A PROJECT SUBMITTED IN FULFILLMENT OF COURSE

‘JURISPRUDENCE-I’, 5th SEMESTER DURING THE

ACADEMIC YEAR 2018-19
TOPIC:- MODERN SOCIOLOGICAL THEORIES OF LAW
SUBMITTED BY:-

MD AATIF IQBAL

BBA LLB

ROLL NO:- 1630

SUBMITTED TO:-

DR. MANORANJAN KUMAR

FACULTY OF JURISPRUDENCE-I

CHANAKYA NATIONAL LAW UNIVERSITY

,MITHAPUR , PATNA
1
 DECLARATION

The researcher hereby declares that this research paper is prepared by the
researcher with the help of only those sources which are mentioned in the
bibliography part of this paper, foot notes on the last of each page. This research
paper is not a copy of any one’s research paper as per the knowledge of the
researcher.

This research paper is firstly presented to Prof. Dr. Manoranjan Prasad, the faculty
of Constitutional Law in The Chanakya National Law University, Patna. Before
this, this paper has never been submitted to any other teacher/professor or any
other school/college/university.

MD AATIF IQBAL

ROLL NO.- 1630

2
 ACKNOWLEDGEMENT
I owe a great many thanks to many great people who helped and supported me
during the completion of the project.

My deepest thanks to lecturer Dr. Manoranjan Kumar , the guide of the project for
guiding and correcting various documents of mine with attention and care . He has
taken pain to go through the project and make necessary correction as and when
needed. I would also thank my Institution and my faculty members without whom
this project would have been a distant reality. I also extend my heartfelt thanks to
my family and well-wishers.

MD AATIF IQBAL

3
 TABLE OF CONTENTS
RESEARCH METHODOLOGY: ........................................................................4

INTRODUCTION: ...............................................................................................6

THEORY AND METHOD………………………………………………….…..10

SOCIOLOGICAL JURISPRUDENCE…………………………........................16

THE JURISPRUDENTIAL BACKGROUND………………………………….18

A NEW JURISPRUDENCE……………………………………………………..19

SOCIAL STRUCTURE AND LAW…………………………………………….20

CONCLUSION:.....................................................................................................33

BIBLIOGRAPHY:................................................................................................34

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RESEARCH METHODOLOGY:
Objective: The aim of this write up has been to see the sociology and
sociological jurisprudence. The writer will describe social structure of law and
sociology of law.

Scope and Limitations:

Through this write up, the author has tried to study Sociology. It has also tried to
get an overview of growth of Sociology and law in the society. It also tried to take
out relationship between Sociology and law and how both effect the society.

Research Question:
Whether Sociology and law leads to proper functioning of society .

Hypothesis:
Sociology and law are independent of each other.

Sources:
The author has used only secondary sources for the research. The secondary
sources include mainly books by prominent authors, research papers and journals
on criminal law. The research is purely doctrinal in nature.

Mode of Citation:
The author has followed a uniform mode of citation.

5
INTRODUCTION
The relationship of the law, in its many aspects, to a social situation, should be
considered a necessary part of the understanding of that situation. The
development of forms of analysis which allow for such interrelated understanding
are therefore required.

According to a socio-legal approach, analysis of law is directly linked to the

analysis of the social situation to which the law applies, and should be put into
the perspective of that situation by seeing the part the law plays in the creation,
maintenance and/or change of the situation. It has been argued that the legal
structure, because of its nature and the social functions it serves, requires a
different form of analysis from other social institutions. However, it is not thereby
removed from the analysis, despite the often abused distinction of laws as
normative, and of social science method being therefore inapplicable. The
requirement is simply a different approach, based on the need to ask different
questions. The most advanced example of this is perhaps the Scandinavian “ Law
as Fact ” School.1 The normative being treated “as a distinct kind of ‘is”2 for
research purposes.

One of the many problems in this area is that of coherent theory. This article
argues that it is traditional legal science which, by continued adoption of false
starting points, has caused this theoretical study to remain under-developed. As
such the reasoning on which this paper is based is epistemological, and whereas
positivist functional models will be used as illustrations of the various approaches
analyzed. It is a phenomenological understanding of the study of law in society
that is being developed.

A socio-legal approach is conceptually distinguished from more positivistic

approaches; the whole emphasis, the reason for it and its meaning cannot and
should not be linked to other approaches. It does not disclaim other lines of
thinking, but, it is considered, establishes alternative ones. The conceptual

1
Particularly the writings of A, Hligerstrlim, K. Olivecrona and A. Lundsted
2
G. Sawer, Law in Society, 1965, p. 5.

6
difference requires both distinct theoretical assumptions and a new methodology.
Moreover, the methodology in this context must always remain in critical
perspective, indeed. It must be seen as part and parcel of any research project.

According to a socio-legal approach to any particular legal research, how one

conceives of the “law” is part of the research method. Austin’s definition of law
can only be reasonably criticized if account is taken of the purposes for such a
definition. It serves no useful purpose to use it as a starting point for any
research, if one’s aims are different, as this will lead to many anomalies. The
essential relativity of truth and knowledge requires the continuous re-
examination and re-definition of theory and method, which retention of existing
definitional frameworks cannot give. Use of the conventional and accepted
characteristics of law, as enunciated by numerous writers on legal subjects, is not
satisfactory; rather the orientation of the socio-Legalist requires these common
resources to be part of his research topic. In the field of criminology, the symbolic
interactionists have used this reversal of resource and topic as a basic method.
The resources used by criminologists at earlier stages were often the official
figures and statistics of crime rates, etc. The symbolic interactionist approach
considers these resources the main focal point, i.e. the topic, of their study.

‘‘ Instead of using official estimates of volume and distribution as a basis for

a fitting theory of deviation, the neo-Chicagoans used the estimates themselves
as a topic for speculation and explanation.”

Another example of this method, which is particularly pertinent, can be taken

from R. D. Laing and A. Esterson in their book Sanity, Madness and the Family,
where on page 13 they argue:

“ . . . those sociologists who think they can find out what goes on by analysing
medical records are merely trying to turn clinical sows’ ears into statistical silk

7
purses. If they think they are studying anything other than pieces of paper they
are only making fools of themselves.”3

To make the comparison between these “ medical records ” as “ pieces of paper,”

and Llewellyn’s distinction of “ paper rules ’’ (i.e. the pieces of paper) rather than
“ real rules ”4 not too far-fetched, and quite enlightening. Certainly there is a
tendency in most subjects to deify anything official, rather than consider official
definitions, beliefs and accounts as part of the subject-matter to be researched.

