JAMIA MILLIA ISLAMIA

FACULTY OF LAW

JURISPRUDENCE PROJECT

ON

CRITICAL ANALYSIS OF ROSCOE POUND’S THEORY

Submitted To- Submitted By-

Mr. Gaurav Gupta Srijana Bahadur

Assistant Professor Student Id: 20187961

Faculty of Law B.A.LL.B (Regular) IVth Sem

ACKNOWLEDGEMENT

I would like to express my heartful gratitude to my Jurisprudence Professor– Mr. Gaurav

Gupta for giving me this golden opportunity to explore on this topic. I would like to thank
him for his able guidance and support in completing of this assignment.

I also want to thank my family for their moral support and constant inspiration and for
providing me with all the facilities required and for sponsoring all the materials and also to
my friends for constant support and cooperation and also to.

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Last but not the least I would like to thank THE ALMIGHTY for showering his choicest
blessings upon us.

THANKS TO ONE AND ALL!

Srijana Bahadur

Student Id: 20187961

B.A .LL.B (Hons) IVth semester

DATE : 18-04-2020

TABLE OF CONTENTS

1. INTRODUCTION……………………………………………………………………..5

2. SOCIOLOGICAL JURISPUDENCE…………………………………………………6

3. POUND’S LEGAL PHILOSOPHY…………………………………………………...7

4. THEORY OF INTEREST…………………………………………………………8-11

5. ROLE OF JUDICIARY…………………………………………………………..11-13

6. CRITICAL REFLECTION ON POUND’S THEORY…………………………..14-15

7. CONCLUSION………………………………………………………………………16

8. BIBLIOGRAPHY……………………………………………………………………17

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INTRODUCTION

Roscoe Pound was born on October 27, 1870. He received his Bachelor’s degree in 1888 and
his master degree in 1889. In 1889 he began the study of law. He was an Auxiliary judge of
the supreme court of Nebraska for a period of two years during 1901 -1903. Thereafter, he
worked as Dean of the Law School at Nebraska. He also served as a professor of
Jurisprudence in Harvard University and was the Dean of its law school. He was a prolific
writer in the field of law. His major works includes-The spirit of the common Law (1921),
An introduction to the Philosophy of Law (1922), Interpretations of legal history (1923), Law
and Morals (1926), The formative era of the American Law (1938), Contemporary juristic
theory(1940), Administrative Law-its Growth , procedure and significance(1942), etc.

Roscoe pound was one of the most leading and influential jurists who developed the
American sociological jurisprudence in a systematic form. He emphasized 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.

Roscoe Pound's theory of sociological jurisprudence, firstly talks of a factual study, secondly
social investigations, thirdly just and reasonable solutions and lastly the achievement of the
purposes of various laws. He appreciated the task of lawyer to that of an engineer to build an
efficient structure of society with the satisfaction of the maximum of wants with a minimum
of friction and waste. It speaks about balancing of conflicting interests wherein the interests
are categorized into individual public and social. The theory gives predominance to social
interests as compared to public and individual interests. Sociological Jurisprudence according
to pound should ensure that the making interpretation and application of laws take account of
social facts.

SOCIOLOGICAL JURISPUDENCE

The Sociological approach to the study of law is the most important characteristic of our age.
Jurists belonging to this school of thought are concerned more with the working of law rather
than its abstract content. Their principal premise is that the law must be studied in action and
not in textbooks. They have been at work upon jurisprudence with reference to the
adjustment of relations and ordering of human conduct which is involved in group life. The

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Sociological School of Jurisprudence is concerned with the study of law in relation to society.
They concentrate on actual social circumstances which give rise to legal institutions and insist
that the legal order is a phase of social control and that it cannot be understood unless taken
in its whole setting among social phenomena.

The main concern of sociological jurists is to study the effect of law and society on each
other. They treat law as an instrument of social progress. The relation between positive law
and ideals of justice also affects the sociology of law.

It would therefore be seen that sociological jurisprudence is a multifaceted approach to

resolve immediate problems of society with tools which may be legal or extra legal and
techniques which promote harmony and balance of interests of society.

