Roscoe Pound (1870-1964) (Theory of Interests)

(Law as Social Engineering)

Roscoe Pound is regarded as one of the most important American
Sociological jurists of the twentieth century. Allen remarks that "He is a
moderate of moderates, a relativist with a strong conviction of the provisional
nature of all legal creeds and expedients." His fore-runners especially Holmes
 [Link]
Part-VI, Ch. IV] Sociological School(Funetional Schoo) (..)
507
Law' and Cardozo in "The Nature of Judicial
of
Path ofi
The
course for
Process had
im
ed adefinite legal philosophy oriented to social
charte iustice. With such a legal aura that preceded him, Dean Pound
c h a r t e r

good and
made
soc nhilosophy as a vehicle of social control and legal
cial and individual interests to meet the just claims andordering
h5 of
Varying social
needs of
va anding American ociety. Some of the works of Pound
The
the fast are:
Spirit of Common Law (1921), An Introduction to the Philosophy of Law
(1922), The Interpretations ofLegal History (1923) Law and Morals (1926),
Contemporary Juristic Iheory (1940), The Task of Law (1944) etc.
(1) Pound's Twelve Conceptions of What Law Is
Roscoe Pound in his "An Introduction to the Philosophy of Law' listed

Out twelve conceptions of what law is as below:

I. "First, we may put the idea of divinely ordained rule or set of rules
the Mosaic law or Hammurapi's code, handed
for human action, as example,
or Manu (Dharma Sasthra), dictated to the
him ready made by the Sun God,
in Manu's presence and by his direction".
sages by Manu's son Bhrigu
tradition of the old customs
II. "Second, there is an idea of law as a
hence point the way in which
which have proved acceptable to the gods and
man may walk with safety.
For primitive man, surrounded by what seem
is in continual fear of giving
vengeful and capricious powers of nature,
down their wrath upon himself
offence to these powers and thus bringing
that men do only those things
and his fellows. The general security requires not
custom has shown at least
and do them only in the way which long
recorded body of precepts
displeasing to the Law is the traditional or
gods. Whenever we find body
a
m which the custom is preserved and expressed. it is
tradition by a political oligarchy
Oprimitive law possessed as a class
like tradition in the
IKely to be thought just as a body of
of in this way,
revealed."
certain to be thought of as divinely
of
CUstody a priesthood is
theof old who
wisemen
wisdom of
Third, there is "the recorded course for
human
a
. the divinely approved has
the safe course or and custom of action
ned custom of
decision
nd When a traditional be thought of in
e code it is likely to law
primitive describe the
edto writing in a B.C. could
his Way and Demosthenes in the fourth century
this way,
of
01 A
Athens in these terms. philosophically
discovered

a
conceived as which
therefore,
IV. urth, law may be things, to
nature of
system ofprinciples which express the was the idea ofthe Roman juris
Yste
man ought to co Such
his conduct.
Conform
 Part-VI, Ch. IV
Schools of Jurisprudence
SO8
ideas and political
on a
the second and third
it is true, on
Ymsult, gratted. reconciled with
the command of the Roman people, but
thery of law as
command of the
of tradition and recorded wisdom and
them by concewing
declaration or reflections of
the philosophically ascertained
people as mere
and interpreted and ekedout thereby"
pineiples, to be measured and shaped
of ascertainments and
V. "Fifth, law is looked upon as a body
declarations of an eternal and immutable moral code". This is another form
of philosophers.
VI. "Sixth, there is an idea of law as a body of agreements of men in

politically organised society as their relations with each other. This is a

to
democratic version of the identification of law with rules of law and hence
with the enactments and decrees of the city-state. Demosthenes suggests it
to an Athenian jury. Very likely in such a theory a philosophical idea would
support the political idea and the inherent moral obligation of a promise
would be invoked to show why men should keep the agreements made in
their popuiar assemblies"

