Sociology is the study of society, human behaviour, and social changes and jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society. According to Guvitch the meeting point of sociology and law is sociology of law. Law and social institutions are not concerned with individuals but with association of group of people. Law is an instrument of social change. Thus, according to this school, law is an instrument of social control, backed by the authority of the state. In this article, let us understand Pound Theory of Social Engineering.

Sociological Jurisprudence:

The idea of Sociological School is to establish a relation between the Law and society. This school laid more emphasis on the legal perspective of every problem and every change that take place in society. Law is a social phenomenon and law has some direct or indirect relation to society. Sociological jurisprudence is not, strictly speaking, a legal philosophy. Rather, it is a method which attempts to use the various social sciences to study the role of the law as a living force in society and seeks to control this force for the social betterment.

About Roscoe Pound (1870 to 1964):

Dean Roscoe Pound was one of the greatest American jurists who is considered to be father of modern American Sociological Jurisprudence. He is the father of sociological jurisprudence. He introduced the doctrine of “Social Engineering” which aims at building an efficient structure of society which would result in the satisfaction of maximum of wants with the minimum of friction and waste. He compared lawyers with the Engineers. Engineers are required to use their engineering skill to manufacture new products. Similarly, social engineers are required to build that type of structure in the society which provides maximum happiness and minimum friction.

He made unique contribution to the science of law and legal philosophy. His major works include

• The Spirit of Common Law
• An Introduction to Philosophy of law
• Interpretation of Legal History
• Law and Morals
• The Formative Era of American Law
• Contemporary Juristic Theory
• Social Control Through Law
• The Task of Law

Pound Theory of Social Engineering:

Dean Roscoe Pound added new dimensions to Sociological School of Jurisprudence. He tried to cover social life as a whole. He concentrated more on functional aspect of law and therefore his approach has been termed as functional School by some writer.

Nature of Law:

He defined law as containing “the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrine of professional rules of art.” According to him the aim of the law is to satisfy a maximum wants with minimum of friction or confrontation. His main thesis is that the task of the law is “Social Engineering”. According to him law is a social institution and its aim is to satisfy social wants, the claims, the demands with least sacrifice.

Roscoe Pound stated that the function of law is to reconcile the conflicting interests of individuals in the community and harmonise their inter-relations. e.g., Constitutional law, Criminal Laws, Social Legislation. He termed this as “Social Engineering”. It means a balance between the competing and conflicting interests in the society.

Social Engineering:

Pound stated that the task of the law is of Social Engineering. According to him Courts, legislatures, administrators and jurists must work with a plan and make an effort to maintain a balance between a competing interest in the society. Here Pound has used two words i.e., “Social” means group of individuals forming a society. The second word is “Engineering” which means applied science carried out by engineers to produce finished products which are necessary for the society and which fulfil all their needs. By combining these two words he tries to say about engineers and what they do.

He observed: “Law is the body of knowledge and experience with the aid of which a large part of social engineering is carried on. It is more than the body of rules. It has conceptions and standards for conduct and for the decision, but it has also doctrines and modes of professional thought and professional rules of art by which the precepts for conduct and decision are applied and given effect. Like an engineer’s formulae, they represent experience, scientific formulations of experience and logical development of the formulations, but also inventive skill in conceiving new devices and formulating their requirements by means of a developed technique.”

According to Pound, like engineers, the lawyer should apply law in a court room so that the desires of the people are fulfilled. Therefore, he calls law as Social Engineering and says that the aim of Social Engineering is to build as efficient a structure of society as possible which requires the satisfaction of wants with the minimum of friction and waste. It means Law should work for balancing of competing interest within the society for the greatest benefit.

Interests to be Protected by Law:

Pound mentioned that everybody has its own individual interest and considered it supreme over all other interest. The objective of the law is to create a balance between the interests of the people. He enumerated the various interests, which the law should seek to protect. According to Pound, there are three categories of legal interests, namely private interests, public interests and social interests.

Private Interests:

Private interests are “claims or demands or desires immediately involved in personal life and are vocal in the title of that life.” Individual interests are emphasized for personal life titles. Private interests can be generalized within the purview of private law.

• Individual Interest: Individual’s interests of personality, physical integrity, reputation, freedom of volition (choice) and freedom of conscience. These rights are safeguarded by laws of crimes, torts, contracts, Constitutional law.
• Interest of Domestic Relations: The interests of domestic relations of persons such as husband and wife, parent and children, martial life as also the individual’s private interests.
• Interest of Substance: The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc. are also included in the category of private interests.

