Law and Social Engineering
Author(s): Adam Podgorecki
Source: Human Organization , FALL, 1962, Vol. 21, No. 3 (FALL, 1962), pp. 177-181
Published by: Society for Applied Anthropology
Stable URL: http://www.jstor.com/stable/44124434
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Law
and
Adam
Po
precepts,
which are recommendations
or orders to behave
idea
of
engine
in a particular manner, evokes
have to be based on knowledge
way
linking recommended behavior as a cause with social
violent
emotions
an
changes as a consequence.
science
gradually
g
elementThe problem,
of
then, isorder.
the following: Presently legislators have a "retrospective"
or a "prospective-accidental"
antiquated
quarrels
but
also attitude
from
toward legal decision-making.
diffe
These attitudes are
based on goals.
practical experience which is far from a systethe
same
matic or reliable guide to action. Thus it is necessary
to
The
engineering
of
provide the legislator
with the means
to think in a proknowledge
of
laws
spective-rational and teleogical way. A science
of legal
entific
analysis
is
t
policy could potentially provide the legislator
with a mode
ities.
Although
kno
of
thinking and a basis for decision-making.
life
is
a
necessary
c
conscious
and
effic
Legal Policy and Social Change
ficient
condition.
I
of
the
technology
o
Given the problem
of the legislator as here stated, the
The
social
sciences,
question arises: What is a science of legalkno
policy? The
policy,
provide
idea of a science of
legal policy was originated
in the
of
rational
and
eff
1890's by E. Petrazycki.1
The essential lega
features of such
The
science
of
a science, according to Petrazycki,
is knowledge conand
struggles
again
cerning predictions of the effects of legislation. Largely
Two
particularly
c
due to thesocial
work of Roscoe Pound,2 the concept
of social
cation
of
scie
engineering
law has been popular in the jurisbe
called
a through
retrospe
prudence, sociologyany
of law, and political science
of Westtransform
stat
ern countries.
A renewed effort toward a science of legal
state
of
equilibriu
policy
is now in order, particularly in light of the work
called
a
prospective
of Popper,3
Lasswell4
and McDougal.
is
meant
a
trial-an
Such an effort is also possible because of
new kinds of a
transformation
data are now available.
In Poland, after World
War II,
into
a
new
state
of
future.
it was possible to observe systematic changes of social
reality produced by changes in law. This period was exThe retrospective attitude of the legislator needs to be
traordinary in that law was used as a means for changing
changed so that the focus of attention is not on the quesalmost all areas of social life. It was an interesting laboration of elimination of losses but on the problem of creattory in which statutes constituted one variable and social
ing conditions which can diminish or limit the possibility
changes the other. Now, making use of legislators' misof losses. The problem is to change the retrospective and
takes, other types of failures in the legal system, and
prospective-accidental attitudes to a prospective-rational
attitude. This type of prospective attitude would lead to
knowledge of how to foresee the consequences produced
by a particular course of action. In other words, legal
The
tional
1. L. Petrazycki, Die Lehre vom Einkommen , Berlin, 1893.
2. R. Pound, Social Control Through Law, Yale University Press,
* Adam Podgorecki is at the University of Warsaw, Poland. The
author is indebted to Dr. W. M. Evan for his help which enabled
the author to put this article into a form acceptable for publica-
tion. He is also indebted to Dr. Evan for his comments which
New Haven, Conn., 1942.
3. K. Popper, The Open Society and its Enemies , London, 1945.
4. H. D. Lasswell, The Analysis of Political Behaviour : An
Empirical Approach , London, 1948.
improved not only the form but also the merit of the article.
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178
trends
of
a legal act and its grounds,
legal
is of greater importance. It is
beh
rather obvious that
the introduction of a bill, for example,
material
with
the
to permit capital punishment would have more complitions.
Before
con
theoretical
cated social, ethical, and politicalremar
consequences than the
It
is
possible
to
s
unification of several bills into an amalgamated one.
It
social
sciences
wh
follows, then, that legislative principles constitute the
basic problem of legalsuch
policy. We shall confine our atcharacter
as
tention in the balance
of this article to an analysis of
etc.
