National Law Institute University

SOCIOLOGY OF LAW

PROJECT REPORT ON:

SOCIAL ENGINEERING THEORY OF

ROSCOE POUND

Submitted To: Submitted By:

Dr. Tapan R. Mohanty Sarika Munje

Associate Professor V Trimester

(Sociology of Law Socio-Legal Studies) 2012 BA LLB 01

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 TABLE OF CONTENTS
TABLE OF CONTENTS______________________________________________________2
STATEMENT OF PROBLEM__________________________________________________3
METHODOLOGY___________________________________________________________3
AIMS AND OBJECTIVE______________________________________________________3
INTRODUCTION____________________________________________________________3
ROSCOE POUND___________________________________________________________4
SOCIAL ENGINEERING THEORY_____________________________________________5
SOCIAL ENGINEERING___________________________________________________5
CONFLICT OF INTERESTS_________________________________________________6
BALANCING THE CONFLICTING INTERESTS________________________________8
CRITICISM________________________________________________________________10
APPLICATION IN INDIA____________________________________________________11
CONCLUSION_____________________________________________________________14
BIBLIOGRAPHY___________________________________________________________15

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 STATEMENT OF PROBLEM

To study and understand the theory of Social Engineering as propounded by Roscoe Pound
and understand it in terms of India.

METHODOLOGY

The methodology that has been applied is doctrinal.

AIMS AND OBJECTIVE

To study the Social Engineering Theory of Roscoe Pound.
To understand its various components and tools.
To analyze this theory with respect to India.
To derive a conclusion about its applicability.

INTRODUCTION
With the rise of 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.
One such end which has been recognized by Roscoe Pound is that fulfillment of a number of
interests which are mostly in conflictive in nature. He has used the above stated scientific
method to solve this problem of conflicting interests which he calls as Social Engineering.
This project report attempts to understand this theory and also its various components. The
impact or usefulness of this theory with regard to its application in India is also seen in this
project report.

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 ROSCOE POUND
Nathan Roscoe Pound (October 27, 1870 June 30, 1964) was a distinguished American
legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936. The
Journal of Legal Studies has identified Pound as one of the most cited legal scholars of the
20th century. Pound studied botany at the University of Nebraska in Lincoln, where he
received his bachelor's degree in 1888 and his master's degree in 1889. In 1889 he began the
study of law; spent one year at Harvard but never received a law degree. He received the first
PhD in botany from the University of Nebraska in 1898.

As the recognized leader of the sociological school in America for more than half a century,
Roscoe Pound has devoted his efforts to this work. Through his vast legal studies, excursions
into legal history, mastery and application of philosophy to law, and his research into case law
for purposes of understanding how law is actually functioning, Dean Pound has made
tremendous strides toward the accomplishment of this objective. In addition to these efforts,
Pound 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.
Dean Roscoe Pound emerged at a period in USA when his forerunners especially Holmes in The Path
of Law and Cardozo in The Nature of Judicial Process had chartered a definite course for
legal philosophy oriented to social good and social justice. The two great judges of the
Supreme Court had brilliantly demonstrated the thesis that law to be correctly understood
should be studied in the context of history, sociology, economics, psychology as well as the
overall objective traits, traditions and needs of each society. The rule of law and life ought to flow together
parallel and not in opposite direction.

Some of his celebrated works are 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), Social
Control through Law (1942), The Task of Law (1944) etc.

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 SOCIAL ENGINEERING THEORY

Man is a social animal and needs a society to accomplish his objectives in life. A group of
individual forms a society. Society has become an essential condition for human life to
develop his or her personality. Therefore society and human life always go together. Every
human being has also born with some desires and expectations which are inherent in nature.
From childhood till old age, every human being expects that his or her desire is to be fulfilled
for which there arises 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. The force which asks for the adoption of Social
engineering is nothing but the conflict of interests of individuals. Interests more particularly
the conflicting interest are the subject of Social Engineering. Social engineering is based on
the notion that laws are used as a means to shape society and regulate peoples 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.

SOCIAL ENGINEERING

The question that arises next is with regards to decisions to be made with regard to choosing
one of the many conflicting interest. There arises a dilemma as to which interest importance
will be given so that balancing of interest can be achieved for the benefit of society by
sacrificing other interest and how law helps in bringing social engineering or how law helps
in harmonizing conflict of interests. According to Pound, Law is Social Engineering. He says
that like an engineers formulae, laws represent experience, scientific formulations of
experience and logical developments of the formulations, also inventive skill in conceiving
new devices and formulating their requirements by means of a developed technique.

