Sociological Jurisprudence

a fundamental trend of 20th-century bourgeois jurisprudence. In contrast to legal positivism, which reduced jurisprudence to a formal and logical study of the law in force, sociological jurisprudence shifted the focus of attention to the study of the “living law,” that is, systems of specific legal relationships and of human behavior in a legal context. Although in itself the idea of studying all aspects of the operation of law in society is justifiable, to representatives of sociological jurisprudence it was reduced for the most part to an erroneous juxtaposition of legislative norms (“law in books”) to “law in everyday life.” The latter was considered as the “true law,” and, consequently, a court could refuse to apply the law in force if such a law was, in the opinion of the court, contradictory to the “living law.” Law itself was defined by adherents of sociological jurisprudence not as a system of norms but chiefly as a “matrix of relationships.” The development of sociological jurisprudence reflected the inconsistency between many legal institutions that took shape during industrial capitalism and the economic and political processes that accompanied the development of the monopolistic and, later, state-monopolistic capitalism.

The influence of sociological jurisprudence reached its peak in the first half of the 20th century in German bourgeois jurisprudence (E. Ehriich, H. Kantorowicz, H. Sinzheimer) and in the United States. American sociological jurisprudence (R. Pound, O. Holmes, B. Cardozo), in particular, legal realism, brought the negative attitude toward immutable legal norms to a culmination, stating that in general the administration of justice was possible without such norms. Variants of sociological jurisprudence included the sociological school of constitutional law (L. Duguit and M. Hauriou in France) and the sociological school of criminal law.

After World War II, the sociological school of jurisprudence came under the strong influence of empirical sociology and came to be treated by a number of authors (R. Treves, J. Skolnick) as a purely empirical discipline whose primary goal is research on different aspects of law in society. During the same period there has been development, particularly in French jurisprudence (G. Gurvitch, L. Lévy-Bruhl, J. Carbonnier), of institutionalist variants of sociological jurisprudence.

Marxists criticize sociological jurisprudence for substituting superficial reasoning about the “social reality” of the law for the materialist explanation of law as the product of class society. They also object to the school’s vulgar empiricism and to the spread of the concept of “free judicial discretion,” which serves to undermine the principle of legality.