Sociological Jurisprudence

Sociological Jurisprudence

 

a fundamental trend of 20th-century bourgeois jurisprudence. In contrast to legal positivism, which reduced jurisprudence to a formal and logical study of the law in force, sociological jurisprudence shifted the focus of attention to the study of the “living law,” that is, systems of specific legal relationships and of human behavior in a legal context. Although in itself the idea of studying all aspects of the operation of law in society is justifiable, to representatives of sociological jurisprudence it was reduced for the most part to an erroneous juxtaposition of legislative norms (“law in books”) to “law in everyday life.” The latter was considered as the “true law,” and, consequently, a court could refuse to apply the law in force if such a law was, in the opinion of the court, contradictory to the “living law.” Law itself was defined by adherents of sociological jurisprudence not as a system of norms but chiefly as a “matrix of relationships.” The development of sociological jurisprudence reflected the inconsistency between many legal institutions that took shape during industrial capitalism and the economic and political processes that accompanied the development of the monopolistic and, later, state-monopolistic capitalism.

The influence of sociological jurisprudence reached its peak in the first half of the 20th century in German bourgeois jurisprudence (E. Ehriich, H. Kantorowicz, H. Sinzheimer) and in the United States. American sociological jurisprudence (R. Pound, O. Holmes, B. Cardozo), in particular, legal realism, brought the negative attitude toward immutable legal norms to a culmination, stating that in general the administration of justice was possible without such norms. Variants of sociological jurisprudence included the sociological school of constitutional law (L. Duguit and M. Hauriou in France) and the sociological school of criminal law.

After World War II, the sociological school of jurisprudence came under the strong influence of empirical sociology and came to be treated by a number of authors (R. Treves, J. Skolnick) as a purely empirical discipline whose primary goal is research on different aspects of law in society. During the same period there has been development, particularly in French jurisprudence (G. Gurvitch, L. Lévy-Bruhl, J. Carbonnier), of institutionalist variants of sociological jurisprudence.

Marxists criticize sociological jurisprudence for substituting superficial reasoning about the “social reality” of the law for the materialist explanation of law as the product of class society. They also object to the school’s vulgar empiricism and to the spread of the concept of “free judicial discretion,” which serves to undermine the principle of legality.

REFERENCES

Zykov, P. G. Krizis sovremennoi burzhuaznoisotsiologiiprava. Moscow, 1963.
Ivanenko, O. F. Pravovaia ideologiia amerikanskoi burzhuazii. Kazan, 1966.
Tumanov, V. A. Burzhuaznaia pravovaia ideologiia. Moscow, 1971.
Lukovskaia, D. I. Sotsiologicheskoe napravlenie vo frantsuzskoi teoriiprava. Leningrad, 1972.
References in periodicals archive ?
As Tamanaha points out, some of the insights of historical jurisprudence were adapted by (or emerged independently in) the works of American legal realists, sociological jurisprudence, and other schools of thought.
This movement, influenced by early 20th century European legal thought in the form of sociological jurisprudence (Vick, 2004), took a sharp departure from positivism on the ground that it does not understand and study law in its actual social context(Davies, 2002; Munger, 1993; Salzberger, 2007).
jurisprudence dying and being supplanted by sociological jurisprudence.
Roscoe Pound, the Dean of Harvard Law School and an influential proponent of sociological jurisprudence, (150) was an early critic of the Court's formalism in Lochner and other cases.
The third chapter discusses the rise of Progressive "sociological jurisprudence." The Progressives believed that cases should be decided by looking at "social facts," not by making formalistic deductions from the written law.
For example, Bernstein includes Pound in a group of legal elites whose support for sociological jurisprudence "often masked a political agenda that favored a significant increase in government involvement in American economic and social life" (p.
While Sutherland was fighting a rearguard action in defense of economic liberty, Brandeis stood at the vanguard of a sweeping new legal movement that advocated a "sociological jurisprudence," which meant the law should adapt to new social and economic "facts."
It is this fellowship that substantially transformed the landscapes of sociological jurisprudence for the rest of jurisprudential worlds.
(9) Reflecting the "sociological jurisprudence" of the period, Chicago judges and prosecutors were also quick to invite social scientists and other experts into their courtrooms, and psychologists, "alienists," and physicians often testified in homicide cases.
When Brandeis joined the Supreme Court in 1916, he brought with him his rich experience and thoughts on sociological jurisprudence, together with a profound involvement in social reform.
Edmond's style of analysis of the exercise of judicial discretion has a long pedigree in sociological jurisprudence going back to the so-called American realists (see Twining 1973) and their debunking of official legal ideology about what judges do (application of existing legal principles to new fact situations) by pointing out the wide leeways in judicial rule-finding and fact-finding (see especially Frank 1949).
This is not new territory for legal scholars who have examined the consequences of law (for example, sociological jurisprudence) and advocated for laws that evolve according to the needs of society (Albert, 2000).