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SOCIOLOGICAL SCHOOL
Prepared by: (c) Dr. Anthony S. Aladekomo
Elizade University
Faculty of Law
Ilara-mokin
Ondo State
2024/2025 Session Jurisprudence and Legal Theory II Lecture Notes

Sociological jurisprudence may be defined or explained as the philosophical theory

that posits that law is a method of social control and is concerned about law in action
or how law really operates. It rests on the pedestal that positive laws are a mode of
social control and must foster changes that reflect the interests of the society.
Sociological jurisprudence dismisses the natural law theory of the existence of
ultimate values, but emphasises the significance of harnessing the knowledge of
sociological studies and the techniques of the social sciences for the construction of
a more functional science of law. It teaches that, as a form of social control, law
must be developed with regard to existing social needs and must rely on social
science researches so that it can occupy the right place in the society and be effective
in action. Based on their perception of law as an instrument of social engineering,
sociological jurists want to see the effects of law upon the society. They call for a
new functional approach to law and believe that the ministry of justice and the
judiciary have an important role to play in this. Among the most famous sociological
jurists were Rudolf von Jhering and Roscoe Pound.

Sociological school of jurisprudence gained momentum in the 20 th century. There

may be no precise concept of sociological jurisprudence, but the following can be
deduced as the ideas of sociological jurists:
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1. Postulation that law is one of the several methods of social control and that the
others are religion and morality. Law alone cannot bring order and stability to the
society.
2. Rejection of the view that law can function without reference to social
phenomena. Thus, jurisprudence of “concepts” of law as a close logical order,
including the pure theory of law, are regarded as grossly erroneous.
3. Preference for law in action over law in books or theoretical formulation. In other
words, sociological jurists are practical lawyers but skeptics about law in books.
Roscoe Pound himself was not just a law professor but a legal practitioner.
4. Preference of relativism over universalism. Sociological jurisprudence rejects the
naturalist theory teaching that a universally applicable values could be found.
5. Emphasis on harnessing the techniques of social sciences for the promotion of
law. They stress the need for the conduct of sociological research for the
construction of a more effective science of law. In other words, legal research alone
cannot achieve the reform and improvement of law; legal research must be
accompanied by a deep study of social phenomena. For example, any law that tries
to criminalise acceptable social phenomena will have problem of enforcement. See
Mohammed v Knott [1969] 1 Q.B. 1 and statutory provision for polygamy, and the
law against spraying of the naira.

Emile Durkheim
Emile Durkheim was a French sociologist and one of the founding fathers of
sociology. He was one of the first scholars who emphasised the need to study law in
its social and historical context. He postulated that there is a connection between law
and all forms of societal relations. He maintained that law and morality are virtually
synonymous because law is an expression of the society’s morality.
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Durkheim viewed law as very important for the understanding of social life in
general. He viewed social and collective conscience as important. He stressed that
“[t]o study a society’s solidarity, we study its law.” He explained collective
conscience as meaning the shared beliefs, ideas and moral attitudes operating as a
unifying force within a society. According to him, contrary to general belief, an
individual’s thoughts do not come from that individual but are determined for him
by the society. He stated that there is always a societal bond binding the society. He
explained that the type of law prevalent in a society is an indicator of the type of its
social organisation, and that law is the external index symbolising the type of
societal solidarity. He posited that “an action does not shock the common conscience
because it is criminal; rather it is criminal because it shocks the common
conscience.” He identified five factors as being responsible for the breakdown of
socialisation in any society. They are rapid social change, weakened social bonds,
lack of social regulation, anomie (an individual’s feeling of worthlessness in the
society), and the weakening of collective consciousness. It may also result from
egoism and inequality.

Durkheim identified two types of societies or forms of social solidarity. They are the
mechanical social solidarity society and the organic social solidarity society. He
stated that law plays an important role in the transition from mechanical social
solidarity society to organic social solidarity society. In both types of societies, law
is an indicator of change and development, and punishment is an expression of
collective settlement. There are repressive sanctions and restitutive sanctions.

