06 - Duguit & Roscoe Pound (Sociological School) PDF

LEON DUGUIT (1859-1928)
Duguit gave the theory of Social Solidarity. Social Solidarity is the

feeling of oneness. This theory explains men‟s dependence on his fellow men.
Without relying on other men, no one can survive. Each man cannot
manufacture and procure the necessities of life himself.
Social solidarity is thus, a direction towards mutual (social) cooperation

among individuals in society. – for their need and existence. It promotes justice.
In the present day society, man has a membership of the society.
Solidarity is not a rule of conduct. It is the fundamental fact of all human

societies. These are moral duties.
He also said that each individual had the right and obligation to encourage
social solidarity. For example, in India, everyone follows the codified
legislation. It is therefore promoting social solidarity.
Duguit has made No Distinction between Public and Private Rights. Because
both are to serve the same function i.e. „Social Solidarity‟. Moreover, he denies
the existence of private rights. He says that the only right which any man can
possess is the right to always do his duty
Criticism: - Duguit‟s theory has been criticized on ground various

grounds:
1. „Social solidarity‟ a Natural Principle – It is nothing but natural law in a

different form. Few jurists observed about the theory of Duguit as he
“pushed natural law out through the door and let it come by the
window.” Like natural law theories, he establishes a standard (social
solidarity), to which all positive law must conform.
2. The idea of social solidarity is very vague. His theory may be subjected to
different interpretations to serve divergent purposes. Some of the example
are given below:
 Duguit‟s identity of interest of various groups in the society and
minimization of conflict has often been used to suppress trade unions and
other organisations and glorified the state, giving it a towering
personality.
 The Soviet Jurists used Duguit theory to establish that individuals have
no right.
3. He confuses „is‟ with „ought‟ - According to his view, “if law does not
further the „Social Solidarity‟ it is no law at all”.
Despite defects and weaknesses in Duguit‟s theory, his contribution and

influence was great. His approach is very comprehensive and sincere. He
shaped a theory of justice out of the doctrines of sociology.
__________________________________________________
ROSCO POUND (1870-1964)
He was one of the most leading and important jurists who developed American
sociological jurisprudence is a systematic manner. He treated law as a means of
affecting social control and his contribution to jurisprudence is great.
Roscoe Pound gives the THEORY OF SOCIAL ENGINEERING in

which he compared lawyers with the Engineers. Engineers are required to use
their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the
society which provides maximum happiness and minimum friction. The main
function of law is to satisfy the maximum number of people.
He stresses on the need of paramount co-ordination and co-operation between
the legislators, administrators, judges and jurists to work together for the
effective implementation of law for securing material satisfaction, social
harmony and social justice to the general public with the minimum conflicts
According to Pound, Law contains the rules, principles, conceptions and

standard of conduct - which is collectively referred as a developed technique of
social engineering.
Through this technique of social engineering - a balance between the

conflicting interest in society should be there for resolving individual and social
problems. This can be done with the help of law. Law is used to solve the
conflicting interest and problems in society.
He mentioned that everybody has its interest and considered it supreme

over all other interest. The objective of the law is to create a balance between
the interests of the people.
For Example, Article 19 of the Indian Constitution provides „Rights to

speech and expression‟ but on the other side, State put some restriction on this
right. And when the conflict arises between Individual right and State‟s
restriction, then the law comes to solve the conflict between the interests.
INTEREST THEORY
He describes that there are various kinds of interests in society and the main
task of law is to make all possible efforts to avoid conflict between them. Thus,
courts, legislature, administrators and jurists must work with a plan and make
efforts to balance these three categories:
 Public Interest
 Private Interest
 Social Interest
I. Individual/ Private Interest
These are claims or demands from the viewpoint of the individual life. It
consists of interest of personality or interest in domestic relations. Like physical
integrity, reputation, etc. They are protected by the law of crime, torts and
Contract Law, etc.
Domestic relations of a person such as a husband and a wife, parents and

children, etc. are protected by Personal Law. The interest of the property,
succession, contractual relations, testamentary relations, etc. are protected by
Property Laws.
II. Public Interest (among people)
These are the claims or desires asserted by the individual from the standpoint of
Society. Every individual in a society has a responsibility towards each other
and to make the use of things which are open to public use.
Administration of trust, charitable contracts, protection of the

environment, regulation of public employment, etc. are being protected by the
States.
III. Social Interest (between citizen and government)
These are the claims or demands in terms of social life which means to fulfil 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 transactions,
preserving social institutions like religion, politics, economic, Prohibiting acts
like prostitution, gambling, etc.
JURAL POSTULATES by Roscoe Pound
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. They are called Jural Postulates of the legal system of that
society.
These assumptions are more like expectations of a man from the law or legal
system - for what they want from the law. He has mentioned five kinds of jural
postulates:
In a civilised society, man must be able to assume ;
1. That others will not commit any intentional aggression on him.

