Classification of Institutions of Law as per Roscoe Pound: 5

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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.