Analytical school of Jurisprudence is often referred to as ‘Austenian School’ or ‘Positivist School’. It is referred to as the positivist school because the exponents of the analytical school of jurisprudence are not concerned with the past or the future of law, but are only concerned with the law as it exists. It is popularly known as Austenian School because John Austin was the founder of this school. There are five schools of jurisprudence, but this article would be elucidating upon the analytical school of jurisprudence.
In order to understand the Analytical School of Jurisprudence, we must first make an attempt to understand what is meant by the term ‘jurisprudence’. The word ‘Jurisprudence’ is derived from ‘Juris Prudentia’. It is a Latin term that means science, study or knowledge of law. Austin defined jurisprudence as the philosophy of positive law. Austin pointed out that science of law means the law as it is and not as it ought to be. The meaning of jurisprudence has been changing over time and has been stirring controversy amongst some scholars. Irrespective of how one chooses to define it, one can understand it to mean the study of the science of law.
Purpose of Analytical School of Jurisprudence
The key idea behind the analytical school to deal with law as it is, i.e., the way it is existing in its present form. In Analytical school, law is regarded as the direction of the Sovereign. This school differs from a priori approach. Analytical School tries to examine and study the principles of law as they truly exist in the legal system. The Analytical School of Jurisprudence believes that law originates from the state and makes an attempt to define the relation of law with state.
History of Analytical School of Jurisprudence
Natural Law refers to the rules and principles which are supposed to have originated from some supreme source. Natural law is simply discovered by human beings; therefore, it must not be regarded as man made. Natural Law is considered to be eternal and is believed to have existed from the commencement of the creation of the world. Since the Natural School of Jurisprudence was prominent till the beginning of the 18th century, some writers believed that the principles of natural law should be held supreme and could override man made laws. Analytical school is considered to be a reaction against Natural school of jurisprudence.
Principles of Analytical School of Jurisprudence
Analytical school attempts to distinguish between law as it is and law as it ought to be. Although, Austin does not deny the success of moral factors in the creation of law, he disregards morals in his theory. Analytical Jurists believe that law is the product of human will. Therefore, the common approach is that, law is made by ‘someone’. Analytical jurists have a rigid opinion against ethics. Analytical jurists only focus on the positive law. They are concerned only with what is the pure fact of law.
Jeremy Bentham divided jurisprudence into expository and censorial jurisprudence. The former is concerned with law, it gives no regard to law’s moral or immoral character. On the contrary, the later deals with science of legislation. In 1782, he authored a book called ‘The Limits of Jurisprudence Defined’ which was published in 1985. In his view, law must not be made by the judges. He was a rigid opponent of the concept of laws being made by judges. He was a staunch advocate of law solely being made by the legislature. He said that only the legislature must possess the absolute power of making the laws. In his book, Bentham stated that the duty lied upon the state to provide utmost happiness along with maximum liberty. To put it another way, it is necessary to test all laws and examine if they are providing maximum happiness and liberty. This brings us to the principle of utility. Its lays emphasis on the Greatest Happiness of the Greatest Number.
Jeremy Bentham’s Principle of Utility gives rise to the concept of pain and pleasure. Utilitarianism is also known as the ‘Theory of Pain and Pleasure’ and ‘The Doctrine of Hedonism’. This principle recognizes the role of pain and pleasure in the life of humans. While pain could be understood to mean ‘all things that are bad or evil’, Pleasure simply denotes ‘everything that is good’. In order to measure pain, he came up with a ‘utilitarian calculus’. The utilitarian calculus gave 7 factors to calculate pain. The 7 factors include intention, duration, certainty, nearness, fecundity, purity and extent.
According to Bentham, happiness was always constantly evolving, its importance was impacted by the constant change in the social norms. According to Bentham, happiness of social order must be understood in the objective sense. It comprises of satisfaction of certain needs. He said that if the goal is to ensure the happiness of the community, security for the citizens, equality, subsistence and abundance must be ensured.
Unlike the sociological school of jurisprudence, Jeremy Bentham was not an opponent of Laissez-Faire. Laissez-Faire gives predominance to individual’s interest over society’s interest or the welfare of the state. Bentham propagated the freedom of human beings. According to him, only when every single individual enjoys his freedom, he would be the advocate or propagator of his own welfare. In consonance with Laissez-Faire, he meant men must be free with minimal interference of the state in economic activities of individuals.
Freidman criticized Bentham’s theory by pointing out certain loopholes in it. He said that amalgamated materialism and law. He also said that the theory fails to maintain equilibrium between the interests of individuals and society. Another general criticism of his theory would be that Laissez-Faire cannot be practiced in its entirety as some restrictions may be necessary.
