JURISPRUDENCE

Arvind Nath
Tripathi
DSNLU

Sociological School
Auguste Comte(1786-1857)-He was the
first to use the term Sociology.
French philosopher
According to Comte,society is like an
organism and it can progress when it is
guided by scientific principles which
should be formulated by observation
and experience of facts excluding all
metaphysical
and
similar
other
considerations.
Law as an instrument of social progress

Montesquieu(1689-1755)
French philosopher
He was the first to recognize and
take account of the influence of
social conditions on the legal
process.
In The Spirit of Laws he
declared that law should be
determined
by
a
nations
characteristics

August Comte(17981857)
Founder
of the science of
sociology.(French philosopher)
The
legitimate
object
of
scientific study, according to
Comte,is society itself and not
any particular institution of
government
He rejected the view that society
rests upon an individualistic
basis and that the individual is

Ihering(1818-1898)
German jurist(teacher of Roman
Law)
Published his magnum opus from
1852 to 1865 in four volumes
under the title The spirit of the
Roman law in various stages of
its development.
In The Struggle for Law
published in 1872,he developed
the thesis that the origin of law

Duguit(1859-1928)
Duguit was a Professor of Constitutional
Law in the University of Bordeaux in France.
Principle of Social Solidarity
There are diverse needs of individuals which
are satisfied by the exchange of services.
Division of labour-against the arbitrary
actions
All human activity and organization should
be directed to the end of ensuring the
harmonious working man with man.

Social Solidarity
Social Solidarity is the touchstone of
juding the activities of individuals and
all organizations.
Favour of strong checks on the abuse
of
State
power
through
the
establishment of the strict principles
of State responsibility.
State
is
sovereign,
but
such
sovereignty has its limits.
Law which does not stand the test of
social solidarity is not a valid law.

Duguit
Law is a spontaneous product of
individual consciousness, inspired at
the same time by social necessity .
No distinction between private and
public law. Both must serve the same
end of social solidarity.
The essence of Law is duty
Interdependence of man is a fact,
social solidarity "is an idea.

Roscoe Pound(18701964)
Dean in Harvard Law School
Most influential proponent of the
American
Sociological
jurisprudence
Law as a social institution
created and designed to satisfy
human(individual
and
social)
wants.
Society should be the focal point
of law

Social Engineering
According to Pound, sociological
jurisprudence should ensure that
the making ,interpretation and
application of laws take account
of social facts.

Social Engineering
Man is a social animal and needs a society for his
leaving, working and enjoying life
The force which asks for the adoption of Social
engineering is nothing but the conflict of interest
of individuals
Social" means group of individual forming a
society
Engineering", he explained his concept by
explaining the role of engineer and equating it to
lawyer's. Just as an engineer chalks up a plan
before starting a project so do lawyers they must
with work with a goal I mind to uplift society

Meaning of Holistic
Chiefly Philosophy Characterized by the
belief that the parts of something are
intimately interconnected and explicable
only by reference to the whole. As per
Oxford Advanced Learner's Dictionary.
The definition of holistic is relating to the
idea that things should be studied as a
whole and not just as a sum of their parts.
An example of holistic is health care that
focuses on the health of the entire body
and mind and not just parts of the body.

Jural Postulates
According to Roscoe Pound, law
is
an
instrument
of
social
engineering. The task of jurists
is to find out those factors which
would help in the development
of culture conducive to the
maximization of satisfaction of
wants.
These
factors
are
principles as Jural Postulates.

Jural Postulates
The problem which juridical
science has to face is the
evaluation and balancing of
theses
intersts.For facilitating
this process, Pound has provided
what he calls the jural postulates
of civilized society. In 1919 he
summarized these postulates as
follows:
Every
individual
in
civilized

Jural Postulates
(1)He can appropriate for his own use
what he has created by his own labour,and
what he was has acquired under the
existing economic order; Ex-agricultural
land,house,food,ownership,Copyright;
(2)That other will not commit any
intentional aggression upon him; Exwrongful restrain;
(3)That others will act with due care and
will not cast upon him an unreasonable
risk of injury;Ex-negligence.

