Roscoe Pound (1870- 1964)

● Was an American legal scholar, who was very influential in his times.
● He viewed legal change as an expression of developed reason, and tested
further by reason.
● For him, sociological jurisprudence became analytical- evaluative, whereas
sociology of law was analytical- descriptive.
● He attacked the complacency of lawyers who mechanically followed the
outmoded rules of judicial procedure.
● He indicated towards the disparity that existed between legal rules as to
liability for personal injuries and verdicts of juries.
● His ideas and arguments paved the path for workmen's compensation laws.
● He abolished common law defences of the employers and imposed strict
liability for industrial accidents.
● He felt that lawmakers need to study the social effects of legal institutions and
legal doctrines.
● Believed that professional study of means of making legal percept effective
would lead to better remedies– thus money damages cannot adequately
recompense the badly injured employee.
● He was co- director of Cleveland Survey of Criminal justice- the results of this
survey led to improvements in criminal law.
● Pound’s jurisprudence was thus down-to-earth, pragmatic, which brought
about positive results.
● Saw law as an important instrument of social engineering and social control.
● He also viewed law as the instrument of social control.

Some important definitions of law as laid down by Pound-

● Law is a body of authoritative percept, developed and applied by an
authoritative technique in the light of authoritative ideals.
● Law is a highly specialized form of social control in a politically organized
society, exercised through systematic and orderly application of such a
society.
● Law is an experience developed by reason, and reason developed by
reason, authoritatively promulgated by law making organs of society, and
backed by force of that society.
● Law is defined as the task of social engineering designed to eliminate
friction and waste in the satisfaction of unlimited human interests and
demands out of limited store of goods in existence.

Theory of social engineering:

Law is social engineering. As social engineering, it is comparable to the technical
field of engineering.
● Engineering is applied science and is associated with technical experts who
produce finished goods in a very professional manner.
o An engineer develops his formula through experimentation and develops
his tools and technology to produce the finished goods.
o On the basis of experience, he keeps honing his technical skills further to
make his instruments better.
 o He develops the finished goods and provides the services by keeping in
mind the needs of the people.
o The engineer also tries to develop technologies to reduce any kind of
friction and waste while producing the goods, so as to maximize his output
and profit.
● Law as an institution is also like engineering. Here, the lawyers and judges are
mainly the engineers who try to develop ideas for new laws to cater to the
changing demands of the society.
o They use their experience to make improvements in existing laws and
create grounds for new laws.
o Here, the lawyers and judges can only arrive at new interpretations of
existing laws, as they lack the power to change or create new laws. This
power of amending and laying down new laws lies in the hands of
legislators (as per the theory of separation of power).
o The laws are used as tools to cater to different needs of the society.
o The laws are used/applied in such a manner that there is zero or minimum
wastage, and there is minimum or no friction.

experience
Engineers Tools & technology New products to meet
Experimentation Social needs

experience
Lawyers, Laws New interpretations/suggestions
judges Experimentation to meet Social needs

Thus, applying laws for creating a better society becomes social engineering.

As part of social engineering, law should work out the way for balancing out the
competing interests in the society, so that the friction between the parts of the society
(the people and various institutions) can be reduced, and efficiency can be increased.

Lawyers and judges have to recognize what are the various interests and can they be
harmonized. They have to define the limits within which such interests are to be
legally recognized and given effect to.

Thus, Pound’s focus was on defining, classifying and prioritising interests.

Concept of interests as discussed by Pound-

Interests are the claims or demands made by people. These demands are asserted de
facto, and for this law has to come into action so that societies can endure.

Pound talks about three types of interests-

● Individual interests are the claims or demands from the individual’s point of
view. These interests mainly involve the domain of domestic relations.
● Public interests are the claims or demands asserted by the individuals in the
political domain. Here, individuals are seen as citizens who have perceptions
about their freedom and rights, and about the freedom and rights of their
 fellow citizens also. They share things in the common pool which has to be
shared and state has to lay down rules for their sustainable use.
● Social interests are the claims or demands made in the context of social life of
the individuals. Here Pound talks about the needs of the entire society that
should be met, so that the social structure can run smoothly.

His concepts of public interests and social interests are seen as almost overlapping.
Throughout his academic discussions he has talked about maintaining a balance
between individual interests and social interests.

Pound’s main concern has been with the social interests, to which he has given
maximum importance.

● According to Pound, all societies work on the basic assumption of ordering the
interests. Thus law recognizes one interest as more important than the other,
hence it is given more preference.
● Interests that satisfy maximum needs of maximum number of people have
more value, hence they should be given a priority.
● According to Pound, the priorities of interests are decided on the basis of
certain jural postulates, which are treated like hypothesis by Pound. They keep
changing as the needs of the society change.

