Roscoe Pound: social engineering and the theory of interests

Dean Roscoe Pound is considered the American leader in the field of sociological jurisprudence, and was a great academician of the Harvard Law School.

Take seriously the sociological premise that law exists for society, and a practical question follows at once: society's claims conflict, there are more of them than any legal order can satisfy, and something must decide which are secured and at whose cost. Pound's whole theory is an answer to that question.

The end of law. The end of law should be to satisfy a maximum of wants with a minimum of friction.

The definition of law. Law contains the rules, principles, conceptions and standards of conduct and decision, and also the precepts and doctrines of professional rules of art.

Law as social engineering. Pound considered law as a means of a developed technique, and treated jurisprudence as social engineering. Four propositions make up the theory:

1. The functional aspect. Pound concentrated on what law does, which is why some writers called his the functional school. Law is an ordering of conduct so as to make the goods of existence, and the means of satisfying claims, go round as far as possible with the least friction and waste.
2. The task of law is social engineering. He was content to think of law as a social institution to satisfy social wants — the claims and demands involved in the existence of civilised society — satisfying as much of the whole body of human wants as may be with the least sacrifice.
3. Social engineering means a balance between competing interests in society.
4. Interests are the main subject-matter of law. The task of law is the satisfaction of human wants and desires; it is the duty of law to make a valuation of interests — that is, to select the socially most valuable objectives and secure them.

The method Pound prescribes for the jurist, which is the part most answers omit and which distinguishes his theory from a slogan. The jurist should study:

• the actual social effects of legal institutions and legal doctrines;
• the means of making legal rules effective;
• sociological study in preparation for law-making;
• judicial method;
• a sociological legal history; and
• the importance of reasonable and just solutions of individual cases.

This is the table the examiner wants.

| Head | What it covers | Where it is safeguarded | |---|---|---| | Private interests | Physical integrity, reputation, freedom of volition, freedom of conscience. | The law of crimes and of contract. | | Public interests | Preservation of the State; the State as guardian of social interests — administration of trusts, charitable endowments, protection of the natural environment, territorial waters and sea shores, regulation of public employment. | | | Social interests | Preservation of peace and general health; preservation of social institutions, religious, political and economic; general morals; promotion of human personality, and of cultural and economic life. | |

Pound tackled the problem of interests as one of balancing individual and social interests, and it is through the instrumentality of law that they are balanced. Justice Cardozo remarked that Pound had emphasised the need for judicial awareness of social values and interests.

The Indian illustration. How law and society act and react on each other in India may be judged from the enactments passed after Independence — among them the Special Marriage Act 1954, the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956, the Dowry Prohibition Act 1961, the Bonded Labour System (Abolition) Act 1976, the Child Marriage Restraint (Amendment) Act 1978, the Consumer Protection Act 1986, the Commission of Sati (Prevention) Act 1987 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Naming three or four of these turns a theoretical answer into an Indian one, which is what the paper asks for.

1. Engineering is not a happy word. It suggests a mechanical application of principles to social needs; Pound used the word metaphorically, to indicate the problems law has to face.
2. The classification of interests is doubted. Friedmann doubted the value of the classification and of such classification generally.
3. The defence, which should be given with the criticism: such classifications greatly help to make the legislature, and the teacher and practitioner of law, conscious of the principles and values involved in a particular issue, and are an important aid in linking principle and practice. Ihering and Bentham are the names invoked for that defence.

Pound's contribution. Social engineering stands on practical and firm ground. It 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.

• The set-piece — Explain Pound's theory of social engineering. End of law, the four propositions, the three heads of interests with examples, the Indian enactments, the criticisms and the defence.
• The trap in the classification. Public interests and social interests are not the same head. Public interests concern the State — as an entity and as guardian; social interests concern society's own institutions and morals. Losing that line loses the question.
• The comparison. Duguit says law exists because of interdependence; Pound says law works by weighing interests. Bentham's greatest happiness is the ancestor of both.