In addition to the analysis of resource as topic, no theoretical structure should be

established which goes beyond or outside the scope of the particular research.
For in terms of that research, that conception of law is required, that conception
of the administration of law, that conception of how law can be related to a
“social situation.” For example, one research project might deem it necessary to
analyze law in terms of its practical administration, and where the terms of
statutes are contrary, their significance is considered to be of a quasi-legal
natural. This, turning the standard definitions of law and quasi-law upside-down is
justifiable in socio-legal terms, if the aims of a socio-legal approach are not merely
descriptive, but to establish the part that law and the legal system and structure
play in the creation, maintenance and/or change of social situations. This
approach to the dynamics of law is sometimes termed “ law in action ” research.
The emphasis has, shifted to legal administration and its consequences,
concerned as much on the civil as on the criminal side.

For these purposes, which sociological analyses referring to the workings of the
law within society can be adopted? Certainly two of the founding fathers of
sociology, Weber and Durkheim, were concerned with issues of jurisprudential
interest. Chapter 8 of Volume 2 of Weber’s Economy and Society deals with
Economy and Law (the Sociology of Law). Although not a systematic sociology of
law, his writings contribute significantly to the understanding of legal thought and
the judicial process. The detailed analysis of the sociology of law by Durkheim ,

3
See H. Garfinkel, Good Organisationul Rearom for Bad Clinical Records in Studies in Ethnomethodology (1967).
This conception of resource ns topic is basic to ethnomethodology. Pauline Schiff’s explanation of this and other
sociological concepts was invaluable
4
K. Llewellyn, “A Realistic JurisprudencbThe Next Sbp,” 30 Columbia Review, 1930.

8
giving it an important place within sociology. developed “ the inquiry into the
correspondence between differences in social structure and differences in the law
arising from those structures ” and was centered on functional institutional
analysis “ the mutuality of support and adaptation between institutions in a given
society.” However, jurisprudence writers in general, have tended to show a lack
of concern for an analysis of the structure of society which accounts for the
workings of the legal systems, national and international, within the perspective
of a socio-legal approach.’” In Social Dimensions of Law and Justice Julius Stone
devotes a section to Parsons’ theory of social systems, which he asserts “has
special merit for the theory of law in that it amplifies, and states more universally,
important aspects of the sociological jurisprudential standpoint. . . .” Later,
however, he has to admit that Parsons took little account of jurisprudential
knowledge la; and the value of basing socio-legal research on his theoretical
notions is accordingly reduced. Surely, one can turn to socio-legal interactionist
theories, specific enough to be relevant to socio-legal research, and yet
sufficiently justifiable in general sociological terms. F. James Davis in 1957
surveyed the sources of law in American sociology , finding only four books
published on the sociology of law in the United States- those of Ehrlich, Timasheff,
Gurvitch and Weber. Again, the most advanced developments seem to be
Scandinavian, V. Aubert and T. Eckhoff being prominent without undertaking a
comprehensive survey of jurisprudence, human philosophy and sociological and
political theory necessary to answer the question as to the adequacy of socio-
legal theory, it is tentatively suggested that there appears to be insufficient
theoretical concern. The American realists demonstrate such lack of theory by the
extreme limits of their programmes (with the exception of Llewellyn). Sociological
jurisprudence illustrated by the main exponent Pound, apart from demonstrating
some basic focal points of which socio-legal research must be aware (e.g. the
distinction between professed and actual law. the notion of “ law in action.” the
theory of interests and emphasis on social relations of law rather than
metaphysics), nevertheless is hardly satisfying in terms of a general theory
whereby the law, legal system and structure can be related to society, societal
structure, individuals and groups in society. In the recent study of the sociology of
law in Germany by Raiser a similar estimation is made, despite analysis of the
9
theories of Marx, Ehrlich, Weber, Geiger, Luhmann and Schelsky. Furthermore.
the present day revival of natural law is distinctly sociologically oriented which is
evidence of the paucity of existing socio-legal theory.5

There are no doubt many reasons for the postulated “ theoretical vacuum ” :
compIexity, Iack of disciplinary interchange, shortage of persons who 6nd this
subject sufficiently relevant, the isolation of the legal academic as well as the
lawyers(which can to an extent be justified by their professional needs).
Nevertheless a further reason will be developed in some detail, being connected
to the analysis of the inter-dependence of theory and method.

THEORY AND METHOD

The lack of an explicit theoretical perspective gives to any particular research the
dubious nature of its being built on unsound hypotheses. Jurisprudence has
concentrated on normative, analytical approaches with the result that other lines
of inquiry have been excluded from legal research. The preoccupation with
defining law has, in effect, limited the questions asked about law. This analytic
mode of research tends to highlight questions of “ validity ” as opposed to “
function,” and the lack of theoretical concern on questions of function is a major
stumbling block to research outside the area of validity. Questions of efficacy6 in
jurisprudence tend to go no further than some very basic assumption and
perhaps the limited jurisprudential/ sociological interchange can be seen as a
primary reason for this, the works of Weber and Durkheim being noted
exceptions. However, it likely to be claimed by some that the reason for this
emphasis is, in essence, the nature of “ law ” itself, namely that it is according to
the characteristics of “ law.” that legal research must be carried out pursuing
specific methodology. The question which however arises is, which comes first,
the research method as required by the characteristics of “law” or “law ” as
established according to the particular research method. Equally, it can be argued

5
For example, P. Sehick, Sociology and Natural Law, in J. Cogley ef al.
6
Efflcacy is only a narrow question within the analysis of function, sce later. I would like to thank Dr. Simon
Roberts for making this clear and for a number of other valuable points.

10
that the cart and the horse rather than coming one before the other are in fact
part of a whole unit, the weight of the cart determining the pull of the horse and
the strength of the horse effecting the speed. In sociological theory dispute in this
area is considerable.

“ Merton suggests that theory is of greater value than methodology. He

further suggests that methods as such have little. if any, substantive theoretical
content. From Merton’s perspective methods are ‘ a-theoretical ’ tools suitable
for any knowledgeable and skilled user. This position . . . contrasts with Blumer’s
(1931,40. 54. 56). . . . From his perspective the study of methodology demands a
consistent theoretical perspective; theory and method must go hand in hand.”7

The theoretical area of interest to be developed here is that of law and social
structure. The methodological questions which require consideration are
concerned with the ways in which this theoretical approach has been considered.

Theory and method, as argued above, go hand in hand, each deter mining the
province of the other. Methodological distinctions will be examined first. Theory
and method being themselves the resources of this article.

Interpretations of law incorporating sociology or sociological conceptions are

seen to be either invalid or in conflict with the majority of traditional legal
theories. The realm of law is concerned with the world of “ ought,” that measure
or standard for human behaviour and not the causal “ is.” Is an interpretation of
law in terms of “ is ” therefore possible? According to the theory and methods of
analytical positivism it is not. But those theories and methods do not answer the
following questions: (1) What is the effect of law and the legal order on the social
order? (2) What is the effect of the social order on the legal order? (3) What is the
effect of law on attitude, behavior, institutions and organisations in society,
maintenance and change of society, and (4) what is the effect of attitudes,
behaviour, institutions and organisations in society, maintenance and change of
society on law?

