Roscoe Pound and Sociological Jurisprudence

INDEX

1. Roscoe Pound – Introduction
2. Social Engineering
3. Interest Theory
4. Jural Postulates
5. Criticism
6. Case Law
7. Conclusion
8. Bibliography

1. Roscoe Pound – Introduction

Roscoe Pound was one of the leading figures in twentieth-century legal thought. As a scholar, teacher, reformer, and dean of Harvard Law School, Pound strove to link law and society through his "sociological jurisprudence" and to improve the administration of the judicial system. In the early decades of the century, Pound was viewed as a radical thinker for arguing that the law is not static and must adapt to the needs of society. By the 1930s, however, he was seen as a more conservative figure, fighting the growth of federal government.[1] Pound was born on October 27, 1870, in Lincoln, Nebraska. The son of a judge, Pound attended the University of Nebraska, earning a bachelor of arts degree in botany in 1888. His father convinced him to attend Harvard Law School, but he stayed only one year. The death of his father led Pound to return to Lincoln, where he passed the Nebraska bar examination and was admitted to the bar in 1890.[2] A gifted scholar, Pound could have had a distinguished career in the sciences, but his appointment in 1901 as a commissioner of appeals for the Nebraska Supreme Court permanently shifted his career to the law. As a commissioner he acted as a temporary appellate judge, helping to reduce a backlog of cases. His opinions emphasized substance over procedure and reflected a concern with the practical effect of the law. In 1903 he was appointed dean of the Nebraska College of Law.[3] Roscoe Pound also made a significant contribution to jurisprudence in the tradition of sociological jurisprudence, which emphasized on the importance of social relationships in the development of law and vice versa. His best-known theory consists of conceptualising law as social engineering. According to Pound, a lawmaker acts as a social engineer by attempting to solve problems in society using law as a tool. He was a prolific writer and his major works include The Spirit of The Common Law(1921, An Introduction to The Philosophy of Law (1922), Interpretations of Legal History(1923), Law and Morals (1926), etc[4]

2. Social Engineering

Man is a social animal and needs a society for his leaving, working and enjoying life. A group of individual forms a society. Society has become an essential condition for human life to develop his or her personality. Therefore society and human life always go together. Every human being has also born with some desires and expectations which are inherent in nature. From childhood to till old age, every human being expects that his or her desire is to be fulfilled for which their arise conflict of desires or claims which comes under the term , “interest”. It is impossible to fulfil all the desires of a human being. So to fulfil the desires of maximum human being for the welfare of society the concept of Social Engineering was emerged and which was coined by Roscoe Pound. [5] The force which asks for the adoption of Social engineering is nothing but the conflict of interests of individuals. Interests more particularly the conflicting interest are the subject of Social Engineering. Social engineering is based on the notion that Laws are used as a means to shape society and regulate people’s behaviour. It is an attempt to control the human conduct through the help of Law. According to Pound, Law is social engineering which means a balance between the competing interests in society[6] Throughout the exposition of his legal philosophy Pound has spoken of "law" without attempting to define the term precisely. He has carried on about how law can be a tool for social change i.e that is social engineering thus it is important to know his view on what law is, his typically pragmatic approach has been to assume that the nature of law may best be understood by what it does. Pound sets forth" three apparently distinct ideas which have been described by the word "law" : -

1. "a regime of adjusting relations and ordering conduct by systematic and orderly application of the force of a politically organized society otherwise called the legal order.
2. "body of authoritative materials of or grounds of or guides to determination, whether judicial or administrative." This body of materials may be described more minutely as made up of authoritative precepts, an authoritative technique of development and application, and a background of received ideals of the social and legal order.
3. the judicial and administrative processes, the "process of determining causes and controversies according to the authoritative guides in order to uphold the legal order."

After pointing out that these are three distinct ideas, and that calling them by the one term has been a source of confusion in discussions on the nature of law, Pound says: "If the three meanings can be unified, it is by the idea of social control", [7] He says that like an engineer’s formulae, laws represent experience, scientific formulations of experience and logical developments of the formulations, also inventive skill in conceiving new devices and formulating their requirements by means of a developed technique Here Pound has used two words i.e. “Social” means group of individual forming a society. The second word is “Engineering” which means applied science carried out by engineers to produce finished products which are necessary for the society and which fulfil all their needs. By combining these two words he tries to say about engineers and what they do. They use the formula which is based on continuous experimentation and experience to get the finished product by means of an instrument or device To elaborate further on Pound’s “engineering” , he explained his concept by explaining the role of engineer/architect and equating it to lawyer’s. Just as an engineer chalks up a plan before starting a project so do lawyer’s they must work with a goal in mind to uplift society. Lawyer’s lay down a strong system of law based on jurisprudential principles to satisfy the demand of society. It is in this whole process that law is related to social engineering. Therefore Pound represents “experience with law” , instrument with organs of government, engineers with judge and lawyer and finished product with the wants of human beings and society with a factory. He says that like engineers, the lawyer should apply law in a court room so that the desires of the people are fulfilled. Therefore he calls law as Social Engineering and says that the aim of Social Engineering is to build as efficient a structure of society as possible which requires the satisfaction of wants with the minimum of friction and waste. It means Law should work for balancing of competing interest within the society for the greatest benefit.

