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Sociological Jurisprudence

JURISPRUDENCE LAW 4420

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Law and Sociology

As fields of inquiry, law and sociology share similar terrain.

Both, for example, are concerned with norms that govern human activity and various sets of relationships, such as those between individuals, groups and institutions.

This common subject matter and law’s regulatory function in modern society, explain why sociologists ought to be concerned with the legal domain.

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What social theory has to offer lawyers?• It questions many of the standard assumptions made

by jurists and practitioners about the nature of law and its role in social change.

• Through engagement with sociology, one is able to tap into the rich dialogue that has unfolded over the course of centuries.

• It can be a challenging encounter due to the intellectual and methodological differences between law and social sciences.

In the nineteenth century, the focus of attention in political and legal philosophies began to swing away from individual rights towards duties, and carried with it an emphasis on the function of law in communal or social existence.

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Factors contributing to the rising concern and interest on law in relation to society

• Rapid increase in population and inequalities caused by the industrial revolution.

• The creation of new rights for specific sections of the community, laws relating to labour and race relations, to consumers and families, and increased state intervention in the regulation of lives. These led to a growing awareness of the deficiencies of traditional legal services.

• Changing tempo and patterns of modern legal professional practice - concerning the many rather than the few (e.g. legal aid); lawyers are faced with a new set of questions which demand a sort of analysis different from the traditional approach.

• Pressures for legal reforms, for greater access to justice and for the delegalization of the judicial process – better legal representation.

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Buckland describes the change vividly:

‘The analysis of legal concepts is what jurisprudence meant for the students in the days of my youth. In fact it meant Austin. He was a religion; today he seems to be regarded rather as a disease.’

The breath of the current attitude was well summed up by Julius Stone who described jurisprudence as

‘The lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideals, and techniques of the law in the light derived from present knowledge in disciplines other than the law.’

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Sociology and Law – the Methodological Question

Sociology means, broadly, the study of society of which law is a part.

Faris defines sociology as:

[A] branch of the science of human behaviour that seeks to discover the causes and effects that arise in social relations among persons and in the intercommunication and interaction among persons and groups.

The first serious attempt to apply the scientific method to social phenomena was made by Auguste Comte (1798 – 1857), who invented the term ‘sociology’

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The methodology of sociology, in relation to the study of law, involves • a close analysis of the structure, functions, effects and values

of a legal system; • this necessitates an investigation of persons, institutions,

rules, procedures and doctrines, • so that hypotheses and principles might be formulated and

tested.

The essence of the sociological jurisprudence - law is a social phenomenon reflecting human needs, functioning in organized system, and embodying within it fundamental principles and substantive rules of the basic values of a society.

The key task of sociological jurisprudence - discovery of the principles governing law as a social phenomenon.

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Lawyers’ and Sociologists’ Views Compared

Sociologist looks at law as the sum-total of legal administration and as a given phenomenon in society (‘legal sociologist’).

Lawyer looks at the operation of laws and the conceptual tools of a lawyer’s equipment in their social and functional setting (‘sociological jurist’ ).

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Nature of Sociological Jurisprudence

• It is an intrinsically theoretical approach to the study of the law;

• It specifically seeks to understand law as a particular social phenomenon, in terms of how it comes into existence, how it operates and the effects that it has on those to whom it applies.

• This school of law shares similar approach in other analytical schools of thought in jurisprudence, such as Positivism: Its subject matter is the law proper.

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Sociological Jurisprudence and other Schools

What distinguishes it from the other schools of jurisprudence is its methodology.

• It seeks to examine closely the workings of society in general, in order to find therein the factors which determine the nature of law.

• It has historically relied on the findings of social sciences, such as sociology, as well as other disciplines, including historical, political and economic studies, to help explain the nature of law.

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OriginsSociological jurisprudence has a long history.

It emerged from the first time when it was realized that a study of the various aspects of social life could assist in understanding the nature and workings of the law.

Its place in jurisprudential literature can be traced as far back as the writings of David Hume and Montesquieu.

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David Hume in his Treatise on Human Nature (1740) argued that law was a developing social institution, which owed its origin not to man’s nature, but to social convention.

Charles de Montesquieu, in his L’Esprit des Lois (The Spirit of Laws) (1748) put forward the view that law originated in custom, local manners and the physical environment. A good law, he maintained, conformed to the spirit of society.

Through the years, theorists on the nature of society, such as Comte, Marx, Weber and Durkheim, further contributed to sociological jurisprudence, putting forward views on how various social phenomena influenced the nature of law.

