Asst. Prof.

Kalyani Pawar
B.S.L., LL.B., LL.M.,
SET
CONTENTS

1. Analytical school of Jurisprudence 2.

Historical school of Jurisprudence 3.
Sociological school of Jurisprudence 4.
Natural school of Jurisprudence 5.
Philosophical school of Jurisprudence 6.
American realism
INTRODUCTION
• Called as positive school or positive law theory.
• Focuses on positivism – positivism: Focuses on “Law as it is”. It ignores the past and
the future. Law as it is separated from “ law that ought to be”.
• This school considers Positive law as the perfect law and the subject matter of
jurisprudence.
• In the process of analysis of positive law, the sociological, historical, moral or ethical
aspects are not taken into consideration.
• Main proponents: Austin, Bentham, Hart, Kelsen.
 John Austin
(1790-1859)
About Austin
• At the age of 16 joined the army and served until 1812.
• In 1818 he started practicing as lawyer.
• He was appointed as the Professor of Jurisprudence at the University of
London.
• He is the founder of the Analytical School. And so is considered as the Father
of the Analytical School.
• He opposed the traditional approach of natural law and differentiated
between the law and morality.
• 1832- The Province of Jurisprudence Determined.
• A plea for the Constitution, Lectures on Jurisprudence (1863).
Theory of Law
Law: Law is a command of the sovereign backed by sanction.

• His theory is called as imperative theory because its emphasis is on

COMMAND.
• According to him, positive law has four elements:

1. Command,

2. Duty,

3. Sanction and

4. Sovereign.
Command
• A command is the expression of a wish or desire to another that he shall do or forbear
from doing, a particular act coupled with an intimation that, in case he does not comply
with it, he will visited with certain evil consequences.

• The components of command are:

a. Duty. The obligation to follow or comply.
b. Sanction: The evil which results from the non- compliance with the command.

Sanction signifies a method of coercion to enforce the command, not leaving the citizen free
to obey the law or not as he pleases, but to make him obey whether he likes it or not. It
means penalty inflicted for the violation of law.

• According to Austin, there are two types of command:

a. Particular or occasional command: Where it obliges specific or Particular act

or forbearance.
b. General Command/ law or rule: Where it obliges generally to acts or forbearances of class.

Sovereign and sovereignty

Meaning: If a determinate human superior, not in the habit of obedience to a like
superior, receives habitual obedience from the bulk of a given society, that determinate
superior is sovereign in that society and the society (including the superior) is a society
political and independent.

• His definition emphasis on:

a. Obedience which must be habitual or permanent,

b. Sovereign must be superior in the society,
c. The superior must be common to the entire society,
d. Independent of all imperative control from outside.

• According to Austin, there are three essential features of sovereignty.

1. Essential in every State: Every political society or State must essentially have a
sovereign. 2. Indivisible: Sovereignty cannot be divided.
3. Unlimited and illimitable in power: Sovereignty is unlimited and illimitable.
Austin’s Classification
 of law
Out of these all laws
Austin considered only
the positive laws as the
subject matter of
Jurisprudence.
Exceptions to Austin’s theory of law

⚫ He said that there are three exceptions to his theory:

Declaratory laws: Laws that explains or interpret the provisions
of the other laws which is already in force.

Repealing laws: That which repeal an existing law.

Imperfect Laws: That which creates imperfect obligations.

Criticism

• Salmond: The end of law is justice and the theory of Austin

has missed this concept. Any definition of law without
reference to justice is inadequate.
• Customs Ignored: Austin’s view that ‘law is the command of
sovereign’ is not supported by historical evolution of law when
customs played a significant role in regulating human conduct.
• He does not treat international law as law because it lacks
sanction. He mentions it as positive morality.
• Sanction alone is not the means to induce obedience.
• Law is not always command.
What is the place of Austin Law in the
Modern Democratic State?

It does not fit in the modern democratic states which have their written
constitution because –

1. An act passed by Parliament can be declared ultra vires of the Constitution

by the Supreme Court.

2. The present democratic states make the law keeping in view the welfare
and conveniences of their citizen because the public cannot tolerate a dictator
continuously for a long time.

