Chapter 1

Sociology and Law: There occurs a close relationship between society and law. Society is
regulated by certain means of social control, and law plays a very important role is this
respect. Since sociology deals with the study of society, there occurs a close relationship
between sociology and law as well. The sociological methods of research become relevant
and indispensible for law. The close connection between the two has lead to development
of the field of socio- legal studies. The common overlapping areas between sociology and
law have given rise to socio- legal studies, where ht sub- field of law tends to analyze the
social dimension of law.

In the yesteryears, for a very long time, law was analyzed and understood only in the terms
of its own categories, without any reference to the social environment in which it
developed. This lead to intellectual isolation of the legal system from rest of the society.
The legal experts had failed to view the legal system as a subsystem within the larger social
system. As such, these experts remained completely detached from the social realities and
implications of the legal system for a layman.

The apparent isolation of the legal system from the outside world has become the most
characteristic feature of this system even in the present times. The conception of law for
lawyers, judges and the legal luminaries has been largely refined and shaped by their own
professional environment. They have become highly complacent about their isolated
position and the system in which they work. As a result, these lawyers have become very
resistant to sociological views on the nature and functions of law.

On the other hand, the world of law appears very mysterious and intimidating to a layman.
Paradoxically, very few people would like to get involved in litigations. In fact, often the
judges and lawyers advice their clients to settle their matter outside court in order to escape
the ordeal of court proceedings. This is because the entire legal system and its procedure
appear very intricate and complex, and perhaps even unfair to common people. In the
Indian context, the delayed hearings and decisions, and the deep rooted corruption that has
permeated to every level have worsened the situation. All this has created some kind of
communication gap between the world of the lawyers and legal experts and the common
man. In the present context, it has been realized that this gap needs to be reduced if the
legal system is to be of real utility to the society.

The lawyers smitten by their ivory tower approach, viewed their role only in terms of
resolving the conflicts and the practical problems in day-to-day life. They did not look
beyond their conventional ways in which they undertook their study, which was strictly
limited to the world of deductive style of reasoning based on evidences. This kept them
largely confined to the world of statues and cases. It was also felt that law was being used
more as a repressive tool. However, it was realized soon that the conventional tools and
strategies employed by the legal experts are inadequate and often provide barren results.
The traditional approach used by them only made them inward- looking.

With continuous efforts it was felt that study of law becomes more interesting and
rewarding when approached from sociological perspective. When law is related to its social
aspects and is viewed in an integrated way, it makes the legal experts more outward looking
and helps them to widen their knowledge base. Taking the integrated approach, law can be
made more humanistic and the lawyers and judges can be socially sensitized in discharging
their duties. This is also relevant in the backdrop of the fact that most of the eminent
lawyers and judges subscribe to the view that rule of law must be based on rule of life and
the legal professionals should remain rooted to their ground social realities.

The interrelationship between society and law is intricate and evident, and it needs to be
focused if we desire law to be more affective in society. This interface between society and
law has been studied under different academic pursuits made by sociologists, the jurist or
jurisprudence scholars and legal anthropologists.

Development of Socio- legal Studies

Sociological school of law may be viewed as a school within social sciences that explains
the process of law formation. In this school, according to Sumner, laws originate from the
customs of the people. The laws need to be laid through proper process, i.e. through
legislation. To be effective, the laws need to be based on the mores or customs of the
people. Modern law was seen as a comprehensive system of logically ordered and coherent
doctrine, and not as a mere collection of customary rules or judicial precedents. With these
developments in the field of socio- legal studies, there were lot of changes in the attitude
and approach of the legal experts and professionals. This helped in converting the hard core
lawyers and judges from total professionals to social engineers.

The work was not being done only in area of socio- legal studies. Lot of opinions on law
were given by some very eminent sociologists. In fact, the works of Emile Durkheim, Max
Weber, Karl Marx, Talcott Parsons etc. have been viewed as very important in laying down
the base of jurisprudence. The studies done by sociologists also helped in developing the
sub- discipline of sociology of law within sociology. The discussions in this section deal
with these works.

In the sociological purview, law is one of the several codes of social conduct, with primary
function of sustaining and upholding the basic values and norms of the society. Exact and
all encompassing definition of law is difficult for many reasons. This difficulty is
attributable to the way in which western scholars have generally attempted to interpret law
in terms of the framework of modern centralized state. Such a concept of law poses
practical problems specially when we try to understand the legal processes in traditionally
organized primitive societies, which lack the modern legal set- up.

Customary Law

The origin of customary laws lies in the habits that grew into customs through acquiescence
in the values they symbolized. A norm becomes law when the community members respect
it and adhere to it as their heritage. In context of customary law, customs may also be
viewed as a usage, by virtue of which a group of persons from a locality gets entitled to
exercise specific rights against certain other group. Thus, customary laws originate from
the social customs of people. When some kind of practice/ tradition is followed by large
section of society and gets gradually social approval, it becomes custom.
In a general sense, customs/ morals are created on ethical grounds- when they get
recognition of the state, they graduate to the status of customary law. However, all customs
do not get upgraded to the status of customary laws. For the customs to be regarded as
customary laws,

• Customs should have endured for immemorial time, so that people don’t
remember since when it has been used/ existed.
• They should have an element of certainty- there should be no ambiguity
about their existence.
• They should be reasonable in nature.
• They should be continuous in nature.
• They should be associated with some sense of public utility.