Jural Postulates
(4)That the people with whom he deals will carry
out their undertaking and act in good faith.Exdefamation,Bank loan.
In 1942 Pound added to this list three more
postulates, namely,
(5)That he will have security as a job-holder; Exlaw of contract, ruled by labour law;
(6)That society will bear the burden of supporting
him when he becomes aged; Ex-concession in
Railway ticket to senior citizen; bank;
(7)That society as a whole will bear the risk of
unforeseen misfortunes such as disablement .Exreservation in employment and education

Jural Postulates
The jural postulates are to be applied
both by the legislators and the judges
for evaluating and balancing the various
interests and harmonizing them.
Justice Cardozo writes: If you ask how
he is to know when one interest
outweighs another, I can only answer
that he must get his knowledge from
experience and study and reflection; in
brief from life itself.

Judicial Application
Pound suggested that judicial application of law should take
into account the following factors:
1.The factual study of social effects of the administration of law.
2.Social investigations as preliminaries to legislation.
3.The means by which the law can be made more effective
should be devised.
4.A study of legal and philosophical aspect of judicial method.
5.Sociological study of Legal History.
6.The achievement of the purpose of law.
7.Possibilities of jurisprudence of interests and reasonable
solution of the individual case.

INDIVIDUAL INTEREST VS
SOCIAL INTEREST

Fundamental rights and directive

principles provisions were brought
in with the idea of greater social
equality. This clearly shows that the
affirmative action in India was
incorporated in the Constitution of
India, which is the basic policy
document, as a reconciliation of
individual and societal interest and
to emphasizing on purposive law
making
method
under
the
sociological
jurisprudence,
to
address the need of Indian society

INDIVIDUAL INTEREST VS SOCIAL

INTEREST
Viewing
from
the
lens
of
sociological jurisprudence, we
could say that conflict model
which exist in India, still provide
the
poor
and
marginalized
people a say in the government
policy and law-making and still
purposive and responsive law is
made with striking the balance
of
need
of
society
and
individuals. Legislations such the

LAW AS PURPOSIVE AND NEED-BASED

Roscoe Pounds concept of law is of practical

importance which inspires judges, legislators and
jurists to mould and adjust law to the needs and to
interests of the community. Since the society is
always changing law should be continually
adapted and readapted to the needs of individuals
and society. He, therefore, stresses the need of
paramount
co-ordination
and
co-operation
between the legislators, administrators, judges
and jurists to work in unison towards the
realization and effective implementation of law for
securing social harmony and social justice to the
general public with the a minimum of waste or
friction and maximum of material satisfaction of
wants, needs and interest.

Technique of Social Engineering:

Pound advocated the technique of Social

Engineering for the purpose of balancing the
conflicting interest of the society, in order to
achieve maximum satisfaction of maximum
want of the individuals. He advocated that
the study of law should be supplemented by
social aspects so that it may become more
attractive and useful. Spencer and Bentham
also in a way directly and indirectly applied
law to men in society.

Private Interests / Individual Interest

Individual interests, according to

pound are claims, or demands or
desires, involved in and looked at
from the stand point of the
individual life immediately as
such asserted in title of the
individual
life.
In
individual
interest Dean Pound includes-

Individual Interest
(a)Personality- interest of personality
consist of interests in the physical person,

freedom of will,

honour and reputation,

Privacy , and

Belief and opinion.

Individual Interest
(b)Domestic relations - it is important to
distinguish
between
the
interest
of
individuals in domestic relationships and
that of society in such institutions as family
and marriage. Individual interests include
those of

Parents and Children,

Husbands and Wives.

Individual Interest
(C)Interest of substance- this includes

Interests of property,
Succession and testamentary
disposition,
freedom of industry and
contract,
freedom of association, and
Continuity of employment

Public InterestPublic interests according to him are the claims

or demands or desires asserted by individuals
involved in or looked at from the stand point of
political life- life in politically organised society.
They are asserted in title of that organisation. It
is convenient to treat them as claims of politically
organised society thought of as a legal entity. The
main public interest according to Roscoe pound
are Interests of state as a juristic person which
includes
Interests of state as a juristic person i.e.
protection

Public Interest Interests of State as a guardian of

social
interest,
namely
superintendence and administration
of trusts, charitable endowments,
protection of natural environment,
territorial
waters,
sea-shores,
regulation of public employment and
so on to make use of thing which are
open to public use , etc. this interest
seem to overlap with social interests.