Public Interests:

The public interest is “assertiveness in a politically organized society and the claims or demands or desires embodied in life in the title of that organization. They are generally regarded as the claims of a politically organized society thought of as a legal entity.” Political interests can be generalized within the purview of public law including criminal laws, although there is clearly an overlap with personal interests.

The main public interests according to Pound are –

• Interests in the preservation of the State as such; and
• State as a guardian of social interests such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, seashores, regulation of public employment and so on

For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but on the other side, State put some restriction on this right. And when the conflict arises between Individual right and State’s restriction, then the law comes to play its part. And solve the conflict between the interests.

Social Interests:

Social interests have been regularly associated with the concept of security. Thus, an important part of protection is for society to enjoy an organized legal system within a political organization, which may also fall in the public interest because a political organization requires the existence of some legal control that can be only provided by the legal system.

The social interests which need legal protection are –

• Social interest in general security: Interests in the preservation of peace, general health, security of transactions etc.
• Social interest in the security of the social institution: Preserving social institutions such as religion, political and economic institutions etc.
• Social interest in general moral:  Interests preserving general morals by prohibiting transactions, which are against morality, such as prostitution, drunkenness, gambling etc.
• Social interest in conservation of social resources: Interests in conservation of social resources e.g. natural resources, reformation of delinquents, and protection of economically weaker sections of the society.
• Social interest in general progress: 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.
• Interests which promote human personality: It can be achieved by enabling a person to live political, physical, cultural, social and economic life to suit his taste and improve his personality.

Pound differentiated the three types of interests, so that they are balanced against each other, which is the aim of sociological jurisprudence. Pound himself has accepted that the interests are overlapping and the classification cannot be placed in a watertight compartment. In a society everybody is motivated by their own interest and wants that preference be given to his or her interest over the other. Conflicts between interests arise because of the competition of the individuals with each other, with the public in order to satisfy human wants. Therefore, it is needed to recognize the interest to which law should take account. For this purpose, a legal system has to:

• Recognize certain interest;
• Define the limits within which such interest is to be legally recognized and given effect to it; and
• Finally, the above interest should be secured.

When determining the scope and subject matter of the system, the following things have to be done:

• Preparation of an inventory of interests, classifying them,
• Selection of the interests which should be legally recognized,
• Demarcation of the limits of securing the interests so selected,
• Consideration of the means whereby laws might secure the interests when those have been acknowledged and delimited, and
• Evolution of the principles of valuation of interests

Example:

Law has given preference to the interest of backward classes through reservation in government jobs, educational institutions, which not only hampers the interest of eligible candidate but also it hampers the interest of the public at large. By this type of law general people cannot tell that this reservation policy which comes under constitutional law is a bad law for them. Sometimes bad law becomes good law. Here Law helps in social engineering by giving special protection to the minority class having individual interests over social interests so that there can be ultimate social progress by bringing the minority class equally to the standard of upper class.

Pound’s Judicial Postulates:

Pound has mentioned five jural postulates as follows:

1. In civilized society men must be able to assume that others will commit no intentional aggression upon them. Thus, in civilised society it is assumed that no one will commit intentional aggression or harm to other. e.g., Assault, battery, wrongful restraint etc. This postulate is a basis of Criminal Laws.
2. In civilised 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 order.  e.g,. agricultural land. Equal pay for equal work, No discrimination, Employment opportunities, Intellectual property rights, No encroachment, etc. This postulate is a basis of Law of Patents.
3. In a civilised society men must be able to assume that those with whom they deal as a member of the society will act in good faith and hence-

Will make good reasonable expectations which their promises or other conduct reasonably create;

Will carry out their undertaking according to the expectations which the moral sentiment of the community attaches thereto.

Will restore specifically or by equivalent what comes to them by mistake, or failure of the pre-suppositions of a transaction, or other unanticipated situation whereby they receive at other’s expense what they could not reasonably have expected to receive under the actual circumstances.

e.g., Defamation, fiduciary relationship between advocate and client, doctor and patient. This postulate is a basis of Law of Contract.

• In civilised society men must be able to assume that those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others. e.g., Negligence. This postulate is a basis of Law of Torts.
• In a civilised society men must be able to assume that others who maintain things or employ agencies, harmless in the sphere of their use but harmful in their normal action elsewhere, and having a natural tendency to cross the boundaries of their proper use will restrain them and keep them within their proper bounds. E.g., Strict liability as in Ryland vs. Fletcher case. This postulate is a basis of Law of Strict Liability.

Pounds confessed that these jural postulates are not absolute but they have relative value. They are of changing nature and new postulate may emerge according to changes in the society.

