Words: 1915
Every human being has also born with some series and expectations which are inherent in nature. 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 ћinterest. It is impossible to fulfill all the desires of a human being. So 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 Rose Pounds. The force which asks for the adoption of Social engineering is nothing but the conflict of interests of individuals.
Interests more particularly the conflicting interest are the subject of Social Engineering. Social engineering is based on the notion that Laws are used as a means to shape society and regulate people”s behavior. It is an attempt to control the human conduct through the help of Law 4. According to Pound, ћLaw 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. For this purpose this paper is going to discuss about the mechanism of Law in bringing Social Engineering.
The object of the paper is to find out how Law helps in harmonize conflict of interests. According to Pound, Law is Social Engineering 6. He says that “like an engineer”s formulae, laws represent experience, scientific formulations of experience and logical developments of the formulations, also inventive skill in conceiving new devices and formulating their requirements by means of a developed technique” 7. He called this theory as ћTheory of Social Engineering”. Here Pound has used two words I. E. ћSocial” means group of individual forming a society.
The second rod is ћEngineering” which means applied science carried out by engineers to produce finished products which are necessary for the society and which fulfill all their needs. By combining these two words he tries to say about engineers and what they do. They use the formula which is based on continuous experimentation and experience to get the finished product by means of an instrument or device. Therefore Pound represents ћexperience with law”, ћinstrument with organs of government, ћengineers with Judge and lawyer” and ћfinished product with the wants of human beings” and ћsociety with a factory”.
It is my desire. But this desire cannot be fulfilled because there is no legal recognition as there is no state”s interest in standing first position. Therefore law has to take into account the desires which need recognition. For the purpose of satisfying human interests, Pound defined interest as ћclaims or wants or desires which men assert De facto about which the law must do something if organized societies are to endure”9. Pound classified various interests which are to be protected by the law under three categories which are the following 10: 1 .
It is also found that interests are the subjects on whom law has to apply social engineering. How to evaluate the conflicting interests in due order to priority? What are the guidelines on the basis of which social engineering should be carried out? Pound”s answer by saying that every society is based on basic assumptions which help in ordering of interest 12. One the interest which is in the benefit of the maximum people. Thus these assumptions are identified as Juror postulates which are based on hypothesis’s.
According to Pound, Juror postulates are not the absolute one and they keep on changing as the needs of the situation, place and time demands. In 1919, Pound summarized the postulates which every individual in civilized society must be able to take it for granted that 14: I. Others will not commit any intentional aggressions upon him. E. G. Assault, battery, wrongful restraint etc. It. Others will act with due care and will not cast upon him an unreasonable risk of injury. E. G. Negligence iii. He can appropriate what he has created by his own labor and what he has acquired under existing economic order for his own use.
Roland vs.. Fletcher case In 1942, Pound added three new postulates in the list which are 15 I. IL. A person will have security as a Job holder. E. G. Ruled by labor law, law of contract Society will bear the burden of supporting him when he becomes aged. E. G. 1/3 rd concession in railway ticket, ceiling of income tax range is more. Iii. And the society as a whole will ear the risk of unforeseen misfortunes such as disablement. E. G. Reservation quota for physically disabled person in education, travel etc. The Juror postulates are to be interests and harmonize them.
Somehow Pound has told about the procedure of evaluating interests. But he has not said anything about the interest which will be given more priority over other. Whether balance between Individual and Social Interest can be achieved or not? According to Pound, balance of competing interest means satisfaction of maximum interests with less friction and waste. It means to reconcile and adjust the social and individual interest. But in practice two interests cannot be balanced. It is also found that Pound has not given much detailed attention to the way one conflicting interest is to be compared with another.
Balance can only be done only when two things are able to be compared. Here, the ћbalancing” metaphor is misleading 16. If two interests are to be balanced, that presupposes some scale or yardstick to measure and two things should be able for comparison. For balancing of anything, mathematical calculation or ratio is the outcome. For e. G. In case of ecological balance, the amount of CO in terms of % is to e balanced with 02 which means reduction of CO by forestation or increasing the level of 02 by forestation so that ecological balance can be attained.
