Question

Roscoe Pounds theory of social engineering did much to promote idealism and at the same time to remain
true to empirical and sociological approaches in law. Comment.

Introduction

Society and human life always go together. 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 fulfill all the desires of a human being. Therefore, to fulfill 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. His view of law as an instrument of social engineering is based on the
theory that laws, as a form of social control, are created to shape the society and regulate the peoples
behavior. In other words, it is an attempt to control the human conduct through the help of law.

Content

In establishing the theory of social engineering, Pound had adopted the Empirical Scientific Approach
to law which was founded by Auguste Compte where his approach to law was empirical, based on
experience and observation. Thus, he rejected metaphysical methods of the study of law which was
commonly resorted to by his predecessors belonging to the philosophical and historical school. He
denounced all hypothetical considerations in the perception of law and based his study of law on empirical
observation in an effort to establish co-relation between law and society.

a) Theory of social engineering

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. Under the theory
of social engineering which laid at the heart of sociological jurisprudence, Pound compared the task of the
lawyer to the engineers. He stated that the aim of social engineering is to build an efficient structure of
society as possible which requires the fulfillment or satisfaction of the maximum wants with the minimum of
friction and waste. It involves a balancing of competing interests, referred to as claims, wants or desires
about which the law must do something if organized societies are to endure, by identifying and protecting
certain interests in ensuring social cohesion.
b) Classification of interests

Pound recognizes three types of interest in which human beings collectively seek to satisfy and that
society should recognize and protect through law namely, individual, public and social interests. Individual
interests are claims, or demands or desires from the point of the individual - freedom of will, privacy,
possession in property. Meanwhile, public interests according to him are the claims or demands or desires
looked at from the stand point life in politically organized society such as interests of State as a juristic
person and guardian of social interest. Next, social interests are described as the claim or demands or
desires thought of in terms of social life and generalized as claims of social groups, viz. general security,
security of social institution, and general morals.

c) Conflict of interests

A conflict of interests will demand a process of balancing one against another. One cannot balance an
individual interest against a social interest. The interests involved should be balanced onto the same plane,
preferably the social plane. For an instance, where freedom of an individual is affected, although it is an
individual interest, it is translatable as an interest of the society that its members should be free. The
balance of conflicting interests would therefore lead to a reconciliation of interests.

The case of Lochner v New York illustrates on a conflict between individual and social interests. The
appellant was the owner of a bakery shop and was charged for wrongfully permitting an employee to work
more than 60 hours per week as regulated by the Bakershop Act. It was contended in this case that the
statute is unconstitutional as it abridged freedom of contract and it did not apply equally amongst the class
of workers. In the decision, it was held that the Act was invalid because all men are, by nature, free and
independent, and have certain inalienable rights, inter alia, the right to freely contract. The bakers are clearly
able to assert their rights and care for themselves without protecting arms of the State interfering with their

independence of judgment and action. Thus, in this case, an employees individual interest would prevail

over the existing social interest.

Apart from that, the case of Muller v Oregon illustrates a conflict between public and individual
interests. Muller the owner of a laundry business, was convicted of violating Oregon labour laws by making a
female employee work more than ten hours in a single day. The issues in this case were whether the statute
in question unconstitutionally violated the right to freely contract, equal protection and therefore, exceed its

police power by regulating the working hours of women in certain occupations. It was held that a womans

physique and the performance of maternal functions place her at a disadvantage in the working force. Even
when they are not burned by motherhood, working for long periods tend to leave injurious effects upon the
body and as healthy mothers are essential to ensure healthy offspring, the physical well-being of women
become an object of public interest and care in order to preserve the strength and health of the race. Thus,
in this case, the public interest of female employees prevails over the individual interest of an employer.

Next, the case of Noorfadilla Saikin v Chayed Basirun illustrates on a conflict between public and social
interests. The plaintiff applied for and was given the position of a temporary teacher at school, but her
replacement was withdrawn upon the discovery that she was three months pregnant. It was held that as

only women have the capacity to conceive, the defendants action to reject the placement amounts to

gender discrimination. The judge found no merit in the defendants argument that employing a pregnant

woman to fill up the post will defeat the purpose of the contract, as it is a month-to-month contract which

can be terminated at any time. The defendants act of revoking and withdrawing her placement because she

was pregnant constituted a violation of Article 8(2) of the Federal Constitution, as it was a contravention of

the plaintiffs rights by the defendants as agents of the Executive. Thus, in this case, the social interest

(equality to gender) prevails over the public policy (interest) of the school that revoked her placement.

d) Jural Postulates

In order to evaluate the conflicting interests in due order of priority, Pound suggested that every society
has certain basic assumption upon which its ordering rests, through for most of the time they may be
implicit rather than expressly formulated. This assumption may be called as jural postulates of the legal
system of that society. They are the standards of a civilised society which men are entitled to assume, and
what must be in the background of any judgment ordered in court. Pound has mentioned five jural
postulates as follows-
1. JP I - No intentional aggression by others (people).

2. JP II - Beneficial control over what they acquire under the existing social and economic order.

3. JP III - Acts in good faith.

4. JP IV - Due care not to injure.

5. JP V -Control over dangerous activities.

Criticisms

Pounds confessed that these jural postulates are not absolute but they have relative value. These are
ideal standards which law should pursue in society they are of a changing nature and new postulates may
emerge if the changes in society so warrant. Thus, the jural postulates by Roscoe Pound provide guidelines
for civilized life and they also seek to strike a balance between reality and idealism as also power and social
accountability of men in the community.

Conclusion

It is concluded that law plays an important role in adjusting conflict of interests. Both the social interest
and individual interest co-exist. Both of them have equal priority. Roscoe Pound has given the idea of social
engineering for the American Society but this concept is followed universally for dispute resolution. India
also followed the same concept in establishing a societal welfare. Both judiciary and legislators play an
important role in enacting the statutes which fulfill the various desires of human being. In this
technology-savvy society, desires of human being grows and to fulfill their desires new policies, strategy has
been developed.