• Ms. Jyoti sharma

Analytical School of Jurisprudence

Introduction:

Analytical school of jurisprudence is mainly concerned with the law as it is. This school of thought neither take into account how the law was in the past nor concerned with how it ought to be in future. Its premise is confined to law as it actually exists i.e. positus. This is why this school is also termed as Positive school of jurisprudence.


This school is also known as imperative school of thought because the thinkers of this school treat ‘law a command’ emanating from the sovereign, i.e. state. Austin was the fore-runner of this school. That’s why sometime this school is also known as Austinian School of jurisprudence. The jurists of this school were known as ‘positivist’ or ‘analysts’ who used to believe in ‘positivism’. This term was first coined by a French thinker, Auguste Comte.


This school was emerged as a response to the natural law theory. It had little to do with the abstract notion of natural law. It tried to analyze the principles of law without taken into account their historical development. It emphasized legislation as a major source of law. It regards law as a closed system of pure facts from which all the norms and value should be excluded. The main exponent of this theory are as follows:

  • Jeremy Bentham

  • John Austin

  • Sir John Salmond

  • H.L.A. Hart

  • Hans Kelson

Jeremy Bentham (1748-1832):

He was a champion of codified law and of English law reforms. He advocated that any reforms in substantive law could not achieved till its structure is reformed through a process of analysis. Therefore, he preferred to divide jurisprudence into two categories- i) Expositorial or analytical & ii) Censorial. The former was concerned with the law as it is while the latter deals with ‘science of legislation’ that how a law ought to be. He referred natural law theory as ‘nothing but as phrase’ or ‘non-sense upon stilts’. He propounded the principle of ‘Utilitarianism’. According to this principle the aim of legislation should be carrying out of the principle of utility. He defined ‘Utility’ as a tendency of a things to prevent some evils and procure justice and good. In other words, the proper end of a legislation should be ‘greatest happiness of greatest number’. For justice, he held that it is a social happiness guaranteed by the social order. He expounded the concept of ‘positive law’ which commanded citizens to obey the law as it is or face legal sanctions in the event of its disobedience. He laid down four major goals to ensure happiness of greatest number

  • Subsistence

  • Abundance

  • Quality

  • Security for citizens


This theory also suffered from some demerits. Bentham in his theory, overestimate the power of legislation and ignore the individual choice and discretion in application of law. Also, this theory fails to balance individual interest with the interests of the community. He opined that exclusive power should be given to ruler to ensure happiness of society. But the results were reversed. The ruler started to restrict the individual freedom in economic sphere. Despite of having shortcoming in this theory, his contribution to the legal development can’t be denied. Bentham’s contribution was so great that his period is known as ‘Benthamite era’ in legal history of England.


John Austin (1790-1859):

His lecture was published under the title ‘province of jurisprudence Determined’ where he dealt with the sources and nature of law. He is considered to be the ‘father of English Jurisprudence’. According to him, law is an aggregate of rules set by man as politically superior to men as politically inferior subjects. This definition lays down precise boundaries within which jurisprudence is to work. He confined his study only to the positive law by which he meant ‘law properly so called’ which lack morals and other nation of natural law. He attributed four essentials of Positive law, namely- i) Command, ii) Sanction, iii) Duty, iv) Sovereignty. While distinguishing between positive law and positive morality he excluded the considerations of goodness and badness. He used to believe that law is a sovereign command carrying sanction for its disobedience. The party commanded and subjects are equally under a duty to obey it. He provided for three exception to this definition of law which can be given as:

  1. Declaratory or Explanatory laws

  2. Laws of repeal

  3. Laws of imperfect obligation

This analytical positivism has been criticized on following grounds:

  1. Customs are overlooked

  2. There is no place for judge-made law

  3. It treats international law a mere morality

  4. Law is not a command

  5. Inter-relationship between law and morality completely ignored

  6. It has universal application

  7. It tends to ignore the social aspect of law and psychological factors which secure its obedience.

Sir John Salmond (1862-1924):

He defined law as a body of principles recognized and applied by the state in the administration of justice in courts and it could include statutes, customs and judicial precedents. These views are criticized by the thinkers. It is argued that law serves many ends and by confining it only to the pursuit of justice, he has narrowed the fields of law. Also, the meaning of courts is not defined as such in his definition.

H.L.A. Hart:

His views were contrary to his predecessors but he favored analytical approach to law for a better understanding of it. According to him, law is a system of two types of rules, namely- Primary and Secondary. The former is duty-imposing while latter confer power and union of these two is the essence of law. His positivism explains the existence of law with reference to the rule of recognition whose binding force is depends upon its acceptance. He opined that law as it is actually laid down should be kept separate from the law as it ought to be. He was also agreed on having certain element of natural law for logical necessity for law and morality.


Hans Kelson (1881-1973):

For him, law is a ‘normative science’ which is based on cause and effect relationship. science of law deals with what law ought to be. It the ‘ought’ character which makes law as a normative science. His theory of law, commonly known as theory of Pure Science of law seeks to exclude all the metaphysical, ethical, moral and sociological elements. He opined that law must remain free from Social Sciences like sociology or history. Though he didn’t deny the value of these social sciences but he only wanted law as free from all these extra-legal and non-legal factors. According to Kelson, law and state are same. Likewise, there is no difference between public and private law.


One of most notable features of this theory is the idea of norms. He considers legal science as a pyramid of norms with Grundnorm (basic norm) at apex. The subordinate norms are controlled by the norms superior to them in an hierarchical order. According to him, a Dynamic system is one in which fresh norms are created on authority of basic norm. this system of norms are proceeds from downwards to upwards and finally closes at basic norm. for example- a statute is valid because it derives its validity from legislative body, the legislative body in its turn derives its authority from constitution. The constitution is the grundnorm here which is a result of socio-economic, political and other conditions and it is supposed to be valid in itself.


Some characteristics of this theory can be pointed out as below:

  1. This theory is aimed at reducing chaos and confusion created by the supporters of natural law philosophy.

  2. It deals with knowledge of what law is and it is not concerned about what law ought to be.

  3. It considers law as a normative science and not a natural science.

  4. It is a theory of norm no so much concerned with the effectiveness of the legal norm.

  5. It is a formal theory confined to a particular system of positive law as actually in operation.


This theory try a good attempt in keeping the law different from other branches of knowledge. But it suffered from many criticisms.

  1. This theory has no sociological foundation in it.

  2. It is impractical theory based on hypothetical consideration.

  3. This theory doesn’t recognize justice as an important element of law which is indeed not true.

  4. It fails to provide any practical solution for the conflicts arising out of different ideologies.

  5. It is not desirable to free law from politics and ideologies.

  6. In this theory Kelson attempted to break away with the traditional natural law on one hand and legal positivism on other hand.


He asserted that legal knowledge should be free from foreign elements. He refused to separate law from state and argued that law is nothing but a will of the state. He tried to establish an autonomous legal science on positivistic empirical foundations. Kelson’s contribution to legal theory is praiseworthy.

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