THE FUNCTIONAL

PERSPECTIVE

ATTY. NORAJANNAH LANTUD

 Reaction to Teleological Perspective
• Impractical in the legal ordering of society
• Historical Perspective tends to ______ and
_________ the concept of legal order
• Stifle and isolate
• Natural law is so ________
• Abstract
 Reaction to Positivist Perspective
• An arrogant theory of law because of its
failure to relate law to morals
• The separation of law and morals has no
immediate concern for goodness or badness
Recognition of the interests of society
• The functional school of jurisprudence is
drawn to a philosophy of social interests
which seeks the adjustment of conflicting or
overlapping wants, that is to say claims,
demands and expectations, whether asserted
by an individuals as such or by the public as
such, with minimum friction.
Recognition of the interests of society
• 2 sides: Assertive and Rational
• Assertive – ignores
• Rational - cooperates
• Self-sufficient? Indifferent?
• Social Interdependence
• Roscoe Pound:
• “The individual needs the force of social
control to keep the two sides of his nature in
balance.”
• That social control is the _____
Recognition of the interests of society
• Hence, the functional jurisprudence shifted
the emphasis of legal order from interests of
individual to _________________
• Interest of Society
• The objective is the realization and
achievement of the interests common to all
 Core of Functional Jurisprudence
• Certain observable facts in contemporary
society (5)
1. Enormous amount of human wants
2. Limited means
3. Aggressive tendencies in assertion
4. Conflict of interest
5. Inability to satisfy these interests
 Core of Functional Jurisprudence
• How to know which of them is to be
recognized/protected and which is to be denied?
• Social Engineering (Essay)
• To accomplish this formidable task, it is necessary
to identify the jural postulates of civilized society,
work out a scheme of social interests on the
basis of such jural postulates, and organize a
minimum network of national policies
expressive, indicative or suggestive of each social
interest.
 Essential Factor in the Legal Ordering
of Society
• What then is the solution, adjustment or
compromise of the conflicting or overlapping
interests?
• JSN
1. Jural postulates
2. Social interests
3. National policies
• Guides for legal order
 Essential Factor in the Legal Ordering
of Society
• Jural postulates
• They are reasonable expectations or
assumptions of the members of that society;
minimum requirements or conditions for
survival of society
 Jural Postulates
1. Assumption that no intentional aggression
will be committed upon them
2. They may control for their own beneficial
purposes what they discovered, created and
acquired
3. Assumption of good faith in dealings
4. Assumption of acting with due care not to
cast an unreasonable risk of injury to others
 Jural Postulates
5. Those who do damage will restrain them or
keep them within their proper bounds
6. Assumption that burdens incident to life in
society will be borne by society
7. Assumption of a standard human life will be
assured of him
8. Pleasures evoked by beauty of nature, fine
and performing arts and music
Essential Factors in the Legal Ordering
of Society
• J-S-N
• Jural Postulates
• Social Interest
• National Policies
 Functional Concept of Law
• There should be a balance.
• However, conflicting interests cannot always
be compromised.
• Example: Power of eminent domain
 Functional Concept of Law
• Once an interest is recognized, it is then
protected by the legal order either as a legal
authority or as legal exemption.
• The subordinate interest on the other hand
responds either as a legal responsibility or s a
legal debility
 Presentation of Conflicting or
Overlapping Interests
• Claims, demands or expectations belonging to
same class must not be stated in unequal
terms or levels.
• Individual interest vs. Social Interest
• Covid-19
Relative Weight of Competing Interests
• The tendency of an interest to promote social
interest has a higher value
• Interest low in social interest is given limited
protection
• How about interest in violation of social
interest?
• Not recognized at all
Relative Weight of Competing Interests
• Therefore, existence in a politically organized
society requires concessions from private
interests in favor of the greater social
interests.
• Power of eminent domain
Social Interests
and
National Policies
 A. Extra-Legal Factors
• Is law self-sufficient?
• No. The law cannot be disassociated with
pragmatic ethics, that is to say, social interests
as the highest good.
• The presumption arises that the legislative
body inteded its enactments to be in
accordance with the social interests and
national policies.
• Right and justice to prevail
 B. Types of Interests
I. Individual Interest
• Interests of personality
– Physical and spiritual
• Domestic interest – marriage & family
relations
• Interests of substance – economic situations
 B. Types of Interests
II. Social Interest
• These are claims, demands, expectations for
the promotion and protection of the social
welfare of entire society
• These are concern of everybody for it is the
community conscience
 B. Types of Interests
• National Policy
• It is a basic manifestation, expression or
valuation of some social interest.
• The individual and public interests are subject
to or tested by the social interests and
national policies
C. Means of Securing Private Interests
• How?
• The first is through the concept of civil
personality which is law given and is an
artificial or legal attribute of a human being
• 2 essential attributes:
1. The fitness to be subject of jural relations
2. The faculty of doing or not doing something
with definite legal affects and consequences
C. Means of Securing Private Interests
• 2nd means?
• The second means is conferring upon persons
or institutions on whom civil personality has
been attributed certain legal authorities (legal
claims and powers) as well as certain legal
exemptions (legal privileges and legal
immunities)
 D. Means of Securing Public Interests
1. By conferment of juristic personality upon
state and other corporations
2. The grant of certain rights to the state and
other corporations
3. Imposition on the members of society of the
correlative obligations
4. Recognition of certain processes for the
vindication of social interests (eg., quo warranto,
right to criticize public personalities)
C. Means of Securing Private Interests
• 3rd means?
• By conferring to them certain legal
responsibilities (legal duties and legal
liabilities) as well as certain legal debilities
(legal inabilities and legal disabilities)
 Social Interest in the General Security
• 4 aspects
• Safety, comfort, order and peace
• This social interest is based on the concern of
the entire social group against those forms of
actions and courses which threatens or are
harmful to the comfort, peace, safety and
order of the community.
 Categories of Social Interests
• 10 social interests
• Is there a hierarchy of social interests?
• There is none. However, protection of human
personality and dignity has been recognized as
indispensable for the existence of ordered
liberty.
Social Interest in the General Security

