Why a Law Student Studies Sociology

The historical school of jurisprudence, and Savigny in particular, made this its central claim: law grows out of the spirit and the history of a people, and cannot be transplanted from one society to another without regard to either. Whether that is entirely true is one of the questions [Law and Social Change] examines, but nobody now denies that law has social roots.

3. Society is not one thing, so neither is the law's reception

India is plural in language, religion, region and culture, as [The Pluralistic Nature of Indian Society] sets out with figures. A single central statute lands in many different social settings at once and is received differently in each.

A lawyer who has been taught that a statute means the same thing everywhere will be surprised by their own practice. A lawyer who has been taught to ask which social groups a rule bears on, and how each will hear it, will not.

4. Legal categories are built from social ones

Open any bare Act and count the social concepts the draftsman has borrowed. Family, marriage, custom, reasonable person, public order, decency, cruelty, custom having the force of law, dependant, household. Not one of those is defined by law alone; each imports a social meaning, and when the social meaning shifts, the legal category shifts under the same words.

This is where the vocabulary in this book earns its keep. A student who knows the sociological difference between a family and a household, or between a caste and a class, reads such a provision more accurately than one who does not.

5. The effectiveness of law is an empirical question

Whether a statute achieves what it was passed for is not a question of interpretation. It is a question of fact, and the methods for answering it are the methods in Module III of this syllabus: survey, interview, documentary work, sampling, the analysis of official statistics.

This is the point at which the two halves of the syllabus meet. A student who has read Module III can, in principle, design an enquiry into whether a legal aid scheme reaches the people it was meant for. That is a socio-legal research design, and it is exactly what law reform bodies commission.

6. Law reform needs a picture of society before it needs a draft

Every Law Commission report begins with a description of a social situation and only then proposes words. If the description is wrong the words will be wrong, however elegantly drafted.

7. The daily work of a lawyer is social work in the literal sense

Taking instructions from a frightened client, judging whether a witness will hold up, advising on whether a family will honour a settlement, assessing what a bench will find reasonable: all of it is applied social understanding. It is learned by experience, but it is learned faster by someone who has a vocabulary for it.

A worked example

A statute requires that every workplace with ten or more employees constitute an internal complaints committee, and that a complaint be disposed of within ninety days.

A purely legal reading is short. There is an obligation, a threshold, a time limit, and a penalty for non-compliance.

A sociological reading asks different questions, and each one is answerable by the methods in Module III.

• How many workplaces in the city actually have ten or more employees on the books? In an economy where much employment is informal, the threshold may exclude most of the workers it was meant to protect. That is a question about the structure of the labour market.
• Who sits on such a committee? If its members depend on the employer for their livelihood, the group's own dynamics, and not its legal powers, will decide what it does. That is a question about primary and secondary groups and about authority.
• What does a complainant risk? Not only her job. Her standing among colleagues, her family's view of her, her marriage prospects in some communities. Those are informal social controls, and they are stronger than the statute.
• Does anyone know the committee exists? Knowledge of a right is unevenly distributed by education, language and access to media.

A lawyer who can only give the first reading will advise an employer how to comply on paper. A lawyer who can give the second will know why compliance on paper is common and why the complaints do not come, and will be far more useful to a client on either side.

Sociology of law and sociological jurisprudence

Two neighbouring terms are worth keeping apart, because MU's Module IV uses both.

Eugen Ehrlich is the bridge between them, and his idea of the living law is worth carrying into Module IV: the rules that actually govern life in a society are often not the rules in the statute book, and the gap between the two is the sociologist's subject.

What this does NOT mean

It does not mean law is nothing but sociology. Law has its own logic, its own techniques of interpretation and its own institutional authority. A sociological explanation of why a rule exists is not a legal argument about what it means, and offering one to a court is a mistake.

It does not mean an unenforced law is worthless. A rule widely disobeyed may still be doing work: stating a public standard, protecting the few who invoke it, providing a lever for change. Sociology measures the gap; it does not automatically condemn the rule.

It does not mean sociology can tell you what the law ought to be. It is a categorical and not a normative science, as [The Nature and Scope of Sociology] explains. It can tell you what a rule will cost and who will bear the cost. The decision remains a political and moral one.

Quick revision

1. Law is one instrument of social control among many, and the smallest of them.
2. Law is a social product: made, interpreted and enforced by socially situated people.
3. India's plurality means one statute is received in many social settings at once.
4. Legal categories, family, cruelty, reasonable, public order, borrow social meanings.
5. Whether a law is effective is an empirical question, answered by Module III's methods.
6. Law reform needs an accurate picture of society before it needs a draft.
7. Ehrlich's living law: the rules that actually govern a society may not be the rules in the statute book.
8. Distinguish sociology of law (descriptive, a branch of sociology) from sociological jurisprudence (prescriptive, a school of legal theory, Pound).

Test yourself

1. Give four reasons why a law student should study sociology. Law is only one instrument of social control and works best when custom, morality and opinion run with it; law is itself a social product, made and applied by socially situated people; legal categories such as family, cruelty and reasonableness borrow their content from social life; and whether a statute achieves its purpose is an empirical question answerable only by social research.

2. What is the living law, and who used the phrase? Eugen Ehrlich's phrase for the rules that actually govern conduct in a society, which are often not the rules recorded in the statute book. Its importance is that it directs attention to the gap between formal law and observed behaviour, and makes that gap something to be investigated rather than deplored.

3. Distinguish the sociology of law from sociological jurisprudence. The sociology of law is a branch of sociology; it describes how law works as a social institution, from outside, without prescribing. Sociological jurisprudence, associated with Roscoe Pound, is a school of legal theory; it addresses lawyers and judges from inside the system and prescribes how law should be made and applied to serve social ends.

4. A new statute is widely disobeyed. What would a sociologist ask? Whether the rule runs with or against existing custom, religion and public opinion; whether the people it binds know of it; what disobedience costs and what obedience costs, in money and in standing; whether the enforcing agency has the resources and the will; and which social groups gain and lose by it. The answers are gathered by the methods in Module III.

5. Does sociology tell us what the law ought to be? No. Sociology is categorical, not normative: it establishes what is the case, including what a proposed rule is likely to cost and who will bear that cost. Whether the cost is worth paying is a moral and political judgment, which the discipline cannot make for us, though it can make it better informed.