VIL. "Seventh, law has been thought of as a reflection of the divine

reason goveming the universe, a reflection of that part which determines the
ought' addressed by that reason to human beings as moral entities, in
distinction from the 'must' which it addresses to the rest of creation. Such
was the conception of Thomas Aquinas which had great currency down to
the seventeenth century and has had much influence ever
since"
VIlL. "Eighth, law has been conceived
body of commands of the
as a
sovereign authority in a politically organised society as to how men should
conduct themselves therein, resting ultimately on what ever
basis was held
to be behind the authority of that
sovereign. So thought the Roman jurists
of the Republic and of the classical period with
respect to positive law, and
as the emperor had the sovereignty of the Roman
people devolved upon
him, the Institutes of Justinian could lay down that the will of the
emperor
had the force of a law. Such mode of thought was congenial to the lawyers
who were active in support of royal authority in the centralizing French
monarchy of the sixteenth and seventeenth centuries and through them passed
into public law. It seemed
to fit the circumstances
of parliamentary
supremacy in England after 1688 and became the orthodox English juristic

theory.
IX. Ninth, "a system of precepts discovered by human experience
whereby the individual human will may realize the most complete freedom
 Socielogieal Schonl(Funetional sehou) ()

the luke tieedom ot will of uthers. Ihia iden, held

entdy with
amther by the hrsterneal sehol, atvided the alleuinne of
command of the svereian thring almost
of law as
the theory
It assined that the human experiene by
the past eentury
of
e
o d e

hlegal einles were disecoverel was determined in ane inevitnble

rinciples

matter of conscious human endeavour. The proeea8 Wa

no a
of an idea of right and justive or an iden of
nb dy the untold1ng
ieermunend
human administration of justiee or by
was realizing
itselfin
h laws of eharacters,
or psyehologival or race

wrathon of biological
e r a t i o n ot
was the of of the time and peuple in
eessary
result system law

"men have thought of law as a systenm of principles, diseovered

X Tenth.
in detail by juristic writing and judicial
hisophicaly and developed is measured by reason, or
in
whereby the extermal life of man
iecision, harmonized
the will of the individual in action is
other phase, whereby in the nineteenth
appeared
This mode of thought
those of his fellow
men.
h whieh it had prevailed
the natural law theory in the form in
canturyafter and philosophy was called uporn
to
two centuries had been abandoned
sar
and development of details",
provide a critique for systematic arrangement
of rules
of as a body or system
XI "Eleventh, law has been thought for the time being
in
the dominant cluss
miposed on men in society by own interest.
This Cconomic
of its
or unconscious the
tnerance conscious idealistic form it thinks of
forms. In an
Etpretation of law takes many mechanical sociological
idea. In a
economic terms of
DEvtable unfolding of an struggle for existence in

struggle or a of forces or
laws
t h i n k s of class operation
result of the form it
and of law as the
S struggles. In a
positivist-analytical
command as
mwolvedin or determining such sovereign, but
of that
thimks of law as the command of the will of the
dominant
social class,
laW to
determined in its economic
content by the these forms belong
interest.
All of period of
new
etermined in turm by its own
in turn of law to
a
rule is
ensition the maturity enacted
from the stability of legislation
the
a theory of
growth... Moreover inn a time of copious to frume
an attempt
r and
Slytaken
aken as the type of legal
precept
uccount
of'all
law."
an dictates
egzislative law-making is taken to give
Bislative
law as
made up
ofthe
idea of in socicty,
is a n conduct ofmen
XII. Finally,, twelfth,
twelfth there to the through
human

of with respect
out
economic or social laws
in precepts
worked
ofjustice.
discovered by
a d m i n i s t r a t i o n

expressed
the
rvation, not in
and what
experienc of what would work
 Part-VL, Ch. IV
Schools of Jurisprudence
510
of the nineteenth century,
This type of theory belongs to the end
likewise
or biological
bases, discoverable
when men had begun to look for physical
discoverable by philosophical
of metaphysical bases,
by observation. in place observation and
ultimate social fact by
retlection. Another fom finds some
of the
fact much after the
manner

