INTRODUCTION
The
Sociological School of Law is a collection of academics and practitioners committed
to the study of law as a social phenomenon. In other words, sociological
approach to jurisprudence is the study of law in its social setting or as a
social institution[1].
Rescoe pound and his theory
Roscoe
Pound (1870-1964) who was a dean in Harvard Law School is known to have been
the most influential proponent of the American Sociological jurisprudence. He
essentially saw law as a social institution created and designed to satisfy
human (individual and social) wants. He agonized over the fact that traditional
scholarship focused almost exclusively on the law in the textbooks to the
detriment of the law in action. Law in action refers to the law that actually
reflects the current behavior of the people[2].
In
his Outlines of Lectures on Jurisprudence (1943), he defined interest as: a
demand or expectation which human beings either individually or in groups, or
associations or relations, seek to satisfy, of which, therefore, the adjustment
of human relations and ordering of human behaviour through the force of a
politically organized society must take account.
LEGAL INTEREST
According
to Pound, there are three categories of legal interests, namely, individual,
public and social interests.
Individual
interests
Are
"claims or demands or desires involved immediately in the individual life
and asserted in title of that life". Individual interests are asserted for
the titles of individual life. What this logically leads to is the fact that as
these interests by and large only involve the individual, the interests tend to
fall into the scope of private law although in the actual balancing the
interests this is a generalisation that may not be always true[3].
Public Interests
A
"claims or demands or desires involved in life in apolitically organised
society and are asserted in title of that organisation. They are commonly
treated as the claims of a politically organised society thought of as a legal
entity". These types of interests are asserted for or in the title of politically
organised society. Political interests can be generalised as falling within the
scope of [public law which includes] criminal law although there is clearly an
overlap with individual interests[4].
Social Interests
Were
originally included by Pound as a distinct and vital set of interests whereby
they were described as "claims or demands or desires involved in the
social life in civilized society and asserted in title of that life. It is not
uncommon to treat them as claims of the social group as such"[5].
These
interests have been regularly tied to the concept of security. As such, one
vital part of security is for society to enjoy an organised legal system within
the political organisation which could arguably also fall within the public
interests as political organisation also requires the existence of some form of
legal control which can only be provided by the legal system[6].
JURAL
POSTULATES
Pound
introduces the concept of "jural postulates" as the method by which
interest may be tested and evaluated so that the conflicts between the various
interests may be resolved. Jural postulates presuppose legal reasoning about
rights and obligations at the various levels and involve what human beings must
be able to (reasonably) assume in a civilized society[7].
According
to Pound, these assumptions may vary from one legal system to another based on
ethno-cultural lines and can even be different within the same legal system
while others are quite similar in all societies[8]
Pound
seems to have formulated some jural postulates by generalising some values
protected by existing laws within the American Legal system and suggests that
these do not need to be tested against objective morality as they fit in with
the "functions of law" within the specific reality[9].
The five jural postulates
identified by Roscoe Pound
Pound
clarified that for the American Legal System's approach to property,
possessions and legal transactions the postulates include;
- People must be able to assume that others will not be intentionally aggressive;
- People must be able to assume that they can control things that they have discovered, created or legitimately acquired;
- People must be able to assume that other people will honour reasonable expectations which they create and undertakings which they give, as well as making restitution in respect to unjust enrichment which they could not have reasonably expected to receive (good faith in dealings);
- People must be able to assume that other people will act with due care not to create unreasonable risk of injury to others;
- People must be able to assume that other people will control things which they maintain on their land and which are like to escape and cause damage.
RELEVANCY OF ROSCOE POUND JURAL
POSTULATES IN MODERN TANZANIAN LEGAL SYSTEM
Pound’s
conception of law as an instrument of balancing interests to achieve social
cohesion continues to influence the evolution and application of key law principles.
Balancing of interests involves weighing between individual and social or
public interests.
In
Tanzania, Courts have been called to intervene whenever there is a clash
between and among the various categories of interests in society. This is
reflected in the case of Mulbadaw Village Council & 67 others v. National
Agricultural and Food Corporation[10],
in this case there was a conflict of interest between the government and
villagers and thus the court was called to decide as to whether the land
acquisition by the government was lawful. Thus the court held that the Mulbadaw
Village council and Mulbadaw Villagers were lawfully possessing land and they
could only be deprived of their land by due operation of Law, not by mere
blessings of the government and party leaders in Hanang District and Arusha
Region; the provisions of the Land Acquisition Act (No. 47 of 1967) were not
followed in acquiring land belonging to Mulbadaw Village Council and Mulbadaw
Villagers and therefore such acquisition was unlawful.
Thus
from the above case it goes without saying that the court balanced the interest
of the community against those of the state and thus generally safeguarded
their interest as pound envisages.
Nevertheless,
the significance of jural postulates (legal values) in the identification,
recognition and protection of interests is still relevant. In Tanzania for
instance, the constitution provides for such aspirational values as human
rights, equality of freedom, democracy, social justice and rule of law.
