Muhammad Bahrul Ulum

The sociological school devotes its attention not to the ethical content and aim of law, but it is to the actual circumstances which give rise to legal institutions and which condition their scope and operation. This is the functional view of law, regarded as one and only one of the many factors in the morphology of society.

The whole of theory of the sociological school is a protest against the orthodox concept of law as an emanation from a single authority in the state. Law is a social function, an expression of human society concerning the external relations of its individual members.

Sociological jurisprudence has pointed law towards social justice and has assumed that law must seek to attain certain ends. Roscoe Pound wrote that sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law, form putting human factor in the central place and relegating logic to its true position as an instrument.

Montesquieu, the forerunner of sociological method in jurisprudence, was the first to recognize and take account of the influence of social conditions on the legal process. He said that law should be determined by the characteristics of a nation so that they should be in relation to the climate of each country, to the quality of each soil, to its situation and extent, to the principal occupations of the natives.

August Comte said that society is like an organism and it can progress when it is guided by scientific principles which should be formulated by observation and experience of facts excluding all metaphysical and similar other considerations.

Emile Durkheim took consideration that law was the measuring rod of any society. Law reproduces the principal forms of social solidarity. There are two basic types of societal cohesion (solidarity), they are mechanical solidarity which is found in homogeneous societies and organic solidarity which is found in more heterogeneous and differentiated modern societies.

Eugen Ehrlich is the expert who was primarily concerned with the social basis of law. Law is derived from social facts and depends not on the state authority, but on social compulsion. Law differs little from other forms of social compulsion and the state is one among many associations. The real source of law is not statues, but the activities of society.

SOCIAL SOLIDARITY

According to Leon Duguit (1959-1928) the outstanding fact of society is interdependence of the people. This interdependence has always been there but it has increased in modern time on account of increasing knowledge of man and his mastery over the physical world. In modern society we cannot live without the services provided to us by our fellowmen. In other word our necessities are always dependent on the activities of other people.

Specialization has increased to such an extent that we can exist only by virtue of our membership of a community. Social interdependence is not a theory or a conjecture but a fact. It is an all-important fact of human life. All human activities and organizations should be directed to the end of ensuring the harmonious working of man with man. This is what is called the principle of social solidarity.

As all human activities and organizations are to be judges from the manner in which they contribute to social solidarity, the state can claim no special position or privilege. It is only one of the various human organizations which are necessary to protect to the principle of social solidarity. It can be justified insofar as it depends and furthers the principle of social solidarity.

It is nothing more than an organization of men who issues commands backed by force. If the state acts in a way which promotes social solidarity, it is entitled to be upheld and encouraged. If it does not perform that function, the people have a right to revolt against it and suppress the state itself.

The whole idea of sovereignty is meaningless. All powers are limited by the test of social solidarity. Every man and every group of men is under a duty arising out of the facts of social existence. That duty is to further social solidarity. Duguit insofar said that man must act that he does nothing which may injure the social solidarity upon which  he depends and more positively he must do all which naturally tends to promote social solidarity.

Social solidarity has some implications. First, it is the touchstone of judging the activities of individuals and all organizations. The state is a human organization whose duty is to ensure social solidarity. Second, it rejects the intervention of the state as the decisive factor in turning a social into a legal norm. Third, law is spontaneous product of individual consciousness, inspired at the same time by social necessity and the sentiment of justice. That being so, legislation can only be conceived of as a means of expression of the rules of law.

SOCIAL ENGINEERING

The theory of social engineering coined by Roscoe Pound (1870-1964) which it has aim to build as efficient a structure of society as possible which requires the satisfaction of the maximum wants with the minimum of friction and waste. Pound classified the various interests which are to be protected by law under three heads viz.: private interests, public interests and social interests.

Private interests to be protected by law are the individual’s interests of personality including the physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by the criminal law, law of torts, law of contracts and by limitations upon the powers of the government to interfere the matter of belief and opinion.

Public interests are claims, demands or desires asserted by individuals involved in or looked at from the standpoint of political life. There are two kinds of public interests, they are interests of the state as a juristic person and interests of the state as a guardian of social interests.

Social interests are claims, demands or desires thought of in terms of social life and generalized as claims of the social group. Social interests are said to include social interests in the general security, the security of social institutions, general morals, the conservation of social resources, general progress and individual life.

First, social interest in the general security embraces those branches of the law which relate to general safety, general health, peace and order, security of acquisitions and security of transactions. Second, social interest in the security of social institution consists of domestic institutions, religious institutions, political institutions and economic institutions. Third, social interest in general morals covers a variety of law, e.g., laws dealing with prostitution, drunkenness and gambling.

Fourth, social interest in the conservation of social resources covers conservation of social resources and protection and training of dependents and defectives, 1.e., conservation of human resources. Fifth, social interest in general progress has three aspects i.e., economic progress, political progress and cultural progress. Economic progress covers freedom of use and sale of property, free trade, free industry and encouragement of inventions by the grant of patents. Sixth, social interest in individual life involves self-assertion, opportunity and conditions of life.

JURAL POSTULATE

According to Pound, every society has certain basic assumptions upon which its ordering rests, though for the most part these may be implicit rather than expressly formulated. Certain of these assumptions may be identified as the jural postulates of legal system as embodying its fundamental purpose.

Jural postulates are rasionalisation of these claims or an explanation thereto which are selected within the given-need-space frame a society by the jurists for satisfying social or individual claims. Jural postulates are working hypotheses which by observation of the phenomena guide jurists, which of the claims and demands should be given effect over other interests within a society.

Jural postulates once adopted are maintained until new facts show that they are no longer applicable. In 1919 Pound has made an attempt to state the jural postulates to the civilized society and later on modified them in 1942. The jural postulates are:

1. In civilized society men must be able to assume that others will commit no intentional aggression upon them.
2. In civilized society men must be able to assume that they may control or beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labour, and what they have acquired under the existing social and economic order.
3. In civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith and hence.
4. In civilized society men must be able to assume that those who engage in some courses of conduct will act due to care not to cast an unreasonable risk of injury upon others.
5. In civilized society men must be able to assume that others who maintain things or employ agencies, harmless in the sphere of their use but harmful in the normal action elsewhere, and having a natural tendency to cross boundaries of their proper use will restrain them or keep them within their proper bounds.

The problem which juridical science faces is the evaluation and balancing of these interests. To facilitate that process above, Roscoe Pound provided what he called the jural postulates of civilized society. In 1919, he summarized those postulates as follows that every individual in civilized society must be able to take it for granted that:

(a)  he can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;

(b)  others will not commit any intentional aggression upon him;

(c)  others will act with due care and will not cast upon him an unreasonable risk of injury;

(d) the people with whom he deals will carry out their undertakings and act in good faith.

In 1942, Pound added to that list the following three new postulates, comprising (a) that he will have security as a job-holder; (b) that society will bear the burden of supporting him when he becomes aged; and (c) that society as a whole will bear the risk of unforeseen misfortunes such as disablement.

Jural postulates are to be applied both by the legislators and the judges for evaluating and balancing the various interests and harmonizing them. Justice Cardozo writes, “If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge from experience and study and reflection; in brief from life itself.”

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