SOCIOLOGY OF LAW AND LEGAL PROFESSION : A CROSS-

CULTURAL THEORETICAL PERSPECTIVE

K.L. Sharma*
Introduction
STUDY OF sociology of law in India attracted attention quite
recently when some American and European sociologists, social anthro-
pologists and social historians began their studies in this branch of
knowledge. Justice P.B. Gajendragadkar and Professors G.S. Sharma
and Upendra Baxi from law schools were the first among those who
thought about sociological jurisprudence in the context of India. How-
ever, none from among the sociologists and social anthropologists ventured
in this field barring a few sketchy analyses of disputes and rules and
regulations regarding marriage, division of property and commensality
etc. The indologists certainly made serious analyses of traditional
customary Hindu law, but their writings lacked empirical validation and
substantiation. Marc Galanter and Charles Morrison undertook empirical
studies of sociology of law in India from the perspective of the Western
society, and have not gone beyond studying clients, munshis (lawyers'
clerks) and touts particularly at the district level.
Lawyers and clients should be seen analytically as independent entities
and at the same time as participants in a common system of relations.
Study of lawyers and clients refers to a host of social structural problems
including class relations, hierarchy, laws of inheritance, joint family,
innovations and continuity of traditions etc. In fact, such a spectrum of
relations encompasses understanding of socialization, stratification,
professionalization and networks. A sociological study necessitates a
probe into the functioning of the bar councils, apprenticeship of law
graduates, nature of legal education and daily routine of lawyers,
courts, munshis and other functionaries. No doubt lawyers have been
studied as professionals, scholars and politicians in view of their
caste, class and family backgrounds, but the fact that they are solo
practitioners of law in spite of their being closely attached to the corpo-
rate institutions like caste, class, lineage and family has not been
investigated even at the surface level. Lawyers in America are not much
attached to such primordial institutions, but they are working as law
firms. The frame of reference of law firms is in the back of Western
scholars and that cannot be applied adequately to the study of legal
profession in India as it is rooted in practice by individuals. A blending

* Associate Professor, Centre for the Study of Social Systems, Jawaharlal Nehru
University, New Delhi.
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 529

of structural perspective with historical specificity and processual approach

is apt for studying legal profession in India. The present paper focuses
on the nature of law, sociology of law as a field of inquiry, approaches to
the study of law, trends in the studies on sociology of law, development
of sociology of law as a discipline in the U.S.A., U.K. and socialist world,
and sociology of law in India.
Nature of law
Marc Galanter considers law as a cultural phenomenon and a process
of change,1 and in both forms law exhibits social structure and aspirations
of its various segments. Undoubtedly law is an instrument of social
change as an ethnocentric phenomenon, but this is purely a social
anthropological view which even some of the positivists from among the
anthropologists do not accept. Hence, a brief account of the philosophy
of law as a bearing of sociology of law. John Austin, the famous
political theorist, considers law as a command or order whose violation
is met by the threat of physical coercion.2 E.A. Hoebel accepts
the Austinian view of law.3 He observes, "A social norm is legal
if its neglect or infraction is regularly met, in threat or in fact,
by the application of physical force by an individual or group possessing
the socially recognised privilege of so acting." 4 He refers to primitive
archaic and modern law for primitive, ancient and developed civilizations,
respectively. However, he does not agree entirely with the culturological
view for studying law. All systems of law, according to him, must have
essential elements in common. A similar view is expressed by Eugan
Ehrlich as he opines that "a juristic act is never an individual, an isolated
thing, it is part of the prevailing social order." 5 Law must have its proper
frame of reference as Hoebel puts it. Since Hoebel accepts Austinian
view of law, he gives it the status of a scientific inquiry. It could be called
functional realism.
However, Hoebel does not support the logical abstractionism of the
Austinian approach, nor does he accept Hans Kelsen's legal positivism
advanced in the so-called pure science of law.6 Legal positivism is
simply a logic for the sake of logical exercise. Hoebel claims that he is
in search for the "social relatives" of the law that men have produced.
Law without its social context is simply a noteworthy mental exercise.
S.P. Simpson and Ruth Field observe, "Law without social content or
significance is law without flesh, blood or bowels. It is not even zombie-

1. "From the Editor", 10 Law & Soc. Rev. 5 (1975-76).

2. R. Campball (Ed.)» Lectures on Jurisprudence (1969).
3. The Law of Primitive Man 28 (1973) (Atheneum, New York),
4. Ibid.
5. Fundamental Principles of the Sociology of Law 397 (1936) (Cambridge).
6. General Theory of Law and State (1961) (Russell & Russell, New York).
530 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

law." 7 In fact, Hoebel does not deny the role of logic in law, but
considers experience as the life of law, that is, the experience of man
living in society.8 But law exists above and beyond the individual. One
finds an obvious contradiction in Hoebel's view that legal norms are
products of selection, and these norms are subject to the basic postulates
of a given society, and at the same time these norms are in isolation of
the basic social postulates on which the law system rests.
Malcolm M. Feeley observes that there are two main features of
most of the current social science research on law and society : (1) The
investigation of the gap between the legal ideal and actual practices, and
(2) law is understood as a command supported by sanctions. But Feeley's
contention is that these views are inadequate and misleading. The
first is theoretically indefensible and the second is too narrow. The
language of law is generally vague and its emphasis on a single goal or
set of goals leads to serious distortion in the analysis. Therefore,
Feeley does not consider law as a fundamental social process.9 Philip
Selznick considers that a legal order is known by the existence of authori-
tative rules, but Feeley does not accept such a view. According to
Selznick law is generic, it is a means of social control based on
formal authority and rule-making.10 Thus, one finds a combine of the
theory of law and the theory of authority in Selznick's formulation. In
other words, the theory of authority is reduced to the formal law. The
implication is that human behaviour is rule-governed, and authority as
a means of social control does not prevail outside the formal law. The
culturo-logical point of view regarding law does not find a mention in
Selznick's formulation.
Further, Feeley observes two weaknesses of Selznick's view. These are :
(1) The conception of law as command is overly static, and (2) it is so
preoccupied with a criminal law model that it ignores other forms of
laws.11 The laws of command are distinguishable from the laws that are
status conforming rules and the laws related to selective incentives. Thus,
the Austinian conception of law is too narrow. This narrowness of concept
has its parallel in contraction of empirical investigation and generalization.
Social scientists have also failed to see the functions of law in structuring
inequalities. The degree of differential access to the resources of law has
not been adequately focused. It is necessary to focus on the structural
features of the legal system itself.12 According to Shapiro all laws are by

