FUNCTIONAL PERSPECTIVE

Prepared by:
Aguila, Kirsten
Eting, Paul Peter
Mata, Josielyn
Murillo, Lailani Marie
Sortijas, Hyacinth
Tamayo, Adonis

FUNCTIONAL SCHOOL OF JURISPRUDENCE

Views the law as specialized form of social control for the solution, adjustment,
or if no better can be done, compromise of conflicting or overlapping claims, demands
and expectations to secure as much as may be possible the social interests with the
minimum of friction.
SOCIAL ENGINEERING
Process of deciding which of the conflicting or overlapping interests would have
to be recognized and protected
TECHNIQUE OF SOCIAL ENGINEERING
To secure the jural postulates, social interests and national policies not by
absolute judgment but by avoiding the satisfaction of one competing interest at the total
expense of the other whenever possible.
DEAN ROSCOE POUND
Stated that the underlying jural postulates of a particular civilization are the
reasonable expectations or assumptions of the members of the society
JURAL POSTULATES OF CIVILIZED SOCIETY
1. To assume that others will commit no intentional aggression upon them.
2. To assume that they may control for beneficial purposes what they have
discovered and appropriated for their own use
3. To assume that those with whom they deal in the general intercourse of society
will act in good faith
4. To assume that those who are engaged in some course of conduct will act with
due care not to cast an unreasonable risk of injury to others
5. To assume that others who maintain things likely to get out of hand to escape and
do damage will restrain them or keep them within their proper bounds
6. To assume that burdens incident to life in society will be borne by society
7. To assume that at least standard human life will be assured him
OBSERVABLE FACTS IN CONTEMPORARY SOCIETY
1. Enormous amount of human wants
2. Limited means at the disposal of the state in satisfying them
3. Aggressive tendencies of individuals and groups of individuals
4. Long drawn nature of the resulting conflict of interests
5. Inability of the legal order to fully recognize and satisfy the conflicting or
overlapping interests

FACTORS THAT DICTATE THE ADJUSTMENT OF CONFLICTING OR

OVERLAPPING INTERESTS
1. Preventing or minimizing further conflicts
2. Balancing or compromising conflicting interests to guarantee social equilibrium
DANGERS TO LEGAL ORDERING
1. Manner in which the conflicting interests are presented for adjudication
2. Simplicity of expediency
RELATIVE WEIGHT OF COMPETING INTEREST
In the Teleological jurisprudence, the question is how far the percepts of the
natural law can be served if and when competing interest is allowed to survive. This is
not free from personal preferences and prejudices.
In the perspective of individualist utilitarianism, the question deals with the
tendency of prevailing interest to cause either pleasure (justice) or pain (injustice) to the
greatest number of the community. Competing interest here is based on the social
advantage. In the functional jurisprudence, the social interest are quite important in
weighing the relative value of the competing interest.
Existence in a politically organized society requires concessions from private and
public interests in favor of the greater social interest in economic a nd human dignity.
SOCIAL INTEREST AND NATIONAL POLICIES
Public office is a public trust
The goal of functional jurisprudence is certain.
It is important to recognize what we are doing in LAW and why we are doing it R.Pound.
The created law must be founded in by the reasons of human dignity and respect to its
rules.
The true grounds of decisions are consideration of public policy and social advantage J. Holmes
The function of the law is to give order to the peoples daily living, they should
cooperate each other.
A. Extra-legal factors
Law is not self-sufficient, there are ethical factor to social interest. Legislative
body are presume intended rights and justice to prevail in case of doubt of
interpretation and application of laws. However social interest and national
policies are also molded by varying influence outside the domain of the law.

