POUND Sociology of Law and Sociological Jurisprudence

Sociology of Law and Sociological Jurisprudence
Author(s): Roscoe Pound

Source: The University of Toronto Law Journal, Vol. 5, No. 1 (1943), pp. 1-20
Published by: University of Toronto Press
Stable URL: http://www.jstor.org/stable/824509
Accessed: 10-11-2015 17:07 UTC
REFERENCES
Linked references are available on JSTOR for this article:
http://www.jstor.org/stable/824509?seq=1&cid=pdf-reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/
info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content
in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.
For more information about JSTOR, please contact support@jstor.org.
University of Toronto Press is collaborating with JSTOR to digitize, preserve and extend access to The University of Toronto
Law Journal.
http://www.jstor.org
This content downloaded from 130.237.29.138 on Tue, 10 Nov 2015 17:07:54 UTC
All use subject to JSTOR Terms and Conditions
THE
UNIVERSITY
OF TORONTOLAW JOURNAL
VOL. V-NO. 1 LENTTERM 1943
SOCIOLOGY OF LAW AND SOCIOLOGICAL JURISPRUDENCE
D R. TIMASHEFF remindsus that sociologywas born in a state of

hostilityto law in the lawyer'ssense of thatterm.' Comte had but
vague, lay ideas as to law and wrotein the period in whichFrenchjurists
identifiedlaw withthe Code Napoleon.2 At the same time,the historical
school was risingto the dominanceit obtainedin the latterpart of the
nineteenthcenturyand was propagatingdisbeliefin legislation. Comte's
prophecyof the disappearanceof law wenton a different groundfromthat
of the like prophecymade by Marx. Comte was prophesyingthe dis-
appearanceof legislativelaw. As sociologydevelopedand gained general
recognitionin America,therewas a like hostilityof common-lawlawyers
toward sociology.3 But the time came when sociologistssoughtto relate
theirteachingsto lawyer'slaw and Anglo-Americanjurists soughtto use
sociologyforpurposesof jurisprudence.
Althoughtherehad been attemptsin the last quarterof the nineteenth
centuryto connect sociology with philosophyof law,4 and much had
been writtenat the same time by way of applicationof the biological
sociologyto law,5 sociologyof law is a matterof the presentcentury.
'The Sociologyof Law, at p. 45.
2E.g., Demolombe,Cours de code Napoleon (1845), vol. I, ? 2; Demante,Cours
analytiquede code civile (1849), vol. I, ?? 1-2; Marcad', Explicationdu code
Napoldon(1859,ed. 5), vol. I, ? 1.
3See Fowler,"The New Philosophiesof Law" in 27 HarvardLaw Review (1914),
at pp. 718, 727, 730; ibid.,"The Futureof the CommonLaw" in 13 ColumbiaLaw
Review (1913), at pp. 595,601,605.
4Vadale Papale, La filosofiadel dirittoa base sociologica (1885); Ratto,
Sociologia e filosofiadel diritto(1894); Vaccaro, Le basi del dirittoe dello stato
(1893), translatedas Les Bases sociologiquesde droitet de l'itat (1898).
5Post,Der Ursprungdes Rechts (1876), Bausteinefiireinenallgemeinen Rechts-
wissenschaft (1880), Die Grundlagen des Rechtsund die Grundziige seinerEntwickel-
ungsgeschichte (1884), Grundriss der ethnologischen
Jurisprudenz (1894-5); Richard,
L'Originede l'iddede droit (1892).
1
2 THE UNIVERSITY OF TORONTO LAW JOURNAL
Spencertreatedoflaws as whathe called politicalinstitutions ratherthanof

law, thinkingof law as hardenedcustom"formulating the rule of the dead
over the living."" Ward thoughtonly of legislationwhich,much in the
mannerof the contemporary historicaljurists,he took to be attemptto
affectthe operationof the "real laws" whichthe sociologistfoundbehind
the phenomenaof social life.' Durkheimsought to explain law as the
expressionof a basic social fact but got no furtherthan a general dif-
ferentiationof repressivelaw and restitutivelaw, the one corresponding to
solidaritythroughsimilarity of interestand the other to solidaritythrough
divisionoffunction.8Finally,in a seriesofarticlespublishedbetween1896
and 1901' and reprintedas a volumein 1901,10Ross gave us the idea of
social controland of means of social control,puttinglaw as the "most
specialized and highly finishedengine of social control employed by
society.""1
Sociology of law is in this line of development. It proceeds from
sociologytoward law. The pioneer and in many ways the most useful
work for the lawyer is Ehrlich's Grundlegung der Soziologie des Rechts.12
A successionof books on sociologyof law has followed.13
Sociological jurisprudenceis in anotherline of development. It pro-
ceeds fromhistoricaland philosophicaljurisprudenceto utilizationof the
social sciences,and particularlyof sociology,toward a broader and more
6Principlesof Sociology(1882), vol. II, p. 514.

7DynamicSociology,vol. I, pp. 36 ff.
8De la divisiondu travailsocial (1893).
9In AmericanJournalof Sociology,I, pp. 513,753; II, pp. 96, 255,433,547,823;
II, pp. 64, 236,328,502,649, 809; V, pp. 475,604, 761; VI, pp. 29, 238,381, 550.
1oSocial Control (1901). 11lbid., p. 106.
12(1913). Translated by Moll as Fundamental Principles of the Sociology of Law
der Rechtssoziologie"in 39
(1936). See critiquesby Kelsen, "Eine Grundlegung
Archives fiir Sozialwissenschaft und Sozialpolitik (1915), p. 839-answered by
Ehrlich,41 ibid. (1916), p. 844,withreplyby Kelsen,ibid.,p. 850-and by Vinogradoff,
"The Crisis of ModernJurisprudence" in 29 Yale Law Journal(1920), at p. 312;
reviewsof Moll's translationby Simpsonin 51 Harvard Law Review (1937), at
p. 190, by Timasheffin 2 AmericanSociological Review (1937), p. 120, and by
Rheinstein in 48 International Journalof Ethics (1938), p. 232; and appreciation by
Pound,"FiftyYears of Jurisprudence" in 51 HarvardLaw Review (1938), at pp. 777,
805-9.
13Cornil,Le Droit prive: Essai de sociologie juridique (1924); Jerusalem,
Soziologiedes Rechts (1925); Burckhardt, Die Organisationder Rechtsgemeinschaft
(1927) ; QueirosLima,Principiosde sociologiajuridica (1922; ed. 2, 1931) ; Horvith,
Rechtssoziologie (1934)--reviewby Wilson in 52 Law QuarterlyReview (1938), at
p. 138; Gurvitch, Ple6ments de sociologiejuridique (1940) ; ibid.,Sociologyof Law
(1942).
SOCIOLOGY OF LAW AND SOCIOLOGICAL JURISPRUDENCE 3
effectivescienceof law. It beginswith Holmes, 4 goes forwardin a neo-