POUND’S LEGAL PHILOSOPHY

The primary concern of Roscoe Pound is the effective working of Law i.e. Law in Action.
His attitude is essentially functional. Propounding his legal Philosophy he pointed out that
law is more than a set of abstract norms or a legal order. it is a process of balancing interests
and a means of securing satisfaction of maximum wants with minimum of friction. 1 Pound’s
primary concern therefore was to advance a more unified approach blending the
methodological and normative precepts which is a feature of his work as well as focusing
more on the way law develops in society rather than analysis and interpretation of legal texts.
In Pound’s words: “…in the past century, we studied the law from within. The jurists of
today are studying it from without”.2

Roscoe Pound’s concept of law is of practical importance which inspires judges, legislators
and jurists to mould and adjust law to the needs and to interests of the community. Since the
society is always changing law should be continually adapted and readapted to the needs of
individuals and society. He, therefore, stresses the need of paramount co-ordination and
cooperation between the legislators, administrators, judges and jurists to work in unison
towards the realization and effective implementation of law for securing social harmony and
social justice to the general public with the a minimum of waste or friction and maximum of
material satisfaction of wants, needs and interest.

1 Pound, Interpretation Of Legal History, p 156.

2 R. Pound (1921) The Spirit of the Common Law, Boston: Beacon Press p. 212.

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According to Pound, “Law is social engineering which means a balance between the
competing interests in society”3 , in which applied science are used for resolving individual
and social problems. Social engineering is based on the notion that Laws are used as a means
to shape society and regulate people’s behaviour. It is an attempt to control the human
conduct through the help of Law.

THEORY OF INTERESTS

Ihering expounded the concept of Jurisprudence of interests quite opposed to jurisprudence of

conceptions the later had made law rigid, logical and purely formal without content. The
theory of jurisprudence of interests is based on functional study of man, and society to secure
and satisfy needs or demands of the community. Earlier to him Jeremy Bentham had tested
every institution or law on the matrix of utility. 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’. Pound like Bentham tested the justification of law with
reference to protection and enforcement of social and individual claims. In other words,
pound creates the test: Does it secure the greatest number of interest with least possible
sacrifice of other interests? In Pounds words ‘An interest is a demand or desire which human
beings either individually or in groups seek to satisfy, of which, therefore, the ordering of
human relations in civilized society must take account’.

The development of this theory occurred in two steps: the formulation of the jural postulates,
in 1919, followed by the announcement of a classification or scheme of interests two years
later. Pound claims this to be his most valuable contribution to jurisprudence. While
recognizing certain valid criticisms, he has defended it vigorously as the most workable
means yet devised for sound "social engineering."

POUNDS THEORY OF SOCIAL ENGINEERING

Roscoe pound conceived law as a ‘Social Engineering’ its main task being to accelerates 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 enumerates various interests which the law should seek to protect and classified them into
three broad categories:
3 C.N.Shanker Rao, Sociology Primary Principles, 3rd ed 2000, Published by S. Chand & Company Ltd New
Delhi, pg. 155.

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 1. Individual interests
2. Public interests
3. Social interests

Individual Interests

Individual interests are “claims or demands or desires involved immediately in the individual
life and asserted in title of that life”.4 Individual interests are asserted for the titles of
individual life. What this logically leads to is the fact that as these interests by and large only
involve the individual, the interests tend to fall into the scope of private law although in the
actual balancing the interests this is a generalization that may not be always true.

Public Interests

Public Interests are “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” 5.These types of interests are
asserted for or in the title of politically organised society. Political interests can be
generalised as falling within the scope of (public law which includes) criminal law although
there is clearly an overlap with individual interests.

Social Interests

Social Interests were originally included by Pound as a distinct and vital set of interests
whereby they were described as “claims or demands or desires involved in the social life in
civilised society and asserted in title of that life. It is not uncommon to treat them as claims of
the social group as such”.6 These interests have been regularly tied to the concept of security.
As such, one vital part of security is for society to enjoy an organised legal system within the
political organisation which could arguably also fall within the public interests as political
organisation also requires the existence of some form of legal control which can only be
provided by the legal system. This issue does rather obscure the difference between public
and social interests and Pound himself seems to point out this issue.6

4 R. Pound (1943) “A Survey of Social Interests” 57 Harvard Law Review, 99. 1-2.
5
Ibid. 6
Ibid.
6 R. Pound (1959) Jurisprudence, St Paul, Minnesota: West Publishing Company.