B. Types of Public interest

People has different interest in public and individual. (e.g. economic situations,
property rights, freedom of industry, freedom of contract ).
C. Means of securing private interest
1. Postulation of the concept of civil personality
2. Conferring upon persons or institutions on whom civil personality has been
attributed certain legal authorities.
3. Imposition upon person or institutions on whom civil personality has been
attributed certain legal responsibilities.
D. Means of securing public interest
1. Conferment of juristic personality on the state and other corporation
2. Grant certain rights to the state and other corporation
3. Imposition of the obligations
4. Recognition of the certain process.
CATERGORIES OF SOCIAL INTEREST
There are ten social interests intended by functional jurisprudence, the social
interests in the protection of Human personality and dignity has been recognized as
indispensable for the existence of ordered liberty.
1. Social interest in the general security
This interest talks about the security of social life against any acts or conduct
which threatens its very existence. Social living has four aspects such as safety,
comfort, order and peace that are vital or requisite in determining or calibrating
general security. It simply means that the centralto social interest under this
category is the law relating to general safety or security.
Accordingly, it also embraces laws or policies relating to establishment of
impartial courts and tribunals, administration of justice, preservation of life, liberty and
property, access to government records, free access to courts and immunity of head of
state from arrest among others.
Examples of laws relating to security are the Constitution, Data Privacy Act of
2012, the revised penal code, the Vienna convention on diplomatic immunity and
executive order on freedom of information and such other laws enacted/issued relating to
security and safety of the society.
2. Social interest in the maintenance and protection of social institutions
The stability and strength of society depends on the interaction of the four
fundamental institutions namely: domestic, religious, political and economic.
Without these institutions, the society will fall and disintegrate.

This social interest is based on the concern of the entire social group in securing
said institutions against acts and practices which threaten their existence ad functions.
a. The solidarity of domestic institutions embraces those policies which relates
to marriage, indigents, rights of parents to children, actions between members
of family and security of houses among others. Domestic institution then
recognizes family as its center.
Examples of laws/policies concerning domestic institutions are family code,the
civil code and other special laws such as Anti Child abuse law and anti-child labor law.
b. The solidarity of religious institution embraces those policies relating to
freedom to practice religion, cooperation between state and the church, the
freedom of religious groups to maintain ministry and other religious and
church related work. Human beings recognized a power greater than
themselves. As such, there is never ending search for relationship with the
spiritual power that accounts for the perfection of the universe.
Example is the Constitution which guarantees the free exercise of religion under
the Bill of Rights. Roman Catholic is the largest religious group.
c. The stability and solidarity of political institution embraces policies
concerning maintenance of territorial integrity of the state, support of the state
to the youth, duty to vote, power and function of the government, delegation
of legislative power, obedience to laws, duties of public officials and those
relating to tenure of judges as fixed by law.
Examples are the Constitution, the administrative code of the Philippines, and
omnibus election code.
d. The development and implementation of sound economic goals to ensure
economic life of members of society embraces those policies relating to free
competition,

agriculture,

industrialization,

market,

credit

facilities,

employment, labor, property, inflation, reserves and business regulations.

Examples are the laws on trade and commerce, laws on obligation and contracts,
and laws on property among others.
3. Social interest in the general morals or that life in civilized society will be
secured against offensive form of actions and sentiments against moral. General
morality or the moral ethics of the community is a very present fact of social life.
It is based on the right and concern of the entire community against acts and
practices offensive to the moral standard of the community.
Theorists provided considerations in ascertaining moral sense of the community.
Learned Hand talks about consideration given to the reaction of substantial portion of the
intelligent and virtuous person who would think an act or material to be morally
reprehensible or morally justifiable. Jerome Frank however provided that the attitude of
the ethical leaders of the community should be consulted. There should be a thoughtful

reflection of the substantial portion of community feels on a particular act or material in

question or considering the solution in terms of general acceptance according to Henri
Bengson.
Good morals embrace those policies relating to dishonesty, corruption, gambling,
and immorality and community values. Examples of laws are the Civil Code of the
Philippines, anti-gambling law, law on ethical standards of public officials and Family
Code of the Philippines.
4. Social interest in the conservation of human resources which is based on the
concern of the entire social group against those forms of acts and practices which
impair the human assets of the community. It undergirds the right of human
personality and dignity which keeps humankind from self-destruction.
Conservation of human resources embraces those policies relating to maternal
and childrens welfare, mortality, prohibition against illegal drugs, shelter and education,
juvenile, labor and employment, preservation of human life, minority and aggressions.
Example of laws relating to human resources are labor code of the Philippines,
Constitution, anti-child labor act, IPRA law and juvenile and justice act of 2006.
5. Social interest in the conservation of natural resources
Natural resources are those versatile bounties from the natural environment.
Natural resources are important because they are not inexhaustible yet they can
meet the national needs for production and consumption, and they can be utilized
and yet conserved for the future.
However, Ecologists warn that the human species the balance of nature and depleting
and wasting the scarce resources of existence.
Unwise methods, inadequate knowledge, outmoded equipment, and poor
facilities have resulted to serious problems for the conservation and development of the
natural resources.
Social interest is based on the concern of the entire social group against those
forms of acts and practices that are destructive and ruinous of the resources and
patrimony of the people. Thus, the interest embraces the policies concerning public
ownership, protection of national patrimony, proper management, development, and
conservation, and prohibiting the exploitation and misuse of natural resources.
Examples of laws relating to natural resources are Art. 12 of the 1987 Philippine
Constitution: National Economy and Patrimony, and environmental laws such as the
GREEN LAWS: PD705 Revised Forestry Code, RA9175, Chainsaw Act of 2002, RA
9147 Wildlife Resources Conservation and Protection Act, RA 7586 National Integrated
Protected Areas System (NIPAS) Act, RA 7942 Mining Act of 1995, RA 7076 People's
Small-Scale Mining Act, BLUE LAWS: RA 8550 Phil. Fisheries Code of 1998, RA
10654 Act to prevent, deter and eliminate Illegal, Unreported and Unregulated Fishing,

