ABSTRACT
Pound defines
jurisprudence as the science of law[1].
It is not appropriate to consider sociological jurisprudence as legal
philosophy or legal theory. Rather, it is a method based on sociological
insights to study the role and connection of the law with its social operation for
the social betterment[2].
The word “sociology” is said to be originated by a French sociologist named Comte whereby he
defines it as a science of society or branch of knowledge which studies
society. The importance of sociological school of jurisprudence could be viewed
from different aspects as it helps to understand the nature of law, morality,
and etcetera based on social facts. Sociologists also pointed out their views
on this. For instance, Weber argues that law within society could be
comprehended only through an appreciation of the significance of ‘social
order’. On the other hand, Pound describes law as a social institution created
and designed to satisfy human wants. Meanwhile, Emile Durkheim saw ‘law’ as a
social fact that should be noted and analysed as a consideration by jurists for
the use and interpretation of law. Hence in this paper, the focus will be made
based on the sociology of law by discovering on its object of study. The
emphasis will be on the works of Max Weber and Emile Durkheim to ascertain the
importance of this school of jurisprudence.
1.0 INTRODUCTION
The
historical development of sociological jurisprudence can be seen when Dean
Pound came upon the field in 1909, with a cry for reform through the study of
law in action[3].
Pound served as Dean of the Harvard Law
School from 1916 to 1936, and is acknowledged as the founder of sociological
jurisprudence. He introduces an interdisciplinary approach to legal concepts by
considering its influence on social conditions and society as a whole. He
mentions that mechanical application is wise social engineering and
predictability is a key function of law. When the application of law goes from
being flexible to becoming unpredictable this key function is lost.
Meaning
to say, to apply a legal provision in a correct way and to have an insight in
what consequences will follow are two distinct subjects. For Luhmann[4] legal decision-making is the ‘continuous
striking a balance between responding sensitively to the external (justice)
demands of its environment while adhering to the (positivistic) demand for high
internal consistency when applying the rules of law’. The main function of law
is to achieve its aim behind the regulation and by fulfilling this aim, it will
create forces of law in the society. Hence, to obtain justice would demand of
its environment and also, adhering to the authority consistency when applying
the rules of law. For example, in sentencing a person with two years of
imprisonment for offence of assault and battery, it is crucial to understand
about his condition as the result of the punishment imposed. The application of
law might affect the consequences which in its turn might have an influence on
politics and cause changes in the regulation. This thus will eventually affect
the society as a whole.
Other
than that, the importance of sociological jurisprudence as according to Jhering[5] is
the essence of law in relationship of man to the society in which he lived. For
him, a complete study of society (sociology) is needed in order to answer about
the purpose of law in relation to social reality. Society problems’ should find
its solution within the law for good ends. For that reason, understanding of
the law can only be obtained by being aware of the purpose of the law. Moreover,
Ehrlich in his work, ‘Fundamental
Principles of the Sociology of Law (1912)’ stated that to study the real
nature of law is to recognize and analyze those unformulated rules of conduct
accepted within a society. Only then it can be said that law plays its function
in the society.
The
key aim of this paper is to firstly investigate the object of study of the
sociological jurisprudence. Justification
and objective of sociology as part of legal science will be observed by the
works of Max Weber and Emile Durkheim. The focus will then shift to critically
analysing the works by these two jurists to figure out the importance of this
school of jurisprudence. Apart from
that, this discussion would also aim at the similarities and differences of
views from both Max Weber and also Emile Durkheim regarding sociological
jurisprudence. The last part will contain the conclusion of the analysis where
the entire issues of the ‘sociology of law’ will be identified and discussed.
The discussion is of course to aim for a better law for society through
sociological jurisprudence study.
2.0 MAX WEBER
2.1 Background
Karl Emil Maximilian Max Weber, known as Max Weber is a German
sociologist, philosopher, jurist, and also political economist whose ideas
profoundly influenced social theory and social research.[6] He can be said as one of the
co-founders of Sociology, alongside with Emily Durkheim and Karl Max.[7] The
discussion in this topic will be on the view of Max Weber on the Theory of
Understanding, Legitimate Authority, Typology of law, and also The Ideal Type
(specifically Bureaucracy Theory).