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It is found that there is overlapping of interest between Public and Social Interest because
both are same. Pound is silent about the overlapping of interest and discussed the problem of
interests in terms of balancing of Individual Interest and Social Interest 7. He has classified the
interest into three categories but talks about the balancing of only Individual and Social
Interest. It is also found that interests are the subjects on whom law has to apply social
engineering.

How to evaluate the conflicting interests in due order to priority? What are the guidelines on
the basis of which social engineering should be carried out?

Pound’s answer by saying that every society is based on basic assumptions which help in
ordering of interest8. One interest is of more value than that of other and the object of law
should be to satisfy the interest which is in the benefit of the maximum people. Thus these
assumptions are identified as jural postulates which are based on hypothesis 9. According to
Pound, jural postulates are not the absolute one and they keep on changing as the needs of the
situation, place and time demands. In 1919, Pound summarised the postulates which every
individual in civilised society must be able to take it for granted that10:

i. Others will not commit any intentional aggressions upon him. E.g. Assault, battery,
wrongful restraint etc. ii. Others will act with due care and will not cast upon him an
unreasonable risk of injury. E.g. Negligence
iii. He can appropriate what he has created by his own labour and what he has
acquired under existing economic order for his own use. E.g. agricultural land and
usufruct as property.
iv. The people with whom he deals with in the general intercourse of society will act
in good faith. E.g. Defamation
v. He must keep the things within his boundary and should look after those things so
that their escape should not harm others. E.g. Ryland vs. Fletcher case

In 1942, Pound added three new postulates in the list which are11

7 S.R.Mayneni, Jurisprudence (Legal Theory),2nd ed reprint 2007,S,P. Gogia (Asia Law House)Hyd.pg 514.
8 Roscoe Pound,Jurisprudence,Vol- III,2000,The Law Book Exchange Ltd.pg 25 to 28
9 B.N.Mani Tripathy, An Introduction To Jurisprudence Legal Theory,15th ed 2004,Aallahabad Law Agency,pg
49
10 Id at 8.
11 Ibid.

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 i. A person will have security as a job holder. E.g. ruled by labour law, law of
contract etc.
ii. Society will bear the burden of supporting him when he becomes aged. E.g. 1/3rd
concession in railway ticket, ceiling of income tax range is more.
iii. And the society as a whole will bear the risk of unforeseen misfortunes such as
disablement. E.g. reservation quota for physically disabled person in education,
travel etc.

The jural postulates are to be applied both by the legislators and judiciary for evaluating and
balancing the various interests and harmonizing them. Somehow Pound has told about the
procedure of evaluating interests. But he has not said anything about the interest which will
be given more priority over other.

Whether balance between Individual and Social Interest can be achieved or not?

According to Pound, balance of competing interest means satisfaction of maximum interests

with less friction and waste. It means to reconcile and adjust the social and individual interest.
But in practice two interests cannot be balanced. It is also found that Pound has not given
much detailed attention to the way one conflicting interest is to be compared with another.
Balance can only be done only when two things are able to be compared. If two interests are
to be balanced, that presupposes some scale or yardstick to measure and two things should be
able for comparison. Balance means to upgrade one thing at par with other so that neither of
the two things loses anything.

As per Pound’s theory, there is a clause relating to the protection of natural environment
coming under social interest. There is no doubt that every society wants a healthy
environment and the factory producing nuisances and pollution needs to be closed. It is in the
interest of whole public for which factory is closed and the maximum satisfaction of people is
achieved. But the owner of the factory having Individual Interest suffers a lot. In this
circumstance, though maximum interest of the people is satisfied with least sacrifice of
individual interest of the owner but balance between Individual and Social Interest has not
been achieved because one has to suffer and other has to gain. When there is a matrimonial
dispute between a husband and wife and wife gets a divorce decree against her husband, in
this case interest of wife prevails over the husband and balance of two Individual Interests is
not there because husband has to give maintenance to wife and children for which the
husband suffers a lots. Exception is in case of Divorce by Mutual Consent in which both

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husband and wife are satisfied with divorce decree and their individual interests are fulfilled.
By above discussion it is opined that conflicting interests can be satisfied by reconciliation
and adjustment and the word balance is not the appropriate one for conflicting interest.