7
N. K. Denzin, The Research Act in Sociology, 1970, p. 4.

11
A theory of law is independent of the social order according to the
methodological assumptions of that theory, i.e. that law is normative and has its
own existence. Whilst a theory of law is dependent on the social order according
to the methodological criteria adopted, i.e. law is a phenomena within society.8
Within the context of the dependent and independent realms of law there exist
distinct methodological interrelations. A theory of independent legal phenomena
can itself depend on a juristic hypothesis. So (a complete vacuum for law) or a
total political power (sovereignty theories). A theory of dependent legal
phenomena can itself be divided into analyses of law as secondary forces
dependent on existing social structures (Durkhcim) social controls (Ehrlich) and
social systems (Parsons). Law, in functionalist terms, can be considered to play a
primary role in the shaping of other social criteria or a secondary role as being
shaped by those criteria.

The functional interdependencies of the social system have been made apparent
by many sociologists and others. As Julius Stone says :

“ . . . it seems clearer now than it was in 1945 that movements of thought

and action touching the relations of law and society. in so far as they move into
fruitful contact with other social sciences, must come to place more stress op the
importance of cognition of the social and economic order in Its complex unity.”

Later, in the same article (pp. 176-177) Stone argues that:

“No doubt some problems will continue to be thrown up for which the ad tic
approach of early sociological jurisprudence, making direct legal assault on the
points where maladjustment is immediately manifest, is apt. But the sociological
jurist of the future will generally have to approach his characteristic problems
through a vast effort at understanding the wider social context, seeking by the
light of available social knowledge the key-points of the systcms of action from
which adjustment can be effectively made.”
8
Whether or not such dependence ” theories of law lend to the denial of the identiflable existence of law, is in
dhpute, in the particular theories involved. Stone. in Social Dimensions of Law and Justice, 1966, pp. 412479,
considers,,Comtc’s Mechanical Sociology, Spencer’s Social Evolutionism, Socialist Theory of Wither- ing Away ” of
the State, merger of law in ‘‘ Facts ’’ of Social Solidarity, Anarchist rejection of legal force and a Legal Order as a
mere aspect of the life of a social institution.

12
This article attempts to propagate “ the wider social context,” it attempts to
utilise “ available social knowledge ” and illustrate the various “ key-points of the
systems of action,” by correlating the distinctive theoretical and methodological
approaches of the lawyer looking to the social relations of law and the sociologist
looking to the social system of which the law is a part; in the light of theories of
law and social structure.

As suggested above, a theoretical understanding of law in society can be viewed

from many angles. which are to be symbolised as the lawyer looking to the social
relations of law (sociological jurisprudence) and the sociologist looking to the
social system of which law is a part (sociology of law). It should be noted that the
dividing line is arbitrary in terms of personnel (i.e. the lawyer turned sociologist -
Weber, Aubert, or sociologist turned lawyer, has no recognised place), although
not necessarily arbitrary in terms of methods (see explanation later). Further, as
far back as 1911 when Roscoe Pound was formulating his “ Scope and Purposes of
Sociological Jurisprudence ” he suggests a certain unity between the approaches
distinguished, which is considered to be, regretfully, even more untrue today than
in 1911. Further. a number of attempts have been made to delimit the various
areas of study of law in society which impose different or distinct criteria, which
may or may not conflict with the present distinction. These analyses (see
Gurvitch. Ekhoff, Timasheff, Sawer. etc.) have their own merits but do not accord
with the purposes of the present article and are therefore not included within the
requirements of the distinction made between sociological jurisprudence and
sociology of law. Maybe one such attempt should be mentioned now. Timasheff
analyses the sociology of law as the scientific causal study of law (a monographic
science), sociological jurisprudence as an idiographic science and philosophy of
law as the valuation of such scientific study, i.e. “ The sociology of law will procure
the best means to the ends; but ultimate ends will forever depend on
philosophical, and not on scientific considerations.”9

The loose nature of the present distinction suffices to enhance the primary
methodological differences in approach. As will no doubt be apparent, the theory

9
3 N. S. Timasheff, An Infroduction fo the Sodology of Law, 1939, p. 30.

13
on which this article is based pays paramount attention to such methodological
differences.

A Conceptual Sociology of Law can be interpreted as the construction of social

reality inclusive of legal reality.

The methodology of a sociology of law does not start with the primacy of legal
rules nor with rules as such, or laws or a legal The methodology is determined by
an initial understanding of society, of the social system. The aim being to analyse
social structures and social institutions, law being one such institution (there are
clearly many others). Law institutionalises a particular type of rule or norm in
society. " . . . the contents of prevalent social norms receive by institutionalisation
a peculiar coercive force-raising them, as it were, to the distinctive modality of
legal bindingness." This institutionalisation places such rules or norms on a
particular level of abstraction within society, and they interact with other norms
or rules of an informal rather than an institutional kind. However (just as with an
initial understanding of sociological jurisprudence), it is necessary that the
alternative definitions of this area of study be pointed out, on two levels. First,
with regard to other definitions given by various writers?"10 maybe the example
of Timasheff can again be used. He considers the sociology of law to be the
scientific study of law, i.e. causal investigation of the relationship between
behaviour in society and law. Secondly, from a sociological point of view it is
important not to over-objectivize the sociology part of the sociology of law. There
is (as this whole article attempts to show) no standardized philosophy (theory or
method), nor epistemology for sociologists, as there is none for the branch of
study of law in society. With this rider, sociology as highly differentiated as its
varied forms may take, does have some underlying assumptions relevant to a
sociology of law, whereby a normative system and social institution such as law
can be studied using the methods of sociologists, e.g. the functional correlations

10
e.g. R. Pound, " Sociology of Law and ,piOlogicd Jurisprudence," (1943) 5 University of Toronfo L.J. 1; N. S.
Timasheff, What Is ' Sociology of Law,' " 1937, 43 American Journal of Sociology, 225; N. S. Timasheff,.An
Introduction to the Sociology of Law, 1939; G. Gurvitch, Sociology of Law, 1947; G. Sawer, Law in Society. 1965
chap. 2; T. Ekhoff, Socfology of Law in Scandinavfa, 1960, Scan- dinavian Studies in Law, 29.

14
that are thought to exist between the institutions and structures within a given
society include that society's legal system.

Two aspects of a sociology of law need to be distinguished: (a) legal sociology and
(b) general sociology with implications for law.