They
describe
principles.
sitions. these There
exi
awareness
in
the
Legislative Principles
exists
in
social
lif
strategic
importa
The problem of origins or sources of legal precepts has
methodological
aw
been the subject
of inquiry in jurisprudence. However, the
of
these
practical
consequences of legal precepts, which are more important
a theoretical and practical point of view, have been
Some fromPrinciple
neglected.
Legal
We may view legal precepts as a first cause, sodea
to
policy
speak, in
a chain of consequences: the legalin
precepts law
as
a
tool
pl
the behavior legislator
described by the legal precept - the factual
prudent
situation which is a result
of behavior. According
to this
guide
has
to
consi
scheme, in order to use legal precepts aslaw-m
a means it is
of
efficient
necessary to provide legal
precepts with a foundation of
ficational
princip
verified relationships connecting legal precepts with betechnique.
havior described by these precepts, and, in turn, beThe principles of the first kind are legislative. These
havior described by the precepts with the results of the
principles provide general methods of preparing a legal
behavior. The introduction, change, or abolition of a law
act from the point of view of efficiency. They regulate
can produce unexpected results or especially negative byall considerations and actions which lead to the passage
products. To grasp all these problems, it is necessary to
of a legal act and which facilitate the control of its effects.
elaborate such concepts as description of the factual situConsequently, to assure the efficiency of legal acts it is
ation, value judgments, legislative diagnosis, by-products,
necessary to know the factual situation which would be
negative by-products, etc.
regulated; to know and to respect all value judgments
It would also be useful to abandon some of the old
which are connected with the factual situation and which
and abstract concepts of jurisprudence and to take into
are connected with the proposed means and accepted
consideration those concepts which are useful from an
goals; to find the hypothesis on which a proposed piece
empirical and operational point of view.
of legislation could rest; to test this hypothesis; and to
A first approximation to an analysis of these problems
study the effects of existing legal precepts. The formulation of these principles can rely on materials mainly available in the field of sociology of law.
The principles of the second kind are codificational.
The scope of these principles is more narrow than the
previous ones. They deal with the problem of how to draw
up legal precepts so that they are clear, concise, and consistent with others. These principles become useful once
the assumptions of a legal act are accepted and there are
problems of translating them into legal language. This
kind of principle relies upon semantics in legal language.
The third type of principle consists of codificational
techniques. These principles deal with the question of
how to put into order in one legal act several legal precepts or how to reconcile several legal acts. These principles deal with purely drafting problems.
Reflections which could be considered as the beginning
of legal policy (in its technical character) deal with problems of codification and codificational techniques. It is
not necessary to stress that, although the principles which
are useful for the drafting of a legal act are more immedi-
ately useful (because of the practical need to prepare a
legal act), the problem of issues, which is the content of
in all their complexity calls for a consideration of at
least the following: 1) the principle of sufficient descrip-
tion; 2) the principle of analysis of value judgments;
3) the principle of verification of hypotheses; and 4) the
principle of research on the effects of existing laws.
The Principle of Sufficient Description
The principle of sufficient description states that it is
necessary to describe the present factual situation which
might be changed before a decision about the change itself can be made. If the legislator attempts to regulate
certain kinds of facts without sufficient knowledge about
them, he faces a situation in which he might not achieve
his desired ends and might possibly produce undesired
by-products. The description of the factual situation
should draw on sociological, economic, and statistical
procedures whenever necessary. For this purpose, highly
developed research methods in social science can be
used. These methods enable us to collect data in such a
way as to identify very complicated sets of conditions.
