THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCE 

Sociology of law is defined in many ways, but its main difference from functional jurisprudence is that it attempts to create a science of social life as a whole and to cover a great part of general sociology and political science. The emphasis of the study is on society and law as a mere manifestation, whereas Pound rather concentrates on law and considers society in relation to it. 

Huntington Cairns also attempted to create a legal science with a dominant emphasis on sociology. He considers that modern jurisprudence is a meaningless and fruitless pursuit of a goal incapable of achievement.’ Jurisprudence is really an applied science, and no technology has ever succeeded unless it was based on the findings of a pure science. No universal propositions can be laid down concerning legal concepts or rules because they differ from race to race. If jurisprudence wishes to become scientific, it must create a science of society. The basis must be human behaviour as influenced by, and in relation to, disorder. It is impossible to discover how law operates unless we have greater knowledge of the factors that cause change in society and govern its evolution. When this is understood, jurisprudence as a technology can apply these rules to reach useful results. At present jurists are attempting to build a house before the foundations have been laid. Montesquieu laid the seeds of the sociological method in jurisprudence. In his “Esprit des Lois” (Spirit of the laws), published in 1748, Montesquieu used the historical method. Montesquieu researched into the laws and institutions of all kinds of human society. He considered that law should be based on historical observations, and not merely on reason or belief. 

LEON DUGUIT 

The French jurist Leon Dugit was a professor of constitution law in the University of Bordeaux in France. He made substantial contributions to sociological jurisprudence in the early twentieth century. Dugit carried forward the belief that scientific progress can be accelerated by individual behaviour in order to satisfy common social needs and interests. Dugit was inspired by Durkheim who himself had taken inspiration from Comte. Durkheim’s main point, on which Dugit built upon, was that he made a distinction between two kinds of needs of men in society. Firstly, there are common needs of individuals which are satisfied by mutual assistance and secondly, there are diverse needs of individuals which are satisfied by the exchange of services. Therefore, the division of labour was a preeminent factor of social cohesion as an indisputable fact beyond ideology, beyond religious or metaphysical

speculation.The constant realisation of social fact which is simply inter-dependence of individuals could at least replace ideological quarrels by observable facts. 

SOCIAL SOLIDARITY 

Dugit attacked traditional concepts of state, sovereignty and law and sought to fashion a new approach to these matters from the angle of society. Dugit was much influenced by Augste Comets ‘Theory of law as a fact’ ‘ which denounced individual rights of man and subordinated them to social interest. Completed that “the only right which man can possess is the right always to do his duty.” This formed the basis of Dugit’s legal theory. 

Dugit built his theory on social solidarity, emphasising the necessity of viewing social life as it is actually lived. The most important fact of society is the interdependence of individuals. In present-day society, people exist by their membership in the community, relying on others for their necessities due to specialised functions. According to Dugit, the end of all human activities and organisations should be to ensure this interdependence, which forms the basis of his theory of social solidarity. 

Dugit argues that law arises from the fact of social existence, stating that if individuals wish to live and act in society, they must act in conformity with the social law of solidarity. He explains that solidarity is not merely a rule of conduct but a fundamental fact of human society. Men are ‘solidarity’ with one another, sharing common needs that can only be satisfied collectively through the division of labour. Thus, it is everyone’s duty to conform their conduct to this fact of social solidarity, as individual happiness and unhappiness affect the entire community. 

However, Dugit’s principle of social solidarity is not free from criticism. He rejects individualism and the concept of inalienable individual rights, as well as the alternative of strengthening central state power. Instead, he advocates for a decentralised group environment, linked by the objective rule of law based on social solidarity. Despite rejecting metaphysical conceptions, his idea of social solidarity aligns with natural law ideals. Critics argue that the meaning of ‘social solidarity’ remains unclear and that social facts are less precise than natural facts, suggesting that Dugit’s ‘solid facts’ are of a highly metaphysical order. 

Dugit also attacks the myth of state sovereignty, proposing social solidarity as the touchstone for judging the activities of individuals and organisations, including the state. He argues that the state should have no special privileges and should be justified only as long as it fulfils its duty to society. Dugit advocates for checks on state power, decentralisation, and the idea of syndicalism. He denies the distinction

between public and private law, asserting that both should serve the same end of promoting social solidarity, thus having no difference in their nature. 

