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A Project Report On Law as a means of Social Engineering: Roscoe Pound



Submitted To Ms. Aditi Singh (Faculty of Jurisprudence )

Submitted By Akhil Gangesh Roll No. 14 Semester V Section C Date - 23/10/2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, CHHATTISGARH



Law as a means of Social Engineering: Roscoe Pound

TABLE OF CONTENTS









Declaration

02

Acknowledgement

03

Objectives

05

Research Methodology

05

Introduction

06



Roscoe Pound

07



The Concept of Social Engineering

08



LEGISLATIONS ENACTED FOR THE PURPOSE OF SOCIAL



ENGINEERING

11



Dr. Allen

18



Fite

19



Conclusion

20



References

21

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Law as a means of Social Engineering: Roscoe Pound

Declaration

I, Akhil Gangesh, hereby declare that, the project work entitled, “Law as a means of Social Engineering: Roscoe Pound ” submitted to H.N.L.U., Raipur

is record of an original work done by me under the guidance of Ms. Aditi Singh, faculty of Jurisprudence, H.N.L.U. Raipur.

Akhil Gangesh Sem. 5TH Roll No. 14 Section C

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Law as a means of Social Engineering: Roscoe Pound

Acknowledgements First and foremost, I would like to thank my Faculty of Jurisprudence Ms. Aditi Singh for offering this subject, “Law as a means of Social Engineering: Roscoe Pound



and for her

valuable guidance and advice. She inspired me greatly to work in this project. She also helped me in improving the perception regarding to the study of the topic in its vast resources and in a broader way. Clearing all the doubts and uncertainty towards this project. Therefore, I want to thank her for all her efforts and cooperation which she conferred me.

I also owe my gratitude towards University Administration for providing me all kinds of required facilities with good Library and IT lab. which helps me in making the project and completing it. My special thank to Library Staff and IT staff for equipping me with the necessary data and websites from the internet. I would also like to thank my dear colleagues who had helped me a lot creating this project with their ideas and thoughts over the topic. They act as a motivating and guiding force to me during the making of this project.

Akhil Gangesh Roll No. 14 Section: C

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Law as a means of Social Engineering: Roscoe Pound

OBJECTIVE 

To understand the social engineering theory of Roscoe Pound



Critical analysis of the theory.

RESEARCH METHODOLOGY

Design of the study : The research is descriptive and comprehensive in nature. This research paper is descriptive and analytical –  based on secondary sources, i.e., books and electronic sources (internet). Books and other references as guided by Faculty of English Language have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also  been referred.

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Law as a means of Social Engineering: Roscoe Pound

INTRODUCTION India, known around the world as a “cradle of civilizations” has always been a queer mixture of various faiths, religions, a place where the cultures of the world meet, constituting an environment of composite culture. It was for this reason that Pandit Jawaharlal Nehru called India the “the museum of world religions”. Indeed, the very paradigmatic setting of India has been pluralist all along. Even today the land mass called India, spread over 3.28 million sq km of area inhabited by a thousand million plus population, with every imaginable kind of a weather pattern from minus 40 degree Celsius in greater Himalayan region to 50 degree Celsius temperature in the deserts of Rajasthan and temperate weather of coastal regions, 20 official languages written in 16 different scripts, around 2000 dialects, 16 well demarcated agro-climatic zones2 and almost all religions of the world well and adequately represented,  presents a mind boggling variety and plurality. And all this has a bearing on India’s liberal, secular, republican, politico-legal system. Under these conditions, it becomes very necessary to have a mechanism for balancing the interests of the individuals, society and the state. India, after independence, adopted the ideal of a socialistic pattern of society and has formulated programmes of social welfare in various spheres. The aim is to establish a social order which would eradicate exploitation, secure equal opportunities for all citizens, ensure that they share just obligations and enjoy social security. The means adopted in achieving these ideals these ideals are peaceful and democratic. The goal is sought to be achieved mainly through the enactment of suitable laws. It is generally recognised that legislation does create healthy conditions for such changes. It is in these circumstances that law comes into play to act as an agency balancing conflicting interests and becomes a tool for social engineering. This article analyses the role of legislations, constitutional provisions and court judgements in the process of social engineering in India.

