jp yadav prjct
TRANSCRIPT
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Juralpostulates By Rosco Pound
Roscoe Pound is considered to be the founder of
American sociological jurisprudence. His works
include:
1. The Spirit of Common Law2. Interpretation of Legal History
3. The Formative Era of American Law
4. An Introduction to the Philosophy of Law
5. Law and Morals
6. Social Control through Law
7. Law and Morals
8. The Task of Law
According to Roscoe Pound, the main features of the
sociological school of jurisprudence are:
1.It emphasises the functional aspect of law and not its abstractcontents.
2.It treats law as a social institution which is closely related to variousother disciplines that have a direct impact on society.
3.It believes that human experience is the basis of law and that law isdesigned to meet dynamic social needs. (This is contrary to the
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emphases placed on command by analytical positivism and on the
past by the historical school of jurisprudence.)
4.It either adopts a pragmatic approach by treating law as an appliedscience 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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His theory is called the Theory of Social Engineering.
Law :
Pound defined law as the rules principles, conceptions and standards of
conduct and decision and also the precepts and doctrine of professional rules
of art. The aim of law is:
1. to satisfy as many wants as possible while causing as little friction or
confrontation as can be caused.
2. to reconcile the aims, wants and demands of the individual with those of
society
3. to bring harmony into the relationship between the individual and society.
He called this satisfaction of social aims, wants and demands with the least
possible sacrifice social engineering. He went on to say that the members
of the judiciary, legislators, administrators and jurists must make a planned
and coordinated effort to maintain a balance between the completing
interests in society which he classified into three main categories: private,
public and social.
Private Interests include physical integrity, freedom of volition, freedom of
conscience safeguarded by the law of crime, tort, contract and constitutional
law, domestic relationships, etc. Public interests include the preservation of
the State and social interests include the preservation of social institutions
such as religion, the prevention of prostitution and the conservation of
Social Resources such as forests.
The classification is not watertight; Julius Stone has, in fact, said that public
interests are social interests.
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Pound evaluated these interests with reference to certain basic assumptions
which he said exist in every society. He called these assumptions the jural
postulates of the legal system in question and specifically mentioned five
of them which exist as guidelines for civilised life in every civilised society
by saying that men in such societies must be able to assume that:
1. others will commit no intentional aggressions upon them.
2. they may control for beneficial purposes what they have discovered and
appropriated to their own use, what they have created by their own labor,
and what they have acquired under the existing social and economic order.
3. those with whom they deal in the general intercourse of society will act in
good faith and hence:
(i) Will make good reasonable expectations which their promises or other
conduct will reasonably create;
(ii) Will carry out their undertakings according to the expectations which the
moral sentiment of the community attaches thereto;
(iii) Will restore specifically or by equivalent what comes to them by
mistake or unanticipated or (via a) not fully intended situation whereby they
receive at anothers expense what they could not reasonably have expected
to receive under the circumstances.
4. those who are engaged in some course of conduct will act with due care
not to cause an unreasonable risk of injury upon others.
5. those who maintain things likely to get out of hand or to escape and do
damage will restrain them or keep them within their proper bounds.
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However, Pound also acknowledged that the jural postulates are dynamic;
they are merely of relative value and are not absolute.
Criticism of Roscoe Pounds 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: Roscoes 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.
POUND PREVAILING IN THE INDIAN PATENT
LAW
Sociological jurisprudence theory according to Pound should ensure that the
making, interpretation and applications of law take account of social facts.
Propounding the task of a lawyer to be akin to engineering, Pound aimed at
building a structure of society, wherein it required the satisfaction of
maximum of wants with minimum of friction and waste. Pound seemed to
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render a programme towards achieving the end of this jurisprudence which
consisted of eight points.
To fulfill his agenda of Social Engineering, Pound classified the interests
protected by law, into three primary categories (and consequent sub-
categories therein), namely: Individual, Public and Social
interests.Individual interests are claims or demands or desires involved in
and looked at from the standpoint of the individual life. These include
Personality,Domestic Relations and Interest of Substance. Public interests
on the other hand are asserted by individuals involved in or looked at from
the standpoint of political life, while Social Interests are looked at in terms
of social life and generalized claim of a social group.
Pounds theory also renders five Jural Postulates, in his article,
A Survey of Social Interests.The Postulates as modeled by
Pound may be enlisted as:
Jural Postulate I
In civilized society men must be able to assumethat others will commit no
intentional aggressions upon them.
Jural Postulate II-
In civilized society men must be able to assume that they may control for the
beneficial purposes what they have discovered and appropriated to their
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own use, what they have acquired under the existing social and economic
order.
Jural Postulate III-
In civilized society men must be able to assume that those with whom they
deal in the general intercourse of society will act in good faith.
Jural Postulate IV-
In civilized society men must be able to assume that those who engage in
some course of conduct will act with due care not to cast an unreasonable
risk of injury upon others.
Jural Postulate V-
In civilized society men must be able to assume that others, who maintain
things or employ agencies, harmless in the sphere of their use but harmful in
their normal action elsewhere, will restrain them or keep them within theirproper bounds.
Looking at the scheme and jurisprudence backing Patent law as itstands
today, it is evident that the various Jural Postulates are quite satisfied by its
scheme. The first postulate may be satisfied by the freedom in India to work
and develop inventions, and exercise claim over them, while the second is
satisfied by the fact that a patent may be acquired and rights
accruingthereof may be asserted. The third and fourth postulate are governed
by the provisions to take action in the form of opposition proceedings to the
grant of a patent,revocation of a valid patent, infringement and the like,while
the fifth Postulate is fulfilled by provisions such as those affording the grant
of compulsory licenses whereby conditions such as permission from the
patentee for inventions which are not being worked are expected to be
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satisfied by the third party (others) desirous to make use of the patent in
their field of operation.
