Roscoe Pound social engineering theory PDF

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roscoe pound social engineering theory. It also describe the social engineering in the view of roscoe pound. Should be read further to understand this concept thoroughly...

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ROSCOE POUND (1870-1968) Roscoe Pound's immense contribution to sociological jurisprudence can be summed up in the following propositions: Pragmatism: Roscoe Pound was influenced strongly by the pragmatism of William James (1842-1910) who had taught that the essence of good is simply to satisfy demand. Pound thought of law as a social institution created to satisfy human social wants by giving effect to as much as we may with the least sacrifice, friction and waste by the ordering of human conduct through politically organised society. Social Engineering: As human interests invariably clash, the task of law is to reconcile conflicting interests with the least friction and waste. This is referred to as social engineering i.e. an ordering of human relations through the law. This process of social control involves scrutinising of interests rejection or recognition of interests their classification and comparison their reconciliation through social control a dynamic programme of legal action

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For example, divorce legislation signifies the conflict between the social interest in the security of the institution of marriage and the individual interest of the unhappy spouse. Need for reform in the law: As the essence of the legal order was the securing and protection of a variety of interests, this necessitated the modification of traditional and inherited legal codes to existing social conditions. Law is a means, not an end. Role of courts: Courts are the supreme agents of the law in effecting social control. One of the tasks of jurisprudence is therefore, to study realistically the way in which the courts function and what their relation to the "living law" is. Judges play a leading role in resolving the conflict between existing interests. Pound refers to this as the "process of evaluation". Process of evaluation: There are three main ways in which the process of evaluation is effected by the courts (though unconsciously sometimes). (a)

Follow precedent. The court may simply follow the patterns of the past. The disadvantage of this is that the court may, in age of social change, unduly tie itself to a bygone ideology (e.g. the US courts' insistence on laissez faire during the Great Depression).

(b)

The court may attempt, with such aid as contemporary jurists and sociologists may afford to grasp the fundamental legal postulates of its own age and evaluate disputes in this light. Pound framed his jural postulates to aid the courts in this endeavour. He realised that the basic need is to have some system of empirically derived values by which competing interests can be compared and evaluated and a decision reached as to which is to prevail.

(C)

The court may simply trust its own instincts and judge on a rough and ready, hit and miss basis relying on its understanding of the needs of society, This is the commonest approach. It emphasises the needs for courts to be in close contact with the living law.

Judicial decisions are ideological: At the heart of Pound's theory of interests is the notion that legal decisions are inevitably based on values or on ideology. The positivist insistence that law is separate from morals and policy; and that legal decisions can be arrived at by technical exercise of legal logic is false. Pound feels that it is better to face up to the truth and recognise what the operative values of one's society are and to develop the law accordingly Theory of interests: An interest is "a demand or desire or expectation which human beings, either individually or in groups or associations or relations seek to satisfy". For facilitating the task of social engineering, Pound classified the various interests that are to be protected by the law A. Private Interests   

The individual's interest of personality The individual's interest in domestic relations The individual's interests of substance

B. Public Interests  Interests in the preservation of the state  interest of the state as guardian of social interests C. Social Interests Interest in the preservation of peace & order and in the maintenance of general security Interest in preserving social institutions like marriage and religion Interest in preserving general morals by counteracting corruption, discouraging gambling and invalidating transactions repugnant to current morality  Conserving social resources Interest in general progress that is to be achieved by freedom of education , freedom of speech and expression, freedom of property, trade and commerce.  Interest in the promotion of human personality

The jural postulates: The public, private and social interests inevitably conflict. For facilitating the evaluation and balancing of these interests, Pound provided seven jural postulates of civilised society. In 1919 he summarised these postulates as follows: Every individual in civilised society must be able to take it for granted that: ( i) he can appropriate for his own use what he has created by his own labour, and what he has acquired under the existing economic order (ii) that others will not commit any intentional aggression upon him (iii) that others will act with due care and will not cast upon him an unreasonable risk of injury (iv) that the people with whom he deals with will carry out their undertakings and act in good faith In 1942, 1954 and 1959, Pound added to this list three more postulates, namely (v) that he will have security as a job-holder (vi) that society will bear the burden of supporting him when he becomes aged (vii) that society as a whole will bear the risk of unforeseen misfortune such as disablement. The jural postulates are to be applied both by the legislators and by the judges for evaluating and balancing the various interests and harmonising them. Justice Cardozo observes: "If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge from experience and study and reflection; in brief from life itself. " This may be regarded as the sum and substance of the line of approach of the sociological school of jurisprudence. The interests are not static: Pound acknowledged that the list of interests and jural postulates needs periodic revision because new situations and new developments are constantly creating new needs, new claims and new tensions e.g. the contemporary demand for protection of intellectual property rights, the right to information and a right to privacy.