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Law as a means of Social Engineering: Roscoe Pound Roscoe Pound

Roscoe Pound (1870-1964) was a noted botanist, jurist, and sociologist who founded the American school of sociological jurisprudence. Pound's sociological ideas originated at the University of Nebraska. Pound developed numerous ties to other sociologists, joined the American Sociological Society, and published in the American Journal of Sociology. Pound's modern erasure from sociological chronicles is attributed in part to hegemonic processes. The collection of archival data for this study in the history of sociology is generalized (by extending Erving Goffman's metatheory of meaning) as "archival frame analysis." Pound's intellectual milieu is analyzed using Mary Jo Deegan's theory of "core codes" from her analysis of communities and alienation in American ritual dramas. Pound was pragmatically committed to social scientific research for improving the "law in action." He directed major surveys of criminal justice systems in Cleveland and China. His Criminal Justice in Cleveland is an example of sociological methodology and theoretical insight. The  bureaucratic ecology of the National Commission on Law Observance and Enforcement is examined in a parallel biography of three Nebraska-trained scholars (Roscoe Pound, Edith Abbott, and Hattie Plum Williams) who served the Commission. Pound also explored the institutional patterns of law. Building chronologically-ordered systematic classifications of legal theories, he traced the complexity of conflicting patterns in the social institution of law. These analyses gave him the philosophical basis of sociological jurisprudence. The heart of sociological jurisprudence is Pound's "theory of interests": social control requires informed adjustments between competing social interests.1 Adjudication of conflicts must not rely on rigid interpretations of precedents, but must take account of social change and relevant social scientific data. Pound's theory is deeply liberal and steeped in the American progressivism of the early twentieth century. Weaknesses in Pound's theory mirror his unreflexive acceptance of the biases of his white, male, professional world. Nonetheless, Pound's sociological critique of law was progressive, insightful, and foundational.

1

2V.d.

mahajan – jurisprudence and legal theory.

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Law as a means of Social Engineering: Roscoe Pound

The Concept of Social Engineering

Roscoe Pound was one of the greatest leaders of sociological school of jurisprudence. He introduced the doctrine of “Social Engineering” which aims at building an efficient structure of society which would result in the satisfaction of maximum of wants with the minimum of friction and waste. It involved the rebalancing of competing interests. Roscoe Pound defined the legal order by reference to the end of law: "It [the legal order] may well be thought of as a task or as a great series of tasks of social engineering; as an elimination of friction and precluding of waste, so far as  possible, in the satisfaction of infinite human desires out of a relatively finite store of the material goods of existence." 2 Interests", "desires", "claims", "wants" - for the most part the words are used interchangeably in Pound's writings, although "interests" sometimes serves as the inclusive term.3 He writes, “For the purpose of understanding 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--by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through  politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and  precluding of friction in human enjoyment of the goods of existence-- in short, a continually more efficacious social engineering.” 4 Like the engineer, the jurist constructs, creates - but not out of thin air. Like the engineer, he must work with resistive materials, without which, however, he could not  build at all; and always there are adverse conditions imposed upon his activity. Friction and waste, represented by a sacrifice of interests which might be secured, must be overcome. The task is one for human activity: though requiring methodical care, there

2

Pound, Roscoe, “Interpretations of Legal History”, Harvard University Press, 1946, At P.160. Pound, Roscoe, “The Spirit of the Common Law”, Transaction Publishers, 1999, At P.196. 4 Pound, Roscoe, “An Introduction To The Philosophy Of Law”, Transaction Publishers, 1999, at p.20. 3

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Law as a means of Social Engineering: Roscoe Pound is nevertheless nothing static about it. Technique and materials may be improved. Jurist must work on, must create an ever greater, ever more serviceable structure. The engineering analogy stands out as both graphic and timely. 5 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 maximisation of satisfaction of wants. These factors are principles as Jural Postulates.6

Judicial Application:

Pound suggested that judicial application of law should take into account the following factors: (a) The factual study of social effects of the administration of law. (b) Social investigations as preliminaries to legislation. (c) The means by which the law can be made more effective should be devised. (d) A study of legal and philosophical aspect of judicial method. (e) Sociological study of Legal History. (f) The achievement of the purpose of law. (g) Possibilities of jurisprudence of interests and reasonable solution of the individual case.

