Roscoe Pound’s Theory of Social Engineering with special emphasis on the Rights of LGBTQIA+ Community

I. Introduction

The idea of "social engineering" was first presented by eminent American legal scholar Roscoe Pound, which has its roots in the “Sociological School of Jurisprudence.” It emphasizes the significance of law in creating and preserving a peaceful and functional society. It acknowledges the interdependence of societal, public, and individual interests and aims to create a balance between them. Pound's Social Engineering theory presents law as a dynamic tool that may actively shape society by attending to both individual and societal demands, challenging the traditional understanding of law as a static set of rules. The importance of maintaining a balance between competing interests within society is emphasized, as is the function that law plays in settling disputes and advancing the general welfare of the community.

This thorough analysis of Pound's Social Engineering theory covers a number of topics, including the three different categories of legal interests (individual, public, and social), the legal postulates that support Pound's theory, and the rights that the LGBTQIA+ community has in India and the United States. A comparative study between the LGBTQIA+ rights in India and USA is done. It also draws attention to the urgent problems that the LGBTQIA+ group faces in India, such as marginalization, harassment, rejection, and mental health concerns. These problems highlight the need for using social engineering concepts to improve the legal recognition and protection of this population.

The way forward is to take a multifaceted strategy that includes things like favorable media portrayals, family and community support, increased access to healthcare, extensive education and awareness programs, and legal measures to establish equal rights and protections. Through tackling these facets, we can endeavor to establish a more comprehensive and equitable milieu that genuinely recognizes and respects the rights, contributions, and dignity of LGBTQIA+ persons, in accordance with the tenets of social engineering theory.

(A) Statement of problem/ research problem

As we know, the social engineering theory’s purpose is to establish a fairer and more adaptable legal framework that respects basic legal principles and justice while catering to the changing requirements of society. However, it is important to analyse if this theory is applicable in the current situation and scenario of the LGBTQIA+ rights in India.

(B) Literature Reviewed

A thorough review of existing literature, including online journals, academic articles, and scholarly essays was conducted to understand the meaning and key concepts of social engineering theory by Roscoe Pound. Legal texts, foundational documents, and various research papers associated with rights of the LGBTQIA+ community were critically analysed to understand the current scenario of the status of the rights available to them, the need of social engineering theory in their case and the way forward. All the sources have been thoroughly read and critically analysed to make this research paper.

(C) Research Objectives

The objectives of this research paper are:

1) To understand and analyze the Theory of Social Engineering by Roscoe Pound, and the various types of interests and jural postulates concerning it.

2) To analyze the current situation of the LGBTQIA+ community in India and compare it with the situations in other developed nations like the USA.

3) To identify whether the social engineering theory is needed and applicable in the current scenario of the LGBTQIA+ community, and to understand the challenges and way forward for them.

(D) Research Hypothesis And Questions

a. Research Hypothesis

The theory of social engineering is applicable and needed in the current situation and scenario of the LGBTQIA+ rights in India.

b. Research Questions

1) What is the Theory of Social Engineering by Roscoe Pound, and what are the various types of interests and jural postulates concerning it?

2) What is the current situation of the LGBTQIA+ community in India, and how inclusive is the current scenario when compared to other developed nations like the USA?

3) Is social engineering theory is needed and applicable in the current scenario of the LGBTQIA+ community and what are the challenges and way forward for them?

(E) Research Methodology

The primary method used in this research paper is doctrinal research method, where the researcher has studied and analysed various legal and social papers published by well-known researchers. The researcher has also used secondary resources like articles, journals, books, relatable online websites etc. The core of the research will involve a comprehensive analysis of the social engineering theory by Roscoe Pound and its relation with the rights of the LGBTQIA+ community. The research methodology for this comprehensive analysis aims to provide a systematic and rigorous approach to examining the theory of social contract and LGBTQIA+ rights. This methodology outlines the key steps that will be employed to gather, analyse, and interpret data for a comprehensive understanding of this the topic. This research will adopt a mixed-methods approach that combines qualitative and quantitative research techniques. The study will encompass a range of sources to ensure a holistic and in-depth analysis. Measures were taken to ensure the validity and reliability of data and findings, such as using established research tools and triangulating data from multiple sources. The research findings are summarized and presented in a coherent manner.