7. "Law and the Social Sciences" 32 Va. L. Rev. 862 (1946).

8. Supra note 3 at 5.
9. "The Concept of Laws in Social Science: A Critique and Notes on an Expanded
View", 10 Law & Soc. Rev. 497 at 498 (1975-76).
10. "The Sociology of Law" in L. Friedman & S. Macaulay (Eds.), Law and the
Behavioural Sciences 5 (1961).
11. Supra note 9 at 504.
12. E.B. Pashukamis, "The General Theory of Law and Marxism" inH. Babb
(Trans.), Soviet Legal Philosophy (1951) (Harvard University Press).
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 531

definition political ; they allocate values, are authoritative, and hence are
policy. Thus all law-making from whatever source is political policy-
making.13 Donald Black suggests that a major focus should be on the pro-
cess of legal mobilization.14 But the fact is contrary to Black's view as law is
used as last resort by the people and that too without benefit of explicit
mobilization of legal institutions. Black's view also has the overtones of
the Austinian view of law. Feeley's view is that law can be conceived of as
an elaborate and subtle pricing mechanism which can supplement and
shape natural systems of exchange and interaction; hence one of a number
of interrelated factors in complicated systems of interaction. This model
of law is familiar to economists and the exchange theorists and to sociology
and social anthropology as it refers to concepts such as supply, demand,
opportunity, alternatives, transaction costs etc. Feeley claims that his
(this) view of law also fulfils the requirements of a Marxist view of law.
George Gurvitch, a well known authority on sociology of law, refers to
points of relationship between jural facts and social facts, and defines
law as an attempt to-seek justice through regulative mechanisms in a given
social environment.
The generic question is ; What is law ? The debate which we have
highlighted is in the realm of the philosophy of law. The philosophy of
law looks at law in its working—the suitability of legal instruments, nega-
tive consequences of law, and the myths about functioning of law and truth
about its role.15 Such a philosophy of law is also partial as it rejects
the positivist legal philosophy which states a positive relationship between
the state and law. The positivist philosophy of law does not concern
itself with law as dealing with social reality though law as a command has
been found as a reality, historically speaking.
There are a number of scholars who have considered law as a means
to define an end rather than an order in itself. Ehrlich rightly observes that
legal behaviour and its development do not depend on legislation, legal
sciences or judge's decisions, but on society itself.16 Thus he considers law
as a dependent variable.
Roscoe Pound's view is that law should be studied in its actual working
and not as it stands in the book ; it should be analysed in terms of its
consequences or effects, and related to the economic factors.17 The
Scandinavian school of law emphasizes the social origin of law and
encourages studying law as a social fact. Some other scholars have argued
that law should be studied as a social and psychological phenomenon.18
The Marxian view of law refers to the social and particularly the class

13. Quoting from Feeley, supra note 9 at 513.

14. "The Mobilization of Law", 12 / . Legal Studies 125 (1972).
15. Adam Podgorecki, Law and Society 4 (1974) (Routledge and Kegan Paul,
London).
16. Supra note 5 at 14.
17. Law and Morals (1926) (Chapal Hill).
18. Id. at 14.
532 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

origin of law and its use by the classes in power for their vested
interests.
There is no conflict between the philosophy of law and the sociology
of law if the two cling to a radical empiricism with an institutional basis.19
It enhances the objective validity of the spiritual data. The tasks of the
philosophy of law are : (1) To lead back from constructed and symbolic
jural experience in its various layers ; (2) to point out the specific nature
of jural experience as contrasted with other kinds of integral experience-
moral, religious, aesthetic, intellectual; and (3) to distinguish within jural
values between illusions—subjective projections of the collective mentality
and objectively valid ideal structures. Gurvitch further observes, "The
philosophy of law, thus understood, deduces nothing and prescribes
nothing. It provides no judgments of values, but merely theoretical
judgments about jural values which have really been grasped or embodied,
whose objective validity it only verifies and whose specific nature it
defines".20
Legal philosophers are interested in a variety of problems, both
philosophical or unphilosophical, and criticism. The theory or philosophy
of law may become the point of criticism particularly in the context of
empirical reality. To whom the theories or frameworks of law refer—to
the laymen, to the lawyers, to the legal philosophers ? There are several
points which are debated under the rubric of the philosophy of law, but
a critical point of view looks at a legal phenomenon in terms of its social
significance; hence sociology of law emanates from the philosophy of
law.

