CHAPTER VI THE FUNCTIONAL SCHOOL

THE SCOPE AND PURPOSE OF SOCIOLOGICAL JURISPRUDENCE By Roscoe Pound SCHOOLS OF JURISTS AND METHODS OF JURISPRUDENCE It has been possible to divide the jurists into three principal groups: 1. Philosophical School 1.1. 18th Century Law-of-Nature School; 1.2. Metaphysical School during the first half of 19th century; and, 1.3. Social-Philosophical School the Neo-Hegelians seems to have the most fruitful program 2. Historical School 2.1. German Historical School; and 2.2. English Historical School 3. Analytical School Instead of a further variation of one of the old creeds, a wholly new creed is framing, may be styled the: Sociological School. 1. ANALYTICAL JURISPRUDENCE The analytical jurists pursues a comparative study of the purposes, methods and ideas common to developed systems of law by analysis of such systems and of their doctrines and institutions in their matured forms. Putting differences and taking of diversities

Hence, it is appropriate to a developed system only. In its crudest form, this is expressed in Austins dogma that a law is a command. The kernel of it is that law is a product of conscious and increasingly determinate human will. The Analytical School characteristics may be said to be: 1. They consider developed system only;

2. They regard the law as made consciously by lawgivers, legislative or judicial; 3. They see chiefly the force and constraint behind legal orders; 4. For them the typical law is a statute; 5. Their philosophical views are usually utilitarian or teleological. 2. HISTORICAL JURISPRUDENCE In opposition to the analytical jurist, the historical jurist and philosophical jurist agree that law is found, not made. They deny that law is a product of a conscious or determinate human will. They hold that the living organs of law are doctrinal writing and judicial decision, whereby the life of a people, expressed in the first instance in its traditional rules of law, makes itself felt in a gradual development by molding those rules to the conditions of the present. Hence, the historical jurists may be characterized thus: 1. They consider the past rather than the present of the law; 2. They regard the law as something that is not and in the long run cannot be made consciously; 1. They see chiefly the social pressure behind legal rules; 2. Their type of law is custom; 3. As a rule, their philosophical view have been Hegelian. 3. PHILOSOPHICAL JURISPRUDENCE The philosophical jurist studies the philosophical and ethical bases of law, legal systems, and particular doctrines and institutions, and criticizes them with respect to such bases. In comparison with the analytical and historical jurists, the philosophical jurists--1. Are more apt to consider the ideal future of law than its past or present; 2. Believe that when law is found, its principles may, and as a matter of expediency, should be stated definitely and in certain form; 3. Look at the ethical and moral bases of rules rather than at its sanction; 1. Have no necessary preference for any particular form of law; 2. Hold very diverse philosophical views. 4. RISE OF A SOCIOLOGICAL SCHOOL THE SOCIAL PHILOSOPHICAL SCHOOL

The first movement in the new direction was from the then dominant historical school in Germany. 1. THE POSITIVES THE MECHANICAL STAGE Like the historical jurist, the first type of sociologist looked at law in its evolution, in its successive changes, and sought to relate these changes to the changes undergone by the society itself. A later form of what is essentially the same type of juristic sociology is to be seen in attempt to state all jural experience solely in terms of economics. The doctrine has been set forth in its most extreme form in America: Law is the resultant of forces which arises from the struggle for existence among men. The dominant class will shape the law to favor themselves The earlier type of sociological jurist service was in twofold: 1. Displacing the individualist starting-point by insisting upon the importance of the group, of the class, of the compact plurality; 2. Compelling us to relate the law more critically to other social phenomena. 2. THE BIOLOGICAL STAGE Darwin had made evolution the central idea in scientific thought. The jurists were attractted by the conception of natural selection: the end of law is to give free play in an orderly and regulated manner to the elimination of the unfit, to further selection by a well-ordered social struggle for existence. 3. THE PSYCHOLOGICAL STAGE Three influences combined to turn the attention of sociological jurists towards psychology: 1. Study of group personality and group will, leading to a psychological movement in legal and political philosophy; 2. The complete change in method in the social sciences which resulted from Wards thesis that psychic forces are as real as physical forces; and,

3. Tardes demonstration of the extent to which imitation is a factor in development of legal institutions. 1. THE STAGE OF UNIFICATION At the very end of the last century sociologists were coming to see that no one of the methods worked out was the whole of sociology. A few years later, Ward enumerated twelve leading sociological conceptions or unitary principles each of which had been put forward with large claims to being in and of itself the science of sociology. THE PRESENT STATUS OF SOCIOLOGICAL JURISPRUDENCE Sociological jurists today insists upon six points: 1. Study of the actual social effects of legal institutions and legal doctrines; 2. Sociological study in connection with legal study in preparation for legislation. But it is not enough to compare the laws themselves. It is much more important to study their social operation and the effects which they produce, if any, when put in action; 1. 2. 3. Study of the means of making legal rules effective; A means toward the end last considered is a sociological legal history; The importance of reasonable and just solutions of individual causes, too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certainty; Make effort more effective in achieving the purpose of law.