Therefore balance means to upgrade one thing at par with other so that neither of the two things loses anything. 151617 ibid ibid ibid As per Pound”s theory, there is a clause relating to the protection of natural environment coming under social interest. There is no doubt that every society wants a healthy environment and the factory producing nuisances and pollution needs to be closed. It is in the interest of whole public for which factory is closed and the axiom satisfaction of people is achieved. But the owner of the factory having Individual Interest suffers a lot.
In this circumstance, though maximum interest of the people is satisfied with least sacrifice of individual interest of the owner but balance between Individual and Social Interest has not been achieved because one has to suffer and other has to gain. When there is a matrimonial dispute between a husband and wife and wife gets a divorce decree against her husband, in this case interest of wife prevails over the husband and balance of two Individual Interests is to there because husband has to give maintenance to wife and children for which the husband suffers a lots.
Exception is in case of Divorce by Mutual Consent in which both husband and wife are satisfied with divorce decree and their individual interests are fulfilled. By above discussion it is opined that conflicting interests can be satisfied by reconciliation and adjustment and the word balance is not the appropriate one for conflicting interest. How does the satisfaction of the maximum of wants with the minimum of friction and waste can be done? Pounds theory asks for the maximum gain with least friction and waste I. Maximum satisfaction of human wants or expectations with least sacrifice. 18 Here Pound wants to bring maximum of wants of the human being in a society. Pound says that for social control, interest is the only thing which should be taken into account and Law is a means of social control. Thus law should work for balancing of interest within the society I. E. Satisfying maximum interest with least waste. Somehow this theory gives prime importance to interest of public at large over individual interest and if interpreted strictly then they may result in eliminating individual interest.
In this case regarding the compensation the Court said that the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation has a deterrent effect for future accident. 0 After this case, Central government passed an Act known as ћThe Opal Gas Leak Disaster (Registration and Processing of Claims) Act, 1985″ in which sec. 5 of this Act says about the categorization and registration of claims 23. The various claims of the each individual relating to their own body, property and the claims arising from damage to flora and fauna were registered.
Finally the maximum claims of the people were satisfied with least sacrifice of individual interest. By this act it can be seen that how various claims were categorized and compensation were given, which ultimately says that law is an instrument of social change. 0 In Deep vs.. S. ‘ of Policies It was held that the interest of society should be given paramount inconsideration over the individual interest of those who are running the show for profit and who are also earning livelihood by performing the cabaret dance in a hottest.
It was a situation where the whole public says that the dance was obscene in the eyes of onlookers, which is an offence lulls 294 of EPIC 1860. Hence it is found that Social Interest prevails over the Individual Interest. But this is not true in many cases. Social Engineering deals with as many satisfactions of human wants which means law should play an important role in bringing social change by fulfilling the interest of the society as a whole.
There are also instances where individual interest has priority over social interest. 0 According to Access of Evidence Act 1872, marital communication between husband and wife which is an individual interest in domestic relation are privileged 26. Then Social Interest can be fulfilled by securing privilege communication (matrimonial communication) in which individual interest in connection with domestic relation is first privileged and which in turn secure the social institution of marriages. 24 25 26 1986 CNN L. J. 120 Kraal De 2008,central Law publication,Peggy Access of Evidence Act says that No person who is or has been married shall be impelled to disclose any communication made to him during marriage by any person to whom he is or has been married, nor shall he be permitted to disclose any such communication, unless the person made it, or his representative in interest , consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
Law has given preference to the interest of backward classes through reservation in government Jobs, educational institutions, which not only hampers the interest of eligible candidate but also it hampers the interest of the public at large. By this type of law general people cannot tell that this reservation policy which comes under constitutional law is a bad law for them. Sometimes bad law becomes good law. Here Law helps in social engineering by giving special protection to the minority class progress by bringing the minority class equally to the standard of upper class.