Thus, legislation may be seen as only the secondary means of determining social conduct.
In reality, it is the customs that are the chief means of determining social conduct in any
society because they are instinctive in nature- humans tend to follow them in a very natural
manner, so that they get along with their society. That’s why in the context of the simple/
traditional societies, customary law is the best form of law. Following the customary laws
here can help in resolving/ avoiding conflict with public opinion.

Understanding the Interface Between Law and Society

The relationship between society and law is a mutual and intricate one, which justifies
relevance of sociology in the area of law. Earlier, law was treated in terms of its own
categories, without any reference to the social environment in which it has developed. Legal
experts failed to view the legal system as a subsystem within the larger social system. As
such, these experts remain completely detached from the social realities and implications
of the legal system for a layman.
Over the years, there has been a gradual growth of sociological literature on legal system.
The various works done in interdisciplinary and trans- disciplinary areas have provided
many positive results. In spite of this, most of the law experts do not look beyond their
deductive style of reasoning, and this tendency has continued even today.

The apparent isolation of the legal system from the outside world has become the most
characteristic feature of our modern society. The lawyers’ conception of law has been
largely refined and shaped by their own professional environment. They have become
highly complacent about their position and the system in which they work. As a result, these
lawyers have developed general resistance to non- legal views the nature and functions of
law.
However, in spite of these tendencies, there is a new league of law professionals (lawyers
as well as judges) who believe in the close relationship between law and society. Many
progressive judges in India (like Justice V. R. Krishna Iyer, Justice Y. V. Chandrachud,
Justice P.N. Bhagvati etc.) have reflected their views on the positive relation between
society and law, and have adopted the sociological approach in the interpretation of law.
These legal luminaries realize that the legal professionals act as the modern architects of
the nation, and should be closely rooted to the social facts and concrete realities of the
society
Following this argument of line, law is viewed as a social science, which cannot depend
upon abstract principles or rigid legal cannons alone. Rather, it has to be placed in the social
context in which it occurs and has to relate to the changing environment.

Understanding the relation between law and society is not difficult- rather it is overtly
evident. A sincere attempt to study this relationship is essentially required by the law
professional and scholars, as “Law is too important to be left to the lawyers alone”. If
society is a web/ chain of interconnected/ interdependent relationships, it needs some
norms to regulate these relationships. Regulation of human relations/ behavior is very
important, as the goals of the society cannot be met if human behavior is not norm oriented.
Human society may function on the basis of informally laid down rules/ norms of social
conduct (in the form of folkways, mores, morals). These informal means of social control
are important in all societies, as they become the guiding force of the day- to- day behavior
of human beings. But in modern societies where individualism is fast replacing
collectivism, these informal means of social control become weak, and state enacted and
enforced formal means are required to regulate the conduct of people in their social sphere.
The interrelationship of society and law can be understood in the backdrop of the fact that
society is a group of people, and it requires certain firmly laid down principles/ rules to
regulate its functioning. This interrelationship shows mutual interdependence- if society
depends on laws to regulate its functioning, the laws find their basis in the customs/norms
laid down by the society. This can be analyzed more closely under the following headings-
• As many people live together in society, enter into formal and informal relations,
and interact to achieve social goals, certain norms are required to regulate these
relations, and interactions. Role of norms and morals is important here, but in
modern societies, laws become more important. Thus, sustenance and proper
functioning of society is guided by the laws.
• The norms and rules for the conduct of behavior are laid down by the society, but
all individuals do not adhere to these prescribed norms. There are various acts of
deviance and crime occurring in society. For harmony and order to be maintained
in society, it is important that these negative behavior patterns are kept under check.
Laws enunciated by state act as strong deterrents for the individuals members, and
force them to conform to the social guidelines. Hence, laws act as coercive forces
that bring conformity between social requirements and individual behavior by
checking crime and deviance.
• When people from different backgrounds come together and form a multicultural/
heterogeneous society, there are bound to be personal/ group disputes and conflicts.
Law plays an important role in the matter of conflict and dispute resolution.
These days, the state has devised alternative ways to resolve the disputes and
conflicts. These mechanisms show a comeback of legal system to the conventional
social structure.
• In the modern societies, issues of rights and dignity have become very important.
There is an outcry for equality for human race across the world. The state plays a
very important role in removing these disparities based on caste, class, creed,
religion or gender. Thus, in India, we have various laws to protect the rights of
people from different sections, and provide an equal platform for equal status to
all. Social legislation has important to task to perform in this regard.
• In the contemporary society, the judges are going beyond their conventional role of
adjudicating in the matters of dispute, and are extending their power of judicial
review to judicial activism. Thus, we have instances where changes are initiated by
active roles of the judges. Lawyers also play an active role in bringing change in
society through their knowledge law and the legal instruments (like PIL). Hence,
the legal professionals are acting as harbingers of social change, or as social
engineers.
• Laws are themselves important instruments of social change- thus, keeping in
mind the changing dynamics in society, new laws are laid down, or amendments
are brought out in the old acts to adjust ot the changing requirements of the society.
• State delivers impartial and fair justice to all the people, thereby maintaining a
positive atmosphere in the society, where all the members contribute to the process
of nation building. Thus, law plays an important role in maintaining harmony and
cooperation in society.
• Through social justice, laws act as important agents of state welfare, where they
ensure that development opportunities are equally available to all.
• Societies are marred by many social problems, which become part and parcel of the
peoples’ lives. Laws help in fighting against these problems – thus we have laws
to control domestic violence, parental neglect, gender discrimination/ racial
discrimination etc.
• Different types of societies have different types of laws- thus according to
Durkheim, simple societies having mechanical solidarity display stronger
repressive laws, and complex societies marked by restitutive laws show presence
of stronger restitutive laws. Thus, there is a correlation between type of society and
types of laws present.
• If society is dependent upon laws, the laws also have high degree of dependence
on society. For instance, laws are drawn from the customs of the people. Thus,
origin of certain type of law depends on the kind of customs present in a society. If
the laws are not in consonance with the customs and belief practices of the people,
they are not easily accepted by the people. On the other hand, where laws are in
conformity with the social norms and morals, people accept them easily.
• Further, as the society changes, the laws must also change- thus, if the gender
issues are being seen in the new dimension, with focus on gender equality, changes
must be incorporated in the laws also. In terms of gender issues, for example, the
same sex relations and the rights of the third gender are growing in importance,
hence the laws must, sooner or later, must reflect these changes. This is also
reflective of the dependence of the laws on the society.

