Introduction to sociological school:-
The sociological school is one of the important branches of law. It comes after the Analytical school and Historical school. Its seeds were found in the historical school. Duguit, Rosco pound, and Camta are the supporters of this school.
According to this school, the law is the numerator of society. Law and society both are the two sides of the same coin, one cannot exist without the other.
If there is law there should be society and if there is society there should be law. Law is very necessary for regulating society.
Many writers like Duguit, Roscopound, and Inhering gave these views in the sociological school. The theory of Duguit under sociological school is social solidarity.
Social solidarity means the greatness of society. Duguit said that there are mainly
two types of needs of society:-
2. Adverse Needs.
Which are fulfilled by mutual assistance.
Which are fulfilled by the exchange of services.
No one can live without the help of others. Even a state cannot exist without the help of other states. One cannot produce all things required for him. So he has to depend upon others.
The dependency is called social solidarity. For this purpose the division of labor is necessary. The division of labor will fulfill all requirements for society. This philosophy or views is called social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
In society, all persons are depending upon each other. Individual cannot fulfill their ambitions alone.
No difference between state & society:
State and society are a group of persons. The main purpose of the society is to save people. This responsibility also lies in the state. So the state does not have a special status or above status from people. The state should make laws for the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior person. Duguit says that the sovereign is not superior to people. The sovereign of a state lives in people or in the will of people.
DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW
Duguit says that there is no difference between public law and private law because the aim of both the law is to develop social solidarity.
Public law and private law are meant for people. Public rights and private rights or people have only duties and not any rights. There is no difference between public rights and private rights.
According to Duguit, there is only one right that is to serve the people. It means a person has only duties, not rights.
CRITICISM OF DUGUIT’S THEORY
The theory of social solidarity is vague:-
This theory is not clear for a common person. One cannot gain anything from this theory so this is a vague theory.
Who will decide social solidarity:-
Duguit has not given the authority who will explain the solidarity because Duguit did not recognize sovereignty. We can imagine that the Judge will explain the standard of social solidarity. But there are no guidelines for the Judges
Public law and Private law are not the same:-
There must be an authority that passes the law. In Duguit theory there is no place for such authority.
Public rights and Private rights are also not the same:-
The right of society is a public right and the right of common people is a private right.
Custom is the base of any law but Duguit ignores these customs. In this way, the theory of Duguit is not suitably in modern times.
No doubt Duguit was a sociologist because he gave a lot of development to society. The social solidarity itself contains the welfare of the people. Duguit said that law should be according to social solidarity.
Here he discards natural principal but the theory of social solidarity itself is based upon natural law, which demands that the people should be served properly according to their needs.
In this way, Duguit put out the natural law principle from the door and accepted through the window. However, the contribution of Duguit is accepted by many writers and some of them also adopted this theory.
other relevant articles from the web –
Harward Law Review on sociological school of law
sociological school of jurisprudence