2.2 Theory of Understanding
When it comes to Theory of Understanding, Weber defined sociology as the
interpretative understanding of social action in order to arrive at causal
explanation of its courses and effects. Action according to Weber is all human
behaviour to which an actor attaches subjective meaning. Weber described this
as verstehen or understanding. Understanding and meaning are key elements of
Weber's approach[8] and this approach is a method aiming at
identifying a human design, a "meaning" behind observable events.
It is pertinent to know that to Weber, social action may be influenced
by the action of past, present and future. Therefore, social action is a result
or a modification of some action of other person or persons. Also, it presupposes the existence of other individual and some action
by him. This means there can be no social action in isolation as action comes
with interactions between a human with another. In a social act it is necessary
that it should have subjective meaning. A blind imitation without any understanding
of the nature of act being imitated is not social action. Action in Weber’s analysis
is all human behavior to which an actor attaches subjective meaning.
2.3 Law as
legitimate authority
According to Weber,
law within a society could be understood through acknowledgment of ‘social
order’. He emphasized that the essence of social order can be found in norms
and power to enforce because law would not be effective if there is no power.[9] He
defines power as the ability of a person or institution to affect or control
the will and behavior of others by threat or coercion. In order to exercise
such power, it must be accepted by the society of legitimate authority, and
such authority exists only where those persons accept their ruler as expression
of the idea of ‘power through authority’.
It must be noted
that Weber distinguished three main modes of claiming legitimacy. Firstly, traditional
authority. This type of authority is legitimated by the sanctity of tradition.
Weber opined that, obedience of the rule was required through the belief that
the rulers had an authority conferred by ancient tradition. It gives rise to
patrimonial system such as patriarch and feudalistic system. However, these
systems depend on the acceptance of this authority and the followers see this
type of authority is legitimate.
Secondly is
charismatic authority. Charismatic authority is a belief in the extraordinary powers or qualities of a leader[10]. The fact that
followers believed that such powers exist is what is important. The sole basis
of charismatic authority is the recognition or acceptance of the claims of the
leader by the followers. He thinks that charisma played a strong role in
traditional authority systems[11].
Thirdly is
legal-rational authority which was empowered by a formalistic belief in the
content of the law (legal) or natural law (rationality). Obedience is not given
to a specific individual leader, but a set of uniform principles. Weber thought
the best example of legal-rational authority was a bureaucracy (political or
economic). This form of authority is frequently found in the modern state. [12]
2.4 Typology of Law[13]
He provided a systematised view of procedures within a legal system is
known as typology of law. The classification of the typology created, is as
follow:
a)
Substantively irrational
systems .Disputes tends to be decided own an ad hoc basis.
b)
Substantively rational
system. This system recognizes no separation between law and morality.
c)
Formally rational system. It is a system, which provides answers to all legal problems.
d)
Formally irrational system. Decisions in disputes are reached on the basis of tests beyond the
control the control of human intellect.
2.5 The Ideal Type[14]
It should be highlighted that, the ideal type does not connote the
meaning to refer to the “best” or to some moral ideal, but rather to typical or
“logically consistent” features of social institutions or behaviours. Weber
provides that, it is basically a theoretical model constructed by means of a
detailed empirical study of phenomenon. In other words, are concepts formulated
on the basis of facts collected carefully and analytically for empirical
research. Hence, it can be said that it is a methodological tool to understand
and analyse social reality. Besides, the ideal type could serve as a measuring
rod of reality. To sum it up, the ‘ideal type’ is a research tool which is used
for the purposes of classification and comparison.
2.6 Bureaucracy Theory[15]
It should be noted, that this theory is one of the ideal types which is
discussed by Weber. The word bureaucracy is derived from two words; “bureau” and “Kratos.” The
word “bureau” refers to the office the Greek suffix “kratia or kratos”
means power or rule.[16]Thus
we use the word “bureaucracy” to refer to the power of the office. Therefore in
this discussion we will discuss on the main features of bureaucracy provided by
Weber.
