Overview of Modern Sociological Theories of Law: The Little Known Theories that Shaped Legal Systems

Studying the different sociological theories of law gives an interdisciplinary approach to understand the law better. Sociology of law cannot be considered merely as a subject of sociology but a field of research between sociology and law. Nevertheless, Sociology of law benefits from and draws on research conducted within the fields of law such as comparative law, critical analysis of legal studies, jurisprudential aspect and legal theories with reference to literature and economics as well. The main objective of this paper is to understand the different views of various professors and jurists on how their theories hold good in the functioning and administration of legal systems which also adds to understanding the social impact of every legal norm. This paper will not only focus on the positives of every jurist’s view but analyses a few critics of their work here and there.

Introduction

The sociological theory focusses on the relations between actual law and the ideals of justice.

It majorly deals with the end and purposes of the law.  We need to understand the history and evolution of law to bring in the actual applicability and effectiveness of every law. The gradual growth of public law and private law, the evolution from the decision of individual cases to common principles and various other aspects of sociological theories play a major role in today’s legal systems around the world. The modern sociological theories of law will to an extent explain this for us.

 Let us understand the four major theories of modern sociology in forth-coming sections!

Ehrlich

Ehrlich is an Australian jurist who spoke of the living law of the people. He referred to various norms conduct prevalent in society and how there were compulsions behind every one of them.

His theory and contribution to legal systems lie in the fact how he related law more closely to the live society. However, the defect lies in the fact that no criterion was given to distinguish between the legal norm and any other social norm. The value of modern legislation was underestimated and undue importance was given to custom as a distinct type of law instead of treating it as a mere source.

He sees State as a mere organization, nay, a most powerful organization with greater sanctions behind. Hence a norm enforced by the State is the legal norm. The essential body of legal rules is always based upon the social facts of law. Also, he fails to distinguish specific legal State-norms from other legal norms.

Analytical Legal Positivism

Analytical jurisprudence is the general name given for the approach to Jurisprudence which mainly focuses on the classification of legal principles and rules, with analysis of the concepts, ideas used in the legal system. Analytical Jurisprudence was named Systematic Jurisprudence by Sir John Salmond and C.K. Allen termed it as Imperative Jurisprudence. It is an approach by which it considers law as a body of actual interrelated principles and not merely a haphazard selection of rule inextricably interwoven with a transcendental Law of Nature. The main motive of Analytical Jurisprudence is to reconstruct a scientifically valid system and defining all laws, classify, discover the essential features of every law and measure it.

Positivism in legal theory represents a method of examining man-made law which is set down by men for men. It is the study by which law is considered as it ‘is’ as distinct from the law as it ‘ought to be’. The ‘is’ of legal positivism consists of the existence of human law where its methods of study are strictly restricted to the sphere of existential law.

The chief component of this analytical theory of law was John Austin, an English jurist who expounded the nature of law as it is and not how it should be. He also defined law as “a rule laid down for the guidance of an intelligent being having power over him.” Law is based on the power of superior and strictly does not connote justice and other ethical considerations. The science of jurisprudence is concerned mainly with positive laws strictly so called, as considered without any regard to their goodness or badness. The elements of such positive law are 1) command, 2) sanction, 3) duty and 4) sovereign.

Kelson (1881-1973): Pure Theory of Law

The main elements of Kelson’s pure theory of law are as follows:

  1. A theory of law should deal with the law as it is and not as it ought to be.
  2. A theory of law must be distinguished from the law itself.
  3. A theory of law should be uniform. Kelson is an advocate of general jurisprudence.
  4. A theory of law must remain free from ethics, politics, sociology, history, etc. It must be pure.
  5. Jurisprudence to Kelson is knowledge of “norms”. A norm is simply a hypothesis that if A happens then B should happen. Laws of physical science such as gravitation, deal with what things are sein, “what is”.

According to Kelson, the law is a hierarchy of normative relations, not a sequence of cause and effect like natural science. The legal norm does not constitute a command but only a relation of condition and sequence. Example: If X happens, Y ought to happen. A judgment gets its authority from a rule, a rule from an Act passed in Parliament and the Act of Parliament from the Constitution. In the end, every legal norm gets its validity from the fundamental norm called a Grund Norm. He known for the most rigorous development of a positivist theory of law created a concept called Basic Norm which in German translates to the Grund norm.

Norms are basically regulations setting forth the behavior of a person. A norm is an “ought proposition; it expresses not what is, or must be, but ought to be, given in certain conditions[1] ;

The “grund-norm” is the key concept of Kelson’s legal theory. It’s the most significant feature of Kelson’s theory. Its validity depends on the existence of a legal order. However, this theory is not applicable during revolutionary times. And grund-norm can only be challenged by a political revolution. The effectiveness of this theory lies in the effectiveness of the legal order which is a prerequisite to the validity of every single rule in it. According to him, effectiveness is achieved by absolutism or usurpers which is achieved by compelling people to obey whereas people, in general, obey law and order in a democratic rule of law.

It is a concept in the Pure Theory of Law. His theory excludes the analysis of any ethical, historical, political, considerations and rather finds the essence of the legal order in the written or laid-down laws. He used this word to denote the basic norm, order, or rule that forms an underlying basis for most of the legal systems.

This theory focuses on finding a point of origin for all law so that the basic law and the constitution based on it can gain their legitimacy. The term falls into three broad areas of discernment namely 1) Kelsen’s original introduction of the term, 2) the Neo-Kantian reception of the term by Kelsen’scritics and followers, and 3) the hypothetical and symbolic use of the term through the history of its application.

