sociological jusris

1 GROWTH OF SOCIOLOGICAL JURISPRUDENCE IN INDIA

PROJECT WORK ON LAW OF

LEGAL METHODS

GROWTH OF SOCIOLOGICAL

JURISPRUDENCE IN INDIA

CHANAKYA NATIONAL LAW

UNIVERSITY

SUBMITTED TO:

Mr. PUSHPENDRA PANDEY

SUBMITTED BY:

VIBHANSHU

SRIVASTAVA

CHANAKYA NATIONAL LAW UNIVERSITY


ROLL NO. 375

BA.LL.B(Hons . ) 1 S T YEAR(1 S T SEM.)

ACKNOWLEDGEMENT

First of all I want to thank GOD for enabling me to successfully

complete this project.

Then I would like to give my sincere thanks to our respected

Sociology faculty, Mr. Pushpendra Pandey, who has guided me all the

way in completing this project.

Then I would like to give thanks to our librarians who have

helped me all the way in searching through the source materials which

help me a lot in completing this project.

The list couldn’t be completed without thanking all my friends

who have encouraged me in successful accomplishment of this

project.

VIBHANSHU SRIVASTAVA

ROLL NO. 375

B.A,L.L.B.(Hons.)

1ST semester



TABLE OF CONTENTS

1) I N T R O D U C T I O N … … … … … … … … … … … . . . . . . . 0 5

2) M E A N I N G O F S O C I O L O G I C A L J U R I S P R U D E N C E … … … … … … … … … … … … … … . 0 6

3 ) V I E W O F D I F F E R E N T J U R I S T S R E L A T E D T O

T H I S A P P R O A C H … … … … … … … … … … … . 0 7

4) SOCIOLOGICAL JURISPRUDENCE IN INDIAN

CONTEXT…... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 9

5 ) I M P O R T A N C E O F S O C I O L O G I C A L

J U R I S P R U D E N C E O N L E G I S L A T I V E A N D

J U D I C I A R Y S Y S T E M S I N I N D I A … … … 1 0

6 ) C O N C L U S I O N … … … … … … … … … … … … . 1 5



7 ) B I B L I O G R A P H Y … … … … … … … … … … … 1 6

SUBJECT: Legal Methods.

TOPIC: Growth of Sociological Jurisprudence in India.

OBJECTIVES:

1. To understand the provision related to Contributory Negligence.

2. To analyze the various principles of contributory negligence.

RESEARCH METHODOLOGY: Keeping the objectives in mind, material

was collected with the help of different books and then it was compiled to make

the theoretical part of the project. Recent and important case laws are analyzed.

RESEARCH TOOLS: The research of this project was carried with the help of

the Internet and Library of Chanakya National Law University.

FOOTNOTING STYLE: In whole of my project uniform footnoting style is

adopted in conformity Chanakya National Law University, Patna footnoting

style.



Introduction

Sociological jurisprudence is a term coined by the American jurist Roscoe

Pound (1870–1964) to describe his approach to the understanding of the law.

Central to Pound's conception was the very suggestive idea that in modern

societies the law represents the principal means through which divergent

interests are brought into some sort of alignment with one another.

Unfortunately, perhaps because he was a jurist rather than a sociologist, he did

not combine this insightful conception with a developed understanding of how

these interests were formed and why some of them came to be privileged over

others within the legal system. A sociologically informed account of Pound's

work, which places it in the context of the historical development of the

sociology of law, will be found in Alan Hunt, The Sociological Movement in

Law, 1978.

Sociological JURISPRUDENCE is one of the most important schools

of legal thought in the twentieth century. Its major proponent in the United

States was ROSCOE POUND (1870–1964), a prolific writer who was dean of

the Harvard Law School from 1916 to 1936. A number of other legal educators

and judges also contributed in varying degrees to the theory or practice of

sociological jurisprudence. The movement for a sociological jurisprudence

emerged during the Progressive era. Pound interpreted it as the "movement for

pragmatism as a philosophy of law," the purpose of which was to facilitate legal

reform and social progress. Although legal change should take place under the

leadership of lawyers, the agenda of sociological jurisprudence did not focus on



changes in legal institutions. Rather, it stressed reform of prevailing conceptions

of the study, interpretation, and application of law.

MEANING OF SOCIOLOGICAL

JURISPRUDENCE

Sociological School of jurisprudence has emerged as a result of synthesis of

various juristic thought. The exponent of this school considered law as a social

phenomenon. They are chiefly concerned with the relationship of law to other

contemporary social institutions. They emphasize that the jurists should focus

their attention in social purposes and interest served by law rather than on

individuals and their abstract rights. According to this school the essential

characteristics of law should be to represent common interaction of men in

social groups, whether past or present, ancient or modern.

The main concern of sociological jurist is to study the effect of law

and society on each other. They treat law as an instrument of social progress.

