UNIT1:- INTRODUCTION
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Definition, Nature & Scope of
Sociology. •
Relevance of Sociology for the
study of Law. Distinction between Sociology and other Social Sciences - Political Sciences, History, Economics, Ethics •
SOCIOLOGY is the study of society. It is a social science which uses various methods of empirical investigation and critical analysis to develop and refine a body of knowledge about human social activity, often with the goal of applying such knowledge to the pursuit of social welfare. Subject matter ranges from the micro level of agency and interaction to the macro level of systems and social structures. Sociology is both topically and methodologically a very broad discipline. Sociology
DEFINITION OF SOCIOLOGY
In 19th century, French philosopher Auguste Comte Coined the term SOCIOLOGY which is made up Latin words ‘Socius’ meaning companion or associate and ’ology’ meaning study; the etymological meaning of the word is ‘science of society’. Herbert Spencer developed a systematic study of society and adopted the name ‘Sociology’. Comte defined sociology as “science of social phenomena subject to natural and invariable laws, discovery of which is the object of investigation”. According to Kingsley Davis “Sociology is a general science of the society”. Harry M Johnson defines Sociology as “the science that deals with the social groups”. According to Emile Durkheim”Sociology is the science of social institutions”. There is no consensus among different sociologists regarding the definition of sociology. Different definitions point towards the distinct approaches to its study. However, the basic and common idea underlying all different definitions is that ‘Sociology is concerned with man, his social relationships and society’. NATURE OF SOCIOLOGY
Robert Bierstedt in his book “The Social Order” describes sociology as a science having the following characteristics:It is an INDEPENDENT SCIENCE. It has its own field of study, boundary and methods. It is a SOCIAL SCIENCE not a physical science. It deals with the social universe. It is a CATEGORICAL DISCIPLINE not a normative one. It has an amoral approach and is ethically neutral. It is a PURE SCIENCE not an applied one. Its main aim is acquisition of knowledge. It is a RELATIVELY ABSTRACT SCIENCE not a concrete one. It studies the forms and patterns of human events and the general laws that govern all the societies. It is a GENERALISING SCIENCE not an individualizing science. It aims to formulate general laws that govern the human interaction, associations and their nature, content and structure of human groups. • • •
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It is a GENERAL SOCIAL SCIENCE not a special social science. It studies human interaction and life in general not any particular aspect of it. •
SCOPE OF SOCIOLOGY
A sociologist tries to study the dynamics of a society in terms of organised patterns of social relations. Basically he poses three questions: how and why societies emerge? How and why they persist? And how and why they change? Major concerns of a sociologist can be summarized as follows:Sociological analysis of societies and culture. Study of primary units of social life. Development, structure and function of basic social institutions. Fundamental social processes. Methods of research. Formulating concepts, propositions and theories. Specialization in specific fields. •
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V. F. Calberton remarks that “since sociology is so elastic a science, it is difficult to determine where its boundaries begin and end, where sociology becomes social psychology, where an economic theory becomes sociological doctrine, is something that is impossible to decide”. This sort of summarizes the nature of scope of sociology. There are two main schools of thought regarding the scope of sociology. 1.
SPECIALISTIC OR FORMALISTIC SCHOOL
This school of thought was led by German sociologist George Simmel. Vierkandt, Max Weber, Small, Von Wiese and Tonnies being other notable advocates of this school. Proponents of this school argued that sociology should be developed as a pure science, limited in its scope of study. It should study only certain aspects of human relations not all. It should aim at studying only the forms of the relationships, describe, classify and analyze them (Simmel). Vierkandt argued that a sociologist must only the forces of change and persistence, not the historical evolution of the societies. However this school was criticised on many grounds. It unnecessarily narrowed down the field, as not only the general forms but concrete contents of the societies need to be studied. Sociology is not the only science that studies the forms of social relations. Sorokin argued that the distinction between the forms of social relations and its contents is not workable, as the form is bound to change once the contents are changed. Further, establishment of pure sociology is impractical; today more emphasis is laid on an interdisciplinary approach to a subject. 2.