He called this theory as Theory of Social Engineering. Here Pound has used two words i.e.
Social means group of individual forming a society. The second word is Engineering
which means applied science carried out by scientific practitioners to produce finished
products which are necessary for the society and which fulfill all their needs. By combining
these two words he tries to say about engineers and what they do. They use the formula
which is based on continuous experimentation and experience to get the finished product by
means of an instrument or device. Therefore Pound represents experience with law,
instrument with organs of government, engineers with judge and lawyer and finished
product with the wants of human beings and society with a factory. He says that like
engineers, the lawyer should apply law in a court room so that the desires of the people are
fulfilled. Therefore he calls law as Social Engineering and says that the aim of Social
Engineering is to build as efficient a structure of society as possible which requires the

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satisfaction of wants with the minimum of friction and waste. It means law should work for
balancing of competing interest within the society for the greatest benefit.

CONFLICT OF INTERESTS

In a society everybody is motivated by his/her own interest and wants that preference be
given to his/her interest over the other. Conflicts between interests arise because of the
competition of the individuals with each other, with the public in order to satisfy human
wants. Pound says that the struggle for existence that is seen in the competition in satisfying
expectations or desires, whenever acute, because of the limited goods of existence out of
which they can be satisfied, disturbs this balance. He gives the idea that in order to maintain
this balance men have relied on religion and reason. He calls this reason to be a rational
adjustment of individual expectations and demands of others on recognized knowledge that
all the expectations and demands of all men cannot be satisfied from the goods of existence to
their full extent- has proved to require the force of a politically organized society behind it in
order to be effective. Therefore it is needed to recognize the interest to which law should take
account. A legal system attains the ends of the legal order:

1. By recognizing certain interest, individual, public, and social;

2. By defining the limits within which those interests shall be recognized and given
effect through legal precepts developed and applied by the judicial (and today the
administrative) process according to an authoritative technique;
3. By endeavoring to secure the interests so recognized within the defined limits.

For the purpose of satisfying human interests, Pound in his theory of interests finds Jherings
idea of interests of great help in defining them as claims or wants or desires (he wants to say
it as expectations) which men assert de facto, about which the law must do something if
organized societies are to endure. Pound classified various interests which are to be protected
by the law under the following categories:

I. INDIVIDUAL INTERESTS:

I. These are claims or demands involved in and looked at from the standpoint of the
individual life. They concern:

(1) Personality: This includes interests in

(a) the physical person, (b) freedom of will, (c) honor and reputation,

(d) privacy, and (e) belief and opinion.

(2) Domestic Relations: It is important to distinguish between the interests of individuals in

domestic relationships and that of society in such institutions as family and marriage.

Individual interests include those concerned with

(a) parents, (b) children, (c) husbands, and (d) wives.

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(3) Interest of substance: This includes interests of

(a) property, (b) freedom of industry and contract, (c) promised advantages,

(d)advantageous relations with others, (e) freedom of association, and

(f) continuity of employment.

II. PUBLIC INTERESTS:

These are claims or demands or desires asserted by individuals involved in or looked at from
the standpoint of political life. The claims asserted in title of a politically organized society;
as one might say for convenience, the claims of the state, and the political organization of
society.

There are two of them:

(1) Interest of the state as a juristic person: They include

(a) The integrity, freedom of action and honor of the state personality, and

(b) Claims of the politically organized society as a corporation to property acquired and held
for corporate purposes.

(2) Interests of the state as guardian of social interests. This generally seems to overlap with
the social interests. These are not strictly public interests.

III. SOCIAL INTERESTS:

These are claims or demands or desires, even some of the foregoing in other aspects, thought
of in terms of social life and generalized as claims of the social group. Social interests
include:

(1) Social Interest in the general security:

The claim or want or demand, asserted in title of social life in civilized society and through
the social group, to be secure against those forms of actions and courses of conduct which
threaten its existence. This encircles those branches of the law which relate to

(a) general safety, (b) general health, (c) peace and order,

(d) security of acquisitions, and (e) security of transactions.

(2) Social Interest in the security of social institutions:

The claim or want or demand involved in life in civilized society that its fundamental
institutions be secure from those forms of action and courses of conduct which threaten their
existence or impair their efficient functioning. This comprises:

(a) domestic institutions, (b) religious institutions,

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(c) political institutions, and (d) economic institutions.