(a) An empirical legal sociology would tend to apply to the socio- logical study
of specific legal phenomenon, e.g. specific legal situations or the social
relations associated with certain legal rules. Thus the personnel of the law
can be studied, lawyers, judges. the jury. the officials of a legal system.
Specific legal situations can be observed, such as the court room, the
solicitor's office, the jury room. The internal aspects of a legal system can
be studied as a coherent system, using sociological concepts and methods.
But, this mechanical study would tend to isolate the legal system and legal
situations from the society in which they function, as such it has only
limited value (although the areas and amounts of research are great). As
Sawer argues :
" The general body of principles of sociology, like the general body of
principles of logic, exists independently of law and lawyers and their special
interests. But law and legal behaviour give rise to characteristic problems,
even from the point of view of the non-lawyer, and lawyers have their own
special interests in the possible relevance of sociological thought and
technique for their own problems."
(b) General sociology as applicable to law in society is predetermined by the
paramount interest of general sociology as the study of society. The
principles developed will apply to law according to the
importance/unimportance of law and the legal system to the particular
sociologist concerned. It is impossible to give a number of examples of
sociologists who pay particular attention to law within the broader context
of their studies of society at large. Max Weber, Emile Durkheim, Karl Marx
and Eugene Ehrlich being of greatest importance. Nevertheless it is
necessary that a sociology of law should glean from other theorists
principles and concepts which although not directly developed to satisfy an
analysis of law in society, can indirectly be seen to have such effects. The
15
 totality of sociological theories and nothing less can satisfy a sociology of
law.
A more thorough examination of the implications of this approach to the
area of study of social structure and law will follow later.

SOCIOLOGICAL JURISPRUDENCE

As an initial explanation it is suggested that sociological jurisprudence is the

purposive evaluation of legal rules and/or legal systems. The primacy of legal
rules is presumed, or at least that legal rules are the starting point for the
consideration of law in society. Attempts at evaluating or relating such rules to
various social or sociological phenomena are developed. Attempts are made to
understand laws in terms of interests or conflicts of interests within society.
Typical examples of research employing this methodology are: (1) consideration
of the postulates/interests in society and hence the postulates/ interests to which
law necessarily must refer/relate/ take account11 (2) efficacy studies which
consider the effectiveness of rules for which they are intended, for what they are
not intended, for what latent effects can result12 ; (3) law in action research, i.e.
the evaluation of legal rules ,in accordance with the following study categories
suggested by Stone in Social Dimensions of Lao and Justice. The following
contrasts require study :

‘‘ (1) between what courts say and what they do; (2) between the words of
statutes and what courts do under them; (3) between instructions to juries and
what juries do; (4) between the formulae for executive action and what executive
officials actually do; (5) between rules formulated for conduct on a matter by
statute or judicial decision or juristic writing, and the conduct of citizens which
actually occurs; (6) between the object assumed or expressed by legislature or
court in formulating a rule, and the actual consequences which flow from

11
e.g. R. Pound, "A Survey of Social Interests" (1943-44) 57 Harvard Law Review 1.
12
e.g. ,fI. W. Jones, The Efficacy of Law, 1969. Concern with questions of " efficacy entails a rejection of the "
Jurisprudence of Concepts." '' A jurisprudenw of concepts is one which attempts to treat the law as a closed
system of definitions

16
observance of it; (7) between ‘facts’ as found by judges and juries on the issues
raised in adversary procedures, which in the light of the applicable rule determine
% results, and the ‘ true facts ’ which do not emerge.”

Additional, less general categories could .be added, but the preceding suggested
surveys should suffices.13

All of these examples presuppose a basic knowledge of the law in the area to be
studied. Methodologically they aim at a study of law from an assumption as to the
distinct nature of legal phenomena in contrast with other social phenomena. The
rules and their presumptive nature must be known in order that their
effectiveness can be evaluated. Further all these approaches, utilitarian in
essence, stem from an “ apparent ” view of the “ consequences ” of law, rather
than a priori judgments about the law. The idea of rule evaluation is utilitarian in
origin, requiring data and research of a sociological type. As with Bentham’s zeal
for law reform, such research can be seen to have played a paramount role in law
reform movements, based on the principal and characteristic ineffectiveness and
mal- adjustment of laws in Western democracies.14 The basic idea of purpose
supports these approaches. Legal rules are seen as purposive rules, not a-political,
a-social, a-economic. Law, in Ihering’s words is seen as “a means to an end.” The
concepts of evaluating and engineering are relevant to law if social purposes are
to be served, and if certain ends are required.

It is more than a mere dispute over words that leads to the continued
reclassification and re-examination of the various approaches listed above. As Karl
Llewellyn remarked of Pound, the founding father of sociological jurisprudence,
his preference was “ for the study of theory, verbalised theory, writer’s theory,
over study of results, or of how it gets done; over process and know-how either in
the concrete or in theory.” The theory of this article, it is hoped, will clarify the
need for this preponderant concern with the theory and method of law in society,
being an area of study of developing importance.

13
See for index oP research, Stone, op. cir. Chap 1. s. 4, ‘‘Some main lines of practical inquiry concerning law and
society in common law countries,” pp. 41-71.
14
i.e. inability to cope with major problems such as slum nelghbourhoods, ecology, delinquency, social
disorganisation, etc.

17
THE JURISPRUDENTIAL BACKGROUND

In accordance with contemporary classification of the area of study .of

jurisprudence, inquiries into the law and legal phenomena are threefold. Natural
law philosophy searches for an Q priori legitimacy for legal phenomena and
involves studies into the ideas of justice. nature, etc. Positivist legal philosophy
involves the study of the identification of legal phenomena, their normative
structure and validity in human, if not empirical terms. Realist schools of legal
philosophy are concerned with the interpretation of laws in terms of social or
psychological facts, replacing the normative by the causal. Among the realist
developments is that of sociological jurisprudence. The methodology of
traditional jurisprudence in all its branches rests on the existence of legal
phenomena independent of their social contexts. That is not to say that the realist
arguments classify law as anything more abstract than a set of social or
psychological facts, but inasmuch as their aim lies in enumerating those social and
psychological facts as equivalent to answering the question “ what is law? ” the
answers given are methodologically equivalent in many respects to the answers
of other schools of thought?15 This might lead one to the argument that the
appropriate subject for study as jurisprudence is, and only is, the manifest
eccentricities of the question “what is law? ” However, it must be pointed out
that such an assessment is highly arbitrary. The definition of jurisprudence, just as
the definition of law knows no such illusory boundaries. Indeed, simple relativist
argument would defeat such a claim.

The principle which is expounded here is that an appropriate question of

jurisprudence is “what is society? ” just as much as ‘‘ what is law? ” The
methodological differences emerge from this starting point rather than any other
as far as the differences between sociological jurisprudence and sociology of law
are concerned.

15
“ Because of this divergence in methods, questions that are formulated as legal questions cannot easily be dealt
with in a social-scientific framework unless they nre reformulated. The traditional jurisprudential question, * What
Is law? ’ falls into this category. To be answered in its own terms, it requires a plunge into ’ the illusion of Teal
essence’ (T. D. Weldon. The Vocabulary of Politics, 1955).” M. Barkun, Law wfthout Sanctions, 1968, p. 3.