3. Since in a federal Constitution there is a division of powers between the

Center and states hence the sovereignty of the state cannot be indivisible.
 Jeremy Bentham
(1748-1832)
About Bentham
He was born in 1748 in London.

Lawyer but never practiced.

English jurist, social reformer, legal scholar, founder of Utilitarianism.

He was interested in ways to reform the legal system and law on more
rational lines.

He used to write a lot but only few were published in his lifetime.

In 1768, he came across a political tract by Joseph Priestley – Essay on

First Principles of Government- Greatest happiness for the greatest
number was used. Following this he read the contributions

Introduction to the Principles of Morals and Legislation, The Limits

of Jurisprudence Defined, A Fragment on Government.
 He was the founder of Positivism. He should be considered as the Father
of Analytical Positivism. He was Austin’s intellectual God-father from
which Austin borrowed and developed the theory of Analytical
Positivism.

His body is preserved on his instruction and it is now on permanent

display at the University College London.

Bentham: Utilitarianism, Law, Sovereign and Jurisprudence.

Utilitarianism
It is a moral theory that talks about what is right and what is wrong
and based on this how people and institutions should behave and
make decisions.

It is a philosophy that aims for the betterment of the society as whole.

The entire concept of utilitarianism is based on ‘Greatest happiness to the
greatest number of people.’
The pleasure and the pain can be quantified by the Utilitarian/Felicific/Hedonistic Calculus, which
consist of 7 factors:
1. Intensity: How strong is the pleasure?
2. Duration: How long will the pleasure last?
3. Certainty or uncertainty: How likely or unlikely is it that the pleasure will occur?
4. Propinquity or remoteness: How soon will the pleasure occur?
5. Fecundity: The probability that the action will be followed by sensations of the same kind.
6. Purity: The probability that it will not be followed by sensations of the opposite kind. 7.
Extent: How many people will be affected?

Principle of utility
Motive of every individual – Happiness.

Bentham says: “Nature has placed mankind under the governance of

two sovereign masters, PAIN and PLEASURE. They govern us in all
we do, all we say, all we think.
 The principle that approves or disapproves of every action according to
the tendency it appears to have to increase or lessen the happiness of the
person or group.

The right thing to do is whatever will maximize utility. In simple terms

utility means happiness.

Utility: The property of something whereby it tends

a. to produce benefit, advantage, pleasure, good or happiness. b. To
prevent the happening of mischief, pain or evil or unhappiness.
Theory of law
A law may be defined as an:

a. Assemblage of signs, declarative of a volition, conceived or adopted by the

sovereign in a State.
b. Concerning the conduct to be observed in a certain case by a certain person or
class of persons who in the case in question are or are supposed to be subject to his
power. → Law is the will of the sovereign that regulates the conduct of the people to
which it applies.

As regards the force of a law, a law is dependent upon motivations for obedience. It
includes political, religious and moral motivations, comprising threats of punishment and
rewards.

The failure to do or not to do what a law supported by punishment requires is illegal, but
it is not illegal to do or not to do what a law supported by rewards requires.

Greatest happiness of the greatest number ought to be the object of every legislator and
for accomplishing his purpose towards this objective, he possess two instruments:
Punishment and Reward.

Jurisprudence
Divided Jurisprudence into:

1. Expository(What law is)

2. Censorial(what law ought to be) Expository is divided

into: • Authoritative (Derived from Legislative power)

• Unauthoritative (Derived from any other person or source)

He opposed the idea of natural law and natural rights (both of which
are considered “divine” or “God-given” in origin), Called natural law
as ‘Nonsense upon Stilts’ or ‘Anarchical Fallacies’
 HLA Hart
(1907-1992)
About Hart
He was born in 1907.

He earned his bachelor’s degree in 1929 from Oxford University. He

practiced as a barrister in the Chancery courts of London.

Tutor in philosophy from 1946 to 1952. In 1952, Hart served as a

professor of jurisprudence.