The recent study of delay in the administration of justice
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The Principle of Analysis
of Value Judgments
by
Zeisel,
Kalven,
of
the
use
of
such
and
results
closely
The legislator seeking to regulate
a certain factual
also
related
the
situation ought to consider in
if his effort to change
a certain situation
does not conflict
with other values
Example
:7
In
awhich reg
he accepts. There are three areas in which this conflict ch
cil
of
Ministers
ployees
in
cent
could
occur: 1) the the
change in the present situation
ploying
the
princip
could
prove more expensive than
tolerating the situation;
related
lev
2) salary
the means used to effect the change can violate
the
new
principles
legislator's value judgments; and 3 ) the effects produced w
tions
for
the
profe
(especially negative
by-products) can have
a detrimental
fession. effect
This
salary
on the values which the legislator
holds. With
the
salaries
of
pe
reference to this principle, it is possible
to use sociological
million
Zloty
methods
to obtain information concerning more
public opinion;
to
improve
qu
and it is possible to use semanticsthe
to clarify the meanings
professions.
of recorded judgments. In the study onThese
parental authority
by Cohen, Robson, and Bates10 an excellent use is made
were
obviously
des
of sociological methods in this kind of analysis.11
act,
designed
to
ac
Example : In a newspaper article entitled
"About the
to
the
report
of
th
Actual Problems of Administration of Justice,"12 a legis...
it
is
bad
lator advanced a proposalwhen
to reduce the incidence of
m
of
important
pro
bribery of officials. A summary of this article states:
been
made.
Eviden
.
.
.
justify
the
It seems that section 47
M. K. K. (petty criminalcon
laboratory
personn
code) could help in the
battle against bribery by
were
not
properly
breaking the
tacit contract between the one who
dations, givesthough
co
the bribe and the one who accepts it. According to section 47 M. K. K., if a person who had
According
to
this
r
given or who had
promised to give
a bribe, as a
than
was
expected,
reciprocation
of the official's demand, would report
this fact to the proper authorities, this person
could
lower
salaries.
In
th
avoid responsibility if the report
is made before the
of
practice
and
ex
authorities learn about the crime. The use of this
ployees
did
not
ha
section can help the prosecutor in his work and insta
and
laboratory
his fight against bribery.
the
lowest
catego
service
but
who
ha
In proposing that legislation incorporate this kind of
classified
in
the
low
legal precept and in recommending the popularization of
In
this
case,
the
the content of this section of the criminal code, the legisknowledge
of
the
lator makes an important mistake. Although this legal
change.
He
did
not
precept could reduce some economic crimes - although
pational
categories
this is questionable - it is also likely to produce several
cognizance
of
the
negative by-products such as the increase of denunciprofession
could
ex
ations, blackmail, etc. In this case, the probable losses
not
aware
of
the
p
in social life because
of the negative by-products
could
Mistakes
of
this
outweigh the probable gain in the economic field.
proper
description
lator
the
to
The principle of the analysis of values recommends
a
false
di
taking into account all values (in their proper hierarchinew
salary
syst
cal order) which are accepted by the legislator. This prin-
ciple recommends neither the approval nor the disapproval of these value judgments. The science of legal
5.
H.
Zeisel,
H.
policy takes into account
the content Kalvev
of value judgments,
Little
Brown
Co.
but does not evaluate them.and
Generally speaking , legal
6.
K.
F.
Beutel,
Some
'as
a
New
Branch
of
Press,
Lincoln,
Neb.,
7.
This
legal
8.
9.
Policy), Warszawa.
10. ^ J. Cohen, R. A. Robson, A. Bates, Parental Authority , Rutgers
example
University ^ Press, New Brunswick, N. J., 1958. and
system.
P
t
1
th
11. Research on the legal and community functions of parental
See:
Trybuna
Ludu,
authority in Poland is now in progress under the author's
direction,
following the patterns set by Cohen, Robson and Bates.
See
the
author's,
Za
12. See: Trybuna Ludu , April 20, 1957, p. 4.
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180
policy is a scienceThe which
recommends
legislator directed the management
of factories to
means to achieve desired
social
ends
after
answer the inquiry in order
to provide material
to test
existing situation these
, hypotheses,
taking
account c
and possibly tointo
learn about unexpected
and finding appropriate
causal
relations
be
and negative results. Some
of the factory managers
in
values
and
stated their
goals
. that:
Whereas
ethics
answers pointed out
1) the first hypothesis
disapproval
of
value
is, on the whole, untrue
because
workers wouldjudgment
spend
of legal policy is theto
take
account
v
sum of money
in a differentinto
way; they would give
the
in order to achieve results consistent with them.