The basic norm is also described as hypothetical. The theory of Hans Kelsen represents development in two directions. It talks about the defined development of analytical positivism.

Kelson does not recognize the distinction between private and public law but substitutes a theory of concretization of law which considers the legal system as a pyramidal structure. Kelson’sgrund norm has also been attacked as a mere fiction in some cases far from reality. Allen, a great jurist has made a critic that law does not have supremacy over the other as real sources of law are custom, statute and precedent. When the individual rights and interests of the collective organization are jeopardized Kelson’s pure theory does not give any precise answer.

The scope of Kelson’s theory is completely different from that of Austin. According to him, the law can be defined in terms of certain norms. His writings address a multitude of issues that cannot be found in Austin’s writings. All norms are derived from Grund norm and it’s the norm of the highest order. Also, no one can question the validity of grund-norm. It is always constitutional in nature and it forms the main basis of the legal system.[2]

Kelson’s theory applies in the Indian context as well. In India, the Constitution is considered the supreme and highest law of the land from which other laws have derived its validity. If a law is unconstitutional, it can be struck down by the judiciary as null and void. So Kelson’s ideas and theory find a position in the modern era as well. [3]

Later Hart in his Concept of law has explained further the positivist theories of Kelson and Austin. He pointed out the opposite views of law emphasizing recognition and obedience as the essential characteristic of a legal norm by way of social acceptance in primitive societies and how the command aspect predominates in more developed societies.

Hart’s Concept of Law

Professor H.L.A Hart has subjected the positivist theory of law which was propounded by Austin and Kelson. He aims to bridge the extreme coercive aspect of law and the sociological aspect by means of primary and secondary rules. According to him, primary rules are rules of obligation and secondary rules are ancillary to and concern the primary rules in various ways by specifying the ways in which the primary rules may be ascertained. Thus in Hart’s analysis, the remedy for the uncertainty of the rule of primary law is the rule of recognition. These rules which are exercised by proper functionaries in State organizations can transform a static set of unrelated rules into a unified dynamic legal system capable of adaptation to social change. Hart believes that a minimum morality is an essential part of every community.[4]The main defect with Hart’s analysis is his way of the oversimplification of the complex organization of justice administration in a modern State.

Conclusion

Hart has excluded morality from the concept of law. In fact, he did not take social and cultural factors into consideration. SimilarlyKelson’s theory or Austin’s idealogy will not be adaptive in every modern-day State.

Each theory of law has its own advantages and disadvantages, strengths and flaws. But we cannot neglect any theory based on its applicability in the present scenario as each and every theory has in its own way led to various revolutions, peace and order which further led to the overall development of societies around the world.

[1]“ought” here does not refer to moral obligations but simply to normative forms of legal propositions. See Kelsen Hans, WHAT IS JUSTICE, p. 235-244.

[2] Morris R. Cohen, ’Philosophy and Legal Science’,32 COL. L. REV. 1103(1932);

[3]Chaubey R.K.., FEDERALISM, AUTONOMY AND CENTRE-STATE RELATIONS, Satyam Books, Delhi, 1stedn, 2007,p.16.

[4] See Hart’s Law, Liberty & Morality, p. 51.

Questions

Q1. Difference between Kelson’s theory and Austin’s theory.

There is a difference and similarity between both because Kelson was agreeing with Austin’s theory of law however chose to filter it by placing importance only to what law is and not what ought to be. This is exactly where Austin’s theory lost its significance in International law, procedural law etc. Kelson’s theory of law was focusing on the uniform applicability of law which can be applied at all times. Kelson’s theory of law not exactly differs from Austin’s but if Austin’s were a coffee powder, Kelson was focusing and agreeing with getting the coffee extract by filtering it.

Q2. What is the significance of the sociological approach to law?

When people choose to follow a law or not, when legislators choose whether or not to pass a law, there is a sociology of law involved in it. It is about the relationship between different norms. We have legal norms as our base but they don’t exist in a vacuum but work with or against other norms. Some laws are obeyed widely and willingly while others function poorly even under strict conditions. To understand this we need the sociology of law to explain the relationship between law and society, the law in relation to society.

Q3. What is the Concept of Law?

The thesis in the Concept of Law is that law is a system of rules and that such a system can best be regarded as a union or combination of primary and secondary rules.

Q4. Explain the Grund norm.

Grundnorm refers to the source of the validity of positive law. The entire legal system of a country derives its validity from Grund norm which acts as an initial hypothesis upon which the whole legal system rests. Grund norm does not have a rule behind it like every other law. It is a foundational principle from which the validity of other laws can be borrowed.

Q5. Was Hart’s theory not criticized?

Hart’s theory like every other theory had its own drawbacks. Dworkin, another jurist criticized hart’s theory that greater emphasis should be laid on the elements of a legal system rather than mere rules. Hart also excluded morality from the concept of law. Moral and social factors also play a great role and are an integral part of every concept. This idea was neglected by Hart.

References

  1. https://en.wikipedia.org/wiki/Basic_norm
  2. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095910371
  3. http://www.legalserviceindia.com/legal/article-2480-critical-analysis-of-the-concept-of-grundnorm.html#:~:text=Norms%20are%20regulations%20setting%20forth,conduct%20in%20a%20specific%20way.
  4. https://plato.stanford.edu/entries/legal-positivism/

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