SYNTHETIC SCHOOL
This school conceives sociology as a “synthesis of all social sciences”. It aims to develop it as a general social science and makes it “synoptic or encyclopaedic in character”. Emile Durkheim, Hob House, Morris Ginsberg and Sorokin are the main proponents of this school. Main argument offered by the school is that all the aspects of social life are closely interconnected, so all of them need to be studied to describe the entire phenomenon. Here arises the need to study social life as a whole. This has led to creation of general and systematic sociology. According to Morris Ginsberg the following are the main areas of investigation Social Morphology:- It encompasses the quality and quantity of the population and social structure of groups and institutions. Social Control:- It involves the study of formal and informal regulating agencies of society. Social Processes:- It analyses the different forms of human interactions Social Pathology:- The main concern of this branch is the mal-adjustments and deviances and various social problems. •
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Relevance of Sociology for the study of Law. If societies are based upon agreed upon laws, then they are very much interrelated subjects. They are symbiotic, interwoven, interconnected. When someone commits a crime against another person or their property, they will have to face the consequences in a court of law. Or reduce it to a smaller group such as a tribe. Even amongst members of a tribe, there are laws that may only be verbal, or perhaps not even as formal as that. They are followed because children see them in the form of examples as they grow up. Within each tribe, culture or society, some form of punishment is enforced when a cultural norm is broken. Law can be analyzed sociologically as a method of doing something. Law can be studied as a social process, instrumented by individuals during social interaction. Sociologically, law consists of the behaviors, situations, and conditions for making, interpreting and applying legal rules that are backed by the state’s legitimate coercive apparatus for enforcement. The sociology of law (or legal sociology) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. While some socio-legal scholars see the sociology of law as "necessarily" belonging to the discipline of sociology, others see it as a field of research caught up in the disciplinary tensions and competitions between the two established disciplines of law and sociology. Yet, others regard it neither as a sub-discipline of sociology nor as a branch of legal studies and, instead, present it as a field of research on its own right within a broader social science tradition. For example, Roger Cotterrell describes the sociology of law without reference to mainstream sociology as "the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience". The sociology of law became clearly established as an academic field of learning and empirical research after the Second World War. After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of the Talcott Parsons, for instance, law is conceived as an essential mechanism of social control. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as Philip Selznick , argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well. Still other scholars, most notably the American sociologist Donald Black , developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who sees law as normatively closed, but cognitively open system. The essential insight underlying all sociological approaches to law is that law is a social phenomenon that should, therefore, be studied sociologically. Beyond this core unifying orientation, sociology and law, otherwise known as the sociology of law, or law and sociology, consists of a variety of different approaches, assumptions, and attitudes. This internal proliferation of approaches is the product of diversity at two different levels. First: sociology and law are contrasting bodies of knowledge. Sociology is a social science focused on
the study of society, and like all such disciplines its overarching goal is the gathering of knowledge. Law, in contrast, is a practical activity that focuses on completing certain fundamental tasks, including promulgating and enforcing rules, responding to disputes, and maintaining order. Second: each of these contributing bodies of knowledge is in its own way internally driven, with sociology divided among various competing schools of thought and law divided among practitioners and theorists (adhering to competing schools of thought). When sociology and law are brought together, the differences between them, and the internal divisions that characterize each, are manifested in the combination of the two. In the United States, the primary academic influences in bringing sociology to law were philosophical pragmatism, sociological jurisprudence, and legal realism; the key figures were Oliver Wendell Holmes Jr., Roscoe Pound, and Karl Llewellyn. These schools of thought and figures were leaders in the critique of formalistic approaches to the law that dominated at the end of the nineteenth century and early twentieth century. Under formalist views, law was a gapless, logically coherent selfcontained system that could be discovered and applied exclusively through consideration of legal concepts, principles, and rules, without regard to social context or consequences. The figures identified above argued, to the contrary, that law was the product of social forces, that it was neither gapless nor systematic, that one could not move mechanistically from principle to application (choices had to be made), and that judges were influenced by the social background in their interpretation and application of law. Most important: they argued that law, far from being autonomous and self-standing, was above all else an instrument to serve social needs. An important social-political influence on their thought was the social programs of the New Deal, which resorted to law as the key mechanism for implementing social policy. It follows this cluster of views that the efficacy of law, and its social consequences, must be carefully evaluated. Hence the call for the application of sociology to law. The early agenda for sociology ranged from studying the gap between “law in the books” and “law in action,” to discovering the social influences on the making, the application, and the interpretation of law, to learning whether law is effective in achieving social policy, and how it can be made more effective when it is not. Many sociological studies of law, from the study of crime to influences on judicial decision-making, were conducted to meet this call. Under the influence of sociologist E. A. Ross, law came to be understood as a mechanism of social control, and the thrust of many studies was to make law more efficient and effective in accomplishing this task. A backlash against this jurisprudence-dominated agenda gradually developed from the sociological standpoint, which decried the instrumental use of sociology as a “handmaiden to law.” As the science of society, the application of sociology to law, it has been argued, should take place in the context of general theories about society, with proper attention paid to epistemological and methodological concerns. The classical sociological theories about lawfamously including Émile Durkheim’s view of law as the essential element integrating modern society, Max Weber’s ideal-type analysis of the kinds of law found relative to kinds of societies, and Karl Marx’s characterization of law as determined by economic forces, serving the dominant class all possessed these qualities. A modern sociological theory of this type of law is Donald Black’s view, which assumes a positivistic
