Author: Princi Bhardwaj, pursuing B.A.LL.B (Hons.) from Aligarh Muslim University
Introduction
The Social Perspective of Law aims at studying the interrelationship between the law and society. It is concerned with understanding the actual working of laws by analyzing the functionals and practical aspects of law in a social set-up. The development and evolution of society did not happen in isolation and at a single place or time. The society evolved gradually and with its evolution several social, political and economic changes were also introduced. After the French Revolution of 1789, several social and economic changes came in the society.
As economic disparities grew among the people, the society began to be divided in various social classes which led to social inequalities. Individual rights and liberties began to be demanded by the people. With the introduction of such social and economic changes and the rise of modern science, social scientists realized the need of applying scientific methods to study the various aspects of law and society. In 1838, Auguste Comte, a French Philosopher, developed a new discipline called Sociology to study the various aspects of society. The introduction and development of Sociology as a discipline, led to the establishment of the Sociological School of Law. The Social Perspective of Law attempts to study the role of law in society and the application of various social sciences to the study of law so that Law can be used as a more effective instrument of social control and development. It wants to study the actual functioning of laws in society to achieve the common good of the people and to ensure that the laws that are made help in achieving the individual as well as the social interests. It aims at using law as an instrument to solve social problems. The chief proponents of this approach include Rudolf Van Ihering, Eugen Ehrlich, Roscoe Pound, Jeremy Bentham, Duguit etc.
The Social Perspective of Law aims at studying the interrelationship between Law and Society in the following four aspects:
Social Origin of Laws and Legal Institutions
Examination of impacts of law on society.
Inquiries regarding which laws should perform in society (Social Performance and tasks of Laws).
Test for validity of Laws.
Social Origin of Laws and Legal Institutions
According to the German philosopher, Rudolf Von Ihering, the origin of Laws takes place through Sociological factors.He defined law as a part of social conduct. Ihering believed that the primary necessity for law was to serve social needs and purposes. Laws should be able to serve the individual interests of people as well as the society as a whole. However, sometimes it becomes difficult to reconcile between the individual and social interests and the need for balance between various interests arises. For this purpose, those interests can be categorized into three kinds:
Individual Interest
Social Interest
State Interest
According to Ihering, such reconciliation of various interests can be brought through principle of the Levers of Social Motion. In this principle he combines the egoistic and altruistic motives of various interests through the Principle of Reward and The Principle of Coercion.
Principle of reward means awarding rewards in the process of legal framework if a person performs an altruistic act or honestly performs a duty that he is bound to do. This principle encourages people to contribute to social as well as economic welfare of the state.
Principle of Coercion means awarding the legal punishment if a person does an act which violates the legal or social norms or if he does not perform the duties which he was expected to do. This principle helps in maintaining the law and order of the state. It can further be divided into two categories:
Organized Coercion: It includes punishment for the violation of a legal duty or provision.
Unorganized Coercion:In this the punishment is given not for a legal wrong but for the violation of social norms and values. This type of Coercion can vary from one place to another depending on various factors.
Ihering defines the altruistic levers of social motion as the feelings of duty and love in which a person is not legally bound to do an altruistic act but he does so because of the feeling of love, respect and compassion. Ihering describes the feeling of love as a medium to achieve social ends and to peace, harmony and prosperity in society.
Ihering also talked about the interdependence of the various factors of society that are important to make the society functional. Ihering classified those factors into three categories:
Extra Legal Conditions: Those conditions which are under the control of nature.
Mixed Legal Conditions: Those conditions in which law does not play a significant role.
Purely Legal Conditions: Those interests which can be secured only by legal regulations.
Ihering considered law as "the sum of 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".[i]
Ihering is not in the favor of the priori theory of justice simply because of the reason that the laws which are considered to be bad today may be considered as good in the future as the social, economic and political conditions change because the social acceptance and successful implementation of laws mainly depend on the socio-economic conditions of the society.
