Legal sociologism is a branch of legal thought that affirms that law arises from reality and the behavior of all components of society. For its followers, when creating norms, individuals act as a whole and take into account the historical events that have shaped that society..
In this way, sociologism in law is considered as part of legal realism, since it affirms that the facts are fundamental to generate the set of norms that govern society. The jurisprudence, formed by the previous judgments on the same matter, are more important than the literality of the approved laws.
The works of the jurist Friedrich Savigny, founder of the historical school of law, are considered the beginning of sociologism. His ideas were later developed by other authors such as Rudolf von Ihering or Max Weber.
Although there are small theoretical differences between the supporters of this current, in general they agree that there are no natural laws that everyone must obey. For them, on the other hand, what is important is the participation of the entire society, and not only the State, in its creation..
The German Historical School of Law, founded by Friedrich Savigny (1779 - 1861), was responsible for developing a series of theories that gave rise to legal sociologism.
However, it was also the German Rudolf Von Ihering (1818-1892) who laid the definitive foundations for this current of thought. These are found in works such as The end of law, Jurisprudence jokingly or seriously Y The fight for the right.
Ihering rejected the theories in force in his time, such as that of dogmatic positivism. This defended that the law should be totally separated from social reality, something that the German jurist considered undesirable.
The idea maintained by Ihering emphasized the need for the law to take into account and defend the collective interests of society. Thus, he maintained that there was no type of natural law above those interests..
Another of the important authors in the creation of the postulates of legal sociologism was Max Weber (1864-1920).
The considered founder of modern sociology and the analysis of public administration, maintained that the law should evolve at the same rate as the conduct of society as a whole.
For this author, jurisprudence was more important than the laws passed. This implies that the application of the law in the courts outweighs the legislation itself..
The French philosopher Emile Durkheim (1858-1917) was even more forceful in stating that law was a sociological product and that it should be studied as such.
Durkheim argued that the law was shaped by moral ideas, but that these were generated by society and then adopted by each person.
Sociologists, like legal realists, reacted against positivism and the belief in a natural right that permeated all theories of justice..
This rejection was manifested in the creation of a branch of legal thought that gave more importance to the social reality in which the laws are developed than to justice itself as an abstract concept..
Thus, while the supporters of natural law affirmed that justice should only respond to law, sociologists emphasized its effectiveness at the service of society..
For legal sociologism, the people who make up society act as a whole when creating legal norms. To do this, they follow purely rational criteria and take into account how conflicts have been resolved throughout history.
Thus, sociologists affirm that law has its origin in society and not in particular individuals. It is a way to protect society itself and continue to exist. The law starts from reality, the differences between people and the existing jurisprudence.
This implies that laws must set aside all metaphysical aspects, since they cannot be based on anything other than social reality..
This legal branch maintains that the main elements of the law are found in the courts. In this sense, the influence of written laws on judicial decisions is less than the judge's culture, his beliefs, or even his social class..
For part of the sociologists, the judge thus becomes the main creator of law.
Although sociologists do not deny that legal norms are valid, they affirm that their importance lies in their effects on behavior and not in their literal content..
There are different schools within legal sociologism. One of those that developed the most extreme theories was the Free School of Law, which argued that the judge could ignore the written law when issuing a sentence.
According to this doctrine, the law is not the creator of the law, but this role is occupied by judicial decisions. One consequence of this theory, defended by the followers of the school, was to strip the state of its law-making status..
Legal sociologism in the United States had as its first theorist Roscoe Pound (1870-1964). His thinking was based on pragmatism and affirmed that the function of law was to unite and order the interests of the community..
Those interests came from the values held by each society, including the idea about what is fair and what is unfair..
One of the defenders of legal sociologism, León Duguit, claimed that property existed only for the effects it had on society.
In his own words, the reason was "because property is a legal institution that was born to satisfy an economic need".
An example of the historicism of this current can be found in the answer to why there is a differentiated legislation for commercial corporations.
For a sociologist, the answer has to be found in the historical development of business organizations, as well as the legislation on them..
In addition, for these jurists, the company is ultimately responsible for having created the laws on public limited companies..
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