal legal source does not reflect the norms and values that govern life. There will always be an inevitable gaps between formal law and actual behaviour. The problem of child bride

11. How to discover ‘Living law’ from ‘Formal law’. Judicial decisions, which are only evidentiary; Modern business documents against which judicial decisions need to be checked; Observations of people, by living among them and noting their behaviour.

12. Contents of social control Social control comprise of formal law and living law, which includes customs, morality and the practices. Statute which is habitually disregarded is no part of living law. Criticism Too much emphasis on living law.

13. The Task of Law in Society Bentham (1748-1832) The task of law is to bring about the maximum happiness of each individual, for the happiness of each of them will result in the happiness for all. Individual vs Common Happiness!

14. Balancing of interest “ The public good ought to be the object of the legislator; general utility ought to be the foundation of his reasoning.” How? He does not offer a solution. May be found in Roscoe Pound thought.

15. What to do when these interests clashes These interests must be balanced and weighed only against other interests ‘on the same plane’. individual interest cannot be balanced against social interest.

16. Law making to achieve social ends How? Trained the conscience of man, so they will find pleasure in ways that are not anti-social. Punishment, because laws will make anti-social behaviour unprofitable thus painful .

17. How does Sociological law differs with Positivist law the following characteristics of adherents to the sociological school: they pursue a comparative study of legal phenomena as social phenomena and criticize these with respect to their relation to societ y. In particular they (1) consider the working of the law rather than its abstract content; (2) regard law as a social institutio n which may be improved by human effort and endeavor to discover and effect such improvement; (3) lay stress upon the social ends of law rather than sanctions; (4) urge that legal precepts be used as guides to socially desirable results rather than inflexible molds; and (5) their philosophical views are diverse usually positivist or some branch of the social-philosophical school.

18. JURISPRUENCE SOCIOLOGICAL JURISPRUDENCE ROSCOE POUND (1870-1964)

19. Interpretation and application of laws take account of social facts. How? A factual study of the social effects of legal administration; Social investigations as preliminaries to legislation; A constant study of the means for making laws more effective; …

20. This is made possible through The study, both psychological and philosophical, of the judicial method; A sociological study of legal history; Allowance for the possibility of a just and reasonable solution of individual case; A ministry of justice is English speaking countries; The achievement of the purposes of the various law.

21. How to achieve the purpose of legal order Recognition of interests such as individual, public and social; Defining the limits within which such interest will be legally recognized and enforced; The securing of those interests within the limits as defined.

22. What is the task of lawyer and legislation SOCIAL ENGINEERING To build as efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with the minimum of friction and waste. (SOCIAL COHESION) This may be achieved by balancing of the competing interests.

23. INTEREST ‘a demand or desire which human beings, either individually or through groups or association or in relations, seek to satisfy, of which, therefore, the adjustment of human relations and ordering of human behaviour through the force of a politically organised society must take account.’ CATEGORIES OF INTERESTS Individual/Personal Public Socia l

24. PERSONAL INTEREST Interest of the personality- the physical person, freedom of will, honour and reputation, privacy, belief and opinion. Domestic relations- interest of individual in domestic relationship and of the society in the institution of family. Individual interest involved parents, children, husband and wives Interest of substance-property, industry and contract, promised advantages, and freedom of association.

25. PUBLIC INTEREST Claims or demands or desires asserted by individuals involved in or looked at from the standpoint of political life; ‘The claims asserted in title of politically organized society ; as one might say for convenience, the claims of the state (juristic person), the political organization of society.’

26. Criteria Interests of state as juristic person. What is state as “juristic person”? Interests of the state as guardian of social interests What are the interests that the state protects?

27. SOCIAL INTERESTS Interest in general security, Interest in the security of social institutions; Interest in general morals; Interest in the conservation of social resources; Interest in general purposes; Interest in individual life.

28. Interest must be balanced balance of competing interest means satisfaction of maximum interests with less friction and waste. Whose interests gains priority, personal, public @ social? In most situations, public interest (political organization of the society).