To understand Weber’s concept on bureaucracy, it is relevant to see what
he deems an administrative class to be like. He provides that people are paid
and are whole time employees. The employees are appointed based on their
competence. It was further provided by him that the salary they received and
other perquisite are usually is based upon their role in the organization.
Following that, the second feature is the existence of a well-defined
hierarchy of authority.[17]Hierarchy
is system of ranking in which lays out the various positions in descending
scale from top to bottom of the organisation. In a bureaucratic organisation,
this principle applies and as a result, each lower office is subject to control
and supervisory by a higher officer.
Next, characteristic of Weber’s theory of bureaucracy is the division of
work[18] in
an organization. The division provided by him, is that it should be done on the
basis of specialisation to take advantage of division of labour. Well defined
Rules and Regulation[19] is
also an aspect provided in his theory. Having a clear cut view in the rules and
regulation will allow the benefits of stability, continuity, and
predictability.
Apart from this, are the interpersonal relationships[20] between officials in the
organization. The relationship is governed through the system of official
authority and rules. As a result, decisions reached are free from personal
involvement, emotions and also sentiments.
To conclude, the main features on Weber’s bureaucracy theory is the
administrative class, a well-defined hierarchy of authority, division of work
in the organization, having a well-defined rules and regulation, and
relationships which are interpersonal in nature
2.7 Critics on Max
Weber
While Weber's work has had a profound impact
on sociology, it is not without its critics. Some critics
question the consistency and applicability of Weber's method of verstehen.
While some critics have rebuked Weber for failing to offer any alternatives to
rationalization, capitalism, and bureaucracy. Finally, many critics decry
Weber's unflagging pessimism about the future of rationalization and
bureaucracy.
3.0 EMILE DURKHEIM
3.1 Knowledge
Emile
Durkheim believes that knowledge plays an integral part in sociology. It is
also founded on the interactions between the members of a society. It is
knowledge that develops other elements that boost the society’s development
such as language, logical thoughts and classification of things.
Durkheim
believes that language plays a very important role in the sociology as it
connects the society. As a medium for exchange of information, language helps
deepen human’s knowledge. Therefore, he is especially concerns with the
language and conceptual thought. Through language, he observes how the society
is operating in its most basic form. Durkheim stated that words and concepts
are impersonal and not prone to changes. The same concept also applies to
language where the two criteria had enables the communication between different
subjects and knowledge to take place. Language is not a result from one single
person thought and experience, instead it is a development achieved from the
interaction between members of society. From the interaction made, it leads to
the sharing of ideas from various sources and subjects and resulting to the
formation of new thoughts.
Language
builds a man’s notion on reality. Durkheim asserts that human learns about the
reality of things that happens in life through experience whilst experience
itself is to be gained via communication and interaction with society. What he
tries to highlight here is that the language carries all the prudence and
science that had been collectively gained over the years. This is because all
the experience and knowledge that is acquired by the society can only be passed
down to the next generation through language. In building the nexus between
reality and language, Durkheim said that instead of literally explaining the
reality, language allows its speakers to read into the reality by means of
knowledge.
Next,
Durkheim asserts that society creates the classification of thoughts such as
distance (feet, miles), time (minutes, hours) and numbers. He is against Kant’s
idea that man’s thought are universal that it cannot be put into category. He
claimed that everything can be categorized as each of them has their own
features that they can be put into group according to their respective
features. At times, the culture can also affect the classifying of things, he
added. Since classification is also stable and impersonal by nature, it can be
concluded that categories of thing is one of the stimulus to the social
function and is a product generated from communication.
Apart
from that, he also agreed that categories are a tool to relate the society by
making it easier for man to understand and explain what is happening around
them. Another thing about classification is that it helps simplify the subject
of the things or thought, allowing man to see things objectively and thus in
more fair- minded fashion. This consequently makes it feasible for man to link
one thing to another and from there establishes the connection between them.
