Law as a means of Social Engineering: Roscoe Pound
Submitted To:
Submitted By:
Prof. Nancy
Raja Sanmanbir Singh
UILS
Roll No. 89/12
Panjab University
2
nd
Semester
B.A. LL.B. (Hon.)
Acknowledgement
I would like to take this opportunity to thank everyone who put forth their time and efforts to help me to develop this project. This project took a long time from the collection of information to the compilation. This project could not have been made without the guidance of our Jurisprudence teacher, Prof. Nancy, who not only served as our supervisor, worked extra time for our convenience but also encouraged us to work hard. Thank you Ma’am.
Raja Sanmanbir Singh
Index Name
Page No.
1. Roscoe Pound
1
2. Social Engineering : The Concept
2
3. Theory of Social Engineering
4
4. Criticism
8
5. Conclusion
10
Roscoe Pound
Dean Roscoe Pound emerged at a period in USA when his fore runners especially Holmes in ‘The Path of Law’ and Cardozo in ‘The Nature of Judicial Process’ had chartered a definite course for legal philosophy oriented to social good and social justice. The two great judges of the Supreme Court had brilliantly demonstrated the thesis that law to be correctly understood should be studied in the context of history, sociology, economics, psychology as well as the overall objective traits, traditions and needs of each society. The rule of law and life out to flow together parallel and not in opposite direction. Some of his celebrated works are the ‘Spirit of the Common Law) (1921), ‘An Introduction to the Philosophy of Law’ (1922), ‘Interpretations of Legal History’ (1923), ‘Law and Morals’ (1926), ‘The formative Era of the American Law’ (1938), ‘Contemporary Juristic Theory’ (1940), ‘Administrative Law – Its Growth, Procedure and Significance’ (1942), ‘Social Control through Law’ (1942), ‘The Task of Law’ (1944) etc.
1
1
Dhyani, S.N., “Fundamentals of Jurisprudence”, Central Law Agency, Allahabad, p -329,330
Social Engineering : The Concept
Roscoe Pound was one of the greatest leaders of sociological school of jurisprudence. He introduced the Doctrine of Social Engineering which aims at building and efficient structure of society which would result in the satisfaction of maximum of wants with the minimum of friction and waste. It involved the rebalancing of competing interests. Roscoe Pound defined the legal order by reference to the end of law : “The legal order may well be though of as a task or as a great series of tasks of social engineering; as an elimination of friction and precluding of waste, so far as possible, in the satisfaction of infinite human desires out of a relatively finite store of the material goods of existence.” ‘Interests’, ‘desires’, ‘claim’, ‘wants’ - for the most parts of words are used interchangeably in Pound’s writings, although ‘interests’ sometimes serves as the 2
inclusive term. Like the engineer, the jurist constructs, creates – but not out of thin air. Like the engineer he must work with resistive materials, without which, however he could not build at all; and always there are adverse conditions imposed upon his activity. Friction and waste, represented by a sacrifice of interests which might be secured, must be overcome. The task is one for human activity; though requiring methodical care, there is nevertheless nothing static about it. Technique and materials may be improved. Jurist must work on, must
2
Makkar, Karandeep, “Law as a tool for Social Engineering”, Manupatra, p3
create and ever greater, ever more serviceable structure. The engineering analogy stands out as graphic and timely. He propounds that task of jurists is to find out those factors which would help in the development of culture conducive to the maximization of satisfaction of wants. These factors are principles as Jural Postulates.
3
Ibid, P-4
3
Theory of Social Engineering
Roscoe Pound conceived law as a ‘social engineering’, its main task being to accelerate the process of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the society. Thus, Courts, Legislators, Administrators, and Jurists must work with a plan and make an effort to maintain a balance between the competing interests in society. He enumerated the various interests which the law should seek to protect and classified them into three broad categories namely :1. Private Interests 2. Public Interests 3. Social Interests
Private Interests a.) Individual’s interests of personality, namely interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by laws of crimes, torts, contracts, constitutional law etc. b.) The interests of domestic relations of persons such as husband and wife, parent and children, marital life as also the individual’s private interests.
c.) The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc. are also included in the category of private interests.
4
Public Interests The main public interests according to Pound are – a.) Interests in the preservation of the State as such. b.) State as a guardian of social interests such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, sea shores, regulation of public employment and so on.
Social Interests The social interests which need legal protection are – a.) Interests in the preservation of peace, general health, security of transactions etc. b.) Preserving social institutions such as religion, political and economic institutions etc. c.) Interests preserving general morals by prohibiting transactions which are against morality such as prostitution, drunkenness, gambling etc.
