P age |1

ALIGARH MUSLIM
UNVIERSITY
MALAPPURAM CENTRE

2020-21/5TH SEM

PROJECT ON
LEGAL THEORY

Topic: Rusco Pound's theory of Balancing of Interest.

Submitted by: Abdul Haseeb N

18BALLB75
GK7949
Submitted to: Mr. Abu Shahid
Asst. Professor
Dept. of Law
AMU MC
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Contents
Introduction ................................................................................................................ .......................

Background of Pounds Theory of Balancing of Interest ...............................................................

Theory of Balancing of Interest .......................................................................................................

Legal position of the Balancing of interest in the India ................................................................

Conclusion................................................................................................................... .........................

Bibliography .......................................................................................................................................
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Introduction

Sociological school may be one that covers some of the biggest variety of different
approaches, but ultimately, Dean Roscoe Pound is the name most associated with this type of
jurisprudence. Pound identified that sociological jurisprudence tended to identify itself with
the positivist type of jurisprudence at the time of the development of the theory, insisting on a
singularly mechanical interpretative approach. Considered as the father of American
Sociological Jurisprudence for his s unique contribution to the science of law and legal
philosophy, he has contributed a "theory of interests" which he believes to be the most
effective instrument yet devised for the scientific development and application of law. His
“Readings on the History and System of the Common Law”, “The Spirit of Common Law,”
“Law and Morals”, “Interpretation of Legal history” etc. are the most original outstanding
works in the field of legal philosophy in the United States.1
He considered law as a means of affecting social control and did not believe in the
abstract or mechanical application of law. In Pound’s words: “…in the past century, we
studied the law from within. The jurists of today are studying it from without”.2 Pound
concluded in his studies that his sociological jurisprudence would concentrate more on how
law develops due to the connection between law and society than on the analysis and
interpretation of statutes and cases. One need not be distracted by the wealth of information
to be found in more than half a century's worth of academic work to understand his actual
theory. In fact, Pound's real contribution to the sociological jurisprudence school lies in his
discussion on "legal interests" and "jural postulates."

A brief consideration of Pound's theory of balancing of interests in the context of sociological

jurisprudence is the subject of this project.

1 Prof. B. Hydervali, Prof. Ranbir Singh and Ors. , Sociological Perceptions of Law, p. 9, as available on
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/01._advanced__jurisprudence/15._s ociological_p
erceptions_of_law/et/8125_et_et.pdf as visited on 26 Nov 2020 11:15 AM

2R. Pound (1921) The Spirit of the Common Law, Boston: Beacon Press p. 212 as cited in Elise Nalbandian,
Sociological Jurisprudence: Roscoe Pound’s Discussion on Legal Interests and Jural Postulates, 5 Mizan L. Rev.
141 (2011), p. 142 as available on https://heinonline.org/hol-cgi-
bin/get_pdf.cgi?handle=hein.journals/mizanlr5&section =8 as visited on 26 Nov 2020 11:00 AM
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Background of Pounds Theory of Balancing of

Interest
It was Ihering who explained the concept of Jurisprudence of interests as opposed to
the jurisprudence of conceptions that later made law without content rigid, logical and purely
formal. In order to safeguard and satisfy the needs or demands of the community, the theory
of jurisprudence of interests is based on the functional study of man and society. Jeremy
Bentham also had tested every institution or law on the utility matrix before him. A
supplementary theory of interests to that of Inhering was further developed, by pound who in
turn further borrowed this idea from ‘William James’, and ‘John Dewey’. 3
However, it was Kohler’s approach, in fact, inspired Roscoe Pound the most for
propounding the theory of social engineering and the balancing of social interests. In the
effort to accomplish the program of sociological jurisprudence, Pound believes that the first
problem confronting society is the establishment of his theory of interests as a functioning
part of the legal order.4 The development of this theory occurred in two steps: the
formulation of the jural postulates, in 1919 5 , which consist of five generalized propositions
about the law, followed by the announcement of a classification or scheme of interests,
famously known as the theory of balancing of interest, two years later. Pound claims that this
is his most precious contribution to jurisprudence. While acknowledging certain valid
criticisms, he has vigorously defended it as the most feasible means for sound "social
engineering." yet devised.

Theory of Balancing of Interest

Roscoe pound conceived law as a 'social engineering' with the primary task of accelerating
the process of social ordering by making every possible effort to prevent individual conflicts
of interest in society. He argued that courts, legislators, administrators and jurists must work
with a plan and make an effort to maintain a balance between the competing interests in
society. Pound classified the interests protected by law into three main categories in order to
fulfil his agenda. of social engineering, namely:

3 Ms. Jyoti Ramakant Navelkar, Roscoe Pounds on Sociological Jurisprudence, p.7 as available on
http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Jyoti.pdf
4 James A. Gardner, The Sociological Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1 (1961) p. 19 as

available at: https://digitalcommons.law.villanova.edu/vlr/vol7/iss1/1 as visited on 26 Nov 2020

5 An Introduction to American Law 36-37, 40, 43 (1919) as cited in James A. Gardner, The Sociological

Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1 (1961) p. 19 as available at:
https://digitalcommons.law.villanova.edu/vlr/vol7/iss1/1 as visited on 26 Nov 2020
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• Individual Interest
• Public Interest
• Social interest.