Sociology of law as field of inquiry

Emphasis in the sociology of law is on investigation of the operation of
interests, passions and prejudices of lawyers, clients, judges and citizens.
In relation to law. Many of the values, performances and explanations
of social groups are embodied in law, in substantive rules as well as in
guiding procedural principles. Relationship between law and society is
seen not only in terms of positive forms of law, but also in terms of law
as a tool in the hands of vested interests. When law is causally deter-
mined by the social structure, it becomes a dependent variable. But law
is also an independent variable as a vehicle of social engineering. Law as
such is seen as a means of communicating with the public. The relationship
between law and society is a two-way affair.
Conceptual and definitional wrangles are well known regarding
sociology of law. Black, "an uncompromising adherent of the positivist
approach", argues for the formulation of a "general theory of law". He

19. George Gurvitch, Sociology of Law (1973) (Routledge and Kegan Paul,
London).
20. Id. at 243.
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 533

does not consider his ideas as a philosophical point of view.21 Nonet

considers Black's view "less than a model of philosophical lucidity". His
(Black's) view is loose, inconsistent, and lacks a proper articulation of the
positivist doctrine ; hence intellectually sterile.22 But Black's view is quite
widely shared as a way of thinking, and as a programme for future
development of sociology of law. In fact, Nonet advocates a sociology of
law that has a policy dimension, and abhors dogmatic integrity and
orthodoxy of the present social science enterprise. Black's orientation
goes back to the legal realism movement, but Nonet pleads for liberation
of sociology of law from a notion of "hard" sciences. Nonet calls it
advocacy for "prescribed ignorance" and "bias and ideology". As we
mentioned earlier, Gurvitch considers sociology of law as part of the
sociology of the human spirit which studies the full social reality of law,
beginning its tangible and externally observable expressions, in effective
collective behaviours, and in the material basis. Thus, he also rejects
"positivist strategy" of Black. According to him, "...legal sociology envisa-
ges the quasi-infinite variety of the experiences of all societies and all
groups, describing the concrete contents of each type of experience...and
revealing the full reality of law which patterns and symbols veil more than
they express."23
Thus, sociology of law is part of the "depth sociology" as advocated by
Gurvitch. Gurvitch refers to three problems of the sociology of law : (1)
Problems of systematic sociology of law; (2) problems of the differential
sociology of law; and (3) problems of the genetic sociology of law. Thus,
he refers to the study of groups as collectivities. All laws correspond to
respective societies in terms of their fundamental character such as feudal,
bourgeoisie, American, Oriental, European, trade union law and state
law etc. Gurvitch distinguishes between the microphysical and macro-
physical sociology of law for studying perpetual tensions and sharp
conflicts. He states that the sociology of law cannot take the place of a
theory of law as it provides the positivistic interpretation of the philosophy
of law.24
The structural-functional viewpoint about legal profession is upheld by
Talcott Parsons.25 However, Parsons considers law as a part of cultural
tradition in a given society. According to this view law as a profession
has at least three characteristics : (1) It is in a curiously ambiguous position
of dependence and independence with reference to the state; (2) at the
same time, the profession is independent of political authority; and (3) the

21. Supranote 14 at 1096.

22. "For Jurisprudential Sociology/' 10 Law & Soc. Rev. 525 at 529 (1975-76).
23. Supranote 19 at 48.
24. Id. at 48-52.
25. "A Sociologist Looks at the Legal Profession" in T. Parsons (Ed.), Essays in
Sociological Theory 378-85 (1975). (Indian ed.) (Light and Life Publishers, New Delhi).
534 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 24: 2 & 3

position of the legal profession in the social structure is thus an "intersti-

tial" one. Parsons observes that the legal profession is, to an important
degree, "integrated with" the social structure of political authority, and at
the same time, it is organized around partly independent trusteeship of the
legal profession. Further, the profession has most of its dealings with
private persons, individual and corporate. The Parsonian view has
specifically lawyer-client relationship in American society in the
background.
While having the Polish society in view, Podgorecki has listed
the following functions of the sociology of law ;
(1) The sociology of law aims at grasping law in its working,
(2) it is to provide expert advice for social engineering;
(3) the sociology of law makes an attempt to shape its studies so as to
make them useful for practical applications; and
(4) the sociology of law struggles with reality.26
Thus, the sociology of law aims at the understanding of legal and social
phenomena, whereas the main concern of traditional approach to juris-
prudence is to undertake analytical-linguistic studies. The latter approach
needs a radical change. Podgorecki's approach is based on interdependence
of society on law and vice versa. Selznick also refers to a societal view. He
mentions three stages of the development of the sociology of law. These
are: (1) The primitive or missionary stage; (2) the sociological craftsman
stage; and (3) the "social engineering" stage.27 But the implication of
Podgorecki's view is that the interdependence between law and society
should result into the development of a general theory to explain social
processes in which the law is involved and hence linkage of law with the
bulk of sociological knowledge.
Finally, I will refer to the view of Jonathan Caplan regarding lawyers
and litigants. The profession of law has invented a language and a pro-
cedure which are unintelligible to the layman resulting into its monopoly
by some—the so-called legal pundits. What Caplan says is that even the
administration of the routine human affairs is in the firm grip of lawyers;
hence law is not a great reservoir of emotionally importont social symbols
or the leveller of social relations. Legal assistance (consultation) has
become part of human life like hospital assistance. As such, lawyers
rigorously preserve the status quo and act as powerful force against social
change, particularly changes in relations of production and property owner-
ship.28 Thus, he provides a Marxian interpretation of law and society
in the idiom of Ivan Illich.29 But this view is perhaps more applicable

26. Supra note 15 at 7-10.

27. Supra note 10 at 2-3.
28. "Lawyers and Litigants : A Cult Reviewed" in Ivan Illich and others (Eds.),
Disabling Professions 93-109 (1977) (Morison Boyare Publishers Ltd., London).
29. Deschooling Society (1973) (Penguin Books Ltd., Haimondsworth).
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 535

to the Western society where consulting a lawyer has become a cult viewing
him as a saviour of crises in some routines. The legal aid scheme extended
to the poor in countries like India could promote the cult of consulting a
lawyer. Contrarily, it could also make law in a realistic sense as a "service
profession". However, legal assistance in India continues to be rational,
market-situation oriented system mainly due to the colonial legacy of legal
profession.