4
Paranjape, N.V., “Studies in Jurisprudence and Legal Theory”, Central Law Agency, Allahabad, P -72
d.) Interests in conservation of social resources eg. Natural resources, reformation of delinquents, protection of economically weaker section of the society. e.) Social interests in general progress including economic, political and cultural progress. For example, freedom of trade and commerce, freedom of speech and expression, encouragement to arts and promotion of higher education etc. f.) Interests which promote human personality by enabling a person to live political, physical, cultural, social and economic life to suit his taste and improve his personality.
5
When he conceives law as a social engineering, he is reading law and its administration as a part of much wider process of social ordering, functioning through courts and administrative agencies with the aid of legal precepts serving as partial guides. The task of social ordering presupposes a sincere effort to avoid or atleast ameliorate, collisions resulting from conflict of interests. All the varied activities of legal order or the efforts of the courts, administrators, legislatures, jurists are to be directed toward the adjustment of relations the compromise of conflicting claims, the securing of interest by determining of boundaries wherein each maybe asserted with a minimum of friction and the finding of means whereby greater number of claims may be satisfied with a sacrifice of fewer. If law is viewed as social engineering, its end is conceived to be satisfaction of all
5
Ibid, P-72,73
demands and securing of all interests with a minimum of conflict so that the means of satisfaction have the widest possible distribution. It may be noted that Pound’s techniques of Social Engineering are – a.) Study of actual social effects of legal institutions and legal doctrines b.) Study of the means of making the legal rules effective c.) Sociological study for law making d.) Study of judicial method e.) A sociological history f.) The importance of reasonable and just solutions of individual cases
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g.) Of a ministry of justice to make efforts more effective toward the purpose of legal order. The above facts and considerations should be taken into account by the jurists of sociological jurisprudence to make law purposive, need based and goal oriented. In essence the sociological jurists look at law functionally. They ask how the methods of Jurisprudence work. What consequences have flowed from these methods in action? How far they have enabled the law to achieve its end or on the other hand interfered with its achieving them? Pound is pragmatic, functional and experimental advocating social ordering and control through law, ‘to promote and maintain ideal relations among mankind.’ Law, therefore as a science of social engineering is more concerned with actual operation of law rather than its abstract content. Such an approach considers law as an authoritative guide to decision making. It stresses on social purposes which
6
Supra-note 1, P-330,331
law serves rather than sanction. Just as engineers minimize friction and waste when dealing with machines similarly jurists ought to enable to resolve conflicts in society in the interests of harmony, reform and progress. This methodology is described by Pound as Social Engineering.
7
Ibid, P-331
7
Criticism Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the actual working of law in society, his theory suffers from certain drawbacks. 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 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 media and wants for which law may either have approbation or disapprobation. Dr. Allen has criticized the utilitarian in Pound’s theory as it confines the interpretation of ‘wants and desire’ to only material welfare of individual’s life completely ignoring the personal freedoms which are equally important for a happy social living. It has also been argued against Pound’s theory of interests that it has no significance in a pluralistic society where there are linguistic, ethnic, and religious minorities having diverse interests. Harmonizing their divergent interest is by no means an easy task to be performed through law and courts. Dr. Friedmann has expressed doubts about the value of classification of interests and remarked that there are changing conceptions as had been accepted by Pound himself. Not only that, the respective value of these interests and their evaluation also depends on changing political and legal system. For example, a
liberal progressive government would lay greater emphasis on freedom of individual rights and of established institution but a totalitarian state would suppress the interests of individual in favour of the interest of the state. Be that as it may, there is no doubt that through his legal theory Pound has attempted to bring law into closer relation with other social sciences and tried to strike a balance between freedom of individual and social control through the instrumentality of law. His greatest contribution to jurisprudence is that he is practical in approach and concentrate of law in society.
8
Ibid, P-75
8
Conclusion
Law as a tool for social engineering comes into play only when there is unequal distribution of wealth in society or when social justice is denied to certain sections of the people, so to bring equilibrium. Law tries to remove inequalities and the to benefit whole community rather than a few individuals.
Bibliography
1. Dhyani, S.N., “Fundamentals of Jurisprudence”, Central Law Agency, Allahabad 2. Makkar, Karandeep, “Law as a tool for Social Engineering”, Manupatra 3. Paranjape, N.V., “Studies in Jurisprudence and Legal Theory”, Central Law Agency, Allahabad