amending RA8550, RA4850 Laguna Lake Development Authority Act, BROWN

LAWS: RA6969 Toxic Substances and Hazardous and Nuclear Wastes Control Act of
1990, RA8749 Phil. Clean Air Act of 1999, RA9275 Phil. Clean Water Act of 2004,
RA9003 Ecological Solid Waste Management Act of 2000, PD 1586 Phil.
Environmental Impact Statement System.
1. Social interest in the General Health is based on the concern of the entire social
group against that everyone has a right to the enjoyment of the highest obtainable
health and well-being for the proper functioning of both body and mind.
It is expressed on policies concerning programs for health education and physical
fitness, maintenance, support, and even disperal of hospitals, psychopathic asylums and
medical facilities, maintenance of high level of employment.
Example of these policies in the Philippines are RA6365 Established a National
Policy on Population and created the Commission on population, standardization of
salaries, Health Insurance Act, RA7432Senior Citizen Act, RA7610 Special protection
of children against abuse, exploitation and discrimination act.
6. Social interest in Human Personality and Dignity is both an ethical imperative
and religious command, despite contrary attitudes obtaining in different times and
places.
This social interest is based on the concern of the entire social group against those
forms of acts and practices in derogation of human personality and dignity. Hence, in the
preservation of human personality and dignity emp hasizes norms of decent human
relations and individual security from abusive application of power by private
individuals or group of individuals and from the unreasonable application of authority by
the government.
In the Philippines, this social interest is expressly recognized in Chapter 2, Preliminary
Title of the Civil Code, and demonstrated by national policies concerning freedom of the
individual will, recognition and maintenance of fair and reasonable opportunities,
presumption of innocence until proven guilty, and abolition of militarism, racism, and
sexism.
This social interest requires that every person must respect human personality and
dignity and is under a legal duty to pay damages if they willfully cause loss or injury to
another when the acts are derogatory of human personality and dignity even though said
acts may not constitute criminal offenses.
7. Social interest in the Social Lifestates that humans are social beings, and that
maintenance of social life is the strong desire for stable existence without which
no society can advance or progress.

Thus, social interest in in the social life is a social interest in the preservation of
harmonious social relationship among the members of the community. Its implication is
the right of the people, without discrimination, to have a voice and to participate in the
formulation of governmental policies and functions, and reasonable expectation of the
people that their optimum social requirements will be met.
This social interest is based on the concern of the entire social group against those
forms of acts and practices which adversely affect the stability of existence and
happiness of the people. It is expressed or represented in the Art. III of the 1987
Philippine Constitution, called the Bill of Rights,and by national policies concerning the
prerogative of the people to participate in the formulation of government functions, laws
and policies, privacy of communication, and against acts and practices prejudicial to
independent action, thought, and judgment, and to the freedom to protest openly in
accordance with rules established by society.
SOCIAL INTEREST IN THE GENERAL PROGRESS
Progress does not mean mere change. Not all change is progress. Degeneration or
decadence is also a social change but it by no means progress. The viability of social
institution does not rest on their continuous improvement and, in no small measure, on
the development of rational, self-determining members of the community. There can
hardly be any progress when these conditions are not present or afforded. Progress does
not, therefore take place automatically or in the ordinary occurrence of events. It comes
and continues with some kind of struggle and difficulty.
Edmund Burke was emphatic when he stated that a society without concern
and regard for general progress is without the means of its conversation
without such means it might even risk the loss of that which it wished the most
to the religiously preserve.
This social interest 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.
SOCIAL INTEREST IN THE GENERAL PROGRESS FOUR FORM
(1) Cultural Progress
The interest in social progress is based on the rational soul of man, his intellectual
and imaginative capacities. Man has the capacity for intellectual and imaginative
experience. The desire to know and to advance is deep-rooted in man.

