Functional Perspective

Functional
Perspective:
Labels / Functions
Also called sociological
jurisprudence.

People vs. Genosa

It is also seen as the

study of the relationship
of the law with various
social phenomena.
It seeks to discover the
impact of relevance of
social diversity on the law.

Marcos vs. Manglapus

Background of the Legal Theory

Charles Louis de Montesquieu (1689-1755)

Law students refer to him as the author of the
principle of separation of powers among the co-equal
branches of the government.

He also discussed the development of law in

social environment wherein it grows,
including the morality, manners, politics
and customs of the people.
Good Samples are: Recognition of the
rights of the
indigenous people.

Establishment of
the Videogram
Regulatory Board
(now MTRCB)

Establishment of
the Presidential
Commission on

Rudolf von Jhering (1818-1892)

Provided a classification of interest:
1.) Individual interest from the viewpoint of individual
life.
2.) Public Interest from the viewpoint of the State.
3.) Social Interest affirmed by society as a whole for
general welfare.

Word worth mentioning: UTILITARIANISM

A morally good action is one that helps the greater
number of people.

Jhering considered
his classification of
interest to be
relevant to his
theory of social
utilitarianism
(as compared from
Jeremy Benthams
concept of individual
utilitarianism)

Josef Kohler (1824-1919)

The law is the reflection of the kultur (culture)
Each people seeks the kind of legal order suitable to
its kultur (culture)

Ludwig Gumplowicz (1838-1909)

Advocated the use of interests of the society in the
solution of the problems involving human
relationships.

Stated that there is a need to study conflicting

interests of individuals of unequal strength in the light
of the interests of the society.
The interests of society provide the necessary
suggestions and insights for the proper solutions of
the non-postponable problems of the people.

Eugene Ehrlich (1862-1922)

stated that the development of law lies not in
legislation, nor in juristic science, nor in judicial decision
but in society itself

Recognition of the interest of society

Recognition of the interests of

society
Where the legal order must
proceed on the basis of an
impartial consideration of the
claims, demands and
expectations of the different
groups in the community.
John Salmond, a positivist
jurisprudent, admitted that
law without regard and
reference to its societal
significance would be
fruitless.
The objective is the
realization of the interests

Core of functional jurisprudence

Why is functional
jurisprudence
essential?
1.) To attend to the
enormous amount of
human wants, that is
to say claims,
demands and
expectations.
2.) to effectively use
the limited means at
the disposal of the
state in satisfying the
human wants.

Why is functional jurisprudence

essential?
3.) to tend to the aggressive
tendencies of individuals and
groups of individuals in the
assertion of their wants or in the
acquisition of some vantage
positions for them.
4.) to resolve the long draw nature
of resulting conflicts of interests.

Psychologi
cal
Incapacity

5.) To work out the inability of the

legal order to fully recognize and
satisfy the conflicting or
overlapping interests at the same

Functional concept of law

A balance or compromise, no matter how delicate,

must be made whenever the conflicting or overlapping
claims, demands and expectations cannot properly
receive simultaneous recognition or protection.

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The adjustment of
conflicting or
overlapping
interests is
dictated by two (2)
factors:
1.) Preventing or
minimizing further
conflicts
2.) Balancing or
compromising
conflicting
interests to
guarantee social
equilibrium.

Rubi vs.
Provincia
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of Mindor
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Rese
ttlement

Ar ea

BUT conflicting interests cannot always be

compromised. There are situations where one
interest has to give way to another.

A good example of balance is in the event of JUST

COMPENSATION wherein a private property is taken
by the State for a consideration in return.

Types of Interests
Social Engineering under Functional Perspective

1.) Individual Interest is a claim, demand, or

expectation involved in or looked at from the
standpoint of individual life.

Kinds of Individual Interests

PERSONAL
Freedom of expression,
personal reputation, right
to privacy, freedom of
religion, freedom of
worship
DOMESTIC
Expectations involved in
marriage or family
relations
SUBSTANCE
Economic existence,
property rights, freedom
of industry and contract

2.) Public Interest is a claim, demand, or expectation

asserted by a politically organized society.

Kinds of Public Interests

Interest of the state as
JURISTIC PERSON
For the efficient
functioning of the
governmental machinery.

Interest of the state as

GUARDIAN of the
Social Interest
Where the state acts as
parens patriae which is
Latin for "parent of the
nation."

3.) Social Interest is a claim, demand, or expectation

asserted by THE ENTIRE society as such, that is to
say as collective whole, for the promotion of the
general welfare.