money to their wives, etc.; 2) the second hypothesis is,
on the whole, untrue because the new employees would
refuse to accept the old worn-out clothes, and factories
The Principle of Verification of Hypotheses
would have an increasing accumulation of clothes in
approval
or
This principle recommends finding the causal relation-storerooms; 3 ) the third hypothesis, is on the whole, true
because, generally speaking, workers would take care of
ship on which a proposed piece of legislation could be
based. In order to find the relevant hypothesis it is
clothes which belong to them. According to the data, it
is necessary to discard the first and second hypotheses
reasonable to turn to existing knowledge or to try to
examine in an experimental way various causal relation-and to accept the third as the basis for the proposed legal
act. In this way, the legislator has the possibility of selectships. Traditionally, the legislator uses the method of trial
and error to find the causal relations which he can use.
ing and testing alternative hypotheses and of finding a
This principle enables him, in a conscious way, to anticitrue hypothesis as a ground for drafting the law.
pate the probable effects, to foresee the possibility of neg-
The Principle of Research on the Effects of Existing Laws
ative by-products, to forecast the scope of the efficiency
of proposed means. According to this principle, it is neces-
sary to formulate hypotheses, to apply methods of socio-The three principles discussed above relate to the preenactment phase of legislation. They serve as a tool
logical, economic, or statistical research, to test the hywhich gives information on how to achieve desired ends
potheses, and, finally, to establish the degree of verificaand how to avoid negative by-products. The fourth and
tion and the conditions under which a hypothesis is valid.
last principle pertains to the post-enactment phase of
Example : An administrator (on the level of one of the
legislation and makes it possible to discover and evaluministries) decided to issue a regulation providing workers with protective clothing in order to stem the rise ate
of different kinds of effects. The principle of research on
the effects of existing laws asserts that it is necessary to
industrial accidents.13 A prospectus of this law was sent
use proper methods (sociological, economic, statistical,
to all factories which were under this ministry. The
etc.) to learn the effects of a law, whether positive or
prospectus contained three alternatives: 1) that the emnegative, and, consequently, to ascertain if the goal of a
ployee receive a sum of money with which he is to buy
law has been achieved.
proper clothes; 2) that the factory provide clothes which
remain the property of the factory; 3) that the factoryExample : The sequence of regulations of waiters' sal-
provide clothes which become the property of the worker.aries illustrates what is involved in research on the effects
of a law.14 The legislator did not study these changes in
The legislator wished to discover the alternative which
a systematic way. Because of the growing amount of
could avoid in an optimal way such negative by-products
complaints, inefficiencies, and losses, he continuously
as the lack of protective clothing, a large accumulation
changed the salary system; nevertheless, it is possible to
of clothing in storerooms, etc. Each of these alternatives
the successive transformations of the law.
relies on a different hypothesis. The first alternativereconstruct
is
The
successive
salary systems of waiters during 1945based on the hypothesis that,
1956 were as follows:
If the employee receives the money, he would be
1) The waiters received ten percent of the bill as a tip
able to buy the most appropriate clothes for himselfplus a basic salary. This system also existed before the
personally.
war. The hypothesis about the fact-relationship here is
The second alternative implies the hypothesis that,
If the clothes would belong to the factory, the worker
would quit his job, the clothes could be used by
another worker.
The hypothesis presumed by the third alternative is that,
If the employee receives the clothes as his own, he
would take care of them.
that the efficiency of the waiters depends upon the extent
of the variable part of their salary. According to the
legislator, this system conflicts with the following value
judgments: a) food should not be too expensive (postwar period - 1945); it is too expensive to pay tips for
being served food; b) to pay tips is against the dignity
of people in a socialistic society. The legislator (on the
level of ministry) changed this system.
2) The waiters then received a salary in proportion to
the total income of the restaurant. The hypothesis about
the fact-relationship here is that the efficiency of waiters'
13. See the author's Zatozenia Polityki Prawa, Warszawa, 1957,
pp. 66-68.
