law as social engineering

SOCIAL ENGINEERING BY ROSCOE POUND

ISSUES IN LEGAL AND POLITACAL PHILOSOPHY

Submitted By: SAI ABHIPSA GOCHHAYAT PG 21005 West Bengal National University of Juridical Sciences, Kolkata

CHAPTER I

INTRODUCTION: Man is a social animal and needs a society for his leaving, working and enjoying 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 to till old age, every human being expects that his or her desire is to be fulfilled for which their arise conflict of desires or claims which comes under the term -interest’. It is impossible to fulfil all the desires of a human being. So to fulfil 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 people’s behaviour. 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. For this purpose this paper is going to discuss about the mechanism of Law in bringing Social Engineering. This paper is divided into three parts. Part II will discuss about the object of the paper. Part III will give suggestions and conclusion.

CHAPTER II ISSUES: Conflict of interest and the order of priority – 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. The object of the paper is to find out how Law helps in harmonizing conflict of interests. According to Pound, Law is Social Engineering . He says that -like an engineer’s 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 engineers to produce finished products which are necessary for the society and which fulfil 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 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. In a society everybody is motivated by their own interest and wants that preference be given to his or 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. Therefore it is needed to recognise the interest to which law should take account . For this purpose a legal system has to i.Recognize certain interest ii.Define the limits within which such interest are to be legally recognized and given effect to it. iii.And finally the above interest should be secured. Suppose I want to stand first in the exam. It is my desire. But this desire cannot be fulfilled because there is no legal recognition as there is no state’s interest in standing first position. Therefore law has to take into account the desires which need recognition. For the purpose of satisfying human interests, Pound defined interest as -claims or wants or desires which men assert de facto about which the law must do something if organised societies are to endure’ . Pound classified various interests which are to be protected by the law under three categorise which are the following : 1.INDIVIDUAL INTERESTS: These are claims or demands involved from the stand point of the individual life which consists of interest of personality, interest in domestic relations and interest of substance. 2.PUBLIC INTEREST: These are the claims or desires asserted by the individual from the stand point of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use. 3.SOCIAL INTEREST: These are the claims or demands in terms of social life which means to fulfill all the needs of a society as a whole for the proper functioning and maintenance of it. It is found that there is overlapping of interest between Public and Social Interest because both are same. Pound is silent about the overlapping of interest and discussed the problem of interests in terms of balancing of Individual Interest and Social Interest . He has classified the interest into three categories but talks about the balancing of only Individual and Social Interest. It is also found that interests are the subjects on whom law has to apply social engineering. 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? Pound’s answer by saying that every society is based on basic assumptions which help in ordering of interest . One interest is of more value than that of other and the object of law should be to satisfy the interest which is in the benefit of the maximum people. 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 summarised the postulates which every individual in civilised 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 and usufruct 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. E.g. Ryland vs. Fletcher case 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. 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. 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 . For balancing of anything, mathematical calculation or ratio is the outcome. For e.g. in case of ecological balance, the amount of CO2 in terms of % is to be balanced with O2 which means reduction of CO2 by aforestation or increasing the level of O2 by aforestation so that ecological balance can be attained. Therefore balance means to upgrade one thing at par with other so that neither of the two things loses anything. As per Pound’s 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. How does the satisfaction of the maximum of wants with the minimum of friction and waste can 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 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 harmonising the conflicting interests of the individual and the public through the process of social engineering. It has been witnessed through the action of Supreme Court in Vellore Citizen’s Welfare Forum Vs. The Union of India 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 , 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 sec11 of this Act, the quantum of compensation payable to the claimants was decided.

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

In Deepa vs. S.I of Police 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 says that the dance was obscene in the eyes of onlookers, which is an offence u/s 294 of IPC 1860. 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.

CHAPTER III CONCLUSION: By analysing this paper it is 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 fulfil the various desires of human being. In this techsavvy society desires of human being grows and to fulfil their desires new policies, strategy has been developed.

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How does the common law develop

England and Wales utilise a common-law system, which differs from the civil systems used in most of the rest of Europe. Common law is not based on Acts of Parliament, but on previous decisions by the courts. One principle of common law requires that the courts apply a previous decision made by a court on the same level or higher. Other characteristics of a common-law system include a trial by jury in the criminal courts and for defamation and a system of supremacy of law, by which every citizen is bound.

The development of common law has occurred because of custom and usage, and many principles have developed over time in accordance with what was thought at the time; as opinions and practices change, so does the law. While we now have Acts of Parliament which must be followed by the judiciary, there are still principles made by common law which are enacted by Parliament. This has meant that statutory law has now become more important than case law, although it is case law that provided and developed many points of law enacted by Parliament. When the judiciary is deciding a case in which statute is relevant, they will also need to decide the case in light of common law. Much common law has not been enacted into statute and many of the principles of contract law, for example, are still entrenched in previously decided cases.

Common law develops when a court makes a decision on a case. If a case has been previously decided by a higher court, the lower court has no option but to decide in accordance with it and allow an appeal if necessary. The Court of Appeal and the House of Lords (rather, the new Supreme Court) are the courts which have made most of the decisions that bind lower courts and in order to change the law a new decision must be made by a higher court, or in case of the Supreme Court, itself. Development of common law has taken place over hundreds of years and has occurred differently in different common-law jurisdictions, meaning that although common-law jurisdictions have the same basis for law, the law has developed so as to result in us now having different laws.