directionwith Kohler"15 in a positivist-
Hegelian historical-philosophical
sociological naturallaw directionby Duguit, who foundshis doctrineon
Durkheim,16 and in a neo-scholasticsociologicaldirectionby Hauriou.17
In America it has been carried on in a social-philosophical directionby
Pound's and Cardozo.19
We are now told by Gurvitch,quotingBougle, that "the pickaxes of
the two crews,each hollowingout its respectivegallery,have finallymet";
and Gurvitchadds that the meetingplace is the sociologyof law.20 The
extentto whichtheyhave met and the point of meetingare the themeof
this paper.
Sociologicaljurisprudenceis criticizedfromboth sides-from the side
of sociologyand social philosophy,and fromthe side of jurisprudence.
Gurvitchobjects to juristicdistinguishing of law (in the lawyer'ssense)
that is, a highlyspecializedphase (the legal order) or highlyspecialized
agencies (the body of legal precepts,technique,and receivedideals, and
the judicial and administrativeprocesses) of social controlin and by a
politicallyorganizedsocietyfromotherphases and agencies,because each
group has its order,its frameworkof order,its own jural values, and the
"state itselfis merelya particulargroup and a particularorder."21 This
means thatjuristslook primarilyat theirspecial subject and set it offfor
14"The Path of the Law" in 10 Harvard Law Review (1897), at p. 467, reprinted
in Holmes, Collected Papers, at pp. 167-202.
15"Rechtsphilosophieund Universalrechtsgeschichte" in Holtzendorff,Enzyklopddie
der Rechtswissenschaft(ed. 6, 1904), vol. I.
16L'.Jtat,le droit objectif,et la loi positive (1901). See Stone, review of Durk-
heim, On the Division of Labor in Society (transl. by Simpson, 1934) in 47 Harvard
Law Review (1934), at p. 1448; Pound, "Fifty Years of Jurisprudence"in 51 Harvard
Law Review (1938), at pp. 444, 466-71.
17"La Theorie de l'institutionet de la fondation"in La Cite moderne et les trans-
formations du droit (1925). See Renard, La Thdorie de l'institution (1930);
Jennings,"The InstitutionalTheory" in Modern Theories of Law (1933), at pp. 68-85;
Gurvitch,"Les Id'es maltresses de Maurice Hauriou" in Archives de Philosophie du
Droit et de Sociologie juridique (1931), p. 155; Bonnecase, La Pensee juridique
francaise (1933), vol. I, at p. 379.
8IsThe Scope and Purpose of Sociological Jurisprudence"in 24 Harvard Law
Review (1911), at p. 591; 25 ibid., at p. 140, ibid. (1912), at p. 589; "Theory of Social
Interests" in 15 Papers and Proceedings American Sociological Society (1921), p. 16;
Interpretations of Legal History (1923); "Fifty Years of Jurisprudence" in 50
Harvard Law Review (1937), at p. 559, 51 ibid. (1938), at pp. 444 and 777; Social
Control Through Law (1942).
19The Nature of the Judicial Process (1921) ; The Growth of the Law (1924);
Paradoxes of Legal Science (1928).
20Sociology of Law, at p. 3. 21Ibid.,at p. 165, n. 1.
thatpurpose,whilesociologistsmaybe lookingat social controlas a whole,

and so evenwhatseemsto thejurista deep cleavageseemsto the sociologist
no morethana scratch. That this is all thatit means is concealedby the
use oftheone wordlaw bothforthespecializedsocial controlthe juristhas
in mindand social controlas a whole whichthe sociologisthas in mind.
The sociologicaljuristis quite willingto agree thatthe stateis a particular
group with its own innerorder. But if he means by law what lawyers
mean and jurists have meant fromthe beginningsof the science of law,
he can forhis purposesclearlydistinguishin modern,developedsystems,
thelaw of a politicallyorganizedsociety,paramountwithinand independent
of legal controlfromwithout,fromthe innerorder of groups and associ-
ations and relationswhich legallymust operate in subordinationto what
thecommon-lawlawyerwouldcall thelaw of theland.
As withall continental-trained writers,Gurvitch'sthoughtis influenced
by the two sides of the termdroit,Recht,jus. To the Roman, jus was
whatwas rightand just backedby theauthority ofthe state. The wordsin
the languagesof continentalEurope whichwe translateas "law" preserve
that twofoldmeaning. Moreover, they are words of primarilyethical
import. Our word "right" (as distinguished froma right) has neverhad
more than an ethicalmeaning. "Law" has been used in English juristic
thinkingforthe law recognizedand applied in the courtsas authoritatively
laid down by the legislativeorgan of politicallyorganized society, or
traditionally receivedand established. Droit, Recht,jus, can only be put
in English awkwardlyas rightplus law. Behind this is the whole course
of the taughttraditionon the continentand in England respectively. On
thecontinent, sincethetwelfth century, law has been taughtin theuniversi-
ties. Thus philosophy,firstas theologicalphilosophy,thenas naturallaw,
and then as metaphysical-historical thinking,has been at the front in
juristic method. In England, law has been taught since the thirteenth
century as a law of the courtsin the inns of courtand chambersof prac-
tisinglawyers. In the United States, the universitylaw schools did not
have thetrainingof themajorityofthe professionuntilthepresentcentury.
Hence, philosophyhas been well in the backgroundof Anglo-American
juristic thought. Reason, or a historicallydemonstrableidea, or philo-
sophicallydevelopedexperiencestand out in the one term,as the guinea
stampof the state impressedby legislationor judicial ascertainment does
in the other.
If rightplus law, or rightbacked by law, seems one idea to the conti-
nentaljuristwhileit seems to us to involvetwo,it is because of the words
by which we give formto our thoughts. Much of the discussionas to
the natureof law is a discussionof words ratherthan of the ideas which
juristsare seekingto express by the termused. But the meaningsof the

words used, as understoodby jurists,undoubtedlycolour their thoughts.
The most that we may ask is patientendeavouron the part of each to
understandthe otherand no settingup of strawmen to be knockeddown
triumphantly by postulatinga meaning of "law" assumed by the one
but not by the other.
From the side of social philosophyof law the American sociologists
and the sociologicaljuristsare chargedwithmisuseof the termsociology,
which,we are told, "designatesthe theoreticalscience of societyand ex-
cludes valuations of a practicaland political nature."22 Our persistent
busyingourselveswith concreteproblemsof the legal order is held un-
scientific. Gray consideredthat sociologicaljurisprudencewas "deonto-
logical,"concerningitselfwithhow the law of courtsfunctionedand what
it oughtto be, and so outsidethe provinceof a scienceof law.2S Kelsen
has laid out a sharp line of distinctionbetweenjuristic and sociological
method,and his "pure theory"of law is as exclusiveof anythingbut the
norms proceedingfrom the organs of a politicallyorganized society
as was Austin's analyticaljurisprudence. From this standpoint,too, the
functionalstandpointof sociologicaljurisprudence,its concern with the
contentof legal precepts,and how theywork and how theymay be made
to workbetter,is outsidetheprovinceof the jurist. Here, again,we are in
large partquarrellingover a word. The task laid down in the programme
of Americansociologicaljurisprudence24 is always at hand to be done. If
sociologyon one side, and jurisprudenceon the other,mustbe so narrowly
limitedas to exclude it, then,if we cannotredefine,we shall have to claim
the goodwillof the two names as the exponentsof sociologyof law are
claimingthe goodwillof the name "law."
What, then, do the recent sociologistsof law mean by sociology?
Duguit was jurist ratherthan sociologist. But he accepted Durkheim's
sociology,and it seemed to a French scholar in the reign of positivist
sociologytwo decades ago that Americansmust tie to Durkheimor we
could not claim to be sociologists.25Ehrlich uses the term in Comte's
sense of theoreticalsocial scienceas a whole,and is doubtfulof the utility
of makingit "an independentscience,the functionof which is to present
a synthesisof the contentof all theoreticalsocial sciences,which might
22Radbruch, "Anglo-American Jurisprudence through Continental Eyes" in 52

