What is sociology ? Sociology has defined by Faris as,
“ A branch of the science of human behavior that seeks to discover the causes and effects that arise in social relations among persons and in the intercommunication and interaction among persons and groups”.
Comte outline the methods to be applied to the study of the society as the observation, analysis of observation and deriving conclusions. Historical social investigation also is important in society. Sociology on the basis of this, is a study of society based on observation
The sociological approach to jurisprudence suggest that law is a social phenomenon reflecting human needs, functioning as an organized system and embodying within its fundamental principles and substantives rules a society’s basic values.
The appropriate methodology of jurists who favor this approached is based on the systematic analysis of the structure , functions and value of the legal systems. Its distinctive features from the other schools of law can be deduced by referring to the philosophy or concept of law in view of these three theoreticians ; Jhering , a German jurist; Ehrlich , an Austrian jurist and Pound, the pioneer of the analytical ,systematic approach to jurisprudence.
Jhering : the balancing of interest
Rudolf von Jhering (1818 –1892) for instance who was an outstanding figure of the early sociological school was a ‘ social utilitarian ’ who believed that the essence of law could be expressed by reference to its very purpose which was social .Law existed according to him is to protect the interests of individuals and society by balancing and coordinating interests.
Law is the sum of the conditions of social life in the widest sense of that term, as secured by the power of the State through the means of external compulsion. Interest dictate purpose , they need to be studied if the purposes of law are to be understood:
· The law should attempt to achieve an equilibrium of individual and social principle purposes.
· The creation of unity from diversity demands an effective law which will reflect social purpose and contribute to a partnership of individual within the society.
Ehrlich : the ‘living law’
Another sociological jurist , Ehrlich (1862-1922) differentiated ‘norms for decision’ (formal laws and other regulations) from ‘norms of conduct’(self-generating social rules).The norms of conduct according to him are often contrast to the rules enforced by the State and constitute the ‘living law’, which reflects the truth values of society.
A vital task for legislators, judges and jurists is to discover the ‘living law’; this involves studying much extra-legal data when investigating a legal problem. The province of jurisprudence must be boundless because the facts of the living law are the facts of social life entirety.
Pound : the balancing of interest
Roscoe Pound (1870-19640) on the other hand gives the modern approach to the sociological school. He defines an interest as :
“ a demand or desire or expectation which human beings either individually or in groups or associations or relations, seek to satisfy, of which therefore the adjustment of human relations and ordering of human behavior through the force of a politically organized society must take account”.
Law according to him is as a social institution created and designed to satisfy human and social wants with least sacrifice. Therefore, the principal task for legislators, judges and jurists is the balancing of individual, public and social interest.
He opined that the sources of legal rules are religion , custom, philosophical idea, adjudication, scientific discussion and legislation. He further mentioned that in the sociological jurisprudence , the law has to be made with the objective to bring about harmony an orderliness in the society. He said that, for making such law we have to do the following:
· Study of the existing law from the point of view of its effect in the society.
· Social observation for legislation, to make study for making law more effective.
· Study of judicial method
· Study of legal history
· Study of social justice and economics justice
· Setting up ministry of justice and law
CONCLUSION
Thus , what can we conclude here is that the sociological jurisprudence is the latest trend in the legal theory which linked with the discrediting the legal positivist of John Austin and Historical pessimist of Savigny which both of them had closed their eyes to ever increasing gap between law and society.
It emerged with the growth and development of social science which enriched and quickened the phase of the growth of social oriented law and legal institution. Accordingly, law became a synthesis of the rest of social sciences and begin to understood in terms of utility, purpose, effect and function.
Sociological jurisprudence strive to study law in terms of immediate needs and requirements of individuals and others in the varying groups and it concerns wholly the effects or results on society rather treating law as a will of God or command of sovereign or universal reason or volkgeist of the people.
There are therefore five distinctive features of sociological school that can be laid down,there are as follows:
1. Social jurist regards the working of law rather than abstract content of law.
2. Whereas, analytical , historical and philosophical jurists consider law in terms of deliberate command or abstract right reason or unconscious silent feature, the sociological jurists regard law as a social institution, consciously designed on the basis of experience and need of the people.
3. Sociological jurists emphasized on social requirements and purposes which the law must attempt to answer.
4. The cardinal feature of sociological jurisprudence is to emphasize the functional and operational aspect of law and legal institutions, doctrines and percepts as a tool technique to observe the varying individual of social interest.
Ulasan