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Central Ideas in Sociological Jurisprudence

• A general belief that law is only one of a number of methods of social control. Law is not unique in its functions and place in society.

• A rejection of the notion that law is a “closed system” of concepts, standards and structures, and that it can stand on its own in its operation. Sociological jurists reject a ‘jurisprudence of concept’.

• Emphasis on the actual operation of law – ‘the law in action’ – arguing that this is where the real nature of the law manifests itself, rather than in textbooks and other elementary sources.

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• Rejection of the natural law approach which proposes that there are certain sets of principles which describe absolute values and which then become, or should be, the basis of all law.

• Adoption of relativist approach, which regards law as being the product of a socially constructed reality.

• A general interest in utilizing the findings of the sociological science in understanding the nature of law and, therefore, to make law a more effective tool of social justice.

• An abiding concern among sociological jurists with social justice. Views, however, differ as to what constitutes social justice and how best this may be achieved.

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Sociological Theories or Perspectives

A theory is a systematic explanation for a set of laws and facts, or an attempt to make sense out of observations.

The aim of sociological theory is to gain an understanding of society.

A theoretical paradigm is an established theory that guides thinking and research in sociology.

There are three main theoretical paradigms:

structural functionalism, social-conflict, and symbolic interactionism

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• Structural Functionalism

This is a macro theory (which means it looks to large-scale patterns of society to explain social phenomena). 

It views society as a whole unit made up of inter-related parts that function together, rather like a person’s body, which has a number of systems/organs. Like the body, when one organ/system does not work properly, the entire body or society becomes sick, or dysfunctional. When the parts work together, society is stable.

The pioneers of structural functionalism were Auguste Comte, Emile Durkheim, Herbert Spencer, Talcott Parsons,  and Robert Merton.

Some writers classify this perspective as ‘consensus theory’.

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• Social-Conflict

Basic premise - society is composed of competing groups, which are not harmonious.

Focus is on inequalities in society and the struggle to gain control over scarce resources.

Once a group achieves dominance over others, it seeks to use the available mechanisms of social control (law is one of them) to its advantage in order to maintain a dominant position.Karl Marx (1818–1883) is the most famous social-conflict theorist – Marxist School. Another conflict school is Institutional Theorists.

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• Symbolic Interactionism

Basic premise - symbols, or things to which we attach meaning, are the basis of social life. Language is one of the most important symbols.

It is a micro theory that looks at individuals or small-scale interactions.

It maintains that behaviors can only be understood in the context of the setting and society in which they exist. Meanings arise out of social interactions with others, and symbols make life possible.

Important symbolic interactionists are Max Weber (1864-1920), George Herbert Mead (1863-1931), and Erving Goffman (1922-1982).

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Application of Social Theories to Law

• Marx regards law as a means of securing and legitimizing dominant socio-economic relations.

• Both Durkheim and Parson reflect on state law’s role as a mechanism of normative integration.

• Ehlirch locates the engine of social life in social norms, the “living law”, rather than the formal legal system.

• Roscoe Pound treats law as a mechanism of ‘social engineering’.

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Main Areas of the Social Study of Law

Social origin of law and legal institutions. The task of laws in society. The actual effects of the law upon society – i.e. the complex of

attitudes, behaviour, organization, environment, skills, and powers involved in the maintenance of a particular society.

The effects of social phenomena on both the substantive and procedural aspects of law, as well as on the legislative, judicial, and other means of forming, operating, changing, and disrupting the legal order.

the social basis for the validity of law.

Its focus is descriptive, not normative; it is concerned with what is or with what goes on, not with what ought to be or ought to go on.

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Eugen Ehrlich (1862 – 1922)

Eugen Ehrlich (1862-1922) was an Austrian jurist.

He contested one of the main tenets of legal positivism by claiming that "law" comprises much more than the norms generated and enforced by state institutions.

Central to his notion of legal pluralism is the co-existence of

"official law" and "living law".

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Official law essentially consists of "norms for decisions", through which the "state issues directions to its courts and other tribunals as to manner in which they should decide cases" coupled with instructions directed at administrative agencies as to how cases should be processed.

Hence official laws correspond to that which is traditionally understood to be laws and comprise those legal norms embodied in statutes, codes or common law doctrines and intended for the adjudication of disputes.

Living laws or “norms of conduct” are self-governing social rules, dependent upon no superior sanctioning authority, but effectively governing many groups and relationships within society; they form “the inner order of associations” and are accepted by society; they may often stand in contrast to rules enforced by the State).