Approaches to the study of sociology of law

The following approaches have been used for studying relationship

between law and society :
(1) Legal positivism;
(2) culturo-logical approach;
(3) functional approach;
(4) process approach; and
(5) Marxian approach.
Kelsen advocates pure science of law, but Hoebel and some others
consider his legal position as sociological abstractionism, which is, in
fact, based on the Austinian notion of law as a command or order. Such
a notion of law has been considered as a mental exercise. Black is the
most prominent protagonist of the positivist view. His view is that pure
sociological concepts should be applied to the study of law. He advocates
a general theory of law regardless of the variations in the patterns of law
in different cultural environs. We have stated earlier that Nonet has
critically examined the positivist view of Black in regard to its philosophi-
cal and empirical relevance. Feeley has also strongly criticized Black's
"legal positivism" and Austin's and Selznick's view. According to Feeley
all laws are culturally oriented (and politically as well). Thus law is an
instrument of social relations rather than a whip for the deviants only.
Accoding to Gurvitch law is culture-specific.
The functional approach to the study of law has been advocated by
Bronislaw Malinowski and carried forward by Hoebel, Parsons and
Ehrlich. According to Malinowski all custom is law to the savage. All
custom is obeyed automatically and rigidly by sheer interests. There is no
civil or criminal law as such among the Malanesian tribes. He defines
man's position in relation to society and vice versa as he refers to "recipro-
city" as the basic tenet of primitive law.30
Hoebel does not agree totally with the culturological approach to the
study of law. Law has certain elements in common, yet culturally and
historically it is specific. Hoebel defines his approach as functional

30. Crime and Custom in Savage Society 55-67 (1970) (Routledge and Kegan Paul,
536 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24: 2& 3

realism. Experience is the life of law, and logic is secondary to experience

in law. Ehrlich says that law is a social phenomenon; it is a part of
prevailing social order. Though Parsons derives his yardstick to test the
assumptions about the legal professions from the structural-functional
approach, yet he considers law as a part of cultural tradition in a parti-
cular given society. Parsons mentions about the impact of feudalism on
the legal profession and legal system. However, he looks at the legal
profession not as an isolated part but an integrated one with the social
structure and political authority.
The process perspective outlines that law should be used as the process
of "legal mobilization" to ensure a better understanding between the law
and the people. In other words, law should be used as an instrument of
the dynamic relationship between the percepts and the society in question.
Therefore, the meaning of law should not be taken as maintaining order
in a given society as it has been perceived by the functionalists. Law is
both dependent and independent variable. It should be used as a policy
instrument to ensure social engineering and welfare.
The basic tenet of the Marxian approach to the sociology of law is
that even if the given social system is structured by the legal system in
terms of equilibrium, it does not mean that the law has ensured the just
distribution of rewards and punishments. The "living law" would not
permit a law which contradicts this existing one. Therefore, it is necessary
to examine the coercive nature of the existing law which has survived in
the name of consensus and functional harmony of different segments of
the population of a given society. The orthodox Marxian approach to
the study of law refers to class origin of law and its instrumental character
as it is more or less consciously applied by the classes in power.30a
The Soviet view about sociology of law, which is also shared by some
Polish scholars, is that law studies the general regularities of the develop-
ment of state and law. Besides this, the sociology of law attempts to
achieve knowledge on how law contributes to the construction of com-
munism. Caplan observes that law is used to represent a litigant; hence
it creates dependency. A lawyer offers himself as a legalized strongman
like protection rackets. Thus, most legal systems create chaotic situation
of relationships. It is a burden on client and the tax-payer. A sense of
waiter-service, dependency, legal ritualism, lack of personal attention, and
the cult of legalism are some of the problems of the modern legal systems.31
Caplan's approach is not Marxian as such, but it exposes basically the
problems of routinization and ritual formation of legal practices which
prevail in the modern society at the expense of the litigants, the layman
and the tax-payer.

30a. Supra note 15.

31. Supra note 28 at 93-109.
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 537

Trends in the studies of sociology of law

Legal profession is highly stratified in almost all countries in terms of
more skilled or reputed and senior lawyers and less skilled or junior
lawyers. But the legal profession is also culture-bound. In America
law firms dominate the profession and not the individual legal practi-
tioners. In England, the legal profession is less commercially oriented as
it has more service ideal than the mere pecuniary mission. Law is
considered as a tool of social engineering and social development in the
socialist countries. In the countries of the Third World and particularly
in India the legal profession is not only highly stratified at each level of its
functioning, it is also culture-specific and familistic in nature and lacks
corporateness of the American law firm type. In India, legal profession
had/has dominance of the members of the upper castes. However,
sociology of law has not become popular as a field of inquiry.
Lawrence M. Friedman treats American law as a mirror of society.
American law takes nothing as historical accident, nothing as autonomous,
and everything as relative and moulded by economy and society. The
legal system works like a blind, insensate machine. It does bidding of
those whose hands are on the controls. It is concerned with the present,
current emotions, real economic interest, and concrete political groups.32
Friedman recognizes autonomy of legal order with legitimacy, which he
calls as part of a society's legal culture.33 These legal values and attitudes
determine the place of the legal system in the culture of the society as a
whole. Most scholars in the field of sociology of law have not emphasized
the legal historiography.
Nonet suggests that sociology should enlarge the intellectual horizons
of legal, political, economic and other modes of economic thought. It
should confine itself to its specialized institutional domains. The boundaries
should be drawn out between fact and value, law and politics, economy
and society, policy and administration with a view to realise the relevance
of facts, problems, interests, and values. Nonet further suggests that
there is a need for jurisprudential sociology. Such a sociology recognizes
the continuity of analytical, descriptive and evaluative theory.34 The
study of variables of law through empiricism is the main point focused by
Nonet. Parsons observes, "Law...consists in a body of norms of rules
governing human conduct in social situations, that is, involving the
relations of man to other man."35 Thus, law is considered as a cultural
tradition; hence the position of the legal profession in the social structure
is an "interstitial" one.