(3) Social Interest in general morals:

The claim or want or demand involved in social life in civilized society to be secured against
acts or courses of conduct offensive to the moral sentiments of the general body of
individuals therein for the time being. This covers laws dealing with prostitution,
drunkenness and gambling.

(4) Social interest in the conservation of social resources:

The claim or want or demand involved in social life in civilized society that the goods of
existence shall not be wasted; that where all human wants may not be satisfied, in view of
infinite individual desires and limited natural means of satisfying them, the latter be made to
go as far as possible; and to that end, the acts or courses of conduct which tend needlessly to
impair these goods shall be restrained. It covers

(a) Conservation of natural resources, and

(b) protection and training of dependants and defectives, i.e. conservation of human
resources.

(5) Social interest in general progress:

The claim or want or demand involved in social life in civilized society, that the
development of human powers and of human control over nature for the satisfaction of
human wants go forward; the demand that social engineering be increasingly and continually
improved; as it were, the self-assertion of the social group towards higher and more complete
development of human powers. It covers

(a) Economic Progress, (b) Political progress and (c) Cultural progress

(6) Social interest in individual life:

The claim or want or demand involved in social life in civilized society that each individual
be able to live a human life therein according to the standards of the society. It includes

(a) Self-assertion, (b) opportunity, and (c) conditions of life.

BALANCING THE CONFLICTING INTERESTS

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? Pounds answer by saying that
every society is based on basic assumptions which help in ordering of interest.

a. Interest is of more value than anything else and

b. the object of law should be to satisfy the interest which is in the benefit of the
maximum people.

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Thus these assumptions are identified as jural postulates which are based on hypothesis.
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 summarized the
postulates which every individual in civilized society must be able to take it for granted that :
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 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.

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

i. A person will have security as a job holder. E.g. ruled by labour law, law of contract

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.

The question that arises next is that 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.

Pounds theory requires that the satisfaction of the maximum of wants with the minimum of
friction and waste should be done. Pounds theory asks for the maximum gain with least
friction and waste i.e. maximum satisfaction of human wants or expectations with least
sacrifice. 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. Somehow this theory gives prime
importance to interest of public at large over individual interest and if interpreted strictly then

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they may result in eliminating individual interest. Here law is not supposed to deal with
individual interest but bunch of interest. The tool is given in the hands of law to set them at
their right position for the maximum outcome. 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
harmonizing the conflicting interests of the individual and the public through the process of
social engineering.

CRITICISM
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. Here, the
balancing metaphor is misleading. 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
Pounds 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 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.

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 APPLICATION IN INDIA
The application of the law as a tool for social engineering to balance the conflicting interests
can be seen through a number of recent decided cases in India.

It has been witnessed through the action of Supreme Court in Vellore Citizens
Welfare Forum Vs. The Union of India 1 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 . 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 vs. Union of India 2, 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
are affected by the accident. 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 sec. 11 of this Act, the quantum of
compensation payable to the claimants was decided.
In Deepa vs. S.I of Police3 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 hotel . It was a situation where the whole public said that the dance was obscene
in the eyes of onlookers, which is an offence u/s 294 of IPC 1860.

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

1 Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715

2 Union Carbide Corporation Ltd. vs Union Of India, 1994 (4) SCALE 973

3 Deepa And Ors. vs S.I. Of Police, And Anr. 1986 CriLJ 1120

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categorized and compensation were given, which ultimately says that law is an instrument of
social change.