Impacts of Law on Society
The impact of laws on various aspects of society is mainly explained by the theories and concepts given by the Jurist, Eugen Ehrlich. According to Ehrlich, the laws formed in formal legal Institutions such as statues, precedents, legislations etc. do not present a complete and adequate picture of what is actually happening in the community. The norms and values which actually govern the social communities are often quite different from the formal laws which sometimes exist only on the papers and not in reality. He made a distinction between Norms of Decision and Norms of Conduct.
The Norms of Decision represent the formal laws and correspond to the traditional knowledge and understanding of laws.
The Norms of Conduct represent the living law or the laws which actually govern the living norms of society or community.
Ehrlich explains that there is an inevitable gap between the Norms of Decision and the Norms of Conduct which means that the formally made laws do not always show the same impact on the ground or in reality as they do in the formal structure. It is often seen that laws do not get implemented to the level that they were intended to be when they were formally made.
To bridge this gap, Ehrlich gave the famous Theory of Living Laws.
The Theory of Living Laws:The jurist, Eugen Ehrlich gave the theory of living laws. According to Ehrlich the laws made by formal institutions do not present a true picture of the whole society as they are not uniformly implemented. According to Ehrlich, the living law of every society lies in the society itself and not in the formal legal Institutions. He was of the opinion that laws should not only be confined to the formal legal framework. It is important for the laws made for the benefit of society to be implemented in the actual social framework.
Awareness of the living law is very important for the effective functioning of laws. It is essential for the lawmakers to understand the ground reality of the laws after making them. A nexus and relation is important between the common people and the lawmakers because when there is no connection between the people (the ground reality) and the lawmakers, it leads to more confusion than solution.
Ehrlich considered the customs, morality and the practices of groups and associations as important factors in state control and regulation along with the formal laws of the state and its organs. He was of the view that Jurisprudence should not only be considered the formal laws or statues but it should also focus on the living law which plays an important role in regulating the society.
However, there were some drawbacks of Ehrlich's theory because of which it was criticized by jurists and social thinkers. His distinction between the Norms of Decision and the Norms of Conduct was accepted but he failed to explain the mutual interaction between the two. Also, he deprived the formal laws of any creative activity or usefulness and merely described them to be trailing behind the social developments.
Tasks of Laws in Society
The third aspect of Law that the Social Perspective of Law attempts to study is the tasks that laws are expected to perform in society. This aspect is mainly understood by the Utilitarian Theory of Jeremy Bentham, who is considered to be the pioneer of functional Jurisprudence.
The Utilitarian Theory:According to Jeremy Bentham, every man is governed by pleasure and pain and the purpose and function of laws should be to promote the greatest happiness to the greatest number of persons. This task of laws can be achieved through the Maximization of Pleasure and the Minimization of Pain. He also devised a method of measuring happiness through the quality of pleasure resulting from an action. The good actions resulted in pleasure while the bad ones resulted in pain. According to him, laws should aim at providing happiness, equality of opportunity and security for all the members of society. He favoured the acquisition of private property because he thought it to be important for the fulfillment of desires and expectations of people. He was of the view that laws should focus on the happiness of each individual which will gradually result in the happiness of the whole society and it will also promote justice, equality and well functioning of the laws in society. This theory asserted that the task of law making is to ensure the welfare of the people and to fulfill their needs and interests.
It also stated that laws should be judged according to their consequences.
Another significant proponent of Sociological Jurisprudence is Roscoe Pound. According to Roscoe Pound, the making, interpretation and application of laws should involve various social factors. To ensure this, he suggested that:[ii]
There should be a functional study of impacts of legal institutions on society.
There should be a social investigation before making the laws.
A constant study of law and society should continue to make the laws more effective on the ground level for which the Psychological and Sociological study of the Legal Methods and Legal History should be done.
Establishment of the Ministry of Justice to meet the social ends.
According to Roscoe Pound, in order to achieve the purpose of legal order, there must be:
Recognition of interests- individual, public and social.