(F) Rationale of the study

The rationale of the study is to investigate Roscoe Pound's idea of social engineering, which highlights the function of law in striking a balance between the interests of the individual and the community. This study compares and contrasts the legal protections for LGBTQIA+ people in developed nations like the United States and India, emphasizing the difficulties that the LGBTQIA+ community in India faces, such as discrimination, harassment, and societal restrictions. In emphasizes the need to promote a more inclusive and just society through proposals for policy and legal change, it highlights the necessity of applying social engineering principles to the revision of laws and policies concerning the LGBTQIA+ community.

(G) Scope and limitations

This research paper delves into Roscoe Pound's social engineering theory and its application in balancing individual and societal interests within the context of LGBTQIA+ rights in India and drawing comparisons with the United States. It highlights the challenges faced by the LGBTQIA+ community in India, emphasizing the importance of social engineering in addressing these issues. However, the research paper does not contain a global perspective and position of other developed nations on LGBTQIA+ rights and is limited to the USA. Also, the study does not include cultural or religious viewpoints. The paper does not include specific policy recommendations, and is focusing primarily on the broader need for social engineering. Lastly, the paper may not encompass recent developments in this ever-evolving legal and societal landscape.

II. Roscoe pound’s theory of social engineering

Renowned American legal philosopher Roscoe Pound who was a key member of the Sociological School of Jurisprudence, proposed the social engineering theory, which emerged in opposition to positivist legal philosophy in the 19th and 20th centuries. The Sociological School holds that society's norms and practices are the origins of law, contending that law is not just about people but also about how people are related to one another in society.

Pound, who is regarded as the founder of this school, backed this theory by presenting his own Social Engineering theory, which was influenced by the Sociological School. Pound compared lawyers to engineers in his theory, just as engineers shape buildings and architectures "social engineers" like advocates and lawyers can shape the society. He Said that just as engineers apply their knowledge to give final products structure, so too can the law be applied to produce a happy, well-organized society. According to Pound, "Law is social engineering which means a balance between the competing interests in society, in which applied science are used for resolving individual and social problems."

Pound felt that since people always put their personal interests first, the main purpose of the law is to create harmony and balance in society. Put another way, when conflicts of interest emerge, he promoted maximizing enjoyment and minimizing conflict amongst members of society. He said that in situations like these where individual interests collide with those of the community, the law should step in and serve as a mediator. Pound also emphasized the importance of individual and collective interests, which ought to be considered equally until there is a conflict.²

According to Pound's theory of social engineering, the main goal of the legal system and legislation is not only to protect people's rights and justice but also to actively reshape society in order to advance social justice, order, and well-being. Certain interests, such as private, public, and social interests, as well as the definition of the boundaries that will apply to the recognition and implementation of these interests, must be taken into account in order to preserve the legal framework and ensure that it continues to function properly. ³

The following steps must be taken in order to ascertain the system's scope and topic matter:

1. Creating a list of all interests and categorizing them

2. Deciding which interests should be legally recognized

3. Outlining the boundaries for securing those interests

4. Examining the ways in which laws could protect interests once they have been recognized and limited

5. Developing the principles of interest valuation⁴

Now let us discuss in detail as to what these interests, which pound was talking about, are.