Famous works: The concept of Law (1961), The Causation in the Law
(1959) and Law Liberty and Morality (1963).
Criticism on Austin’s Theory

I. All Laws are not orders backed up by threats

a. Sometimes laws confers powers
b. Sometimes the result of not following the law is nullity and not
sanction.
c. Customs are laws and still not orders.

II. The notion of continuity of obedience is deficient, No continuity in

idea of obedience.

III. Austins notion of sovereignty is deficient, unlimited power is not

practical
Theory of law
“Hart unlike his predecessors did tilt towards morality as being not
an integral part of law but at the same time he believed that
morality had an influence on law and he called this ‘the minimum
content of natural law”

Hart agrees in his book that Law is an Obligation, law makes certain
human conduct non-optional or obligatory.
But he disagrees with law being just a command as per Austin’s theory.

Where there is law, there human conduct is made in some sense non
optional or obligatory.

Law: Set of rules. The concept of obligation is the core concept of rule.
Primary rules and Secondary rules
Criticism
1. How the rules of recognition are recognized?

2. Whether it is possible to reduce all the rules of the legal systems to

rules which imposes duties and to rules which confers powers. This is
the over-simplification of a point.
 Hans Kelsen
(1881-1973)
About Kelsen
An Austrian jurist, legal philosopher and political philosopher.

Author of the 1920 Austrian Constitution, which to a very large degree is

still valid today.

Due to the rise of totalitarianism in Austria (and a 1929 constitutional

change), Kelsen left for Germany in 1930 but was forced to leave this
university post after Hitler’s seizure of power in 1933 because of his
Jewish ancestry.

That year he left for Geneva and later moved to the United States in 1940.
In 1934, Roscoe Pound lauded Kelsen as “undoubtedly the leading jurist
of the time.” While in Vienna, Kelsen met Sigmund Freud and his circle,
and wrote on the subject of social psychology and sociology.
About Kelsen
• Late in his career while at the University of California,
Berkeley, although officially retired in 1952, Kelsen rewrote
his short book of 1934, Reine Rechtslehre (Pure Theory of
Law), into a much enlarged “second edition” published in
1960 (it appeared in an English translation in 1967).
 Main points of theory
1. Law is a Normative Science: Law norms may be distinguished from
science norms on the ground that norms of science are norms “IS”
(Sein) which are based on cause and effect such as law of gravitation.
The laws of natural science are capable of being accurately described,
determined and discovered in “IS” which is an essential characteristic of
all natural science while the law norms are ‘Ought’ (Sollen) norms.
Kelsen says, “law is a de-psychologized command, a command which does
not imply a will in a psychological sense of term.”
2. Hierarchy of Normative Relations: He does not want to include in his
theory ‘what the law ought to be and speaks of his theory of law as a
structural analysis, as exact as possible, of the positive law, an analysis
free of all ethical or political judgments of value.’

Main points of theory

3. Separation of Law from other Social Sciences and Morals: He defines ‘science’ as system
of knowledge of a “totality of cognitions” systematically arranged according to logical
principles. Kelsen’s “Grundnorm” is analogous to Austin’s concept of “sovereign” without
which law cannot be obligatory and binding. Thus, Kelsen’s pure theory of law is a theory of
positive law based on normative order eliminating all extra-legal and non legal elements from
it.

4. The “Grundnorm” – Kelsen’s Pure Theory of Law is based on pyramidicalstructure of

hierarchy of norms which derive their validity from the basic norm which he termed as
“Grundnorm”.

5. Pyramid of Norms: Kelsen considers legal science as a pyramid norms with “Grundnorm”
at the apex. The subordinate norms are controlled by norms superior to them in hierarchical
order. The “Grundnorm” is, however, independent of any other norm being at the apex. The
process of
one norm deriving its power from the norm immediately superior to it, until it reaches the
Grundnormhas been termed by Kelsen as “concretization” of the legal system. Thus, the system
of norms proceeds from downwards to upwards and finally it closes at the Grundnorm at the
top.
Essentials of Kelsen pure theory of law