There are certain favorable conditions for intellectual experience or the attainment of the
truth namely:
1) an honest critical and inquiring mind
2) the acceptance of the recognized standard of propriety in order to prevent doubt
and expose error and
3) a climate where the freedom to think, read, write, criticize, reformulate, evaluate
and believe prevails.
Without these factors, the natural desire to know can be stifled or suppressed. Thus,
the interest of society in the cultural progress envisages the prevention or suppression
of acts and practices which are restrictive or intimidate of the favorable conditions
for intellectual experiences. There is no room for prior censorship and suppression.
The unfavorable climate to cultural progress is brought about by governmental
intervention as well as religious interference.
The Problem of Academic Freedom
1) Contrary to Social interest or national policies
2) Restraints place upon researchers and teachers by their own views or beliefs that
stand the way of free search for and discussion of the truth
3) Rigid adherence to concepts and ideas that sacrifice human personality and
dignity, and
4) Substantial and imminent danger to society
The interest in the cultural progress is expressed by the following national policies:
1. The policy guaranteeing free and open enterprise in ideas and expression
wherever they may tend and against acts and practice pro-motive of or
tending to promote monopoly in education.
2. The policy concerning the privilege of institutions of higher learning.
3. 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.
4. The policy of concerning the promotion and maintenance of museums,
archives, and libraries containing the widest diversity of views and
expression.
5. The policy concerning the flow of books, magazines and other cultural and
electronic materials free from trade or exchange controls normally imposed
on other articles and products of trade and commerce.
6. The policy concerning the freedom and encouragement of arts and letters.
7. The policy concerning the freedom to pursue pure or basic as well as applied
or immediate research in the various disciplines.

8. The policy concerning the freedom to read inquire into, and discuss both
orthodox and unorthodox but not conspiratorial and obscene subjects and to
make expressions and observations in relation thereto.
9. The policy concerning the freedom to analyze, review, test, criticize, reassess
and restate beliefs , ideas, concepts and institutions in a climate of
responsibility and confidence.
10. The policy concerning the freedom from prior censorship or unnecessary
restraints, whether external and involuntary or internal and voluntary.
(2) Moral Progress
The interest in the moral progress is expressed by the following national policies:
1. The policy concerning the encouragement and extension of the application of the
more specific moral values.
2. The policy against acts and practices which permit or are conducive to nonobservance of responsibilities.
3. The policy concerning the freedom to criticize reassess and restate custom in
light of rational and ethical principles.
4. The policy concerning the implementation of the principle of social justice.
5. The policy concerning the recognition of the relation of the social values to
ethical values.
6. The policy against the exploitation of sexual experience which distorts its true
meaning and endangers the culture of the people.
7. The policy against acts and practices that prescribe and impose what shall be
sound and correct in morality and coerce anyone to rely on them.
(3) Economic Progress
The interest in the economic progress is expressed by the following national
policies:
1. The policy concerning the freedom of enterprise in the economic institution and
in industries not closely connected to national welfare and defense and to public
government activities.
2. The policy concerning the encouragement of new ideas and inventions to provide
the means of satisfying human needs and against unjustifiable withholding of
their uses from public.
3. The policy concerning the establishment, encouragement and successful
operations of banks.
4. 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.

5. 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.
6. The policy concerning foreign and domestic credit lines for local investment to
generate income and higher employment level.
7. The policy concerning adequate governmental encouragement and limited
concessions for the diversification of the economy.
8. The policy concerning the free use and employment of property in general and
against undue and unreasonable disturbances or restrictions on personal and
property rights.
9. The policy concerning adequate provisions for the production and the free sale,
traffic and transaction of the goods or existence or staple commodities.
10. The policy concerning the provisions for an integrated program of construction
and maintenance of highways, railways, and feeder roads from producing areas.
11. The policy against governmental ownership and unregulated control of business
and industries.
12. The policy concerning the imposition of temporary, selective control measures
on the free enterprise economy.
13. The policy concerning liberal depreciation in order to stimulate entrepreneurial
investment.
14. The policy against the acts and practices to promote monopolistic combination.
15. The policy concerning the maintenance and encouragement of domestic as well
as foreign commerce and carriage of goods.
16. The policy against to promote unreasonable bank rates on advance or excessive
taxes.
17. Proper use of taxation as means of equitable redistribution of wealth.
18. The policy for a well-conceived logical and effective program of market
stabilization.
19. The policy for an international monetary reserve in hard currencies to promote
commercial trade and transactions.
20. The policy concerning labor association whose purpose do not run counter with
the public security and interest.
21. The policy concerning the freedom to engage in collective bargaining.
22. The policy concerning raise in wages at a pace equal to productivity and cost of
living.
23. The policy concerning efficient role of government as an impartial third party in
minimizing and adjusting labor-management and land holder-tenant disputes.
24. The policy permitting economic activities reasonably related to some legitimate
wants, claims and demands.
25. The policy concerning stability, certainly and security of in transactions in
consonance with established standards for fair dealing.