(A) Three sorts of legal interests

Individual, public, and social are the three types of legal interests, according to Pound.

a. Individual Interest

According to Pound, statements, demands, or wants expressed from the perspective of the individual are also referred to as individual interests or private interests. Individual interests consist of:

• Personality – which includes Interests in the physical self, willpower, integrity and reputation, sensitivity and privacy and beliefs and opinions.
• Domestic relations – It is important to recognize the difference between a person's interest in a domestic relationship and society's interest in institutions like marriage and the family. Individual interests include husbands and wives, parents and kids as well as marital interests.
• Substantive interest – which encompasses the following: job stability, industry and contract freedom, succession, industry and property interests, favourable interpersonal relationships, associational freedom, and promised benefits.⁵

b. Public Interest

He defined public interests as the claims, demands, or wishes viewed from the perspective of a politically constituted society. The following are the primary public interests, per Roscoe Pound:

• Interests of state as a juristic person which includes protection of the state's interests as a legal entity and claims to property held and acquired for corporate purposes by a politically organized society acting as a corporation.
• Interest of state as a social guardian - These include the supervision and management of trusts, charitable endowments, protection of the environment, territorial waters, seashores, regulation of public employment, and so forth.

c. Social Interest

The claims, demands, or aspirations that are viewed in the context of social life and generalized as belonging to social groupings are known as social interests. According to Pound, social interests consist of:

• Social interest in general security - Laws that pertain to social interest in general security include - Peace and order, general health and safety, Acquisition security as well as transaction security.
• Social interest in security of social institutions - This interest includes the following social institutions: overall safety of domestic establishments, Establishments related to religion, politics, and financial organizations.
• Social interest in general morals - Prevention and restriction of prostitution, intoxication, gambling, and other related activities are all part of the social interest in general morals.
• Social interest in conservation of social resources - this includes the preservation of human resources, the protection and education of dependents and defectives, the rehabilitation of offenders, and the protection of those who are economically dependent.
• Social interest in general progress - There are three facets to social interest in progress in general. Political progress , Economic progress and Cultural progress.
• Free speech, free association, free opinion, and free criticism are all aspects of political progress.
• The right to freely use and sell goods, unrestricted trade, unrestricted industry, and the encouragement of inventions through patent issuance are parts of economic progress.
• Free science, free literature, support for the arts and letters, higher education and learning, and aesthetics are all included in the cultural progress.
• Social interest in individual life - In other words, each person will be allowed to live a human existence in accordance with their own political, physical, social, cultural, and economic life.

(B) Jural Postulates

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 civilised society.

Jural Postulate I. In civilized society men must be able to assume that 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 beneficial purposes what they have discovered and appropriated to their own use , what they have created by their own labour, and 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 and hence:

(a) will make good reasonable expectations which their promises or other conduct reasonably create;

(b) will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto ;

(c) will restore specifically or by equivalent what comes to them by mistake, or failure of the presuppositions of a transaction, or other un-anticipated situation whereby they receive at another's expense what they could not reasonably have expected to receive under the actual circumstances.

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, and having a natural tendency to cross the boundaries of their proper use, will restrain them or keep them within their proper bounds.

(C) Existing legal rights given to the LGBTQIA+ community

Now that we have discussed the social engineering theory, let us look at the current legal scenario and rights given to the LGBTQIA+ community in India, and whether the social engineering theory is needed in their case or not.

a. Rights given to LGBTQIA+ Community in India

In India, as of now, the LGBTQIA+ community do not have any specific rights which can help or uplift them, but section 377 of the IPC was decriminalized, which was in favour of the LGBTQIA+ community, let us discuss this in detail:

Section 377 was in effect since 1860 and was very important in the fight against the LGBT community. They suffered greatly from society and the police when they were apprehended for remaining together or for any other reason. The police have always tortured them because of their behaviour or sexual orientation. Section 377 served as a tool to control the LGBT community.

Section 377 penalizes unnatural offences, i.e., offences against the order of nature. Section 377 states that sex between a man and a woman is natural and that any other type of sex, , is not. It follows that a sexual relationship between two people with opposite sexes is normal.