The relation between positive law and ideals of justice also effects the sociology

of law.

The main exponents of the sociological jurisprudence which has been

characterised as “interest oriented, interest loaded, and interest directed” were

Auguste Comte, Herbert Spencer, Rudolph Ihring, Eugen Ehrlich, Leon Duguit,



Francois Geny, Dean Roscoe Pound etc. In United States, Justice Oliver

Windell Holmesand Benjamin Cardozo the distinquished judges of the Supreme

Court were also inspired by Dean Pound’s Sociological theory of law.

VIEWS OF DIFFERENT JURISTS RELATED TO

THIS APPROACH

Montesquieu emphasised that “law of a particular nation should be determined

by its national characteristics and must bear the relation to the climate of each

country, the quality of soil, the situation and extent, the principle occupations of

the native, and above all, to the religion of inhabitants, riches, commerce ,

manners and customs.”

Auguste Comte applied scientific method to the study of sociology which he

termed as “scientific positivism”. According to him, society, like any other

organism can progress when it is guided by scientific principles.

Herbert Spencer gave a scientific exposition to the organic theory of society.

Spencer deduced four sources of law, namely:

Divine law having quasi religious sanctions.

The injunctions of the past leaders.

The will of the ruler.

Collective opinion in the society.



ROSCOE POUND is said to be the father of this approach. He said "The law

must be stable, but it must not stand still." Pound placed his sociological

jurisprudence in opposition to what he termed "mechanical jurisprudence,"

which he characterized as a common but odious practice whereby judges

woodenly applied precedent to the facts of cases without regard to the

consequences. For Pound, the logic of previous precedent alone would not solve

jurisprudential problems. His study of biology led him to believe that the law,

like nature, was a seamless web and that change in one part might produce

totally unexpected and undesirable results in a distant part.



SOCIOLOGICAL JURISPRUDENCE IN INDIAN

CONTEXT

For an appraisal of sociological jurisprudence in its Indian perspective it would

be necessary to survey the present as well as the pre-independence Indian law.

The law during the British Colonial rule in India was coercive and counter-

productive to social needs of the Indian people. It was suppressive and

insensitive to the sentiments and expectations of the Indians. The British rulers

paralysed the peace and prosperity of Indian by dividing Indians on the basis of

caste, creed, religion, language and occupation so as to perpetuate tension and

conflict between different communities to meet their self ends. Thus the law in

India as it stood before the Indian independence was formal, rigid, repressive,

and punitive as contemplated by Austinian conception of imperative theory of

law. The legislature, executive and judiciary- three organs of the government

used to law to protect the interests of the British in complete disregard of the

aspirations and needs of the Indian masses who were exploited and denied even

the basic human rights. In strict Austinian sense sanctions were imposed on

Indians in name of “justice is according to law”. The British residents in India

enjoyed many exemptions and special privileges under the then existing laws.

Thus there was “one law for the ruler and other for the ruled”



IMPORTANCE OF SOCIOLOGICAL JURISPRUDENCE IN

GROWTH OF LEGISLATURE AND JUDICIARY SYSTEM IN

INDIA

With the introduction of sociological jurisprudence in India there has been a

tremendous growth in the Legislature and Judiciary functions of Indian

constitution. Both these functions of the Parliament of India advanced to great

heights because of the introduction of this context.

INFLUENCE OF SOCIOLOGICAL JURISPRUDENCE

ON JUDICIARY SYSTEM OF INDIA

With the wave of nationalism and awakening of intellectuals, demands for civil

liberty and basic human rights were persistently made but it fell on deaf ears

and suppression, oppression, and exploitation of the people continued unabated

under the British Colonial Rule. The lawyers and judges interpreted and applied

law mechanically without considering the “felt needs” of the people. The Indian

National Leaders, notably, Mahatma Gandhi, Pandit Jawaharhar Lal Nehru and

other were convinced that British Law had failed to meet the needs of the Indian

Society because of the rigid adherence to the Doctrine of precedent. Pandit

Nehru observed more than once that the nineteenth century dogmas and legal

precepts had little validity in the changed conditions of the twentieth century



and therefore, undue reliance on precedent was of little use as it may fail to give

a new sociological approach to law.

With the independence of India, a new constitution was adopted for the

country for embodying the social philosophy and economic values towards

attainment of an egalitarian welfare state. A separate chapter on fundamental

rights including individual rights and freedoms and a chapter on Directive

Principles on State Policy comprising social rights has been incorporated in

constitution of India1 and the judges have endeavoured to harmonise the

individual rights with the social interests of the community through their

judicial decisions. The function of law is now to resolve the conflict between

Fundamental Rights and Directive Principles of state Policy as both are aimed at

ushering a egalitarian society for the welfare of the nation as a whole.2 The

philosophy enriched in the preamble and the chapters on fundamental rights,

directive principles, fundamental duties3 , provisions relating to the powers and

functions judiciary and amendment of the Constitution amply demonstrate that

the entire focus is on the welfare of the Indian masses and making law

responsive to the social needs.

