Analytical School of Jurisprudence

Introduction:

Jurisprudence is all about knowing the meaning of law and understanding the nature of law.

Different jurists have used different approaches to give the meaning of law because each of the jurists has a different view or perspective towards the idea of law. Some of them consider law as a science, some say it is a philosophy and others say it is both.

These different ideas of law by jurists are classified into different groups as schools where it is separated with thoughts of the jurists in which it includes views like the content of the law, idea of law, functions of it, historical evolution of law, the purpose of it and so on. The important objective of these schools to be formed is for a better understanding of law although each of them uses a different kind of perspective in defining law.

Schools of Jurisprudence[1]

1. Philosophical school or Natural law Approach
2. Analytical or imperative school
3. Historical school
4. Sociological school
5. Comparative school

These schools give a better understanding of the evolution of the idea of law in the thoughts of humans and changing perspective of human beings on the concept of law. Each of the above schools defines law in accordance with growth and change in human thoughts and legal philosophy. Studying the schools of jurisprudence gives depth knowledge about;

1.  How the law was defined by each school?
2.  How it was treated i.e whether in accordance with growth or evolution of law?
3. What was the approach used while defining the law of each school?

The analytical school of jurisprudence is one of the most renowned contributions of Austin. It, therefore, explains law with reference to nature, purpose, characteristic, and function of the same. This school describes the history and philosophy of motion of emerging human thoughts on the aspect of law.

Analytical Positivism[2]

Analytical positivism[3] is the most important school of thought in jurisprudence.

The positivist movement had been started at the beginning of the 19^th decade because in this period of time the natural theory of law was not considered as relevant due to the influence of the scientific method on the concept of social sciences including jurisprudence.

Jurists of the school such as Austin, Hart, and others analyzed the same sense of law i.e positive law. They did not rely on the concept of ‘law ought to be’ instead considered the concept of ‘law as it is[4]’ existing. They also considered that law contains no relation with moral principles[5].

The jurists were named ‘positivists’ because this school was known as ‘positivist school’.

Different positivists had the same objective and perspective in their thoughts where few basic assumptions are followed by them which include;

1. Sovereign or Grundnorm – As the law created by the authority.
2. Relied on the ‘law as it is’ not on ‘the law ought to be’ – ignored morality[6] and natural law.
3. Determined and encouraged the concept of sanction – sanction which was substantive before the enforcement of laws.

Analytical School of Jurisprudence[7]

The analytical school of jurisprudence mainly deals with the law as it is or with the existing law. It talks about the importance of relationships with the state. Austin has differentiated law as it is and the law ought to be in nature, which was very necessary to find the actual law, this was further got famous as positive law. The positive law dealt which the actual idea and excluded the aid of imaginary and non-existing notions from the law. This is called Analytical Jurisprudence.

Bentham and Austin played a eminent role in contributing to the positive law.

The analytical school has been called from different names. Some of them are given below with the reasons for the same;

1. Analytical school: Systematic analysis of legal aspects
2. Austinian school: Austin is the Father of Analytical School
3. Bentham school: Positivist
4. Positive school: It studies the law as it is and not how it must be
5. Teleological school: It involves the general explanation of phenomena accordance to /purpose they serve and not by the cause from which it has been arise
6. Imperative school: It treats law as a command by the sovereign backed by the sanction
7. English school: Since Austin i.e father of the analytical school is from the state of England.

Analytical school is formed by different important authors such as Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hart, Hoffield, Sheldon, Dr. C.K. Allen, William, and Markby.

Bentham (1748-1832)[8]

Bentham has a major contribution towards the analytical school. Thus, his era was called the “Benthamite era”. Austin is known as the Father of Analytical Jurisprudence but these concepts were already propounded by Bentham. Some of his contributions are mentioned below;

1. According to Bentham, legal theory is a science of investigation which should include the process of experimenting and reasoning.
2. Bentham has contributed very important aspect i.e propounded legal positivism for the first time in the modern era.
3. The famous book of Bentham is “Limits of Jurisprudence Defined”.
4. Bentham had defined law with the help of two important aspects such as;
   • Law is “Happiness is the Greatest Good”: According to Bentham, the laws framed must promote pleasure and decrease any kind of pain to human beings.
   • Law is the command of the sovereign:
     The concept of sovereignty came into existence by Bentham before Austin would compose it.
     Bentham says the law is the command given by the sovereign.
     These two important concepts were explained in his famous book Limits of Jurisprudence Defined which was further adapted by Jhon Austin in his view towards law.
5. Bentham[9] observed that every law is considered on basis of different aspects;
   • Source – law is the will of the sovereign.
   • Subjects – law is related to persons or things.
   • Objects – law is a real entity because the law includes acts, situations, and forbearance.
   • Extent – law covers the are of which acts are terminated.
   • Aspect – the law must be a part of either directive, sanction, or incitative.
   • Force of law, sanction or incitative part – law dependency on motivations such as political, moral, religious and on other hand for being obedient it comprises of punishments and rewards.
   • Remedial Appendages – sanctions are provided by their subsidiary laws with the objective of curing evil consequences or preventing the future occurrence of the same.
   • Expression – when expressions are found to be complete the judge can adopt a literal interpretation of law whereas on the other hand if expressions are found to be incomplete then the judge may adopt liberal interpretation.
6. Bentham’s Philosophy of Individualism
   The legal philosophy of Bentham is called “Individualism” because he was an individualist and propounded that the law is to be made for the emancipation of the individuals and restraining on their freedom.
7. Bentham’s Utilitarianism
   The principle of utility or the principle of utilitarianism is discussed in “Introduction to the Principles of Morals and Legislation” and the same became famous legislative reforms around 1830.
   According to Bentham’s utilitarianism, the government ought to do that act that will bring about the greatest happiness (pleasure) for the greatest number of persons (the community). The proper end to the law is only by promoting the greatest happiness.
   He has criticized the method of law-making, corruption and inefficient administration of justice, and restraints on the liberty of individuals.
   Pleasure and pain can be quantified by the Utilitarian calculus;
   • Intensity
   • Duration
   • Certainty
   • Nearness
   • Fecundity
   • Purity
   • Extent