A definition of the limits within which such Interests will be legally recognised and given effect to.
The security of these interests within the defined limits.
Using this classification as the basis of his theory, Roscoe Pound developed a famous theory of law which is called Social Engineering.
Social Engineering: The Theory of Social Engineering was given by Roscoe Pound. Social Engineering aims to make an efficient structure of society which requires the satisfaction of the maximum number of persons. It aims to achieve the maximum happiness and wants of the maximum people and to minimise the friction. This can be made possible by balancing the competing Interests of various groups. For this purpose Roscoe Pound has made a distinction between the individual, social and public interests.
Individual Interests
Individual interests are the wants and desires of an individual,and they are looked at from the point of view of an individual. Individual interest includes the following aspects:
Personality: It includes interests in the physical personality of a person, dignity, privacy, freedom of will, faith and belief, opinions and honor and reputation of a person.
Domestic Relations: Domestic relations of a person include his parents, children, spouse etc. Pound has made a distinction between the domestic relations of an individual and the social institutions of family and marriage.
Interests of Subsistence: These interests include the interest of acquiring private property, freedom of industry and contract, freedom of association and employment, having advantageous relations with others.
Public Interests
Roscoe Pound defined public interest as, ' the claims associated in title of a politically organised society; as one might say for convenience, the claims of the state, political organization of society'.[iii] In simple words, public interest can be defined as the demands and desires asserted by individuals from the point of view of the political or public life. It includes the:
● Interests of the state as a juristic person.
● Interests of the state as the guardian of social interests.
The Interests of state as a juristic person include:
● Liberty, integrity, freedom of actions and honour of the personality of the state.
● Claims of the politically organised society of the state.
● Recognition of state as the guardian of social interests.
Social Interests
Social Interests are the demands and desires of social life that are considered to be the claims of various social groups. Social Interests have dominance over the individual interests. Social Interests can be classified into the following six categories:
Social Interests in the General Society: These are the demands or desires asserted by the social groups in a civilized society. They are to be secured against those actions or forms of conduct which threaten the existence of the social groups. They include a number of factors such as- General Safety, General Health, Peace and Order, Security of acquisition and Security of Transactions.
Social Interests in the Security of Social Institutions: They include the demands or desires in a civilized society that the fundamental social institutions be secured from any form of action or conduct that threatens their existence or effective functioning. These institutions include- Social Institutions, Domestic Institutions, Political and Religious Institutions.
Social Interests in General Morals: It includes the demands or desires of society for the general security of the moral sentiments of the general public. It deals with sensitive issues like Prostitution, Gambling, Drunkenness and other unhealthy social practices.
Social Interests in the conservation of Social and Natural Resources: This principle of Roscoe Pound is similar to the modern day concept of Sustainable Development. Roscoe Pound asserted that the present generation of individuals should judiciously use the natural and social resources to fulfill their needs and desires so that the resources do not get exhausted. There should be no abuse of resources and they should be wisely used, keeping in mind the needs of the future generations also.
Social Interests in General Progress: This includes the demands and desires in a civilized society for human development and control over the natural and social resources to satisfy the human desires. It demands the continuous improvement in Social Engineering for the complete and higher development of human powers. These Interests are divided into three categories:
Economic Progress: It means the development of society in economic terms. It asserts that every member of society should be able to get the basic necessities and rights. It includes the freedom to use and sell property, Freedom of Trade and industry and encouragement of new and creative inventions by grant of patents.
Political Progress: It means that the basic rights and liberties should be available to every member of the society. It includes Freedom of Speech and Expression, Freedom of Association and the Freedom to assemble and protest peacefully.
Cultural Progress: Cultural Progress includes the promotion of Education, Art, Literature, freedom of science and learning and aesthetics.
Social Interests in Individual Life: It is concerned with the demands that each individual should be able to live according to the standards of society. It includes self assertion, opportunity and conditions of life.