The developing trends in public litigation has opened new vistas for interpreting

law in the context of social settings. The contribution of judges notably, Dr. P.B

1 Part III of the Constitution of India relates to the Fundamental Rights and Part IV embodies the Directive Principles of State Policy.2 Keshavanand Bharti(AIR 1973 SC 1461: Minerva Mills v. Union of India, 1980 SC 1789.Waman Rao v. union India ,AIR 1980 SC 271)3 Art. 51-A



Gajendragadkar, P.N Bhagwati, D.A Desai, Krishna Iyer and others to the

development of new Indian jurisprudence based on hard realities of life further

shows that law can be effectively be used as a tool of social transformation for

creating a new social order with primacy to social justice.

In Indira sawhney v. Unionj of India,4Mr. Justice P.B Sawant observed:

“The Constitution of India being essentially a political document has to be

interpreted to meet the “felt necessities of time”. Our constitution, unlike many

others, incorporates in the framework of the social change that is desired to be

brought about. The change has to be ushered in as expeditiously as possible but

at the same time with the least friction and dislocation in National life”.

In S.R Bommai v. Union of India,5 a special nine Judge Bench of the Supreme

Court passed a landmark verdict on the issue of the secularism and held that the

State is enjoined that to award equal treatment to all religions and religious

denomination. The court remarked:

“Secularism is part of the fundamental law and the basic structure of the Indian

Political system to secure all its system to secure to all its people socio-

economic needs essential for man’s excellence with material and moral

prosperity and political justice.”

4 AIR 1993 SC 447(634)5 AIR SC 1918



INFLUENCE OF SOCIOLOGICAL JURISPRUDENCE

ON LEGISLATIVE SYSTEM OF INDIA

The welfare legislations enacted during the post-independence era amply

demonstrate that the British-Oriented Austinain concept of law has no place in

modern Indian democracy and an instrument of social change. The

establishment of Human Rights Commission, Women’s Commission, Family

Courts, Industrial tribunals, Administrative Tribunals, Ombudsman, Panchayti

Raj, Lok Adalats etc. are only a few illustrations to suggest that sole objective is

to make justice available to a common man and weaker sections of the society.

The laws relating to consumer protection, doery prohibition,

abolition of bonded labour, control of environmental pollution etc. have been

enacted to provide social justice echoing the hopes and aspirations of the

people. Some of post independence socio-economic legislations to meet the

social meets the social needs and establish a social order as contemplated by the

constitution, are enumerated as follows:-

1. The Civil Rights Act, 1955

2. The Immoral Traffic (Prevention) Act,1976



3. The Probation of Offenders Act, 1958

4. The Medical Termination of Pregnancy Act, 1971

6. The Family Courts Act, 1984

7. The Child Labour (Prohibition and Regulation) Act, 1986

8. The Legal Services Authorities Act, 1987

9. The Environmental (Protection) Act, 1986

10. The Juvenile Justice (Care and Protection of Children) Act,2000

11. The SC &ST Act, 1989

12. The Child Marriage Restraint (Amendment) Act, 1978

13. The National Commission for Women Act, 1990

14. The Public Liability Insurance Rights Act, 1993

15. FEMA,MRTP,COFEPOSA Acts etc.6

CONCLUSION

6 The list is only illustrative and not exclusive.



“Rules derived by a process of logical deduction from pre-established

conceptions of contract and obligation have broken down before the slow

and steady and erosive actions of utility and justice. We see the same

process at work in other fields. We no longer interpret contracts with

meticulous adherence to the letter when in conflict with the spirit. We

read covenants into them by implication when we find them in conflict

with them ‘instinct with an obligation’ imperfectly expressed.

The law has outgrown its primitive stage of formalism when the

precise word was the sovereign talisman and every slip was fatal.” “There has

been much debate among the foreign jurists whether the norms of right

and useful conduct, the patterns of social welfare, are to be found by the

judge in conformity with an objective or a subjective standard… His duty

to declare the law in accordance with reason and justice is seen to be a

phase of his duty to declare it in accordance with custom. It is the customary

morality of right-minded men and women which he is to enforce by his

decree.”

The above two paragraphs of J. Cardozo clearly define the progress of

the legal system while also summarising the duty of the judge in the evolution

of this social process. The role of the judge, therefore, to ensure social progress

rests undisputed. Evaluating the part played by the Supreme Court in this role,

it goes without saying that the Court have indeed came up to the occasion

almost whenever it was required to interpret and mould social norms and

practices in line with the social aim that it envisaged for the national strata.

BIBLIOGRAPHY



BOOK SOURCES:

Pranjapee, N.V.Studies in Jurisprudence.Central Law Agency :

Allahabad 2004


sociological jusris

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