• 1. The aim of a theory of law, as of any science is to reduce chaos

and multiplicity to unity.
• 2. Legal theory is science, not volition. It is Knowledge of what the
law “is” not of what the law “ought to be”
• 3. The law is a normative not a natural science.
• 4. Legal theory as a theory of norms is not concerned with the
effectiveness of legal norms.
• 5. A theory of law is formal, a theory of way of ordering, changing
contents in a specific way.
• 6. The relation of legal theory to a particular system of positive law is
that of possible to actual law.
Postulates of Kelsen pure theory of law
• 1. Law and State are not two different things • 2. No
Distinction between Public and Private law • 3. No
Difference between Natural and Juristic Persons • 4.
No Individual Rights
• 5. Supremacy of International Law
Criticism of Kelsen pure theory of law

• 1. Grundnorm is vague and confusing

• 2. The purity of norms cannot be maintained
• 3. No practical significance
• 4. “Natural Law” ignored
• 5. International Law weakest is the point of pure theory of Law
Kelsen’s Contribution

• Kelsen has made an original, striking and greatly valuable

contribution to jurisprudence.

• Putting away the abstract notions which covered the law, Kelsen took
positive law as the subject-matter of his study.

• His views on law are contained in his book entitled “General Theory
of Law and State.”
MATCH THE PAIRS
NAME OF THE JURIST KEYWORDS OF THEORY

Jeremy Bentham Command of sovereign

Law is set of rules (primary and

John Austin secondary)

Hans Kelsen Utilitarianism HLA Hart Grundnorm

INTRODUCTION
• Historical school is a reaction to Natural school of law
• Studies origin and development of law.
• Salmond said “Just like Analytical Jurisprudence bears
to the systematic exposition of the legal system.
Historical Jurisprudence deals with the general
principles governing the origin and development of law,
and with the influence that affect the law. Historical
Jurisprudence is the history of the first principles and
conceptions of a legal system”
• Law is just like a language according to historical
school, changes from society to society and keeps on
developing through the time.
• Main proponents of this school: Montesquieu, Gustav
Hugo, Herder, Edmund Burke, Savigny, Puchta, Gierke, Sir Henry Maine,
Friedmann.
• Law is made from people according to their changing needs, habits and customs are the
main sources of the Historical School of jurisprudence.
• Basis of law is History, Custom, Traditions, Religion and Habits
• Law is developed along with civilization
• With the changing needs and nature of person, the law should be
changed • Law is formulated for people and by the people
• Law is not of universal validity, or application, everyone develops their own legal habit
and understanding
 Montesquieu
(1689-1755)
Montesquieu and his contribution
•Political Philosopher
•French judge
•Man of letters
•Historian

Famous work: De l’esprit des lois (The Spirit of laws)

Also Gave “Theory of Separation of powers”, which is implemented in many constitutions of
the world.
First Jurist who followed the Historical method.

“Laws are the creation of climate, local situations, accident or imposture”

Related society and law by suggesting that law should answer the needs of the time and place
and should be determined by the country’s national characteristics. (which was a new
direction of thinking at his time)
 Fredrich Carl Von
Savigny (1779-1861)
 About Savigny

• Savigny is regarded as a father of the Historical school.