According to him, the characteristics of mechanical social solidarity society include

the following: (i) It is archaic and primitive; (ii) People have shared experiences and
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their lives are similar; (iii) There is no division of labour; (iv) People are self-reliant
and largely do not depend on one another; (v) There is no problem in carrying out
severe punishments on those who violate the law; (vi) Law is repressive and a
deviation from it carries severe punishments; and the collective conscience is both
strong and uniform. He identified the following as the characteristics of the organic
solidarity society: (i) It is more advanced and has a clear division of labour and a
high degree of specialisation; (ii) People have different life experiences; (iii) There
is a considerable social inter-dependence, e.g. one artisan needs another artisan
doing another trade while a professional needs another professional in another field;
(iv) Law functions to maintain an equilibrium or reform and not necessarily to
punish its violators; (v) Collective conscience is weak; (vi) Law is predominantly
restitutive.

Durkheim’s theory has attracted reasonable criticism. Firstly, law and morality
cannot be said to be synonymous. Secondly, there is no empirical evidence till date
that the thoughts of individuals are generally determined for them by the society.
Thirdly, it cannot be correct that there was no division of labour in the mechanical
solidarity society. Therein, men were farmers while women functioned as mothers.
Fourthly, repressive punishments do still exist even today in advanced societies
against crimes like terrorism and murder. From anthropological studies, it appears
that repressive laws were less important in primitive societies because disputes were
mainly resolved therein through informal ADR.

Rudolf von Jhering

Rudolf von Jhering was a German jurist, who is sometimes called the father of
sociological jurisprudence. He propounded a philosophy of social utilitarianism that
differed from the utilitarian theory of England’s Jeremy Bentham. Jhering stressed
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the needs of the society. He maintained that the purpose of law was the protection of
individuals and societal interests. To achieve this, he stated that individual and
societal interests must be coordinated and that occasions of interest must be
minimised. Where conflict was unavoidable, he assigned greater weight to societal
interests, thereby earning the criticism of being anti-individual.

Roscoe Pound
Roscoe Pound was inspired by his law lecturing and advocacy careers. His mission
was to study law in action as against law in books. He was on a mission to develop a
technology to change law by taking account of social realities. He viewed law as a
social phenomenon translating into policy and that the interpretation and application
of law should consider law as being a social fact. He identified the following as the
purposes of a legal order:
1. Factual study of the social effects of legal administration.
2. Social investigation as preliminary steps to legislation.
3. Constant study of ways of by which law can be made more effective.
4. Study of the psychological and philosophical aspects of judicial method.
5. Sociological study of legal history.
6. Room for the possibility of a just and reasonable resolution of individual cases.
7. Creation of a ministry of justice dedicated to law reform.

“Social engineering” is the term he used for the process by which these steps are
implemented. Pound conceived law as an instrument of social engineering that can
be used to construct the structure of the society as much as possible. He repeatedly
used the term engineering as he likened the task of the lawyer to social engineering.
This requires the satisfaction of the maximum of wants with the minimum of friction
and waste. It involves balancing of conflicting interests.
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He classified the interests in a society into three. They are the:

(a) Individual interest: Personal honour, privacy, and domestic relations, but
excluding family and parents.
(b) Public interest: Political or public life claims of individuals, interests of State as a
juristic person, and interests of State as a guardian of social interests.
(c) Social interest: General security against threats in matters like health, security of
social institutions, general morals concerning matters like prostitution and gambling,
conservation of societal resources, general progress of matters like free speech and
free trade and individual life conformity with societal standards.
He opined that every society must have a set of postulates or goals. The postulates
are the objectives accepted as paramount to the society. In resolving conflicts
between the various interests, the postulates are given paramount consideration. The
jural postulates are the basic assumption upon which a society is based and any
society without it is bound to suffer serious conflicts.

According to him, one of the purposes of law in any society is to balance those
interests. He identified the following as the steps for achieving that balance:

(a) compilation of an inventory of classified interests.

(b) developing a shortlist of interests which can be recognized by the legal order.
(c) demarcation of the extent to which interests so selected can be secured.
(d) consideration of the alternative means whereby laws might secure the interests.
(e) evolution of the principles of valuation of the interests.

Pound has been commended for illuminating the nexus between law, its
administration and the society. This projected the need for adjustment between them.
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His classification of interests is however vague and misleading. It has also been
criticised as being a manifesto of a capitalist society despite his claims to objectivity.
His engineering analogy has been faulted because neither the society nor law is
always built on predetermined building blocks or plans. His consensus model of
society has also been attacked as unrealistic on the grounds that conflicts are
inherent in societies.