CHAPTER VI

THE FUNCTIONAL SCHOOL

The scope and purpose of sociological
jurisprudence
Presentors:
Mark Steven Mayo
Louem G. Garceniego
Macario Zafra III
Roxiel Chua
Louieze Gerald Gerolin

WHAT IS SOCIOLOGICAL
JURISPRUDENCE?
A term coined by the American jurist Roscoe Pound (1870
1964) to describe his approach to the understanding of
the law. Central to Pound's conception was the very
suggestive idea that in modern societies the law
represents the principal means through which divergent
interestsare brought into some sort of alignment with one
another.
Unfortunately, perhaps because he was a jurist rather
than a sociologist, he did not combine this insightful
conception with a developed understanding of how these
interests were formed and why some of them came to be
privileged over others within the legal system.

 It seeks to base legal arguments on sociological insights

and, unlike legal theory, is concerned with the mundane
practices that create legal institutions and social
operations which reproduce legal systems over time.
The sociology of law is often distinguished from
sociological jurisprudence. The latter is not primarily
concerned with debates within mainstream sociology and
instead engages with some of the debates within
jurisprudence and legal theory.

IMPORTANCE
Sociological jurisprudence is concerned with the effects
of social phenomena on both the substantive and
procedural aspects of law, as well as on the legislative,
judicial, and other means of forming, operating,
changing, and disrupting the legal order. Thefactthat
people in a given time and place hold particular ideas
and values, including ideals of justice, is itself a fact the
relation of which to law must be studied; but the focus is
sharply different from that in the study of theories of
justice.
Its focus is descriptive, notnormative; it is concerned
with what is or with what goes on, not with what ought to
be or ought to go on.

THE SCHOOLS OF JURISTS

AND THE METHOD OF JURISPRUDENCE
It has been possible to divide the jurists into three principal groups:
1.Analytical School
2.HistoricalSchool
2.1.German Historical School, which methods are philosophical
(often metaphysical) and historical
2.2.English Historical School, which methods are historical and
analytical
3.PhilosophicalSchool
3.1 18thCentury Law-of-Nature School;
3.2. Metaphysical School during the first half of 19 th century;
and,
3.3.Social-Philosophical School the Neo-Hegelians seems to
have the most fruitful program

ANALYTICAL SCHOOL
Analytical jurisprudence is not to be mistaken for legal
formalism (the idea that legal reasoning is or can be modelled
as a mechanical, algorithmic process). Indeed, it was the
analytical jurists who first pointed out that legal formalism is
fundamentally mistaken as a theory of law.
Analytic, or 'clarificatory' jurisprudence uses a neutral point of
view and descriptive language when referring to the aspects
of legal systems. This was a philosophical development that
rejected natural law's fusing of what law is and what it ought
to be.

 David Hume famously argued in A Treatise of Human

Nature that people invariably slip between describing
that the world is a certain way to saying therefore we
ought to conclude on a particular course of action.
But as a matter of pure logic, one cannot conclude that
we ought to do something merely because something is
the case. So analysing and clarifying the way the world is
must be treated as a strictly separate question to
normative and evaluative ought questions.

 But as a method of jurisprudence, this school requires a

condition of stability of the legal system analyzed. Hence it
is appropriate to a developed system only, and begins to
be employed only as legal systems reach maturity.
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.

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.

 Analytical jurisprudence tends to be particularist in the

sense that it works upon legal materials found only in
one particular legal system. In between particularism
and universalism lie what are sometimes called
comparative
approaches,
in
which
analytical
jurisprudence is applied to materials drawn from more
than one (but not from all) legal systems.

The Analytical School characteristics may be said to be:

They consider developed systems only;
They regard the law as made consciously by lawgivers,
legislative or judicial;
They see chiefly the force and constraint behind legal
orders;
For them the typical law is a statute;
Their philosophical views are usually utilitarian or
teleological.

 Bearing in mind these characteristics of the analytical jurists,

the limitations of their method are evident. Analytical
jurisprudence is a general theory of law derived from Roman
and English law. It brings everything to the test of principles
obtained from analysis and comparison of those systems.

Thus, it only leads into one path, and only met by deductions
from old principles and criticism of premises with reference to
the ends to be subserved is neglected. In pursuit of principles,
there is a tendency to forget that law is a practical matter.

HISTORICAL SCHOOL OF
JURISPRUDENCE
The historical school of jurists was founded by Friedrich
Karl von Savigny (17791861). Its central idea was that
a nation's customary law is its truly living law and that
the task of jurisprudence is to uncover this law and
describe in historical studies its social provenience.

As in other schools of thought, acceptance of this

approach did not necessarily mean agreement on its
theoretical or practical consequences.

 To followers of Savigny the identification of law with custom and

tradition and theVolksgeist, or genius peculiar to a nation or folk,
generally meant a rejection of rationalism and natural law; a rejection
of the notion of law as the command of the state or sovereign, and
therefore a disparagement of legislation and codification; and a
denial of the possibility of universally valid rights and duties and of
the individual's possession of non-derivable and inalienable rights.

In positive terms, historical jurisprudence identified law with the

consciousness, or spirit, of a specific people. Law is "found" by the
jurist and not "made" by the state or its organs. Law is a national or
folk and not a political phenomenon; it is a social and not an
individual production; like language, it cannot be abstracted from a
particular people and its genius;

 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:

They consider the past rather than the present of the law;
They regard the law as something that is not and in the
long run cannot be made consciously;
They see chiefly the social pressure behind legal rules;
Their type of law is custom;
As a rule, their philosophical view have been Hegelian.

PHILOSOPHICAL SCHOOL
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.
This method is one of the oldest and in the modern world, it
is the longest continued method of legal science.

The philosophical school begun way back in the context of

Roman lawyers and Greek Philosophers in the later year of
the Roman republic; in that combination of comparative law
and rational speculation called the ius gentium, in the appeal
to reason against traditions and forms called ius naturale.

IUS GENTIUM
Legal science seems to begin everywhere in the attempt
to distinguish cases superficially analogous and to
establish "differences" or "diversities." From this
comparison of rules within the legal system, it is but a
step to compare with the rules of other legal systems
and to compare systems themselves. This is the theory
of the Ius Gentium.

IUS NATURALE
Law is felt to be reason. It is not enough that a rule exist
in one system or that it has its analogues in others. The
rule must conform to reason, and if it does not, must be
reshaped until it does, or must have reasons made for it.
This is the dominant idea of the Ius Naturale.

In comparison with the analytical and historical jurists, the philosophical

jurists--
Are more apt to consider the ideal future of law than its past or present;
Believe that when law is found, its principles may, and as a matter of
expediency, should be stated definitely and in certain form;
Look at the ethical and moral bases of rules rather than at its sanction;
Have no necessary preference for any particular form of law;
Hold very diverse philosophical views.

 It is not easy to induce a lawyer or legal scholar to

consider the philosophical method seriously. Newer
generations of jurists and practitioners of law has shown
that it is possible to have a another interpretation of the
philosophy. Thus it is misdirected and followed blindly.

Although being misdirected and followed blindly, it is still

deemed invaluable. In civilized countries, this method
are broken down into formulas which men are compelled
to express ideas of right and justices and as a means to
promote them

CONCLUSION
Law is no longer anything sacred or mysterious. It has
now been absorbed by the social strata. Judicial
decisions are investigated and discussed freely by
historians, economists, and sociologists.
The doctrines announced by the courts are debated by
the press, and have even been dealt with in political
platforms. Laymen know full well that they may make
laws, and that knowledge of the law is no necessary
prerequisite of far-reaching legislation.