• He was a German Philosopher, in 1810 he went to work as a professor
at the University of Berlin.
• In 1803 he established his reputation with a book The Jus Possessionis of the
Civil Law.
• In 1814 Savigny wrote the pamphlet Vom Beruf unserer Zeit für
Gesetzgebung und Rechtswissenschaft (Of the Vocation of our Age for
Legislation and Legal Science)
• His theory came as a powerful weapon reaction against 18th century
“rationalism” and principles of “natural law”, the advocates of which tried
to establish a legal theory of universal application without any consideration
of time and place.
Main proposition of theory
1. Source of Law is Volksgeist : Law is product of the people’s life- it is a
manifestation of its spirit. Law has its source in the general consciousness
(Volksgeist) of the people.
2. Law develops like language and has a national character: It is so because of
common faiths, beliefs and convictions between two. He pointed out that “law
grows with the growth of society and gains its strength from the society itself and
finally it dies away as the nation loses its nationality.”
3. Early Development of Law is Spontaneous; Later on it is developed by Jurists in
the earlier stages law develops spontaneously according to the internal needs of
the community but after the community reaches a certain level or civilization, the
different kinds of national activities, hitherto developing as a whole, bifurcate in
different branches to be taken up for further study by specialists such as jurists,
linguists, anthropologist, scientist etc. Law has to play a dual role, namely as a
regulator of general national life and as a distinct discipline for study.
Main proposition of theory
4. Savigny’s View on Codification of Law – Not totally against codification of
laws. He, however, opposed the codification of the German law on the French
(Napolenic Code) pattern at that time because Germany was then divided into
several states and its law was primitive, immature and lacked uniformity.
5. Law is Continuous and Unbreakable Process – Continuous and
Unbreakable process bound by common cultural traditions and
beliefs.
6. Savigny’s Admiration for Roman Law – He, therefore, located Voksgeist in
the Romanised German Customary Law.
Essential features of the theory
1. Law has an unconscious organic growth, it is found and not
artificially made.
2. The basis of law is to be found in Volksgeist which means people’s
consciousness or will, which consists of traditions, customs, habits,
 practices and beliefs of the people.
3. Law is not universal in nature but like language, it varies with the
people, time and needs of the community.
4. Since law should always conform to popular consciousness i.e.
Volksgeist, custom not only precedes legislation but is superior to
it.
5. With the growing complexity of law, the popular consciousness is
represented by lawyers who are nothing but the mouthpiece of the
popular consciousness. It is for this reason that lawyers and jurists are
more important than legislators in process of development of a legal
system.
Criticism of the theory
1. Inconsistency in the Theory.
2. ‘Volksgeist’ not the Exclusive Source of Law 3.
Customs not Always Based on Popular Consciousness 4.
Savigny Ignored Other Factors that Influence Law 5.
Many Things Unexplained
6. Juristic Pessimism
Savigny’s contribution

• Interpreted jurisprudence in terms of people’s will.

• Paved way to the modern sociological approach to lay laying greater
emphasis on relation of law with society.
• Ehrlich devised his theory of interest on the foundation laid by Savigny.
• His approach to law also gave birth to comparative jurisprudence which
has been accepted as one of the most important branches of legal studies
in modern times.
• His theory contained the germs of future sociological theories.
 Georg Friedrich Puchta
(1798-1846)
About Puchta
 • Puchta was a German Jurist.
• He was a disciple of Savigny and a great jurist of Historical
school of Jurisprudence.
• He was Savigny’s most popular student.
• Mostly similar views as Savigny, he basically improved upon
the work of Savigny.
Puchta’s Theory of law

• Georg Friedrich Puchta’sideas were more logical and improved than Savigny’sideas.
• He traced the development and evolution of law from the very beginning.
• His ideas mainly focused on the situation when conflict arises between general will
and individual will.
• In the conflict between general will and individual will, the state came into existence. And
 find out the midway to resolve the conflict.
• The main concept of Puchta’sideas was that “neither the people nor the state alone can make
and formulate laws”. Both State and individual are the sources of law.
• For the sake of maintaining peace and actual evolution law, he argued that general will
should take precedence over individual will.
• Furthermore, the state’s position was discussed, which is extremely important. The state
prioritized the general will and interest of the people while downplaying individual
interests, resulting in a functional system.

Puchta’s contributions

• He discussed two dimensions of human will, as well as the

origins of the state.
• Even though Georg Friedrich Puchta was Savigny’s student,
Puchta improved Savigny’s views and gave them a better
logical interpretation.
 Sir Henry Maine
(1822-1888)
About Henry Maine
• Sir Henry James Sumner Maine (15 August 1822 - 3 February 1888).
• Books – Ancient Law, Village Communities, Early History of Institutions,
Dissertation of Early Law and Custom.
• Famous for the thesis outlined in his book Ancient Law that law and
society developed “from status to contract.” According to the thesis, in the
ancient world individuals were tightly bound by status to traditional
groups, while in the modern one, in which individuals are viewed as
autonomous agents, they are free to make contracts and form associations
with whomever they choose. Because of this thesis, Maine can be seen as
one of the forefathers of modern legal anthropology, legal history and
sociology of law.
Maine’s view on development of law