develops the logical implications of that recent years to

results from the tendency in
metaphysical jurist. This again
to sociological theories.
unity the sciences and consequent attention
social
of the time and
It is an attempt tothe law or the legal institution
state
to be in its enabling us to
place in universal terms. Its real utility is likely
what the men
understand that body of law or that institution and to perceive
of the time were seeking to do with them or to make them. The common
is
Pound, of these twelve conceptions of what law
are as
elements, as per
follows:
() Each shows us a picture of some ultimate basis, beyond reach of
the individual human will, that stands fast in the whirl of change of which
life is made up. This steadfast ultimate basis may be thought of as the divine
pleasure or will or reason, revealed immediately or mediately through a
divinely ordained immutable moral code.
(2) Next, we shall find in all theories of the nature of law a picture of a
determinate and mechanically absolute mode of proceeding from the fixed
and absolute starting point. The details may come from this starting point
through divine relegation or a settled authoritative tradition or record, or an
inevitable and infallible philosophical or logical method, or an authoritative
political machinery, or a scientific system of observation, or historically
verifiable ideas which are logically demonstrable to be implications of the
fundamental metaphysically given datum.
(3) Third, we shall see in these theories a picture of a system of
ordering human conduct and adjusting human relations resting upon the
ultimate basis and derived therefrom by the absolute process. In other words,
they all picture, not merely an ordering ot human conduct and adjustment of
human relations, which we have actually given, but something more which
we should like to have, namely, adoing of these things in a fixed absolutely
all merely individual feelings or desires of
predetermined way, excluding
and adjustment are carried out. Thus in these
those by whom the ordering
sub-conscious picturing
of the ena or law
it seems to be conceived as existing
social want ot general security. Certainly the
to satisfy a paramount
this conception.
nineteenth-century jurist had
Part-VI,Ch. IV Sociological School (Functional School) (...)
511
(2) Law as Social
Engineering
According to. Pound, law is social engineering. Law
i a a to
is the bodyof
and experience with the aid of which a
knowieu
2owledge

is It is more than a
carried on.
large part
of social
e n g i n e e r
body of rules. It has rules and
and conceptions and standards for conduct and for
also doctrines and modes of professional thoughts anddecisions,
principles

it has but
professional
it
nules ofart by which the for conduct and decision are
precepts applied and
rules
eloped and given effect. He says, "like an
engineer's formulae, laws
resent experience, scientific formulations of experience and logical
lopments of the formulations, also inventive skill in conceiving new
devices and formulating their requirements by means of a
technique" This is his Theory of Social Engineering' The aimdeveloped
of social
enoineering is to build as efficient a structure of society as possible, which
reQuires the satisfaction of the maximum of wants with the minimum of
friction and waste.

(3) Theory of the Balancing of Interests

By 'Social Engineering' Pound means a balance between the competing
interests in society for the greatest benefit. Law should procure the greatest
good of the largest number in society positive law should be such that it
Suits the ned of the time; it should effect a compromise of conflicting
interests. Law is not based on absolute ideals, insofar as it is positive law. It
IS a reflection of the culture of a given community. It varies with time and
with the changing views of the generations.
Pound entrusts the jurist with a commission. He lays down a method
which a jurist should follow for 'social engineering'. The jurist should study
the actual social effects of legal institution and legal doctrines, study the
cans of making legal rules effective, sociological study in preparation or
2-making, study of judicial method, a sociological legal history and tne
Pound thinks
portance of reasonable and iust solutions of individual [Link] to t
the
O the duty of the jurist to classify and expatiate upon
protected by law.
Need-based
4) Law as Purposive Functional and
which inspires judges,
ound's concept of law is of practical importance
legislators
the
the
and jurists to mould and adjust law
sand law
interests
to the needs and
should be
or
changing
mmunity. Since the society is always of individuals and society.
ontinually
He, adapted
therefore,
there
and readapted
apied and
to the needs
between the legislators,
cooperation
stresses the need for
adminietwC, the realisation
administrators:
and effective and jurists
,and Jurists. They
should work
for
in unison towards

