ROSCOE POUND: 8

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ROSCOE POUND

Roscoe Pound was a dean in Harvard Law School – is known to have been the most influential proponent of the American Sociological jurisprudence. He essentially saw law as a social institution created and designed to satisfy human (individual and social) wants. He agonized over the fact that traditional scholarship focused almost exclusively on the law in the textbooks to the detriment of the law in action. Law in action refers to the law that actually reflects the current behaviour of the people. In other words, he was of the view that the society should be the focal point of law and legal development, that the social mass must be able to influence the law that regulates their behaviour. This approach has the potential to, in the long run, eliminate unjust laws. Essential features of the legal order were the securing and protection of various (often competing) interests in the society. He dwelt much on interests. Pound is considered to be the American leader in the field of sociological jurisprudence.

His main thesis is that the task of law is "social engineering." By social engineering pound means a balance between the competing interest in the society. His legal philosophy is free from all dogmas. He takes a middle way avoiding all exaggerations. He speaks of values but says that they are relative. He emphasises 'engineering' but does not forget the task of maintaining of balance. His approach is experimental. Pound's theory stands on a practical and firm ground and it has inspired great practical field-work. His emphasis on studying the actual working of legal rules in the society, the importance of social research for good saw making and pointing out the great constructive function which the law is to perform are very valuable contributions to jurisprudence. He points out the responsibility of the lawyer, the judge and the jurist and gives a comprehensive picture of the scope and field of the subject. Pound's influence on modern legal thought is great and the study of the subject is being undertaken under the light of his theory.

Criticism or Demerits of Theory of Social Engineering by Roscoe Pound: 7

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Criticism or Demerits of Theory of Social Engineering by Roscoe Pound:

Critics of Roscoe Pound argue that it is difficult to see how the balancing of interests will produce a cohesive society where there are minorities whose interests are irreconcilable with those of the majority. There is a different problem where the substantial proportion of the populace is parochially minded and has little or no sense of nationhood.

However, against the backdrop of the foregoing, Pound failed to tell us if the interests he identified are exhaustive. Moreover, he has not been able to convince us about how conflicts generated by the variety of interests can be resolved. Although he indicated that this can be done by weighing and balancing, he failed to elaborate. When you have to weigh, then certain interests must give way. Although he expected the minimum of interests to be trampled upon, it is still the case that certain interests would be sacrificed. If he adopted the utilitarian theory, then it means minority rights would have a raw deal.

Again, note that ‘civilization’ featured in his analysis of conflict resolution. But this should not imply that those considered to be uncivilised cannot resolve conflicts. Note that if mediation is a yardstick for measuring the level of civilisation, then those said to be uncivilised have been erroneously labelled. This is because in these ‘uncivilised’ societies, conflicts are mediated and controlled by institutional mechanisms.

Demerits of social engineering:

i) Law suffers from rigidity.

ii) It may not change to social needs by changing itself. Thus, it lags behind social changes.

iii) Law is becoming more complex. To meet competing interests more laws are continuously passed often changed and the citizens may not know where they stand.

Thus, even though, the social engineering theory had marked an era of change in modern jurisprudence, it is worth while repeating that Pound seems to have devoted too little attention in developing a mechanism of evaluation for rights. It is submitted by his critics that it would have been preferable had he enlarged on the criteria of evaluating interests instead of developing particular interests.

The above analysis has referred to individual rights, but, when we look to the interests of the individuals in society as a whole, their rights and their conflicting social interests, we find law playing the role of “social engineering”. This aims at maximum fulfilment of the interests of the community and of its members and also to promote the smooth running of the machinery or the society. The architect of this is Roscoe Pound.

Law should be just, but more than that it should be uniform definite certain, known and permanent. This enables a person, to predict what he may get from the courts. Impartiality is the objective of law; publicly declared principles protect the administration of justice. People in Society need not be at the mercy of others. Hence the saying “rule of law is always preferable to rule of men”. Law assures stability and security of social order.