● These jural postulates are taken for granted by the members of a civil society-

Jural postulates laid down in 1919-

● Individual takes for granted that others will not commit any intentional
aggression upon him, such as assault, battery, wrongful restraint etc.
● Others will act with due care towards an individual and will not cast any
unreasonable risk or injury will not indulge in any negligence.
● Individuals can appropriate what has been created by him, by his own
labour and effort, and what he has acquired under existing economic order
for his own use. Ex, agricultural land, usufruct property.
● People with whom an individual deals in the social domain will act with
care and good faith- will not cause defamation.
● Individual must keep his things in his own boundary and should look after
them well so they do not escape and enter others boundary and cause harm
to them. Ex cattle should not be allowed to enter the boundary of other’s
agricultural field and destroy the crop. Ryeland vs. Feltcher case

Jural postulates added in 1942

● Individual as a job holder will have security- labour laws.
● Society will bear the burden of supporting an individual in his old age- old
age concessions
● Society as a whole will bear the risk of unforeseen misfortunes such as
physical or social disablement – reservation quota laws.

These jural postulates must be applied by the legislators, judiciary and lawyers for
evaluating and balancing the interests, and harmonizing them.
Harmonizing between the interests means satisfaction of maximum human needs,
with less friction and waste.
This implies that there should be reconciliation and adjustment between the individual
and social interests.

Types of social interests-

● Interests in general security- social life should be secure against the forms of
actions and courses of conduct which threaten its existence. This type of interest
extends to the general health, peace and security of transactions and acquisitions.
● Security of social institutions– fundamental institutions of social life should be
secure from the courses of conduct that threaten their existence or impair their
efficiency. It includes security of domestic institutions, religious institutions,
political institutions and economic institutions.
● Interests related to general morals- Pound claims that social life in civilized
society must be secure against the forms of actions that are offensive to the moral
sentiments of the general society. These include policies against such
misdemeanours such as dishonesty, corruption, gambling and things of immoral
tendency.
● Social interests in conservation of social resources– this suggests that goods of
existence shall not be wasted. These include the courses of conduct which tend to
needlessly destroy these goods, which should be restrained. They refer to common
property which is used, but not owned by individuals.
● Social interests in general progress and development- They include the demands
of development of human power and human control over nature for the
satisfaction of human needs, which should go forward. These include interests in
social, economic and political progress.
● Social interests in the individual lives- according to Pound these are most
important and include the claims that each individual must be able to live a human
life in a civilized society according to the standards of that society.

Law makes an attempt to satisfy and reconcile between these overlapping, often
conflicting interests.

Examples of Indian cases/judgements where social interests override the individual

interests-
1. Vellore Citizens’ Welfare Forum vs. Union of India- Judge Kuldeep Singh
decided that even if industries are of vital importance for countries' progress,
they are to be held responsible for causing pollution. Industries thus should
make attempts to mitigate pollution. Thus, the industries must adopt principles
of sustainable development and balance ecology and development. Principles
of precautionary principle and polluter pays.
2. Union Carbide Corporation vs. Union of India- SC applied the rule of
Absolute Liability. The court held that an enterprise engaged in
hazardous/inherently dangerous activity should be considered as strictly and
absolutely liable to compensate all those who are harmed by the accident. It
also held that the measure of compensation should be correlated to magnitude
and capacity of the enterprise, since the compensation has a deterrent effect on
the concerned enterprise and for other enterprises for future accidents. Lead to
 formulation of Bhopal Gas Leak Disaster (Registration and Processing of
Claims) Act 1985
3. Deepa vs. S. I. of Police – it was held in this case that the interest of the
society should be given paramount consideration over the individual interest
of those who are earning livelihood by performing cabaret dance in a hotel.
The whole public here said that the dance was obscene in the eyes of the
onlookers, which an offence u/s 294 of IPC 1860 .
4. Association of Victims of Uphaar Tragedy & Ors. vs. UOI- The fire was
caused in 1997 while the screening of movie Border. The fire killed 59 people
and left 153 injured in the stampede. Relatives of the victims’ families formed
an association (called AVUT) and filed landmark civil compensation case.
Delhi high court held the owners of Uphaar Cinema, licensing authority, MCD
and DVB guilty of negligence.
5. Asbestos fire case of Italy- Stephan Schmidheiny, the owner of Republica de
Cromanon nightclub in Buenos Aires, and a billionaire, was sentenced to 18
years and was asked to pay tens of millions of Euros to local authorities and
the victims’ families. Here a fire killed 194 music fans in 2004.