Law As An Instrument Of Social Engineering

Dr SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY

Lucknow

Faculty of Law

PROJECT ON
“Law As An Instrument Of Social Engineering”
Course of
“JURISPRUDENCE”

SUBMITTED BY: -
Kamleshwar dubey

B.COM LL.B(HONS) 2nd semester

Academic Session: (2019-20)

Under the Supervision of

Dr. SHEFALI YADAV
Professor
Faculty of law
DSMNRU, LUCKNOW

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Dr. Shefali Yadav, who gave me the
golden opportunity to do this wonderful topic Law as an instrument of social engineering,
which also helped me in doing a lot of Research and I came to know about so many new things I
am really thankful to him.

KAMLESHWAR DUBEY

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 Law As An Instrument Of Social Engineering

TABLE OF CONTENTS

1. INTRODUCTION………………………………….,…………………….3

2. CONCEPT OF SOCIAL ENGINEERING………………………….…4

3. JURAL POSTULATES OF ROSCOE POUND………………………5

4. LAW AS AN INSTRUMENT OF SOCIAL CHANGE…………….6-8

5. EMPHASIS ON FUNCTIONAL ASPECT OF LAW……………….. 9

6. CRITICISM OF ROSCOE POUND THEORY……………………..10

7. COCLUSION………………………………………………………….11

8. BIBLIOGRAPHY……………………………………………………..12

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INTRODUCTION:

Roscoe Pound was born in Lincoln Nearaska (New Jersey) in 1870. He was an auxiliary Judge
of the Supreme Court of Nebraska for a short period of two years during 1901-1903. Therefore,
he worked as a Dean of the Law school at Nebraska. He also served as a Professor of
Jurisprudence in Harward University and was the Dean of its law school. He was a prolific writer
and his major works include the spirit of Common Law (1921); An Introduction to the
philosophy of Law (1922); Interpretation of Legal History (1923); Law and Morals (1926); The
Formative era of the American Law (1938); Contemporary Justice Theory (1940);
Administrative Law- Its Growth, Procedure and Significance (1942); Social Control Through
Law (1942); The Task of Law (1944), etc.

Roscoe Pound was one of the most leading and influential jurists who developed the American
sociological Jurisprudence in a systematic form. He emphasised on inter-disciplinary approach to
law so that rule of law and life may flow together. He treated law as a means for affecting social
control and did not believe in the abstract or mechanical application of law. He is considered to
be the father of American sociological jurisprudence for his unique contribution to the science of
law and legal philosophy. The emergence of realist school in America is later years owes its
origin to pound's functional jurisprudence and theory of interest.

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

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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.
According to Pound, “Law is social engineering which means a balance between the competing
interests in society,” in which applied science are used for resolving individual and social problems.
For the purpose of maintaining the legal framework and its proper functioning, certain interest
needs to be considered like individual interests, public and social interests, a definition of limits
within which such interests will be recognized and given effect to, and the securing of those
interest within the limits as defined.
Pound compared the task of the lawyer to the engineers. He stated that the aim of social
engineering is to build a structure of society as possible which requires the fulfillment or
satisfaction of maximum wants with minimum usage of resources. It involves the balancing of
competing interests. He called this theory as the theory of “Social Engineering.”
Here Pound has used two words i.e. “Social” which means group of individual forming a society.
The second word is “Engineering” which means applied science carried out by engineers to
produce finished products, based on continuous experimentation and experience to get the
finished product by means of an instrument or device.
2. Public Interest
Public interests according to him are the claims or demands or desires looked at from the stand
point life in politically organized society.
3.Social Interest
Social interests are the claim or demands or desires thought of in terms of social life and
generalized as claims of social groups.

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Jural Postulates Of Roscoe Pound::

In order to evaluate the conflicting interests in due order of priority, pound suggested that
every society has certain basic assumption upon which its ordering rests, through for most of the
time they may be implicit rather than expressly formulated. This assumption may be called
as jural postulates of the legal system of that society.
Pound has mentioned five jural postulates as follows-
1. Jural postulate I– in civilised society men must be able to assume that others will
commit no intentional aggression upon them.
2. Jural postulate II– 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 created by their own
labour and what they have acquired under the existing social and economic order.
3. Jural postulate III – In a civilized 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-
4. Will make good reasonable expectations which their promises or other conduct
reasonably create;
5. Will carry out their undertaking according to the expectations which the moral sentiment
of the community attaches thereto.
6. 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.
7. Jural postulate IV– in civilized 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.
8. Jural postulate V- in a civilized 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.
Pounds confessed that these jural postulates are not absolute but they have relative value. These
are ideal standards which law should pursue in society they are of a changing nature and new

