LL.b Notes

The main field of study of sociological school of jurisprudence is the effect of law on the society. Sociological school includes a number of approaches since the end of 19th century the main and common field of study of the jurist of this school is "Law as an instrument to social change".

Herbert Spencer's theory of law :-
Organic Theory of Law:-
Harbor Spencer's popular theory is known as organic theory of Law. He was the propounder of his own theory. The science of sociology received a tremendous momentum from the work of Herbert Spencer. Spencer  gave a scientific exposition of the organic early of society. He of applied the Darwin's theory of evalution and said that in the evolution of society, he compares organism to the biological organism and had that individual had to  develop a sense of social solidarity. He propounded the organic concept of society and had also developed  theory of general will. According to Herbert Spencer  law arises from the four  sources-
1)Inherited usages, 2)injunction of deceased  person,
4)will of the pre-dominant men, and
4)collective opinion of the community.
     Spencer termed this four sources as the "principles of sociology". Herbert Spencer rightly remarked that Darwin's Theory of Evalution of society, where the infant of science of sociology received a tremendous growth. He compared social organism to biological organism and said that individual had to develop a sense of social solidarity. From the theory of Herbert Spencer there takes place a revolutionary change in the concept of law.

Leon Duguit's theory of law :-

Social solidarity theory:
Leon Duguit was the supporter of sociological school of jurisprudence. He was the professor of constitutional law in France. Leon Duguit totally opposed the traditional concept of state, sovereignty and law and wanted to give a new approach to those matters from the angle of the society. According to Duguit the principle of social solidarity is the outstanding fact of the society and it is based upon the interdependence of the people in the society. This interdependence always been there but increased in the modern times, on account of the increasing knowledge of man and his command over the physical world.
     In modern time we cannot live without the service provided to us by our fellow men. Our food, our clothing, housing, entertainment, etc., are always depend upon the activities of other people. Specialisation has been increased to such an extent that we cannot exist only by virtue of our membership of a community. Now social interdependency is not a theory but a fact. It is a necessary part of a human life and so Duguit calls it as a principle of social solidarity.

Interdependence of Men in the society:- According to Duguit the most important fact that exist in a society is the interdependence of men. Each men cannot manufacture or procure the necessities of life by himself. Functions are so specialised that everybody depends on other for its necessity the and of all human activities and organism should be ensured by interdependence of men to the society.
    Leon Duguit is out and out a social reformer, his theory has a great impact in the society. He had divided the work on different grounds which became an important factor of every society, what he termed as social solidarity and this social solidarity is necessary for social life of a human being.

Implication of Leon Duguit's  Theory of Social Solidarity:-
Leon Duguit is not only a supporter of sociological school of jurisprudence but also of proponent of strong check on the abuse of State Power through the establishment of strict principles of state responsibility. These becomes clearly evident when Duguit said that the state is sovereign but such sovereignty has its limits. The foundation  and the determination of this limitations are found. According to the doctrine of individualism in the existence of natural right of the individual anterior to the state which the latter must respect and guarantee to the extent necessary to protect the rights of all.
     Another significant implication of social solidarity theory is the rejection of the intervention of the state as the dicissive . Factor in turning a social into a legal norms Duguit's conclusion in this connection resemble very much with those of the historical and some of the sociological theories. According to him it is not the intervention which gives the character of a juridical norm to the rule. It would be powerless to prove it, if the rule did not possess in itself.
     Next important implication of Duguit's theory is that law is a spontaneous production of individual consciousness, inspired by social necessity and the sentiment of justice. This only can be the norm of law. If this being so, legislation can only be conceived as a means of expression of rule of law. The legislature does not create it but defines it. The legislation imposes itself only in proportion as it is in conformity with this rule.
     Further Duguit proclaims that all accepted notions of public and private law based on metaphysical and natural law. Thus he rejects any distinction between private and public law. The concept of public service unsettles the concept of sovereignty as the foundation of public law. In this regard Duguit supported the Kelson's views that there is no distinction between the private and public law.
      From the above discussion it is clear that the contribution of the Duguit in the legal field is remarkable. Duguit's social solidarity is initially a hypothesis but later on it is a grand reality. Duguit openly show on social fact of modern life that is the growing complexities of society with a corresponding increases of the social task and need. But at the same time he advocated the approach towards the strengthening of Central authority which alone is capable of mastering the social vital problems of the modern community.