The interests are not universal: Pound accepted that every society has its own basic assumptions, its own basic jural postulates, its own fundamental purposes. His enumeration was meant to be valid only for Western, liberal, capitalist societies His methodology: Pound claimed that he looked to the actual assertions of claims as manifested in legal proceedings and legislative proposals. The interests he wrote about were the operative values that in fact existed in Western society. He insisted that the interests were not compiled a priori. They were descriptions of actual existing claims. Ought was derived from this. Social reality guided social ideals.

1 Pound's Contributions

Need for reconciliation: His emphasis on the existence of varied and conflicting interests, and the need for reconciliation between them has enduring value. Consensus model: His consensual model of society is an attractive alternative to the conflict model of Marxist philosophy. Values: He emphasised the importance in law of values held by social groups. Sociological jurisprudence a bridge between natural law and positivism: The formulation of the jural postulates builds a bridge between the "philosophy of natural law" and the "science of law" by positivism His sociological studies have made possible a synthesis between the transcendental idealism of the past and positivism by restoring ideals in a way that could satisfy and give life to the exacting positivist discipline. The functional approach heralded the revival of natural law in the 20 th century. Without enumerating a theory of higher law, Pound's sociological jurisprudence provided us with empirically derived ideals with which to evaluate law. Integrated law with life: He helped to bring home the vital connection between law, its administration and the life of society. Judge at the heart of the legal cosmos: He emphasised the creative and responsible role of lawyers, especially judges, in reconciling the perpetual conflict of interests in society For him jurisprudence was not so much a social science but a technology. Brandeis Brief method: His emphasis that before legislation is framed, social investigations should take place and after the legislation has been enforced, the social effects of legal administration and its actual functioning must be studied, may have led to the "Brandeis Brief' method in legal argument. Ministry of Justice: He put forward a suggestion to create a new Ministry of Justice fully equipped and staffed to accumulate factual information and statistics and to consider refoini of the law in the light of its actual working. The system of Law Commissions in many countries is a move in the direction of Pound's thought. Case law approach: His approach may have led to the adoption of the case law method in US law schools. Criticisms Facts or ideals? Though Pound contends otherwise, the interests he formulated were not mere descriptions. An element of idealism was inherent in them. From a long list of competing claims, pound chose seven jural postulates. Their choice was clearly normative and ideological. Their existence is questionable in tetras of fact, though they are common-sense inferences symbolising the social purposes of the community.

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Conflicts unresolved: Pound's massive effort at categorising the interests may not prove very useful. Value to be allotted to each interest or to each jural postulate cannot be predetermined. The challenge of reconciling has to be taken up in the context of particular issues as and when these come up for decision. A pre-determined list of interests may not always be useful in the administration of justice. The problem of conflicting interests, therefor remains unresolved.. Lundstedt: The Scandinavian realist Lundstedt asserts that legal rights are nothing but "metaphysical entities". They cannot exist independently of the law. Pound on the other hand felt interests exist independent of the law for claims of human beings to have things and do things have existed wherever a number of human beings have come into contact' . Overlapping categories: The differences between the various categories of interests is not at all clear. Balancing or prioritisation ? The term "balancing is perhaps not appropriate. The choice between competing interests is often a matter of preferential decision, not of balancing. Are the jural postulates ethical? The evaluation of the conflicts inherent in human society in accordance with some accepted or established ideology (the jural postulates) still leaves open the question how far the ideology itself is capable of obtaining some kind of ethical justification.

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TUTORIAL QUESTIONS ON ROSCOE POUND Instructions to students Please refer to email handouts: 1) Sociology of Law and Sociological Jurisprudence and 2) Roscoe Pound. Please email on the i-learning platform, an answer of 30-50 words to the questions below. Each student/team is assigned one question compulsorily. But you may comment on other questions as well. You must send the answer during the class hour and I will try to comment on your answer. In addition, you may ask any further questions or make comments on the topic being covered.

Q1. What is pragmatism? Is it similar to functionalism and consequentialism? Q2. In the context of Roscoe Pound, what is meant by social engineering? Q3. Is social engineering meant to achieve a balancing of conflicting interests or to ensure the primacy of some interests over others? Q4. Do you agree that in every sphere of our social existence, there is a clash of conflicting interests? Q5. Should law try to resolve these conflicts? Can law succeed in this effort? Q6. How would Roscoe Pound view the ideological aims of: (a) Marxism (b) “Islamic state” in Malaya and “Hindutva in India” (c) “ketuanan Melayu”, and (d) the laissez-faire philosophy of liberal capitalism? Q7. In Malaya, were Articles 89 and 153 of the Federal Constitution meant to bring about social engineering through affirmative action or were they meant to ensure racial and religious dominance by the majority community? Q8. Are the jural postulates of society eternal or open to change? Are they universal or relative?...