EUGEN EHRLICH (1862-1922) 

While Kohler’s philosophy of law moved on the borderline between sociological jurisprudence and legal idealism, a thoroughly sociological type of legal theory was propounded by the Austrian thinker Eugen Ehrlich. Ehrlich was a professor of Roman law at the University of Czernowitz in Austria. Like Savigny, he believed in spontaneous evolution of law but he did not hang on the past but conceived law in the context of existing society and thus evolved his theory of living law. According to him, the institution of marriage, domestic life, inheritance, possession, contract etc., govern the society through living law which dominates human life. By living law he meant extra legal controls which regulate social realities of me. 

Genuine sociological jurisprudence teaches, in the words of Northrop, that the “positive law cannot be understood apart from the social norms of the living law.” 

The central point of Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal sources of law. He says “at present as well as at any other time, the centre of gravity of legal development lies not in legislation nor in juristic science, nor in judicial decisions, but in society itself.” Thus living law is the fact which governs life and a proper study of law requires the study of all the social conditions in which the law functions in the society. A statute which is habitually disregarded is no part of living. 

According to Ehrlich there is no substantial difference between formal legal norms and the norms of customs or usages, because the sanction behind them is the same (that is social pressure). If a statute is not observed in practice, it is not a part of living law. 

Ehrlich meets the facts of growing state activity and a parallel increase of state norms by distinguishing three types of legal norms. All legal norms regulate in some way the relation between command and prohibition and the underlying facts of law”. They do so in different ways; 

● The protection may simply be given to legal norms purely based on facts of law such as by laws of association or corporations, or contracts. Closely connected are norms directly derived from social facts, such as the remedies for damages, unjust enrichment etc. 

● Legal commands or prohibitions (imposed by the state) may create or deny social facts in the case of expropriation or multiplication of contracts.

● Norms may be entirely detached from social facts, such as imposition of taxes or the granting of trade concessions and privileges. 

His use of the term ‘sociological jurisprudence’ means that law in a society should be made and administered with the utmost regard to its requirements. To achieve this end, a very close study of the social conditions of the society, in which the law is to function, is, indispensable. 

In view of the Ehrlich, a court trial is an exceptional occurrence in comparison with the innumerable contracts and transactions which are consummated in the daily life of the community. Only small morsels of real life come before the officials charged with the adjudication of disputes. To study the living body of law, one must turn to marriage contracts, leases, contracts of purchase, wills, and the actual order of succession, partnership articles and the bylaws of corporations. 

AUGUST COMTE (1798-1857) 

The honour of being the founder of the science of sociology belongs to another French philosopher August Comte. The legitimate object of scientific study, according to Comte, is society itself and not any particular institution of government. He stressed the fact that men have ever been associated in groups and that it was in the social group and not in isolated individuals that the impulses originated which culminated in the establishment of law and government. He defiantly rejected the view that society rests upon an individualistic basis and that the individual is the focal point of law. His philosophy is thus in sharp contrast to the mechanistic philosophy current before his time. 

THE VIENNA SCHOOL OF JURISPRUDENCE 

Analytical positivism has been restated, developed and put on a theoretical philosophical basis in our own time by the very potential theory of the ‘Vienna School’. Legal theory of this school is indeed dynamic and pluralistic. The school regards it as a mark of error to think of the law as completed within the stage of statute and to bar the door of the law which is made in the judicial and administrative process. It regards it also as a mark of error to think of the law as completed at the stage of judicial decisions and to neglect the legal material which is already present as the product of the legislative process. “To attempt to view the law as a whole from one or the other category is equally arbitrary. Both are passive objects of cognition for legal science, although taken together they only make possible a partial knowledge of law as a whole, as it is presented to legal science.”

Viennese school, in fact, has had a powerful intellectual influence and its chief exponent is Professor Hans Kelsen. 

HANS KELSEN 

Kelson was born at Prague in Austria in 1881 and was a Professor of law at the Vienna University. He was also the judge of the supreme constitutional court of Austria for ten years during 1920-1930. Thereafter, he shifted to England. He came to the United States and worked as professor of law in several American universities and authored many books. He was emeritus Professor of Political science in the California University when expounded his ‘Pure theory of law’ which is considered to be Kelsen’s unique contribution to legal theory. 