Roscoe Pound explained that the social

interest is asserted de facto as a strong
social ground swell when the part has
been reached where the collective
community has finally been impressed
with immediate urgency.

4.) National Interest is a basic manifestation,

expression or valuation of some social interest.

Political Institution
The concern in the stability and
solidity of the political institution is
an ancient interest of people living
in a politically organized society.
Aristotle
characterized
human
beings as social by nature. Hegel
rationalized this concept in his
dialectic process of the family
(thesis),
the
civil
society
(antithesis)
and
the
state
(synthesis).
Economic Institution
The present-day conditions in
civilized
society
warrant
the
recognition given to the economic
institution as separate and distinct
from the other forms of social
institutions. The responsibility of
the legal order to legal order to

C. Social Interest in the General

Morals
There are four distinct but co-ordinate
dimensions of natura humana (avoiding
the ambiguity of the common term
human nature as weak and depraved on
the basis of Augustines theology of the
reality of sin).
They are the:
Capacity for ethical experience
Capacity for intellectual experience
Capacity for religious experience
Capacity for aesthetic experience

Thus, Arnold Toynbee could say that if it

is conceivable for a world of human
beings to exist in which the living higher
religions had become extinct it would be
quite hard to imagine human existence
without still having the essential counsels
and truths of moral law to light its path

But whatever terms are used they refer to the

same thing and involves three related
problems for jurisprudence and this are:
The ascertainment of the contemporary moral
sense of the community or society.
Questions of whose opinions in a pluralistic
community or society must be consulted.
Guiding principles that the judge must consider
in the search for the correct solution.
There is a marked divergence of views as to
the ascertainment of the contemporary moral
sense of the community and there are two
issues involved here and these are:
What is meant by the term moral sense?
What is meant by community?

The social interest in the general morals is

based on the title and concern of the entire
social group against those forms of acts and
practices which are offensive to the

D. Social Interest in the Conservation of

Human Resources
There is a functional reason for
separating human resources from natural
resources. Substantially and in some other
ways they are not the same.
Corporeal injury, killing, as well as child
and sweatshop labor are grave problems
connected with the social interest in the
conservation of human resources.
The social interest in the conservation of
human resources undergrids the right to
human personality and dignity, which keeps
humankind from self-destruction. There is
legal and ethical prohibition against spoiling,
taking and annihilating life. The fact is that
there are vicious crimes that require a
different treatment.
The social interest in the conservation of
human resources is thus based on the
concern of the entire social group against

E. Social Interest in the Conservation of Natural

Resources
The natural resources are land, timber, forest products,
water, air, natural gas, fish, plants, wildlife, etc. These are the
versatile bounty from the natural environment. Ecologists warn
that the human species has been disturbing the balance of
nature and depleting and wasting the scarce resources of
existence.
In the context of this social interest, conservation means
the thrifty utilization and prevention of waste of the natural
bounty as well as its orderly planning and proper development
so as to maintain biological diversity and prevent damage to
the fragile ecosystems.
Unwise methods, inadequate knowledge, insufficient
equipment and poor facilities for the conservation and
development of the natural resources have resulted in serious
problems like:
Forest that have become deserts
Fishing grounds that are empty
Good water that has become polluted
There are several characteristics of the natural resources that
make them quite important to the community:
They are not exhaustible yet they alone can meet the national
and local needs for production and consumptions.
They can be utilized and yet conserved for the future.

F. Social Interest in the General Health

Roscoe Pound subsumed this interest under the
social interest in the general security. However,
there is distinct evidence that the legal orders of
civilized societies have recognized the interest in
the general health as a class by itself.
One important observable fact in society is that
a decline in the health of the people carries with it
far reaching implications for that society.
The small yield in reserves for sustained and
continued productive labor, both physical and
mental.
The decrease in the capacity for the production of
the goods of existence and goods of luxury.
The adverse effect on income and the consequent
decrease of the purchasing power of the people and
the lowering of their living standards.
The low morale of the people.
Health includes sanitation. These are the conditions
for the social interest in the general health. The
latter is complementary to the more basic policy of
education in health.
The social interest in the maintenance of the
general health is based on the concern of the entire

