The theory of law is not a universal concept. There are natural, theological, Marxist, psychological versions of it - the list goes on. This article will focus on the sociological school of law, its advantages and disadvantages, as well as leading representatives.
The origin of the direction
This trend in jurisprudence appeared not so long ago. The world learned about sociological jurisprudence at the end of the 19th century. Its other name is the doctrine of "living" law. At the same time, sociology settled in a separate branch of knowledge; therefore, this legal concept has developed in two main ways:
- The formation of the theory of law within the boundaries of general sociology.
- Distribution of sociological methods of cognition in jurisprudence.
The basic concepts of the school were formed when legal dogmas designed for free competition ceased to satisfy most of society. At the beginning of the era of capitalism, the judicial system, under the guise of a new interpretation, began to introduce qualitatively different norms. Hence the assertion that the law must be sought not in norms, but in real life.
In our country, the sociological theory of law became widespread after the October Revolution on the basis of criticism of the old imperial laws. However, when the Soviet state formed its legal system, such thoughts were not held in high esteem.
Representatives of the direction
In short, supporters of this trend believed that law arises from the implementation of laws in everyday life. These representatives of the sociological school of law were:
- In France - F. Zhenya.
- In the USA - R. Pound, Harvard Law School, American Realistic School of Law.
- In Austria-Hungary - E. Erlich.
- In Russia - S. A. Muromtsev.
Key points
The concepts of the sociological school of law can be summarized in the following theses:
- The right is not embodied in law or positive law, but in the implementation of established norms. Hence, sociological jurisprudence goes beyond the framework of the law to law enforcement practice. Law is the sphere of due, law is the sphere of being.
- Positive law, according to which the law was considered book and "dead". In modern theorists of reality, his counterweight was the “living” law observed in action.
- Only the real behavior of participants in legal relations plays a role. As well as their legal actions, relationships, the rule of law, the application of laws. Law is , first of all, legal practice.
- The creators of the living law are administrators and judges. It is they who create the law and are true lawmakers.
Theory benefits
After analyzing the teachings of the sociological school of law, we can distinguish the following advantages of its concepts:
- Lawmaking based on real precedents studied on the basis of specific sociological methods.
- Public relations are placed above the rule of law.
- Sociological law-making corresponds to decentralized management, state non-interference in the economy and other progressive ideas.
- Only the study of legislation in real life, in action, leads to the creation of effective legal norms, more advanced laws. The study of law in life leads to the identification of its shortcomings, conflicts, "white spots".
Theory flaws
Speaking about the pros and cons of the sociological school of law, we will touch on its obvious shortcomings:
- The development of the concept leads to a blurring of the boundaries of such a concept as law. If the right to understand primarily the implementation of laws, the difference between the legal and illegal is lost. Indeed, the realization of life can be both legitimate and unlawful.
- If lawmaking becomes the prerogative of judges, this can lead to arbitrariness in judicial practice. Especially in this vein, they criticized the sociological school of criminal law.
- Without a stable regulatory framework, there is a high likelihood of a tendency to resolve court cases in favor of economically and politically influential individuals.
Key features of the theory
This theory against the background of the others has significant differences, namely:
- Excessive attention to legal proceedings.
- A reference to the fact that the judge must first make a decision, trusting his intuition, and only then draw it up with references to paragraphs of the law and other precedents.
- Deprivation of the rule of law of an active role. The rules are established by the court.
- The truth of the theory was confirmed by its achievement of the expected effect in reality.
- Refusal to study the essence of law, motivated by the fact that it is impossible to know.
- Law as a tool to achieve public goals.
The concept of R. Pound
Let's get to know more closely the works of the outstanding theoretician of the sociological school of law Roscoe Pound (1870-1964). The scientist was the dean of Harvard Law School, the president of the International Academy of Comparative Law.
The basis for his theory was the philosophy of pragmatism. Its essence lies in the fact that scientific truth is achieved only experimentally, and the value lies in applied utility. Hence, Pound believed that law is a subjective experience that does not add up to general laws. Further , more: the goal and task of law cannot be known, which is why all the assessments given to him are contradictory.
At the same time, the scientist singled out one objective criterion - its usefulness for society. Therefore, a lawyer should study precisely life, the application of law, where the practical embodiment of the latter is most noticeable, where it is closely moved to public practice.
Pound believed that the main task of the theory of law is the creation of the so-called "social engineering". This was the name of the means of social oversight of society, which would control the opposition of the aggressive and social instincts of society, which, according to the theoretician, is the essence of people's lives. And what is right? It should be the highest form of social control, as it is able to force, to give the power to use force. The highest mission of laws here is to protect the eternal principles and values of civilization, namely the principles, norms and institutions of the liberal type of law and order.
According to the Pound of external forms, law has only three:
- Administrative and litigation.
- A regime of orderly civic activity that supports a politically organized society through the systematic use of force.
- All legal requirements applied by the judicial and administrative system in a politically organized community.
We note a few more interesting statements by this theorist of the sociological school of law:
- Legislation ("book law") and litigation, the rule of law ("law in action") should be distinguished.
- The law is obliged to respond as quickly as possible to changes in public life, which is why it is necessary to make legal proceedings that are not strongly tied to the law ("justice without law").
- The scientist called for expanding the powers of judges and other law enforcement agencies. The guarantor of protection against possible arbitrariness, he called their legal consciousness.
The teachings of the school of "realists"
Pound's views within the framework of the sociological school of law were developed by "realists" - Jerome Frank, Karl Llewellyn, based not only on pragmatism, but also on behaviorism. Here are some points from their teachings:
- Legal practice and law are identical.
- The value of law is measured in the effectiveness of its application.
- For the most part, it is not legal norms that influence the decision on a particular court case, but participants in the process, especially their motives and behavior.
- The judge is the main subject of law-making. Hence, it can only be a lawyer who can both critically evaluate the law and have the ability to create the law himself.
- The social value of law is that it is something vague, which allows society to develop freely.
- The law should not be dogmatic; it should change along with the realities of public life.
The concepts of the sociological school of law do not seem to be meaningless. But at the same time they are quite controversial. This theory takes the right away from dogmatism to “live” law-making, turning a blind eye to the fact that such a path can lead to the flourishing of anarchy and arbitrariness.