The other major application of this theory can be seen in the functioning of the
recently developing trend of Public Interest Litigation(PIL). The liberal rule of locus
standi has helped social action groups to come to court on behalf of disadvantaged
sections of society. Or rather it can be said that one of the most important methods by
which courts saved themselves from spurious or vicarious litigation was of
ascertaining that the person who petitioned the court had the locus standi to do so.
Thus the person adversely affected by the impugned action had the focus of locus
standi. Professor Baxi has insisted that the Indian phenomenon described as PIL
should be described as social action litigation (SAL).
A number of groups such as the Peoples Union for Civil Liberties, Peoples Union
for Democratic rights, Bandhua Mukti Morcha , Akhil Bharatiya Shoshit Karmachari
Sangh Banwasi Sewa Ashram, and the Common Cause, a registered society, and
individuals such as M.C.Mehta, Sheela Barse, Shiv Sagar Tiwari, and Upendra Baxi
were able to come to court because their standing to move the court on behalf of the
disadvantaged people was conceded. Similarly, under trial prisoners, prison inmates,
unorganized labor, bonded labor, pavement dwellers, children prosecuted under the
Juvenile Justice Act, children of prostitutes, and women in protective custody were
able to receive the courts attention. Public Interest Litigation of the late 1970s and
early 1980s was dominated by petitions on behalf of oppressed people and the main
issue was human rights. These liberal rules of access from which public interest
litigation emanated enabled the courts to reach victims of injustice who so far had
remained invisible.
The court responded in Sunil Batra v. Delhi Administration 4 to a letter written
by Sunil Batra, a prison inmate drawing its attention to the miserable lot of a
fellow prisoner who was being subjected to unbearable physical torture by the
prison authorities. The prisoners had scribbled the letter on a piece of paper
and managed to have sent to Justice Krishna Iyer, judge of the Supreme
Court. The learned judge responded to that letter and thus first emerged the
judicial response to prisoners rights.
Public Interest Litigation was therefore seen as an instrument of bringing
justice to the doorstep of the poor and the less fortunate. Roscoe Pounds
arrangement of interests has personality as one of the concerns of the
individual interests. The interests include the physical person, freedom of
will, honor and reputation to which the courts have responded in a positive
manner.
Justice Bhagwati in Bandhua Mukti Morcha v. Union of India5 said:

4 Sunil Batra vs Delhi Administration 1980 AIR 1579

5 Bandhua Mukti Morcha vs Union Of India And Ors, 1992 AIR 38

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 In the light of Pounds theory of social engineering it is pertinent to note that
the claim of an individual to do or to not do something cannot be coerced into
doing what he does not want to do. This claim which has been termed as
interest by Jhering, needs to be recognized and the task of law is to endeavor
to secure them. The bonded labors like others are born with certain basic and
inalienable human rights. They cannot be compelled to surrender their basic
rights. The social engineering seeks to satisfy the desires and wants of which;
the ordering of human relations and of human behavior must take account.
In Municipal Council, Ratlam v. Vardhichand6, Justice Krishna Iyer and
Justice O.Chinappa Reddy, asked whether a court could compel a statutory
body to carry out its duty to the community by constructing sanitation
facilities. There has never been a society in which there has been such a
surplus of means of satisfying the claims, or of room for everyone to do all
that he sought and urged a claim to do, that there has not been competition to
satisfy them. Conflicts between interests arise because of competition of
individuals. State is a guardian of social interests and helps in bringing about
social engineering. This is to be achieve with minimum friction and waste
which the court tried doing by compelling the statutory body to build up
proper sanitation facilities, safeguarding the interests of the poor.

Hence it is found that Social Interest prevails over the Individual Interest. But this is not true
in many cases. 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. There are also instances where individual interest has priority over
social interest.

According to Sec122 of Evidence Act 1872, marital communication between husband and
wife which is an individual interest in domestic relation are privileged. Then Social Interest
can be fulfilled by securing privilege communication (matrimonial communication) in which
individual interest in connection with domestic relation is first privileged and which in turn
secure the social institution of marriages.

Law has given preference to the interest of backward classes through reservation in
government jobs, educational institutions, which not only hampers the interest of eligible
candidate but also it hampers the interest of the public at large. By this type of law general
people cannot tell that this reservation policy which comes under constitutional law is a bad
law for them. Sometimes bad law becomes good law. Here Law helps in social engineering
by giving special protection to the minority class having individual interests over social
interests so that there can be ultimate social progress by bringing the minority class equally to
the standard of upper class.

6 Municipal Council, Ratlam vs Shri Vardhichand & Ors, 1980 AIR 1622

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 CONCLUSION
The project report therefore tried to understand the Theory of Social Engineering by Roscoe
Pound conceptually. Its practical application with reference to law as a tool for social
engineering has also been seen through a series of Indian cases.

By this project report it can be 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.

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 BIBLIOGRAPHY
www.indiakanoon.org
www.manupatra.co.in
Levy, B.H. ,Anglo-American Philosophy of Law: An Introduction to Its Development
and Outcome, Transaction Publishers, New Jersey, 1991.
Ratnapala, Jurisprudence, Cambridge University Press.

Gardner, J.A., The Sociological Jurisprudence Of Roscoe Pound (Part I), Villanova
Law Review, Volume 7 ,Fall 1961
http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?
article=4478&context=lawreview last visited on 09/12/2013 at 9:00 pm.

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