In
short, Durkheim basically highlighted two pints in his thought on the sociology
and knowledge. Firstly, knowledge is an integral element that allows
interaction to take place within the society. Interaction acts as a medium to
disseminate knowledge. Secondly, every elements of development of knowledge is
a product of social interaction. Meaning that, it does not come from one man’s
idea but it is in need for exchange of knowledge between men. Durkheim believes
that knowledge is stable and impersonal and these two elements make it possible
for the knowledge to be spread by communication.
3.2 Religion
As
for his view on religion and sociology, Durkheim sees the religion as the
product of human creation, instead of the divine rules.[21]
This explains why he treated the religions as part of the social fact in his
study on the philosophy of religion. In
his study, Durkheim seeks to understand the social forces and causes that made
man regards the religion as a very crucial point in their life. He defined
religion as a system that unified people by making them believe and practice
certain ritual to the sacred object. He further explained that there are three
important elements in a religion which are the sacred object, the beliefs and
practice and also the believers. The sacred object here, in simple word refers
to the god, deity, or any object which carries the same notion.
According
to Durkheim’s theory, religion existed through collective effervescence. He
believes that the origin of religion started when member of the society gathers
together in performance of religious ritual. It is during this ritual that the
practitioners get unified through the same thought and action. In such
condition, the practitioners who are deeply involved themselves in such
practice are said to be in the state of delirium due to the deep emotional
excitement. This makes them feel as if they are connected to an extraordinary
energy.
Upon
the realization of the existence of such sacred object, the practitioner
usually tries to convert the bonding that they felt into tangible object or
symbol so that they can always feel the existence of such relationship with the
god. From this founding, he claimed that the sacred object is not the one that
actually hold power, instead it is the society’s belief that gives power to the
sacred object. The more importance that the society gives to the sacred object,
the more powerful sacred object will be seen. However, to see it from a
different angle, it is such belief that makes individual to mix around with the
society and thus allows many other aspects of sociology to continue to grow.
Durkheim also opined that the religious ritual should always be repeated to
avoid it from being forgotten by the society. It is afraid that the
relationship that built by the religion will be severed if the ritual is no
longer practiced.
In
conclusion, the religion acts as the channel to express the power of individual
who works as a society. Despite his critics on the foundation of the religion,
he did admit that the social forces that are felt by the religion practitioner
are real. Thus, the religion experience does exist and cannot be regarded as a
mere fantasy.
3.3 Morality
Durkheim
in his moral theory rejects any theories which rely on priori moral concepts or abstract logical reasoning to construct
ethical systems. For him, each era of the society creates its own set of moral
rules which are varying from one society to the next society. This is because
each society creates their own set of moral rules to achieve or to satisfy
their existential needs.
In
the view of Durkheim, morality is a system rules and maxims that prescribe
individuals’ ways of behaving in any situations.[22] And
under the moral system, there are set of moral values, beliefs, and ideas that
give a guideline to the moral rules. Durkheim also claims that morality begins
only when an individual pertains to be a group. Besides, he also claims that in
the heart of morality, there is a central moral authority that commands to its
believers its moral precepts. Through this central authority the individual
will feels an external constraint to conform to a society’s moral code.
Obligation is thus a fundamental element of morality. When there is authority
that gives commands, it gives desirability of morality which results in
willingness of the individual to accept the obligatory nature of moral rules
and views them beneficially.
However,
Durkheim also highlights that moral rules are not necessarily being obey
blindly by individuals. If the individual finds reason to object, critique, or
rebel against the moral principles of society, not only is this possible, but
it is perhaps even beneficial to society. For example, it is possible that
changes take place within a society that can either cause a moral principle to
be forgotten, or produce a schism between a traditional moral system and new
moral sentiments that have not yet been recognized by the collective
conscience.
These
two views given by Durkheim regarding the obligation to the moral rules show
that his theory was reliable enough to be accepted by the society. This is
because he is not strictly stated that each moral command set by the authority
must be followed or obeyed by individuals. If the individual itself can set the
moral rule which suitable to be adopt by the society, then it is much better.
This is to avoid the conflict of the obligatory by the society which sometime
the rules set by the authority is not practically acceptable to the society.