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. It adjusts supplements and sometime replaces the existing legal system. In other words, in

5 6

 Douglas, Some Functional Aspects of Bankruptcy (1932) 41 YALE L. J. 329, 331. Dr. Laxmikanth, “Law and social transformation”, at pg.6

9

Law as a means of Social Engineering: Roscoe Pound addition to ameliorating the social conditions of people, it bridges the gulf that exists  between the existing law at the requirements of the society at a given time.7 Social legislation, in this sense has a special significance. It is different from ordinary types of legislation in as much as it reflects, the legislative policy of establishing social  justice on humanistic and egalitarian principles. The primary functions of social legislations are summed up by Hogan and Inni in following words: (1) To provide for the orderly regulation of social relationship. (2) To provide for the welfare and security of all individuals in the social unit. 8

Social legislation, therefore, aims at establishing social equality in society. The needs of society are adjusted and those who are responsible for creating imbalances or inequalities in society are prevented from doing so. It is however, necessary that all social legislation must be accompanied by “social preparedness” - by effective  propaganda to educate the people about its objects and to convince them of the ultimate utility of a particular legislative measure aimed at promoting the common good and fostering the common welfare. It is only then that the law can give direction, form and continuity to social change. The effectiveness of social legislation also depends on attitude of judiciary. Under the traditional approach, the judges usually paid greater heed to the letter of the law and the mischief that was to be removed by the law. Social conditions and economic trend were not supposed to influence him in arriving at a certain decision. But this attitude appears to have changed in recent times. The judge appears to be conscious of the felt necessities of the time. He feels that his duty is not only to point out mistakes of legislature or remove unjustifiable hardships caused by law but also to assist in the social and economic progress of our times. 9

7

 Balbir Sahay Sinha, Law and social change in India, , 1983, Deep and Deep Publications, pg. 25 Hogan and Inni, “American Social Legislations”, Harper and Brothers, New York, at p.4. 9  Supra Note 7. 8

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Law as a means of Social Engineering: Roscoe Pound LEGISLATIONS ENACTED FOR THE PURPOSE OF SOCIAL ENGINEERING

The introduction of certain major changes in the Hindu family law is a very important instance of social reconstruction in India in recent times. This has been brought about by such Acts, as The Hindu Marriage Act, 1955, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. The provisions of these Acts are calculated to generate effective means of social control. For instance, Section 12 of the Act prohibits  polygamy which was very prevalent in the society before the enactment of the Act. This can  be viewed as a measure to balance the interests of the husband and wife as also a means for social control. The socio-economic revolution that has resulted from new land legislations is best seen in rural India. The land reform measures, adopted by the State Governments in the wake of Constitutional amendments, are meant to mitigate the hardships of tenants, strengthen and safeguard their tenancy rights and confer a new status on them. This type of legislation can be rightly regarded as one neutralising the socio-economic disharmony in the rural population. The pitiable conditions and large-scale poverty of the rural population produced a sense of frustration in our peasantry endangering the entire society. The grievances of the agriculturists are being gradually removed by the land reform projects which would ultimately bring about a degree of social satisfaction and create a spirit of co-operation in the masses.11 The new labour laws are aimed at battering the conditions of the workers in trade and industry. These laws have had an impact on social structure to a large extent. The individual worker’s interest has been given great importance. The freedom of contract between the employer and the employee has been regulated in the interest of the worker and attempt has  been made to assure to every worker condition of work ensuring a decent standard of life. A number of important enactments as, for example, The Industrial Disputes Act, 1947, The Minimum Wages Act, 1948, The Plantation Labour Act, 1951, The Maternity Benefit Act, 1961 have been designed to curb, if not eradicate, the urge to exploit workers. Thus, they  promote the welfare of workers and balance interests of employees and employers hence resulting in social engineering.

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Law as a means of Social Engineering: Roscoe Pound CONSTITUTIONAL PROVISIONS PROMOTING SOCIAL HARMONY

The glaring inequality of different types more particularly based on sex and caste prevailed in Indian society until the pre-independence days, despite continuous efforts by the state, reformers and missionaries to control and eradicate them. The immediate task for the Indian  people and constitution makers was to establish an egalitarian society. Therefore, in 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. 10 The constitutional provisions relating to secularism aim at bringing about integration and harmony in the society. Article 15 of the Constitution forbids a classification on the ground only of religion, race, caste, sex, place of birth or any of them, subject to specified exceptions and Article 16 makes a like provision in connection with public employment with the addition of “descent” and “residence” as forbidden grounds of classification. The Constitution gives the right to all  persons to profess freely, practise and propagate r eligion subject to public order, morality and to other provisions of the Constitution on Fundamental Rights. Thus, in India no religion is given a preferential status or accorded any special privilege and the Constitutional provisions aim that no person should suffer any disability because of his religion. In order to achieve social progress and political advancement, the practice of untouchability has been outlawed by Article 17 of the Constitution and by the Untouchability Offences Act, 1955 enacted in pursuance of Article 17. These are clear indications to end social equality. 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”.