1. Private Interests / Individual Interest:

According to Pound Individual interests are “claims or demands or desires involved
immediately in the individual life and asserted in title of that life” 6 In this group of interest,
he includes the following things
[A] Personality: Interest of personality consist of interests in the physical person,
freedom of will, honour and reputation privacy and belief and opinion
[2] Domestic relations: The interest of individuals in domestic relationships must be
distinguished from that of society in institutions such as family and marriage. Individual
interests include those of parents and children, husbands and wives and marital interests
[3] Interest of substance: This includes interests of property, succession and testamentary
disposition, freedom of industry and contract, promised advantages, advantageous relations
with others, freedom of association and continuity of employment.

2. Public Interests:
Pound define public interest as “claims or demands or desires involved in life in
a politically organised society and are asserted in title of that organisation. They are
commonly treated as the claims of a politically organised society thought of as a legal
entity”7 Roscoe pound divided the public interest mainly in to two. They are as follows;

[1] Interests of the state of juristic person: This includes following;

i. The integrity, honour and freedom of action of the state’s personality

ii. Politically organised society's claims on property acquired and held for corporate
purposes as a corporation.
[2] Interests of the state as guardian of social interest: namely superintendence and
administration of trusts, charitable endowments, protection of natural environment, territorial
waters, sea-shores, regulation of public employment and so on to make use of thing which are
open to public use, etc. this interest seems to overlap with social interests.8

6R. Pound (1943) “A Survey of Social Interests” 57 Harvard Law Review, 99. 1 -2 as cited in Elise Nalbandian,
Sociological Jurisprudence: Roscoe Pound’s Discussion on Legal Interests and Jural Postulates, 5 Mizan L. Rev.
141 (2011), p. 142-143 as available on https://heinonline.org/hol-cgi-
bin/get_pdf.cgi?handle=hein.journals/mizanlr5&section=8 as visited on 26 Nov 2020

7 ibid. p.143
8 Supra. Note.3 p. 10
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3. Social Interests:
Social Interests were originally included by Pound as a distinct and vital set of
interests.9He described them as “claims or demands or desires involved in the social life in
civilized society and asserted in title of that life. It is not uncommon to treat them as claims of
the social group as such”.10 Social interest includes the following;
[1] Social interests in the general security: This includes the following;

i. General safety

ii. General health

iii. Peace and order

iv. Security of acquisitions,

v. Security of transaction.
[2] Social interests in the security of social institutions: This includes Domestic,
Religious, Political and Economic institutions
E.g.: Divorce legislation - conflict between the social interests in the security of the
marriage institution and the individual interests of the unhappy spouses.
[3] Social interest in general morals: This covers a variety of laws, of example, those
dealing with prostitution, drunkenness and gambling. 11
[4] Social interest in the conservation of social resources: This covers the conservation
of natural resources and Protection and training of dependents and defectives i.e.,
conservation of human resources
[5] Social interest in general progress: this has three aspects.
i. Economic Progress – This cover freedom of use and sale of property, free trade,
free industry and the promotion of patent-granting inventions

ii. Political progress – This cover free association and free speech
iii. Cultural progress – This cover free science, free letters, encouragements of arts
and letters, encouragements of higher education and learning and aesthetics. 12

9Elise Nalbandian, Sociological Jurisprudence: Roscoe Pound’s Discussion on Legal Interests and Jural
Postulates, 5 Mizan L. Rev. 141 (2011), p.143 as available on https://heinonline.org/hol-cgi-
bin/get_pdf.cgi?handle=hein.journals/mizanlr5&section=8 as visited on 26 Nov 2020

10 supra Note.6 p.143

11 Supra. Note.1 p.12
12 Supra. Note.3 p. 11
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[6] Social interest in individual life: It involves self-assertion, opportunity, and

conditions of life

The distinction is made between the three types of interests so that they can be balanced,
which is the aim of sociological jurisprudence, against each other. Pound, however, did not
really emphasize these interests as being completely separate from each other. While the
overlap between interests is also apparent, there is a degree of differentiation because they are
ultimately three viewpoints of a single set of interests that coexist in the context of unity and
variation.
From the above arguments, the next question that arises is whether an issue which falls within
private or individual interest may also be viewed from public or social perspectives. 13 This
question arises because since the individual belongs to the politically organized society and
social and public interests overlap, it may be convincing to argue that the political and social
interests can easily be brought down to the individual level.. However, it is difficult to
assume that from the perspective of public or social interests, every individual interest is
relevant.