• The policy that no one shall be unlawfully

deprived of life, liberty and property
_______________.
 Social Interest in the Maintenance &
Protection of Social Institutions

• The basis of this interest is social solidarity.

• The stability and strength of society depends
on the interaction of the domestic, religious,
political and economic institutions.
 (1) Domestic Institutions

• The policy concerning the freedom of abode

or a reserved area of privacy and of changing
of the same.
• (Villavicencio vs Lukban)
 (2) Religious Institutions

• The policy against the recognition or

establishment of a religion or state-supported
religion
• (Prohibition of religious group in party-list)
 (3) Political Institutions

• The policy concerning the immunity of the

state in its public and governmental character
from actions or suits by private individuals
without its consent
 (4) Economic Institution

• The policy concerning freedom to choose and

engage in any profession, employment, trade,
vocation or craft and to receive adequate
remuneration.
C. Social Interest in the General Morals
• The social interest in the general morals is
based on the right and concern of the entire
community against those forms if acts and
practices which are offensive to the
contemporary moral standard the community.
C. Social Interest in the General Morals
• The policy against acts and practices
promotive of dishonesty, impropriety and
corruption.
• RA 3019: Anti-graft and corruption practices
act
 D. Social Interest in the Conservation
of Human Resources
• This social interest in the conservation of
human resources 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.
 D. Social Interest in the Conservation
of Human Resources
• The policy concerning the provisions for
safeguards as well as the means for protection
in all kinds of employment
• Example: laws on labor standards and labor
relations
E. Social Interest in the Conversation of
Natural Resources
• This 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.
E. Social Interest in the Conversation of
Natural Resources
• The policy concerning the protection of the
national patrimony whether in the urban or
rural areas from foreign or alien control or
domination
• Example: Aliens are absolutely not allowed to
acquire public or private lands in the
Philippines, save only in constitutionally
recognized exceptions
F. Social Interest in the General Health
• The social interest in the maintenance of
general health is based on the concern of the
entire group 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
F. Social Interest in the General Health
• The policy concerning programs for health
education and physical fitness as well as
preventive medical and health safeguards
through hygiene and sanitation
• Example: P.E classes, MAPEH
G. Social Interest in Human Personality
and Dignity
• 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.
G. Social Interest in Human Personality
and Dignity
• The policy of presumption of innocence until
proven guilty
• What degree of proof is required to overthrow
this presumption?
 H. Social Interest in the Social Life
• 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 if the existence and happiness of the
people.
 H. Social Interest in the Social Life
• The policy concerning the prerogative of the
people to participate, directly or indirectly, in
the formulation of government functions, laws
and policy.
 I. Social Interest in the General
Progress
• 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 aspect of the nature
of man and the development of control over
the forces of nature for the satisfaction of
human needs
 (1) Cultural Progress
• The policy concerning the freedom and
encouragement of arts and letters
 (2) Moral Progress
• The policy concerning the implementation of
principle of social (ethical justice)
 (3) Economic Progress
• The policy concerning freedom of enterprise
in the economic institution and in industries
not closely connected to national welfare and
defense and to public governmental activities
 (4) Political Progress
• The policy concerning the general right of
people to accurate and free information and
against acts and practices restricting such
rights
 J. Social Interest in the General
Aesthetics
• This social interest in general aesthetics is
based on the concern of society against those
forms of acts and practices which impair the
balance of nature and those which hinder
aesthetic possibilities and development
 J. Social Interest in the General
Aesthetics
• The policy concerning the freedom to
compose, write, paint, draw and design
Adjustment of Conflicting Interests
• Which agency of the government is best
qualified to ascertain, assess and adjust the
competing interests in community?
• Court (not designed or well-equipped to do it
because they are not representative bodies)
• People (too unrealistic & cumbersome)
Adjustment of Conflicting Interests
• Legislative organ
• They are elected by the people.
• They enjoy confidence ad trust of the
community
• However, there are instances when the policy
assessment and adjustment made by the
legislative body are not free from gaps.
• In such case, the adjudicative organ steps in to
clarify the matter.
 Value of Functional Jurisprudence
• The underlying jural postulates of the legal
order, the scheme of social interests and the
network of national policies expressive or
indicative thereof are helpful in determining
the limits of reasonable adjustment of
competing interests.