3. Interest Theory

In a society everybody is motivated by their own interest and wants that preference be given to his or her interest over the other. Conflicts between interests arise because of the competition of the individuals with each other, with the public in order to satisfy human wants. Therefore it is needed to recognize the interest to which law should take account[8]. For this purpose a legal system has to i. Recognize certain interest ii. Define the limits within which such interest are to be legally recognized and given effect to it. iii. And finally the above interest should be secured. Suppose I want to stand first in the exam. It is my desire. But this desire cannot be fulfilled because there is no legal recognition as there is no state’s interest in standing first position. Therefore law has to take into account the desires which need recognition. For the purpose of satisfying human interests, Pound defined interest as , claims or wants or desires which men assert de facto about which the law must do something if organized societies are to endure.[9] Pound classified various interests which are to be protected by the law under three categories which are the following[10]: 1. INDIVIDUAL INTERESTS: These are claims or demands involved from the stand point of the individual life which consists of interest of personality, interest in domestic relations and interest of substance. 2. PUBLIC INTEREST: These are the claims or desires asserted by the individual from the stand point of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use. Interest in preservation of state. 3. SOCIAL INTEREST: These are the claims or demands in terms of social life which means to fulfil all the needs of a society as a whole for the proper functioning and maintenance of it. Interest in preservation of general peace, health, security of transaction’s, preserving social institutions like religion, politics, economic. It is found that there is overlapping of interest between Public and Social Interest because both are same. Pound is silent about the overlapping of interest and discussed the problem of interests in terms of balancing of Individual Interest and Social Interest. He has classified the interest into three categories but talks about the balancing of only Individual and Social Interest. It is also found that interests are the subjects on whom law has to apply social engineering.

4. Jural Postulates

What are the guidelines on the basis of which social engineering should be carried out? Pound’s answered this by saying that every society is based on basic assumptions which help in ordering of interest. One interest is of more value than that of other and the object of law should be to satisfy the interest which is in the benefit of the maximum people. Thus these assumptions are identified as jural postulates which are based on hypothesis[11]. According to Pound, jural postulates are not the absolute one and they keep on changing as the needs of the situation, place and time demands. In 1919, Pound summarized the postulates which every individual in civilized society must be able to take it for granted that[12]:

1. Others will not commit any intentional aggressions upon him. E.g. Assault, battery, wrongful restraint etc.
2. Others will act with due care and will not cast upon him an unreasonable risk of injury. E.g. Negligence
3. He can appropriate what he has created by his own labour and what he has acquired under existing economic order for his own use. E.g. agricultural land and usufruct as property.
4. The people with whom he deals with in the general intercourse of society will act in good faith. E.g. Defamation
5. He must keep the things within his boundary and should look after those things so that their escape should not harm others. E.g. Ryland vs. Fletcher case

In 1942, Pound added three new postulates in the list which are[13] :

1. A person will have security as a job holder. E.g. ruled by labour law, law of contract
2. Society will bear the burden of supporting him when he becomes aged. E.g. 1/3rd concession in railway ticket, ceiling of income tax range is more.
3. And the society as a whole will bear the risk of unforeseen misfortunes such as disablement. E.g. reservation quota for physically disabled person in education, travel etc.

