ROSCOE POUND JURAL POSTULATES AN CRITICAL ANALYSIS

2.2 Jurisprudence

Submitted by:

Harsh Awasthi

UID No. UG19-48

B.A.LL.B. (Hons.) 1st Year, 2nd Semester

Submitted to:

Prof. (Dr.) Shirish Deshpande

(Professor of Law)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

Contents
Introduction................................................................................................................................3
Aims and objectives...................................................................................................................3
Research questions.................................................................................................................4
Research methodology...........................................................................................................4
Social engineering......................................................................................................................4
Legal interests............................................................................................................................5
Jural postulates...........................................................................................................................5
Pounds’s contribution.................................................................................................................7
Some Critical Reflections..........................................................................................................7
Criticism.....................................................................................................................................7
Conclusion..................................................................................................................................8
BIBLIOGRAPHY......................................................................................................................8
Introduction

Roscoe pound made a very great contribution in the field of legal philosophy and legal order.
He is also called as father of sociological school of jurisprudence widely. Pound published a
huge number of books, papers and articles analysing and investigating on the different laws
regarding their interpretation, implication and result. but still roscoe pound theory of social
engineering is widely regarded as his magnum opus. In course of understanding the theory
given by pound, person should not get confused between the huge amount of works and
comments that had been developed in nearly past 50 years, pound’s real work in field of
sociological jurisprudence can be understood in his discussions and writings on legal interests
and jural postulates.

Roscoe pound in his theory of social engineering described the main function of law and
legal order as achievement of justice and maintaining of and furtherance of civil society. This
scheme of social engineering by roscoe pound was very much based on the analysis of the
past events but this was not the aim of the scheme the main aim of the scheme was to
formulate the laws and future rule of conduct with the help of previous experiences.

The researcher in this paper has tried to understand the concept of jural postulates given by
roscoe pound and also to analyse the same in the contemporary times

Roscoe pound based his scheme on the past events but the theory of interests given by the
pound was ought to be more than just analysing just past events rather the main aim of this
theory was to help in formulating future rules of conduct of law with the help of previous
experiences

Aims and objectives

the aim of this project is to study, understand and analyse the jural postulates by roscoe
pound and also the ancillary topics. The researcher, in this paper has tried to study the
concept of social engineering and legal interests by the roscoe pound in order to understand
jural postulates in better way. And also the same has been thought upon regarding its
relevance and applicability in contemporary times
Research questions
 What are jural postulates
 What is scheme of social engineering

Research methodology
The researcher has adopted doctrinal method of research in this paper. The mentioned topic
to be written upon has been read and researched upon very elaborately, the research objective
could be easily achieved by doctrinal research. The work is both analytical and descriptive
and this helped very much in acheieving above mentioned objectives. This kind of reserch
relies more on the books, research articles, journals and analysis by different authors rather
than secondary sources of data.

Social engineering

Roscoe pound formulated the concept of social engineering. according to pound law is body
of knowledge and past experiences on the basis of which social engineering is carried on the
end purpose or main aim of the law was to achieve justice and the maintenance and
development of the society with the help of his legal interests theory i.e. according to pound
there are interests of various sects of the society which they want to be given more preference
but if we think pragmatically, if anyone’s interests are given more preference to another it
will consequently lead to a chaos in the society so in order to deal with this he suggested that
there should be balance of interests in the society and this should be done taking into
consideration various factors and circumstances. He also formulated a set of jural postulates
which in my opinion are basic security that a person should have in a civilised society.

And for achieving the goal of justice the main thing that need be taken into account is
interests of the different parts or groups of society, pound classified interests into 3 groups
individual interests, public interests, social interests. The social interests were, according to
him, most important for the achievement of the main purpose of law
About the function of the law, pound said “I think of law as a social institution to satisfy the
interests, claim, demands and expectations that are of major concern and importance for the
existence of a civil society1”

Legal interests

Roscoe pound looked at the law as a tool for social engineering and for this purpose he
thought of lawyers as engineers. He said that main purpose of law was to achieve maximum
fulfilment of desires of maximum number of people. According to pound in a civilised
society everyone thinks of his interest to be supreme and this needs to be balanced and given
preference according to various factors and circumstances. One of the examples of the same
can be article 19 of the constitution of India 2 but these freedoms are subject to reasonable
restriction applied by the state, that is, people cannot excite disaffection towards the
established government3
And for this purpose, classified interests into 3 broad heads: individual interests, public
interests, social interests. Though there is very much discrepancy and ambiguity regarding the
division of these interests into these divisions
 Private/ individual interests: these are the interests concerning the private rights of an
individual. Some of the examples of these can be protection of physical being, freedom to
write his own will, protection from defamation etc
 Public interests: the public interests are the interests that are to be considered from a point
of view of a politically organised society
 Social interests: these are the interests that are to be looked upon as the interests of social
institutions of the society

Jural postulates

Roscoe pound, as we know, tried to put more emphasis on the real functioning of law and
according to him, the main purpose of the law lies in its end result. Also, he formulated a
scheme of jural postulates that are basically the bare minimum required in a civilised i.e when
we look on the theses jural postulates these show a clear contrast to a chaotic, uncivilised
society in which there is no order in the society. And these he tells are the basic assumptions
that a person living in a society must be able to assume. He also admitted that these
assumptions are not necessarily universal that is these postulates change taking into
consideration various social, cultural and economic factors. These postulates are most of
times implicit rather than explicitly mentioned.

