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: 19/01/2011 03:24Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=utp. . Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. 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 email@example.com.
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THE UNIVERSITY TORONTO OF LAW JOURNALVOL. V-NO. I LENTTERM 1943
SOCIOLOGY OF LAW AND SOCIOLOGICAL JURISPRUDENCE R. TIMASHEFF reminds us that sociology was born in a state of hostility to law in the lawyer's sense of that term.' Comte had but vague, lay ideas as to law and wrote in the period in which French jurists identified law with the Code Napoleon.2 At the same time, the historical school was rising to the dominance it obtained in the latter part of the nineteenth century and was propagating disbelief in legislation. Comte's prophecy of the disappearance of law went on a different ground from that of the like prophecy made by Marx. Comte was prophesying the disappearance of legislative law. As sociology developed and gained general recognition in America, there was a like hostility of common-law lawyers toward sociology.3 But the time came when sociologists sought to relate their teachings to lawyer's law and Anglo-American jurists sought to use sociology for purposes of jurisprudence. Although there had been attempts in the last quarter of the nineteenth century to connect sociology with philosophy of law,4 and much had been written at the same time by way of application of the biological sociology to law,5 sociology of law is a matter of the present century.D
'The Sociology of Law, at p. 45. 2E.g., Demolombe, Cours de code Napoleon (1845), vol. I, ? 2; Demante, Cours analytique de code civile (1849), vol. I, ?? 1-2; Marcade, Explication du code Napoleon (1859, ed. 5), vol. I, ? 1. 3See Fowler, "The New Philosophies of Law" in 27 Harvard Law Review (1914), at pp. 718, 727, 730; ibid., "The Future of the Common Law" in 13 Columbia Law Review (1913), at pp. 595, 601, 605. 4Vadale Papale, La filosofia del diritto a base sociologica (1885); Ratto, Sociologia e filosofia del diritto (1894); Vaccaro, Le basi del diritto e dello stato (1893), translated as Les Bases sociologiques de droit et de l'etat (1898). 5Post, Der Ursprung des Rechts (1876), Bausteine fiir einen allgemeinen Rechtswissenschaft (1880), Die Grundlagendes Rechts und die Grundziigeseiner Entwickelungsgeschichte (1884), Grundrissder ethnologischenJurisprudenz (1894-5); Richard, L'Origine de l'idee de droit (1892). 1
Spencer treated of laws as what he called political institutions rather than of law, thinking of law as hardened custom "formulating the rule of the dead over the living."6 Ward thought only of legislation which, much in the manner of the contemporary historical jurists, he took to be attempt to affect the operation of the "real laws" which the sociologist found behind the phenomena of social life.7 Durkheim sought to explain law as the expression of a basic social fact but got no further than a general differentiation of repressive law and restitutive law, the one corresponding to solidarity through similarity of interest and the other to solidarity through division of function.8 Finally, in a series of articles published between 1896 and 19019 and reprinted as a volume in 1901,10 Ross gave us the idea of social control and of means of social control, putting law as the "most specialized and highly finished engine of social control employed by society."11 Sociology of law is in this line of development. It proceeds from sociology toward law. The pioneer and in many ways the most useful work for the lawyer is Ehrlich's Grundlegung der Soziologie des Rechts.12 A succession of books on sociology of law has followed.13 Sociological jurisprudence is in another line of development. It proceeds from historical and philosophical jurisprudence to utilization of the social sciences, and particularly of sociology, toward a broader and more6Principles of Sociology (1882), vol. II, p. 514. 7DynamicSociology, vol. I, pp. 36 ff. 8De la division du travail social (1893). 9In American Journal of Sociology, I, pp. 513, 753; II, pp. 96, 255, 433, 547, 823; III, pp. 64, 236, 328, 502, 649, 809; V, pp. 475, 604, 761; VI, pp. 29, 238, 381, 550. '0Social Control (1901). "Ibid., p. 106. 12(1913). Translated by Moll as FundamentalPrinciples of the Sociology of Law (1936). See critiques by Kelsen, "Eine Grundlegung der Rechtssoziologie" in 39 Archives fiir Sozialwissenschaft und Sozialpolitik (1915), p. 839-answered by Ehrlich, 41 ibid. (1916), p. 844, with reply by Kelsen, ibid., p. 850-and by Vinogradoff, "The Crisis of Modern Jurisprudence"in 29 Yale Law Journal (1920), at p. 312; reviews of Moll's translation by Simpson in 51 Harvard Law Review (1937), at p. 190, by Timasheff in 2 American Sociological Review (1937), p. 120, and by Rheinstein in 48 International Journal of Ethics (1938), p. 232; and appreciationby in Pound, "Fifty Years of Jurisprudence" 51 Harvard Law Review (1938), at pp. 777, 805-9.13Cornil, Le Droit prive: Essai de sociologie juridique (1924); Jerusalem,
Soziologie des Rechts (1925); Burckhardt,Die Organisation der Rechtsgemeinschaft (1927); Queiros Lima, Principios de sociologia juridica (1922; ed. 2, 1931) ; Horvath, Rechtssoziologie (1934)-review by Wilson in 52 Law Quarterly Review (1938), at de p. 138; Gurvitch, Elemments sociologie juridique (1940); ibid., Sociology of Law (1942).
SOCIOLOGY OF LAW
effective science of law. It begins with Holmes,l4 goes forward in a neoHegelian historical-philosophical direction with Kohler,15 in a positivistsociological natural law direction by Duguit, who founds his doctrine on Durkheim,l6 and in a neo-scholastic sociological direction by Hauriou.l7 In America it has been carried on in a social-philosophical direction byPound18 and Cardozo.19
We are now told by Gurvitch, quoting Bougle, that "the pickaxes of the two crews, each hollowing out its respective gallery, have finally met"; and Gurvitch adds that the meeting place is the sociology of law.20 The extent to which they have met and the point of meeting are the theme of this paper. Sociological jurisprudence is criticized from both sides-from the side of sociology and social philosophy, and from the side of jurisprudence. Gurvitch objects to juristic distinguishing of law (in the lawyer's sense) that is, a highly specialized phase (the legal order) or highly specialized agencies (the body of legal precepts, technique, and received ideals, and the judicial and administrative processes) of social control in and by a politically organized society from other phases and agencies, because each group has its order, its framework of order, its own jural values, and the "state itself is merely a particular group and a particular order."21 This means that jurists look primarily at their special subject and set it off for14"The Path of the Law" in 10 Harvard Law Review (1897), at p. 467, reprinted in Holmes, Collected Papers, at pp. 167-202. und Universalrechtsgeschichte" in Holtzendorff, Enzyklopddie 15"Rechtsphilosophie der Rechtswissenschaft (ed. 6, 1904), vol. I. 16L'Jtat, le droit objectif, et la loi positive (1901). See Stone, review of Durkheim, 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'institution et de la fgndation" in La Cite moderne et les transSee Renard, La Theorie de l'institution (1930); formations du droit (1925). Jennings, "The Institutional Theory" in Modern Theories of Law (1933), at pp. 68-85; Gurvitcli, "Les Iddes nmaitresses 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. 18"The 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. 2lIbid., at p. 165, n. 1.