Sociological school ..Analysis on the Contribution of Roscoe Pound.

Sociological school
{Analysis on the Contribution of Roscoe Pound}
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

1. The sociological school considers law as a social phenomenon and examines the law in relation to society. Sociological school Analysis on the Contribution of Roscoe Pound NEHA TIWARI B.A.L.L.B MANAV RACHNA UNIVERSITY

2. 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 Sociological school of jurisprudence has emerged as a result of synthesis of various juristic thought. The exponent of this school considered law as a social phenomenon 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. Neha Tiwari [b.a.l.l.b]

3. Roscoe pound (born: October 27, 1870, Lincoln, Nebraska , U.S .—died July 1, 1964, Cambridge, Massachusetts) Pound was an American legal scholar. -he was the dean of Harvard law school….. He is considered to be the father of sociological jurisprudence Neha Tiwari [b.a.l.l.b]

4. Roscoe Pound Roscoe Pound concentrates more on functional aspect of law. his approach may also be known as functional approach. According to him “The end of law should be to satisfy a maximum of wants with a minimum of friction. "He has given a theory of ‘Social engineering’ which means a balance between the competing interests in society. He thinks that jurist should work with a plan and accordingly various interests of society should be protected by law. Neha Tiwari [b.a.l.l.b]

5. Cont.…. He says jurists must study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective, sociological study in preparation of law making, study of judicial method, study sociological legal history and the importance of reasonable and just solutions of individual cases. Neha Tiwari [b.a.l.l.b]

6. Roscoe pound’s theory Functional aspect of law Social engineering Jural postulates Neha Tiwari [b.a.l.l.b]

7. Functional aspect of law Pound laid greater stress on the functional aspect of law. Law is an instrumentality of social engineering. It is through law that different interests are sought to be balanced. Neha Tiwari [b.a.l.l.b]

8. Social engineering When the demand, desire, expectations of the individual interest are competing and conflicting in nature, the balancing instrument used with the force of the state to harmonize and reconcile these interest prevailing in the society is known as social engineering. Note: it is the task of the lawyer’s, the courts, legislators, administrators and jurists who must work with a plan and make an effort to achieve it. Neha Tiwari [b.a.l.l.b]

9. Roscoe Pound The interest has been classified into three categories : Neha Tiwari [b.a.l.l.b] Private Interests Public Interests Social interests

10. Private Interests…. Interests of personality – Physical integrity, reputation, freedom of violation and freedom of conscience. For eg : law of Torts, law of Contracts, Criminal law . Interest of domestic relations – Marriage, parents and children, maintenance . Interest of substance – Inheritance, occupational freedom, property. Neha Tiwari [b.a.l.l.b]

11. Public Interests Interest in the preservation of State. Administration of trusts, charitable endowments, territorial waters, natural environment etc. Neha Tiwari [b.a.l.l.b]

12. Social interests Securing peace , general health, sanitation, agriculture . Preserving social institutions such as religion, political and economic institutions etc . Preserving general morals by prohibiting transactions which are against morality such as gambling, prostitution, drunkenness etc . Preservation of natural resources, reformation of delinquents, protection of economically weaker sections of society. Neha Tiwari [b.a.l.l.b]

13. Freedom of trade and commerce, freedom of speech and expression , encouragement of arts and promotion of higher education . To promote human personality enabling to live political, physical, cultural, social and economic life to suit his taste and personality . Thus Roscoe has tackled the problem of interests in terms of balancing of individual and social interests. According to him for the formation of laws these interests has to be properly balanced in society . Neha Tiwari [b.a.l.l.b]

14. Jural postulates in order to evaluate the conflicting interests is due to order of priority. Pound suggested certain assumption of a civilized society, which he called as “ jural postulates”. These are applied to both judiciary and legislature in harmonizing various interests. Neha Tiwari [b.a.l.l.b]

15. Pound has mentioned 5 jural postulates In civilized society, men must be able to assume that… Other will not commit intentional aggression against them. example: assault, battery etc. They can use and control things that they have discovered. Produced or legitimately acquired Example: agricultural land, copyrights etc.. Those with whom they deal as a member of the society will act in good faith Example: keeping promises, quasi contract etc. Neha Tiwari [b.a.l.l.b]

16. Cont.… Other will act with due care and will not cast unreasonable risk of injury upon others. Example: negligence Other will keep things within their boundaries and should look after those things so that their escape should not harm others Example: strict liability. Neha Tiwari [b.a.l.l.b]

17. Cont. …. The jural postulates are not absolute they are of a changing nature. They may be revised from time to time. New postulate may emerge with society progress. These assumptions may also vary from one legal system to another. Roscoe pound had formulated these postulate especially in context of the American legal system. Neha Tiwari [b.a.l.l.b]

18. Criticism of pound’s theory The division of public and social interest is criticized on the ground that in fact they are all social interest. What do waste and friction means in relation to conflict of interest : {not explained} With laws, there can be no detailed plans as the society keeps changing constantly. Neha Tiwari [b.a.l.l.b]

19. Criticism of pound’s theory Engineering ignores importance of law and it is dangerous for individual freedom . This word social engineering is used to indicate the problem that law faces, the objectives that have to be fulfill and the method which it will adopt for the purpose of interest . No ideal scale of values with reference to interest . By the word’ engineering’ no balance has been made between social needs and interests. Only this theory simply recognizes or approves it . Classification of interest is not useful. Since the social interests always change with the society and to put them into specific order then they will lose their character and importance. Neha Tiwari [b.a.l.l.b]

20. NEHA TIWARI B.A.L.L.B MANAV RACHNA UNIVERSITY