ROLE OF JUDICIARY

Pounds theory asks for the maximum gain with least friction and waste i.e. maximum
satisfaction of human wants or expectations with least sacrifice. 12 Here Pound wants to bring
social control in the society. According to him social control means satisfaction of the
maximum of wants of the human being in a society. Pound says that for social control,
interest is the only thing which should be taken into account and Law is a means of social
control. Thus law should work for balancing of interest within the society i.e. satisfying
maximum interest with least waste.

It is true that law and order plays an important role in a society. Law and order are carried out
by the Judiciary and they keep on harmonising the conflicting interests of the individual and
the public through the process of social engineering.

• It has been witnessed through the action of Supreme Court in Vellore Citizen’s
Welfare Forum v. The Union of India 13 in which Kuldip Singh J. delivered the
judgment that “even if the industries are of vital importance for the countries progress
as they provides employment but having regard to the pollution caused by him, the
principle of “sustainable development” has to be adopted as a balancing concept
between ecology and development”14. In this case the two principles emerged i.e.
“precautionary principle” and the “Polluter Pays” principle.
• In a land mark case of Union Carbide Corporation v. Union of India16, 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

12 M.D.A Freeman Thomson, Lloyd’s Introduction To Jurisprudence, 8th ed 2008,Reuters legal Ltd.pg 903.
13 AIR 1996 5 SCC 650.
14 J.N.Pandey, Constitutional Law Of India,42nd ed 2005,Central Law Agency Allahabad, pg 239.
16
AIR 1990 SC 273.

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 are affected by the accident”15. 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.
• After this case, Central government passed an Act known as “The Bhopal Gas Leak
Disaster (Registration and Processing of Claims) Act, 1985” in which sec.5 of this
Act says about the categorization and registration of claims. The various claims of the
each individual relating to their own body, property and the claims arising from
damage to flora and fauna were registered. Under sec11 of this Act, the quantum of
compensation payable to the claimants was decided. From this judgment it can be said
that law gives first priority to social interest over individual interest of substance i.e.
in conserving natural resources and in the protection of natural environment which is
required by the whole public against the private individual who is the owner of the
enterprise. Finally the maximum claims of the people were satisfied with least
sacrifice of individual interest. By this act it can be seen that how various claims were
categorized and compensation were given, which ultimately says that law is an
instrument of social change.
• In Deepa v. S.I of Police16 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 hotel25. 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.
• In Navtej Singh Johar v. Union of India17 , the constitution validity of section 377 of
IPC was challenged on ground that it abridges both human dignity and the
fundamental right to privacy and choice. The Supreme Court in this landmark
decision ruled that gay sex is no longer a criminal offence. The case is an epitome of
prevalence of social interests over individual interests.

Hence it is found that Social Interest prevails over the Individual Interest. Social Engineering
deals with as many satisfactions of human wants which means law should play an important
role in bringing social change by fulfilling the interest of the society as a whole.

CRITICAL REFLECTIONS ON POUND THEORY

15 J.N.Pandey, Law Of Torts, 5th ed 2005,Central Law Publication, pg 351.

16 1986 Cri L.J. 1120 Kerala.
17 W. P. (Crl.) No. 76 of 2016.

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Unlike many jurisprudential theories, Pound's theories tend to appeal to the more pragmatic
and realist students of legal theories. There is the implicit and very rarely expressed criticism
against Jurisprudence as a subject – the idea that legal theories are ‘theoretical’ and therefore
quite artificial, having little bearing on reality and suggesting wholesale changes that are
unrealistic. Pound's theory on the other hand sets itself up as the opposite of a theory. It is
suggesting that it will look at the law as it is, and then addresses the issue of how it will
change and grow based on social wants, needs and demands pragmatically and relatively.
However, the question remains that if the law is the way Pound describes, then why is there a
need to do such a detailed socio-legal research to problems that will arise and be dealt with on
a case by case basis, one at a time?