securing social harnmony

and social
*nplementation law of
 Part-VI, Ch. IV
Sehools of Jurisprudence

s12 waste or
friction and
minimum of
Nusttce to the general public with a
needs and
interests. His attitude
of wants,
of social ends.
satisfaction
of material terms
law only in
maximum
and measures
essentially tunctional and
interest as given by Ihering
8

the theory of
Interests: Pound follows interest without
friction and
is to satisfy the
advocates that the task of law or wants or desires
as 'claims
interests were defined
waste. For this purpose about
expectations) which men assert de facto,
( r , I would like to say,
societies are to endure.
whch the law must do something if organized
of the legal order
According to Pound, in order to achieve the purposes
there has to be:
and social,
i) a recognition of certain interests, individual, public
i) a definition of the limits within which such interests will be legally
recognized and given effect to, and
i) the securing of those interests within the limits as defined,
As per Dias, when determining the scope and subject matter of the
system, the following five things require to be done:
)preparation of an inventory of interest, classifying them;
i) selection of the interests which should be legally recognized;
il) demarcation of the limits of securing the interests sQ selected,
iv) consideration of the means whereby laws
when these have been
might secure the interest
acknowledged and delimited; and
v) evolution of the principles of valuation of the interests.
Pound classified the various interests which are to
be protected by the
law under three heads; private
interests, public interests and social interests.
a) Individual Interests: According to
Pound,
claim, or demand or desire involved in and looked 'individual interests are
at from the stand
the individual life immediately as point of
such-asserted in title of the individual
life'. In individual interests Pound includes:
i) Personality, which include interests in
(1) the physical person, (2)
freedom of will, (3) honour and
belief and opinion, reputation, (4) privacy, and (5)
i) Domestic relations, which include (1) husband and
and child and, (3) marital interests, wife, (2) parent
ii) Interests of substance, which include
(1) interests of property
successionand testamentary disposition, (2) freedom of industry
and contract, (3) promised advantage,(4)
advantageous relations
 LIN
Part-7.C h . I 1 7 Sociological School (Functional Schoo) (.)
513
with others.
oth (5)) freedom of association and (6)
employment.
continuity of

b)
blic Interests:
Public According
Pound, public interests to
are the
demands asserted
or desires
by individuals involved in or looked
r tand
o m the stand point of political life life in politically -

organized society.
sCrted in title of that organisation.
hey
a r ea s s e r t e d It is convenient to treat them
of
c i a m s
politically organised society thought of as a legal entity. There
them.
w o of
e
n Interests of state as a juristic person which include (i) interests of
protection (1i) claim ofthe politicallv oroanised
juristic person 1.e.
as a
a s a corporation of property acquired and held for corporate purposes.
2) Interests of state as a guardian of social interests, namely
of trusts and charitable endowments,
nerintendence and administration
of territorial
servation and protection of natural environment, protection
aers and seashores, regulation of public
employment to make use of things
use etc.
shich are open to public
social interests are claims or demands
c)Social Interests: To Pound,
some of the foregoing
in other aspects, thought of in terms
a desires, even They are the
claims of the social group'.
of social life and generalised as and functioning
ams which are involved in
the maintenance of the activity
social life
desires ascertained in the title of
demands or
sOciety: the wider
civilised society. preservation of
following: 1) Interest in the
Social Interests Include the and general
security and safety
and order and maintaining general
E and transactions.
ath, security of acquisition like marriage
and religious
institutions
social
) Interest in preserving
corruption,
mstitutions morals by
counteracting
to current

in preserving general transactions

repugnant
terest invalidating

oduscouragin8
and
gambling
of natural
orality, r e s o u r c e s
i.e.
conservation

defectives,
social and
4) Interest in conserving
ofdependants freedom
of
eso and training a c h i e v e d by
Tesources andand protection
is to be property,
trade
which
freedom
of
5) Interest in ; general
progress
expression,

tion, ffreedom of speech

and self.
cation in
i nv
vool
lvve
ess (i)self
(i)
and of It
commerce, ana pe
p er
rsso
onna
alli
itty
y..