10

 Bal Gobind, Kashyap, Reformative law and social justice in Indian society, 1995, Regency Publications, New Delhi, at p.8

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Law as a means of Social Engineering: Roscoe Pound POUNDS THEORY OF SOCIAL ENGINEERING:

Roscoe pound conceived law as a ‘ social Engineering’ its main task being to accelerates the process of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the society.

11

Thus courts, legislators,

administrators and jurists must work with a plan and make an effort to maintain a  balance between the competing interests in society. He enumerates various interests which the law should seek to protect and classified them into three broad categories, namely



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 

Personality- interest of personality consist of interests in -

a. the physical person,  b. freedom of will, c. honour and reputation, d. Privacy ,and sensibilities and e. Belief and opinion. 

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 a. Parents and Children,  b. Husbands and Wives. c. And marital interests. 

Interest of substance- this includes

a. Interests of property,  b. Succession and testamentary disposition, 11

V.d. mahajan – jurisprudence and legal theory

13

Law as a means of Social Engineering: Roscoe Pound c. freedom of industry and contract, d. promised advantages e. advantageous relations with others, f. freedom of association, and g. Continuity of employment.



Public Interest

Public 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 are1. Interests of state as a juristic person which includes a. Interests of state as a juristic person i.e. protection  b. Claims of of the politically organised society as a corporation to property acquired and held for corporate purposes. 2. 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 generalised 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 civilised society. Social interest are said to include -

a. Social interest in the general security, -

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Law as a means of Social Engineering: Roscoe Pound 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.

b. Social interest in the security of social institutions,

Social interest in the security social institutions comprises domestic institution, religious institutions, political institutions and economic institutions. Divorce legislation may be adduced as an example of the conflict between the social interests in the security of the institution of marriage and the individual interests of the unhappy spouses. There is tension between the individual interest in religious freedom and the social interest in preserving the dominance of an established church.

c. Social interest in general morals,-

Social interests in general morals cover a variety of laws, e.g. laws dealing with  prostitution, drunkenness and gambling;

d. Social i nterest 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 dependents and defectives , reformation of delinquents, protection of economically dependents.

e. Social interest in general progress and –  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.

15

Law as a means of Social Engineering: Roscoe Pound

 f. Social interest in individual life.

Meaning thereby each individual be able to live a human life according to the individual’s (a) political life,(b) physical life,(c) cultural ,(d) social and (e) economic life.

In Case-

 ANI MAL AND E NV I RONM E NT LE GAL DE F E NC E F UND V/S UNI ON OF I NDIA AND OTHERS 12

JUDGEMENT- The supreme court applied the principles of Economic sustainability

and environment protection. If the villagers are not permitted fishing, their livelihood shall be destroyed. If they are permitted there will be a threaten to the ecology. Hence the Supreme Court ordered the concerned forest a uthorities and the Board constituted to take necessary steps to protect the environment. They shall watch the villagers and give suitable instructions to them. They shall be educated on the importance of environment. The villagers should not enter in other areas accepts to the lakes on which they are given fishing rights.

PRINCIPLE-The Supreme Court applied sociological approaches in this case for the

welfare of tribals, whose source of livelihood is fishing. Not only in this case, but also in every environmental case, the sociological approach of their lordship is crystal clear. Their lordships often say that “law is a social engineering”. It may be stated that pound’s classification of interests in his theory of social engineering cannot be said to be fool- proof and one may find some overlapping of interests here and there. Pound himself accepted that the various interests of individuals in a society can only be broadly classified and they cannot be placed in water tight compartments. Julius stone has rejected the division of public interests and social interests on the ground that in fact they are all social interests.

12

(1997) 3 SCC 549

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Law as a means of Social Engineering: Roscoe Pound

Pounds tackled the problem of interests in terms of balancing of individual and social interests. It is through the instrumentality of law that these interests are sought to be balanced. as justice Cardozo rightly remarked , “ pound attempted to emphasises t he need for judicial awareness of the social values and interests”.

Roscoe pound based on his theory of social engineering on the assumption that protection of interests is the main subject matter of law and it is the duty of jurists to make a valuation of these interest’ for the satisfaction of human wants in or der to strike a balance between stability and social change. Thus adopting a functional approach to law, pound stressed upon the need for study of law in relation to and as a part of the whole process of social control.