32. History of American Law (1954). See also Rheinstein (Ed.), Max Weber on
Law in Economy and Society.
33. "Legal Culture and Social Development", III Law & Soc. Rev. 20-34 (1968-69).
34. Supra note 22 at 543.
35. Supra note 25 at 372-73.
538 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2&I

Evolution of sociology of law as a discipline in U.S.A., Britain and

Socialist world
Legal profession in America has flourished through large law firms.
Lawyers in law firms are either partners or associates (employees)
who work for partners. "Law factory" is the reality of legal
profession. The lawyers are spokesmen for big business as advisors and
policy-makers. These lawyers as such become part of the power-elite.
The lawyer serves as the conscience of big business. He suggests his
client what is permissible and what is desirable. The lawyer should regard
himself as more than predictor of legal consequences. His duty to society
as well as to his client involves many relevant social, economic and
philosophical considerations. Some of these functions have been listed by
Edwin D. Smigei36 and Beryl Harold Levy37 in their studies of law
firms.
Smigei's findings about large law firms have been corroborated in a
study of Chicago lawyers by Jerome E. Carlin. Carlin observes that the
lawyer practising by himself and not as a member of a law firm is generally
at the bottom of the status ladder of the metropolitan bar. He is found
at the margin of his profession. Once upon a time the individual legal
practitioner was held in the highest esteem as the model of a free and
independent professional. Today he enjoys little freedom in choice of
clients, type of work or conditions of practice because of the roaring legal
business being done by the law firms.38
Carlin's study shows that the individual lawyer is rarely called upon to
exercise a high level of professional skill. This is so due to his low
quality of professional skill. He does a lot of routine work which other-
wise could be done by a non-technical person. The situation in India is
quite different from that of America. Legal profession in India is not
transacted through large law firms ; it is mainly dependent upon individual
legal practitioners, and some of them occupy very high positions in the
hierarchy of legal practitioners. Their support base is not the colleagues
or seniors, but it is outside the legal system including their family back-
ground and networks.
CM. Campbell and Paul Wiles state that sociological research in
Britain could be characterised in terms of two features : (1) The hegemony
of law is accepted and furthered; and (2) the nature of the legal order is
treated as unproblematic. The general functions of law are assumed to
involve the balancing and regulating of different social groups and their
interests. In other words, law is seen as having liberal and reformist

36. The Wall Street Lawyer : Professional Organization Man 5-8 (1969) (Indiana
University Press, Bloomington).
37. Corporation Lawyers : Saints or Sinners! (1961) (Philadelphia, Chilton).
38. Lawyers on Their Own 206-11 (1962) (New Rutgers Union Press, New Burn-
swik).
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 539

sentiments. Technical and legal considerations are not considered impor-

tant in socio-legal studies.3** In Britain, Campbell and Wiles observe :
"The focus is no longer on the legal system, known and accepted, but on
understanding the nature of social order through a study of law...The goal
is not primarily to improve the legal system, but rather to construct a
theoretical understanding of the legal system in terms of the wider social
structure."40
Distinction has been made between socio-legal studies and sociology of
law. In sociology of law there is no orthodoxy in methodology, and dis-
cussions include concern with most basic philosophical questions of social
science methodology such as the epistemological status of alternative-
research procedures. Understanding of law is thus different from "the
law in action".
Sociology of law is now considered as a conscious area of study. One
has to look to specific academic disciplines and to other factors. Education
and development in the fields of criminology and jurisprudence have also
contributed to the interest in law and society studies. Industrialization
has also contributed to the interest in the study of law and society.
Consequently legal educaction became popular and further contributed
to these studies. Thus, in Britain the genesis of law and society studies
could be related to intellectual, institutional and political sources.
The students of sociology of law have stressed the need for explana-
tion and theory in regard to certain basic questions of relation between
law and society, and the methodologies used to seek answers to these
questions. The questions of relation between law and society refer
to the legitimacy of the law and legal institutions, and legal definitions.
The following concerns may be mentioned :
(1) An initial interest in historical studies of law stimulated
examination of the emergence of specific statutes and the forces
that allowed or controlled their enactment. The nature of legal
order and control have been examined.
(2) The nature of the state is another prime concern of interest. To
a large extent this interest flows from Marxist theories of the
state. In fact, Marxist and, to some extent, anarchist view
continue as popular areas of law.
(3) The third area of interest is the analysis of the influence of devi-
ancy theory on sociology of law.
Thus, sociology of law in Britain reflects the divergencies and contro-
versies prevalent in contemporary sociology. One should think of a
multiplicity of approaches to the study of sociology of law. However,
the theoretical disagreements in sociology also become an obstacle in

39. "The Study of Law in Society in Britain" 10 Law & Soc. Rev. 547 at 553-73
(1975-76).
40. Id. at 553.
 540 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

conducting studies on relations between law and society. Sociology of

law demands commitment and application.
The main concern of the sociology of law in the U.S.S.R. is the study
of the social position of deputies to the Supreme Soviet and to the Soviet
of Nationalities, the problems of labour law, the fluctuation of factory
personnel, the problems of marriage and family, causes of delinquent
behaviour, and the problem of public opinion towards law.41 Researches
are conducted with some unconventional means for certain social and
political reasons. In Poland, law is viewed in its economic and political
backgrounds; it is considered as an instrument of social policy and a tool
of social change.42
Thus, the idea behind the present discussion is that the sociology of
law emanates from the theoretical streams, namely, from the study of
law, and from the study of professions. Sociology of law combines the
features of law and sociology. The nature of relationship between the
two varies from society to society; hence dependent upon historical and
cultural specificity.

