Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
Introduction
Roscoe Pound, one of the most famous American legal philosophers, was a prominent Jurist of the Sociological School of Jurisprudence which emerged in the 19th to 20th century as a protest to the positivist theory of law. Sociological school, in a nutshell, considers societal customs as well as the society itself as a source of law. It argues that law is not about a man but the association of a man with another man in society. And Pound, who is still considered as the father of the Sociological school, supported this concept with the addition of his own theory of Social Engineering based on this school. In his theory of Social engineering, Pound compared lawyers to engineers – he believed that law, just like any other scientific subject, is a body of knowledge and experience that is used by the “social engineers’ like lawyers and advocates to apply structure to the society. He equated law to engineering in the sense that how engineers use their knowledge to give structure to their finished products, the law can be used in the same way to give structure to the finished product of happiness in the society.
In fact, Pound advocated that the law’s primary objective is to create balance and harmony in the society as every individual holds their own interests supreme. In simpler terms: Maximum Happiness with Minimum Friction among the members of the society when a conflict of interests arises. He advocated that it is the duty and objective of law to intervene and mediate during such clashes between self-interests and community interests. Other than that, Pound gave a lot of emphasis on the interests of an individual as well as the community that should be given equal importance until and unless a conflict arises. On the basis of this, he gave three boundaries of interest that include:
- Individual interest: which includes personal interests like the interest of personality, interest of substance like occupation and property, and lastly, the interest of domestic relations like marriage, maintenance of wife and children,
- Public Interest: Which includes the political interests of a politically organised society that include the preservation of the State and protection of the natural resources of the said
- Social Interest: Which include the community interests of an individual or a whole community itself like the fulfilment of social life as well as the religious life with economic stability to maintain a peaceful standard of living. In a nutshell, these interests surround the concept of security of religious beliefs, economic stability, peace, morals,
Five Postulates given by Roscoe Pound: Based on the abovementioned boundaries of interests, Pound gave five postulates or interests that are needed to be protected during conflict or clash of interests. These five postulates include.
- People in society must not exercise aggression on one another -a postulate that can be seen as a base of Criminal Law in the modern era;
- An individual shall be able to benefit and commercialize anything that they invented or made – a postulate that can be seen as a base of Law of Patent in the modern era;
- People must fulfil the promise they made among themselves -a postulate that can be seen as a base of Law of Contracts in the modern era,
- People must rectify or compensate any mistake done by us that cause damage to the other person -a postulate that can be seen as a base of Law of Tort in the modern era;
- People must indemnify the damages caused to another due to any dangerous substance present on their own property a postulate that can be seen as a base of Law of Strict Liability in the modern