stance of measuring law in quantitative terms, and articulates a series of “laws” of legal behavior based upon patterns he observes relating to factors like degree of social stratification. A different current source of criticism of the jurisprudence-influenced approach to sociology and law comes from critical schools of sociolegal theory, including “critical empiricists” and “postempiricists,” which reject positivism and many of the epistemological underpinnings of classical sociology (including the fact/value distinction). Adherents criticize sociology and law as currently practiced as a conservative tool that serves to preserve the status quo by enhancing the efficiency of law and by failing to scrutinize and reveal the institutional structures and ideological beliefs about law circulating in society which perpetuate (class-based, gender-based, and/or race-based) oppression and domination. Sociological approaches to law, according to this view, must reject the agenda set by jurisprudence, and instead seek to expose all forms of domination perpetuated through law. Sociology and law thus encompasses divergent perspectives on law. Despite significant internal schisms, a growing community of scholars and body of discourse has developed around the combination of sociology and law, united by the shared commitment to view law as a social phenomenon that must be examined in sociological terms. Functions of law •
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Social control Dispute resolution Social change
Social control:
There are two basic processes of social control: the internalization of group norms and control through external pressures. In Chtonic societies, social control is ensured by the fact that socializing experiences are very much the same for all members. Even in larger societies, social control rests largely on the internalization of shared norms. Formal social control is characterized by: (i) explicit rules of conduct, (ii) planned use of sanctions to support the rules, and (iii) designated officials to interpret and enforce the rules, and often to make them. Law does not have a monopoly on formal mechanisms of social control. Control through law is usually exercised by the use of negative sanctions and not by positive rewards. A person that obeys the law does not receive an award. Mechanisms of social control through law: (i) Criminal sanctions, (ii) civil commitment, and (iii) administrative licenses. Criminal sanctions: the purpose of sanctions: Retribution (denounce unlawful conduct) Deterrence (both specific and general), Rehabilitation of the offender.
Civil commitment: medicalization of social problems, such as drug abuse, alcoholism, etc. Administrative law: administrative regulations is used as a means of social control. Three types of administrative agencies in Canada: self-governing bodies, independent regulatory agencies, and departmental regulatory agencies. Requiring and granting a license to perform certain activities is a classic control device. Licenses are required for more than 5000 occupations in Canada. Underlying all regulatory licensing is a denial of a right to engage in the contemplated activity except with a license. Licenses can also be revoked and suspended. Dispute resolution :
Types: By the parties themselves: physical violence, family feud, lumping it, avoidance, etc. By adjudication: ADR: negotiation (without the help of any third party), mediation (third party helps disputants), and arbitration (third party makes a final and binding decision, which is enforceable). Hybrid resolution processes: rent a judge (like arbitration, but with a retired judge), med-arb (issues not solved by mediation are sent to arbitration where the mediator becomes arbiter), and mini trial (if there is no settlement before the “sentence” the adviser gives her opinion about the likely outcome if the dispute were litigated). Adjudication: a formal method of conflict resolution, where a third party –the courts- intervenes –even if not wanted by the parties- and renders a decision which is enforceable. Case and controversy: there must be standing (before in Canada a pecuniary, proprietary or economic claim or one to personal property, now these requirements were relaxed and there must be a genuine interest), the dispute must be ripe (not moot) and there must be jurisdiction (and justiciability, e.g., no political questions). Also, the claim has to be within the statute of limitations.
Social change
Law is both a dependent and an independent variable, i.e., an effect and a cause of social change. The question is not whether law changes society or whether social change alters law, but rather, what level or under what circumstances change is produced. Examples of social changes as causes of legal changes: Soviet Union, China, and other radical revolutions. Examples of legal changes as causes of social changes: adultery, sexual assault, etc.
Dysfunctions of Law • • • •
Tendency toward conservatism. Social changes often precede changes in the law. Need for authority. Discrimination.
Sociology of Law: the purpose is to demonstrate the connections between sociology and law. For the classics, such as Durkheim, Weber and Marx, the essential connection was the structural conditions that appear to give rise to different kinds of law and legal systems. They react against legal positivists, such as Kelsen and Hart, and natural law scholars. Sociology of law clearly demonstrates that law is born of socio-political contexts, themselves existing in different historical eras, that it serves some interests rather than others, that different social structures or forms of organization give rise to different laws and legal systems and that a combination of coercive and ideological processes are at work to ensure the continuation of existing legal systems and through these, existing structures of domination. Sociology of law is not the study of law and society but the interrelationship of law with society, such that each is part of the other. Sociology of law is the study of (i) the evolution, function and justification of forms of social control, (ii) the forms of legal thought and reasoning as they relate to a particular political economic order, (iii) the legitimation principles and their effects, (iv) the causes of the development of the form of social control, (v) the transmission of “correct” methods of legal reasoning, (vi) the creation of the legal subject with formal, abstract and universal rights, (vii) the degree of freedom and coercion existing in the form of law. It examines the evolution of the legal forms and how they become the dominant factors in legal thinking and in the resolution of conflicts in society. The emphasis is on specifying the causes of law, legitimation principles, the specific legal discourse and forms of legal reasoning that arise, the development of a specialized staff, the evolution of the legal subject –the reasonable man in law- and to what degree coercion and freedom exist in law. Finally, it examines the connection between the form of law and the political and economic sphere. Thus, sociologists of law would criticize lawyers (jurisprudes) for uncritically accepting categories generated from historically specific socio-economic relations. Since the turn of the 20th century the jurisprudence school of thought ahs dominated the analysis of law.