The jural postulates are to be applied both by the legislators and judiciary for evaluating and balancing the various interests and harmonizing them. He has not said anything about the interest which will be given more priority over other. 5. Criticism Pounds theory of social engineering has been criticized on various grounds. It is contended that the classification of interests by pound is in the nature of a catalogue to which additions and changes have constantly to be made which is neutral as regards the relative value and priority of the interest enumerated. Pound’s theory of social engineering has been criticized for the use of the term engineering, which equates society to a factory like mechanism. Law is a social process rather than the result of an applied engineering. Equating society with a factory is also not correct because the former is changing and dynamic in nature whereas the latter is more or less static. Again , pound’s emphasis on engineering ignores the fact that law evolves and develops in the society according to social needs and wants for which law may either have develops in the society according to social needs and wants. A general criticism against pound’s theory is regarding his use of the word engineering because it suggest a mechanical application of the principle to social needs, the word “engineering” is used by pound metaphorically to indicate the problems which the law has to face, the objectives which it has to fulfil and the method which it will have to adopt for this purposes. Pound does not give an ideal scale of values with reference to interests. In fact pounds himself has admitted that philosophy has failed to provide an ideal scale of values and that the best that jurist can do is to proceed with the task of adapting law to the needs of his generalization the choice between conflicting ideologies is one for the community at large. Another criticism against his theory is that emphasis on engineering ignores an important part of law which develops and evolves in the society according to social needs the law simply recognises or approves it. This dynamic feature of law is undermined. Pound himself has inserted a certain evaluation by describing the interest in individual life as the most important of all. However, there is a danger of an implicit evaluation in the grading of interests as individual, public or social. What is an individual and what is a social interest is itself a matter of changing political conceptions. Many interests come under different categories. 6. Case Law To see the effect of Pound’s theory on interest we can look at the various judgments delivered by our courts giving effect to them.

1. It has been witnessed through the action of Supreme Court in Vellore Citizen’s Welfare Forum Vs. The Union of India[14] in which Kuldip Singh J. delivered the judgment that “even if the industries are of vital importance for the countries progress as they provides employment but having regard to the pollution caused by him, the principle of ”sustainable development¸ has to be adopted as a balancing concept between ecology and development”. In this case the two principles emerged i.e. precautionary principle and the Polluter Pays principle.
2. In a land mark case of Union Carbide Corporation vs. Union of India[15], the Supreme Court laid down the rule of Absolute Liability in which it was held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous activity, then the enterprise involved is strictly and absolutely liable to compensate to all those who are affected by the accident. In this case regarding the compensation the Court said that the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation has a deterrent effect for future accident.

It can be seen from these judgements that social interest is prevailing in India.

7. Conclusion

Law plays an important role in reconciling and adjusting conflict of interests. Both the Social Interest and Individual Interest prevail over each other. Priority is given to all interests. Roscoe Pound has given the concept of Social Engineering for the American Society but this concept is followed by other countries in resolving disputes. India has also followed the same concept in establishing a welfare society. Both Judiciary and Legislators play an important role in enacting the statutes which fulfil the various desires of human being. In this society desires of human being grows and to fulfil their desires new policies, strategy has been developed.

8. Bibliography

• Dr N. V. Paranjapee, Studies in Jurisprudence and Legal Theory, 6th edition 2011, Central Law Agency
• C.N.SHANKER RAO, Sociology Primary Principles, 3rd edition 2000, Published by S. Chand & Company Ltd New Delhi
• Braybrooke, E K "The Sociological Jurisprudence of Roscoe Pound" 5 UWALawRw (1961)
• Linus J. McManaman “Social Engineering: The Legal Philosophy of Roscoe Pound” 33 St.J LwRv 1958
• B.N.MANI TRIPATHY, An Introduction to Jurisprudence and Legal Theory,18th edition 2004,Aallahabad Law Agency
• https://legal-dictionary.thefreedictionary.com/Roscoe+Pound
• https://www.roscoepound.org/whoisroscoe.aspx
• https://www.wcl.american.edu/journal/lawrev/10/10-2.cfm
• https://www.dpcc.delhigovt.nic.in/pdf/vellore.pdf

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[1] https://legal-dictionary.thefreedictionary.com/Roscoe+Pound visited on 10/9/2014 [2] https://www.roscoepound.org/whoisroscoe.aspx visited on 10/9/2014 [3] Supra at 1 [4] Dr N. V. Paranjapee, Studies in Jurisprudence and Legal Theory, 6th edition 2011, Central Law Agency, pg 71 [5] C.N.SHANKER RAO, Sociology Primary Principles, 3rd ed 2000, Published by S. Chand & Company Ltd New Delhi, pg. 155 [6] Ibid at 5 [7] Braybrooke, E K "The Sociological Jurisprudence of Roscoe Pound" 5 UWALawRw Pg 2 (1961) [8] Linus J. McManaman “Social Engineering: The Legal Philosophy of Roscoe Pound” 33 St.J LwRv 1958 [9] Ebid at 8 [10] Dr N. V. Paranjapee, Studies in Jurisprudence and Legal Theory, 6th edition 2011, Central Law Agency, pg 72 [11] B.N.MANI TRIPATHY, AN INTRODUCTION TO JURISPRUDENCE LEGAL THEORY,18th edition 2004,Aallahabad Law Agency, pg 49 [12] Dr N. V. Paranjapee, Studies in Jurisprudence and Legal Theory, 6th edition 2011, Central Law Agency, pg 73 [13] Ebid at 12 [14] (1996)5SCC647 [15] AIR 1990 SC273

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