SOCIOLOGY OF LAW IN INDIA

Sociology of Law in India is relatively new interdisciplinary area that has emerged in the
recent past as a result of the scholarly work of various researchers. The research work in
this area was initiated by Indian social thinkers from various academic backgrounds such
as sociology, law and social work. Since 1947, some contributions started coming from a
group of sociologists through their imminent writings. Initially, these works on correlation
between society and law reflected the use of the theory of social engineering. There was
more focus on contribution of sociological jurisprudence to social transformation,
following the logic that law is an effective tool of social engineering.
In the post 1970s. In this phase, various Supreme Court judges, activist academicians,
lawyers, social workers etc indulged in humanistic interpretation of laws. PIL took the
studies on social sensitivity of law to a different level- the PILs were initiated to take up
issues of violation of fundamental rights of the poor, children and the women. Justice
Krishna Iyer, Justice P. N. Bhagwati and Justice D. A. Desai encouraged PILs and gave
them wider exposure. This further added to the development of Sociology of Law in India.
PIL was seen as a major instrument of social change.
Upendra Baxi lamented over the paucity of research in the area of sociological aspect of
legal processes and institutions. He suggested that the social scientists needed to go back
to the intellectual insight of early sociologists regarding the importance of law in social
structure and social transformation. Baxi felt that such kind of close association of law
scholars and social scientists is essential for the process of social development and justice.
Marc Galantar’s work on Competing Equalities (1984) provided outstanding description
of the information on law, policy and administration of compensatory discrimination
programs and policies, which, as he demonstrated, had not emerged in his times as a
priority research area in social sciences. Galantar suggested that there was too much law in
evolution of compensatory policies, and sociological studies in this area were completely
avoided, as, he felt that the sociologists find law an arcane/ mysterious topic, and thus try
to ignore it. Galantar observed that the sociologists ignored the relevance of law to social
structure and social transformation.
He observed that compensatory discriminatory programmes and policies are commendable
in terms of their enunciation, elaboration and development, but on the whole their
implementation is deplorable. This largely occurs because of the presence of gulf between
the sophisticated judicial policy makers on the one hand, and the administrators and clerks
(who implement the program) on the other. He concluded in his study that massive
transformation of policy- making structures and implementing structures are necessary for
the success of compensatory discrimination policies and programs.
Contributions of K. L. Sharma in the area of sociology of law are also noteworthy. Sharma
felt that majority of the work in the area of sociology of Indian law was being done by the
legal scholars, and sociologists or social anthropologists were not significantly
contributing. According to him, works that were carried out only provided sketchy analysis
of disputes and rules and regulations regarding marriage, division of property and
commensality etc. Some studies were done on the incorporating serious analyses of
traditional customary Hindu law, but they were not by empirical validated. Sharma claimed
that lawyers and clients should be seen as independent categories who belong to same
system of relationships. His study of lawyers and clients involved various social structural
issues including class relations, hierarchy, laws of inheritance, joint family, innovations
and continuity of traditions etc. The study also necessitated an enquiry into the functioning
of bar councils, apprenticeship of law graduates, nature of legal education and daily routine
lawyers, courts, munshis and other functionaries.