Sociology of law in India

Sociology of law in India as a field of inquiry is a very recent pheno-

menon, and still remains a virgin area of sociological study. Veena Das
has written a trend report on the subject for the Indian Council of Social
Science Research.43 Upendra Baxi has also written a monograph Socio-
Legal Research in India : A Programschrift.u Baxi's work focuses on
the problems of research in regard to legal profession, while Das focuses
on sociology of law as such in India covering various aspects of relation-
ships between law and society. Some American sociologists45 have shown
interest, though scanty, in the problems of sociology of law in India.
Das divides sociology of law into four major fields ; (1) Processes of
dispute settlement, (2) judicial behaviours, (3) the legal profession, and
(4) law and the wider society. Her analysis is based on the
available studies of the land disputes, tribal communities and Sans-
krit literature etc. She suggests use of the studies of reports and judg-
ments on dispute settlements among different communities and groups
including the minority religious groups, legislative acts and their effective-
ness, study of the police, the legal profession and judiciary.46

41. Supra note 22 at 503.

42. Supranote 15 at 24.
43. "Sociology of Law", A Survey of Research in Sociology and Social Anthropology
367-400 (1974) (Indian Council of Social Science Research) (ICSSR), New Delhi.
44. (1975) (Occasional monograph series 12 published by ICSSR).
45. See III Law & Soc. Rev. (1968-69).
46. Supra note 43 at 360.
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 541

Baxi refers to three areas in which legal systems can be conceptualized:

(1) as an aggregate of legal norms, as a sum of its parts; (2) as systems of
social behaviours, of rules, statutes, and institutions as involving patterned
interactions between the makers, interpreters, breakers, enforcers, and
compilers of the norms of law, and (3) as social control of systems,
involving differential bases of social authority and power, different
normative requirements and sanctions, and distinctive institutional
complexes.47 According to Baxi there are two different systems of control
and command, namely, the state with its formal rules and regulations and
the indigenous legal systems operating informally. Thus, the two systems
may have contradictory values, at least, theoretically. There are three
aspects of legal systems as observed by him : (1) Legal system as a nor-
mative/ cultural system, (2) legal system as a congeries of formal/national
legal systems under the state auspices, and (3) legal system as a congeries
of informal/regional systems under non-state auspices. Thus, legal
systems are studied by academic lawyers, sociologists and anthropologists
respectively.
For a sociologist, the formal legal system is more than adjudicatory.
The formal legal system encompasses all institutions engaged in
social control, and in promoting planned or spontaneous social
change. Such a conception will also include the legislative institu-
tions, local self-government institutions, and institutions of agrarian
and economic development. Legal profession and legal education come
under this domain. Baxi focuses on the social context of the organisation
and functioning of the institutions of the formal legal system in terms of
stability, growth, change and social justice.48 Though Baxi emphasizes
region-specific studies with considerable degree of cultural empathy,
his perspective remains mainly functional. His frame of reference
includes concepts which are quite common to the sociology of law in
American studies.
Both Baxi and Das have simply indicated the areas of research interest
in sociology of law. They have not, in fact, reviewed the studies on
sociology of law perhaps because of the nonavailability of adequate
researches. A few commentaries and analyses of indological variety are
available in the texts on caste, religion and family. Since Independence
some studies of social welfare measures, law-making, law-interpretation
and law-enforcement have also been made. Studies of primitive law by
anthropologists have been undertaken. Legal education has also been
studied. Some American and Indian scholars have studied district court
systems and relations between lawyers and their clients,49 and lawyers
and touts.50 A couple of studies about the Indian lawyer and his
47. Supra note 44 at 19-20.
48. M a t 23.
49. See, e.g., K.L. Sharma,'Relations Between Lawyers and Their Clients (1981)
(mimeographed).
50. See, e.g., J.S. Gandhi, Lawyers and Touts (1982) (Hindustan Publishing House,
New Delhi),
542 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24: 2 & 3

relations with the clients are reported in the Law and Society Review
(volume III) (1968-69).
Legal profession and society in India
I have conducted recently a study of the relations between the lawyers
of Jaipur in Rajasthan (India) with their clients in terms of their sociali-
zation, stratification, professionalization and networks. The study focuses
on the following points :
(1) Theoretically and legally lawyers do not constitute an internal
stratification. Law treats all lawyers at par. However, in reality, lawyers
are a highly stratified professional community on the basis of income,
competence and esteem. They are generally divided informally into
seniors and juniors, and the established ones and strugglers.
(2) The internal stratification of the bar could be explained in terms
of different clientele milieu also. In other words, the nature of clientele
would reflect the position of lawyers.
(3) The different patterns of internalization of common value-orienta-
tions through the process of socialization towards professionalization have
also been studied. One could think of a continuum of conformists-
deviants in terms of acquisition of professional skills. The heterogeneity of
learning could be related to social class structure and the internal stratifica-
tion of the bar. The emphasis is on the machanisms of recruitment and the
process of socialization of lawyers.
(4) The corollary of the above points is that differential socialization
results into corresponding professionalization of lawyers. Even the
"reference values" of legal profession are a creation of class background
of lawyers. Thus, legal culture could be characterized by class structure.
The offshoots of these assumptions are some empirically relevant
points such as legal and extra-legal attitudes of lawyers, lawyer's image
in the public, his role as a social engineer, and as a catalyst of social
change, lawyer's involvement in politics, conflict among lawyers, their
academic values and interest, and lawyer's professional strains and
conflicts etc. I have undertaken a study of 140 lawyers and 125 clients.
Out of 140 lawyers 121 belonged to four upper castes, namely, Brahmins,
Banias (including Jains), Rajputs and Kayasthas. Only 19 lawyers belong-
ed to intermediate and lower castes and to the communities such as
Punjabis, Sindhis, Sikhs and Muslims. However, only 58 clients belonged to
upper castes, namely, Brahmins and Banians; 20 belonged to intermediate
castes, and the remaining belonged to the lower castes, tribes and the com-
munities such as Sindhis, Sikhs and Muslims. It is clear that the upper
castes have more lawyers and less clients and vice versa. However, there
is no corresponding relation between numerical strength of a caste and the
number of lawyers and clients that belong to it. Lawyers are more from
among the upper castes obviously due to their overall privileged position
in Indian society.
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 543

