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Classification of Institutions of Law
as per Roscoe Pound:
Roscoe Pound used ‘social engineering’ as a
metaphor. According to him, law is an instrument of social engineering, for
balancing competing individual, public and social interests within the society.
In doing so, Pound argued that the tools of rules, principles, conceptions and
standards must be employed. Pound maintains that one cannot balance an
individual interest against a social interest. He classifies the institutions
of the law as follows.
1) There are, first, rules, which are precepts
attaching definite consequences to definite factual situations.
2) Secondly, there are principles, which are
authoritative points of departure for legal reasoning in cases not covered by
rules.
3) Thirdly, there are conceptions, which are
categories to which types or classes of transactions and situations can be
referred and on the basis of which a set of rules, principles or standards
becomes applicable.
4) Fourthly, there are doctrines, which are the
union of rules, principles and conceptions with regard to particular situations
or types of cases in logically independent schemes so that reasoning may
proceed on the basis of the scheme and its logical implications.
5) Finally, there are standards prescribing the
limits of permissible conduct, which are to be applied according to the
circumstances of each case.
Pound assumes that ‘Recognition’ has many
gradations, which makes it necessary to specify in what sense an interest is
recognised as such. It is not interests as such, but the yardsticks with
reference to which they are measured that matter. Whether the proprietary right
of a slave-owner is to be upheld or not depends upon whether sanctity of
property or sanctity of the person is adopted as the ideal. The choice of an
ideal, or even a choice between competing ideals, is a matter of decision, not
of balancing.
The ‘weight’ to be attached to an interest will
vary according to the ideal that is used. The point is that the whole idea of
balancing is subordinate to the ideal that is in view. The march of society is
marked by changes in its ideals and standards for measuring interests.
In any case, all questions of interests and ideals
should be considered in the context of particular issues as and when they come
up for decision. It is for the judge to translate the activity involved in the
case before him in terms of an interest and to select the ideal with reference
to which the competing interests are to be measured.
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