o fhuman
human

6) nterest in the of notion oflife. there

are

tne promo
and there
p r o m o t i o n

c o n d i t i o n s

and aid in
the

assertion.
fool-proof

and (ii) fool-proof

o n , (ii)
(ii) opportunity of
interests
i n t e r e s t s

classification
is n
no t

is an
important

The above c
lal assssiiffii c
caat
tiioon

this
But
1appings
appinps of interests.
JURIC
 Part-VL Ch. IV
S e h o o s o fJ u r i s p r u d e n c e

of interests
514 discussed the problem
Law, therefore, is
Pound to
and practice interests.
inking of principles social
individual and ciaims and
of b e t w e e n varying
n terms of balancing balance
means and
strike a which can be
subsumed
devise ways and
and social ife
in individual i n i e r e s t in the security
involved
security or generai
expectations

general values of eternal

social interest in the have no fined
under These varying
interests
to the demand
o1 institutions.
direct proportion
SOCial interest change
in
and immutable nature. Each of one interest does not
that an emphasis
of time and place. Pound says 1S not dogmatic.
others. The theory of social nierests
the
imply a neglect of whole service and function of law is to fulfl the need
It does not imply that Pound has observed that the
maintain itself.
of the society in order to social side in
his aggressive and
individual needs, the law in order to keep
balance no less than society.
it
'on the same plane', as
Pound says that interests should be weighed
were. One cannot balance an individual interest against a social interest,
Since that very way of stating them may reflect a decision already made.
One should transfer the interests involved on to the same 'plane', preferably
in most cases to that of the social plane, which is the most general. Thus
freedom of the person might be regarded as an individual interest, but itis
translatable as an interest of the society that its members should be free.
Such is the substance of Pound's theory.
Criticism Against Pound's Theory:- A general criticism against
Pound's theory in regarding his use of the word 'engineering' because it
suggests a mechanical application of the principles to social needs. Prof.
Pound has frequently used the terms 'friction', *waste', 'social
to equate society with
factory-like institution. Law is a social process rather
engineering
than the result of an applied
engineering or technique of obtaining it. His
comparison of society to a factory or bridge is not correct for society 1S
always changing and consists of human being while
factory bridge
a or a is
invariably static and consists of lifeless matter.
Another criticism aganst
histheory is that emphasis on "engineering' ignores an
which develops and evolves in the important part of law
society according to social needs and the
law simply recognises or
approves it. This dynamic feature of law
undermined. Pound seems to over
15
emphasise the experimental charactero
law suggesting society as asystem of merely mechanical
design with nuts
and bolts. Further, the construction of a
bridge is
finished product. With laws there can be no plan, guided by inplan
a of
t
worked out detail. o
any finished product, for society 1s
constantly
the pressures behind interests are changing developing
and
too. Therefore,changmg,
the valueao
importance to be allotted to each nterest cannot be predetermined.
part-VI,[Link]]IV Sociological School (Functional
School) (..) 515
not interests such, but the
as
It is
It
that matter. It may
yardsticks with reference
measured

happen that same to which

theyare interest
ein
dealin itself,
itself, in hich case it is not the
interest as an interest, but as an
is treated as
g
an
t that will determine
determine the relative
importance between it and other interests.
Jea choiceeOof
ndeal
ideal, or even a choice between
an ide
of an
The
rof
matter decision, not of balancing; and it is withcompeting
of
the
ideals, is a
atcnd ideal which they adopt that lawyers are
the ideal
and the
choice made by
Judges.

ence of interests is
the jurispruden
concemed. According
to Paton,
natural law doctrine under a new set of terms
nothing but a resurrection of the

The balancing metaphor is also misleading.

If two interests are to be
Lalanced,
ala that presuppoOSes some 'scale" or yardstick' with
reference to
which they are measured. One does not weigh interests
one
even 'on the same plane Ony with reterence to Some ideal is it possible
against
another,to
ay that the upholding of one interest is more constant with, or more
to achieve it than another, which means that with reference
likely
to that given
ideal the one interest is entitled to preference over the other.