29. What happen if the interest cannot be accommodated? Jural Postulates: ‘presuppositions of legal reasoning’ involving what men must be able to assume in civilised society – such as no intentional aggression; beneficial control over what people acquire under the existing social and economic order; good faith in dealings; due care not to injure; control over dangerous activities, etc.

30. Others will not commit any intentional aggressions upon him. e.g. Assault, battery, wrongful restraint etc. Others will act with due care and will not cast upon him an unreasonable risk of injury. e.g. Negligence He can appropriate what he has created by his own labour and what he has acquired under existing economic order for his own use. e.g. agricultural land and usufruct as property. The people with whom he deals with in the general intercourse of society will act in good faith. e.g. Defamation. He must keep the things within his boundary and should look after those things so that their escape should not harm others. E.g. Ryland vs. Fletcher case

31. In 1942, Pound added three new postulates in the list which are ; A person will have security as a job holder. e.g. ruled by labour law, law of contract; Society will bear the burden of supporting him when he becomes aged. e.g. 1/3rd concession in railway ticket, ceiling of income tax range is more; And the society as a whole will bear the risk of unforeseen misfortunes such as disablement. e.g. reservation quota for physically disabled person in education, travel etc.

32. Usufruct is a right in a property owned by another, normally for a limited time or until death. It is the right to use the property, to enjoy the fruits and income of the property, to rent the property out and to collect the rents, all to the exclusion of the underlying owner. The usufructuary has the full right to use the property but cannot dispose of the property nor can it be destroyed

33. Max Weber The Typology of Law How law become the medium of change and gains legitimacy in society?

34. Two fundamental distinctions of legal systems Rational Procedures Irrational Procedures Involves the use of logic and scientific methods to attain specific objectives Rely on ethical or mystical considerations such as magic or faith in the supranatural

35. Legal procedures Formal law Formal irrationality Formal rationality Rules based on supernatural forces. It is irrational because no one tries to understand or clarify why it works and formal because strict adherence is required to the procedures. Involves the use of consistent, logical rules independent of moral, religious or other normative criteria that are applied equally to all cases. E.g : divine law. The Ten Commandments, for example were enacted in a formally irrational way: Moses claiming direct revelation, presented the tablets and announced, This is the law. Other examples – ordeals & oaths E.g.: Modern American or Western Law

36. Legal procedures Substantive law Substantive irrationality Substantive rationality A case is decided on some unique religious, ethical, emotional or political basis instead of by general rules. Application of rules from nonl egal sources such a religion, ideology or science. It is rational because rules are derived from specific and accepted sources and substantive because there is a concern for justness of outcomes in individual cases. E.g. when a religious judge makes a decision without recourse to explicit rules or legal principles. E.g. Ayatollah Khomeini of Iran to make decisions on the basis of the Koran.

37. Types of administration of justice KADHI JUSTICE EMPIRICAL JUSTICE RATIONAL JUSTICE Decided by the judge of Islamic Shari’a Court Deciding cases by referring to analogies and by relying on and interpreting precedents,. Based on bureaucratic principles, it looks toward contract, not status.. Perceived by Weber as arbitrary since it is based on religious precepts thus lack of procedural rules. Less rational Can be achieved by adherence to “eternal characteristics” (observable concrete features) of the facts of the case.

38. How law become an instrument of change? Feeling of law need to be observed - Feeling of obligation to observe. The belief of legitimacy: Traditional Charismatic Rational Belief in the sanctity of traditions and the legitimacy of the status of those exercising authority Based on devotion to the specific and unusual sanctity, heroism or exemplary character of an individual Based on the rights of those elevated to authority and to issue command. “Personal loyalty” Charismatic leader is obeyed by virtue of personal trust in his or her revelation or exemplary qualities. e.g. Muhammad saw, Moses, Christ, Buddha etc. Elections.

39. How law gains legitimacy in society? Waber – ‘acceptance by members of the society’ Types of ‘legitimate authority’ Traditional: Rulers’ authority was conferred by ancient tradition. Leaders are representative of God Charismatic: obedience to extraordinary person. Rational legal: impersonal authority + widespread belief in the legitimacy of enacted rules.

40. CONTRIBUTION Established the connection between laws, their administration and the life of the society. Law reform can be conducted effectively.