Introduction to Social Engineering:-
Roscoe Pound is considered to be the” American Leader” in the field of Sociological jurisprudence. He comes from Harvard Law School and had great academic favour.
According to him,” the end of law should be to satisfy a maximum of wants with a minimum of friction.” He defined law as containing the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art.
He considers law as a means of a developed technique and treats jurisprudence as ‘social engineering’. The main propositions of Roscoe Pound theory of Social Engineering are as under:-
POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:-
Pound concentrates more on the functional aspect of the law, that is why some writers name has approached as “
functional school” the law is an ordering of conduct to make the goods of existence and the means of satisfying claims go-round as far as possible with the least friction and waste.
THE TASK OF LAW IS “SOCIAL ENGINEERING”:-
He says, “to understand the law of today. I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy, social wants, the claims and demands involved in the existence of civilized society.
SOCIAL ENGINEERING MEANS A BALANCE BETWEEN THE COMPETING INTEREST IN SOCIETY:-
He lays down a method which a jurist should follow for ‘social engineering’. He should study the actual social effects of the legal institution and legal doctrines, study the means of making legal rules effective sociological study in preparation of law-making, a study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases.” He himself enumerates the various interests which are to be protected by the law. He classifies them under three heads: i. Private Interests (ii) Public Interests
Social Interests/Private interest:-
Such as interest of physical integrity, reputation, Freedom of volition and freedom of conscience. They Are safeguarded by law of crimes, contracts.
Main public interests are the preservation of the State, State as a guardian of social interests such as administration of trusts, charitable endowments, protection of Natural environment, territorial waters, sea-shores, Regulation of public employment and so on.
Preservation of peace, general health, preserving of Social institutions such as religion, political and Economic institutions, general morals, promotes Human personality, cultural and economic life.
Pound tackled the problem of interests in a term as of balancing of individual and social interests. It is through the instrumentality of law that these interests are sought to be balanced.
Justice Cardozo remarked that” Pound attempted to emphasize the need for judicial awareness of the social values and interests.”
Roscoe Pound regarded law as a basic tool of social engineering. How in India the society and law are acting and reacting upon each other can be adjudged from the following enactments passed after India became Independent:-
a. The special Marriage Act 1954
2. The Hindu Marriage Act 1955
3. The Hindu Succession Act 1956
4. The Hindu Minority and guardianship Act 1956
5. The Hindu Adoptions and Maintenance Act 1956
6. The Dowry Prohibition Act 1961
7. Child Marriage Restraint (Amendment Act) 1978
8. The Consumer Protection Act 1986
9. The S.C & S.T.(Prevention of Atrocities) Act 1989
10. Commission of Sati (Prevention) Act 1987
11. Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:-
Roscoe Pounds theory is that interests are the main subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of the law to make a valuation interests in other words to make a selection of socially most valuable objectives and to secure them. To concluding the theory, Pound says that the aim of ‘Social Engineering’ is to build an efficient structure of the society as far as possible which involves the balancing of competing interests.
CRITICISM AGAINST POUND’S THEORY:-
i. Engineering not a happy word: It suggests a mechanical application of the principles to social needs but really the word engineering is used by Pound metaphorically to indicate the problems which the law has to face.
ii. Classification of interests not useful: Friedmann doubts the value of classification of interests and the value of such classification.
iii. Ihering & Bentham concludes the theory of Pound’s that, “such classifications greatly helps to make legislature as well as the teacher and practitioner of law conscious of the principles and values involved in any particular issue. It is an important aid in the linking of principle and practice.”
Social Engineering stands on a practical and firm ground. He points out the responsibility of the lawyer, the judge and the jurists and gives a comprehensive picture of the scope and field of the subject. 12 What do you mean legal personality and its different theories? Whether the following are a legal person:-
1. President of India
2. Council of Ministers
4 Unborn child.
Natural Persons are all human beings who are capable of rights and duties in law, i.e. who have status. Legal persons are those to whom the law is recognised as a person.
It is either a thing or a mass of property or group of human beings to which law attributes personality the law confers a legal status and who thus in the eye of law possess rights and duties as a natural person. The person is of two types:-
I. Natural Person
II. Legal Person
According to Gray, “A person is an entity to which rights and duties may attribute.” According to Salmond, “ person is, any being to whom the law regards a capable of rights and duties.” According to Paton, “Legal personality is a medium through which some such units are created in whom rights can be vested.”
In the development of society, the law developed and with the development of law the concept of legal personality come into existence. In the ancient times there was no concept of legal personality but as the society developed the person was recognised as the representative of the State and a separate personality was given to him. In the due course of time corporation and companies came into existence such companies and corporations were given the separate personality so in this way these bodies are now called as legal persons. There are the following two types of persons:-
NATURAL PERSONS ( HUMAN PERSONS):-
All human beings are natural persons but in ancient society, the slaves were not recognised as natural persons. Similarly outlaid persons, unsound persons were not natural persons. In Hindu Law, Manu has mentioned some persons who were not recognised as natural persons i.e. Born child, deaf persons, sanyasi and those who are living dead.
1. Unborn person: Unborn person is not a natural person because he is not in existence, but a child in the womb is the natural person because he bears the rights and duties under the law. The person in the womb can represent the position after birth. In IPC the child in the womb is considered as a natural person as soon as any of his organs will come out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She will be hanged only after delivery.
3. ANIMALS:- In ancient time the animals were legal persons but in modern time animals are not the legal persons but in law, we find some cases in which some animals have some rights and duties. Today also the protection of animals some laws have been made which give rights to the animals. These laws prohibit people to kill them. In this theory, personality has also been confirmed.
4. Dead Person:- In law dead person has no existence as the dead person has no personality. But in certain cases, they are considered as a person in law. First, if any person defames the dead person and such defamation lowers the reputation of the family members of the dead person, then a legal action be taken against the wrongdoer who defamed the dead person.
Secondly, if any person defames the dead body of deceased person then such person is liable for damages under the law.
A legal person is artificial or imaginary beings to whom law attributes personality by way of fiction, i.e. law gives them rights and duties like of natural persons, e.g. King of England has two personalities- first a human being second as head of state, being head of state he is known as a legal person.
Similarly, the President of India and the Governors of the states are legal persons.
The main form of legal personality is the corporate personality. It is of two kinds:-
means a single body representing any state or any other object. It is called a series of successive persons. The King of England or the President of India is the corporation sole.
They represent only one man in a successive period. The post of corporate sole remains always alive while the human beings who sit on the post may die.
When law confers single personality to a group of person then it is called corporate aggregate e.g. companies are registered according to the law of societies or according to the law of land. These companies or corporations etc., are legal persons.
In the ancient time, the Karta represented the whole Hindu family who was considered as a legal person. It is same as in Roman Society. It is adopted in the shape of Indian companies Act 1956. The advantages of the corporate personality because they represent an association of persons as a single person which is helpful in business.
‘Social Engineering by Roscoe Pound’: Issues in Legal and Political Philosophy