Bentham’s Criticism[10]

1.  His theory ignores balancing the interest of the individual with the community’s interest.
2. His principle of utilitarianism says about pain and pleasure are the final and ultimate test of the adequacy of law but they cannot be defined as the final test.
3. His theory was in the form of Laissez-Faire policy which harms the individuals in the society majorly on poor section people.
4. Sole importance given on pleasure which is quantified is not a proper decision.

Austin (1790 – 1859)[11]

John Austin is the “Father of Analytical School”. He dealt with the law as it is (positive law) and exclude the law ought to be. His positive law is determined based on four important elements such as – command, duty, sanction, and sovereignty.

His famous book is “The Province of Jurisprudence Determined”.

His contribution to jurisprudence is remarkable. Some of them are mentioned below;

1. Austin definition of Law: “Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power on him”.
2. Austin theory of Imperative Law[12]
   Austin separated law as improperly so-called and law properly so-called.
   He encourages positive law only because he is a positivist.
   He recognized that law can be set by both God (divine law) or by men to men, where law set by God is regarded as ambiguous and misleading according to him and on the other hand laws set by men to men is of three types;
   • Laws set by political superiors to their inferiors – law properly so-called.
   • Laws set by men who are not political superiors – positive morality.
3. Austin theory of sovereignty[13]
   “The command of sovereign issued to his subjects or inferiors to follow a particular course of conduct and he who fails to do so will be liable to face the adverse consequences such as punishments for the same”.
   Here, there are three important aspects to be remembered i.e;
   • Command means the particular and general command by the superior to the inferior of the state.
   • Duty means the inferior must oblige to the command given by their superior.
   • Sovereign means the authority responsible to command the people.
   • Punishment means disobedience towards the command of a superior.

Austin’s Criticism[14]

1. Austin is diffusive and repetitive and there is a lot of confusion created by his thoughts.
2. Hart though being an Austinian criticized his separation of law and morality, according to him the law possesses some extent of morality and named it as ‘minimal content of natural law’.
3. Buckland criticized Austin’s thought on ‘law is law since it is made by the sovereign and the sovereign is sovereign because he makes the law’ as this circular reasoning is not reasoning at all.
4. His theory of sovereignty is criticized as it is not a test of reality.
5. If the theory of sovereignty is applied in practicality it does not satisfy the reality.

Holland (1835-1928)[15]

Holland is a follower of Austin. He followed the concept of the analytical approach of the study of law which is thoughts of Austin and the same was carried further by him. He rejected Austin’s thoughts on ‘Particular Jurisprudence’ by stressing that if the jurisprudence is science then it is always general and universal but not particular.

His famous book is “The Elements of Jurisprudence”.

According to Holland, Jurisprudence is “the formal science of that relation of mankind which is generally recognized as having legal consequences – the formal science of positive law”.

The important terms to be remembered here is:

1. Formal: The jurisprudence concerns the human relation which is governed by the rules of law.
2. Positive Law: Holland deals with the law as it is or existing law and does not concern with the law ought to be, which is the same as the concept of Austin.

Holland’s Criticism[16]

1. Buckland criticized the concept of distinction of the word ‘particular’ and ‘general’ in the particular jurisprudence concept of Austin by saying it is not a correct separation.
2. Buckland also said that law is not a mechanical structure like geological deposits but the law is development or growth and its true analogy is with biology.
3. Salmond, Jethrow, Brown, and Gray also criticized Holland for his rejection of ‘particular jurisprudence’ and agreed with Austin on this concept.
4. Dias and Hughes observed Holland’s jurisprudence with geology is erroneous because according to the law is a social institution and which differs its structure upon its objectives, traditions, and environment.

Salmond (1862 – 1924)[17]

Salmond is a legal positivist and belongs to an analytical school. He says jurisprudence is a science as same in the eyes of Austin and Holland. He has defined law in a unique way which is different when it is compared to Austin.

