1. ROSCOE POUND
Sociological School of Jurisprudence
Submitted To – Prof. Vidya Naik
-By Rukaiya Bohra-79-Section B
7th Semester ,B.ALL.B.
2. Pound was an American legal
scholar. He was the Dean of the
Harvard Law School. He is
considered to be the father of
American Sociological
Jurisprudence. The emergence
of American Realist School owes
its origin to Pound’s theory.
3. The jurisprudence of interests, as
propounded by Ihering, was
further taken forward by Roscoe
Pound.
6. Functional Aspect of Law
Pound laid greater stress on functional
aspect of law. Law is an instrumentality
of social engineering. It is through law
that different interests are sought to be
balanced.
7. Social Engineering
When the demand, desire, expectations of
the individual interest, social interest and
public interest are competing and
conflicting in nature, the balancing
instrument used with the force of the
state to harmonize and reconcile these
interests prevailing in the society is
known as social engineering.
8. Whose task is social engineering???
It’s the lawyer’s task. The courts,
legislators, administrators, and jurists
must work with a plan and make an
effort to achieve it.
9. Social Engineering
Pound likened the task of a lawyer to an engineer.
The purpose of social engineering is to construct as
efficient a society as possible, one which ensures the
satisfaction of the maximum of interests with minimal
friction (tension and disagreements) and wastage of
resources.
Social engineering involves balancing of the competing
interests. It is a process of social ordering.
The whole process of social engineering is to be guided
by a plan.
10. Types of Interest
1) Individual
2) Public
3) Social
Pound defines an ‘interest’ as a demand,
desire or an expectation which human
beings either singly or in a group seek to
achieve.
11. Individual Interest
1. Personality: It includes the interests of physical
integrity (no physical harm to person),
reputation, dignity, privacy, freedom of
conscience etc.
2. Domestic Relations: It includes the interests of
parents, children, husband, wife.
3. Interest of Substance: It includes the interests
of property, succession, freedom of industry and
contract, freedom of association, continuity of
employment etc.
12. Public Interest
1. Interest in the preservation of the State
2. State as a guardian of social interests
such as administration of charitable
trusts, protection of natural environment
etc. This category seems to overlap with
the next major category.
14. Pound accepted that such interests cannot
be classified into watertight compartments
and that they are overlapping.
These interests are secured through the
device of legal persons and attribution of
claims, duties, liberties, powers, and
immunities. There is also a remedial
machinery behind them which aims
sometimes at punishment, sometimes at
redress and sometimes at prevention.
15. Pound argued that Interests could only be
balanced if they are placed on the same
plane. Thus, social interests can only be
weighed against social interests and
individual interests can only be weighed
against individual interests.
In the words of Pound, “If we put one as an
individual interest an.
d the other as a social
interest, we may decide the question in
advance in our way of putting it.”
16. In other words, when we frame the conflict
in terms of individual versus society, social
interest will always triumph over
individual interest due to the natural biases
of the legal system.
Pound regarded social and individual
interests as mutually translatable. This
is because society has an interest in
promotion of individual interests and
individuals have an interest in
promotion of social goals.
17. For example, the freedom of person might
be regarded as an individual interest but it
is translatable as an interest of the society
that its members should be free. Also, the
interest of individuals in domestic
relationships is translatable to the interest
of society in institutions such as family and
marriage.
18. Jural Postulates
In order to evaluate the conflicting interests
in due order of priority, Pound suggested
certain assumptions of a civilized society,
which he called as ‘jural postulates’.
These are to be applied by both legislature
and judiciary in harmonizing various
interests. Pound has mentioned 5 jural
postulates as follows: In a civilized
society, men must be able to assume
that…
19. I. Others will not commit intentional aggression
against them. Example: assault, battery, murder.
II. They can use and control things that they have
discovered, produced or legitimately acquired.
Example: agricultural land, patents, copyrights.
III. Those with whom they deal as a member of the
society will act in good faith. Example: keeping
promises, quasi-contract, unjust enrichment
principle.
IV. Others will act with due care and will not cast
unreasonable risk of injury upon others. Example:
Negligence.
V. Others will keep things within their boundary and
should look after those things so that their escape
should not harm others. Example: Strict Liability
20. Later, Pound added 3 new postulates:
VI.A person will have security as a job holder.
Example: labor law, contract of employment
VII.Society will bear the burden of supporting a
person when he becomes aged. Example:
concessions in railway tickets
VIII.The society will bear the risk of unforeseen
misfortunes such as disablement. Example: quota
for physically disabled persons in education.
21. The jural postulates are not absolute. They
are of a changing nature. They may be
revised from time to time. New postulates
may emerge with societal progress. These
assumptions may also vary from one legal
system to another. Pound had formulated
these postulates especially in context of the
American Legal System.
22. Criticism of Pound’s Theory
The division of public and social interests is
criticized on the ground that in fact they are
all social interests.
What do waste and friction mean in relation
to conflict of interest: not explained
With laws, there can be no detailed plans as
the society keeps changing constantly.
23. Criticism of Pound’s Theory
Dias says that interests should not be
merely weighed against each other.
There should be some ideal which
serves as a yardstick to measure the
interests. I do not agree with this view
of Dias. Pound has in fact provided
certain yardsticks in the form of jural
postulates.
24. Criticism of Pound’s Theory
Use of the term ‘engineering’ is criticized on the ground that
it equates society to a factory like mechanism. Society is
dynamic whereas a factory is static. Pound’s emphasis on
‘engineering’ ignores the fact that law evolves and develops
in the society according to social needs and wants. I do not
agree with this criticism because Pound, in holding that
interest cannot be put into water tight compartments and in
keeping the jural postulates flexible, has in fact made the
best efforts to ensure that law meets needs of different
societies at different times. I feel that, with ‘engineering’,
Pound meant rational planning and its execution. Indeed, it
is necessary that laws should be made with such approach.
That is why, there are so many debates before passing of a
Bill, for example, the Surrogacy Bill.
25. My Own Conclusion
The idea of social engineering indicates that Pound saw
development of law as a result of conscious efforts and not
as a spontaneous mechanism, just like Ihering.
Just like Ihering, Pound also classified interests but unlike
Ihering, it seems he did not give primacy to social interest
over individual interest.
I agree with Pound that interests should be placed on the
same plane for the purpose of balancing, otherwise it would
be like comparing apples to oranges.
He has listed out different interest and has pointed out how
they should be secured and how they should be balanced.