The listing of interests is not as important as the views which particular

judges take of given activities and the criteria by which they evaluate them.
The recognition of a new interest is a matter of
policy. The mere presence
of a list of interests is, therefore, of limited assistance in helping to decide a
given dispute.
The theory of interest is less valuable to pluralistic societies where
there are minorities, ethnic, linguistic, racial, religious basis. The problem
of harmonising conflicting interests is an enigmatic task for the jurists and

Judges alike. Another criticism against Pound is that he ignored ideals of

guidance, but that he seems to have devoted too little attention to them.
Jural Postulates of Pound
ACcording to Pound, every society has certain basic assumptions upon
which s ordering rests, though for the most part these may be implicit
t h a n expressly formulated. Certain of these assumptions may be
fied as the Jural postulates of the legal system as embodying its
fundamental purpose. Thus, jural postulates are rationalisation
ndamental purpose. hin the given of tim
these
claim or an anation thereto which are selected within the given time
Teed-s irameexplana social individual
ae for
of a society by the jurists satisfying or

aims. Jural postula

he phenomena
ulates are working hypotheses which by observation of
which of the claims and demands should be
jurists,
ven effect overguide
otheriinterests within a society.
Jural postulates are working
postulates not
o do. TOt of what law is but what the men in a given society
want law

are mair They

are for not postulates of law. Jural postulates
[Link]
once adopted

applicable. In
d until new facts show that they are longer
no
 Schools of Jurisprudence
516 (Part-VI, Ch. IV
1919 Pound has made an attempt to state the jural postulates to the
civilised society and later on modified them in 1942. The Jural Postulat
at es
are

"Jural Postulate : In civilised society men must be able to assuma

u e
that others will commit no intentional aggressions upon them"

Jural Postulate I1: In civilised society men must be able to assume

that they may control for beneficial purposes what they have discovered and
have created by their own labour
appropriated to their own use, what they
and what they have acquired under the existing sOcial and economic order"
Jural Postulate Ill: In civilised society men must be able to assume

that those with whom deal in the general intercourse of society will act
they
in good faith and hence -

which their promises

i) will make good reasonable expectations
or

other conduct reasonably create;

to the expectations
ii) will carry out their undertakings according
attaches thereto;
which the moral sentiment of the community
what comes to them by
iii) will restore specifically or by equivalent
of a transaction, or other
mistake, or failure of the presupposition
receive at another's expense
unanticipated situation whereby they to receive under the
what could not reasonably have expected
they
actual circumstances.
society men must be able to assume

"Jural postulate IV: In civilised not

of conduct will act with due care

that those who engage in

some course

to cast an unreasonable
risk of injury upon others"
able to assume

"Jural Postulate V: In
civilised society men must be
harmless in the sphere
that others who maintain things or employ agencies, and having a
in their normal action elsewhere,
of their use but harmful use will restrain
boundaries of their proper
natural to cross the
tendency
bounds".
them orkeep them within their proper between
by Pound are a synthesis
These five jural postulates propounded whicn
and social accountability
means and ends, reality and ideal, power civilised society. According to
men in a
ought to regulate the conduct of are relav
absolute criteria. They
Pound, these jural postulates are not at a particular
a community
are based on the views held by civilization. Postulatco
They postulates of
does not lay down any final
to
round reformulated from time
need to be
change as civilization changes. They land is not a
constan

lime by the sociological jurists to whom the law of the timc.i

but is variably changing to the needs of the situation, place and
Part-VI,
Ch. IV] Sociological School (Functional
School) (....) 517
dified his jura. postulates in 1942 after an era of
icultural to industrial society by transition from an
adding the following.
)that a person will have
security as a job-holder;
) that society will bear the burden of supporting him when be becomes
aged; and

(i) that society as a whole will bear the risk of unforeseen misfortunes
such as disablement.
There is need for further modification from a transition towards new
ECchnological and space age of the twenty first century. The jural postulates
to be applied both by the legislators and by the judges for evaluating and
ncing the various interests and harmonising them. The jural postulates
nich Pound laid
wn from time to time, as underlying the contemporary

ndicate that he believed them to be of a changing nature. He himself

ays that now new
postulates are emerging