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postulates may emerge if the changes in society so warrant. Thus the jural postulates by Roscoe
pound provide guidelines for civilized life and they also seek to strike a balance between reality
and idealism as also power and social accountability of men in the community.
“A desire for an ideal relation among men which we call justice leads to thinking in terms of an
achieved ideal relation rather than of means of achieving it.”
With the rise of the modern Science, there came to exist among jurists an apparent unanimity of
belief in the possibility of applying “the scientific method” to the study of law and legal
philosophy. Under the influence of the Comtian positivist sociology, there developed a
sociological jurisprudence having in view the understanding of the role of law in society and the
application of the social sciences to the study of law in action and the rendering of law more
effective as an instrument of social control for the ends which law is designed to accomplish in
the civilization of the time and place.

Law As An Instrument Of Social Change::

The purpose and function of is to social regulated social interests, arbitrate conflicting claims and
ensure security of persons and property of people. Protection of people against criminals by
Imposition of appropriate sentence is an essential attribute of an orderly society which can
possible by an effective criminal law and procedure. The law should subserve social purpose
and for that it is imperative that the judges administrative law must be endowed with legislator’s
wisdom, historian's insight for searching truth, prophet's vision and capasity to respond to the
needs of the time. Law must serve an instrument of ordering the life of the people by "expanding
their rights and freedoms and dismantling of the inequitable social order."

If the law is to play its role of serving the needs of the society, it must reflect the ideas and
ideologies of that society. As the society changes, law also can't remain immutable. It must,
therefore, march in tune with the changing norms of the society. Supporting this view, Mr.
Justice P.N. Bhagwati (as he then was ) in National Textile Workers Union v. P. Ramkrishnan 1
observed:

1
AIR 1986 SC 234

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"Law can't stand still. It must change the changing social concepts and values. If the bark that
protects the tree fails to grow and expand along with the tree or if it is a living tree, it will shed
that bark and grow a living bark for itself. Similarly, ic the law fails to respond to the needs of
the changing society, than either it will stifle the growth of the society and choke its progress, or
if the society vigorous enough, it will cast away the law, which stands in its growth. The law
must, therefore, constantly be on the move adapting itself, to the fast changing society and not
lag behind."

The law regulates the social interests, arbitrates conflicting claims and seeks to ensure security of
person and their property. Protection of society and stamping out criminal proclivity must be the
object of law. The law must be subserve social purpose by seeking the establishment of an
egalitarian social order so as to ensure socio-economic and political justice as envisagedby the
constitution of India.

Law as an instrument of social change, has to keep pece with the changing norms of society. It
must respond to the needs of the present and resilience to cope with the demands of the future.
Judges resort to purpose nterpretation of law to articulate the felt necessities of the time.

The laws to be adopted in a changing society must reflect the aspirations of the people and
should manifest equity, fair play and justice. The government in power should rise above the
nexus of vested interests and nepotism by avoiding arbitrary and capricious action and laws. The
law must operate to subserveto common good.

The functioning of in law a changing society may be illustrated by the socio-economic legislative
enactments during the post Indian independence era. Justifying constitutional amendments
relating to right to property, the Chief Justice of India Chandrachud (as he then was) rightly
commented that constitutional precedents cannot be premitted to be transferred into weapons of
defeating the hopes and aspiration of millions of people....... These hopes and aspirations
representing the will of the people can only become articulate through the voice of their elected
representative. If they fail the people, the nation must face the death and destruction.

Besides the constitution which provides an enduring paramount law setting out the power of the
state and rights and duties of the citizens to serve the society, some social enactments of
considerable importance have been enacted over the years. Some of them are - Dowry

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Prohibition Act, PNDT Act (prohibiting pre-Natal Determination of sex Act); Juvenile Justice
(Care and protection of children) Act, 2000, Prevention of Women's Domestic Viokence Act,
2005, Bounded Labour Abolition Act, 1976, Civil Rivhts Act, 1955, The Right to Information
Act, 2005, Protection of Human Rights Act, 1993, Information Technology Act, 2000, etc. have
been enacted to meet the changing needs of the society. The cyber law also needs to be started to
meet the challenges of up-coming cyber crimes which not only affect individuals but have an
adverse effect on the national economy asa whole.

