Social constructivism1, a theory that originated from sociology and epistemology, holds that reality is not an absolute object, as it is constructed through interaction, discourse, and communication. Hence, democracy2 is a dynamic and collective process of knowledge creation where laws and norms are constantly revised through people's engagement. In the context of the theory of law and jurisprudence3, social constructivism has a positive role of enhancing understanding of legal norms and their origin, as well as their interpretation and application that are the reflection of the voice of the people and thus are democratic.

Origins of Social Constructivism

The origin of social constructivism has been grounded with theorists like Émile Durkheim4, George Herbert Mead5, and Lev Vygotsky6 who postulated that knowledge and learning is a socially constructed act. On the jurisprudential front, it shares affinity with both legal realism and sociological jurisprudence, thereby positing that laws are not mere formal mandates but social products.

Vygotsky for instance postulated that human development was fundamentally rooted in social processes7. His ideas concerning interaction, language, and culture as influencing thought and knowledge are reflected in the legal field, in which statutes and case laws develop through societal processes. Another philosopher, John Dewey8, also emphasized that democracy is not only a form of governance but also a policy for living and interacting with others, which aligns with the principles of social constructivism9.

Social Constructivism and Legal Systems

In a democratic legal system, laws are not set in stone but rather a process that is produced, negotiated and re-interpreted. Social constructivism lays emphasis on changeability of the Law as a social product that occurs in response to the society's needs and expectations. This conforms to the legal philosophies expressed by Roscoe Pound10who believed in sociological jurisprudence.11 Pound stated that the law of a particular state should be applied and constructions for the benefit of society in the particular time by acknowledging the fact that societies are dynamic and not static. As Hegel12 stated , With the change of time society keeps on developing , as constitution is having amendments.

Legal positivism was an important view and H. L. A. Hart, a legal positivist, regarded law as a set of rules. Nonetheless, his theory about the 'open texture' of law still recognizes that there is an element of interpretation made by judges especially in hard cases where the values of the society are in sharp disagreement. In contrast, Ronald Dworkin13 posited that legal rules are but a part of the case; legal principles inform the decision-making process of a judge.

These principles are based on morality and social order of a society which further enhances the spirit of a democratic legal system that is created to protect the rights of a community. In constitutional democracies, the living constitution represents the social constructivist perspective. According to the living constitution theory, the meaning of the constitution changes with time to respond to the new socio-cultural realities of the society. The view held by Justice Oliver Wendell Holmes Jr. in its purest form is the socially constructed collective experience of a democratic society as Holmes himself noted, "The life of the law has not been logic; it has been experience."

In India, the idea of the 'basic structure doctrine' infuses social constructivism into the legal fraternity. This was enunciated in the Kesavananda Bharati v. State of Kerala14 case, meaning while the constitution may be changed, there are certain aspects that cannot be altered; these being the principles of the rule of law, democracy and the power of the judiciary to override legislation. These principles are not cast in stone and can therefore change from time to time depending on the social and political climate of the society, which in one way seeks to show how law is built and rebuilt depending on the need of society at different times.

Philosophical Foundations: Human Rights

Foucault15 and Habermas16 are some of the philosophers whose thoughts can help in the understanding of how power, knowledge, and discourse influence the social structures and the legal structures as well. It is specifically why Foucault's typology of power/knowledge shows how legal norms are connected with power relations in society. Laws are not merely logic, but rather reflect the powers that be, maintaining or questioning the social norms.

The critique of rationalism and ideology pervasive in Habermas's theory of communicative action sets another vision of democracy in discursive communication17. In his own opinion, legitimacy of decision in democracy is founded on equal and knowledgeable discursive participation in which the laws painted through reason. This resonates with the social constructivist perspective that laws are-outsourced legally and culturally in dialogue by societies.

It is important to point out that one of the best examples of the concept of social constructivism is the concept of human rights. It is clear that human rights are not the objective truths of existence; they are social inventions that have become a part of the international legal norm. The Universal Declaration of Human Rights was signed in 194818 as a result of international attempt to build the sense of the rights and freedoms which belong to every human being.

Social constructivism can be evidenced through the development process of human rights law. For example, rights of the sexual minorities, the rights of the environment and the rights to privacy in the digital age are concepts that are relatively new, but modern manifestations of the change in the values of the global society. As society progresses, the laws that guard human dignity and liberty also advance.

