Sociological Jurisprudence

“Experience is developed by reason on this basis, and reason is tested by experience.”

The main concern of sociological jurisprudence is the legal gaps (lacone) between positive law and living law. This thought tend to use sociological approaches to law. There are 2 main sociological approaches: Structural-Functional Approach and Conflict Approach.

Structural-Functional Approach explains why society functions the way it does by focusing on the relationships between the various social institutions, that make up society. It believes that society is cohesive and shares common norms and has a definitive culture. Or we can say that this approach believes that basically all human beings tend to be harmonious. That human in society actually want to live together in harmony.

Conflict Approach is the opposite of Structural-Functional Approach. It believes that every human being is actually different (adhesive). Social structures are created through conflict between people and differing interests and resources. Society deals with changing process that never stops. That process creates conflict. So conflict is a symptom that sticks with the social transformation.

Sociological jurisprudence embraces the principle of similias similibus, which means the similar case is treated similarly. So this thought embraces precedent that means there is an attachment of judges in deciding cases that are similar to the previous case and has been decided.

This school of law argues that POSITIVE LAW should reflect the LIVING LAW. The two primary questions in this thought are the relationship between the “law in action” (living law) and the “law on the books” (positive law); and positive law reflects and shapes the social dynamics.

LAW = JUDGE MADE LAW (LAW IN-CONCRETO)

According to Roscoe Pound, Law in the books is not law in action. The life of the law is in its enforcement. Pound also add the function of law, which is as a tool of social engineering.

Explanation: Sociological Jurisprudence believes that the positive law should reflect the living law. This is applied by the task of judges of making positive law always reflect the living law. Because the law lives in its enforcement so the law made by judge is the law that is trusted to reflect the living law.  The diagram above describes the sociological jurisprudence that simultaneously top-down and bottom up as it reflects the living law (in society). From time to time, judges have been creating court decisions. The decisions are bound with the precedents.

I personally think this thought is good to be implemented to the State with many various culture or norms. It can live up the positive law in order to fit and be in line with the living law. But we have to be careful. Here, judges hold the important role to enforce the law as great as possible to reflect the living law. And there is possibility that in similar cases, there would be different factor, so it’s quite tricky if we use the precedent because we can ignore the justice itself unconsciously.

Source: http://filsafathukum-unpar5a.blogspot.com/2010/11/topik-ke-i-pengertian-filsafat.html