Analytical School Of Jurisprudence – Notes


Analytical school of jurisprudence is known by different names like positive school or positivism law because the exponents of this school are concerned neither with the past nor with the future but with the law as it exists i.e. law as it is. John Austin was the founder of the analytical school of jurisprudence; hence it is also known as Austinian School. The chief supporter of this school is Bentham Austin, Holland, Salmond, Hart and others. But the name positivism was invented by a French thinker Auguste Compte. In the words of Prof. Dias, the positivist movement started at the beginning of the 19th century. Bentham’s theory of utility and Austin’s analytical positivism are two important bases of the analytical school of jurisprudence. Austin is known as the father of English Jurisprudence. He applied the analytical method in his work so the analytical school of jurisprudence founded by him is called by different names like analytical, positivism or analytical-positivism.

• Founder of the analytical school of jurisprudence– Bentham.
• Father of the analytical school of jurisprudence- Austin.
• Word positivism was given by Auguste Compte.

Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Austin defines law in two parts: Proper Law and Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to man and Secondly, laws made by man for man.
Human law is divided into two heads: Positive Law and Positive Morality. These positive laws are set by political superiors as such or set by the man not acting as political superiors but acting in pursuance of legal rights conferred by the political superiors. Only these laws are the proper subject matter of jurisprudence.
According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors.

The basic features of Command theory are:
• Command (by political superiors).
• Duty (imposing duty on political inferiors).
• Sanction.

Exceptions of Theory of Austin:
Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law. Austin, though accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception. They are:
1. Declaratory/Explanatory laws: They’re not commands because they are already in existence and are passed only to explain the law which is already enforced.
2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command.
3. Law of Imperfect obligations: They’re not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement.

Austin’s trilogy implicit in the concept of law has invoked criticism.
1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human beings and therefore, customs should also be included in the study of jurisprudence but Austin ignored them.
2. Law conferring privileges: The law which is pure of permissive character and confers wholly privileges such as ‘The Wills Act’ which lays down the method of joining testamentary document is not covered by Austin’s definition of law.
3. No place for judge-made law: Austin avoids the creative function of judiciary like applying of the precedents and in the interpretation of laws.
4. Austin theory treats international law as morality: Austin doesn’t treat international law as it is lacking sanction and this view of Austin neglects the increasing role of international law in achieving world peace.
5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in modern progressive democracies, the law is nothing but an expression of the general will of the people, therefore the idea of command doesn’t apply in present systems.
6. The interrelation between law and morality is completely ignored: The greatest shortcoming of Austin’s theory is that it completely ignores the relationship between law and morality and law can never be completely divorced from morals and ethics.
7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction who alone governs the people or induce the persons to obey the law is not correct. There are so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to induce a person to obey the law.

Apart from these criticisms, Austin’s contribution of law has been greatly admired by other thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and its clear expression of separation law and morality. Thus, we can say that Austin made a great contribution to the law of Jurisprudence.

Jeremy Bentham (1748-1832):
Bentham started a new era in the history of legal thought in England. He is considered to be the founder of positivism. In the modern sense of the term, it has been rightly said that Austin owes much to Bentham and on many points, his prepositions are mere paraphrasing of Bentham’s theory. Bentham’s classic work reveals that he should be considered the father of analytical positivism and not John Austin as it is commonly believed. And Bentham was the son of wealthy London attorney. His genes were of the rarest quality. He was a talented person having the capacity and acumen of a jurist and a logician. Dicey in his book ‘Law and Public opinion’ in the 19th century have sketched Bentham’s ideas about individualism, law and legal reforms which have affected the growth of English law in a positive direction. Bentham in his book ‘An introduction to the principle of Moral and Legislation’, he was moved to ask questions about the penal and civil code. It was published for the first time in 1995 as ‘The limits of Jurisprudence defined’.