Essentially,
Part III of the Constitution of Tanzania, 1977 as amended time to time solely
deals with the Fundamental Rights of the citizen and people of this country
wherein the citizens and the people are provided with certain rights. These
rights are provided by recognizing the public and private interest of the
individual.
For
instance under Article 16 of the Constitution of United Republic of Tanzania as
amended time to time every person is entitled to respect and protection of his
person, the privacy of his own person, his family and of his matrimonial life,
and respect personal and protection of his residence and private
communications.
Also
Article 28 (3) of the Constitution of United Republic of Tanzania as amended
time to time reads thus;
“28.-(3)
No person shall have the right to sign an act of capitulation and surrender of
the nation to the victor, nor ratify or recognize an act of occupation or
division of the United Republic or of any area of the territory of the nation
and, subject to this Constitution and any other laws enacted, no person shall
have the right to prevent the citizens of the United Republic from waging war
against any enemy who attacks the nation”.
However
in ensuring that the diverse interests are balanced in the society Article 30 (1) of the Constitution of United Republic of
Tanzania as amended time to time reads thus;
“30.-(1)
The human rights and freedoms, the principles of which are set out in this
Constitution, shall not be exercised by a person in a manner that causes
interference with or curtailment of the rights and freedoms of other persons or
of the public interest”.
Therefore
the rights that are provided in the constitution have certain limits and hence
these rights will not be accessible under certain situation and certain
circumstances. Further, satisfying the third condition of Pound these rights
has been secured as the Constitution of Tanzania says that any law that is in
conflict of the Fundamental Rights will be held void[11]
Generally
these values have been enshrined in the Constitution where they have been made justifiable
and enforceable in the enactment, application and interpretation of law and
policy. In this sense, they bind courts and legislators in a manner that Pound
envisaged.
Pound’s dural postulates is still
useful in explaining how Tanzanian laws evolves and functions.
He has extended this thinking to the development of statute law by engendering
a notion of balancing of interests in the legislators’ actual work. The
Tanzanian legislature when crafting a particular legislation normally take on
board the diverse interest of the society and thus balance it by enacting a
more just and equitable legislation[12].
Lastly,
and perhaps most significant, Pounds
view on social engineering as the purpose of law and the theory of autopoeisis
are applicable in explaining legal change in Tanzania. Continuous
scientific, political economic and social changes are creating new problems
that merit intervention by law. The law is thus constantly balancing interests
and interacting and “ingesting” these problems as presented in the form of legal
disputes and claims brought before courts and legislatures. In the end, by way
of new enactments and judicial decisions, law adapts to the new changes[13].
Criticism levelled against the
theory
However
dispite the fact that Pound’s postulates theory bears some relevancy in
Tanzania legal system but the said theory has not been left without any criticisms
as hereunder contended;
First,
his thinking appears to adopt a consensus model of society, wherein there is
widely shared understanding of interests and values. However this may not be
the case as different social groups and strata may hold different values and
interests (a conflict model).
Secondly,
his classification of interests is problematic as the line separating social
and state interests may be too thin to discern, hence making it difficult to
conceptualize the balancing of these interests.
Thirdly,
it can be assumed that the jural postulates (legal values) forebear the claims-
otherwise courts and legislators would have problem identifying and agreeing on
these interests every time a conflict is presented to them. This would
therefore make the law creation process dependent on static postulates thus not
sufficiently account for legal change.
Fourthly,
the theory does not account for vested interests (e.g. those that accrue to by
virtue of operation of law). Sixth, the conceptualization of interests does not
take into consideration that some interests can be created by the law (e.g.
welfare law creates interests for dependants). Seventh, it is difficult or
impossible to achieve a cohesive society through balancing of interests, where
there is a minority whose interests are irreconcilable with those of the
majority.
Lastly,
the theory only accounts well for judge-made law and not less for legislative
innovation.
[1] Harvard
Law Review , Vol. 25, No. 2 (Dec., 1911), pp. 140-168
[2]
James A. Gardner, The Sociological
Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1 (1961)
[3] R.
Pound (1943) "A Survey of Social
Interests" 57 Harvard Law Review, 99. 1-2
[4] Ibid
[5] Ibid
[6] R.
Pound (1959) Jurisprudence, St Paul, Minnesota: West Publishing Company.
[7]
J. W. Harris (1997) Legal Philosophies, 2nd Ed. London: Lexis Nexis
Butterworths
[8] R. Pound (1943) "A
Survey of Social Interests" 57 Harvard Law Review, 99. 1-2
[9]
I. McLeod (2007) Legal Theory, 4th Ed. Palgrave Macmillan Law Masters, NY,
p.153
[10]
[1984] TLR 15 (HC)
[11] Article
30 (5) of the CURT, 1977
[12]
Cottrel, R (1992). The sociology of law:
An introduction. London: Butterworth