Law Quarterly Review (1936), at pp. 530, 542.
23Nature and Sources of the Law (ed. 2, 1936), at p. 139 n.
24Pound, Outlines of Lectures on Jurisprudence(ed. 4, 1928), at pp. 16-18.
25Lepaulle, "The Function of Comparative Law" in 35 Harvard Law Review
(1922), at pp. 838, 839-41.
constitutea unitary'general part' of the social sciences."26 This was

beforeMax Weber had limitedsociologyas an independentscience in a
different way.27 Timasheffregards sociologyas a theoreticalscience of
generalizationsas to social phenomena.28Horvath thinksof a "synoptic
science,"the significant featurebeingour pointof view.29 Gurvitchthinks
of sociologyas "unitingthatwhichthe traditionalsocial sciencesarbitrarily
divide"30and builds on "sociologyof the human spirit."31 Ehrlich and
Horvith are discussed in my paper of 1938.32 The books of Timasheff
and Gurvitchhave appeared since that paper. In addition,there is a
notableexpositionfroma juristic-sociological standpointin parts I and III
of The CheyenneWay.33 That book deserves a paper by itself. It is
writtenby a juristof the firstrankin collaborationwithan anthropologist
and is in the American traditionof proceedingupon concreteresearch.
It is writtenin fullconsciousnessof the problemsof the scienceof law and
of whatthatscienceis called on to achieve. But no adequate treatment of
the book could find a place in the present discussion. Hence, I turn
insteadto Malinowski'sreviewof thebook,whichproceedsfroman anthro-
pologistbut expoundsa sociologicaltheoryof the natureof law.34 Thus
we have the views of a positivistsociologist,of a phenomenologist social
philosopher, and of a positivist-determinist as to whatis law
anthropologist,
and whata sociologyof law is or shouldbe.
Professor Hoebel has pointed out that Gurvitch uses the term
"sociology"in a different sense fromthat employedby Americansociolo-
gists.35 Accordingto him, sociologyof law is a pure theoreticalscience
havingto do withsocial factsand the relationof law to those facts. It is
expectedto providethe data and principlesfor sociologicaljurisprudence
to applyto its practicalproblems.36As has been said, he standsforwhat
he calls the sociology of the human spirit. Following the method of
phenomenology, he takes it thatsocial phenomenaexist in layersor levels.
At the surfacelevel are theobjectsof the physicalworld,includingpersons
in theirsocial aspects. Beneath this is a layer or level of organizations,
Principlesof theSociologyof Law, at p. 25.

26Fundamnental
27GesammelteAufsdtzezur Soziologieund Sozialwissenschaft(1924).
to theSociologyof Law, at p. 60.
281ntroduction
at pp. 89-91.
29Rechtssoziologie,
30Sociology of Law, at p. 2. 3'Ibid., at pp. 42-50.
32"FiftyYears of Jurisprudence"in 51 Harvard Law Review (1938), at pp. 777,
805-7. 33Llewellyn and Hoebel, The Cheyenne Way (1941).
34"A New Instrumentfor the Interpretationof Law-Especially Primitive" in
2 Lawyers Guild Review (1942), at p. 1.
35Review of Gurvitch,Sociology of Law in 42 Columbia Law Review (1942), at
p. 1241. 36Sociology of Law, at pp. 9-10.
and then,going deeper,a layer of "standardizedimages of collectivecon-

ducts," one of "unorganized collective conducts," and one of "social
symbols." The layer or level (he uses both words) that is to be sought
ultimatelyis that of the human spirit,since the symbolsare "inadequate,
sensitiveexpressionsof spiritualmeanings." Next is the layer or level of
"all thosecollectivebehaviorswhichinnovate,smash patterns,create new
patterns,"a level or "realm of values" and of collectiveideas which,as
"motor-motives" inspirethemand serveas a spiritualbasis forthe symbols,
and finally,the ultimatedepthor level, the realm of spiritualvalues and
ideas particularizedwith referenceto social epochs and structures.37 Ac-
cordingly, he definestheaim of the "sociologyof the humanspiritor of the
noetic mind" as "the studyof culturalpatterns,social symbols,and collec-
tivespiritualvalues and ideas in theirfunctionalrelationswithsocial struc-
turesand concretehistoricalsituationsof society.""38
Noeticmindis a termtakenfromHusserl. We are told that"concepts
which are non-sensuousand non-empiricalbut are conceived by reason
alone are noetic." The noeticmind as group mind is an idea whichdis-
appearedfromthesocial sciencesin thispartof theworlda generationago.
As applied in jurisprudence,it remindsone of Savigny's Volksueber-
zeuigung,39and its turningup in this connexionis one of manyindications
that a type of philosophicalschool on the continentis the successor of
historicaljurisprudence. Indeed, Gurvitchinsists that sociology of the
humanspiritis distinguishedfromothersociologiesby "its mutualinter-
dependencewith philosophy."40The philosophyby which philosophyof
law and sociologyof law are to be held togetheris said to be "radical
empiricism withan intuitionalbasis.""' But the noeticmindis takenfrom
phenomenologyand the discussion of the layers or levels and of the
sociologyof the human spirit seems to come fromphenomenologyalso.
Phenomenologyderives the significanceand connexion of phenomena
fromthe phenomenathemselves. It holds that knowingis not a valuing
or a criticalact, but is a mode of existenceof actuality. Hence, juristic
phenomenology stylesitselfa theoryof actuality,as its Americananalogue
calls itselfrealism. Goodness is held to be an ultimateand objective
subsistingentitywhichis intuitively perceived. A rightactionis one which
has, on the whole, the bestactual consequences,thebest consequencesbeing
those which contain the greatestquantityof ultimategoods, which are
intuitivelyperceivedto be valuable. Experience recognizes values em-
371bid.,at pp. 43-7. 38Ibid., at p. 47.
39See Dernburg,Pandekten(ed. 8), vol. I, ? 20; Bierling,Kritikder juristischen
vol. I, at p. 23.
Grundbegriffe,
40Sociology of Law, at p. 304. 41ibid., at p. 308.
bedded in social facts in which the values are realized. Justiceis the
totalityof jural values intuitively recognizedthroughcollectiveexperience.
But these factsare extremelyvariable,and hence justice is consideredto
have no meaningapartfromthefactsin whichvalues are realized.42
As Sauer remarked,Germanjuristicphenomenology has not thus far
been able to achieve any notable results.43 It finds significancein the
continuallychangingsingle phenomenaof the judicial and administrative
processes. Ends are reached,values are perceived,and so just resultsare
reachedintuitively.4 Some Americanrealistsseem to combinethis mode
of thoughtwitheconomicdeterminism and psychologicalrealism.45
Husserl seemsalwaysto have meantby phenomenology a scienceof the
subjectiveand its intendedobjects in the characterof being intentional.
His cardinalprincipleseemsto be thatseeingsomethingwhichis presented
is the only ultimatesource of knowledge. But there is a noticeable
diversityin theuse of thetermphenomenology amongthosewhomHusserl
has influenced. At least threedistincttypeshave been recognizedamong
his followers. Hence, one cannotbe dogmaticin applyingthe termto any
writer.
What do American sociologistsmean by sociology? Certainlythey
have not meanta phenomenological theoryof society. They have thought
of a scientificstudyof societyhavingto do withgroup behaviour,the re-
lationshipsbetweenmen and the factorsenteringinto and followingfrom
those relationships. Whenever an individual is in contact with others,
whereverdirector indirectcontactsoccur,such an individualis an inter-
actingmemberof a social order. The elements,patterns,and consequences
of behaviourantecedentor subsequentto thisinteraction amongindividuals
and betweengroups is taken to be the chiefsubject-matter of sociology.
During group life more or less clearly definedforms,ways, standards,
mechanisms,problems, and group characteristicsdevelop. These are
studiedand subjected sociologicalanalysis. Thus, sociologyseeks facts
to
abouthumanbeingsin theirsocialenvironment. True to theoriginalfounda-
tion in positivism,American sociologyhas gone more on research and
investigationof facts than on philosophicaltheories. Also it has never
consideredthatlookingintosocial problemswas forbidden. A social prob-
lemariseswhentherecomesto be awarenessamongsomegivenpeople that
42Ibid.,at pp. 52-6.
43Rechts und Staatsphilosophie (1936), at p. 25.
44Cf.Hutcheson, "The JudgmentIntuitive-the Function of the 'Hunch' in Judicial
Decisions" in 14 Cornell Law Quarterly (1929), at p. 274.
45See Yntema, "Jurisprudenceon Parade" in 39 Michigan Law Review (1941),
at p. 1134.
a particularsocial situationthreatenscertaingroup values whichtheyhold