By drawing a distinction between the different kinds of Interests Roscoe Pound attempted to reconcile and balance between the conflicting interests of different members of society so that the purpose of law and order can be achieved.
Validity of Laws
This aspect of the Social Perspective of Law is concerned with the criterias to check the validity of Laws. It is mainly based on the works and theories of Leon Duguit. He made an attempt to develop an approach to the traditional concept of state and sovereignty and to study laws from the social perspective. This aspect is mainly based on Duguit'sPrinciple of Social Solidarity.
Principle of Social Solidarity: According to Duguit, the interdependence of humans is the most important and inescapable feature of human existence and society. He believes that all human beings are interdependent on each other since the very beginning of the society as it is impossible for humans to live in complete isolation. This interdependence becomes possible through the mutual cooperation among people as it leads to the smooth functioning of the society by promoting peace and harmony. This is the Principle of Social Solidarity.
According to Duguit, the state and its maintained institutions should be judged according to the contributions they make to promote social solidarity. Duguit also asserted that if the state fails to work for and promote social solidarity then it becomes the responsibility and duty of the citizens to revolt against the state. Duguit criticized the traditional concept of sovereignty of state. He held that the state is not indispensable and the legitimacy of his authority should be tested through the actions it performs in favor of social solidarity. He favored the sovereignty of the people and held that laws should be made according to the public needs and their opinions. According to him sovereignty can not exist if the interdependence, cooperation and peaceful existence of humans disappear.
He emphasized on the concept of Decentralization so that power does not stay in the hands of a single authority. He believed that Decentralization of power will lead to more accountable and more effective functioning of the government.
However, Duguit's Principle of Social Solidarity is the most ideal situation which is difficult to be achieved in the practical sense. For instance, the discriminations prevalent in society on various grounds are a hindrance in the promotion of social solidarity. Different laws should be made and affirmative actions should be taken to end such discriminations which will lead to social solidarity among the people. Duguit defined three types of forbidding laws that may help to promote Social Solidarity:
Freedom of Contract.
Respect for Property.
Liability only for fault.
According to Duguit, Social Solidarity is the valid criterion to test the validity of laws. Social Solidarity also makes people more obedient towards laws and strengthens their belief and trust in the legal system.
Conclusion
The Social Perspective of Law is concerned with the study of the interrelationship between Law and Society. It attempts to understand the actual functioning of laws in the social situations so that law can be used as an instrument of social control to meet the social ends. This Approach believes that the purpose of laws is to fulfill the needs and desires of the people. To ensure the fulfillment of this purpose, it attempts to study the relationship between law and society in four different aspects. The first aspect deals with the social origin of laws and legal Institutions according to which the eminent jurist, Ihering says that it is necessary to reconcile between the conflicting interests of different groups which can be achieved through the Principle of Levers of Social Motion which uses the Principle of reward and coercion for the maintenance of law and order in society.
The second aspect is the impact of laws on society which aims at studying how the laws affect the social conditions. This aspect is understood through the works of Eugen Ehrlich who gave the theory of living laws to understand the impacts of laws in society. According to this theory, the formally made laws should be properly implemented in reality also as sometimes the laws which exist on paper do not prove to be much effective in reality. Hence, the lawmakers should understand the social conditions and needs of the people before making the laws.
The third aspect is related to the performance of laws in society which is understood through the Utilitarian Theory of Jeremy Bentham and the Social Engineering Theory of Roscoe Pound. According to these theories laws are considered to be effective when they promote the happiness of the maximum number of persons and minimize friction. The Social Engineering Theory talks about the reconciliation of various kinds of interests to promote peace and harmony in society.
The fourth aspect is to check the validity of Laws in society which can be tested through the Principle of Social Solidarity given by Leon Duguit. According to this principle, the laws should promote social solidarity which leads to cooperation among people and helps in building a peaceful and harmonious community. All of these aspects are important to study the Social Perspective of Law which plays an important role in the effective functioning of Laws in society.