4.

Comparing sociological jurists with insists of the other schools we may say: 1. They look more to the working of the law than to its abstract content; 2. They regard law as a social institution which may be improved by intelligent human effort; 3. They lay stress upon the social purposes which law subserves rather than upon sanction; 4. They urge that legal precepts are to be regarded as guides to result which are socially just and less as inflexible molds; and 2. Their philosophical views are very diverse.

COMMENTS BY PATON ON THE FUNCTIONAL SCHOOL The fundamental tenet of this school is that when we cannot understand what a thing is unless we study what it does. What attitude should jurisprudence take to the question of the values that direct the development of law? Kelsen would retain the scientific method. But Pound considers that they must be analyzed thoroughly in order to understand legal development. For Pound, law is also a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction.

The Functional school of Law led by Pound examines the functions of law along with the result of its application. This school tries to balance the conflicting and competing social interests and examines as to what the law does and what it prevents.

C. FUNCTIONAL SCHOOL The functional school of law developed in the United States. It focuses on the question: "Will this law work?" Law is one of experience. It is also called the "theory of sociological jurisprudence", "sociology of law," or "social science school of law." It focuses on the "operation and effects" of law in relation to the interests of society. The "interests of society", not the folk-soul or the pressures from the powerful elite, is the source of law. Montesquieu wrote that law is an evolutionary process. Law is a tool for the "balancing of interests" in society. It is a tool of "social control" or "social engineering." In a sense, it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as it aims to serve the interests of society with the least friction. It adheres to, and is actually a type of, "legal positivism" and "legal realism." The main factors that define the law are expediency and the convenience of society. Its main proponent is Dean Roscoe Pound. There are three kinds of interests: individual, public, and social (or jural). All of these must be considered in the "legal ordering" of society (private rights and obligations vs. social interests). Since not all social conflicts

can be compromised, some interests must give in. In social engineering, where compromise fails, the tools of arbitration, judicial action, purposive legislation, and decisive executive action must come in. The greatest good for the greatest number, or "social utilitarianism," is the main guidepost of the functional school. Law is pragmatic and dynamic. Jurisprudence: Annexed to the great and sacred charge of protecting the weak is the diametric and functional approach to weigh all considerations of social advantage,1 to inquire into the overlapping social interests in the adjustment of conflicting demands and expectations of the people,2 and to recognize the social interdependence of these interests,3 ultimately with a view to arrive at an equitable solution for all parties concerned. The resolution over the tragedies of social unrest that have no doubt checkered the past bears significantly upon the social order.4 In the adjudication of agrarian disputes, this Court has always been mindful of the jural postulates of social justice especially where doubts arise in the interpretation of the law. But the same edicts cannot oblige the Court to shield illegal acts, nor do they sanction false sympathy towards a certain class, nor yet should they deny justice to the landowners who, under the Constitution and laws, are also entitled to protection.5 The edicts of social justice found in the Constitution and the public policies that underwrite them, the extraordinary national experience, and the prevailing national consciousness, all command the great departments of government to tilt the balance in favor of the poor and underprivileged whenever reasonable doubt arises in the interpretation of the law. But annexed to the great and sacred charge of protecting the weak is the diametric function to put every effort to arrive at an equitable solution for all parties concerned: the jural postulates of social justice cannot shield illegal acts, nor do they sanction false sympathy towards a certain class, nor yet should they deny justice to the landowner whenever truth and justice happen to be on her side.45 In the occupation of the legal questions in all agrarian disputes whose outcomes can significantly affect societal harmony, the considerations of social advantage must be weighed,46 an inquiry into the prevailing social interests is necessary in the adjustment of conflicting demands and expectations of the people,47 and the social interdependence of these interests, recognized.48

It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the state as well as its government is immune from suit unless it gives its consent. It is readily understandable why it must be so. In the classic formulation of Holmes: A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.5 Sociological jurisprudence supplies an answer not dissimilar. So it was indicated in a recent decision, Providence Washington Insurance Co. v. Republic of the Philippines,6 with its affirmation that a continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial remedy were not thus restricted. With the well known propensity on the part of our people to go to court, at the least provocation, the loss of time and energy required to defend against law suits, in the absence of such a basic principle that constitutes such an effective obstacle, could very well be imagined.7