Kelsen’s pure theory of law is akin to that of Austin’s theory of law, although Kelsen, when he began to develop his theory, was quite unaware of Austin’s work. He nevertheless recognised the essential identity of his own objectives with Austin’s, namely, to base a theory of law on a positive legal order or on a comparison of the contents of several legal orders and thus by confining jurisprudence to a structural analysis of positive law to separate legal science from philosophy of justice and sociology of law. He wished to free the law from the metaphysical mist with which it has been covered all times by the speculations on justice or by the doctrine of ‘jus naturale’. In this sense Kelsen’s theory is called the ‘pure theory of law’. As a theory, thus, it is exclusively concerned with the accurate definition of its subject matter. It endeavours to answer the question, what is the law? But not the question, what it ought to be? It is a science and not a politics of law. 

The theory of Kelsen says Dias has represented a development in two different directions. On one hand, it makes the highest development to date of analytical positivism. On the other hand, it characterised the close of the 19th century and the beginning of the 20th century. This is not to suggest that Kelsen reverted to ideology. For Kelsen and his followers any such legal idealism is unscientific. 

Nearly a century separates the work of Hans Kelson from that of Austin. If Austin was driven to make his jurisprudence rigid because of the confusion of previous writers, Kelsen represents a reaction against the modern schools which have so far widened the boundaries of jurisprudence that they seem almost conterminous with those of social science. But while Austin did not consciously formulate a detailed philosophy, Kelsen admittedly builds on the doctrine of Kant. Most philosophers emphasise that jurisprudence must study the relationship between law and justice, but Kelsen wishes to free the law from metaphysical mist with which it has been covered at all times by the speculations on justice or by the doctrine of ius naturae.

He is thus a philosopher in revolt from the tendencies to which philosophy had led so many writers. He desires to create a pure science of law, stripped of all irrelevant material, and to separate jurisprudence from the social sciences as rigorously as did the analysts. The mathematician is not interested in the way in which men thinks nor is he directly concerned whether his work is to be used to build a bridge or to work out a new system to break the bank at Monte Carlo: so the jurist, if he is to be scientific, must study the legal rules abstracted from all social conditions. Kelsen refuses to define law as a command, for that introduces subjective and political considerations and he wishes his science to be truly objective. 

An interesting example by which to test Kelsen’s theory is the Unilateral Declaration of Independence by Rhodesia. The Privy Council, as part of the English legal order, naturally decided against the validity of the Rhodesian emergency powers which had not been laid down in accordance with the Grundnorm the court accepted. The Rhodesian courts looked at the problem in the light of the new legal order created by the declaration of independence and relied partly on the theory of necessity and of the actualities of politics. In other words, these courts in effect accepted a new Grundnorm for Rhodesia. 

LAW IS A NORMATIVE SCIENCE 

Law norms are ‘ought norms’. According to Kelsen, law is a normative science. But law norms have a distinctive feature. They may be distinguished from science norms on the ground that norms of science are norms of being ‘ is’ (sein), while the law norms are ‘ought’ norms. Law does not attempt to describe what actually occurs but only prescribes certain rules. It says, if one breaks the laws, then he ought to be punished.’ These legal ‘ought’ norms differ from morality norms in this respect that the former are backed by physical compulsions which the latter lack, but Kelsen does not admit the command theory of Austin as it introduces a psychological element into the definition of law which Kelsen avoids. 

HIERARCHY OF NORMATIVE RELATIONS 

The science of law to Kelsen is the knowledge of hierarchy of normative relations. He builds on Kant’s theory of knowledge and extends this theoretical knowledge to law also. He does not want to include in his theory ‘what the law ought to be’ and speaks of theory of law as a structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or Practical judgement of value. 

According to Kelsen, a legal order is composed of norms placed in a hierarchical manner, one norm placed above another norm and every norm deriving its validity from the norm above it. The hierarchy takes a pyramid shape and symbolises the legal order. In this way there comes a final stage of highest norm which serves as the

basis for all infertile norms, that is known as the basic norm or Grund Norm. The Grund norm is the basic point of the philosophy of Kelsen. The legality or validity of all the norms can be tested against the Grund norm. The validity of the Grund norm can’t be objectively tested. The Grund norm is the common source for the validity to the positive legal order or all norms that belong to the legal order. The Grund norm must be efficacious i.e., it must be obeyed by the people at large. Efficacy is the validity of the Grund norm. 

GRUNDNORM 

The Grund norm is the starting point in a legal system. From this base, a legal system broadens down in gradation becoming more and more detailed and specific as it progresses. Kelsen calls it ‘general concentrisation’ of ‘Grund norm’ or the basic norm thus focusing the law to specific situations. 