Social Interests

To pounds social interest are claims or

demands or desires, even some of the
foregoing in other aspects, thought of in
terms of social life and generalized as
claims of the social group. They are the
claims functioning of society; the wider
demands or desires ascertained in the
title of social life in civilized society.
Social interest are said to include -

Social Interests

(a)Social interest in the general

security, - Social interest in the
general security embraces those
branches of the law which relate
to
general
safety,
general
health, peace and order, security
of acquisitions and security of
transactions.

Social Interests
(B)Social interest in general
morals,Social interests
in general morals covers a
variety of laws, e.g. laws dealing
with prostitution, drunkenness
and gambling;

Social Interests
(c)Social interest in the conservation of
social resources,Social interests in the conservation of
social resources covers conservation of
social resources and protection and
training of dependants and defectives ,
i.e. , conservation of human resources,
protective and education of dependants
and
defectives
,
reformation
of
delinquents, protection of economically
dependants.

Social Interests
(D)Social interest in general progress
Social interest in general progress has three
aspects. Economic progress, political progress and
cultural progress.
Economic progress covers freedom of use and sale of
properly , free, trade , free industry and
encouragement of inventions by the grant of
patents.
Political progress covers free speech and free
association, free opinion, free criticisms. Cultural
progress
covers
free
science,
free
letters,
encouragements of arts and letters, encouragements
of higher education and learning and aesthetics.

Access to justice and PIL

The greatest contribution the Indian
judiciary has provided regarding access
to justice for the people of India, could
very well be identified as the concept of
public interest litigation (PIL). Prof.
Upendra Baxi has referred this judicial
activism trend by the nomenclature of
Social Action Litigation (SAL). PIL is a
concept
aimed
at
increasing
the
accessibility to justice and forms a part
of constitutional jurisprudence in India.

Judicial activism
Judicial activism is the process by which,
new juristic principles are evolved to
upgrade the existing law, to bring it in
conformity with the current needs of the
society and thereby to subserve the
Constitutional purpose of advancing public
interest under the rule of law.... Chief
Justice Verma said in his speech delivered
on 29th March 1996. Judicial activism is
based on the theory of Jurisprudence called
Sociological Jurisprudence.

Role of Supreme Court

The development of the Supreme Court
as an important institution in social
change is the liberal and pro-active
interpretation of the Constitutional
provisions by the Supreme Court of
India. This judicial activism was mainly
carried forward by the way of making
Article 21 of the Constitution of India
an umbrella provision by stretching the
ambit of the provision.

Role of Supreme Court

Judge-jurist
Cardozo
has
clearly
shown the importance of judiciary for
social progress. He had emphasized
the judges should ensure that the
social progress and desired change is
being carried on without hindrance.
From the sociological jurisprudential
perspective, the Supreme Court of
India has played an important role in
the
social
transformation
with
providing access to justice being
made available for all through PIL and

Honble Justice
Markandey
Katju
Sociological jurisprudence, however,
pointed out that there were great
gaps in the statutory law which had
to be filled in by the judges, and even
the statutory law had to be
interpreted by the judges in a manner
as to fulfill the needs of society.
Sociological jurisprudence, thus,
shifted the centre of gravity of the
legal system from statutory law to
judge-made law. Whereas under
positivism a judge is only a passive
agent and it is none of his function to

Inherent powers of the Supreme

Court under the Constitution
Article 142 is one such provision
in
our
Constitution
which
empowers the Supreme Court to
pass such "decree or order as
may be necessary for doing
complete justice between the
parties".