The Indian judiciary played a major role in enabling the decriminalization of section 377 of the Indian Penal Code. It's crucial to keep in mind nevertheless that section 377 is not entirely decriminalized. Significant decisions made by the Supreme Court and several High Courts have clearly confirmed homosexuality as a natural state as opposed to a criminal offense. Section 377, the so-called "sodomy law," which punishes sexual activity with a life sentence, has finally been repealed. Nonetheless, The following judicial precedents will help clarify the decriminalization of section 377:

• Naz Foundation case (I)⁶: The Delhi HC heard a challenge to the constitutionality of section 377 of the IPC in the Naz Foundation case (I). According to the Delhi HC, it is not illegal for two people of the same sex to engage in sexual activity with each other's consent. If it qualifies as a crime, it violates the constitutionally protected fundamental rights found in articles 14, 15, and 21. Nevertheless, in the Naz Foundation case (II), section 377 was recriminalized again.
• National Legal Service Authority v. Union of India⁷: The hon’ble SC ruled in this particular case that individuals who identify as third gender have an equal right to protection under the Indian Constitution. The Court further declared that psychological sex, not biological sex, should be the basis for gender identification.
• Puttaswamy case⁸: In this instance, it was determined that everyone, regardless of gender or sexual orientation, is entitled to the privacy guaranteed by Art. 21 of the Indian Constitution. LGBTQIA+ individuals should have state protection while they select their partners. Additionally, LGBTQIA+ individuals have the freedom to choose whoever they want under the right to privacy.
• Navtej Singh Johar Case⁹: In this case, a writ petition was filed contesting the constitutionality of section 377 of the Indian Penal Code, which makes it illegal for two adults of the same sex to have sexual relations with one another. The five-judge panel decided unanimously that the Indian Penal Code's section 377 is unconstitutional when it comes to regulating intercourse between two adults who are of the same sex. Furthermore, the Hon’ble Court ruled that this section of the IPC violates Art. 14 and 15 of the Constitution by discriminating against LGBT people based only on their sexual orientation. Additionally, the court determined that Article 19 (1) (a) of the constitution of India is violated by section 377 of the IPC, which prevents LGBTQIA+ people from realizing who they are. As a result, the supreme court declared that Section 377 of the Indian Penal Code was unconstitutional and removed the criminalization of consenting to sexual relations between two adults of the same sex.
• Madhu Bala v. State of Uttarakhand & Ors.¹⁰: In this case Madhu Bala filed a habeas corpus writ petition against the mother and brother of her partner Meenakshi, against her wrongful confinement. It was made clear by the Uttarakhand HC that a couple of the same sex is allowed to remain together. Even though same-sex couples are currently not permitted to marry, living together is not illegal for them. The court further declared that the freedom to select a spouse and live together are essential components of the right to liberty. The court also stressed that once an individual reaches the age of majority, their freedom cannot be restricted because by law, they are able to make their own decisions. Ultimately, the court reaffirmed that there is no legal prohibition on two adults of the same sex having a consensual relationship. ¹¹

b. Rights given to LGBTQIA+ community in other developed countries

Now to understand whether social engineering theory is needed in India’s situation or not, let us compare it with legal rights given to the LGBTQIA+ community in other developed foreign nations like the USA.

i. Rights given to LGBTQIA+ community in the USA

The United States has one of the most developed legal systems in the world for LGBTQIA+ rights, with substantial changes in both public and legal opinion since the late 1980s. Although the legal environment may have altered since then, the rights and protections afforded to the LGBTQIA+ population in the US have developed throughout time. Important turning points and privileges afforded to the LGBTQ+ community in the United States include:

1) Same-Sex Marriage: In 2015, the Obergefell v. Hodges¹² decision from the U.S. Supreme Court made same-sex marriage legally permissible across the country, guaranteeing that same-sex couples could get married in any of the 50 states.

2) Non-Discrimination Laws: A lot of states and local governments have enacted legislation prohibiting discrimination on the basis of gender identity and sexual orientation in settings including public facilities, employment, and housing. Furthermore, several federal agencies have construed the civil rights statutes that are now in place to include protections for people who identify as LGBTQIA+.

3) Hate Crime Law: Enacted in 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act gives federal law enforcement the authority to prosecute hate crimes committed against members of the LGBTQ+ community.

4) Don't Ask, Don't Tell Repeal: 2011 saw the elimination of the "Don't Ask, Don't Tell" policy, which forbade openly gay and lesbian people from enlisting in the US military.