3.4 Social Change and Modernity
The
other concern by the Durkheim is social change. He argues that social change is
a mechanical process, meaning that it is not directed in any intentional way.
The changes happened because of there is interaction between individuals. And
this change is depends on demographic and material conditions of a society. The
two main factors affecting social interaction are increases in population
density and advances in technology. Durkheim calls the rate at which
individuals come into contact and interact with one another as moral or dynamic
density.
The
most important change to take place as a result of increased moral density
occurs on a structural level and is what Durkheim calls the division of labor.[23]
The more a society grows in moral density, the more the labor of a society will
divide and the more specialized the tasks of its individuals will become. One
of the most important effects of the division of labor is the rise of
individualism and the importance of the individual within a society which mean
that the individual must be given more freedom to develop their work. When the
individual is given the opportunity to develop their own skills, it creates
differences between individuals in society. The creation of the individual
through this process is perhaps the defining characteristic of modernity. The
division of labor also had major impacts within the economic and social realms.
Durkheim said that the development in labor sector as the birth of the modern
industrial state.
Next,
Durkheim has philosophy on the declaration of the death of the gods of European
society. Durkheim’s declaration of the death of the gods is closely linked to
his analysis of the social disintegration of European society brought about by
modernity. The old gods are dead in the view of Durkheim. This is because of
the massive transformations taking place, European society became profoundly
de-structured. The institutions animating medieval life disappeared. Durkheim’s
analysis of the death of the gods concentrates on the underlying
disorganization of European society that led to the demise not only of
Christianity, but of a number of other economic, political, and social
institutions as well.
Last
but not least, Durkheim theory is about a new religion. According to him
religion is part of the human condition and as long as humans are grouped in
collective life, they will inevitably form a religion of some sort. This new
religion would form around the sacred object of the human person as it is
represented in the individual, the only element common to all in a society that
is becoming more and more diverse and individualized. Durkheim calls this new
religion the ‘cult of the individual.’ Through the new religion of the cult of
the individual, to which he gave his full support, Durkheim predicted that
European society would once again find the unity and cohesion it was lacking;
once again it would have a sacred object.
Therefore,
from each of the theory given by Durkheim social change and modernity shows
that the changes could happened because of four factors. First, there is
dynamic density of the individual because of the interaction among them. Second
is because there are division of labor and the emergence of modernity. Third is
because of the death of the Gods which bring the discussion about the
destruction of medieval life. And last is the formation of new rule. All of
these factors give impact to the social change and modernity.
4.0 ANALYSIS
4.1 Similarities between Max Weber and Emile Durkheim
Before deep analysis done for both
of jurist, Max Weber and Emile Durkheim, it is important to note that the main
objective and also as the similarities that shared by them is an approach to
see relationship between law and society.
The law is created to maintain and protect the society itself. Thus,
there is a need to force law within the society.
What can be seen from
findings is that both of sociological approaches, Weberian and Durkheimian
sociology concerned with understanding within society. For example, for Weber,
to have a better society there is need understanding of social action. By
understanding social action, this will help society to achieve aim of the said
law. Meanwhile, Emile Durkheim believes on interaction between the members of
the society. Through interaction information, life experience and knowledge can
be shared among society. With interaction, this will help society to have a
better understanding about the law. By interaction or communication also, this
can help for society achieve objectivity or aim of law that governed them.
Next, apart from their distinctive
approach on sociology the other similarity that can be seen between Weber and
Durkheim is that both of them do apply positivism in their approach of
sociological study. Positivism here means an approach to the study of society
that relies specifically on scientific evidence such as experiments and
statistic to reveal a true nature of how society operates. Even they had different
outcomes from their sociologies study but still the basic of their study is
based on positivism method.
4.2 Differences between Max Weber and Emile Durkheim
views
Logically, even both
persons was a co-founder of sociology and important jurist in sociological
school, there are a few differences between both of them especially in term of
their views and thoughts regarding this school. Actually, there are other
well-known jurist in this school likes Comte, Ehrlich, Rudolf Von Ihering and
other jurists. But as this paper is concerned, writers will only focus on
differences of the view of these two jurists which are Max Weber and Emile
Durkheim.