For Example - Assault, Wrongful restraint, Battery, etc (Criminal law)
2. That they must be able control whatever they discover or create by their
own labour - for beneficial purposes.
For Example - agricultural land, any music or artistic things (Law of
Patent)
3. That others will act in good faith and due care. They will not cause any
injury to others.
For Example - Protection against Defamation (Torts)
4. That certain people must not do any harmful act which can be avoided by
them or which are otherwise harmless to them.
For Example - Strict Liability - It is the duty of other people to keep
his/her things within his/her boundary. They should look after that
thing to avoid injury to other people.
So, these Jural Postulates are a sort of ideal standards which law should pursue
in society for civilised life.
Criticism
Despite Pound‟s great contribution to sociological jurisprudence - his theory of

social engineering has been criticised on various grounds.
1. It has been argued that the classification of interests by the Pound is in the
nature of a catalog. Additions and changes must be made to it regularly.
2. Theory of social engineering has been criticized for its use of the term
„engineering‟, which equates society to a factory like a mechanism. Law is a
social process rather than the result of applied engineering.
3. It is also not right to equate society with a factory because the society is
changing and dynamic in nature while the factory is more or less stable.
4. Again, Pound‟s ignores the fact that law evolves and develops in society
according to social needs and wants.
SOCIOLOGICAL JURISPRUDENCE WITH INDIAN PERSPECTIVE:
Sociological jurisprudence in India can be seen in many laws and enactments in

India. In India, Sociological Jurisprudence has been adopted in the Indian
Constitution.
Part III of The Constitution of India solely deals with the Fundamental
Rights of the citizen and people of this country wherein the citizens and the
people are provided with certain rights. These rights are provided by
recognizing the public and private interest of the individual.
Indian planners introduced the system of economic planning in India with a

view to promote the welfare of the people by securing and protecting a social
order in which justice, social, economic and political shall inform all institutions
of national life.
Further, there are several cases where India has remarkably adopted the
concept and principles of Sociological Jurisprudence. This can be seen by the
judgments delivered by the apex Court;
1. In the State of Madras vs Champakam Dorairajan, the Court held that

Article 46, being a directive principle cannot override the fundamental
rights. The concept of Sociological Jurisprudence has been taken into
consideration while delivering the judgment.
2. In N. Adithayan vs Travancore Devaswon Board and Ors, the court
observed that distinction based on caste could not be allowed to enter into
the social fabric of the society. Thus, the Court confirmed its stand that
discrimination of any sort, amounting to untouchability would not be
tolerated.
3. The Court in Bandhowa Mukti Morcha vs Union of India, held that the
Court should devise a new method and adopt new strategies for the
purpose of making fundamental rights meaningful for the large masses of
people
4. In Sarla Mudgal v Union of India, the court embracing the concept of
Sociological Jurisprudence said that marriage celebrated under one
personal law cannot be dissolved by the application of any other law.
Conclusion:
It is to be stated that howsoever divergent the views of various sociological

jurists may appear. They have one common point that the law must be studied
in relation to society. But it should not be taken to mean that other methods
have completely ceased to exist.
__________________________________________________

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LEON DUGUIT (1859-1928)

Duguit gave the theory of Social Solidarity. Social Solidarity is the

Social solidarity is thus, a direction towards mutual (social) cooperation

Solidarity is not a rule of conduct. It is the fundamental fact of all human

Criticism: - Duguit‟s theory has been criticized on ground various

1. „Social solidarity‟ a Natural Principle – It is nothing but natural law in a

Despite defects and weaknesses in Duguit‟s theory, his contribution and

ROSCO POUND (1870-1964)

Roscoe Pound gives the THEORY OF SOCIAL ENGINEERING in

According to Pound, Law contains the rules, principles, conceptions and

Through this technique of social engineering - a balance between the

He mentioned that everybody has its interest and considered it supreme

For Example, Article 19 of the Indian Constitution provides „Rights to

I. Individual/ Private Interest

Domestic relations of a person such as a husband and a wife, parents and

II. Public Interest (among people)

Administration of trust, charitable contracts, protection of the

III. Social Interest (between citizen and government)

JURAL POSTULATES by Roscoe Pound

According to Roscoe Pound, every society has certain basic assumptions

In a civilised society, man must be able to assume ;

1. That others will not commit any intentional aggression on him.

Despite Pound‟s great contribution to sociological jurisprudence - his theory of

SOCIOLOGICAL JURISPRUDENCE WITH INDIAN PERSPECTIVE:

Sociological jurisprudence in India can be seen in many laws and enactments in

Indian planners introduced the system of economic planning in India with a

1. In the State of Madras vs Champakam Dorairajan, the Court held that

It is to be stated that howsoever divergent the views of various sociological

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