New Interests and Jural Postulates by Roscoe Pound: 6

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New Interests and Jural Postulates by Roscoe Pound:

The recognition of a new interest is a matter of policy. Interests need only be considered as and when they arise in disputes; the matter that is of importance is the way in which they are viewed and evaluated by the particular judge. As society progresses, Pound noted that ‘new interests’ will emerge or evolve. Notice that international human rights law has witnessed the evolution of new generational human rights in addition to the traditional first and second generational rights. Recognition of such new interests would be realised subsequent to their being tested by reference to ‘jural postulates’ of a civilised society. Those postulates embody societal values. Such reference would enable legislators to consider possible modification of values through legislative reforms.

In broad sense they are categorised in three groups.

Jural Postulate-I – In civilized society men must be able to assume that other will commit no intentional aggressions upon them.

Jural Postulate-II - In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labour, and what they have acquired under the existing social and economic orderly.

Jural Postulate-III - In civilized society men must be able to assume-that those with whom they deal in the general intercourse of society will act in good faith.

According to Pound, pursuant to the postulates, the citizens in a civilised society are entitled to assume:

(a) That others will commit no intentional aggression upon them;

(b) That they may control for beneficial purposes what they have discovered, created or acquired;

(c) That promises will be carried out in good faith and that unreasonable and unjust enrichment will be prevented as far as possible;

(d) That persons engaged in a course of conduct will act with due care so as not to create unreasonable risk of injury to others;

(e) That citizens shall be entitled to assume that the burdens incident to social life shall be borne by society; and

(f) That, as a minimum matter, ‘a standard human life’ shall be assured to every citizen.

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.

Interests as per Roscoe Pound - 4

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Interests as per Roscoe Pound

Roscoe Pound defined interest as: a demand or expectation which human beings either individually or in groups, or associations or relations, seek to satisfy, of which, therefore, the adjustment of human relations and ordering of human behaviour through the force of a politically organized society must take account. Note that legal protection of interest is usually expressed by conferring the status of a legal right on it. He identified and classified interests into three groups – individual interests, public interests, and social interests. Pound says that interests are the chief subject-matter of law. The main public interest according to him is the interest of the state as a juristic person and secondly interest of the state as the guardian of social interest. These interests are protected by law.

Individual Interests. Individual interests are ‘demands or claims or desires involved in or regarded from the standpoint of the individual life.’ They concern:

1) Personality. This includes interests in (a) the physical person, (b) freedom of will, (c) honour and reputation, (d) privacy, and (e) belief and opinion.

2) Domestic relations. It is important to distinguish between the interest of individuals in domestic relationships and that of society in such institutions as family and marriage. Individual interests include those of (a) parents, (b) children, (c) husbands, and (d) wives.

3) Interest of substance. This includes interests of (a) property, (b) freedom of industry and contract, (c) promised advantages, (d) advantageous relations with others, (e) freedom of association, and (f) continuity of employment.

Public Interests. Public interests are ‘demands or desires involved in or looked at from the viewpoint of life in a politically organised society, asserted in title of political life.’ These are claims or demands or desires asserted by individuals in title of a politically organised society which are mainly of two types:

1) Interests of the state as a juristic person. These, include (a) the integrity, freedom of action and honour of the state’s personality, and (b) claims of the politically organised society as a corporation to property acquired and held for corporate purposes.

2) Interests of the state as guardian of social interests. This concept is explained in the next major category.

Social Interests. Social interests are those ‘wider demands or desires involved in or looked at from the standpoint of social life in civilised society and asserted in title of social life.’ Such social interests enumerated by Pound are many. These are claims or demands or desires, even some of the foregoing in other aspects, thought of in terms of social life and generalised as claims of the social group and include:

1) Social interest in the general security- This is the claim of the civilised society to be secured against those forms of action and courses of conduct which threaten its existence which relate to (a) general safety, (b) general health, (c) peace and order, (d) security of acquisitions, and (e) security of transactions.