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Ehrlich recognized that the formal sources of law provide an incomplete picture of what law is really like.

There will always be an inevitable gap between norms of formal law and of actual behaviour. (Ehrlich cited the private financial practices within commercial communities as illustrating this gap. However, the law often bridges the gaps of this nature).

Human conduct is, in fact, regulated by the "living law", that is, the norms generated by a host of formal or informal collectivities ("associations").

Occupational organisations, ethnic groups, families, religious communities and other such groupings exist alongside associations that have a formal legal character like trade unions and business entities.

Each has an inner ordering which induces respect for norms that are not derivative of state agencies.

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Ehrlich also argued that because it is applied in exceptional cases only, the significance of the body of "norms for decisions" is overstated.

When disputes occur they are usually resolved without resort to state institutions and laws may not be invoked because people are unaware of their existence, or lack the material or other resources necessary to enforce a claim.

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Moreover, "official law" will only be effective when in conformity with the "living law", that is, with the social norms that actually guide human behaviour.

For Ehrlich, therefore,

"the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself".

Social order is not secured by state compulsion but derives from cultural acceptance of certain "rules" for living.

Official legal sanctions affect only a minority of social "outcasts", whose bonds to social associations have been severed because of economic, psychological and other factors.

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The important point that Ehrlich was seeking to make was that the ‘living law’ of society has to be sought outside the confine of formal legal material, in other words, in the social life itself.

Hence, for instance, one learns little of the living law in factories by reading only the Factories Act, the enactments and the common law relating to employer and employee, trade unions, etc.

For Ehrlich thus only a minute fraction of social norm comes before the court, and even then, it usually represents some form of breakdown of social life.

The task of formal lawmakers is to keep it (law as nearly abreast of the living law as possible.

Ehrlich defines society as ‘the sum total of the human associations that have mutual relations with one another’. The living law reflects that which binds individuals within associations. Where legislators fail to recognize the potency of the law in relations to social ends, enacted law will cease to mirror social aspirations.

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How then is the living law, as distinct from the formal law, to be discovered? According to Ehrlich, it can be discovered from

(i) judicial decisions, which are only evidentiary; (ii) modern business documents against which judicial decisions need to be checked; and above all (iii) observation of people, by living among them and noting their behaviour. Ehrlich points out that the existence of social order pre-dates (i.e. existing before) formal legal provisions and, moreover, certain social facts underlie all laws. These are usages, domination, possession and declaration of will. Prepositions of law with reference to them arise in three ways:

(a) by endeavouring to give effect to the relations they create, (b) by controlling or invalidating them, or (c) by attaching consequences to them.

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The Role of State: In Ehrlich’s conception of law state organization plays but a subsidiary part.

(a) The norms emanating from the state and its organs are only one factor of social control and should be considered in conjunction with others such as customs, morality and the practices of groups and associations. When looked at in the context of living law, there is no difference between formal legal norms and those of customs etc., for it is social pressure that ensures obedience to both types in practice. (For Ehrlich thus, a statute that is habitually disregarded is no part of the living law).

(b)Enforcement by the state is not the distinction between formal and living law; the difference resides in social psychology. Some types of rules evoke different feelings from others. The characteristics of formal rules lies in the kind of feeling they arouse by virtue of their generality and social significance.

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Evaluation: Ehrlich’s conception of a plurality of interlocking orders within a given society continues to be strongly influential.

The aspect of Ehrlich's work that has proved least palatable concerns the nature of state law. By classifying the state as but one form of association, he is open to the criticism that he underplays its coercive properties.

Further, his and other variants of legal pluralism arguably do not supply adequate criteria for distinguishing non-state law from any other normative order.

Several theorists, including Weber and Roscoe Pound, agree that state law is not uniquely productive of social order but take issue with Ehrlich's insistence on the primacy of living law.

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David Nelken raises several difficulties with the very concept of the ‘living law’:

• What, if anything, do the various norms of the living law’ (relating to families, organizations, and business activity) actually have in common?

• To what extent do these organizations and associations reproduce within themselves Ehrlich’s two types of law, having both ‘norms for decisions’ and ‘living law’?

• Can groups and associations be defined apart from the norms that constitute them?

• How do norms of ‘living law’ arise?• What are the relationship of opposition, incorporation, and

symbiosis between state ‘norms of decision’ and the ‘living law’? • How do the norms of some groups affect the norms held dear in

other associations?

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Legal pluralism has profound normative and empirical implications.