Legal position of the Balancing of interest in the

India
The Case of Animal and Environment Legal Defense Fund v. Union of India And Ors. 14 is
one of the most discussed case in the area environmental protection and it is a perfect
example for how the Indian courts have adapted the balancing of interest. In this case the
Hon’ble Supreme Court applied the principles of Economic sustainability and environment
protection. In this case the supreme court applied sociological approaches to the welfare of
tribal people whose livelihood is fishing. If villagers are not allowed to fish, their livelihoods
will be destroyed. If they are allowed, there will be a threat to the environment. Thus, the
Supreme Court ordered the forest authorities concerned and the Boards to take the necessary
steps to protect the environment and to observe the villagers and give them appropriate
instructions. The SC also ordered to educate those tribal people on the importance of
environment and SC forbid villagers entering in to other areas except to the lakes on which
they are given fishing rights. Not only in this case, but also in every environmental case, the
sociological approach of their lordship is crystal clear.
While looking on the statutes, Sec 3(d) of Patents Act, 1970 15 can be seen as a perfect
example conflicting of interest and how the Indian judiciary stand up to decide the problem.

13 I. McLeod (2007) Legal Theory, 4th Ed. Palgrave Macmillan Law Masters, NY, P. 153f as cited in Elise
Nalbandian, Sociological Jurisprudence: Roscoe Pound’s Discussion on Legal Interests and Jural Postulates, 5
Mizan L. Rev. 141 (2011), p. 144 as available on https://heinonline.org/hol-cgi-
bin/get_pdf.cgi?handle=hein.journals/mizanlr5&section=8 as visited on 26 Nov 2020
14 (1997) 3 SCC 549
15 inserted through Patents (Amendment) Act, 2005
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It was in the case of Novartis AG & Another v. Union of India & Others 16 this revised
Section became the bone of contention. In this case the petitioners challenged the
constitutionality of the Section and ‘therapeutic efficacy’ as a standard to determine the
‘enhanced efficacy’ requirement. Examining the conflict of interests, there is a tug of war
between individual, public and social rights in Section 3(d). Where the issue of derivative
forms of chemical compounds exists, it is not possible to negate an element of similarity in
properties between the derived (or modified) composition and the original composition. The
main criticism of Roscoe Pound lies in the absence of guidelines that allow any conflict of
interests to determine the balancing metaphor. This criticism also extends itself to Section
3(d). In this case, the Madras High Court's decision, deliberating on the constitutionality of
the section, declared "therapeutic efficacy" as a balancing metaphor.

Conclusion

The lawyers, judges and writers of the twentieth century were influenced by Pound's legal
theory. Since law has rightly been considered far more than a bundle of abstract norms, it is
seen more as a method of balancing interests to eliminate conflicts and to make the greatest
profit with the minimum of conflicts.
However, it is interesting to note that with Pound, sociological jurisprudence neither begins
nor ends. Roscoe Pound died in 1964 and modern jurists further developed or varied Pound's
fundamental classification of interests and further developed the sociological approach after
him.
The main criticism of Roscoe Pound lies in the absence of guidelines that allow any conflict
of interests to determine the balancing metaphor

Bibliography
Journals & Articles:

16 Novartis AG & Ors. v Union of India & Others, (2007) 4 MLJ 1153.
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1. Elise Nalbandian, Sociological Jurisprudence: Roscoe Pound’s Discussion on Legal

Interests and Jural Postulates, 5 Mizan L. Rev. 141 (2011),
2. An Introduction to American Law 36-37, 40, 43 (1919) as cited in James A. Gardner,
The Sociological Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1 (1961)
3. Prof. B. Hydervali, Prof. Ranbir Singh and Ors. , Sociological Perceptions of Law, as
available on
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/01._advanced__jurispr
udence/15._sociological_perceptions_of_law/et/8125_et_et.pdf
4. Divya Subramaniam, Resurrecting Roscoe Pound in Section 3(d): The Glivec
Governance, Indian Journal of Intellectual Property Law as available on
https://www.nalsar.ac.in/IJIPL/Files/Archives/Volume%202/2.pdf
5. Ms. Jyoti Ramakant Navelkar, Roscoe Pounds on Sociological Jurisprudence, as
available on http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Jyoti.pdf
Case Laws:
1. Animal and Environment Legal Defense Fund v. Union of India And Ors. (1997) 3 SCC
549
2. Novartis AG & Ors. v Union of India & Others, (2007) 4 MLJ 1153.

Webliography:
1. http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/01._advanced__jurispr
udence/15._sociological_perceptions_of_law/et/8125_et_et.pdf
2. https://www.nalsar.ac.in/IJIPL/Files/Archives/Volume%202/2.pdf