18
A NEW JURISPRUDENCE

“ What is society? ” is an appropriate question for jurisprudence since the

essential characteristics of the phenomenon we call law require explanation, not
independent from, but explicitly within their social context.

The distinction between the realist branches and the subject of “ what is society?
” as a branch of jurisprudence, lies in the starting points of these two approaches.
What previously was called the “ sociological school ” including the works of the
American realists (Llewellyn, Holmes, Cardozo, Frank, etc.), the Scandinavian
realists (Hagerstrom, Lundstedt. Olivecrona, Ross) and sociological jurisprudence
(Pound, etc.) has as its starting point, if it is feasible to generalise about the
writings of so many great jurists and scholars, reactions against the legal
formalism of the positivist law theories. The pragmatist sources of William James,
John Dewey and S. C. Schiller, the sociological influences of Auyste Comte and
Herbert Spencer, and the psychological influences of Sigmund Freud and Carl
Gustav Jung are formative in the desire to study law as social/ psychological fact.
The vast discrepancy between the formal logic of the law and its
social/psychological realities, and its theoretical foundations as such, are
highlighted by the aimed attack of this “ sociological/realist ” school. The relief
ends when it becomes apparent that a new search has been invigorated by the
rejection of the “ legal rule ” in preference to a social, political or psychological
reality to which it is functionally equivalent. Even the scepticism of a
socio/psychological jurist such as Thurman Arnold ends up with an answer to the
question “ what is law ”.

“ Law ’ is primarily a great reservoir of emotionally important social

symbols, It develops, as language develops, in spite of, and not because of, the
grammarians. Though the notion of a ‘ rule of law’ may be the moral background
of revolt, it ordinarily operates to induce acceptance of things as they are. It does
this by creating a realm somewhere within the mystical haze beyond the courts,
where all our dreams of justice in an unjust world come true.”16

16
T. W. Arnold, The Symbols of Government, 1962, pp. 34-35.

19
The foundations of a new jurisprudence which starts with the question “what is
society?.” rather than contrasting the law (as presumed) with the social reality.
were laid by Max Weber, Emile Durkheim, Karl Marx and Eugene Ehrlich. The
developments in this century have been scarce and arbitrary, but to some extent
useful hypotheses exist and can be examined. This is the sociology of law taking
general sociological theory as the starting point for jurisprudence and its varied
questions. Some knowledge of sociological theory is therefore a prerequisite for
jurisprudence, not an addition to it. Some understanding of society, social
systems, social structures, social controls and social institutions and associations
are the backbone of a new jurisprudence. The writings here classified as a
sociology of law have, in the past, been taken by jurists to be part and parcel of a
general sociological approach to law. As such the starting points and orientations
of the writers who start with the question “what is society? ” have been
neglected in preference for the starting points of those who study ‘‘ what is law? ”
as jurists looking to the social relations of law. It is the unwillingness to break
from the traditional jurisprudential background that has led to the misuse and
non-use of sociology in jurisprudence. The following examination of theorists such
as Durkheim is necessary to rethink the development of socio- logical thought for
law, in themselves however the positivist school of Durkheim and others offers no
developed sociology of law, because sociology has undergone vast changes in
emphasis and theory since their founding works. Nevertheless a sociology of law
requires examination of such works before it can be reasonably developed.

SOCIALS TRUCTURE AND LAW

“ . . . to see law in its social context is, for most thinkers to see it as socially
derivative and non-autonomous.”17

The social derivations to be used here include Durkheim‘s. Ehrlich’s .and Parsons’
sociological/functional conceptions.

17
J. Stone, Social Dimensions of Law and Justice (1966), p. 410

20
DURKHEIM

In his work De la Division du Travail Social18 Durkheim developed an analysis of

the correspondence between the social structure of a given State and its legal
structure. In chapter 1 he asserts that :

‘‘ Since law reproduces the principal forms of social solidarity. we have only
to classify the different types of law to find there- from the different types of
social solidarity which correspond to it.”

As such his central thesis is that a society’s law is an expression of the kinds of
solidarity which unite the members of that society. This is a theory of structural
functionalism. The two aspects of his thesis which require consideration are (1)
what does he mean by law? and (2) what does he mean by ‘‘ social solidarity ”? Of
(1) he argues that “It is right . . . to classify juridical rules according to the different
sanctions which are attached to them.”80 There are two kinds of juridical rules.
Repressive sanctions which make up the penal law .and “. . . the other type . . .
consists only of the return of things as they were.” i.e. restitutive sanctions, ‘‘ civil
law, commercial law, procedural law, administrative and constitutional law.” (2)
Then follows, i.e. the type of social solidarity related to the two types of law. By
the “structure” of society, Durkheim means a certain “ solidarity ” or “ cohesion ”
among its members. The total relations existing between the members of a given
society are determined. to a great extent, by existing social and economic
conditions. Of this structural idea, i.e. the “ solidarity ” of the members of a given
society, Durkheim demonstrates two distinct historical phases. (a) Mechanical
solidarity through likeness.

“The totality of beliefs and sentiments common to average citizens of the

same society forms a determinate system which has its own life; one may call it
the collective or common conscience.”

18
On the Division of Labour in Society, translated by G. Sipson 1933

21
Durkheim argues that when such a “collective or common con- science” exists,
due to the sameness of wants, habits, beliefs and attitudes of the members of a
given society, the conditions of a society based on “ mechanical solidarity ” are
present. The homogeneity of such a “common conscience” is demonstrated by
the intensity of group reaction to deviant or unaccustomed action. As Durkheim
says “ In effect, the only common characteristic of all crimes is that they consist . .
. in acts universally disapproved of by members of each society.” As such the
relationship between law and common morals is direct:

“. . . we must not say that an action shocks the common conscience because
it is criminal. but rather it is criminal because it shocks the common conscience.
We do not reprove it because it is a crime, but it is a crime because we reprove
it.”

The law which Durkheim shows arises from such mechanical solidarity which he
regarded as characteristic of pre-feudal societies, was penal and repressive and “
consists in a passionate reaction of graduated intensity.” In consideration of the
sentiments which the crime offends, i.e. the common conscience “ a simple
restitution of the troubled order would not suffice for us; we must have a more
violent satisfaction.”

The argument Durkheim expounds of relating the repressive or penal law to a

society structured by “ mechanical solidarity ” is self-supporting. Mechanical
solidarity is based on the common con- science, on homogeneity. Crime itself
implies that such homogeneity is not absolute, as such it damages the source for
the authority of repression. But, if repressive action were not recognised as
dependent on moral sentiment, that society and its values would be disputed.
Repressive laws are functional for a society whose structure is based on
mechanical solidarity:

“ . . . there exists a social solidarity which comes from a certain number of

states of conscience which are common to all members of the same society. That
is what repressive law materially represents, at least in so far as it is essential.”

