Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

INTRODUCTION TO SOCIOLOGY OF LAW

Nnamdi Ebo 2 241x300 CLASSIFICATION OF LAW | Part 3Lawyer Zone  | By Nnamdi Ebo.

Sociology of law or sociological jurisprudence (1907) is a philosophical approach to law stressing the actual social effects of legal institutions, doctrines and practices. This influential approach was started by Roscoe Pound in 1906 and became a precursor to legal realism. One of the most characteristic features of 20th century jurisprudence has been the development of sociological approaches to law.

The social sciences have an influence this century almost comparable to that of religions in earlier periods. Legal thought has tended to reflect the trends to be found in sociology. More recently conflict theories have tended to dominate the sociological stage and these have been reflected in legal thinking. Max Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law.

Around 1900, Max Weber defined his “scientific” approach to law, identifying the “legal rational form” as a type of domination, not attributable to people but to abstract norms. Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.

Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe and William Graham Sumner in the U.S. Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialized subjects such as criminology.

The institutions of social construction and legal frameworks are the relevant areas for the discipline’s inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences between positive law, which lawyers learn and apply, and other forms of ‘law’ or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts. The application of legal rules in social matters started around the period after the theoretical propositions by Roscoe Pound.

For Roscoe Pound, jurisprudence or the theory of law is not so much a social science as a technology and the analogy of engineering is applied to social problems. Pound was concerned primarily with the effect of law upon society and only to a lesser extent with questions about the social determination flaw.

Little attention is paid to conceptual thinking. The creative role of the judiciary is in the forefront, as is the need for a new legal technique directed to social needs. The call is for a new functional approach to law. Pound’s view of the law is that law is a reconciler of conflicting interest in the application of legal rules to social matters. So for Roscoe Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as is possible with the least friction and waste. Pound regards these claims as interests which existing for recognition and security. The law recognizes some of these interests, giving them effects within defined interests. Pound attempted to expound and classify the categories of interests, which are thus acknowledged in a modern democratic society. In this approach, Pound rather recalls the methods of Aristotle’s distributive justice. This seems to ignore the extent to which existing law is based on giving effect to vested rights.

Pound’s own approach to the application of legal rules to social matter was somewhat infertile. He looks to actual assertions of claims in a particular society, especially as manifested in legal proceeding and legislative proposals; whether accepted or rejected very much on the state of the law discourages litigation on doubtful new points. The failure of English law to develop more than a rudimentary corpus of social security case- law is an example. It must be stated therefore that there are interests not only in the sense of what people want but in the sense of what may be good for them regardless of their actual desires.

Pound sees law or legal rules as adjusting and reconciling conflicting interests. It is an instrument, which controls interest according to the requirements of the social order. It therefore follows that law represents the consciousness of the whole society. Ultimately, it only serves those interests that contribute to the good of the whole society. So Pound identifies the task of the good of the whole society. So Pound identifies the task of the lawyer as that of a “social engineer; (who) formulates a program of action, attempts to gear individual and social needs to the valves of western democratic society.

Law should be placed in its social context, of using these methods, of recognizing that many traditional jurisprudential questions are empirical in nature and not purely conceptual. Roberto Unger in his law in modern society claims that each society reveals through its law the innermost secrets of the manner in which it holds men together. Unger’s study of the legal order is directed towards showing why citizens of liberal society find it both necessary to subscribe to the rule of law and impossible to achieve it by applying it to social matters. The disintegration of traditional types of legality and legal thought reveals far- reaching changes in society and culture.

No references & footnotes in this online publication. Checkout references & footnotes in the book.
To be continued next week.

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Legal Method . Book Cover 202x300 CLASSIFICATION OF LAW | Part 3Culled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved

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