5) Adoption and Parental Rights: Although the details may differ by jurisdiction, LGBTQ+ persons and couples have legal recognition and protection for adoption and parental rights.

6) Health Care: The Affordable Care Act (ACA) forbids discrimination in healthcare settings based on gender identity and sexual orientation.

7) Transgender Rights: A number of jurisdictions have enacted legislation granting transgender people the ability to modify their gender marker on identification documents and safeguarding their rights in a number of areas, like using restrooms that correspond to their gender identity.

8) Prohibitions on Conversion Therapy: A number of states and municipalities have outlawed the highly discredited practice of conversion therapy, which aims to alter a person's gender identity or sexual orientation.

III. Need of social engineering theory for lgbtqia+ community in india

As we know Roscoe Pound theory of social engineering aims to strike a balance between the demands of society and individual rights by encouraging the creation of laws and legal frameworks that put justice first and adjust to shifting social circumstances. The aim of the social engineering theory is to establish a fairer and more adaptable legal framework that respects basic legal principles and justice while catering to the changing requirements of society. After comparing the situation of India to other developed country, which in our case was the USA, we can see how there is a lot of scope and need of proper laws and legislation in India for the upliftment and recognition of the LGBTQIA+ community.

For a variety of reasons, the LGBTQIA+ population has a significantly better legal status in the USA than it does in India. In terms of acknowledging and defending the rights of LGBT people, the USA has made tremendous progress. These rights include healthcare access, anti-discrimination laws, and marriage equality. In comparison, Section 377 of the Indian Penal Code, which made homosexuality illegal, was only decriminalized in 2018. The LGBTQIA+ rights, in the USA and some other developed countries are taking a more progressive stance than India.

Therefore, there is a need for social engineering theory with regard to the upliftment of the LGBTQIA+ community in India. There are various challenges faced by this community in India, therefore there is need for better laws, let us discuss these challenges in depth.

IV. Challenges faced by lgbtqia+ community in india

1) Marginalization: One of the main issues that LGBTQIA+ deal with is marginalization. Treating someone as peripheral is known as marginalization. Occasionally, people experience social rejection, making it challenging for them to lead independent lives. They receive bad sentiments from society and are excluded. They wish to be involved in all aspects of society, but because they are marginalized, they are not able to do so equitably. We can refer to it as homosexuals' societal marginalization. The marginalization of LGBT individuals frequently originates from their birth family.

2) Harassment and Torture: It is rare to find an adolescent identified as homosexual who has not experienced harassment or torture at school from peers. The LGBT community faces difficulties everywhere; it is not just in schools. Members of the community also encounter harassment on the streets. Lesbians, homosexual men, transgender women, and bisexuals endure sexual violence more frequently than heterosexual persons.

3) Rejection: There are two main sorts of rejection that LGBTQIA+ persons encounter, rejection from the family and rejection from society. A gay or lesbian person is always shunned by society if they identify as such. In many cases even when family members are aware that a child is homosexual or lesbian, they still choose to ignore or marginalize that child.

4) Homelessness: One of the main issues the LGBTQIA+ community faces is homelessness. They are simply thrown out of their homes for being homosexual. Not even the domestic violence shelters will take them in. As a result of their homelessness, these individuals develop drug addictions or occasionally turn to prostitution. They also have to deal with financial difficulties.

5) Mental Weakness: One common outcome that occurs in the minds of LGBT individuals is mental weakness. They are typically shunned by friends, family, and society at large when they need company or assistance. They begin to experience mental health problems, such as depression, as a result of this kind of rejection. They sometimes make attempts at suicide or self-harm.¹³

Apart from all these issues the LGBTQIA+ community are not even given rights to marriage, adoption etc. which worsens the situation, Therefore, social engineering theory is significantly needed and new laws and legislations are needed to fight and overcome all these challenges.