14. Ibid, pp. 81-84.
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work
depends
a
work out the set of value judgments connectedon
with the
restaurants
based
o
problem in the restaurant industry
and, consequently,
(especially
general
contradicted in succession
some value judgments which he
held, but which he had not taken into account; 2) he
to
the
following
v
of
the
restaurant
could not formulate the general hypotheses concerning
should increase.
the efficiency of the waiter's work; 3) he did not know
3 ) The salary system was then changed so that waiters'how to use the technique of experimentation by enacting
salaries were in relation to their individual total bills. The
laws with limited jurisdiction and observing results of
hypothesis about the fact-relationship here is that the these acts.
efficiency of the waiter's work depends on individual in- These mistakes produced several negative results, in
centive. Again, the organization of restaurants based onparticular: 1) the administrative changes and reorganithis principle produced some results which were in con-zations connected with changes in the salary system; 2)
tradiction to the value judgment of the legislator that the economic and social losses, during the course of these
waiters should not ply customers with alcohol. This sys-changes and the publicity on the defects of "collective
tem encouraged waiters to advise and insist on heavywork"; 3) the resulting growth of an attitude of scep-
drinking in order to increase the amount of the bills.
ticism which would be disturbing even if the optimal
4) The regulation was then altered so that waiters' system of the organization of the restaurant industry
salaries were in relation to their bills plus an adjustment.were found.
The adjustment was that the administrative staff of The general reason for the principle of research on the
the restaurant count the bills not according to the value effects of existing laws is that it is necessary to establish
of the food served but according to the number of disheswhether change through legal regulation in a given field
used in the serving of food. In this case, too, the basic is worthwhile; if it is, whether the process of change is
hypothesis was that the efficiency of waiters' work de-successful and the situation is relatively stable or whether
pends on individual incentive. This system produced athe process of change needs to be further pursued.
special type of by-product: waiters tended to divide the
Conclusion
food onto a larger number of dishes in order to increase
earnings. This fourth salary system contradicted the value
judgment that waiters should not have the opportunity Errors in legislation and the effects of errors prompt
to commit abuses or evade regulations. This system was efforts to improve the methods in use in the law-making
introduced only in a special kind of cafeteria and wasprocess. Social life, at present, demands that we abandon
dropped as a result of these abuses.
the state of quackery and establish methods of rational
5) The fifth salary system paid waiters in relation to and effective legal action. A science of legal policy could
individual bills with a percentage deducted for alcoholprovide means for achieving desired social ends. After
consumed on the job. Again the hypothesis here is that the formulation of the premises of a science of legal
the efficiency of a waiter's work depends on individual policy, the next and particularly important step would be
incentives and on the neutralization of the negative by-possible. It would then be possible to create a special
product - excessive alcohol consumption. In this case, the institution to guide the decision-making of the legislature
legislator did not know how to use the technique of in a scientific way. There would thus be an opportunity
experimentation; thus it was impossible to ascertain the to forge a link between science and practice in the field
results of this innovation. Waiters in Poland are manual
of social life. These researches and arrangements would
workers, and, as is the case with all workers in this cate-also increase the scope of knowledge in the field of soci-
gory, they must work at least a fortnight before quitting.
ology of law.15
Because this experiment was conducted in two cities in
a large industrial area, waiters moved to restaurants in
the neighborhood where limitations on the salary con- 15. Taking into consideration this junction of sociology of law
nected with the service of alcohol were not imposed.
and legal policy, the author is now conducting several researches
6) The last salary system pays waiters in relation tobridging these fields. One research on parental authority has already been mentioned. The second is about the scope of freedom of
individual bills with a stable, monthly component for thejournalists in their professional activities and about the social
service of alcohol. Under this system, the legislator ex- values which are defended in litigation against journalists. The
pects to have the maximum of desired effects and the third is about the worker's courts - a new experimental institutipn,
which is now working under the assumption that some of the
minimum of negative by-products.
classic punishments are obsolete and that sanction of public opinion
In general, the legislator made several mistakes in seek-(opinion of the factory, for example) could be a very efficient
for several types of
ing an optimal solution to the salary problem in the deterrent
a comparison of an ideal model
misdemeanors. The last research is
of a small institution - the kinder-
restaurant industry. These were as follows: 1) he did not garten - with the existing social picture of this institution.
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