to and the situationis one which can be obviated or correctedonly by
collectiveaction. It is the existenceof such problemsthatmakes sociology
worthwhile. Americansociology,therefore, has been devotedlargelyto
social problemsand to extensiveand intensivepicturingof contemporary
social conditions.
It was in connexion with sociology of this type that American
sociologicaljurisprudencearose.
Take the theoryof institutions, for example. They are thoughtof
functionally-interms of "the conscious fulfillingof definedoffices.""4
MacIver speaks of an associationas a group of persons pursuingsome
interestin common-which should be comparedwith Hauriou's institu-
tions-but ofinstitutions as theestablishedformsor conditionsof procedure
accordingto whichgroupactivityis carriedon." This is one of the marks
of an institutionaccordingto Hauriou. My purposein citingthisexample
of divergentuse of termsis not,however,to show,as it does, that jurists
are not alone in use of the same termwithdifferent meanings,but to show
how our sociologistsdraw these meaningsfromthe problemswith which
theyare faced and not fromphilosophicalpostulates. In substance,they
are consideringthe formallyestablishedfeaturesof collectivebehaviour
with respectto function.
We have endeavouredto see what recentwriterson sociologyof law
with the continentaljuristicbackgroundhave meant by sociologyof law.
Now let us ask what continentalsociologistshave been meaning by
sociology. Here we run at once into a philosophicalsociology. While
thepsychological sociologistsdrewa sharplinebetweensociologyand social
philosophy, Vierkandt held that sociologycould achieve nothingunless it
had a basis in philosophy.48He adheredto the phenomenological method,
thatis, discoveryof the essentialpsychicalfactorof a situationor process
by directapprehensionof its nature-the entireoppositeof the methodof
the behaviourist. Max Weber, who has had a very markedinfluenceon
contemporarysociology,urged that as sociology was directedto social
behaviourwhichis intentionaland has meaning,the task must be, not to
measurethe phenomenaof such behaviour,but to understandthem. He
urged a principleof ideal typesor constructs. Social factorsor attitudes
or movements, he urged,are aspects of a concreterealitywhich does not
conformstrictlyto the typeformsby whichwe are to understandit. The
ideal type is a constructmade by experience,used as an instrumentof
46As to this, see Faris, "The PrimaryGroup: Essence and Accident"in 38

American Journal of Sociology, at pp. 41-50.
47Textbook of Sociology, at pp. 15-16. 48Gesellschaftslehre(1928)
discovery,and developedfurtherby experience. What he soughtwas a

peculiarlysociologicalmethodof understandingthe phenomenain order
that sociologymight be an "autonomous" science.49 The quest of an
autonomoussociologyof law, distinctfromthe science of law and having
a distinctsociologicalmethod,is in line with this. But it is very remote
fromthe problemsof the legal order which are the task of sociological
jurisprudence.
A sociologywhichstudiedthe natureand developmentof social norms,
social institutions,and social processes,leadingto studyof the natureand
development of norms backed by organized sanctions,of the nature and
development of the institutions of the legal order,and of the judicial and
administrative processes is not unlike what Kohler had in mindas a uni-
versal historyof rightand law. It could well be the foundationof a
sociologicaljurisprudence.
What do the sociologiesof law mean by "law"? They have raised
again the question,what is law? whichhas been debatedby jurists since
the thirteenth century. To some extentthe discussionsuggestsa desire
to getthegoodwillof theterm"law" fornewlyurgedideas-to deprivethe
lawyersof a monopolyof a word whichhas come to carrymuch weight.
But inquiryinto the use of this word is not whollya matterof pedantic
demandfor a definition for its own sake, on a par with Mr. Gradgrind's
call forthe definition of a horse. Long beforethe sociologistsenteredthe
lists,thedifferent meaningswhichthetermhad acquired,and thoseinvolved
in theRoman-lawtermjus, had made muchtroubleforthejurist. Indeed,
the juristicdiscussionhad been carriedover into the courtsand decisions
in importantcases had turnedon judicial adoptionof this or that defini-
tion.50 There were well-establisheduses of the term outside of juris-
prudence,in thephysicaland naturalsciences,forexample. But thosewho
used the termin these connexionsdid not undertaketo tell lawyershow
theyshould use it.
Ehrlichused "law" to mean all social control,followingin this respect
the usage of the historicalschool. For example, the idea of sanction
urged by the English historicaljurists51is rathera theoryof the sanction
of social controlas a wholethanof the sanctionof particularlaws or legal
49GesammelteAufsiitze (1922).
SoPound, "More about the Nature of Law" (1935) in Essays in Tribute to Orrin
Kip McMurray, at p. 513.
51Maine, International Law, at pp. 50-2; Clark, Practical Jurisprudence,bk. I,
c. 16; Lightwood, The Nature of Positive Law, at pp. 362, 389; Carter, "The Ideal
and the Actual in Law" in 13 Reports of American Bar Association, at pp. 217, 224-5;
Vinogradoff,Historical Jurisprudence,vol. I, c. 6.
precepts,whichis whatAustinis talkingof,52and Vinogradoff's preliminary