V. The way forward

There is a need for the applicability of the social engineering theory for the LGBTQIA+ community, so as to make new laws and legislations for them. Even with substantial improvements, there are still enduring obstacles in the way of creating a more inclusive society. A comprehensive approach is necessary for a future that genuinely recognizes the rights and dignity of LGBTQIA+ people. So let us discuss the areas which should be worked upon to improve the condition of LGBTQIA+ community in India.

Firstly, reforming policies must be the main focus. Legal changes are essential to extending equal rights in crucial contexts including marriage, adoption, and inheritance. Anti-discrimination laws are essential because they provide protection from prejudice in areas such as public places, employment, and education.

secondly, it is critical that educational institutions make a sincere effort to promote comprehensive education and awareness. Incorporating conversations about gender identity and sexual orientation into education can help to reduce stigma, clear up misconceptions, and create a community that is more understanding and welcoming.

Ensuring LGBTQIA+ people have fair access to healthcare is another necessity. This entails not just doing away with bias and judgment in healthcare settings but also giving healthcare workers the tools they need to create LGBTQIA+-friendly environments that are open and honest.

It is equally important to foster a supportive environment in families and communities. Promoting acceptance and understanding of LGBTQIA+ individuals enhances mental health and strengthens social cohesion. Organizing support groups and providing easily accessible counselling services can be crucial in guiding this process of acceptance.

The power of the media should not be undervalued. Positive and truthful depictions of LGBTQIA+ people have the ability to dispel prejudices, dispel stereotypes, and foster empathy, all of which lead to a more accepting community. ¹⁴

Thus, a more inclusive society can be achieved by a combination of factors such as education, updated policies, new legislation, evolving healthcare, support from families and communities, and truthful media portrayal. Following these strategies and creating a comprehensive plan has the capacity to give rise to a community in which the contributions, rights, and dignity of LGBTQIA+ people are not only recognized but also truly valued and honoured.

VI. Conclusion

In conclusion, Roscoe Pound's theory of social engineering emphasizes the role that law plays in forming society and striking a balance between the interests of the individual and the group. When the LGBTQIA+ population in India is taken into consideration, it becomes clear that new laws and legislation are desperately needed to address the difficulties they encounter. In India, the LGBTQIA+ community continues to face discrimination, harassment, and lack of legal recognition in relation to adoption and marriage, even after Section 377 was decriminalized. In contrast, LGBTQIA+ people have access to significantly more rights and protections in the US and other developed nations. In order to surmount these obstacles and establish a more comprehensive and welcoming society in India, it is imperative to implement policy changes, pass anti-discrimination legislation, advance education and consciousness, guarantee healthcare accessibility, cultivate familial and communal support, and stimulate favourable media representations of LGBTQIA+ people. By putting these policies into practice, India may follow the tenets of social engineering theory and move closer to a more inclusive and equitable future for all of its residents, regardless of their gender identity or sexual orientation.

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Footnotes

1. Author is a student at Maharashtra National Law University, Nagpur, India.

2. Shubham Krishna, ROSCOE POUND THEORY OF SOCIAL ENGINEERING, https://www.legalserviceindia.com/legal/article-10837-roscoe-pound-theory-of-social-engineering.html (visited on 15.10.2023). ↩

3. Shubham Kumar, WHAT IS SOCIAL ENGINEERING, https://blog.ipleaders.in/all-about-social-engineering (visited on 15.10.23). ↩

4. Ibid. ↩

5. Id. at 1 ↩

6. Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. ↩

7. National Legal Services Authority v. Union of India, (2014) 5 SCC 438. ↩

8. K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1. ↩

9. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. ↩

10. Madhu Bala v. State of Uttarakhand, 2020 SCC OnLine Utt 276. ↩

11. Choudhury Bhaskar & Sanjaya Karun, “The Status of LGBT People in India: A Socio-Legal Examination” (2022), ResearchGate. ↩

12. Obergefell v. Hodges, 2015 SCC OnLine US SC 6. ↩

13. Id. at 10 ↩

14. Harsh Roodra, “LGBTQIA+ Rights In India: Struggles, Progress, And The Road Ahead” , (2023), live law. ↩