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.

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.

BACKGROUND OF LEGAL THEORY

CHARLES LOUIS DE MONTESQUIEU ----stressed the relation of law to changing social conditions. He also laid down the foundation of functional jurisprudence.
RUDOLF von JHERING ----- provided a classification of interests into individual interests from the standpoint of individual life; public interests from the standpoint of the public as a distinct juristic personality; and social interests asserted by society as a whole for the general welfare. JOSEPH KOHLER ------emphasized that the law is the reflection of the KULTUR(culture) and the jural postulates emanating therefrom. He further explained that each group of people seeks the kind of legal order suitable to their culture. LUDVIG GUMPLOWICZ ----- stated that there is a need to study the conflicting interests of individuals of unequal strength in light of the interest of society

(FUNCTIONAL JURISPRUDENCE)REACTION TO IDEALIST AND POSITIVIST PERSPECTIVES (A)CRITICISM OF ABSTRACT VALUES

1. The HISTORICAL AND TELEOLOGICAL schools of jurisprudence are impractical in the legal ordering of society. The philosophy of the folk soul tends to stifle and isolate rather than deepen and stimulate the concept of the legal order. 2. The philosophy of NATURAL LAW is so abstract as to be of any legal value in the adjustment of conflicting or overlapping wants.

(B) CRITICISM OF LEGAL POSITIVISM

FIRST, the positivists view that there is no immediate or necessary connection between law and morals; this view means that nothing immoral that is legal.

SECOND, it is not in touch with pragmatic ethics, that is to say the social interest as the highest good in the legal ordering of a politically organized society.

RECOGNITION OF THE INTEREST OF THE 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 individual or by the public with the minimum of friction. As an assertive individual, a person has a tendency to ignore the claims, demands and expectations of others in the satisfaction of his or her own wants. BUT, as a rational individual, a person understands the need to cooperate with the claims, demands and expectations of others in order to realize he interest that are held in common.

CORE OF FUNCTIONAL JURISPRUDENCE

The Functional Jurisprudence approach to the problem of the nature of the law. 1. the enormous amount of human wants(CDE) 2. the limited means at the at the disposal of the state in satisfying them 3. the aggressive tendencies of individuals and group of individuals in the assertion of their wants 4. the long drawn nature of the resulting conflicts of interests 5. the inability of the legal order to fully recognize and satisfy the conflicting or overlapping interests at the same time.

ESSENTIAL FACTORS IN THE LEGAL ORDERING OF THE SOCIETY

Since the legal order does not operate in terms of legal concepts alone, functional jurisprudence cannot seem to over emphasize he fact that jurists, legislators, and executives are not to think Exclusively in terms of legal rights and legal obligations, important as these jural relations are in legal ordering of the society, but more importantly, in light of the jural postulates social interests and national policies, too.