1
R. Pound, An Introduction ...,
2
Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression.
3
Section 124A. Indian penal code, 1860
These assumptions may be called as jural postulates such as:

 Jural postulate I: in civilized society men must be able to assume that others will commit
no intentional aggression upon them.
This postulate can be said to be very important, rather, it sets the basic rule of conduct that no
one has a right to hurt any other person. It should be seen that in case someone commits the
same, he could be attract penalties and punishments under both civil and criminal
jurisdictions. i.e causing bodily injury to someone is called as ‘battery’ in law of torts and
under criminal law definition of hurt has been given under section 3194 and the punishment
for the same has been given under section 3235

 Jural postulate II: In civilized society men must be able to assume that they may contract
for beneficial purposes what they have discovered and appropriated to their own labour
and what they have acquired under the existing social and economic order.
This postulate, in essence, talks about the basic principles of law of contract which say that
everyone has a right to, in good faith, enter into contract for their own benefit

Also, this postulate can be related to principles of intellectual property rights which say that
the people have exclusive rights, regarding the reproduction, sale etc. of the products and
ideas which are product of their intellectual.

 Jural postulate III: in civilized society, men must be able to assume that those with whom
they deal as member of the society will act in good faith and hence-
(a) Will make good reasonable expectations which their promises or other Conduct
reasonable create
(b) Will carry out their undertaking according to expectations which the moral sentiments
of community attach thereto
(c) Will restore specifically or by way equivalent what comes to them by mistake, or
failure of pre supposition of a transaction or other unanticipated situation on whereby
they receive at others expense what they could not reasonably have expected to
receive under the actual circumstances

 Jural postulate IV: in civilized society men must be able to assume that those who engage
in some course of conduct will act in due course and not to cast an unreasonable risk of
injury upon others

4
‘Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt’. Section 319, Indian
penal code 1860
5
Indian penal code 1860
 Jural postulate V: in civilized society men must be able to assume that others who
maintain things or employ agencies, harmless in sphere of their use but harmful in proper
use will restrain them and keep them within their bounds

Pounds’s contribution

Roscoe pound thought of the law as a social institution to satisfy the interests, claim,
demands and expectations that are of major concern and importance for the existence of a
civil society. His theories and thought about the law were free from all orthodox approaches
and he placed a great emphasis on studying the end results of the law which are supposed to
be satisfying the highest number of demands in return for minimum friction. He insisted on
engineering but at the same time he never forgot the importance of maintaining a balance

Some Critical Reflections

Unlike many other theories, roscoe who is regarded as a scholar of functional school of
thought, his theories tend to be more pragmatic and realistic. There is a very widely accepted
criticism against jurisprudence as a subject, it is often said that that the jurisprudential
theories and scholars are very much theoretical and their theories have little relevance and
applicability in actual conditions. But roscoe pound on the other hand suggested that it will
look at the law as it is, and try to address the issues of social wants, needs and demands
according to the actual conditions of law

Criticism
Pounds hypothesis of social engineering has been condemned on different grounds. It is
directed that the order of interests by pound is in the idea of a list to which alterations and
changes have continually to be made and which is necessary in respect to relative worth and
need of interests specified

Pound illustration of engineering has been reprimanded on the ground that it proposes an
arrangement of simply mechanical content precisely regulated according to social needs

Conclusion

Notes on jurisprudence generally feature solid investigations and a portion of the qualities
and shortcomings of every hypothesis. In spite of the fact that the previous passages are the
same, one can't limit the gigantic development that Pound has made in the twentieth century
in the field of law and legitimate hypothesis. Because of Pound's noteworthy commitment
during his long and celebrated vocation, jurisprudence has profited gigantically from the huge
numbers of his distributions, and from the ideas and the thoughts he set forward for over 50
years. Roscoe Pound has in fact made the twentieth Century rendition of Jurisprudence
progressively sober minded. Furthermore, by and large, he has furnished us with another
arrangement of apparatuses that benefit the furtherance of approaches that have since gotten
ordinary in present day law.

BIBLIOGRAPHY

Books
 G.W Paton, A TEXT BOOK OF JURISPRUDENCE,4th edn., oxford university press
 Roscoe Pound, SOCIAL CONTROL THROUGH LAW, Routledge press
 Linus J. MacManaman, SOCIAL ENGINEERING: LEGAL PHILOSOPHY OF
ROSCOE POUND, Abbey Student Press, 1956

Articles
 Michael Martin, “Roscoe Pound's Philosophy of Law’’
 Elise Nalbandian, Sociological Jurisprudence: Roscoe Pound's Discussion on Legal
Interests and Jural Postulates, 5 Mizan L. Rev. 141 (2011).
 Roscoe pound, “ a survey of social interests’ Harvard law review
 Edward B. McLean, roscoe pound's theory of interests and the furtherance of western
civilization, Il Politico