Legal practice calls upon study of law, apprenticeship, finding a

clientele, establishing colleague-relationship, enjoying professional auto-
nomy, compliance to authority, and relating the culture-bound laws
and conventions with the universal norms. We have studied the lawyers
of Jaipur from this point of view. Law has been viewed as an instrument
of social change and also as a dependent variable. However, lawyers as a
professional community have not contributed much to social change in
India after Independence though they played a vital role in the national
movement in the pre-Independence period.
It is interesting to note that lawyers are an organized group in India as
bar councils are the main instruments of their solidarity. They are not
found united for social service. Sometimes, they are accused of being
swindlers and sharks. Legal profession still enjoys a great deal of
autonomy, but this has not been used to promote the interests of the poor;
it has rather been exploited in favour of the rich and for politicizing the
legal profession itself. Indian lawyer practises on his own and not as a
member of a law firm. He is traditional in the sense that law in India itself
has the colonial heritage, and it is this law which he practises; how-
ever, he is modern in the sense that legal profession enjoys more autonomy,
formally less stratified than under the British rule, and lawyers are now
a more diversified lot compared to the pre-Independence period.
The Indian lawyer is litigious, individualistic, and unprofessional
because of the British colonialism. An understanding of the historicity
of Indian society reveals the unhistoricity of Indian legal profession. The
Indian lawyers are not standing on their own feet. Consequently, the
lawyer is behaving as a formal functionary without having any concern
of the sort of social enigineering for the problems of the people. The
people look at them as intermediaries between them and judiciary. They
do not treat them as advisors, negotiators and planners. It is not due to
unprofessionalism of legal profession, but mainly due to the structural
compulsions of Indian society.
The lawyers in India are stratified not only on the basis of their skill,
influence, prestige and wealth, but also in terms of their caste/community,
family status, religion, rural-urban background and affiliation to a political
party. In India, individual's own standing and his corporate social
bonds reinforce each other rather than cutting across.
It has been noted that lawyers were more of philosophers and law-
makers in the ancient and medieval India, and they were more of social
workers, men of praxis and freedom fighters in the British period, and
they have mainly been individual practitioners of law and power-seeking
manipulators in the post-Independence period. Academic scholarship is
also not a concern of the practising lawyers of today.
The non-legal factors such as family, caste, friends and networks
contribute a lot to legal practice in Indian context. It was found that 54
lawyers out of 140 had their relatives in the legal profession and other
allied fields such as judiciary. However, it is revealed by the
544 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

lawyers that they took up legal practice as their career either incidently or
unwillingly. A good number of them di3 not have satisfactory perfor-
mance at the graduation level and, therefore, they could not seek
admission for post-graduate studies in disciplines other than law. It is a
fact that some of the reputed lawyers inducted their sons and relatives into
the legal profession in order to extend the benefit of their established
practice and clientele. Some lawyers have used their position in the profes-
sion for making inroads into power-politics for themselves and their
relatives. Lawyers-turned-politicians have become a pronounced feature
which has in turn adverse effect on the professionality of legal practice.
Consequently, some lawyers have proved themselves as successful politicians
and second or third rate legal practitioners. Study of law provides
cognition about politics, and practice of law takes lawyers closer to the
people. This fact can be better understood by having the ethno-
methodological ideology in the study of legal profession.
Clients are from all caste categories, and they are more from among
the upper castes, though proportionately less than lawyers. Fathers
of about one-third of the clients were involved in litigation. Generally,
the litigants belonged to the same kin, caste, neighbourhood and
professional groups. Compromise was not quite common after formal
involvement in litigation. There is a culture of litigation, but there is
nothing like professionalization of litigants. However, there were some
persons who would instigate others for getting into litigation with a view
to extort money from them by taking advantage of their false hope
of solution of their problems through litigation. Generally, a litigant
is familiar with structure and functioning of courts. He knows about
the importance of the munshi and the clerk in the court who deals
with his file, and also about the touts who might have connivance with
the legal functionaries including the lawyers.
A close look at the historicity of law practice, legal education and the
bar councils reveals that the indigenous Indian lawyers were rigorously
kept out of the higher courts for a long period in the pre-Independence
era. Under the cover "justice, equity and good conscience" the British
rulers applied the local laws, and at the same time kept the higher courts
under their full command. It was a well thought of policy of divide and
rule. In fact, the British rulers deliberately created a hierarchy among
legal practitioners as there were two classes of pleaders: (1) Pleaders of the
first grade entitled to practice before the chief court; and (2) pleaders of
the second grade entitled to practice before subordinate courts. In
addition to these two types of pleaders there were attorneys at the level
of High Courts. Besides attorneys, there were advocates and vakils. The
advocates were mainly barristers of England or Ireland or Scotland. The
qualifications and conditions for practising varied from court to court. At
the lower courts there were also third grade pleaders and revenue agents.
On the original side the vakils were not allowed to practise. Despite this
notoriety of hierarchy which was introduced by the British rule, the legal.
1982] SOCIOLOGY OF LA W AND LEGAL PROFESSION 545