22
The dependence of the law on the society and vice versa is expressed by
Durkheim when he says that ‘‘ In determining what fraction of the juridical system
penal law represents, we, at the same time, measure the relative importance of
this solidarity.”19

(b) Organic solidarity due to the division of labour. Organic solidarity corresponds
to the restitutive sanction type of law, rather than the repressive sanction. It
arises out of differentiation and specialisation of functions in society rather than
homogeneity. Such differentiation and specialisation, varieties of experience and
outlook of the members of a given society, leads to an increase of the mutual
dependence of those members. It not being possible for individuals in modern
industrial societies to satisfy all their needs without dependence on other
members of society, the objective need for legal regulation is great, due to
necessary interdependence. But legal regulation is required to play a different
role, i.e. from repression to restitution. Durkheim uses the example of the
contract to demonstrate the shift from repressive to restitutive law. “In effect, the
contract the contract is the symbol of exchange,” which “exchange always
presupposes some division of labor more or less developed.” 72 The movement is
towards a law of positive co-operation. But it must not be forgotten that society
lies behind such co-operation “ Every contract thus supposes that behind the
parties implicated in it there is society very ready to intervene in order to gain
respect for the engagement which has been made.” 73 Durkheim sums up that “
the relations governed by co-operative law with restitutive sanctions and the
solidarity they express. result from the division of social labor.” 74 Further, such
restitutive law is not dependent upon the collective conscience, but :

“This law definitely plays a role in society analogous to that played by the
nervous system in the organism . . . we can equally measure the degree of
concentration at which a society has arrived in accordance with the division of
labor according to the development of operative law with restitute functions.”

19
Durkheim’s analysis of mechanical solidarity has been criticised by a number of anthropologists, e.g. Bronislaw
Malinowski-“ We may therefore finally dismiss the view that ‘ group-sentiment ’ or ‘ collective responsibility * is
the only or even the main force which ensures adhesion to custom and which makes it binding or legal.” Crime and
Custom in Savage Society, 1926 (6th impression 1951), p. 55. See Chap. l’l, an anthropological definition of law.

23
Durkheim states quite succinctly the importance of the thesis which he puts
forward “ . . . law always varies as the social relations which it governs.”

It needs to be pointed out that Durkheim’s analysis has received an over-rigid

juristic account in the work of LRon Duguit, who attempted studies of the
transformation of French law under the influence of industrialisation in the
nineteenth century. In the notion of law and social solidarity expressed by
Durkheim. Duguit finds what was to him an “ objective law.” i.e. solidarity by the
division of labour, organic solidarity. Such an “ objective law ” he uses to free
positive law from its dependence on the sovereign and the state.

“. . . the ruling class has no subjective sovereignty. . . . The state is no longer a

sovereign power issuing its commands. It is a group of individuals who must use
the force they possess to supply the public need. The idea of public service lies at
the very base of the theory of the modern state. No other notion takes its roots
so profoundly in the facts of social life.”20

“ Thus there is produced in human society a vast division of labor, which is the
pre-eminent fact of social cohesion.” Following the tradition of the historical
school of jurisprudence he is able to maintain the existence of a jural framework
to society independent of the state. “. . . that law is not a creation of the State;
that it exists apart from the State; that the idea of law is entirely independent of
the idea of the State . . and “But it is not the intervention (of the State) which
gives the character of a juridical norm to the rule. . . .” But, from the supposed
existence of the “ social fact ” as to social solidarity,R4 Duguit implies a duty to
maintain such solidarity. This transformation itself is the underlying
preoccupation of natural law philosophy whereby an ethical, moral or religious
belief, social, psychological or political fact is presumed to induce a metaphysical
duty to maintain such a belief /fact. Axel Hagerstrom, the Swedish philosopher,
maintains that:

“ We have now made plain that what happens to jurisprudence if, pushed on
by the demand which is made on modern science, it tries to exhibit the facts

20
Duguit, Law in fhe Modern Sfafe, pp. xliii-xliv.

24
which correspond to its characteristic notions of rights and legal duties. On the
one hand, it can dis- cover nothing which corresponds to those notions as they
are actually used; on the other hand, it has recourse to something which is only
apparently an object of experience. Thus it is shown that the notions in question
cannot be reduced to anything in reality. The reason is that, in point of fact, they
have their roots in traditional ideas of mythical forces and bonds.”21

Despite this criticism, Duguit’s analysis minimises the function of the State in
considering the notion of a legal rule. In place of the State exists the notion of
solidarity

. . . . a rule of law exists whenever the mass of individuals composing the

group understands and admits that a reaction against the violation of the rule can
be socially organised.”

On the one hand the structural functionalism of Durkheim’s approach is implicitly

accepted, in that the definition of law cannot be distinguished from the definition
of society. On the other, the import and effectiveness of legal rules are
determined by social factors.

“ The laws which formulate rules which are not yet juridical rules are
powerless, and the legal measures which they ordain remain useless.”

The required determination of legal norms by social norms is the explicit

conclusion which can be drawn from this analysis for the conceptual sociology of
law. The theoretical and methodological requirements for such study are that the
question “ what is society? ” is a prerequisite to “ what is law? ” There exists no
secondary relationship between what law is and what society is, i.e. law is
something differentially applied to changing social conditions, there exists a
primary relationship, what law is dependent on what society is, or our
understanding of it. An evaluation of the effectiveness of law according to the
theory developed is a secondary matter, as Duguit shows.

21
Inquiries info the Nature of Law and Morals, p. 16 (translated by C. D. Broad, 1953).

25
EHRLICH

In the foreword to his major work, Fundamental Principles of the Sociology of

law22:

“ At the present as well as at any other time, the center of gravity of legal
development lies not in legislation, nor in juristic science, nor in judicial decision,
but in society itself.”

This often quoted and much misused statement has been taken to classify Ehrlich,
with Pound as a lading figure of the sociological jurisprudential school, rather than
accepting the methodology of his sociological leanings, and putting him in the
forefront of a sociology of law.23

In turning to his work, one finds an introduction by Roscoe Pound. Pound puts
forward his own jurisprudential conceptions in asserting that:

“To the twentieth century, the problems seem to be first, not what law is, but
what law does, how it does it, what it can be made to do and how; second, the
canon of valuing the conflicting and overlapping interests and claims which must
be harmonised or adjusted by the legal order; and, third, the limits of effective
legal action and the means of securing effectively the interests which the legal
order delimits.”