discussionis directedto social controlas a whole, not confinedto that
highly specialized form of institutionalsocial control which analytical
juristsand lawyersthinkof as law. The respectin whichEhrlichdiffers
fromthe historicaljurists of the last centuryis that they,like the jurists
of the past, were thinkingof the body of authoritative materialsin which
tribunalsfindthe groundsof determination.He, on the otherhand, was
lookingat the legal order,at the orderingof relationswhichmakes up the
legal order,at thebodyof normsof conduct,and at particularlegal precepts
functionally.In particularhe stressedthe limitedfunctionof the normfor
decision. In thishe is followedby laterwriterson sociologyof law. His
methodwas to lay hold of the relationof law in the sense of the body of
normsof decisionto the innerorderof theassociationsand relationswhich
make up a society. He saw that,using "law" in the sense of the legal
order,this inner order of groups and associationsis the originaland is
stillthe basic form. The body of legal preceptsand the techniqueof the
judicial process are logicallyderivativeforms: But in speaking of this
innerorderas law,as in speakingofthelegal orderof a developedpolitically
organizedsocietyas law, there is a confusionof the r6gimemaintained
with the processesthat maintainit (in a developedsocietyboth political
and legal) and with the body of authoritativeguides and the received
techniqueby whichthose processesare carriedon.
Horvathdiscusseslaw (Recht) as a substituteforstrife,53 as limitation
of power,"'and as organizationof power.55 He uses the termpartlyin
the sense of the legal orderand partlyin thatof the judicial and adminis-
trativeprocesses.
Timasheffdefineslaw as ethico-imperative co-ordination.5"He holds
that a systemof legal rules "recognized and supportedby the active
center"correspondsto every "power structure." Hence the hierarchyof
power structuresis paralleledby a hierarchyof legal orders,those recog-
nized by structureslower in the hierarchygiving way beforethe legal
rules supportedby structuresof higherdegree. The state is the highest
of thesepower structures, and so the upper layerof law is to be foundin
"legal rulesemanatingdirectlyfromthe stateor directlyrecognizedby it."
But, he adds, othersocial groupshave theirlegal rules also, and these are
the lowerlayerof law. He proposesto call the upperlevel statelaw, and
the lower level social law."' Here law and legal referto the innerorder
of groupsand associations,but law refersalso to the body of preceptsand
52Austin,Jurisprudence(ed. 3), vol. I, at pp. 91-4. 53Rechtssoziologie,?? 51-3.

54Ibid.,? 62. 55Ibid.,? 63. 56Sociology of Law, at p. 17.
57Ibid.,at pp. 302-3.
techniqueand even to the judicial process. All social controland all its
agenciesare included.
In Gurvitch'sbook this use of law for all social controland all its
agencies as formingone idea to be expressed in one word is behind the
whole systemof sociologyof law. At the outset he tells us that jurists
are concernedonly with quid juris-what of right-but sociologistswith
quid factiin the sense of reducingsocial factsto the relationsof forces.58
But the English and Americanlawyermay well feel that the firstpart of
the proposition,at least to the extentof the word "solely" comes fromthe
word droit. What is rightin the adjustmentof relationsis suggested
moreby theword used in the languagesof continentalEurope thanby our
word "law," whichsuggestsprimarilywhatis backedby the forceor bears
the guinea stamp of politicallyorganized society. That this is so is
illustratedby the dominanceof natural law on the continentwhile the
idea of the English analyticaljurists has been no less accepted in the
English-speakingworld. Both sociologyand philosophicaljurisprudence
have soughtto overcomethe separationof the two ideas. But one may
doubt whetherthe way to overcomeit is to add to the multiplicityof
meaningsof the lawyer'sterm"law."
Gurvitchconceivesof a need of objectifyingthe spiritualvalues and
ideas whichset the standardof whatis good forsociety,and thatthisneed
brings about a symbolizing. But, he holds, the symbolsdo not clearly
reflectthe natureof the values. We have to understandthem. Law has
the functionof regulatingthe shapingof humanconductso that organized
collectiveaction and individual behaviour harmonizewith the spiritual
values of the noeticmind. Justice,he tells us, is the effective
harmonizing
of them. Law has to do more. It must reconcilethe conflicting spiritual
values of the collectivemind in such a way as to bringabout an orderly
systemof conduct."5 He holds that law is not synonymouswith social
controlbecause jural preceptsare multilateraland are of determinedand
limitedcharacterbased on claims and duties. But in substancehe, too,
is usingthe term"law" forall kindsof social pressure.
Malinowskimakes a distinctionbetween"what mightbe called valid,
sanctionedcustoms,with a strongpull of the parties concernedtowards
evasion, breach, circumvention, and, on the other hand, customs which
are neutralor indifferent."The former,in a primitivesociety"must not
only be made safe by subsequentpunishmentof breach but, so to speak,
temptationproofat every juncture. The very possibilityof a breach is
preventedby elaboratearrangements and constantvigilance." On the other
58Sociology of Law, at pp. 1-2. 59Ibid., at pp. 52-9.
hand,the "rules of ordinaryor neutralcustomare neversanctionedin the

sense that theirbreachprovokesdissatisfaction
in any one."60 He holds,
therefore,thatlaw runsback intothe mostprimitivesocietyand that"our
own law [i.e., in a developed politically organized society] is nothing but
intrinsicallyvalid customsafeguardingthe smoothworkingof our institu-
tions; custom obeyednot so much throughfear of penaltiesbut for much
deeper reasons which the sociologistand psychologisthave to discover."
he
Hence, concludes,"thereis no fundamental breachof continuitybetween
our own societyand thatof primitivepeoples."61This, it will be seen, is a
sociologicalversionof the doctrineof the historicalschool. On another
side it recallsJellinek'sview of law as the indispensableethicalminimumin
distinction fromthe ethicalluxury.62 But it is strictlysociological,holding
thatthebindingforceof law is derivedfromthe structureof institutions in
a given society.
As Ehrlich had done beforehim, he points out that the relationships
within families,in business, between physician and patient, are not
productsof legislationor adjudicationand thatbut a verysmall part of all
breachesof legal preceptswhichmightcome beforetribunalsactuallyare
taken there. But one has only to compare what took place when the
machineryof executionwas relativelyfeeblewith what has followedthe
workingout of effective sanctions,such as executionin natura,mandatory
injunctions, and doing for him of what a defendantrefusedto do, by
agencies appointedby the court and at his expense, in order to perceive
thatthe circumstancethatconflictsof interestmay be takento court,and
knowledgeof what will be done there if they are, play a role in social
control which is increasinglysignificantwith the developmentof legal
institutions and legal systems. Moreover,such mattersas communications
a
by patientto a physicianand the questionof privilegecannot arise till
thephysicianis broughtintocourtas a witness. Here, and in manyother
cases, it is not breachthatbringsthe legal preceptinto play. It does not
have to be brokenin orderto come beforea court. Timasheffputs a very
pertinentquestion: In the earlieryears of the last centuryit was univer-
sally held in many parts of the countrythat one who consideredhimself
insultedand so sent out a challengeto a duel had a claim to thatformof
satisfaction to whicha dutyto acceptthe challengewas correlative. There
was also a social machinerywhich applied heavy sanctionto one who
refusedto answer the challenge. Shall we say, therefore, that therewas
60Introduction to Hogbin,Law and Orderin Polynesia(1934), at pp. xxv-xxvii.
61Ibid.,at p. xxx.
62Die sozialethischeBedeutungvon Recht, Unrecht,und Strafe (1878; ed. 2,
1908), c. 2.
2
law as to duels,or shallwe differentiate