Kelsen’s pure theory of law is based on the pyramidal structure of hierarchy of norms which derive their validity from the basic norm which he termed as Grund norm. Thus, the Grund norm as the basic norm determines the content and gives validity to other norms derived from it. Kelsen has no answer to the question as to whereupon the basic norm derives its validity. He considers it to be a meta-legal question in which jurists need not to intrude. 

The task of legal theory is only to clarify the relation between Grund norm and all other inferior norms and not to enter into other questions as to the goodness or badness of Grund norm. This is the task of political science, ethics or religion. 

Jullius Stone rightly comments that as Austin’s sovereign in a particular society is a mere starting point for his legal theory, so also the basic norm has to be accepted as a hypothetical starting point or fiction which gives a legal system countenance and a systematic form. 

Thus, while all norms derive their validity from the basic norm, the validity of the basic norm cannot be objectively tested, instead, it has to be presumed or pre-supposed. Kelsen however considers the Grund norm as a fiction rather than a hypothesis. 

Kelsen recognised the Grund norm need not to be the same in every legal order, but a Grund norm of the same kind there will always be, whether in the form, e.g., of a written constitution or the will of a dictator. There appears no reason why there need not be one Grundnorm. For example, in England, the whole legal system is traceable to the propositions that the enactments of the Crown in Parliament and Judicial precedents ought to be treated as ‘law’ with immemorial custom as a possible third.

This is not in contradiction to Kelsen’s theory of law. Kelsen has firmly said that a system of law cannot be grounded on two conflicting Grundnorm. In England, obviously, there is no conflict between the authority of the King in Parliament and of judicial precedents, as the former precedes the latter. The pure theory of law thus operates with this basic 

norm as with a hypothesis, but where no such explicit formulation exists, Kelsen is by no means clear in guiding our search. For him the only task of legal theory is to clarify the relation between the fundamental and all lower norms, but not to say if this fundamental norm is good or bad. This is the task of Political science or ethics or of religion. 

NORM 

To Kelsen, a norm is the meaning of an act of will by which a certain behaviour is commanded or permitted or authorised. The meaning of such an act of will cannot be described by the sentiment that the other individual will behave in that way only but he ought to behave in that way. 

ESSENTIALS OF KELSEN’S SYSTEM 

The essential foundations of Kelsen’s system maybe enumerated as follows; 

● The object of a theory of law, as of any science, is to reduce chaos and multiplicity to unity. 

● Legal theory is a science and not volition. It is knowledge of what the law is and not of what it ought to be.’ 

● The law is normative and not a natural science. 

● Legal theory is a theory of norms, and is not concerned with the effectiveness of legal 

norms. 

● A theory of law is formal, a theory of the ordering, changing contents in a specific way. 

● The relation of legal theory to a particular system of positive law is that of possible to 

actual law. 

FEATURES OF KELSEN’S THEORY 

● The theory of law must be ideal with the law as it is and not with the law as it ought to be. i.e., it must concern with the existing law.

● The theory of law is different from the law itself. Law is a mass of heterogeneous rules. The function of the theory is to distinguish between the different types of the law. 

● A theory of law must be pure. It must be free from all ambiguities. A theory must explain all the aspects of law without reference with other subjects like sociology, political science, economics, history etc., because they are subject to variation from one place to another and from one time to another. The pure theory which would have the ingredient of only one discipline, i.e., law. 

● Law is a norm, which is a prescription norm, the function of which is to prescribe. 

● Law is the hierarchy of the norms, and each norm derives its validity from the superior norm. 

● Finally there comes the highest norm to which all inferior norms derive their validity i.e.,known as Grund norm. 

● Kelsen’s approach is much wider than that of Austin, as Kelsen includes; policy, rule, 

doctrine and standards in addition to the commands within the purview of the norm. 

IMPLICATIONS OF THE KELSEN’S THEORY 

The implications of Kelsen’s theory are wide and many. It covers concepts of state, sovereignty, private and public law, legal personality, right and duty and international law. 

● LAW AND STATE NOT TWO DIFFERENT THINGS: The most significant feature of Kelsen’s doctrine is that both the law and state are identical; for him the state is nothing but a system of human behaviour, an order of social compulsion. This compulsive order is different from the legal order, for the reason that within one community only one and not two compulsive orders can be valid at the same time. It is therefore redundant to distinguish between law and state, because every act of state is a legal act. A human act is only designated an act of state by virtue of a legal norm which qualifies it as such; on the basis of the norm the act is imputed to the state, is related to the unity of the legal order. 