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Law as a means of Social Engineering: Roscoe Pound Dr. Allen

Dr. Allen has criticised the utilitarian in pound’s theory as it confines the interpretation of wants and desires to any material welfare of individual’s life completely ignoring the  personal freedoms which are equally important for a happy social living. It has also been argued against pound’s theory of interests that it has no significance in a pluralistic society where there are linguistic, ethics, and religious minorities having diverse interests. Harmonising their divergent interests is by no means an easy task to  be performed through law and courts. A general criticism against pound’s theory is regarding his use of the word ‘engineering’,because it suggest a mechanical application of the principle to social needs, the word “engineering” is used by pound metaph orically to indicate the  problems which the law has to face, the objectives which it has to fulfil and the method which it will have to adopt for this purposes. Pound does not give an ideal scale of values with reference to interests. In fact pounds himself has admitted that philosophy has failed to provide an ideal scale of values and that the best that jurist can do is to  proceed with the task of adapting law to the needs of his generalisation the choice  between conflicting ideologies is one for the community at large. Another criticism against his theory is that emphasis on engineering ignores an important part of law which develops and evolves in the society according to social needs the law simply recognises or approves it. This dynamic feature of law is undermined. Pound himself has inserted a certain evaluation by describing the interest in individual life as the most important of all. However, there is a danger of an implicit evaluation in the grading of interests as individual, public or social. What is an individual and what is a social interest is itself a matter of changing political conceptions. Many interests come under different categories.

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Law as a means of Social Engineering: Roscoe Pound Fite

According to Prof. Fite there is no obligation to respect the personal interests of those who evade the responsibility of standing for themselves .this attitude results in the  pressure – group theory of government which sees the legislature as a scene of struggle  between competing interests and the cabinet as made up of the representative of various classes. Pounds theory shifts the centre of gravity in the legal order from legislation to court  judgements, but the judiciary has its decisions and therefore cannot really do effective social engineering. Justice can give ad hoc judgements on specific issues coming up  before them but they cannot frame a broad plan for restructuring society .of course, a  judge can focus attention on a pressing social problem and through his judgement can create a modern legal principle or suggest some alteration in the law, but he cannot do what the legislature can do. Justice without law can result in total lawlessness and arbitrariness. The rule of law, that is, the view that decisions should be made by the application of known rules and principles, was a great achievement of positivist jurisprudence. To abandon it would be a retrograde step.

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Law as a means of Social Engineering: Roscoe Pound

Conclusion Rapid change in Indian social life is the result of many factors. The influence of public opinion, the lessons of history, and the examples of progress achieved in other countries, the impact of ideas from the West- all have played a part. The legislative activity in India after independence has been directed, by and large, towards the creation of a new social order. The gap between pressure of changed patterns and the slowly evolving new norms of social life was sought to be plugged by many important laws. To make social engineering through the use of law, the importance of other factors like economic development needs to be realised. Law cannot, by itself play a vital role unless it is accompanied with economic development. Public opinion also plays an important role. There should be awareness amongst the various sections of the society before legislation is enacted for its successful enforcement. The purpose of social legislation like other types of legislations is not fulfilled if its enforcement is lax. If laws are evaded by people, this undermines the purpose of legislation,  breeds corruption and puts the administrative machinery under heavy strain. This may ultimately lead to disintegration of the society. Hence, rather than passing a number of legislations in this area without making adequate provisions for their enforcement, it is better to have fewer social laws containing clear-cut provisions for effective enforcement. The conflicts in modern Indian society are largely due to the fact that social life has not been  properly adjusted to the forces of present age. In order to harmonize our relations in the society, it is absolutely essential that changes in law should be preconditioned by the existing  public opinion in the society. In other words, the changes in law should be only in those directions and to that extent which the people in general aspire in the society. Mere superimposition and direct adoption of foreign models in their entirely original form can create disruption and disorder in the society. We should retain our own social values and include foreign ideals in such a manner that the latter are fully assimilated and become a part of our social system.

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Law as a means of Social Engineering: Roscoe Pound

References

1. Dhyani, S.N., “Fundamentals of Jurisprudence”, Central Law Agency, Allahabad 2. Makkar, Karandeep, “Law as a tool for Social Engineering”, Manupatra 3. Paranjape, N.V., “Studies in Jurisprudence and Legal Theory”, Central Law Agency, Allahabad

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