G. Social Interest in Human Personality

and Dignity
This social interest is traceable to view
that humankind alone of living creatures
was created imago Dei (image of God). In
any
case,
decent
human
relations,
whenever it has existed, are the result of
the recognition of the value of personality,
whether reference is made to the God-given
human personality or the law-given civil
personality.\
Aristotle may have been the first to
advance the idea of man as a rational being
and to place the essence of this concept in
the specific faculty of reason in natura
humana (natural exercise). Natural Exercise
reflects
an
important
underlying
physiological requirement of our natural
health, in this case to ensure the critical
process of natural conditioningthat is
common to all naturally healthy life.
The consensus is that the concept of
imago Dei means a kinship or affinity which
human beings experience whenever they

H. Social Interest in the Social Life

Human are social beings. They cannot
thrive in an environment devoid of or
lacking in societal contacts and relations.
But the basic factor involved in the social
interest in the maintenance of the social life
is the strong, desire for stable existence
without which no society can advance or
progress. Human beings living in the society
enjoy stable existence, that is to say when
every individual is assured of fair equality in
initiative, choice and determination, then
they realize sooner than later their rightful
places, functions and responsibilities in the
community.
The implication of this social interest is
two-fold.
The right of the people, without
discrimination, to have a voice and to
participate
in
the
formulation
of
governmental policies and functions.
The reasonable expectation of the people
that their optimum social requirements will

Social Interest in the General Progress

Social Engineering under Functional Perspective

Social Interest in the General

Progress
General Progress
Progress doesnt mean a mere change
because not all change is progress. For
example is degeneration or decadence where
its a social change but undoubtedly not a
progress. Therefore, the sustainability of
social institutions does not rest on their
existence alone. Their vitality depends on
their continuous improvement and, in no
small measure, on the development of
rational, self-determining members of the
community. Without this, it is hard to afford
progress. Progress does not take place
automatically or in the ordinary occurrence of
events. Failure to afford development and
self-determining individuals will result to
degeneration.
Social Interest
It is based on the concern of the entire social

Social Interest in the General Progress

Social Engineering under Functional Perspective

Social Interest in the General

Progress
General Progress
Progress doesnt mean a mere change
because not all change is progress. Progress
does not take place automatically or in the
ordinary occurrence of events.
Social Interest
It is based on the concern of the entire social
group against those forms of acts and
practices which threaten or impair the
intellectual and moral aspects of the nature
of man and the development of control over
the forces of nature for the satisfaction of
human needs.

4 Forms of Social Interest in the General Progress

Social Engineering under Functional Perspective

Cultural Progress

It is based on the rational soul of man, his

intellectual and imaginative capacities.
Mans intellectual nature is expressed in the
desire to know the truth no matter where it can
may tend or lead or how popular or unpopular
the result may be, or how important or
unimportant the persons are whose thoughts
and ideas are to be criticized and evaluated.
The main concern of the intellectual capacity
is the encouragement of arts and letters and
academic freedom.
Cultural progress is the improvement and
betterment of the contents of the human
knowledge and heritage as well as the means
for their conservation and transmission.
3 Favorable Conditions for Intellectual
Experience or the Attainment of the Truth
An honest, critical and inquiring mind;
The acceptance of the recognized standard
propriety in order to prevent doubt and expose
error; and

4 Limitation of Academic Freedom

Contrary social interests or national policies;
Restraints placed upon researchers and teachers by their own views or
beliefs that stand in the way of a free search for and discussion of the
truth;
Rigid adherence to concepts and ideas that sacrifice human personality
and dignity; and
Substantial and imminent danger to society.
National Policies indicating Cultural Progress
The policy concerning the privilege of institutions of higher learning to
voice all responsible ideas or opinions on all kinds of issues or question.
The policy against acts and practices which destroy or restrict the
transmission of the learning of the past and certain bodies of knowledge
which are not false or erroneous.
The policy concerning the promotion and maintenance of museum,
archives and libraries containing the widest diversity of views and
expressions.
The policy concerning the flow of books, magazines and other cultural
materials free from trade or exchange controls normally imposed on
other articles and products and commerce.
The policy concerning the freedom and encouragement of arts and
letters.

Moral Progress
Moral progress is based on the idea that the
enlightened individual, not customary modes of
decisions, is the source of moral judgment. Moral
progress is not simply conformity to laws either.
National Policies Indicating Moral Progress
The policy concerning the encouragement and
extension of the application of the more specific
moral values.
The policy against acts and practices which
permit or are conducive to non-observance of
responsibilities.
The policy concerning the freedom to criticize,
reassess and restate custom in light of rational
and ethical principle.
The policy concerning the implementation of the
principle of social (ethical) justice.

Economic Progress
Economic
progress
is
thus
the
continuous satisfaction of the economic
requirements of the people for the
enjoyment of a good and happy life.
Two (2) factors
Human control over things and over the
forces of nature; and
Betterment of the machinery of
economic
organization
and
administration.