• Maine, through his comparative

 researches came to the conclusion that the
development of law and other social
institutions has been more or less on an
identical pattern in
almost all other ancient societies belonging
to Hindu, Roman, Anglo Saxon,
Communities. Hebrew and Germanic
• It is because of his kinship, namely blood
relationship with the family that a person
acquired status. Thus, the law of person was
to be determined on the basis of his status.
Reversal of trends from contract to status

• It is submitted that with the advance of time and due to the impact of
industrialization, urbanization and modernization, new problems of
unemployment, hunger, ignorance, disease etc., have cropped up
giving rise to inequality between individuals and groups within the
society. Consequently, there came a counter-current of reversal from
contract to status in the time of Maine himself.
Stages of development of law

1. Law made by the Ruler Under Divine Inspiration

2. Customary Law
3. Knowledge of Law in the Hands of Priests
4. Codification

Static and progressive societies

• The societies which do not progress beyond the fourth stage, closes
the era of spontaneous legal development are called static societies.
The societies which go on developing their law by new methods are
called progressive.

• Progressive societies develop their laws by three methods –

1. Legal fiction
2. Equity
3. Legislation
Contributions of maine
• Maine improved upon the theory of Historical School.
• Maine studied the legal systems of various communities and by their
analysis laid down a comprehensive theory of the development of
law.
• He inspired later jurists.
INTRODUCTION
• The main subject matter of sociology is Society.
• Sociology is the study of society, human behavior, and social changes.
• And jurisprudence is the study of law and legal aspect of things.
• The Sociological school of Jurisprudence advocates that the Law and society are related
to each other. This school argues that the law is a social phenomenon because it has a
major impact on society.
• Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.

Laissez-faire No interference Welfare Sociological school of Jurisprudence

• Auguste Comte. • Duguit
• Ihering
• Ehrlich
• Roscoe Pound Durkheim
JURISTS

Duguit Auguste comte

 Auguste Comte
(1798 – 1857)
Auguste Comte
• August Comte (1798-1857) was a French Philosopher.
• The term “Sociology” was first used by the Comte.
• He described Sociology as a positive science of social facts. • He said
that Society is like an organism and It could progress when it is guided by
Scientific Principles.
• Thus, he makes great efforts to use the law as a tool by which human
society maintains itself and progresses.
• Dependent on observation & experience
• It excludes all metaphysical considerations.
 David Émile Durkheim
(1858 – 1917)
Durkheim
Concept of solidarity:

• Mechanical Solidarity: same kinds of needs, mutual

assistance For eg: Same religion, Same culture

• Organic Solidarity: diverse needs, exchange of services, division of

labour
For eg: Teacher, Doctor, CA, Advocates

• Duguit was inspired, so gave Social Solidarity

 Leon Duguit
(1859-1928)
Leon Duguit
• Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law).
• He was greatly influenced by the AugusteComte and Durkheim.
• He gave the theory of Social Solidarity which explain the social cooperation between
individuals for their need and existence.
• Organic Solidarity- division of labour-interdependancy
1. End of all human activities- Social solidarity
2. Law is also to serve this purpose
3. Public & Private Law- no diff
4. No private rights

Criticism: like natural law

Confuses ‘is’ with ‘ought

Contribution: great, comprehensive approach, theory of justice out of doctrine of sociology

 Inhering
(1818-1892)
 Ihering

• Inhering was a German jurist and described as ‘the father of modern sociological
jurisprudence’.
• His main work is ‘The spirit of law’. But he is very well known for his principal: Wor
Der Zweck in Reett (1877-83) = ‘Law as a means to an End’.
• He rejected the Analytical and Historical jurisprudence as the jurisprudence of conceptions.
• He says that the law is coercion organized in Act by the state. It is a way to achieve a proper
balance between social and individual interests.
• It is through two impulses-coercion, and reward that society compels individuals to
subordinate selfish individual interests to social purposes and general interests. • Thus his
insistence on the need to reconcile competing individuals and social interests made him ‘the
father of the modern sociological jurisprudence that inspired jurists like Roscoe Pound and
others.
1. Law as a result of Constant Struggle
2. Law as a means to serve Social Purpose

3. Law as one of the means to control society Criticism:

• Points problems not solutions
 • Reconciling of conflicting interests…but how???