● The state as a person is simply the personification of the law. Kelsen, thus, rejects any dualism by saying that dualism of state and law is one of those tautologies which double the object of knowledge. Legal dualism, for him, is nothing but a reflection of and substitute for theology, with which it has substantial identities.

The reality of the state is that it is a system regulating social behaviour in a normative order. But such work can be discovered only in a legal system. Really speaking, law and state are the same and the difference between them appears because we look at them from two different points. 

● NO DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW: Another very significant feature that comes out of the hierarchical structure of law is Kelsen’s attack upon the traditional distinction between public and private law. Behind the division of public and private law Kelsen suspects, not without a reason, a political ideology which wishes this sphere of private law to appear as being beyond politics, whereas in reality private law institutions consist of a political ideology as strongly as public law institutions and relations. 

● According to Kelsen, there is no difference between public and private law when all law derives its force from the same Grund norm. No distinction between them can be made on the ground that they protect interests of different nature. Private interests are protected in public interest. He traces a political ideology behind this distinction- a motive to elevate public law and justice authoritarianism’. On this point, though from different premises, Kelsen reaches the same conclusion as Dugit and Renner. 

● NO DIFFERENCE BETWEEN NATURAL AND JURISTIC PERSON: Kelsen does not admit any legal distinction between physical and juristic person. Since, state is nothing but a legal construction; this leads us to the next part of Kelsen’s theory, the denial of any distinction between physical and juristic persons. As law is a system of normative relations and uses personifications merely as a technical device to constitute points of unification of legal norms, so the distinction between natural and juristic persons is irrelevant, while all legal personality is artificial and deduces its validity from superior norm. To Kelsen, the concept of person is merely a step in the process of concretization, e.g., totality of claims, etc., and nothing else. 

● NO INDIVIDUAL RIGHTS: As law is a system of norm relations, so Kelsen and his followers recognise no individual right, except as a technical device which the law may or may not recognise in order to carry out legal transactions. Legal duties are the essence of law, for law is a system of ‘oughts’, whereas legal rights are by an incident. This necessarily severs law from any associations with political theory of the law, for example, from those which affirm certain inalienable rights of the individual. 

CRITICISM AGAINST KELSEN’S THEORY 

NO PRACTICAL SIGNIFICANCE: Sociological jurists criticise it on the ground that it lacks practical significance. Professor Laski, says, Granted its postulates, I believe the pure theory to be unanswerable but I believe also that its substance is an exercise

in logic and not in life’. Some see Kelsen as “beating his luminous wings in vain within his ivory tower.” 

PURITY OF NORMS CANNOT BE MAINTAINED: Although Kelsen’s theory has warmly been recognised, yet most writers point out that it provides no guidance whatsoever to a person in the actual application of the law. The quality of purity claimed by Professor Kelsen for all norms dependent on the basic norm had always been subject to serious attack. In the most enchanting language of Jullius stone: “….Since that basic norm itself is obviously most impure, the very ‘purity’ of the subsequent operations must reproduce that original impurity in the inferior norms, we are invited to forget the illegitimacy of the ancestor in admiration of the pure blue-blood of the progeny. Yet the genes are at work down to the lowliest progeny.” 

The absolute purity of any theory of law is a far cry, so Kelsen had to admit his defeat when it came to the question of conflicting fundamental norms. The question which is the valid fundamental norm, his pure theory cannot avoid, for without it the whole structure would collapse. Similarly, the “minimum of effectiveness” formulae which Kelsen chose for him is at bottom nothing else but Jellink’s normative Kraft des Faktischen. How can the minimum of effectiveness be proved except by an inquiry into socio-political facts? Writing as late as 1942, he himself suspected if his pure theory of law is a foundation without which the sociological and evaluative inquiries cannot proceed. Sociological jurisprudence, according to him, presupposes normative jurisprudence, since until the latter has determined what are legal norms, sociological jurisprudence has no definite province. The truth is, however, something else. It is his pure theory of law which is important as an instrument until the other approaches to law provide the hypothesis of the basic norm. 