• At an empirical level it suggests that official law may have a marginal influence at best on the social order. According to Philip Selznick, this approach to law is based on "the idea that distinctive social fields generate their own modes of self-government, their own rules of right conduct". Contemporary researchers working in the legal pluralist frame have examined the impact of formal law in given settings. In a study of dispute resolution amongst cattle ranchers and their neighbours, Robert Ellickson found that formal rules were of little significance. Likewise Stewart Macaulay concluded that contract law and the use of courts were not central to the conduct of business relationships.

• The normative dimension is a potentially rich line of inquiry that is less developed in socio-legal research. The inference is essentially that the law of state elites ought not to be accorded the weight or priority that it currently enjoys.

As Sally Merry observes,

"[legal pluralism] … provides a framework for understanding the dynamics of the imposition of law and of resistance to law. ... [A]ttention to plural orders examines limits to the ideological power of state law.”

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… Still, his influence is not inconsiderable … and his ideas are described by Cotterrell as ‘a powerful challenge to lawyers’ typical assumptions about the nature and scope of law and of its importance.

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Jhering, Rudolf von (1818-92)Jhering, a German legal scholar, has earned the title of ‘father of modern sociological jurisprudence’.

Jhering was opposed to the views of two allied and influential schools of German thought.

• One that saw law as something that grew unconsciously, reflecting the spirit of a people (see Jurisprudence, historical; Savigny).

• The other that treated law as a settled hierarchy of rules and concepts, the terms used being sufficient to resolve any problem that might arise.

Jhering also took issue with English utilitarianism. Though espousing the notion that law has a purpose and certain of their ideas about human motivation he rejected Bentham and Mill's individualism.

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Jhering's own views are found in The Struggle for Law (1872), and in Law as a Means to an End (1877-83)

He argues that law is directed to the fulfilling of human interests or purposes, which involve securing 'not merely the conditions of physical existence, but all those goods and pleasures which in the judgment of the subject give life its true value' (1877-83: 331).

Law , for Jhering, is an instrument of society dependent on and determined by the goals human agents have.

This requires cooperation, individuals connecting their own interests with those of others and 'the converging of all interests at the same point'.

Certain social levers are needed to bring this about. Where duty, love or economic reward prove insufficient, the law steps in to provide the compulsion required.

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The main point that emerges from Jhering analysis is that laws are only one type of means of achieving an end, namely social control.

Jhering draws a distinction between society and state; laws are a feature of the latter (the state).

He insisted that laws should be treated from the angle of purpose. He insisted also on the interdependence of all factors that obtain in society, which include,

• extra-legal conditions (ie those under control of nature, such as the climate and the fertility of the soil);

• mixed-legal conditions (those in which laws do not play a prominent part – self-preservation; reproduction, commerce and labour; and

• purely legal conditions (those interests which are secured solely by legal regulation – eg the raising of revenue.

Jhering finally stressed the coercive character of legal regulation. His analysis led him to define law in the following terms:

Law is the sum of the conditions of social life in the widest sense of the term, as secured by the power of the State through the means of external compulsion.

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Evaluation:The connections Jhering made between law, social utility and interests were influential for, though not entirely endorsed in, US thought (see Pound, R.) and for the development of Interessenjurisprudenz (the jurisprudence of interests) in Germany, while his analysis of legal coercion seems to foreshadow the ideas of Hans Kelsen.

Some sociologists, however, maintain that his statist and coercive conception of law inadequately reflects social facts.

He is also criticized for endorsing such a conception, for taking relativistic views of social utility and justice, and for subordinating individual to social interests.

On another understanding, he was actually arguing that it is only possible to secure individual interests in a 'realized partnership of the individual and society'.

Although Jhering insisted on the need to reconcile competing individual and social interests he himself did not indicate how this conflict was to be resolved.

Jhering was rightly convinced of the futility of a priori theories of justice; a law may be bad today and good tomorrow if the social background has shifted in the meantime.

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Roscoe Pound (1870 – 1964)

Sociological jurisprudence took hold in the American academy through the work of Roscoe Pound (1870-1964).

Increased state regulation of all arenas of social life, including the economy as witnessed by the emergence of welfare state institutions, gave rise to the view that law could be deployed to create controlled and orderly social change.

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Pound's immense body of work aimed to overcome the limitations of two dominant jurisprudential traditions, namely

• natural law thinking and • analytical jurisprudence.

Pound criticized the tendency amongst lawyers to apply abstract principles rigorously, irrespective of the underlying policies or the impact of these policies in particular situations.