Eugen Ehrlich
(1862-1922)
 Ehrlich

• Ehrlich another eminent jurist of the sociological school primarily expounded

the social basis of law.
• Like Savigny, he believed in the spontaneous evolution of law but he did not hang
on to the past but conceived law in the context of existing society and thus evolved
his theory of living law.
1. Formal Law
2. Living Law
• The central point of Ehrlich’s thesis is that the law of a community is to be found
in social facts and not in formal sources of law.
• Main source of law = SOCIETY → men in Association
• “At present as well as any other time, the centre of Gravity of legal development
lies not in legislation, nor In judicial decision, but in society itself”
• Criticism: no distinction between legal & Social Norms
 Roscoe Pound
(1870-1964)
About Roscoe Pound
• Pound was an American Legal Scholar.
• His view is that law should be studied in its actual working and not as it
stands in the book.
• He was one of the most leading and important jurists who developed
American sociological jurisprudence is a systematic manner.
• His major works are: Spirit of the common law, An introduction to the
philosophy of law, Interpretation of legal history, Law and morals, The
formative era of American law, Administrative law, Social contract through
law, The task of law.
• He treated law as a means of affecting social control and his contribution
to jurisprudence is great.
Theory of Social Engineering

• The American Jurist, Roscoe Pound propounded the theory of social

 engineering.
• According to him, as Engineers need to use their engineering skills to
manufacture new products, Social Engineers too need to develop a type of
structure in the society which provides utmost happiness and minimum
friction.
• He said that everyone has their individual interests and consider it to be
supreme to all other interest.
• The law focuses on seeking a balance between the interests of the
people. • The Task of Law is “Social Engineering”
• “Social Engineering” Means a Balance Between the Competing Interests
in Society
Interest theory
• Roscoe Pound in his interest theory mentioned the three kinds of interest. To
avoid the overlapping of the interests, he put boundaries and divide the kinds
of interests.
• Individual Interest
• These are claims or demands involved from the standpoint of the individual life
which consists of interest of personality, interest in domestic relations and interest
of substance
• Public Interest
• These are the claims or desires asserted by the individual from the standpoint 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. Interest in
the preservation of state
• Social Interest
• These are the claims or demands in terms of social life which means to fulfill all
the needs of society as a whole for the proper functioning and maintenance of it.
Interest in the preservation of general peace, health, security of transaction’s,
preserving social institutions like religion, politics, economic
Jural postulates
• According to Roscoe Pound, every society has certain basic assumptions for proper
order and balance in society. These assumptions are implied and not in expressed form and
are called as Jural Postulates of the legal system of that society. These assumptions of man
related to the reference for what they want from the law or legal system or we can say that
it is the expectation of a man from the law. He has mentioned five kinds of jural postulates:
1. In a civilised society, man must be able to assume that others will not commit any
intentional aggression on him.
2. In a civilised society, man must be able to assume that they must control for beneficial
purposes. E.g.- control on whatever they discover or create by their own labour.
3. In a civilised society, man must be able to assume that those with whom they deal as a
number of societies will act in good faith.
4. In a civilised society, man must be able to assume that the people will act with due care
and will not cast unreasonable risks of injury on others.
5. In a civilised society, man must be able to assume that certain people must restrain from
doing harmful acts under their employment and agencies which are otherwise harmless
to them.

Criticism and Contributions

• Criticism:
• Engineering Not a Happy Word
• Classification of Interests Not Useful
• Contributions:
• His theory stands on a practical and firm ground.
• He emphasized on studying actual working of legal rules in the society,
the importance of social research for good-law making and pointing out
the great constructive function which law is to perform are very valuable
contribution to jurisprudence
• He points out the responsibility of the lawyer, the judge and the jurist and
gives a comprehensive picture of the scope and field of the subject.