To utilise this framework to introduce Ehrlich is misleading. The three problems

brought forward by Pound, are questions of sociological jurisprudence, the
presumptive primacy of legal rules is accepted. Xhis precludes some key points of
Ehrlich’s analysis, which distinguish his work as sociology of law. Maybe the
contrast in starting points can best be brought out by considering the terms of
reference with which Ehrlich looks at Montesquieu by the side of Pound’s

22
Translated by W. L. Moll, 1936
23
It may well be argued that this is a juristic hypothesis, and that Ehrlich was essentially a jurist, but the present
writer believes that his methods were those of the sociology of law and he is therefore classified as such. In
Ehrlich’s own words: “ Since the law is a socinl phenomena, every kind of legal science (Jurisprudenz) is a socinl
science; but legal science in the proper sense of the term is a part of the theoretical science of society, of
sociology. The sociology of law is the theoretical science of law (die wissenschaftliche Lehre von Recht).
Fundamentd Principles of the Sociology of Law, p.25

26
critique. Ehrlich, having ignored Montesquieu in Fundamental Principles of the
Sociology of Law argues:

“ As law is essentially a form of social life, it cannot be explained

scientifically otherwise than by the working of social forces. . . . Thus in order to
discover the social foundation of law we must seek the very form in which it is
engendered by society.”

The symbolic difference between Pound’s analysis (of Ehrlich) and Ehrlich‘s
analysis (of Montesquieu) is that between the jurist’s interest in the social
relations of law and the sociologist’s interest in society and law as an institution
within society. Ehrlich’s structural analysis of law in the latter terms needs to be
examined. The only work of his which can be used in his Fundamental Principles
of the Sociology of Law. This work is, in fact, a series of essays, related to the
theme of the sociological study of law.

In Chapter I. “The Practical Concept of Law,” Ehrlich aligns himself to the

philosophical school exemplified by Rudolph von Ihering the German legal
philosopher. Ihering’s book Der Zweck im Rechto is based on a grand theory of
social action whereby he asserts that it is purpose rather than causation which
determines law. To restate law in terms of its social purposes was the task which
Ihering anticipates in the above work, although which he never completes. Ehrlich
accepts the purposive nature of human thinking and understanding.

“ Human thinking is necessarily dominated by the concept of purpose,

which determines its direction, the selection of its materials, and its methods.”

This method, later developed in the writings of Roscoe Pound? did not, however,
distract Ehrlich from his sociological task. The method of purpose is one of
sociological jurisprudence. Ehrlich in a central theme, later in the first chapter,
develops his sociological model and explicitly is able to show the limitations of
purposive method.

‘‘ It is not an essential element of the concept of law that it be created by

the State. nor that it constitute the basis for the decisions of the courts or other
tribunals, nor that it be the basis of a legal compulsion consequent upon such a
27
decision. A fourth element remains, and that will have to be the point of
departure, i.e. the law is an ordering.”

Similarly Durkheim demonstrates the limitations of purposive thinking in his The

Rules of Sociological Method.

“ To show how a fact is useful is not to explain how it originated or why it is

what it ,is. The uses which it serves presuppose the specific properties
characterising it but do not create them. The need we have of things cannot give
them existence, nor can it confer their specific nature upon them.”

In following up this central theme, in Chapter 2 ‘‘ The inner order of the social
associations,” Ehrlich gives his definition of society. He says :

“ Society is the sum total of the human associations that have mutual
relations with one another.”24

Further, society, even today, is dependent on an “ inner order ” for its maintained
structure rather than a legal norm. It is social compulsion which gives it such an
“inner order” and the legal norm and authority of the state are themselves based
on this social compulsion. In considering the development of society Ehrlich says

: “Even today, just as in primitive times. the fate of man is determined to a much
greater extent by the inner order of the associations than by legal propositions.

. . . The State existed before the constitution; the family is older than the
order of the family; possession antidates ownership; there were contracts before
there was a law of contracts. . . .”

Historically, Ehrlich argues, society is conceived of as pre-existing laws about or

related to that society. Social associations within that society pre-exist and have
an existence of their own, beyond the legal propositions which refer to them. So,
the inner order precedes the legal regulation, and legal regulation is dependent
on this inner order.

24
Ehrlich, op. cff. p. 26.

28
 “ The inner order of the associations of human beings is not only the
original, but also, down to the present time. the basic form of law. The legal
proposition not only comes into being at a much later time, but is largely derived
from the inner order of the associations.”

This is the lesson which socio-legal research needs to learn, and which Ehrlich has
so bluntly stated. It is restated by the present writer as : “ What is society? ” is a
primary question of jurisprudence, is a necessary point of departure for an
understanding of law as a dependent phenomenon, existing within the social
context.

From a structural viewpoint Ehrlich maintains that the idea of law is much wider
than the notion of legal regulation. The legal norm is the basis of living law. which
is:

“ . . . not confined to its influence upon the norms for decision which the
courts apply or upon the content of statutes. The knowledge of the living law has
an independent value, and this consists in the fact that it constitutes the
foundation of the legal order of human society.”

In chapter 21 ‘‘ The Methods of the Sociology of Law.” part 2, “ The Study of the
Living Law ” the themes so far illustrated are further developed. Ehrlich says :

“ The reason why the dominant school of legal science so greatly prefers
the legal proposition to all other legal phenomena as an object of investigation is
that it tacitly assumes that the whole law is to be found in the legal propositions.”

Ehrlich puts forward “ living law ” as a contrast to “ legal propositions,” the latter
being that law which is enforced, or used as source material, in courts or
tribunals.

“ The living law is the law which dominates life itself even though it has not
been posited in legal propositions.”

The implications of this are that one must look to those matters which underly
the living law since the legal proposition in itself is insufficient for the purposes of
understanding law in its social context. Ehrlich suggests that the sources of this
29
“living law” are “. . . first, the modern legal document; secondly, direct
observation of life, of commerce, of customs and usages, and of all associations,
not only of those that the law has recognised but also of those that it has over-
looked and passed by. indeed even of those that it has disapproved.” l1 This living
law is depicted as virtually equivalent to the inner ordering of society itself.
Indeed Hans Kelsen criticises it as exactly that. In General Theory of Law and State

“ . . . if we define law simply as order or organisation and not as a coercive order

(or organisation), then we lose the possibility of differentiating law from other
social phenomena; then we identify law with society and the sociology of law with
general sociology.

This is a typical mistake of many legal sociologists, and especially of Eugene

Ehrlich’s sociology of law.”

Without going into the ramifications of Kelsen’s theory of law or arguing the value
he asserts for his Pure Theory being “ a concept serviceable for the cognition of
social life.” Some justification for Ehrlich‘s analysis can be given. Contrary to the
views of numbers of jurists l4 who misinterpret Ehrlich‘s thesis, Ehrlich has
propounded a theory of dependent law, and adapted his theory to the need to
identify law within its context, i.e. law as a social phenomena, rather than diluting
his attempt by characterising law as having some independent existence. Law is
identified with society and the sociology of law with general sociology or at least
general sociological theory.15 As Ehrlich says, “The sociology of law then must
begin with the ascertainment of the living law ”25 and :

“ . . . the scientific significance of the living law is not confined to its

influence upon the norms for decision which the courts apply or upon the content
of statutes. The knowledge of the living law has an independent value, and this
consists in the fact that it constitutes the foundation of the legal order of human
society.”