John Austin was a British legal philosopher and reformer. He came up with the first systematic alternative to utilitarian approaches to law and natural law theories. John Austin, for the very first time regarded jurisprudence as the science of law in connection with the analysis of legal concepts, their exposition, examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organized society. The definition of law elucidated in his work, ‘The Province of Jurisprudence Determined’, put emphasis on law to be a species of command that tends to separate positive law from morality.
John Austin divided the law into positive law and positive morality. While he referred to the former as ‘laws properly so called’, he said that the later are merely ‘laws improperly so called’. He said that a law is a positive law when it comprises of primarily 3 elements. Those 3 elements are sanction, command and duty. The most suitable example of such a law would be the laws made by the parliament, as there lies a sanction, that is followed by a command and it becomes the citizen’s duty to abide by or follow it. Austin strictly disregarded customs to be laws. Since failure to abide by a law is usually followed by some kind of punishment or fine, people tend to abide by it.
He believed that an attempt must be made to analyse positive law by applying logic instead of merely relying on its ethical significance. John Austin disregarded social factors, he focused on the logic. He pointed out that positive law comprises both explicit and implicit orders from superiority. The law is a reflection of the sovereign’s wishes and its foundation lies upon the sovereign’s authority. The law is considered in the abstract form by outriding moral and ethics so that it does not hinder the application of law.
Austin was of the opinion that laws are some kinds of rules that establish and help differentiate right from wrong. In Austin’s words, “Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” In simple words, it is the political superior who gets to lay down these rules and the common people who are politically inferior to him need to follow those rules. His theory regarded law as the command of the sovereign. Therefore, a rule not given by the sovereign i.e., not commanded and sanctioned by the sovereign will not be referred to as ‘law’.
The main loophole in Austin’s theory was that he disregarded customs with respect to law. Customs form an integral part of human life therefore ignoring customs, which at times, even regulates a human’s conduct and mannerism, would not be entirely right. This brings us to the next drawback i.e., the relation between law and morality. It is a general opinion that morals and laws are interconnected as morals provide substance or strength to law.
The next issue with his theory would be in its applicability. In terms of its applicability, it is quite restrictive. It can be said that it will only be applicable to a unitary polity that finds its basis in parliamentary sovereignty. Therefore, in a country like India that upholds constitutional sovereignty, this theory would not be of much use. Lastly, just like Bentham, Austin does not recognize judiciary as a law-making agency and neglected the way judiciary applied precedents.
Hans Kelson was an Austrian jurist and philosopher. He supported the Analytical school of jurisprudence. He propounded the pure theory of law. He said that the law must be free from social sciences. The main aim of this theory was to reduce chaos and multiplicity and to bring unity. Kelson regarded law as an order of the human behaviour. Kelson did not deny the value of social sciences. His only intention was to make law free from all additional non-legal factors. In Kelson’s view, there lied no difference between law and state, they are the same. Hence, no distinction between public and private law.
Kelson was of the view that a dynamic system is one where new norms derive authority from basic norms. It is a downwards to upwards system of norms which ends at basic norm/grundnorm. An Act is deemed to be valid since it derives its validity from a legislative body. The legislative body derives its authority from the constitution. The constitution is the basic norm which is a result of various conditions like socio-economic, political, etc and is valid per se. This theory regards law as a normative science.
Critics of his theory have argued that it has no sociological foundation and regarded it to be an impractical theory based on hypothetical consideration. It is also believed that it would not be desirable to free law from politics and ideologies. This theory doesn’t recognize justice as an important element of law which is indeed not true. He wanted legal knowledge to 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 made an attempt to form an autonomous legal science on positivistic empirical foundations. Some jurists disregarded his grundnorm concept.
Unlike other jurists, Salmond said that law refers to the law of land that is administered by the courts. Salmond said that “Jurisprudence is the science of civil law”. This would include judicial precedents, statutes and customs. Salmond said that only if laws are formulated and accepted by the courts, they could be considered to be supreme. Furthermore, he says that laws can only manage to regulate the external aspect of human behaviour. Laws cannot possibly completely regulate the inner conscience and beliefs of human beings. Since, Salmond neglects the parts of law that are not formulated by courts, it can be said that his definition is applicable to case laws.
Holland followed analytical approach to jurisprudence given by Austin and Bentham. But he deviates from positive law as given by Austin. He does not regard all the laws to be orders from a supreme authority. He simply believes that laws are rules of external human action that are merely implemented by a sovereign that possesses political power.
It can be safely said that positivism forms the crux of the Analytical School of Jurisprudence. This school lays emphasis on legislation as the source of law. It made an attempt to bring about precision in legal thinking.
Analytical School of Jurisprudence – Notes for Law Students (legalbites.in)
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