A revised edition was published in-laws under the editorship of Prof. Hart Bentham who was a tireless campaign of reform and insisted that prior to reform there has to be a classification of law as it is. He advocated that there should be no reform in substantive law without reforming its structure through a process of analysis. Like Austin’s theory, Bentham advocated an imperative theory of law in which the key concepts are “sovereignty and command”. On one hand, Austin’s sovereign is assumed as an unlimitable or indivisible entity but Bentham’s sovereign is not like that and he accepts the divided and partial sovereignty with some legal restrictions imposed on him.

Bentham theory is called “Utilitarian Individualism”.
Bentham defined law as ‘an assemblage of signs, 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.’ He believed that every law may be considered in the light of eight different as:
• Source- law is the will of the sovereign.
• Subject- person or thing.
• Object- act, situation, forbearance.
• Extent- law covers a portion of land on which act is done.
• Aspect- may be directive or sanctioned.
• Force- to produce the effect.
• Remedial state appendages- something attached with the state.
• Expression- of will.

So, the source of law is the will of the sovereign who may concede laws which he personally issues as law or adopts previously issued laws by the former sovereign.
Bentham was the supporters of individuals and believed that the function of law is to make the individuals free from all the bondage and restrictions. He favored the economic principle of “Laissez Faire” which means minimum interference of the state in the economic activities of the individual. Once the individual is free, they will be looking after their own welfare.

Based on the principle of ‘Laissez-Faire’ means minimum interference of the state in the economic activities of the individual. And this should be resulting in the happiness and welfare of society.
According to Bentham, the purpose of the law is to bring pleasure and avoid pain (Pain and Pleasure theory) and the legislation came to an end on the greatest happiness of the greatest number.
According to this theory, the right aim of the legislation is to carry out the principle of utility. The legislation developed the law on the basis of the utility of individuals.

Bentham defines it in two terms:
• To provide pleasure property/tendency of a thing, to provide some pleasure, benefits, advantages, happiness.
• To prevent pain, to prevent the happening of mischief, pain, evil or unhappiness.

The utility is based on the greatest number of happiness of the greatest number (maximum happiness to the maximum number of people). That’s why this theory is also known as “greatest happiness principle”, which means any law is good/bad depends upon general happiness of the majority of the population. When we conclude Bentham’s theory or when we co-relate these two terms, it’s clear that the interest of the community is attached with the interest of the individuals. Society is just a collection of individual and the interest of an individual is related to the interest of society.

The main function of Bentham’s theory:
Bentham desired to ensure the happiness of the community by attaining four major goals:
• To provide substance.
• To produce fullness (abundance).
• To favor equality.
• To maintain security.

Criticism against Bentham:
The weakness of Bentham theory are as follows:
1. According to Friedman; Bentham’s theory mainly suffers from two weaknesses:
• Bentham mingled materialism with ideas.
• His theory fails to balance the individual interest with the interest of the community.
2. The main concept of pleasure and pain is not the final test of the adequacy of law or we can only say they’re not the ultimate goal of law or legislation.
3. Bentham theory states that the interest of an unlimited number of individuals shall be contributed to the interest of the community but in practice, because of the inequality it is not possible.
4. The concept of “Laissez Faire” which provides a complete framework of freedom to the individuals and provide them the opportunities for development was not completely right and even in the later time ‘legislation was used to restrict individuals in economic matters’.

1. Bentham’s contribution to the legal theory and legislation is so much that his era is known as “Benthanite Era” in the legal history of England. He introduced legal positivism and treated the study of law as a science of investigation through scientific methods of experiments and reasoning. This philosophy that “justice is nothing but social happiness or the happiness of the majority of people” seems like a great moral of ideal for the welfare of states.
2. He agreed with Kelson who said absolute justice is an irrational ideal, an illusion- one of the eternal illusions of mankind. Bentham’s perception of justice is based on the system of values i.e. morals. The individuals living in society have to conform to the set values or norms and rationalize their conduct/behavior accordingly.
3. Bentham defined law as an “assemblage of signs declarative of a violation conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons; who in the case in question are/are supposed to be subject of his power.
4. Expression- where the expression of law is completely in unequivocal terms, the judge must adopt liberal interpretation. It is only where the expression of law is incomplete that the judge may resort to liberal interpretation.

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