thecustomthatcalledforthemfrom
thelaw thatlaterput themdown?13
In his reviewof The CheyenneWay, Malinowskielaborateshis theory
of law.8" He distinguishes fourmeaningsof "law": (1) Rules of cultural
determinism accepted but knownnor stated,thatis, generalizations
neither
"withpredictivevalue arrivedat bythedeductivestudyof variouscultures."
We are told that these are to a large extentobeyed withoutbeing stated
by those affected.65 With this meaning the jurist has no concern.
(2) Rules explicitlystandardizedand formulatedin earlysymbolicgesture
or sound. Here he putsrulesof knowledge,of technology, of co-operation,
of commonlife,and of convention. He says they,occuras imperativeor
normativestatements. (3) Rules of conduct which refer to relations
between individualsand groups, delimitdivergentinterests,and curtail
disruptive physiological,and sociological tendencies. (4) A specific
mechanismwhichis broughtintoexistencewhen a conflictof claimsarises
or a rule of social conductis broken. He speaks of those as Law(l),
Law(2), Law(3), and Law(4). The interestof jurisprudencebegins,he
tells us, with the distinctionbetweenLaw (2) and Law (3). The rules
of Law(2) lack "the elementof sanctionas a social reaction."66 Law(3),
he considers,correspondsto what lawyersmean by "law." But he con-
ceives thatthe importantdistinction is thatbetweenLaw (3) and Law (4),
thatis, between"the law of orderand law maintained,"on the one hand,
as opposed to the "retributiveand restitutivesocial action" on the other
hand. He adds: "Law(4) comes into being when Law(3) ceases to
work. As long as Law (3) reignsthereis no room for Law (4)."67 He
urgestheimportance ofkeepingto thisdistinctionand criticizesthelawyers
for ignoringit. "In all argumentsof jurisprudencethe termlaw should
be used witha clearlydefinedmeaning."68Juristshave feltthisforcenturies
and are stilltryingto bringit about. How far has he contributedto this
desirableresult?
Malinowskitells us that the lawyer"invariablythinksof law as that
whichstartswhenthejuridicalmachinery has to be mobilized,""6thatis, he
beginswithLaw(4). I shouldsay ratherthatthejuristsofthepast thought,
and most Anglo-Americanjurists of today are more likelyto think,of
Law (3) and to considerLaw (4) as mere mechanicalapplicationof Law
(3). speaks of Law (4) as "the more or less organizedcoercivere-
actions.He
of a communitywhichare set in motionwhen the rule is broken
definitely and conspicuously."70We have here the everydayphenomenon
B3Sociology of Law, at p. 277.
64"A New Instrument fortheInterpretation of Law" in 2 LawyersGuildReview,
at pp. 1, 4-7. at p.4.
65Ibid., at pp.5-6.
nlIbid.,
67lbid.,at p. 6. 86Ibid. 69Ibid.,at p. 9. 70lbid.
of lay thinkingabout all law in termsof a penal code.7' He thinksonly

of rules in the narrowersense, preceptsattachinga definitedetailedlegal
consequenceto a definitedetailedstate of facts. This is the simplesttype
of legal precept,and is the staple of archaic codes. Developed law gets
far beyond this and except for the penal codes, principles,conceptions,
and standardscome to countfor more than such rules. But this typeof
preceptis characteristicof the societieswith which anthropologists have
to deal and even of societiesmuchfurtheradvanced. If the anthropologist
can see nothingmore in the politicallyorganized society of today, the
jurist may for his purposessee no law in primitivesocietieswhere there
is notyetpoliticalorganizationand say theyhave laws, if you will,but not
law.
There is need in jurisprudencefor a word for law which will include
not merelylaws, such as we see in the Code of Hammurabior the Laws
of Draco, or the Twelve Tables, or the Salic Law, or the Anglo-Saxon
dooms,but principles,conceptions,standardsand doctrines,technique,and
receivedideals. If Malinowski'sLaw(3) is to be a usefulconceptionfor
jurisprudenceit will need to be verymuchbroadened. Nor is it true that
when Law(3) reignstherewill be no use for Law(4). The judicial and
administrative processesare not confinedto breachesof rules. They have
a functionof guidance as well. Instructionsto a trustee,declaratory
judgementsas to the meaningof contractswhich no one wants to break
but each partywishesto have authoritatively an actio negatoria
interpreted,
or actio confessoriainstead of trespassingto determinethe existenceor
non-existenceof a rightof way, advice of the courtto an executorhow to
carryout the provisionsof a will-in short,the whole growingdomain of
preventivejustice-may be vouched.
Moreover, Malinowski overlooksthe work of the jurisconsultor of
the counsellorwho knowsLaw(3) and advises as to how thingsshouldbe
done and the consequences. He knows how the courts will act upon a
given state of facts,or at least in the very great majorityof cases can
predict it with assurance. But he can do this because Law(4) has
developedLaw(3) so as to give an assured basis of prediction. Thus the
way in whichLaw (4) operatessustainsLaw (3). Indeed, Law (3) is far
less a productof customarymodes of popularactionand far more a result
of analogical developmentof experiencein Law(4) than the historical
jurists were aware of. Law(4) is much more than retributiveand
restitutive.
As to the distinctionbetweenLaw(3) and Law(4) it may be said
71"Theelder Mr. Weller entertained
a firmand unalterableconvictionthat the
Old Bailey was the supremecourtof judicaturein this country"(PickwickPapers,
c. XXXIII).
furtherthat Cardozo set offlaw in the sense of the judicial process,and

continentaljurists in the last centurysaw the differencebetween the
regimeof adjustingrelationsand orderingconduct,on the one hand, and
the body of preceptsor normsin accordancewith whichit is maintained.
Indeed,some of the classical Roman juristshad seen it.
MalinowskicriticizesLlewellynand Hoebel for "an almost exclusive
stresson the studyof Law(4)."72 In the same way, Ehrlich,followedby
Vinogradoff,criticizesMaine's referenceof law to litigiouscustom73and
insistsupon the role of non-litigiouscustom or Malinowski's Law(3).74
Those trainedin the continentaltraditionare apt to overlook how the
Roman law grew by the case law of the praetor'sedict,and the modern
Roman law by the ad forumexplicatioof the commentators and the con-
sultationesof the professors.A common-lawlawyercannotbut be aware
of the role of Law (4) in the developmentof our system. He will feel
that Llewellynand Hoebel were takingthe rightcourse in findinglaw in
the "cleaningup of messes" and experienceof how theymay be cleanedup
withthe least frictionand waste.
Let us comparewithMalinowski'sfourmeaningsof law, two of which
he admits do not concernthe jurist, the eight which are found in the
literatureof jurisprudence, all of whichdo concernhim. They are:
(1) The innerorder of groups and associationsand relations (Ehr-
lich).
(2) The social controlby whichthatinnerorderis maintained.
(3) Social controlin a politicallyorganizedsociety--organizedpower
in such a society.
(4) The regimeof adjusting relationsand orderingconductby tri-
bunals and administrative officialsin a developed politicallyor-
ganized society. The legal orderas understoodby jurists.
(5) The body of guides to or grounds of determination, becoming
guides to conduct in accordance with whichthat regime (or the
innerorderof a developedpoliticallyorganizedsociety) is main-
tained. It is made up of precepts,technique,and receivedideals.
(6) The judicial and administrative processes in which the precepts
are developed and applied by the authoritativetechniqueon a
backgroundof the received ideals. Given the name of law by
realists,Cardozo set theseoffand gave law in thissense the name
of the judicial process.
(7) Whateveris done officially in a politicallyorganizedsociety,or at
72"A New Instrument of Law" in 2 LawyersGuildReview,
fortheInterpretation
at p. 11. 73Maine,AncientLaw, lect.I.
vol. I, at pp. 368-9, citing Ehrlich,
Historical Jurisprudence,
74Vinogradoff,
Grundlegung der Soziologiedes Rechts.
any rate,in one havingfunctionaries.Some realistshave defined