Methodologically Ehrlich is starting with those questions which a sociology of law

demands, as such he does no doubt open himself to attack from those whose
25
Ehrlich, op. cit. p. 501.

30
primary purpose is to delimit the existence of law rather than examine it within its
social context. However, if one accepts his methodological base, his theory and in
particular his definitions of society, associations and “ living law ” and his
minimisation of the role of statute law can be criticised. It is not the aim of this
paper to list the various arguments against Ehrlich‘s analysis here, but rather to
take as given the content of his sociology of law and to use his theoretical
formulations in order to demonstrate the trends of socio-legal orientated theory.

PARSONS/BREDEMEIER

As demonstrated by Stone in Social Dimensions of Law and Justice, the writings of

Talcott Parsons offer a valuable critique for the sociology of law but have, to a
large extent, been neglected by jurisprudence.26 The complexity of his analysis is
maybe one reason, but of greater importance is the implication for jurisprudence
that its methods are such that the starting point .of Parsons’ thesis, i.e. his social
system. is not immediately adaptable for jurisprudence. Bredemeier27 lo has
developed an analysis of “ Law as an Integrative Mechanism,” based on Parsonian
theory. In keeping with the trend of this article, some short analysis of Parsons’ “
social system ” will be given.

Parsons’ message to economists in Economy and Society is that “Economics must

lean on the other social sciences. both on the theoretical and empirical levels, as
they must also lean on it.” Parsons goes on to expound his thesis, based on
systems analysis, of the “ independent ” and “ interdependent ” structures within
society. The functional differentiation of society can only be considered once a
theoretical foundation has been laid. This theoretical foundation is in the form of
the interdependent analysis of the various structures of society as a whole. “Law”
or the “legal system” can be con- sidered as an independent or interdependent

26
Pp. 20-28. ‘I. . . we find it regrettable that this notable theorking about the nature and structure of n social
system should have been so neglectful of the jurisprudential (and even sometimes of the common) knowledge of
lawyers.” (p. 23.)
27
In W. M. Evan (ed.) Lmv and Sociology, 1962, pp. 73-88.

31
sub-system and. in accordance with the reasoning in this paper, it is the
interdependent analysis of law which is the subject of the sociology of law.

On pages 47-51 of Economy and Society, Parsons generalises his analysis of the
social system, and suggests:

“. . . that total societies tend to, differentiate into sub-systems (social

structures) which are specialized in each of the four primary functions.”

The four functional sub-systems suggested are explained on pages 51-70. ‘‘ The
economy, the polity, the integrative sub-system, and the pattern-maintenance
and the tension-management sub-system ” 2s are the constituent parts of the
social system. The economy sub-system serves the “ adaptive ” function of a
society, i.e. “ maximising utility or the economic value of the total available means
to want satisfaction.” 24 The polity sub-system is concerned with “ goal-
attainment ” functions, i.e. “ . . . the mobilisation of the necessary prerequisites
for the attainment of given system goals of the society.”26 The integrative sub-
system functions to institutionalize the society’s total value patterns and to
reduce conflict. The pattern-maintenance and the tension-management sub-
system functions to adjust the “ unit ” sub-systems just as the integrative sub-
system functions to control the total social system. The difference between the
integrative and pattern maintenance sub-systems is that “ between the processes
by which the basic economic commitments are maintained and the processes by
which the boundary relations between the economy and other social sub-systems
are adjusted.”

Parsons and Smelser in Economy and Society go on to analyse this social

system/sub-system model, in terms of the various relationships of “ inputs ” and “
outputs ” between each sub-system and the total situation and each sub-system
to each other sub-system, with special reference to the economy.

In Bredemeier’s article “Law as an Integrative Mechanism,” he utilises Parsons’

functional model to identify ‘‘ the law ” with the “ integrative ” sub-system. He
then goes on to consider the relation- ship in terms of “inputs” and “outputs”
between the law and adaptive processes (p. 75). the law and the polity (p. 79).

32
and the law and pattern maintenance (p. 82), summarising on pages 89-90. There
is no value in following Bredemeier’s deductive reasoning for the purposes of this
paper, beyond noting the following methodological points :

(i) no attempt is made to define law, as such;

(ii) use is made of a sociological model of society;
(iii) law is analysed in terms of its “functions” within society;

(iv) valuable jurisprudential conclusions can be drawn from such method

Only one fragment of Parsons’ writings has been used here to develop the
argument. There are a number of other sociological analyses which he raises
which are of interest to jurisprudence and lawyers.28

CONCLUSION

The discrepancy in methods between writers who attempt to develop an analysis

of law in society, is crucial to an understanding of and development of such
studies, both of a theoretical and practical nature.29 The functional models of
society postulated by writers such as Durkheim, Ehrlich and Parsons, despite the
criticisms which can be made against functional analysis30 demonstrate the value
of considering law as a dependent social phenomena (or in Parsons’ language an “
interdependent sub-system ”), demonstrate the misconceptions which pervade
jurisprudential analysis of law in society, and imply the need to develop a
sociology of law on the basis of the question “what is society? ” rather than “
what is law? ” Sociological materials, such as those used in this article, should be
readily available to those who study the theory of law. The limited aims of
traditional jurisprudence, its fallacious starting points and methods in terms of
the social explanation of law, are the reasons why they are not. This
epistemological critique of jurisprudence is in some senses equivalent to a

28
In particular, “The Law and Social Control” in W. M. Evan (ed.) Law 1962, pp. 56-72. phflosophy
29
See e.g. G. Simmel, Conflict and The Web of Group-Afilfations, translated by Sociology, 1962, pp. 56-72.
phflosophy, 1958
30
See e.g. G. Simmel, Conflict and The Web of Group-Afilfations, translated by K. H. Worn and R. Bendix. 1955

33
progression in sociological theory towards a phenomenological under- standing of
society.31 Further, whereas it is hoped that lawyers, sociologists, psychologists,
economists and political scientists can get together to further programmes of
research in the field of law in society, the various starting points of the various
scholars need to be distinguished and recognised. There is a primary difference
between the study of law as law differentially applied, and law as function, i.e.
society and law. The theoretical developments in this area require consideration
of a number of major areas of which “social structure and law” is one. Two others
are “ social control and law ” and “ social change and law.” A conceptual sociology
of law requires that these three areas of legal reality be developed and
interrelated. in the context of social reality.

31
The present definition of a conceptual sociology of law is of this nature, and subsequent advances in theory are
likely to be based on realisation of this wherebz “ . . . the structural contingencies influencing what is defined as
legal. . . . (Knowledge and Control, New Directions for the Sociology of Education, ed. Michael F. D. Young, 1971, p.
26) are taken as problematic, rather than accepting them as the taken for granted reality.

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