Criticism to Pound’s Theory of Social Engineering:

Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the actual work of law in society, his theory suffers from some shortcomings. Pound’s theory of social engineering has been criticised on various grounds.

Use of term “Engineering”:

Pound’s theory of social engineering equates society to a factory like a mechanism. Law is a social process rather than the result of applied engineering. It is also not right to equate society with a factory because the former is changing and dynamic in nature while the latter is more or less stable. Again, Pound’s emphasis on engineering ignores the fact that law evolves and develops in society according to social needs and wants that for which law can develop in society according to social needs and for which either in law approval or rejection may occur.

Dr. Allen has criticised the utilitarian in pound’s theory as it confines the interpretation of wants and desires to any material welfare of individual’s life completely ignoring the personal freedoms which are equally important for a happy social living.

No yardstick to measure interests:

Pound has classified the interests into three categories but has not provided any yardstick to measure or evaluate these interests. He does not give an ideal scale of values with reference to interests. Moreover, the Jural postulates of the legal system of the societies are not absolute and are of changing nature, hence, it is difficult to evaluate these interests. Pound himself has admitted that philosophy has failed to provide an ideal scale of values and that the best that jurist can do is to proceed with the task of adapting law to the needs of his generalisation the choice between conflicting ideologies is one for the community at large.

Interests are overlapping:

The classification of social and public interests is misleading because these interests are overlapping. There is no hard or fast rule to fix in which category the interest falls therefore, great jurist Julius Stone has stated that all public interests are social interest.  Pound himself has inserted a certain evaluation by describing the interest in individual life as the most important of all. However, there is a danger of an implicit evaluation in the grading of interests as individual, public or social. What is an individual and what is a social interest is itself a matter of changing political conceptions. Many interests come under different categories.

Danger to individual freedom:

According to Pound theory the task of the law is of Social Engineering, to satisfy maximum needs of maximum numbers with least friction. It is but natural that individual interest has to give a way to social or public interests. Thus, individual interest is always curtailed. It has also been argued against pound’s theory of interests that it has no significance in a pluralistic society where there are linguistic, ethics, and religious minorities having diverse interests. Harmonizing their divergent interests is by no means an easy task to be performed through law and courts.

Importance to Court Judgment:

Pounds theory shifts the centre of gravity in the legal order from legislation to court judgements, but the judiciary has its decisions and therefore cannot really do effective social engineering. Justice can give ad hoc judgements on specific issues coming up before them but they cannot frame a broad plan for restructuring society. Such broad plan can be prepared by legislation only.

Case Laws:

in Vellore Citizen’s Welfare Forum v. Union of India in which Kuldip Singh J. delivered the judgment that “even if the industries are of vital importance for the countries progress as they provide employment but having regard to the pollution caused by them, the principle of “sustainable development” has to be adopted as a balancing concept between ecology and development”. In this case the principles namely “precautionary principle” and the “Polluter Pays” principle emerged.

In Union Carbide Corporation v. Union of India, the Supreme Court laid down the rule of Absolute Liability in which it was held that “where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous activity, then the enterprise involved is strictly and absolutely liable to compensate to all those who are affected by the accident”. In this case regarding the compensation the Court said that the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation has a deterrent effect for future accident.

In Deepa v. S.I of Police It was held that the interest of society should be given paramount consideration over the individual interest of those who are running the show for profit and who are also earning livelihood by performing the cabaret dance in a hotel. It was a situation where the whole public says that the dance was obscene in the eyes of onlookers, which is an offence u/s 294 of IPC 1860.

There are also instances where individual interest has priority over social interest. According to Sec 122 of Evidence Act 1872, marital communication between husband and wife which is an individual interest in domestic relation are privileged. Then Social Interest can be fulfilled by securing privilege communication (matrimonial communication) in which individual interest in connection with domestic relation is first privileged and which in turn secure the social institution of marriages.

Conclusion:

Pound based his theory of Social Engineering on assumptions that protection of interests is the main subject matter of law and it is the duty of the jurist to make an evaluation of this interest, for the satisfaction of human wants to maintain balance between stability and social change. He paid more attention to the functional aspect of law rather than what law ought to be. His approach was experimental. His theory stood on a practical and firm ground and inspired great practical fieldwork. He put emphasis on studying the actual working of legal rules in society. He stressed the importance of social research for good law making. His greatest contribution to jurisprudence is that he is practical in approach and concentrated his attention on the actual functioning of law in the society. Roscoe Pound can rightly be called as the father of sociological jurisprudence in the United States.