Problems of interaction between sociologists and lawyers
Sociologists study everything about the law, except for rules –institutional structures, processes, behavior, personnel, and culture. Lawyers and sociologists don’t speak the same language. There is a special rethoric of law. It has its own vocabulary, an arcane writing style, and a form of irritating citation.
There are also differences in professional culture. Lawyers are advocates. They are concerned with the identification and resolution of the problems of their clients. Sociologists consider all evidence on a proposition and approach the problem with an open mind. Lawyers are guided by precedents and past decisions control current cases. In contrast, sociologists emphasize empirical research. Lawyers and law professors tend to believe that they have a monopoly over law. This is as if physicians thought that they had a monopoly over the bodies. The pronouncements of law are predominantly prescriptive: they tell people how they should behave and what will happen to them if they don’t. In sociology, the emphasis is on description, on understanding the reasons why certain groups of people act in a certain way in specific situations. The law reacts to problems most of the time. The issues and conflicts are brought to lawyers by their clients outside the legal system. In sociology, issues and concerns are generated within the discipline on the basis of what is considered intellectually challenging, timely, or of interest to funding agencies. These differences are due in part to the different methods they use.
DISTINCTION BETWEEN SOCIOLOGY AND OTHER SOCIAL SCIENCES
SOCIOLOGY AND POLITICAL SCIENCE
DIFFERENCES BETWEEN THE TWO SCIENCES SOCIOLOGY 1. It is a science of society 2. It studies all kinds of societies organized (Organized and unorganized) 3. It has a wider scope 4. It studies man as a social animal 5. It is a general social science. It studies all studies the aspects of human interaction. 6. Its approach is sociological, with its own methods of methods of investigation. 7. It is quite a young science, not even two centuries old.
societies. 3. It has a narrower field. 4. It studies man as a political animal. 5. It is a special social science. It only political aspect of human interaction. 6. Its approach is political, with its own investigation like the historical method. 7. It is a comparatively old science, studied in the days of Kautilya, Plato etc.
SOCIOLOGY AND HISTORY
DIFFERENCES BETWEEN THE TWO SCIENCES SOCIOLOGY 1. It is interested in the study of the present social phenomena. 2. It is a relatively young social science, with short history of its own. 3. It is an analytical science. 4. It is abstract in nature, it studies regular, the recurrent and the universal themes. 5. It is a generalizing science. 6. It follows the sociological approach. It studies approach. It the events from the viewpoint of social relationships involved.
POLITICAL SCIENCE 1. It is a science of state and government 2. It studies only politically
SOCIOLOGY AND ECONOMICS
HISTORY 1. It deals with the past events of man. 2. It is an age old science, with a long a history of 2000 years or more. 3. It is a descriptive science. 4. It is concrete. It is interested in the unique, particular and individual events. 5. It is an individualizing science. 6. It follows the historical studies human events in accordance with the time order.
DIFFERENCES BETWEEN THE TWO SCIENCES SOCIOLOGY 1. It studies all kinds of social relationships and relationships human interaction. character. 2. It is a general social science. 3. Its scope is wider and has a comprehensive viewpoint. 4. It is a science of recent emergence. . 5. It is abstract in nature and less precise. . 6. Social variables are difficult to measure accurately and quantify.
2. It is a special social science. 3. Its scope is narrower and has an exclusive viewpoint. 4. It has attained an advanced stage of maturity. 5. It is concrete in nature and more precise. 6. Economic variables are more easily and measured and quantified.
SOCIOLOGY AND ETHICS
DIFFERENCES BETWEEN THE TWO SCIENCES SOCIOLOGY 1. It is a science of society. 2. It studies all kinds of social relationships and human interaction. 3. It only studies the human social behavior. 4.
ECONOMICS 1. It only deals with social that are economic in
It does not prescribe standards of conduct.
ETHICS 1. It is a science of moral order. 2. It studies the human motives or desires and the moral end. 3. It deals with the rightness and wrongness of the human behavior. 4. It is concerned with the standards of conduct.