2) Social interest in the security of social institutions. This is the claim of the civilised society that its fundamental institutions be secured from factors which threaten their existence or impair their efficient functioning and comprises of (a) domestic institutions, (b) religious institutions, (c) political institutions, and (d) economic institutions.

3) Social interest in general morals. This is for civilised society to be secured against factors offensive to the moral sentiments of it and conveys a variety of laws, for example, those dealing with prostitution, drunkenness and gambling.

4) Social interest in the conservation of social resources. This is the claim of the civilised society that the goods of existence shall not be wasted and covers (a) conservation of natural resources, and (b) conservation of human resources.

5) Social interest in general progress- This is the claim of the civilised society that the goods of existence shall not be wasted; which has three aspects;

a) Economic progress, which covers (i) freedom of use and sale of property, (ii) free trade, (iii) free industry, and (iv) encouragement of invention by the grant of patents.

b) Political progress, which covers (i) free speech, and (ii) free associations; and

c) cultural progress, which covers (i) free science, (ii) free letters, (iii) free arts, (iv) promotion of education and learning, and (v) aesthetics.

6) Social interest in individual life. This is the claim or of the civilised society that each individual be able to live a human life therein according to the standards of the society and involves (a) self-assertion, (b) opportunity, and (c) conditions of life.

With this array of interests in a society, it is only a matter of course that contention, conflicts and controversies will arise. According to Pound law is really about reconciling, harmonising, or compromising these conflicting interests either through securing them directly and immediately or through securing certain individual interests so as to give effect to the greatest number of interests, or to the interests that weigh most in our civilisation with the least sacrifice of other interests. All he appeared to be saying is if all the interests cannot be enforced then most of the interests should be enforced. Alternatively, certain interests must be prioritized over others and enforced with minimal collateral damage to other non-priority interests. Pound was of the opinion that the concern of the law is to satisfy as many interests as possible and to resolve any conflicts amongst the categories of interests he had identified.

Sociological jurisprudence according to Pound: 3

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Sociological jurisprudence according to Pound:

Sociological jurisprudence, according to Pound, should ensure that the making, interpretation and application of laws take account of social facts. Towards achieving this end there should be;

a. A factual study of the social effects of legal administration,

b. Social investigations as preliminaries to legislation,

c. A constant study of the means for making laws more effective, which involves,

d. The study, both psychological and philosophical, of the judicial method,

e. A sociological study of legal history,

f. Allowance for the possibility of a just and reasonable solution of individual cases,

g. A ministry of justice in English-speaking countries, and

h. The achievement of the purposes of the various laws.

So in order to achieve the purposes of the legal order, in the words of Pound, there has to be;

a. A recognition of certain interests, individual, public and social,

b. A definition of the limits within which such interests will be legally recognised and given effect to, and

c. The securing of those interests within the limits as defined.

When determining the scope and subject-matter of the system, the following five things require to be done;

i. Preparation of an inventory of interests, classifying them;

ii. Selection of the interests which should be legally recognised;

iii. Demarcation of the limits of securing the interests so selected;

iv. Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited; and

v. Evolution of the principles of valuation of the interests.

The Task of Law is Social Engineering : 2

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The Task of Law is Social Engineering - Pound’s main thesis is that the task of law is ‘social engineering’, He says - “For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants, the claims and demands involved in the existence of civilized society - by giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims given effect to by an ordering of human conduct through politically organized Society.

By ‘social engineering’ Pound means a balance between the competing interests in society. He entrusts the jurist with a commission. He lays down a method which a jurist should follow for ‘social engineering’. He should ‘study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective, sociological study in preparation of law-making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases.’ He himself enumerates the various interests which are to be protected by the law. He classifies them under three heads - Private interests, Public interest and Social interests. Pound linked the task of the lawyer to engineering, an analogy which he used repeatedly. The aim of social engineering is to build as efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with the minimum of friction and waste. It involves the balancing of competing interests.