Analytical School of Jurisprudence

    Introduction

    Analytical school of Jurisprudence is the methodology propounded by John Austin and that is why it is also known as Austinian school. It is also known as Imperative school as it treats law as the command that emanates from the sovereign i.e. the State. Prof Dias termed it as ‘ Positivism’ as this approach mainly focuses on ‘law as it exists’ i.e., ‘law as it is’ and not on ‘past ‘ or ‘ future’. It separates the ‘law as it is ‘ and the ‘law as it ought to be’. It basically defines the ‘ Relation of law with the state’. The chief supporters of this school are Bentham, Austin, Salmond, Sheldon, Holland and others. Bentham’s theory of utility and Austin’s analytical positivism laid the foundation for the Analytical school of Jurisprudence.

    Some basic considerations of the school are:-

    1. Law is the command of the sovereign and is different from ethics.
    2. The school is concerned with the pure fact of law.
    3. According to the school, the law can only be studied with the integration of logic as it provides validity to law.
    4. School is primarily concerned with statutory laws.
    5. The state is the main institution responsible for the implementation of the law.[1]

    History and Background

    In the 18th century, natural law schools predominated. Principles of Natural law were considered supreme and according to some jurists, it could supersede even the man-made law. In the words of Prof Dias, the positivist movement began in the early 19th century. It reflected a reaction against the prior methods of thinking that were based on morals and ethics which deviated from realities of actual law in order to discover the nature or reason of the principles of universal validity. The analytical school was thus a reaction against the airy assumptions of natural law. Actual laws that existed were condemned and questioned based on these principles. And that is why Analytical School picked up unmistakable quality in the 19th century as natural law started losing its significance. [2]

    Exponents of Analytical School

    Jeremy Bentham

    Bentham (1748-1832) is considered the founder of positivism in the modern sense of the term and laid the foundation for Analytical school of Jurisprudence and he started a new era in the history of legal thought in England. Bentham advocated that the substantive law can only be through a process of analysis by reforming its structure. Bentham’s theory also had ‘sovereignty and command’ as its primary concept and his perception of justice is based on a system of values and each society has its own different set of values.

    Bentham’s theory is known as Utilitarian individualism. He defined law as,” an assemblage of rights, declarative of violation conceived or adopted by a sovereign in a state which means that law is an expression of the will of the sovereign in a state”.

    According to him, the source of law is the will of the sovereign who may consist of laws which are issued by him or the laws that were made by a former sovereign could be permitted. He favoured the economic principle of ‘ Laissez-faire’ which refers to the policy of leaving things to take their own course by not interfering. Thus he is of the opinion that the state should not interfere in the matter and the individual’s work according to their will and that is why he believed that the purpose of the law is to end any kind of bondage and restrictions that exist for individuals which will result in the welfare of the society i.e., people at large. The main purpose behind the law was to procure pleasure benefits to the people and to avoid any kind of pain, evil or unhappiness.

    The proper end of every law is to promote maximum happiness of the maximum people and Bentham focused on pleasure that is why Bentham’s Utilitarianism theory is also called ‘Greatest Happiness Principle’. Bentham also introduced legal positivism and tried to incorporate scientific methods for a better understanding of law.

    Criticism

    1. According to Friedman, Bentham’s theory has the following loopholes:-
    1. He amalgamated materialism and law.
    2. And the theory is not able to maintain equilibrium between the interests of individuals and society.

        2)  The principle of Laissez-faire which provides for no interference of law is not successful in the long run as some sort of restrictions are necessary for the greater good and smooth functioning.[3]

     

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    John Austin 

    John Austin was a 19th-century British legal philosopher and reformer who formulated the first systematic alternative to both natural law theories and utilitarian approaches to law. He is considered to be the father of English jurisprudence and the founder of Analytical school as he adopted the primary and extensive procedure for a subject, which helped him to present as well as to elucidate the analytical positivist approach. His work namely ‘The Province of Jurisprudence Determined (1832) advocated a definition of law as a species of command that tends to separate positive law from morality.  He was influenced by the scientific treatment of Roman law and he initiated scientific arguments of English law. Like Bentham, he opined that ‘law’ is only an aggregate of the individual law. In his classic work published under the title, ‘The Province of Jurisprudence determined’, he concentrated on the origin and essence of law and even analyzed the legal system of England. His theory is based on expository jurisprudence which was proposed by Bentham and did not bother with extra-legal norms.

    According to Austin’s ‘Command Theory of law,’ the law can be defined as,” the command of the sovereign imposing a duty which is backed by the threat of sanction in event of non-compliance.” 

    He was of the view that positive law should be analyzed by applying logic rather than relying on ethical significance. He ignored social factors and emphasized on the logic. He pointed out that positive law comprises both explicit and implicit orders from superiority. The law is a reflection of what sovereign’s wishes and is based on the sovereign’s authority. The law is considered in the abstract form by outriding moral and ethics so that it did not hinder the application of law.

