Jurisprudence Assignment – II

Dean Roscoe Pound’s 4 Stages Of Developement Of Law From Morality

Introduction – Position Of Law & Morals In India

As observed earlier, the ancient Hindu Jurists did not make any distinciton between law and morals.
Later on, actual practice some distinction started to be observed. The MIMANSA made a distinction
between obligatory and recommendatory rules. By the time the comentaries were written the
distinction was clearly established in theory also. The commentators pointed out the distinciton and
in many cases dropped those rules which were based purely on morals. The doctrine of “factum
valet” was recognized which means that an act which is i contravention of some moral injuction, if
accomplished in fact, should be considered valid. However, this rule does not apply to legal
injuctions. In modern times, the privy council in its decisions always made a distinction between
law and moral injuctions. Now there is no longer any confusion between law and morals and when
the law is gradually being codified, there are little chances of such a confusion.

4 Stages Of Developement Of Law With Respect Of Morality

The aspect of law and morality was studied by various legal systems all around the world. Those
studies made it clear that law and moral values constantly have an “occasional desertion” and are
judicially separated. But in no such studies it has been stated that law and morals are remote
completely from each other. Dean Roscoe Pound who belongs to sociological school of
jurisprudence also made a study on law and morals and came up with essential 4 stages in and for
the development of law w.r.t morality. Those four stages of developement of law are as follows:
1. Unconcern ethical customs.
2. Firm law.
3. Introduction of moral values in law
4. what is for lawmakers and what is for law enforcers (Judges).
Stage – 1
• During earlier stages people followed customs according to the society where they were
living.
• In the customs which they followed some had a base of their society and some had a base of
the religion.
 • Such customs they followed stated as “undifferentiated ethical custom” which means that
the customs won’t mind the people concerned, they shall follow such customs irrespective of
their concern.
• Those customs are popular in action, some are popular in religion and some are popular in
law.
Stage – 2
• In the second stage, there came strict or firm law.
• Here laws are codified or in other words they are crystalised. People ought to follow those
laws.
• But during the later period of time, such developed laws are overtaken by various moral
values.
• As a result of which those laws were put in a situation to lose their sufficient power of
growing and failed to keep it side by side with moral values.
Stage – 3
• It is in this stage that the element of morality started entering into laws that are made.
• After such infusion of moral values it started questioning every law from moral aspects and
as a result of which laws are reshaped by moral values.
• In this stage, for the growth of law equity and natural law became the prospective agencies.
Stage – 4
• Dean Pound states this final stage as “conscious constructive law-making”.
• In this stage law attains its maturity, where he says that law is for whom and moral values
are for whom.
• Pound states that only the lawmakers should take morality and moral values in their hand for
making an effective and efficient law.
• But (law enforcers) Judges are allowed to look into the law alone.

Critically Analysing Pound’s Idea With Various Social Issues

Our nation faced various social issues in the past few decades and after lots of criticism and oppose
we had solutions for those issues legally by various judgements and enactments that are given by
the Judicial and Legislative body respectively. The issues that we faced for past decades had their
origin in customs & religion that are widely followed by people all over the nation. Of such issues
here we are going to deal with SATI & DOWRY and critically analyse them in pounds idea of
relationship between law and morals, and whether any limitations are there in his four stages or his
idea of law and morals happened as he stated.
 Sati – The Banned Indian Funeral Custom

• Sati is the old customary practice of Hindu women, where if the husband of a woman died
before her the time when her husband is burnt she also voluntarily falls into it to show her
affection to him and also to show her purity and true form.
• This act of sati then took a different aspect and paved its way from being voluntarily to
forceful act. Certain widows were not ready to practice sati such women were forcefully
made to practice it. Because in those days a widow is considered to have no role in the
society hence, they are forced to do so.
From the above mentioned scenario the stage 1 of Dean Roscoe Pound’s development of law with
respect to morality follows. Where there was an “indifference ethical custom” present and it
belongs to Hindu religion only. It used to be a voluntary act but later on it became an act without
concern where widows are forced to follow it.
• During the course of time certain social exceptions were created for this practice of sati.
Those exceptions are as follows:
1. pregnant woman
2. menstruating woman
3. woman with young children
• These are the moral exceptions that arise for giving excuses for a woman not to practice sati.
Another view is that if a woman practised sati people believe that she has created a good
karma for her next birth and her life in next birth will be good.
• Having said the above idea, it was not accepted by the Brahmins because they already
belong to a socially higher class and it is believed that being a Brahmin is itself a good deed
hence in this karmical aspect sati was not beneficiary for them and hence they refused to
practice it.
From the above mentioned points it is clearly seen that a trace of stage 2 of Pound’s idea
followed. The reason for having only a trace amount is there was no law regarding it being made
but the moral values started overtaking the customary practices.
• If historical facts can be taken into consideration it is to be believed that prohibition of Sati
was made many times between 15th and 18th century and also by French, Portuguese,
British who came to India.
• Now moving to the post independence era, Prevention of Sati Act was passed in the year of
1987. This Act was passed after a 18year old married woman was forced to practice sati.
After this it became an Act of the Indian Parliament with an enactment of The Commission
 of Sati (Prevention) Act, 1987. Having said the above, it is to be noted that sati was first
banned in bengal under Bengal Sati Regulation Act, 1829.
From the above said facts it is clear that stage 3 and stage 4 of Pound’s idea applies here. Where
people started thinking the highest moral value that taking one’s life is an absolute wrong and as
a result of which law regarding the prohibition of practice of sati was made. The concept of stage
4 can be understood here by understanding that the lawmakers would have thought about the
moral values of killing a person while making such prohibition Act and Judges are mere
enforcers of that law which is made by them.

