Sociological Jurisprudence

Roscoe Pound

Pound criticized and challenged the legal formalism that dominated the American legal thought of his day for being mechanical, artificial, and out of touch with the needs of society. Instead, he argued for a jurisprudence that placed the human factor and condition, rather than logic, at the heart of its analysis. He borrowed and used insights from the philosophy of pragmatism and the discipline of sociology to develop a new approach to law, legal research, and legal education. This led Pound to argue that “law in action,” not “law in the books,” constituted the basis of law and legal institutions. He criticized the individualist theories and standards of legal justice to which lawyers adhered and instead urged both legal scholars and practitioners to work toward a concept of social justice that was informed by the standards of sociology.

European Jurists

European scholars went further than Pound by directly challenging the underlying ideology of legal positivism. They urged jurists to recognize the vital role that informal and unofficial mechanisms of social control played in creating legal institutions and molding legal behavior. In this way, the scholars confronted the jurisprudence of their time by presenting the social forms of law, rather than the rules posited by the state, as the basis of legal order. For them, the state could not be the primary source of law for the simple reason that its existence presupposed a form of law. Petrazycki and Ehrlich argued, each in his own way, for an empirically based concept of law that was [Page 1410]broader than state law and existed independently of any outside authority.

Petrazycki distinguished between forms of official law, supported by the state, and intuitive law, consisting of legal experiences, which, in turn, consist of a complex of psychic processes in the mind of the individual with no reference to outside authorities. Petrazycki's work addresses sociological problems, and his method was empirical; he maintained that knowledge of objects or relationships could be gained only by observation. However, he couched his theory in the language of cognitive psychology and moral philosophy rather than sociology. Consequently, his contribution to the development of sociology of law remains largely unrecognized.

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