The main differences
between these jurists are their background.
As we know, Max Weber was born in Germany in 1864 while Emile Durkheim born in
France in 1858. Besides, Max Weber had interest in politics because his father
was a politically lawyer but the situation is the other way round as Emile
Durkheim interested in academic compare to politics. Not only that, in term of
education, both of them choose different type of course as Max Weber took
history course in Historical School of Jurisprudence while Emile Durkheim took
subject that relate to emotional and sentiment study like psychology,
humanistic study and ethics[24].
The other differences
are their views regarding law of
contract as modern sociological school is concerned. According to Max Weber,
those parties who had more power in the market may use that advantage to impose
his term against the weaker party. For example, a bank may create and state
conditions in their favour for those customer that want to apply financial help
or loan from them, a lecturer may command the behaviour of his student or a big
company that had big influenced in the market may use his power to monopoly the
market. Indirectly we can see that Max Weber support the principle of
capitalism. However, for Emile Durkheim, he stated that contract is not as an
individualistic act but as social in character. He added that contract also not
a two-party relationship but a three-party relationship and society’s interest
is known as third party. In short, we can say that both of them had different
views regarding this matter.[25]
In term of key element
in their thought, both of them stated and laid down different main points to
support their thought as Max Weber stated ‘understanding and meaning’ as his
main elements while Emile Durkheim stated ‘knowledge’. Max Weber stated that
society will follow when they understand the meaning of law. One of the ways to
make the society understood the law is by elected charismatic authority as
stated in one of his idea which is ‘law as legitimate authority’. On the other
hand, according to Emile Durkheim, society can understand law when they had
‘knowledge’ in that matter. He added, language is one of the knowledge and
plays a very important role in the sociology as it connects the society. This
is because, by understand the language of the other person, message or information
will be easily transferred to them. Even both of them point out different main
element to support their view but both elements are important and useful for
this school.
Last but not least, the differences
that can be seen are in term of their thought and stand regarding the nature of
religion in society. As Emile Durkheim is concerned, he stated that religion is
created by human and not divine from the God. He defined religion as a system
that unified people but he does not totally reject the fact that the religion
experience does exist and cannot be regarded as a mere fantasy. However,
according to Max Weber[26],
religion was inter-related to the development of economy as stated in one of
his book which is ‘Protestant Ethics and the Spirit of Capitalism’. He believed
that the ethics, concept and nature of a religion did influence the economic
behaviour of various societies especially the western society. Hence, it is
clear that both jurist had different thought in term of the used of religion in
the society.
4.3 Analysis from Author’s Perspective
From the research done, compared to
both, authors believed that Durkheim thought is better compared to Weber. This
is because Durkheim’s methodological position was clear and straightforward
compared to Weber.
In regards of subject matter of
sociology, Durkheim had proper subject matter for sociology which is accordance
with social facts. Social fact here means a culture or behaviour of society
that affects the behaviour or attitudes of an individual member of that
society. However, according to Weber, he believes that individual is the one
affect society and social action presupposes the existence of other individual.
As the focused subject is sociology, authors have a same thought with Durkheim
that social facts should be the subject matter.
Now, authors would like to show how
Durkheim’s thought become preference compared to Weber. The attraction is based
on “Durkheim’s Ideas on Crime”[27]
which is:
“We must not say that an action shocks the common conscience because it
is criminal but rather it is criminal because it shocks the common conscience.
We do not reprove it because it is a crime, but it is a crime because we
reprove it.”
By referring to above statement,
readers can see how important role of society according to Durkheim to make a
law. Important to note that, sociology itself is about study of the
development, structure and functioning of the human society. Thus, the idea of
individual affect society is kind of wrong when the discussion is on sociology,
supposedly, the society is the one that have the power or at least become a
main mechanism to create such law to govern members of society.