Dowry – The Prohibited Customary Practice Of Marriage

• Dowry system in India refers to goods, cash or movable property that bride’s family gives to
the bridegroom, his parents or rarely to his relatives which as a condition of marriage. This
dowry system can cause great financial burden to the bride’s family. As an extreme cases,
such dowry claiming leads to crime against women which ranges from emotional damage to
death.
• With respect to South Asia the history of dowry is not clear. Some scholars believe in the
practive of dowry that it was practiced in antiquity rather some do not believe in it. The
historical evidences shows that dowry system in India is insignificant. There are various
reasons that have been suggested as cause of dowry practice in India. Those are – Economic,
Social & Religious factors.
From the above mentioned scenario the stage 1 of Dean Roscoe Pound’s development of law with
respect to morality follows. Where there was an “indifference ethical custom” present and it
belongs not only to Hindu religion rather it also existed in other religions. It used to be both
involuntary & voluntary act but later on it became like a condition to provide dowry without
which no marriage will about to happen. Due to this state of dowry bride’s family are demaned
for dowry & forced to follow it.
• Therefore this concept of dowry was more or less followed like a law. After following this
concept of dowry for long period of time, for a while people found it difficult to satisfy the
claims and expectations of groom’s family. As a result of which the happening of marriage
became difficult.
• The post marriage life is also affected with respect of the concept of dowry, where wife is
abused by her husband for not fulfilling the dowry claims of them. As a result of which
dowry crimes started to occur. Which resulted in destruction of maximum percentage of
marriage lifes between the spouses.
 • After such dowry crimes started to happen, people started thinking morally and the groom’s
family after realising the economic situation of the bride family, some did not even claim for
dowry they left it to the hands of bride’s family to their capacity and their wish. Whereas, on
the other hand some still claimed for the dowry but in a minimal level.
• This shows that though dowry crimes were in a peak, half of the groom’s family still
claimed for it. Here the bitter truth is the concept of dowry still existed even after thinking
morally.
From the above mentioned points it is clearly seen that a trace of stage 2 of Pound’s idea
followed. The reason for having only a quite less claims in the dowry is there was no law
regarding it being made, but the moral values started overtaking the customary practices.
• If the historical facts are taken into consideration, recently married women can be a target
for dowry related violence because she is tied economically and socially to her husband.
Dowry crimes can occur with the threat or occurence of violence, so that the bride’s family
is left with no choice but to give more dowrty to protect their daughter.
• Dowry is considered as a major contributor towards observed violence against women in
India. Of which some offences include physical violence, emotional abuses & even murder
of brides also happen in an extreme cases. The most predominant type of dowry crimes
relate to cruelty.
• Our country after experiencing such a cruel situation came to a conclusion of eradicating
this system of dowry. The first all-India legislative enactment relating to dowry was added to
the statue book “Constitution” and this legislation came into force from 1 st July 1961 called
as “The Dowry Prohibition Act”.
• This Act provided the penalty for directly or indirectly demanding dowry and provides for a
penalty involving a prision term of not less than 6 months and extendable up to two years
along with fine of Rs. 10,000. Apart from this Dowry Prohibition Act, in order to protect
women from the Domestic Violence that they experience there brought “Protection of
Women from Domestic Violence Act, 2005”.
From the above said facts it is clear that stage 3 and stage 4 of Pound’s idea applies here. Where
people started thinking the highest moral value that torturing someone or taking one’s life for
the demand of dowry is an absolute wrong and as a result of which law regarding the prohibition
of practice of Dowry was made. The concept of stage 4 can be understood here by understanding
that the lawmakers would have thought about the moral values of Torturing, Abusing,
Threatening or even killing a person while making such prohibition Act and Judges are mere
enforcers of that law which is made by them. Having said the above as time passes there were
certain changes are brought by those law enforcers in the way of Amendments.
 Conclusion

Generally, legal rules are composite and are derived from heterogeneous sources. In india, if we
examine all the legal percepts, we shall find that some of them have come from personal laws and
local customs, a good number of them are based on foregin rules and principles “mainly English”,
some are based on some logic or political ideolog and so on. The second aspect is “public opinion”
which greatly influences law is made up of a number of things – political ideas, economci theory,
ethical philosophy etc. These directly and indireclty influences law. Therefore, when so many
elements work in shaping the legal percepts, the matter cannot be put in such a simple was as the
“relation between law and morals”. Because a number of factors join hands in influencing law and
morals is only one of them. Of those many factors our Dean Roscoe Pound’s 4 stages of
developement of law from the concept of morality is also a factor.

Submitted By

Diwakar V V – BC0180013