Emphasis on Functional Aspect of Law::

Roscoe Pound added new dimensions to sociological School of jurisprudence. His approach to
sociological jurisprudence was different in the sense that he attempted to cover social-life as a
whole and unlike his predecessor who considered law as the main subject of study and Society is
merely subsidiary to it. Pound laid greater stress on functional aspect of law. This is why his
approach has been termed as 'functional School' by some writers. He defined as containing "the
rules principles, conceptions and Standards of conduct and decisions as also the the precpects
and doctrines of professional rules of art". He thus considers Law as a means of a developed
technique and treats jurisprudence as a 'social engineering'. The end of according to him, is to
satisfy a maximum of wants with a minimum of friction or confrontation.

Elaborating the functional aspect of law, Rosco Pound stated that the function of is to reconcile
the conflicting interests of individuals in the community and harmonise their inter-relations. He
termed this as 'social engineering'.

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Criticism of Roscoe Pound Theory::

(a) Pound is criticized for suggesting application of social "engineering" using much more a
scientific word to solve social conflicts. It suggests mechanical application of the theory on
social desires and interest which keep on changing from time to time.

(b) Pound defined interest as, "claims or wants or desires which men assert de-facto about which
the law must do something if organised society is to endure." Pound considers interest defector
inspires legislation, but this is not true always sometime law appears first and then interest
enshrined protected therein is demanded.

(c) Pounds Theory, ask for maximum gain with least friction and least waste "maximum satisfac-
tion of human wants or expectations with-least sacrifice." Somewhere this theory gives prime
importance to interest of public at large over individual's interest and if interpreted strictly then
may result in eliminating individual freedom.

(d) Roscoe Pound advocates 'judicial activism' and expects that judge should themselves evolve
yardstick for valuating interest involved in the case. Thus judiciary is given very wide power and
sometime may not be able to find out effective yardstick because of its own constraints. By the
available pleadings only one can not do "social engineering" unless some framework is done by
legislators.

(e) Pound says one of the prime duties of the law is "to make a selection of socially most
valuable objectives and to secure them." Value of interest may change from to time; it's hard to
prepare any strict and efficient preference chart of various interests.

(f) According to pound judges should see basic assumptions of society on which it rest, to frame
preference chart of various interest. Now these days basic assumption of society cannot provide
golden scale in itself. Basic assumption of society at large may be declared valueless if adjusted
otherwise by intellectual mind, on various other considerations, which may not always be widely
appreciated.

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CONCLUSION

Society and human life always go together. From childhood to till old age, every human being
expects that his or her desire is to be fulfilled for which their arise conflict of desires or claims
which comes under the term “interest”. It is impossible to fulfill all the desires of a human being.
So to fulfill the desires of maximum human being for the welfare of society the concept of Social
Engineering was emerged and which was coined by Roscoe Pound. Social engineering is based
on the theory that laws are created to shape the society and regulate the people’s behavior. It is
an attempt to control the human conduct through the help of Law. According to Pound, “Law is
social engineering which means a balance between the competing interests in society,” in which
applied science are used for resolving individual and social problems.

For the purpose of maintaining the legal framework and its proper functioning, certain interest
needs to be considered like individual interests, public and social interests, a definition of limits
within which such interests will be recognized and given effect to, and the securing of those
interest within the limits as defined. The objective of sociological source of jurisprudence is to
resolve immediate problems of society with such tools – legal or extra legal & techniques which
promote harmony and balance of Interest of society. Further the Jurist of sociological schooling
rejected the analytical and historical jurisprudence as Jurisprudence of concepts & considers law
as an Instrument of serving the head of Individuals in society. It is to stated that however
divergent the view of various sociological jurists may appear, they have common point that the
law must be studied in relation to society. This view has a great impact on modern legal thought.
But it should not be taken to mean that other methods have completely ceased to exist. Still there
are advocates of natural law though with a ‘variable content’, there are Catholic jurists who plead
for maintaining a close relationship between law and morals, but these approaches are in many
respects, basically different from earlier approaches of this type on the subject and are influenced
by sociological approach.

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BIBLIOGRAPHY

Books

Paranjape, N.V Jurisprudence and Legal Theory central law Agency 2018 (10th ed.)

Mahajan V.D Jurisprudence and legal theory lexis Nexis 2018 (7th ed.)

Singh Avtar, Introduction of Jurisprudence Central law publication 2018 (12th ed.)

Websites

https://www.legalservicesindia.com

https://www.quora.com

htttps:// academia.com

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