Authors also not in favour of Weber
as he mentioned that the reason he believe individual who affect society because
social action cannot be understood. As Weber mixed up psychology in basic
substance of sociology, author can see why Weber gave such statement. Once
again, authors want to enlighten here that if the objective to study psychology
is to study mind of human that affecting the behaviour. The indication will be
the behaviour of human. Meanwhile, when study of biology, the scope is to study
living organism and the indication also is depending on living organism
behaviour. Even behaviour of animal cells, plant cells or even other animal is
not same as human, the researchers need to understand the behaviour. Thus, by
hook or by crook when a person is trying to study sociology, that person need
to understand the behaviour of society instead claiming it cannot be understood.
Readers can also see
how is important of society in creating law in Islamic perspective. According
to Imam Malik, customary conduct or social action by citizen of Medinah is
accepted as source of law in the absence of explicit text. ‘Urf is one of main
principle to create or adapt a law in accordance to Al-Quran and Sunnah. It was
also stated that to be valid as hukm. ‘Urf
also defined as:
“What is established and common in a group of people (jumhur) from their
sayings and doings, and is consistently repeated until it influenced them and
is therefore accepted by their reason.”[28]
Thus, this is the reason why authors
in favour of Emile Durkheim instead of Max Weber as, sociology of law study
supposedly to see relationship between law and society due to society as main
factor not individual that shape the society.
5.0 CONCLUSION
In
conclusion, Max Weber and Emile Durkheim indeed had helped a lot in developing
the law in relation with society through their theories and views of
sociological jurisprudence. Throughout this report, author able to disclose
theories regarding sociological jurisprudence made by Max Weber and Emile
Durkheim and see how important their contribution in developing the law. Max
Weber had introduced few theories in sociology which include theory of
understanding, law as legitimate authority, typology of law, and also the ideal
type. On the other hand, Emile Durkheim gives his views regarding knowledge,
religion, morality, social change and modernity. It must be noted that both of
these jurists are positivist jurists because they rely specifically on scientific evidence such
as experiments and statistic to reveal a true nature of how society operates.
Even they had different outcomes from their sociologies study but still the
basic of their study is based on positivism method. There are also few
distinctions made by both of them like has been mentioned in this
report, Max Weber highlighted ‘understanding and meaning’ as key elements for
law while Emile Durkheim believes that ‘knowledge’ plays an important role in
sociology because knowledge would develop other elements that boost society’s
development such as language. However, both of them are similar in the way that
they both believed that society needed to evolve, and break through the
traditional way of life.
In
addition, even though both Max Weber and Emile Durkheim are great sociological
jurists, however for the purpose of this report, author favors the views given
by Emile Durkheim simply because methods used by him rather clear and
straightforward compared to Max Weber. Apart from that, Emile Durkheim also
showed how and why society plays an integral part in developing the law and
that is why sociology itself is
about study of the development, structure and functioning of the human society.
Emile Durkheim also encouraged in depth study regarding society in order to
make laws because society is a subject matter that forms the law.
All in all, authors
can conclude that the function of the legal system is in a sense to
standardize politics. We can see that the legal system institutions are built
up and rules are set up in order to solve frequent problems in society[29]
and that is why a study regarding society is important. Also, the role of the
sociological approaches to legislation is vital to balance the positivist
approach. Globalization has brought the smaller world and it is possible that a
century down the line, the jurisprudence may become more predictable and more
uniform among most countries. Hence, more proper and creative ways of
investigation into society should be done in order to meets the current social
needs.
6.0 REFERENCES
Books;-
Barron, A., Collins, H., Lacey, N., Nobles, R., Penner, J., &
Reiner, R. et al.
(2005). Jurisprudence
and legal theory: Commentary and materials (1st ed., pp. 252-258).
Great Britain: Oxford United Press.
Chand, P. H.
(2011). Modern jurisprudence. Petaling Jaya: International Law Book
Services.
Curzon, L, B. (1995). Jurisprudence. Great Britain: Cavendish Publishing Limited.
Kamali, M. H.
(1998). Principle of Islamic jurisprudence. Kuala Lumpur: Kuala Lumpur
Ilmiah.
Wacks, R. (1999). Jurisprudence (5th ed., pp. 169-170).