Pound labelled the formalism that underlying such legal reasoning as "mechanical jurisprudence".

Pound saw law as a dynamic institution designed to manage continually evolving and often conflicting interests.

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Social interests and ‘jural postulates’Pound - the central task of jurisprudence should be to enhance law's supposed ability to secure or at least manage the attainment of socially desirable ends.

Under this vision law is, in effect, an instrument of "social engineering" that can be tuned to operate efficiently and sociology can supply the information needed to guide legal reform.

The purpose of social engineering is to construct as efficient a society as possible, one which ensures the satisfaction of the maximum of interests with minimal friction and waste of resources.

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“Interests”

The law, by identifying and protecting certain ‘interests’, ensures social cohesion.

An ‘interest’ is defined as a ‘demand or desire which human beings, individually or in groups, seek to satisfy and which must be taken into account in the ordering of social relations’.

It is legally protected by attributing to it the status of a legal right.

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Pound’s categorises interests:

• Individual interests, • interests of substance.• Domestic interests, • Public interests, and • social interests.

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A. INDIVIDUAL INTERESTS: These are claims or demands or desires involved in and looked at from the standpoint of the individual life. They concern (1)Personally. This includes interest (a) the physical person, (b)

freedom of will, (c) honour and reputation, (d) privacy, and (e) belief and opinion.

(2)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, (b) children, (c) husbands, and (d) wives.

(3)Interests of substance. This includes interests of (a) property, (b) freedom of industry and contract, (c) promised advantages, (d) advantageous relations with other, (e) freedom of association, and (f) continuity of employment.

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B. PUBLIC INTERESTS: These are claims or demands or desires asserted by individuals involved in or looked at from the standpoint of political life. These are less important but would inclue,

1. Interests of the state as juristic person. They include (a) the integrity, freedom of action and honour of the state’s personality, and (b) claims of the politically organized society as a corporation to property acquired and held for corporate purposes.

2. Interest of the state as guardian of social interests. This seems to overlap with the nest main category.

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C. SOCIAL INTERESTS. These are claims or demands or desire including even some of the foregoing in other aspects, viewed in terms of social life and generalized as claims of the social group. These are the most general and, according to Pound, the preferred level on which to balance conflicting interests. Social interests are said to include,1. general security - to be secured against threats to existence from disorder, and matters such as health; 2. security of social institutions - acknowledges the existence of tension and the need to protect domestic institutions, and economic institutions; 3. general morals - including such matters as prostitution, drunkenness and gambling which are said to be offensive to moral sentiments;4. conservation of social resources - this social interest may to certain extent clash with the individual interest in dealing with one’s own property as one pleases. It covers (a) conservation of natural resources, and (b) protection and training of dependents and defectives, i.e. conservation of human resources. 5. general progress - covers economic progress (embracing freedom of use and sale of property, freedom trade, freedom industry, and encouragement of invention by the grant of patents) political progress (embracing freedom of speech and association), and cultural progress(which cover freedom of science, freedom of letters, freedom of arts, and promotion of education and learning, and aesthetics), and5. individual life - according to which one should be able to live life according to society’s standards, for example, self-assertion and opportunity.

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Having categorized the manifold interests recognized by the law, Pound proceeds to examine the various legal means by which they are secured by referring to the following forms of law. These are:

• Rules, which are precepts attaching definite consequences to definite factual situations;

• Principles, which are authoritative points of departure for legal reasoning in cases not covered by rules;

• Conceptions, which are categories to which types or classes of transactions and situations can be referred and on the basis of which set of rules, principles, and standards become applicable;

• Doctrines, which are the union of rules, principles and conceptions with regard to particular situations or types of cases in logically interdependent schemes so that reasoning may proceed on the basis of the scheme and its logical implications;

• Standards prescribing the limits of permissible conduct, which are to be applied according to circumstances of each case.

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Note:

Pound, however, did not regard law as an appropriate vehicle for enacting radical social programmes.

His concern lay instead with improving the internal working of legal institutions so that they adapted to social change; as one commentator has remarked: "his principal objection to bad law was its effect on the legal system rather than on society".

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Conflict of Interests

Pound insists that interests should be balanced fairly. When interests conflict, they may be ‘weighed’ or ‘balanced’ only against other interests ‘in the same plane’.

Thus individual interest must not be weighed against a public interest, and so on.

This method would dictate the outcome of the supposedly scientific exercise in balancing out these interests. .