HIS GRUND NORM VAGUE AND CONFUSING: The first point in Kelsen’s theory which is greatly criticised is his conception of Grund norm. Though Kelsen has given its characteristics as possessing ‘minimum effectiveness’ it is very vague and confusing and It is difficult to trace it out in every legal system. But its discovery is a condition precedent for a successful application of Kelsen’s theory to a legal system. Kelsen seems to have given his thesis on the basis of the written constitutions as Austin created his ‘sovereign’ on the basis of the English system of government but even in written constitutions. ‘Grund norm’ is made up of many elements and any one of these elements alone cannot have the title of Grund norm. Another criticism against the conception of Grundnorm is from the point of view of the Historical school. It says that the origin of law is in customs and Volkgiest and not in any other source, such as ‘Grund norm’. But on this point Kelsen finds in Professor Friedmann and Stone very strong advocates of his view. Friedmann says, “The fact that the

ultimate authority in any given legal order may be a composite one, as in the United States of America, or Great Britain, does not alter the fact that such an ultimate authority must exist”. So far as the criticism by the jurists of the Historical School is concerned, Kelsen is decidedly a positivist and therefore, this criticism does not hold good against him. 

NATURAL LAW IGNORED: Lauterpacht, an ardent follower of Kelsen, has also from a different side questioned if the theory of hierarchy of legal norms does not imply a recognition of natural law principles, despite Kelsen’s blatant warning of natural law ideology. Many natural law theories do not establish absolute ideals but affirm the principle of higher norm superior to the positive law. As mankind becomes legally organised, natural law rules would become positive norms of a higher order, and the difference between Kelsen’s theory and those of modern law theories would disappear. Hagerstorm, too, appears to have unfolded the natural law philosophy concealed in Kelsen’s assumption of the unconditional authority of the supreme power, or, in verdross, “constitution of the law of nations” as the formulation on which the principle of international law (Pacta Sunt Servanda) is supposed to ground. 

THE REALIST MOVEMENT-LEGAL REALISM 

Legal realism implies that judicial decisions must conform to socio-economic factors and questions of policy and values. In America we have the Realist School of jurisprudence. This school fortifies sociological jurisprudence and recognises law as the result of social influences and conditions, and regards it as judicial decisions. 

OLIVER HOMES 

1841-1935 

Oliver Holmes is, in a sense, an exponent of the realist school. “Law is what the courts do; it is not merely what the courts say.” Emphasis is on action. As Holmes would have it, “The life of the law has not been logic; it has been experience.” 

K. N LLEWELLYN 

Karl Llewellyn, in his earlier writings, was a spokesman for orthodox realist theory. He argued that the rules of substantive law are of less importance in the catula practice of law than had hitherto been assumed. “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” He proposed that the focal point of legal research should be shifted from the study of rules to the observance of the real behaviour of the law officials, particularly the judges. “What these officials do about disputes is, to my mind, the law itself.”

This last statement, however, was withdrawn by Llewellyn in 1950. In his more recent writings, he has placed a somewhat greater stress on the importance of normative generalisation in law, pointing out that the rule part of law is “one highly developed part” of the institution, but not the whole of it. He has also, in keeping with the postulates of sociological jurisprudence, sought to explore the relations and contacts between the law and the other social sciences, coming to the conclusion that the lawyers as well as the social scientists have thus failed to make an “effective effort at neighbourliness.” 

K. N Llewellyn concentrated rather on the uncertainty in the actual operation of the rules in appellate courts- he wished to make a sustained and realistic examination of the best practice and art of the best judges and their judging and he had, in a major work, attempted just such a study. 

In America, sociological jurisprudence has developed an extreme wing under the name of the Realist School. The sociological method has brought legal science into intimate relation with the facts of social life and made jurists recognise law as a product of social forces. 

Llewellyn, one of the exponents of the realist movement, has set forth the following points as the cardinal features of American realism; 

● Realism is not so much a new school of jurisprudence as a new methodology in jurisprudence. 

● Realists regard law as dynamic and not as static. They regard law as serving certain social ends and study any given cross-section of it to ascertain to what extent these ends are being served. 

● Realists, for the purpose of observation of the functioning of any part of the legal system accept a ‘divorce of is from ought”. This means that the ethical purposes which, according to the observer, should underlie the law, are ignored and are not allowed to blur the vision of the observer. 

● Realism emphasises the social effects of laws and of legal decisions. 

Another leading realist was Frank (1889-1957) who was known as a “constructive legal sceptic.” Mr. Justice Cardzo, in his “The Nature of the Judicial Process’ ‘, points out that law never is, but is only about to be. Even existing decisions may be overruled. Law is not something certain- not what the judges have said, but what they will do.