26. The policy concerning reasonable use and application of government tax and
monetary plans and programmes to encourage and strengthen investment and
production in order to create employment opportunities, generate income and
stimulate consumer demands.
27. The policy concerning tax regulations.
28. The policy concerning the provisions for regulatory work on employment
yielding sufficient income to meet immediate human needs and provide
reasonable security.
29. The policy concerning manageable budgetary deficits, exchange rates and
governmental price intervention.
30. The policy concerning integration of basic industrial endeavors for the purpose
of securing stable supply of products and meeting all relevant necessities.
(4) Political Progress
Political progress deals with the formation, clarification and distribution of social
values from people, based on the improvement and elaboration of the political and
legal machineries.
The interest in the political progress is expressed by the following national policies:
1. The policy concerning the freedom to effect changes in the constitution.
2. The policy concerning the freedom to criticize openly inefficient and corrupt
government officials.
3. The policy against the acts and practices to state, publish and read both orthodox
and unorthodox or popular and unpopular, but not conspiratorial and immoral,
ideas and opinions.
4. The policy concerning the general right of the people to accurate and free
information.
5. The policy concerning election or appointment.
6. The policy concerning the guarantee to participate ion election.
7. The policy concerning the autonomy of LGU.
8. The policy against acts and practices of imposition of political concepts.
9. The policy concerning the freedom to withdraw, from political and civic groups
whose purposes do not contravene public security and interest.
10. The policy against promotion of falsehood and deceit.
11. The policy concerning the maintenance of integrity and ethical s tandards in
public affairs as well as devotion to public trust.
12. The policy concerning the recognition of international treaties and compacts.
13. The policy concerning the separation of church and state.
14. The policy concerning firmness I political loyalty and principle.
15. The policy concerning reciprocal emigration programs toward permanent
residency.

SOCIAL INTEREST IN THE GENERAL AESTHETIC

The Capacity of Human personality for aesthetic experience is the capacity to create
and appreciate beauty. There are two aspects of beauty and art, the subjective and
objective part.
The subjective part considers beauty and art as dependent solely on the
perception of artist observer or collector. It varies from one individual to another on how
they perceive a certain subject of art.
The objective side considers beauty and art to inhere in the external object or
thing, that is to say beauty and art are capable of existing themselves.
Medium of Art
Nature (environment)
Woods (carving)
Marble (sculpture)
Pigment (painting)
Rhythm (dance)
Harmony (music)
Language (Prose and poetry)
National policies concerning general aesthetics;
1. The policy concerning the freedom to compose, writes, paint, draw and design.
2. The policy concerning the maintenance and development of facilities that
provides avenue for arts.
3. The policy concerning creation and development of natural and manmade
beauty.
4. The policy concerning the assistance of promotion and patronage of the fine and
performing arts and literature and music.
5. The policy against acts and practices distracting or repugnant to the senses or the
mind.
6. The policy against acts and practices destructive of the work and objects or art,
literature and music.
7. The policy concerning the creation and maintenance of community planning and
zoning controls.
8. The policy concerning the promotion of aesthetic objectives in consideration of
public health, safety and morals.

ADJUSTMENT OF CONFLICTING INTEREST

Society was able to establish adjudication bodies to resolve the conflicting interest of its
members.
Aristotle was the first to inquire into the question of judicial legislation when the argued
against the futility of freezing the law.
Aquinas on the other hand hels that conduct is essentially irregular. When therefore,
the law lays down a general rule and therefore 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 in question
John Austin stated that it is difficult to 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 danger in whatever in allowing them that power, which they in
fact exercised, to make up for the negligence or the incapacity of the avowed legislator.
Justice Holmes believes that judicial legislation is not absolute.
The functional jurisprudence posits the view that the judicial legislation is
acceptable only when the process takes into consideration the jural postulates, social
interest and national policies.