National Policies indicating Economic Progress

The policies concerning the freedom of enterprise in the economic
institution and in industries not closely connected to national welfare and
defense and to public governmental activities.
The policy concerning the encouragement of new ideas and inventions to
provide the means of satisfying human needs against unjustifiable
withholding of their uses from the public.
The policy concerning the establishment, encouragement and successful
operation of banks, both urban and rural, for agricultural, trade, production
or commercial loans.
The policy supporting a strong broad capital base by means of pooled
financial resources in an economic situation pressured by a high rate of
population increase or by scarcity of money supply.
The policy concerning the privilege of capital to expand its operation
during ordinary times and to pursue control measures to ration it in times of
disorder.

Political Progress
Political progress is not based solely on the
improvement and elaboration of the political and legal
machineries. It also deals with the formation,
clarification and distribution of social values among
the members of society.

National Policies indicating Political Progress

The policy concerning the freedom to participate and effect changes
in the constitution and in the improvement of laws, policies and
functions of government.
The policy concerning the freedom to criticize openly inefficient and
corrupt administration of governmental services as well as public
officials in relation to their public acts in a manner consistent with
truth and decency.
The policy concerning the general right of the people to accurate
and free information and against acts and practices restricting such
right.
The policy concerning election or appointment to any political or
constitutional office regardless of particular views on any social or
religious matter, except in work of a classified nature.
The policy concerning autonomy in local government.

Social Interest in the General Aesthetics

Social Engineering under Functional Perspective

Social Interest in the General Aesthetics

It is based on the concern of society against those
forms of acts and practices which impair the
balance of nature and those which hinder the
aesthetic possibilities and development of the
community
2 Aspects of Beauty and Art
Subjective
This considers beauty and art as dependent solely
on the perception of the artist or observer. The
subjectivist interpretation of beauty and art is, at
different times and different places

Objective
It considers beauty and art to inhere in the external
object or thing, that is to say beauty and art are
capable of existing by themselves
The realization and expression of beauty and art is
possible through:
Media of nature Environment;
Wood Carving;
Marble Sculpture;
Pigment Painting;
Rhythm Dance;
Harmony Music; and
Language Prose or Poetry
Aesthetic considerations have come to the fore in
the exercise of the police power of the state.
However, the exercise of police power in this area of
social interest must have a substantial relation to
the general welfare and must be a reasonable
measure for the attainment of the purposes sought
to be achieved.

National Policies indicating Social Interest in General

Aesthetics
The policy concerning the freedom to compose, paint,
draw and design.
The policy concerning the orderly planning, development
and maintenance of national and municipal cultural centers,
museums, art galleries, legitimate stages, music and
symphony halls.
The policy concerning the orderly planning, creation and
development of reserves of natural beauty and pleasure
grounds, including the natural scenery and wildlife therein,
as well as arboretums, botanical gardens, zoos and parks.
The policy concerning the assistance, promotion and
patronage of the fine and performing arts, literature and
music.
The policy against acts and practices destructive of the
works or objects of art, literature and music.
The policy concerning the promotion of aesthetic
objectives in consideration of public health, safety and
morals.

Adjustment of Conflicting Interest

Social Engineering under Functional Perspective

Adjustment of Conflicting Interest

2 views of Conflicting Interest
First view
It considers the courts as the proper public agency to perform the
task of assessing and adjusting conflicting or overlapping interest. But
it will not work in a democratic system of government because it is
not designed nor are they well equipped to do it.
Other view
It considers social engineering or the determination of what is
necessary for the good of the collective polity as the prerogative and
function of the people themselves. Hence, it is better done by the
legislative organ in accordance with the constitution.
Aristotle
Argued against the futility of freezing law.
Aquinas
Conduct is essentially irregular. When, therefore, the law lays down a
general rule and thereafter a case arises which [is] an exception to
the rule, it is then right to rectify the defect by deciding as the
lawgiver would himself decide if he were present on the occasion and
would have enacted if he had been cognizant of the case is question.
John Austin
understand how any person who has considered the subject can
suppose that society could have possibly gone on if the judge had not
legislated, or that there is any danger whatever in allowing them that
power, which they have in fact exercised, to make up for the
negligence or the incapacity of the avowed legislator. That part of the
law of every country which was made by the judges has been far
better made than that part which consists of statutes enacted by the
legislators.
Justice Holmes

End of Presentation
Social Engineering under Functional Perspective