Tugas Gambar Chika 1 Jurispundence should concern itself with an observational study of society, since formal laws are an adjunct of the living law. Criticism 1. Should both, the formal and the living law be called laws? 2. He deprived formal law any creative activity and gave it too much an appearance of trailing in the wake of social developments. 3. He failed to emphasize the mutual interaction of the norms of decision and the norms of behaviour, though the distinction is important. 4. State organization has been playing an ever increasing part in the regulation of social life. 5. To urge that laws should be studied in the context of society is proper and beneficial. But it is feared that the way in which ehrlich proposed to conduct the study of society would reduce the significance of laws and may well lead to the death of jurisprudence as a subject. But this mau not be true because jurisprudence will be in demand even when sociological studies gain ground. Rudolf (1818-1892) He made an intensive study of roman law. He started detesting the jurisprudence of concepts. The study of roman law taught him that its wisdom lay not so much in the logical refinement of concepts as in the moulding of concepts to serve practical purposes. To lhering, law is a form of volition. It is a paramount. Necessityof law to serve social purposes. The philosophical basis of lhering's utilitarianism is the recognition of purpose as the universal principle of the world, embracing inanimate as well as animate creation. "The stone does not fall in order to fall, but because it must fall, because its support is taken away ; whilst the man who acts does so, not because of anhything, but in order to attain something. This purpose is as indispensable for the will as cause is for the stone. As there can be no motion of the stone without a cause, so can there be no movement of the will without a purpose. Every legal rule owes its origin to a purpose. A legal right is a legally protected interest. What about a habitual act? Habitual action is that which is originally called forth by a more or less consiously felt purpose and which by frequent repetition for the same purpose has found purpose and action together so that act is done without.
Tugas Gambar Chika 2 Consciousness of the purpose "purpose in the law" means to lhering three things : 1. The relation of individual purpose and habits to legal rules 2. The purposes of lawmakers who estabilished the rules 3.The purposes or ends which lhering finds in them. Human nature Ihering recognized that most people on most occasions act from egoistic self-assertion. But man cannot live alone. He needs to live in society and his social impulses are the result of his adaption to his social environment.
The purposes of human volition is not the act itself but the satisafaction derived from it. Thus, the debtor pays his debt in order to free himself from it. According to Ihering, the purpose of the law is for the protection of interests. Interest Interest is the pursuit of pleaure and advoidance of pain. But individual interest is made part of a social purpose by connecting one's own purpose with other people's interests. By converging interests for the same purpose, cooperation is brought about. Commerce, society and the state result from this. Levers of social motion There are egoistic and altruistic motives. The existence of society is a combination of them. The egoistic levers are reward and coercion. The desire for reward produces commerce. The social lever of reward is operated less effectively by law than by commerce. Gifts were probably unknown in ancient roman law and came in under the guise of exchance and the threat of coercion made law or state possible. The altruistic or moral levers of social motion are the feelings of duty and love. The four levers combine to make society possible, and the object of society is to secure the satisfaction of human wants. The categories of wants are as follows : 1. Extra-legal wants which are offered to man by nature with or without effort, e.g., produce of soil. 2.Mixed legal wants are conditions of life exclusive to man. e.g. Preservation of life, reproduction of life, labour and trade. 3. Legal wants, such as command to pay debts or taxes
Tugas Gambar Chika 3 Sociological school No legislation is needed for eating, drinking or the reproduction of the species. The realization of the social purpose may be pursued by morality, ethics or law. The characteristic approach of law is through the power of the state which exercises external coercion. It is this method and not the content of law which is permanent and stable. The content of law must be infinitely various. Purpose is a relative standart and law must adpt its regulations to the varying conditions of people, according to the degree of civilation and the needs of the time. Ihering says " the idea that law must always be the same is not (whit) better than that medical treatment should be the same for all patients". How is private interst reconciled with the interest of the state? He answers that society stands above the particular individual. Thus, the individual is enabled to desire the common interest, in addition to his own. Accordingly, the law never secures the good of the individual as an end itself, but only as a means to the end of securing the good of society. Thus, he justifies expropriation. Expropriation solves the problem of hamornizing the interests of society with those of the owner. Ihering was the first jurist to develop a theory of a balance of purpose or interest, "law is the sum of the conditions of social life ini the widest sense of the term, as secured by yhe power of the state through the means
of external compulsion". 1. His is a more elastic legal technique. 2. His insistence that law is realized through struggle and self-assertion has effectively opposed the romantic conception of an unconscious manifestation of the volksgeist through the law. 3. He could not resolve the conflict between the individual and the collective interest. Roscoe pound (1870-1964) Pound has obtained a degree in biology and the studied law. He studied it with such a zeal that he came out with a theory of his own. He wrote volumes in his long life and enriched jurisprudence. Pound borrowed heavily from other thinkers amongst whom probably ihering occupies a central position. Pound displays great propensity for calssifying legal material. This may be due to the early education in botany. Simpson rightly says that pound has 'botanized' law.