Courts and its endeavor to

do Complete Justice
Article 142 can override any
statutory
provision.
But,
in
practice, the Court does not use
its powers under Article 142 in
direct confrontation with any
express
statutory
provisions
applicable to the case at hand.
This is a self-imposed restriction
but the Court can bypass the
same if equitable considerations

Courts and its endeavor to do

Complete Justice
Article 142 was introduced in our
Constitution to serve the interests of
justice. The Supreme Court is the highest
court from which no appeal lies. Its
decisions are final and binding. Thus this
article was included in our Constitution
with a view to ensure that the interests
of justice are paramount and in doing so
the Supreme Court can disregard any
provision which prevents the court from
performing its constitutional obligations.

S. P. Gupta v. President of
India( AIR 1982 SC 149)
In S. P. Gupta v. President of
India the court observed...law
does not operate in a vacuum. It
is therefore intended to serve a
social purpose and it cannot be
interpreted without taking into
account the social, economic and
political setting in which it is
intended to operate. It is here
that the Judge is called upon to

S. P. Gupta v. President of
India( AIR 1982 SC 149)
Various High Courts transferred to the Supreme
Court writs of great constitutional importance
affecting the independence of the judiciary,
concerning, generally, the appointment of judges.
The relevant portion of this case concerns the
disclosure of certain correspondence between the
Law Minister, Chief Justice of Delhi and Chief
Justice of India, and the relevant notes made by
them in regard to the non-appointment of a judge
for a further term and the transfer of a High
Court Judge. Petitioners, and one of the judges in
question, sought the disclosure of these
documents .

Delhi Judicial Service Assn. v. State of Gujarat,

(1991) 4 SCC 406, SCC at p. 463, para 51

No enactment made by the

legislature can limit or restrict
the constitutional power of the
Supreme Court under Article
142, though the Court generally
take
into
consideration
the
statutory provisions regulating
the matter in dispute.

Vishaka and others V. State of

Rajasthan
and others.
(AIR 1997 SUPREME COURT 3011)

the absence of enacted law to provide for the

effective enforcement of the basic human right of
gender equality and guarantee against sexual
harassment and abuse, more particularly against
sexual harassment at work places, we lay down the
guidelines and norms specified hereinafter for due
observance at all work places or other institutions,
until a legislation is enacted for the purpose. This
is done in exercise of the power available under
Art.32 of the Constitution for enforcement of the
fundamental rights and it is further emphasized
that this would be treated as the law declared by
this Court under Art. 141 of the.

K. Ramaswamy, J. in Ashok Kumar

Gupta v. State of U.P., (1997) 5
SCC 201, p. 250, para 60.
"The
phrase
'complete
justice'
engrafted in Article 142(1) is the
word of width couched with elasticity
to meet myriad situations created by
human ingenuity or cause or result
of operation of statute law or law
declared under Articles 32, 136 and
141 of the Constitution and cannot
be cribbed or cabined within any
limitations or phraseology."

S. Nagaraj v. State of Karnataka,

1993 Supp (4) SCC 595, p. 618,
para 18
Justice is a virtue which transcends all barriers.
Neither the rules of procedure nor technicalities
of law can stand in its way." This wide definition
of "justice" ensures that the Court can exercise
its powers under Article 142 to do "complete
justice" in a range of cases each decided by the
Court based on its facts and circumstances.
Article 142 also lays down no limitations
regarding causes or the circumstances in which
the power is to be exercised. The exercise of
such power is left completely to the discretion
of the highest court.

Sanchalakshri v. Vijayakumar Raghuvirprasad

Mehta, (1998) 8 SCC 245 (para 8)

Moreover, such power of passing

any order or decree in the
interest of justice has been
conferred upon the Supreme
Court only vide Article 142 and
in the absence of analogous
provisions, the High Courts or
the tribunals do not have similar
powers.

Dr. Virendra Singh

Respondent :Banaras Hindu University,
Varanasi And 3 Others WRIT - A
No. - 35877 of 2015

rules of 'natural justice' cannot remain the

same under all conditions and that girls, in
cases of sexual harassment, may not give
evidence if a regular enquiry is held. Under
since
circumstance,
the
Committee
of
teachers that is constituted can record
statements and no opportunity of crossexamination is required to be given nor a
copy of the enquiry report is required to be
supplied. The dispensation of a regular
enquiry, therefore, under such circumstance
does not result in violation of the principles
of natural justice.