    Austin’s theory can be summed up into the following features:-

    1. Command ( by  superior)
    2. Duty (imposing duty on political inferior)
    3. Sanction
    4. Sovereignty

    Criticism of Austin’s theory 

    1. According to Austin,  law is created by sovereign but he overlooked the role played by customs and common consciousness of people in the evolution of law which always regulates the conduct of human beings.
    2. He did not accept the judiciary as a law-making agency and neglected its role in expounding law through the application of precedents.
    3. Austin’s theory does not apply to constitutional law as it will be an absurd idea to consider the Constitution which is the sovereign’s command itself to direct the sovereign. And the constitution comes before the state as it is the paramount law of the country.
    4. It also ignores the relation between law and morality as morals provide strength to law and they are both inseparable from each other.
    5. Austin’s approach is applicable to a unitary polity that is based on parliamentary sovereignty and thus is not applicable to legal systems that exist today like in India and USA.[4]

    Holland

    Holland (1835-1928) was a Professor of International law at Oxford University. He is one of the exponents of analytical school and followed the analytical approach to jurisprudence as propounded by Austin and Bentham. However, he deviates from the Austinian conception of the term positive law. According to him, all the laws are not orders of supreme authority instead they are rules of external human action that are implemented by a sovereign political power.

    Holland says, ” Law is the general rule of external human action enforced by sovereign political authority. All other rules for the guidance of human action are enforced by sovereign political authority .” He simply defined Jurisprudence as ‘ the formal science of positive law’.[5]

    Salmond

    Salmond (1862-1924) also supported the Analytical School of Jurisprudence but he varies in the opinion from the other jurists in a myriad of ways.

    According to him,  Imperative law refers to ” a precept or rule of action imposed upon man by the same authority which enforces obedience to it. In other words, imperative law refers to the command or a rule which is enforced by some superior power”.He agrees that law includes every rule irrespective of their mode of origin, it’s just that law should be acknowledged by the courts.[6]

    Salmond’s definition of law: ” Jurisprudence is the science of civil law”, by law he means the law of land as administered by courts and includes statutes, customs and judicial precedents. He defines law as the body of principles conceded and followed by the state in the management of justice. According to him, the laws are supreme, only if they are formulated and accepted by courts. He also argues that the laws only regulate the external aspect of human behaviour but cannot regulate the inner beliefs and consciousness of humans. The general doctrine is that the jury must determine facts and judge the law.

    Criticism 

    1. Vinogradoff criticises Salmond’s definition of law as the courts are responsible only for the implementation and application of law and not to describe and elucidate law.
    2.  Salmond ignores the parts of law that are not formulated by courts such as conventions which play a significant role in propounding the law.
    3. His definition is more apt for case law but not regarding statutory law.[7]

    Kelson

    Austrian jurist and philosopher Hans Kelson (1881-1973) also supported Analytical school. He propounded the pure theory of law and has redefined Positivism. He developed the theory on a ‘ theoretical and philosophical basis’.

    According to him, the law must stay free and uninterrupted from social sciences like psychology, human science or social history. And the concept of law would be 

    pure free from any other investigation such as sociological, political, historical, logical etc. which reflects its purity as it will shun all-powerful, moral, mental and sociological components. Thus, ‘ the law will stand on its own’.

    According to the theory, law should be uniform and it should be universally applicable. And the pure theory of law deals with the existing fact for eg – What law is and not as it ought to be which depicts inclination towards Positivism. According to Kelsen, it is not imperative for every legal rule to stand on its own. One legal rule is a derivation from another legal rule and is related to another. But Grundnorm is an exception as it exists because of its popularity, people willfully agree to the rule and even follow it.

    Criticism 

    1. Natural law is ignored in the theory. 
    2. This theory lacks practical significance.
    3. According to Kelson law should be free from ethics and morality but these are inseparable and go hand in hand.
    4. The concept of Grundnorm is also vague and not pure.[8]

    Importance of the Analytical School of Jurisprudence

    1. This school brought about precision in legal thinking and helps people to understand in a better way.
    2. It provided clear and more scientific terminology so as to have proper demarcation in law and to bring in uniformity.
    3. It also presented law in the pure form as it kept other considerations that could influence outside.[9]

    Conclusion

    Thus the central idea of the Analytical School of Jurisprudence is Positivism. It focuses on Law as it exists i.e. law as it is regardless of good or bad, past or future rather than how it ought to be.  A law, which actually exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate any application and disapprobation. In all, it can be said that Analytical Jurisprudence is a legal theory that draws on the resources of modern analytical philosophy and helps us to understand law.[10]

    References

    [1] Pranjpe NV, Jurisprudence & Legal Theory (Central Law Agency, 6th edn., 2011).

    [2] Mahajan VD , Jurisprudence and Legal Theory  (Eastern Book Company , 5th edn., 2006).

    [3] Friedmann W., Legal Theory (Universal Law Publishing Co. Pvt. Ltd.,5th edn., 2019).

    [4] Singh Avtar, Introduction to Jurisprudence (Wadna & Co., Nagpur , 2nd edn.).

    [5]ibid.

    [6]  Prof. Nomita Aggrawal, Jurisprudence and Legal Theory (Central Law Publications).

    [7] John D Finch , Introduction to Legal Theory (Universal Law Publishing Co. Pvt Ltd , 2nd edn.).

    [8]ibid.

    [9] Dhyani SN, Fundamentals of Jurisprudence ( The Indian Approach ) (Central Law Agency, 2007).

    [10] Tripathi BN, Jurisprudence Indian Legal Theory (Central Law Agency, 2006).


    BY PRANJALI AGGARWAL | UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

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