Jurisprudence class. Credits to lecturer.

1. JURISPRUDENCE
Sociological school
Social study of law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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