Salmon’s famous book is “Jurisprudence or Theory of the law”.

Salmond’s Contribution to the Analytical school of jurisprudence

1. According to Salmond, the law is “the body of principles recognized and applied by the state in the administration of justice”. It means the law is rules which are acted by the courts of justice. The final and true test of the adequacy of law is defined by the enforceability of law in the courts of justice.
2. According to Salmond, Jurisprudence is “the science of first principles of the civil law”.
   The civil law here is the law that is applied by the administration in the court of justice and it is the first principle and the final test of the adequacy of law.
3. Salmond’s definition of law has brought a drastic change in the thoughts of analytical positivists.
4. Inspired by him many realist jurists have considered law as it is and not law which ought to be.

Salmond’s Criticism

1. Vinogradoff criticized Salmond’s definition of law, according to his law is to be formulated precisely by applying it in a court of justice.
2. Critiques also said that the definition is itself defective because on their thoughts law is logically subsequent to the justice of administration.
3. The definition of law is vitiated because when the rule has existed for the purpose of applying it in the court of justice.
4. The purpose of the law is not only justice but it also must be accepted universally.
5. He has also narrowed the field of law according to the critiques.

Hans Kelsen (1881 – 1973)[18]

Kelsen has contributed the pure theory of law to the analytical school of jurisprudence.

His famous book is “The Pure Theory of Law”.

He also accepted the concept of law as normative in nature and not a natural science.

His contributions are;

1. Pure Theory of Law or Vienna School[19]
   Kelsen defines law as “the body of norms which stipulates sanction”.
   Here, the norm is a pattern or model, the definition says that a kind of directive by which a certain act is permitted or authorized or commanded. His theory says to be pure because he eliminates alien elements which make the structure of the legal system improper. According to him, the law must be positive law.
2. According to Kelsen, Jurisprudence is “the study of a hierarchy of norms, the validity of each norm depending on that of a superior norm ‘Grund Norm’. 
   His definition executes the relationship between the Grund norm and all other norms. For him norm is a ‘rule of conduct’ and grund norm is the superior norm. The grund norm delegates authority to inferior norms which derives their validity from the norms superior to themselves.
   The validity of other inferior norms can be defined by testing against grund norm.

Kelsen’s Criticism

1. The concept of Grundnorm is vague and creates confusion.
2. His theory of him did not give importance to his practicality of it.
3. He directly ignored morality and natural law.
4. As he says his theory is pure and excludes improper elements in it but the critiques say that it is not possible to maintain purity.

Conclusion

Analytical school of law deals with the law however it exists and not how it must be. The concept of sovereignty played a vital role in the aspect of law. The jurists have been given different interpretation of laws which describes the emerging changes in the thoughts of humans on legal philosophy.

When it is applied to the modern era, it helps in forming a basis for the upcoming theories of law which makes the reader understand the same in a simpler manner.

Therefore, we can understand that the analytical school has made a remarkable triumph in the positivist era. The positivists have contributed their most renowned works on the same. Since, Austin, Hart, and other jurists have played a major role in the development of this school from without which the school would not be expected to grow and spread to this extent.

Thus, it can be said as “Positivists are the soul of the analytical school and their contribution is its lifeblood”.

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References:

[1] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 35 & 36 (4^th ed. 2002).

[2] Jonathan Brett, “Legal Positivism: An Analysis” (2011), Undergraduate Honors Capstone Project 79 (8^th Sep, 2021, 10:00). https://digitalcommons.usu.edu/honors/79

[3] Pragalbh Bharadwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham”, Vol. 1. Issue 6 Int. J. Law. Leg 1, 3 & 4 (2014).

[4] H.L.A. Hart, “The Concept of Law” 34 (2^nd ed. 1961).

[5] H.L.A. Hart, “Essays in Jurisprudence and Philosophy” 112 (1^st ed. 1983).

[6] H.L.A. Hart, “Law, Liberty and Morality” 176 (1963).

[7] Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence”, Vol. 55 Harv. L. Rev. 44, 44-49 (1941).

[8] Pragalbh Bharadwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham”, Vol. 1. Issue 6 Int. J. Law. Leg 1, 9 & 10 (2014).

[9] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 51 & 52 (4^th ed. 2002).

[10] Pragalbh Bharadwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham”, Vol. 1. Issue 6 Int. J. Law. Leg 1, 12 (2014).

[11] Pragalbh Bharadwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham”, Vol. 1. Issue 6 Int. J. Law. Leg 1, 6-8 (2014).

[12]Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 53 (4^th ed. 2002).

[13] Ibid 55.

[14] Pragalbh Bharadwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham”, Vol. 1. Issue 6 Int. J. Law. Leg 1, 12 (2014).

[15] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 9 (4^th ed. 2002).

[16] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 10 (4^th ed. 2002).

[17] id.

[18] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 57 (4^th ed. 2002).

[19] Ibid 59.