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The business of the law, in Pound’s view, therefore consists in satisfying as many interests as possible.

But, how are we to know whether new interests qualify for recognition? He suggests that they might be tested by reference to certain ‘jural postulates of civilization’.

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These consist of those (changing) assumptions which exist in ‘civilized society’:

• no intentional aggression; • beneficial control over what people acquire

under the existing social and economic order;

• good faith in dealings; • due care not to injure; • control over dangerous activities; and so

on.

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Summary of Pound’s view• Pound views law functionally, as a necessary social

intuition created to assist in the satisfaction of human wants.

• The satisfaction of human wants necessitates an analysis of interests so that they may be systematized and secured by society’s legal institutions.

• Conflict of interests will demand a process of balancing one against another on the same plane.

• Where conflict follows on a request to recognize a new interest, reference is to be made to the jural postulates which reflect society’s (and law’s) values. These postulates are not immutable and will require revision from time to time.

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Sociological Jurisprudence

According to Roscoe Pound, the main features of the sociological school of jurisprudence are:

• It emphasises the functional aspect of law and not its abstract contents.

• It treats law as a social institution which is closely related to various other disciplines that have a direct impact on society.

• It believes that human experience is the basis of law and that law is designed to meet dynamic social needs. (This is contrary to the emphases placed on ‘commands’ by analytical positivism and on the past by the historical school of jurisprudence.)

• It either adopts a pragmatic approach by treating law as an applied science which uses functional methods to investigate, analyse and solve social problems or else, it adopts a realistic approach and defines law primarily in terms of judicial precedents.

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“Law in Action vs “Law in Book” - Legal and Social Norms

Pound calls for a study of law as it actually is, the "law in action" as opposed to the law in the books.

The distinction may yield inquiries as to how legal and social norms interrelate, whether court rhetoric matches the realities of adjudicative processes, whether law-making achieves its stated objectives and so on.

His own work tended to reflect this latter objective.

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Law and Morality

In a salient essay, "The Limits of Effective Legal action,” he contemplated the relationship between law and social control.

A core theme is his belief in the practical distinction between law and morals. Since law can only deal with observable behaviour, it cannot control attitudes and beliefs.

Further, certain moral obligations are not amenable to legal enforcement; the duties and obligations arising from family ties constitute one example.

On this view, those aspects of family law and social welfare legislation dealing with the care of dependents are misguided.

It might be countered that while laws cannot make anyone care for another person, and in this sense are not directly enforceable, they can help to establish conditions that support caring relationships.

Recent scholarship is less concerned about legal effectiveness in these "private" spheres of life and tends to emphasise law's propensity to impose inappropriate regulatory frameworks.

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Problems of Access to JusticeAnother significant limitation identified by Pound pertains to the activation of law. Legal precepts are enforced by state agencies, including courts, various law officers, juries and policing bodies, and generally will only be triggered when individual litigants and complainants come forward.

Legal norms therefore lie dormant unless an aggrieved party is in a position to participate in legal proceedings.

In states where legal services are essentially privatised, access to courts in civil cases is severely compromised and effectively guaranteed only to those with sufficient resources to meet the extraordinary costs involved.

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Legal aid schemes are classified as a form of welfare provision and so tend to be subject to qualifying restrictions that exclude large segments of the population.

While a wide range of rights is conferred on people many are excluded from exercising these rights because they lack the resources necessary to do so.

Further, as Pound notes, law must provide incentives to ensure that it is invoked. R

Note:

Studies in Ireland of attrition rates in sexual assault cases, which found that the rules of evidence applicable in such trials act as a disincentive to potential complainants, would appear to reinforce this point.

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Criticism of Roscoe Pound’s Theory

1. Social Engineering: By using the term ‘social engineering’ Roscoe Pound compared society to a machine ignoring its dynamic and non-mechanistic nature.

2. Jural Postulates: They fail to establish any framework of reference or yardstick with which to evaluate various interests since they themselves are not static.

3. The Interests: They overlap and cannot be easily fit into neat little pigeon holes.

4. The Balance: Pound’s emphasis on securing the maximum satisfaction of needs, wants and demands has the inherent danger of this satisfaction being at the expense of individual rights and freedoms.

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5. Pound's approach was premised upon an assumption of consensus, and so it maintained and enhanced the legitimacy of the judicial domain. It is, in essence, functional jurisprudence.

Hunt - Pound "was the propagandist for a sociological jurisprudence, but he cannot be regarded as having given it an adequate theoretical basis".'