Criticism : An Approach:
An analysis and critiques are mentioned below, which have been seen in the discourses of the time, as follows:

1. Relativism's main concern that may be said about social constructivism is the relativistic approach to the definition of law, which does not include any universal principles. This can also present difficulties in maintaining stability and order in the legal arena.
2. The subjectivity of democracy is based on the opinions of society; therefore, it introduces certain subjectivity into the legal decision-making process, which can eventually lead to the erosion of the rule of law.
3. Power dynamics has been encountered; even though this theory recognizes states' power to construct legal norms, it might not be sufficient to explain how unequal power can lead to people's unfair treatment.
4. Limited scope has been recognized in social constructivism and can be criticized for not considering the other social factors that may define the nature or role of law without focusing on the social aspects of it.

Conclusion
In the theory of social constructivism, laws cannot be static; instead, they evolve over time with society's ongoing interactions and experiences that reflect a society's continually transforming needs and values. This approach is in compliance with the democrative trends, for instance, the way it explains how the participation of society affects norms of law.

Despite the above criticisms, it has a relativistic view on legal decision making and thus offers valuable information on how elastic the law can be. Nevertheless, social constructivism remains crucial for understanding constitutional democracies' law, such as the living constitution and the evolution of human rights. While realism bolsters jurisprudence, such important aspects as criticism of power relations and emphasis on social processes are to be balanced with general legal notions.

End Notes:

1. Social Constructivism and the Mediated Learning Experience, Study.com
2. Shapiro, Ian, Robert A. Dahl, and David Froomkin. "Democracy." Encyclopedia Britannica. September 15, 2024.
3. Cornell University Law School. Legal Information Institute.Wex .https://www.law.cornell.edu/wex/category/legal_theory?page=6 "Jurisprudence." [Accessed September 16, 2024].
4. Henri M. Peyre, "Émile Durkheim," Encyclopedia Britannica, 16 Aug. 2024, https://www.britannica.com/summary/Emile-Durkheim. Accessed 14 September 2024.
5. Mead, George Herbert, Mind, Self, and Society: From the Standpoint of a Social Behaviorist, Charles W. Morris ed. (Chicago: University of Chicago Press, 1934).
6. Verywell Mind (2023). Lev Vygotsky Biography. Retrieved from https://www.verywellmind.com/lev-vygotsky-biography-2795533
7. James V. Wertsch, Vygotsky and the Social Formation of Mind 1 (Harvard Univ. Press 1988), September 15, 2024.
8. Gouinlock, James S. "John Dewey." Encyclopedia Britannica. July 5, 2024. https://www.britannica.com/biography/John-Dewey. Accessed September 15, 2024.
9. C.P. Harbour, John Dewey: Education for Democracy, in The Palgrave Handbook of Educational Thinkers 795-810 (Springer International Publishing 2024).
10. Roscoe Pound, Jurisprudence, https://www.britannica.com/biography/Roscoe-Pound, (5 vols., Cambridge: Harvard Univ. Press, 1959).
11. Roscoe Pound, The Need of a Sociological Jurisprudence, 30 Ann. Rep. Am. Bar Ass'n 911 (1907).
12. Internet Encyclopedia of Philosophy, Hegel: Social and Political Thought, https://iep.utm.edu/hegelsoc/, (accessed April 27, 2024).
13. Ronald Dworkin, obituary, The Guardian (Feb. 14, 2013), https://www.theguardian.com/law/2013/feb/14/ronald-dworkin, (accessed September 15, 2024).
14. Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
15. Stanford Encyclopedia of Philosophy, Michel Foucault, Plato.Stanford.edu (Jan. 9, 2023), https://plato.stanford.edu/entries/foucault/ (last visited Sept. 16, 2024).
16. Simone Chambers, Jürgen Habermas, Stan. Encycl. Phil. (Edward N. Zalta ed., Sept. 3, 2021), https://plato.stanford.edu/entries/habermas/ (last visited Sept. 16, 2024).
17. Habermas, The Theory of Communicative Action, vol. 1 (Boston: Beacon Press 1984).
18. Universal Declaration of Human Rights, United Nations, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Sept. 16, 2024).