Analytical Positivism

Introduction

Analytical school of jurisprudence popularly known as the positive school of Law was founded by John Austin (popularly known as the father of English jurisprudence), supported by great thinkers such as Bentham, Holland, hart, and Salmond and this is a very popular school of Law popularized by the ideas of John Austin. People associated with this school of law are neither concerned with the past and more with the future. They are only concerned about the law as it is existing in its current form.

The movement of positivism started way back in the 19th century when this word was coined by Auguste Comte a French thinker. The main bases on this movement were practically based upon:

a)     the analytical positivism by Jon Austin himself and

b)     the theory of utility by Jeremy Bentham

John Austin

The analytical positivism by John Austin defined law as a rule laid down by the intelligent for the governance of the people who have power over them having said that he categorizes law into two phases the improper and proper one

Austin took this classification further to divide the proper law into

a)    The last set for a man by God and

b)    Laws for men by the man

In the second case, the human law was divided into

a)     positive morality and

b)    positive law

Austin said that only those laws are the proper subject matter of jurisprudence which are set by political superiors. That is why the man acting in person wins of legal rights conferred by the superior. And not by himself acting as a political superior. According to him law is the immediate command of the sovereign backed by sanctions; enforceable by actions for the violation of a legal duty. Instead of all this, the whole idea of John Austin can be said as a command theory. Which is centered around a command by a sovereign followed by a sanction

Criticism

There are various criticisms to the trilogy of Austin for it is sad; that customs are ignored in his command theory. Customs are always there to regulate the conduct of humans. Therefore form an intricate part of the study of jurisprudence and should have been included in the study. Secondly the Austin’s definition of law fails to cover the laws of permissive characters; which conform wholly privileges such as the Wells act which mentions the method of joining the testamentary document.

Furthermore, one of the most criticized aspects of the common theory by Austin is that; there has been no place for a law by judges employing this creativity. The objectivity and the function of the judiciary are limited. As such no concept of precedents are apply in his theory. People have also criticized Austin for treating international laws morality however Austin viewed international law as something without sanctions and thus playing little to no role in the governance of a state.

Lastly people believe that sanction is not the only means to induce obedience amongst the population he ignores the other factors such as fear of society because of inner conscience et cetera which are helpful to induce a person to obedience.

Jeremy Bentham

Bentham started a whole new session in England thus making him popularly known or considered as the founder of positivism. Bentham is owe by Austin with people even believing that Austin’s prepositions are mere paraphrasing of Bentham’s theory and should be consider as the father of analytical positivism and not John Austin. Also Bentham can rightly be say to be a logician and a Jurist. Jeremy Bentham’s idea how are usually center around the idea of law and legal reforms alongside with focus on the idea of individualism as mention by Dicey in his book law and public opinion Jeremy Bentham was also the author of the famous book the ‘limits of jurisprudence define’ questioning the penal and civil laws.

Bentham advocated that there can be no reform in substantive law without considerable reform in structure. Employing this an imperative theory of law was advocate by him where sovereignty and commands were the key concepts. This idea came to be know as the utilitarian individualism by Bentham. He further say that every law should be consider in the light of

a)    Source – law has to be the will of the sovereign or the supreme power

b)    Subject-people

c)    Object- forbearance

d)    Aspect – sanctioned by nature

e)    Force – necessary for effect

f)    Expression – willingness

g)    Extent

Bentham finally believed that all the source of law should be from a sovereign who issues laws personally or adopts in the previously issued laws being a furious supporter of individual individualism he believes that the only purpose of the law is to set the individual free from all types of bondages  

The idea of individualism by Jeremy Bentham

This idea is based upon the principle of ‘laissez-Faire’ essentially meaning minimum interference by the state in economic activities thus essentially ensuring in the welfare and happiness of the society according to vent them it is the sole purpose of the law to implement (Pain and pleasure theory).

Criticisms Against Jeremy Bentham

The theory produced by Jeremy Bentham is criticized basically on the points that he failed to understand that amalgamation of materialism with ideas is not correct thus failing to balance the interest of the individual with the overall interest of the community. It was also believed that the concept of pain and pleasure theory is not the last test of the law that is it is not the ultimate goal of all legislations.

Conclusion

Finally, it has always been seen that in our society or a state the concept of Laissez-Faire is not complete that is individual freedom is not provided to everyone because of the existing class inequalities.