Another issue which may easily be picked up as a criticism could be that Pound highlights the
difference between the law in books and the law in action. Actually, Pound has only
substantively paid little detailed attention to this “living law” leaving it quite theoretical
which seems to go against the spirit of his jurisprudential approach. Ehrlich, on the other
hand, was preoccupied by this issue and went into great detail of the “living law” almost to
the exclusion of all else. Perhaps, in this author's humble opinion, the happy medium between
the two authors is what needs to emerge for a proper understanding of the issue.

The following words from Roscoe Pound clearly indicate his view that the function of law is
to fulfil individual, social and public interests as well as providing social control:

“For the purpose of understanding the law of today, I am content to think of law as a social
institution to satisfy social wants – the claims and demands involved in the existence of
civilized society – by giving effect to as much as we need with the least sacrifice, so far as
such wants may be satisfied or such claims given effect by an ordering of human conduct
through politically organized society. For present purposes I am content to see in legal
history the record of a continually wider recognizing and satisfying of human wants or claims
or desires through social control; a more embracing and more effective securing of social
interests; a continually more complete and effective elimination of waste and precluding of
friction in human enjoyment of the goods of existence – in short, a continually more
efficacious social engineering”.18

There seems to be little distinction provided in the discussion between the functions and the
effects of law. While one can easily argue that law and other factors can be seen as factors
18 R. Pound (1959) Jurisprudence, St Paul, Minnesota: West Publishing Company.

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towards social control, the question that can arise is whether social control is a function of
law or rather the result. In other words, in accepting that social control is a function of law, is
the reader/writer looking at the effects and using a backward reasoning process, assuming the
results that emerge were the cause of the actual reason for the law to have been made as it
was.

Dr. Allen19 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. 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.
Harmonising their divergent interests is by no means an easy task to be performed through
law and courts.

Moreover, arguing from a Marxist or even Feminist perspective, one could take a more
critical stance of what the law is and argue that law is one of the tools used to create and
secure inequality, discrimination in conferring privileges and wealth. In line with this
thinking, one may argue that the law in fact does not necessarily function to provide an
evergrowing base for the gratification of individual wants and needs.

CONCLUSION

Therefore, it can be fairly concluded that Law plays an important role in reconciling and
adjusting conflict of interests. Both the Social Interest and Individual Interest prevail over
each other. Priority is given to both the interests. Roscoe Pound has given the concept of
Social Engineering for the American Society but this concept is followed by other countries
in resolving disputes. India has also followed the same concept in establishing a welfare
society. Both Judiciary and Legislators play an important role in enacting the statutes which
fulfill the various desires of human being. In this techsavy society desires of human being
grows and to fulfill their desires new policies, strategy has been developed. Roscoe Pound
has indeed made the 20th Century version of Jurisprudence more pragmatic. And generally, he
has provided us with a new set of tools that avail the bulk of approaches that have since
become commonplace in modern jurisprudence.

19 V. D. Mahajan, Jurisprudence and Legal Theory, 5th Edn, Eastern Book Company, 2019, at p 553.

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BIBLIOGRAPHY

Books Referred: 1. S. R. MAYNENI, JURISPRUDENCE (LEGAL THEORY, 2nd ed

reprint 2007.S.P.

Gogia (Asia Law House) Hyd. 2. V.D. MAHAJAN, JURISPRUDENCE AND

LEGAL THEORY, 5th ed reprint 2006. Eastern Book Company, Lucknow.

3. M. D. A. FREEMAN, LLYOD’S INTRODUCTION TO JURISPRUDENCE, 8 th ed,

Sweet & Maxwell.

4. NATHANIEL LINDLEY, AN INTRODUCTION TO THE STUDY OF

JURISPRUDENCE, 2009, Forgotten Books.

Articles Referred:

1. Elise Nalbandian, Sociological Jurisprudence: Roscoe Pound’s Discussion On Legal

Interests And Jural Postulates, Mizan Law Review, Vol. 5 No.1, Spring 2011.
2. James A. Gardner, The Sociological Jurisprudence of Roscoe Pound (Part I),
Villanova Law Review, Vol. 7, Iss. 1 (1961).

Sites Referred:

1. www.scconline.com
2. www.manpatra.com
3. www.indiankanoon.org


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