or some may stillso definelaw.
(8) The politicalorganizationof societyhas itselfbeen identifiedwith
law. Kelsen has so argued.
The fifthitem had been called law by jurists and lawyers since the
classical Roman jurisconsults. In the last fiftyyears jurists have added
the itemsnumbered4, 6, and 7. But theygave items4 and 6 names of
theirown-(4) the legal order and (6) the judicial process. If thereis
anythingin priority,the name law, in jurisprudence,at any rate,belongs
to item (5). "A law" may be used forparticularlaws of science,such as
a law of physics,a law of economics,a law of morals. But it should be
notedthatthisderivesfromthetheologiansof themiddleages who thought
of a lex aeterna,the legislationof a creator on the model of a Roman
princepswho had enacted constitutiones rulingthe universe. The terms
"innerorder" and "social control"could meetthe needs of items (1) and
(2). Item (8) needs no special term. At any rate,the juristshave pro-
vided for the different meaningsof law for the purposes of their special
scienceand the lectureaddressedto themis belated.75
Lookingup at law fromthe social controlof the mostprimitivepeoples,
the law of the presentis not seen in proportion. It is like attemptto
developan understanding of the enginesof a great battleshipby studyof
Hiero's aeolipile. Looking down at primitivesocial control from the
social controlof today may help understandit as much as it may help
understandthe law of today. There have been two lines of juristictreat-
mentof law-making. In one it is held thatcustomsof popular actionare
made intolaws by legislativeor judicial formulation. Austin so argued.76
In the otherit is held thatlaw grows out of experienceof harmonizingor
adjustingconflicting or overlappingintereststhroughdecisionof concrete
cases by a council of chiefsor of wise men or by a patriarchalking or
ultimatelyby officialsor tribunals-in short,to use the picturesquephrase
of Llewellynand Hoebel, by cleaningup messes. It is noteworthy in the
law of today how the analyticaljurists have come to put stressupon the
tribunalinstead of upon the legislativeorgan, as Bentham and Austin
did." Note also thegrowingconsciousnesson the continentas to the part
7"See my papers: "What is Law" in 47 West VirginiaLaw Quarterly(1940),
at p. 1; "JuristicScienceand Law" in 31 HarvardLaw Review,at pp. 1047,1060ff.;
"The Administrative Applicationof Legal Standards"in 44 Reportsof theAmerican
Bar Association(1919), at pp. 443, 453-8; "Hierarchyof Sources and Forms in
Different Systemsof Law" in 7 Tulane Law Review,at pp. 475, 481-6; "Theoryof
JudicialDecision"in 36 HarvardLaw Review,at pp. 641,643-53; "The Ideal Element
in AmericanJudicialDecision"in 45 ibid.,at p. 136; "A Comparisonof Ideals of Law"
in 47 ibid., at p. 1. 76Jurisprudence(ed. 3), vol. I, at p. 105.
77E.g., Salmond, Jurisprudence(1902), ? 5.
in law-makingplayed by judicial decision.78 Llewellynand Hoebel saw

thesame thingin a primitivesociety. Llewellynput the matterwell when,
looking at the law of today, he saw as the significantpoint what the
appointedauthoritiesof a societydo about disputes." It is because of what
tribunalsdo thatthe rules theyrecognizeor establishcan serve as guides
to the individualat the crisis of action and as bases of predictionto the
counsellor. Austin got his idea in Germanyat a timewhen an academic
theoryof legislativeauthorityexpressingreason was givingway to one of
legislativeauthorityexpressing custom in which popular convictionof
righthad crystallized.
Malinowski's distinctionbetween "valid, sanctioned customs" and
"neutralor indifferent customs"should be comparedwith that proposed
by Sumner,who dividedfolkwaysinto usages, whichare merelypractised,
and mores,which are regardedas necessaryto the welfareof the group
and so are held sacred. In a wide sense of the termsanction,the mores
are sanctionedcustoms.80 The sanctionsmay be diffuseor organized.
The mores are backed by what Radcliffe-Brown happily terms "diffuse
sanctions." Institutional social controlis backed by "organizedsanctions."
Ostracismor boycottmay be joined in by anyone. Only the properly
set up authorityor officerof an institution(in Hauriou's sense) may
exercisethe sanctionsor carryout the sanctionedproceduresof the institu-
tion.81 The highesttype of institutional social controlis the legal order,
controlby thesystematicemployment of the forceof a politicallyorganized
society. The jurist, whose immediateconcern is with the latter, will
probablycontinueto feel that limitationof the term"law" to this type is
expedient; and Radcliffe-Brownconsidersit more convenientalso "for
purposesof sociologicalanalysisand classification."82
A curiousfeatureof currentjuristicthoughtis a downrightphobia as
to the relationof developedlaw to politicallyorganizedsociety; a dislike
oftheterm"state"in relationto "law." Why shouldtherebe such anxiety
to eliminatethe state in politicsand in jurisprudence? Largely it is a
phase of the revivalof naturallaw in the presentcenturyand particularly
of the rise of neo-scholasticism or neo-Thomism. In politics,there has
been reactionfromthe doctrineof the publicistsof the era of absolute
governments, classical in French public law, in which the revivednatural
78Planiol, Traite' lmentaire de droit civil (ed. 12), vol. I, nos. 122-4.
79TheBrambleBush,at pp. 4 ff.
soFolkways,p. 57.
81"Social Sanction" in 13 Encyclopaedia of the Social Sciences, pp. 531-4.
82"PrimitiveLaw" in 13 Encyclopaedia of the Social Sciences, p. 202.
SOCIOLOGYOF LAW AND SOCIOLOGICALJURISPRUDENCE 19
law has takenthe lead.83 In jurisprudence,the ethicalconnotationof the
words used for law has furtheredreactionfromthe idea of the Corpus
Juris as legislation, which was the foundation of academic treatmentof the
modernRoman law, and so fromthe nineteenth-century attitudetowards
the moderncodes. Gurvitchcomplainsthat I "believe in the necessary
and a prioripreeminenceof the state over othergroups.""' What I have
said is that since the sixteenthcenturyit has had a legal paramountcy,
using legal in the lawyer'ssense. I do not arriveat this a priori. In the
Prior of Castleacre's Case, the court of commonpleas in 1506 held that
parliamentcould not "make any temporalman to have spiritualjuris-
diction,"forthiscould onlybe done by the pope.8" Since the reformation
the kindof spiritualjurisdictionwhichdividedthe administraton of justice
betweenthe state and the churchhas come to an end. The paramountcy
of the statein thatdomainis unquestioned. Nothingis bettersettledthan
thatthe courtsmusttake the politicalorganizationof societyunderwhich
they sit for a fundamentalfact. Far as we carry the doctrineof the
supremacyof the law in the United States,we do not go so far as to make
the de jure existenceof the state a legal question for the courts of that
state. A court sittingunder a constitutionactuallyput in force,even if
not adopted as the precedingconsitutionrequired,cannot go into that
question.86 It is equallyclear todaythateveryotherformof social control,
by household,church,fraternal, or social organization,professionalassoci-
ationor tradeunion,is subjectto legal scrutinyand goes on withinlegally
prescribedlimits,enforcedby the tribunalsor officialsof the state. The
juvenilecourtsand domesticrelationscourtsof todayhave made this very
clear. As to pre-eminence in any otherthana legal sense and legal in any
otherthan the juristicsense, I have said nothing.
Ideas as to the meaningof "law" are influencedby tyingto some philo-
sophical unum necessarium. Malinowski's doctrineis tied to positivist
determinism.He tellsus that"culture . . . primitiveand developedalike
83Seeparticularly Duguit'scomparisonof the stateto a publicservicecompany--
publicservicefromwithin,not coercionfromwithout. L'6tat,le droitobjectif,et la
loi positive,introduction.This proceedsfromhis sociologicalnaturallaw. As to
Hauriou's doctrineof the stateas an institution like a churchor a labourunion,and
its relationto his neo-Thomist naturallaw, see Jennings, "The InstitutionalTheory"
in ModernTheoriesof Law, at pp. 68, 69.
s4Sociologyof Law, at p. 165.
85Priorof Castleacrev. Dean ofSt. Stephens,Y.B. 21 Hen. VII, 1.
86"The changemade by the peoplein theirpoliticalinstitutions by the adoption
of the proposedconstitution since this decree,forbidsan inquiryinto the meritsof
thiscase" (AgnewC.J.in Woods'sAppeal,75 Pa. St. 59,at p. 69. See also Sproulev.
Fredericks, 69 Miss. 898).
is subject to the laws of physics."87 Gurvitchis tied to phenomenology.