Tugas Gambar Chika 4 Background of pound's theory Pound's writing appeared in the first quarter of the twentieth century. This period was marked by a very rapid social change in the united states of america. With the great growth came problems, tensions and conflicts. The country came have a strong and increasingly centralized state and administrative machinery. Alan Hunt observes in his book, the sociological movement in law (1978) at p. 13. "In a period of rapid social and economic change the american legal system, common law based on and dominate by legal traditionalism, was beset by wide-ranging criticisms. It was pressed by contending forces in social conflict in contradictory directions. It had neither time nor opportunity for a leisurely adjusment to the changed circum-stances. The pressure from the rapidly emerging labour movement brought pressure on the legislators for intervention through social legislation". Socilogical jurisprudence and the sociology of law. Roscoe pound distinguishes between sociological jurisprudence and the sociology of law in that former concerns with the practical whereas the latter concerns with the theoretical problems. To emphasize on the practical aspect, he uses the phrases 'law in books, and law in action.' His theory is that law embodies certain interests which society thinks necessary to protect by law. Every law, if analyzed in terms of interests, is easily understood. Every social system embodies a number of interests. Not all the interests are taken care of by law. There are interests which are taken care of by religion, aesthetics, etc. Therefore, he says that to determine the scope and subject-matter of the system, the following five things are required : 1. Preparation of an inventory of interests, classify them. 2.Selection of the interests which should be legally recognized. 3. Demarcation of the limits of securing the interests so selected. 4.Consideration of the means whereby laws might secure the interests when these have
been acknowledge and delimited. 5.Evolution of the principles of evaluation of the interests. Pound's classification of various interests isa as follow : 1. Individual interests as mentioned by pound A. Personality interests B. Domestic relations C. Interests of substance
Terjemahan Gambar 1 Jurispundence harus menyibukkan dirinya dengan studi observasional masyarakat , karena hukum formal tambahan dari hukum yang hidup . kriik 1 . Harus baik , formal dan hukum yang hidup disebut hukum ? 2 . Dia kehilangan hukum formil akivitas kreaif apapun dan memberikannya terlalu banyak penampilan teringgal di belakang perkembangan sosial . 3 . Ia gagal untuk menekankan saling interaksi dari norma-norma keputusan dan norma-norma perilaku , meskipun perbedaan itu pening . 4 . Organisasi negara telah memainkan bagian yang semakin meningkat dalam pengaturan kehidupan sosial . 5 . Untuk mendesak agar undang-undang harus dipelajari dalam konteks masyarakat yang tepat dan menguntungkan . Namun dikhawairkan bahwa cara di mana ehrlich diusulkan untuk melakukan studi masyarakat akan mengurangi peningnya hukum dan juga dapat menyebabkan kemaian yurisprudensi sebagai subjek. Tapi mau ini idak benar karena yurisprudensi akan permintaan bahkan keika studi sosiologis mendapatkan tanah . Rudolf (1818-1892) Dia membuat studi intensif hukum Romawi . Dia mulai detesing yurisprudensi konsep . Studi hukum Romawi mengajarinya bahwa kebijaksanaan terletak idak begitu banyak dalam penyempurnaan logis dari konsep-konsep seperi dalam pencetakan konsep untuk melayani tujuan prakis . Untuk lhering , hukum adalah bentuk kemauan . Ini adalah pening . Hukum Necessityof untuk melayani tujuan sosial . Dasar ilosois uilitarianisme lhering adalah pengakuan dari tujuan sebagai prinsip universal dunia, merangkul mai serta penciptaan bernyawa . " Batu itu idak jatuh untuk jatuh , tetapi karena harus turun , karena dukungannya yang diambil , . Sementara orang yang berindak idak begitu , bukan karena anhything , tetapi untuk mencapai sesuatu tujuan ini adalah sebagai sangat diperlukan untuk kehendak sebagai penyebab adalah untuk
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