London: Blackstone Press Limited.
Weber, M. (1921/1968). Economy and
society. (G. Roth, C. Wittich, Eds., G. Roth, & C.
Wittich, Trans.) Los Angeles: University of
California Press, pp. 956-958.
Encyclopedia;-
Hummel, R. (1998). Bureaucracy. The International Encyclopedia of
Public Policy and
Administration: 307
Websites;-
Editors,
B. (2014). People: The biography.com. Retrieved on November 27, 2016,
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Gardner,
J, A. (1961). The sociological jurisprudence
of Roscoe Pound (Part I). Retrieved on
November 21,
2016 from http://www2.warwick.ac.uk/fac/soc/sociology/staff/sfuller/social_theory_law_2015-16/roscoe__pound_the_sociological_jurisprudence.pdf
Hakan,
H. (2015). Perspectives in sociology of law. Retrieved on November 20, 2016,
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Hayden,
H. (2015). Perspective in sociology of law.
Retrieved on November 21, 2016 from
Jones,
R. A. (2011). Biography: The Durkheim page. Retrieved on November 28,
2016, from
Kim, S. (2007). Max Weber. Retrieved on November 13, 2016, from
Mazman,
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theory of
social
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Priya,
R. (n.d.). Sociology: Your article library. Retrieved on November 29,
2016, from
[1] Roscoe Pound also made a significant contribution to jurisprudence
in the tradition of sociological jurisprudence, which emphasized on the
importance of social relationships in the development of law and vice versa.
His best-known theory consists of conceptualising law as social engineering.
According to Pound, a lawmaker acts as a social engineer by attempting to solve
problems in society using law as a tool.
[2] Gardner, J, A. (1961). The Sociological Jurisprudence of Roscoe
Pound (Part I). The Berkeley Electronic
Press, 7(1), p9. Retrieved on November 21, 2016 from http://www2.warwick.ac.uk/fac/soc/sociology/staff/sfuller/social_theory_law_2015-16/roscoe__pound_the_sociological_jurisprudence.pdf
[3] Pound. (1907). The Need of a Sociological Jurisprudence, 19 GuxN
BAG 607.
[4] Niklas Luhmann was a German sociologist, and a prominent thinker in
systems theory, who is increasingly recognized as one of the most important
social theorists of the 20th century.
[5] The 19th century German jurist.
[7] Bendix,
Reinhard; Roth,
Guenther (1971), Scholarship and
Partisanship: Essays on Max Weber,
University of California Press,p.244.
[14] Kim, S. (2007). Max Weber. Plato.stanford.edu. Retrieved 13 November 2016, from http://plato.stanford.edu/entries/weber/
[15] Weber, M. (1921/1968). Economy and Society. (G. Roth, C. Wittich, Eds.,
G. Roth, & C. Wittich, Trans.) Los Angeles: University of California Press,
pp. 956-958.
[16] Hummel, R. (1998). Bureaucracy.
The International Encyclopedia of Public Policy and Administration: 307
[18]Hummel, R. (1998). Bureaucracy.
The International Encyclopedia of Public Policy and Administration: 307
[20]
Weber, M. (1921/1968). Economy and Society. (G. Roth, C. Wittich, Eds., G.
Roth, & C. Wittich, Trans.) Los Angeles: University of California Press,
pp. 956-958.
[21] The Elementary Forms of the
Religious Life. Translated by Karen Fields. New York: Free Press, 1995.
[22] Professional Ethics and Civic
Morals. Translated by Cornelia Brookfield. London: Routledge and Kegan
Paul, 1957.
[23] The Division of Labor in
Society. Translated by W.D. Halls. New York: The Free Press, 1984.
[24] Max Weber: www.biography.com/people/max-weber-9526066#legacy
& Emile Durkheim: durkheim.uchicago.edu/Biography.html
[27] Chand P. H., 2011
[29] H, Hakan. (2015). Perspectives in sociology of law. Retrieved on
November 20, 2016, from http://sociologyoflaw2015.com.br/Mr.-Hakan-3.pdf
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