Thus, it is quite evident from the scheme of the Act that the Patent Act is
indeed a piece of Social Engineering. While there are rights conferred upon
patentees, there are also considerations that are made by the Patent Office in
granting those rights and consequently accruing an interest in them.
Alongside, the fact that third parties at various points in time acquire the
right to oppose the application for a patent or file a suit for infringement
takes care of their individual interests which, very often, are a manifestation
of an interest favouring the larger society. Provisions such as those of
Compulsory Licensing evidently depict a conflict between social and
individual interests. On the other hand, an invention relating to Atomic
energy not being patentable subject matter is a depiction of a conflict
between social, and public interest (interest in preservation of peace and
order and maintaining general security) and individual interests.
SECTION 3(D) AS A CONFLICT OF
INTERESTS
The paper in particular analyzes the latest ruling on Section 3(d).Section 3
deals with non-patentable subject matter and dedicates this particular sub-
section to the patentability of derivatives and modified versions of products,
processes or apparatus.
Examining the conflict of interests in Section 3(d), there exists a tug of war
between individual, public and social rights. Where the question of
derivative forms of chemical compounds exists, an element of similarity in
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properties between the derived (or modified composition) and the original
composition cannot be negated. In this event, while individual interests in
terms of investment in research & development, skill, labour and appending
questions come under the spotlight, it is indeed necessary to determine the
prevailing conflicts between other social and public interests and find the
yardstick to balance the two.
Section 3(d) in terms of patentability of the derivative negates any rights to
an applicant, unless and until enhanced efficacy is depicted to be existent.
The public interest in doing so is the interest of the state as the guardian of
social interests, which arises out of the need to conserve social interests
while preserving the freedom to manufacture, trade and deal with a
substance. In other words, the public interest exercised by the Patent Office,
which is the State representative here, with the powers of a quasi-judicial
body, protects social interests by not letting an individual rob the freedom of
others in the society to use the subject-matter under contention, by granting
monopoly to an individual over the same.
Inferring the intent, the section primarily seems to be aiming at preventing
ever-greening amongst pharmaceutical products, assuming a high degree of
physical, chemical, reactive and consequently functional similaritybetween
various isomers and derivative forms. Further, the demand is to demonstrate
to the Patent Office enhanced efficacy and hence claim ones ground to
secure a patent. This factor, no doubt brings into purview the non-
patentability of an incremental innovation. As a result, by making derivates
with enhanced efficacy patentable, section 3(d) encourages the sequential
development of existing products or technologies to help bring in improved
products that address unmet public health needs
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Roscoe Pounds greatest criticism lies in the lack of guidelines enabling the
determination of the balancing metaphor to any conflict of interests. This
criticism extends itself to Section 3(d) as well. The Novartis Glivec decision
pronounced by the Madras High Court, deliberating upon the
constitutionality of the section, pronounced therapeutic efficacy as the
balancing metaphor.
Roscoe Pound And His Theory On Law
Roscoe Pound was the first scholar to analyze jurisprudence with the
findings and the methodologies of the social sciences. Until then Philosophy
was undermined by centuries of its failings to offer such a theory, logic as a
tool was discredited by the attempts of Langdell and his German colleagues.
Pound claimed that law is the paramount agency of social control. It hasgradually replaced religion and morality as the basic instrument for
achieving social order. According to him social control is necessary for
preserving civilization since its main function is human control over
internal or human nature, which according to him is absolutely necessary
for the conquest of external, i.e. physical, nature.
Pound asserts that this control over human nature upholds civilized society
and deters antisocial conduct which is at variance with the postulates of
social order. Law, as a mechanism of social control, is primarily the function
of the state and it operates through the systematic and orderly application
of force by the appointed agents. But, Pound adds that law is not enough, it
needs the backing-up of home training, religion, morality and education.
Law is a system of precepts with both ideal and empirical elements,
disguised as natural or positive theories.
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Pound says that the natural law of each era is essentially a positive natural
law, an idealized version of the positive law of the time and place,
naturalized for purposes of social control when the force wielded by
organized society is not an adequate justification. He confides that the
confusion prevails for the three different meanings of the word law: law as
legal order, law as body of authoritative material, and law as judicial
process. The important thing that Pound did was, he unified all three
meanings in his definition. He defined law and its fundamental function of
social control: Law is a regime which is a highly specialized form of social
control, carried on in accordance with a body of authoritative precepts,
applied in the context of a judicial and an administrative process.
Pound confides that law should be an organ of social engineering. Justice is
not an ideal state of relations or some form of virtue. It is a regime of such
an adjustment of relations and ordering of conduct as will make the goods of
existence, the means of satisfying human claims to have things and do
things, go round as far as possible with the least friction and waste. His
theory is based on the corner-stone of interests. He says that a legal
system attains the end of the legal order by recognizing certain of these
interests, by defining the limits within which those interests shall be
recognized and given effect through legal precepts developed and applied by
the judicial process according to an authoritative technique, and by
endeavoring to secure the interests so recognized within defined limits.
According to Pound the need for social control originates from the reality
of scarcity. The scarcity creates the need for a legal system that will
classify interests and recognize some of them. He says that law does not
create interests, it finds them pressing for security. Law chooses to
recognize those which are necessary for the maintenance and furtherance
of civilization. Pound claims that there are three overlapping classes of
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interests: individual, i.e. interests of personality, public and social. They
are secured through their elevation to the status of legal rights.