profession in India from its low prestige evolved into the highly respected
and domineering profession. It drew talented Indians who had high
respectability and legal knowledge. It is said that the Indian lawyers
have become more litigious and less rationalistic after Independence.
In India the legal education has been less technical compared to the
education in the fields of science, technology and medicine. Knowledge
about rules and regulations has been the main focus in the study of law
rather than the philosophies and principles of law. The study of law was
made a part of the studies in liberal arts in the second half of the last
century. However, in the West European countries and U.S.A. the legal
education is considered to be a highly specialized field of study.
The Bar Council of India has been demanding abolition of ranks
among legal practitioners. However, the ranks still exist. The bar is
highly differentiated because a dual system exists in Calcutta and Bombay
High Courts, and in a modified form in the Supreme Court. One view is
that such a differentiation ensures a proper division of labour between
various categories of legal practitioners. Clients associate themselves
with the lawyers corresponding to their position and requirement. Thus,
stratification existed in the bar in the form of the English and the
indigenous advocates, advocates practising at the original side and those
who were not allowed to practise at this level, advocates practising at the
various levels of judiciary, and finally the differentiation based on the
nature of specialization and professional esteem.
About fifty per cent of the lawyers who took up legal practice as their
choice with a view to make a career considered that prestige, autonomy
and freedom were the salient attributes of the legal profession. However,
the successful lawyers have been those who have taken enough pains to
understand the problems of clients and created a genuine image among the
public about their sincerity, integrity, hard work and professional com-
petence. Fifteen top-ranking lawyers have been mentioned on the basis
of their generalized status.
The initial phase in a lawyer's career is very critical. He is required to
undergo a process of tantrums to be on his own. He needs a sort of
patronage of someone who is well established in the legal profession.
Legal practice is a kind of enterprise and in some cases it is a phase of
struggle in the legal profession as a lawyer faces several problems such
as getting clientele, meagre income, inadequacy of books, lack of guidance
and cognition about legal culture. Once a lawyer is able to come out of
these problems, he can claim some degree of professionalization. In terms
of praxis of law, it is considered more or less an art in court culture, an
ability to argue out skilfully the client's case.
Today lawyers do not come from aristocratic background as they did
before Independence. They are comparable with businessmen of various
sorts who rub shoulders with clients belonging to different sections of
society. However, the top ranking lawyers derive power mainly from
their professional esteem and income. The lawyers at middle and lower
 546 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

level derive power from their hard work, sincerity and professional
knowledge. It is also a fact that some of the lawyers are mediocre, but
enjoy power due to their connections with some professional dons and
persons in positions of power. Legal professionalism is also linked with
political problems; hence relations between lawyers and politicians.
Lawyers have a great deal of understanding of the problems of people,
and they take full advantage of this for extracting monetary gains. The
bar councils do not have any effective control over such extortions by
lawyers. The lawyers take full advantage of the professional autonomy for
indulging in such unprofessional activities.

Concluding remarks
We have stated earlier that the present paper focuses on the nature of
law, sociology of law as a field of inquiry, approaches to the study of law,
trends in the studies on sociology of law, development of sociology of law
in various countries and legal profession and society in India. The basic
point of contention is about relationship between law and society. Whether
law is a command, something of the nature of superorganism and hence
beyond the people, or whether it is a social reality—a result of a society's
experience and like any other aspect of the life of its members? We have
discussed the philosophy of law and its ramifications with a view to
understand the pedagogic aspects of sociology of law and also the existen-
tial and experiential bases of law to find out the relationship between
these two dimensions in the study of sociology of law. The functional,
positivist, Marxian, radical empiricist, institutional and existentialist views
have been discussed with a comparative focus. The debate has implications
for the methodology of sociology of law and we have discussed that too.
Our main concern is the evolution of legal profession in terms of its
sociological dimensions. Legal profession is highly stratified and at the
same time it is culture-bound. In America it is a corporate enterprise and
in England it is more of a social engineering. In countries of the Third
World and particularly in India, legal profession lacks both the aspects,
namely, corporateness as well as social engineering; it has dominance of
the upper castes, and academically sociology of law has not become a
popular field of inquiry. However, the preceding discussion shows that
sociology of law emanates from the theoretical streams, namely, from the
study of law and the study of professions. Thus, sociology of law combines
the features of law and sociology. The nature of relationship between the
two varies from society to society; hence a need for structurally specific
historical approach.
The study of sociology of law in India is a recent field of inquiry. The
advocates of sociological jurisprudence view society from the legal point
of view. Gajendragadkar, Sharma and Baxi have had their training in
law, and the realization about social relevance of law is a Jate addition to
their thinking and viewpoint. For a professional sociologist law would he
1982] SOCIOLOGY OF LAW AND LEGAL PROFESSION 547

a dependent variable; hence analysis of law in terms of social background

of law-makers and social constraints. There has not been adequate
research in which both the perspectives have been suitably combined from
the viewpoint of historicity of Indian situation.
The study of relation between lawyers and their clients reveals that
both lawyers and clients are highly stratified. Professionalization of law
practice is very important factor in legal profession, but socialization,
political contacts and caste background also contribute not only to the
entry to legal profession but also to professionalization itself. The Indian
lawyer does not practise as a part of a law firm though in several ways the
primordial institutions such as family, neighbourhood, and caste lend a
support to the establishment of his practice. The lawyer today is more a
man of practice than an academician or philosopher. Lawyers are not
engaged today in the task of nation-building and reconstruction. They
have become more of enterprisers. One finds now lawyers from various
castes and communities whereas in the pre-Independence era they had
aristocratic background. The autonomy of the legal profession and
individualism in practice have diversified lawyer's interests in extra-legal
activities, particularly in the field of politics.