SOCIAL LEGISLATION AS TOOL FOR SOCIAL ENGINEERING

When unequal distribution of wealth

exists in a society or when social justice
is denied to certain sections of the
people, laws are enacted to bring about
equilibrium.
These
laws
may
be
designated under social legislation".
Social
legislation
tries
to
remove
inequalities and to benefit the whole
community rather than a few individuals.

Primary functions of social

legislations
The primary functions of social
legislations are summed up in
following words:
To provide for the orderly
regulation of social relationship.
To provide for the welfare and
security of all individuals in the
social unit.

Vellore Citizens Welfare Forum v. Union of India (AIR 1999 SC

2715 )

Supreme Court observed as The

Constitutional
and
statutory
provisions protect a persons right to
fresh air, clean water and pollutionfree environment". The Court further
observed, the right of a person to
pollution-free environment is part of
the basic jurisprudence of the land.
Thus the Court gave priority of public
interest over individual interest.

Vellore Citizens Welfare Forum v. Union of India (AIR 1999 SC 2715 )

Vellore Citizens Forum brought an action to stop

tanners operating within the State of Tamil Nadu from
discharging untreated effluent into agricultural fields,
open lands and waterways. It is estimated that nearly
35,000 hectares of agricultural land in the tanners belt
had become polluted and unfit for cultivation at the
time of this action. The court directed the Central
Government to establish an authority to deal with the
situation created by the tanners. It directed the
authority to implement the precautionary principle, and
identify the (1) loss to the ecology/environment; and
(2)individuals/families who have suffered because of the
pollution, and then determine the compensation to
reverse the environmental damage and compensate
those who have suffered form the pollution.

CONSTITUTIONAL PROVISIONS PROMOTING SOCIAL HARMONY

The preamble of the constitution it was

declared that we, THE PEOPLE OF INDIA,
having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all
its citizens: JUSTICE, social, economic and
political; LIBERTY of thought, expression,
belief, faith and worship; EQUALITY of status
and of opportunity; and to promote among
them all FRATERNITY assuring the dignity of
the individual and the unity and integrity of
the nation.

CONSTITUTIONAL PROVISIONS
PROMOTING SOCIAL HARMONY
The provisions referred to are
aimed at effectively balancing
the various conflicting interests
in the society and form the basis
of what Roscoe Pound termed as
social engineering.

CONSTITUTIONAL PROVISIONS
Article 19 is the most important and key
article
which
embodies
the
basic
freedoms. Article 19(1) provides that all
citizens shall have the right- to freedom of
speech
and
expression;
to
assemble
peaceably and without arms; to form
associations or unions; to move freely
throughout the territory of India; to reside
and settle in any part of the territory of
India; to practice any profession, or to carry
on any occupation, trade or business.

CONSTITUTIONAL
PROVISIONS
Freedom of speech and expression is not
absolute. As of now, there are 8 restrictions
on the freedom of speech and expression.
These are in respect of the sovereignty and
integrity of the country. These restrictions
were: Security of the state, Friendly relations
with foreign states Public Order Decency or
morality, Contempt of Court, Defamation,
Sovereignty and integrity of India.

THE NATURE OF LAW

For Pound "law" has three meanings:
First, it signifies the legal order, i.e.,
the ordering of human conduct
through the systematic application of
the force of politically organized
society. In this sense it is called a
regime of social control.
Secondly, it means the sum of the
authoritative grounds for judicial and
administrative decisions in such a
society.
Thirdly, it may mean what is called

THE NATURE OF LAW

Law is a system of guides to
judicial
decisions,
including
precepts, technique, and ideals,
found by reason, tested by
experience, promulgated by the
authority of politically organized
society and backed by the force
of that society, for the purpose
of securing the maximum of
human interests and satisfying

Definition of Law
It has already been noted that Pound gives
various descriptions of law but never arrives
at a precise definition. Each of the
descriptions reveals something of his
philosophy of law but no one of them, nor
even all of them taken together, gives a
clear notion of what he means by law.
Nevertheless, by considering not only the
descriptions of law which he gives, but also
the various meanings of law which he
criticizes, one can gain a clearer concept of
what he himself understands by law.