Sociologyand philosophyare interdependent.88 Hauriou foundson neo-
Thomism,thoughit must be confessedthat he could reach his position
quite as well fromComtianpositivism. Kelsen ties to neo-Kantianepi-
stemology. What we see dependsmuchupon the spectaclesthroughwhich
we see it.
Finally,the sociologistsof law charge sociologicaljurisprudencewith
an unscientific tendencyto takeup concreteproblemsand pronouncejudge-
ments of value as to legal precepts and doctrines." Perhaps the best
answeris thatmade by Sir MauriceAmos: "Jurisprudence[he is speaking
of sociologicaljurisprudence]cuts ice.""9 Sociologicaljurisprudencemust
wrestlewithsuch thingseven if sociologyof law, as a theoreticalscience,
must not.
But I should be very far fromdisparagingsociologyof law, even if
I cannotamend my use of the term"law" to suit its promoters. Ehrlich
has taughtus much. I have learned fromHorvath and Timasheffand
Gurvitchand Malinowski. Gurvitchpointsout that sociologyof law and
sociological jurisprudenceare not identical."' It is a narrow view of
sciencewhichdeniesthat the one path is as legitimateas the other. The
sociologicaljurist is studyinglaw as a highlyspecializedsocial controlin
the developedstate,in thisrespectfollowingAustinin thinkingof matured
or developed law as his province. He holds that legal institutionsand
doctrinesare instruments of a specializedformof social control,capable
of being improvedwith referenceto their ends by conscious,intelligent
effort. He thinksof a processof social engineering, whichin one way or
anotheris a problemof all the social sciences. In sociologicaljurisprudence
it is a special problemof achievingthis engineeringtask by means of the
legal order,the body of establishedor recognizednormsor precepts,tech-
nique of developingand applyingthemand receivedideals in the lightof
whichtheyare developedand applied,and the judicial and administrative
processes. It is treated as a problemof jurisprudence,and yet in its
larger aspects as not merelya problemof that science. Law in all its
senses is studiedas a muchspecializedphase of what in a largerview is a
scienceof society.
ROSCOEPOUND
Law Schoolof Harvard University.
87"A New Instrumentfor the Interpretation- of Law" in 2 Lawyers Guild Review,
at p. 2. ssSociology of Law, at p. 304.
s89bid.,at pp. 104, 171. 90Modern Theories of Law, at pp. 90-1.
91Sociology of Law, at p. 11. See review of Gurvitch by MacIntyre, 4 Alberta
Law Quarterly,at pp. 225, 227.

POUND Sociology of Law and Sociological Jurisprudence

Diunggah oleh

Informasi Dokumen

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

POUND Sociology of Law and Sociological Jurisprudence

Diunggah oleh

Hak Cipta:

Format Tersedia

Sociology of Law and Sociological Jurisprudence

Author(s): Roscoe Pound

You may need to log in to JSTOR to access the linked references.

SOCIOLOGY OF LAW AND SOCIOLOGICAL JURISPRUDENCE

D R. TIMASHEFF remindsus that sociologywas born in a state of

Spencertreatedoflaws as whathe called politicalinstitutions ratherthanof

6Principlesof Sociology(1882), vol. II, p. 514.

effectivescienceof law. It beginswith Holmes, 4 goes forwardin a neo-

thatpurpose,whilesociologistsmaybe lookingat social controlas a whole,

juristsare seekingto express by the termused. But the meaningsof the

22Radbruch, "Anglo-American Jurisprudence through Continental Eyes" in 52

constitutea unitary'general part' of the social sciences."26 This was

Principlesof theSociologyof Law, at p. 25.

and then,going deeper,a layer of "standardizedimages of collectivecon-

a particularsocial situationthreatenscertaingroup values whichtheyhold

46As to this, see Faris, "The PrimaryGroup: Essence and Accident"in 38

discovery,and developedfurtherby experience. What he soughtwas a

precepts,whichis whatAustinis talkingof,52and Vinogradoff's preliminary

52Austin,Jurisprudence(ed. 3), vol. I, at pp. 91-4. 53Rechtssoziologie,?? 51-3.

58Sociology of Law, at pp. 1-2. 59Ibid., at pp. 52-9.

hand,the "rules of ordinaryor neutralcustomare neversanctionedin the

law as to duels,or shallwe differentiate

of lay thinkingabout all law in termsof a penal code.7' He thinksonly

furtherthat Cardozo set offlaw in the sense of the judicial process,and

any rate,in one havingfunctionaries.Some realistshave defined

in law-makingplayed by judicial decision.78 Llewellynand Hoebel saw

is subject to the laws of physics."87 Gurvitchis tied to phenomenology.

Anda mungkin juga menyukai