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Ubi Civitas Ibi Lex: A Study of Analytical School of Jurisprudence

Jurisprudence is the science of law. Various schools of thought has emerged in the study of jurisprudence. Salmon preferred three schools: Analytical(dogmatic), Historical and Ethical(legal exposition) Among such, one of the main school of thought is analytical or positive school of thought. It is that school which takes a positive approach to the legal problems of the society. It lays its foundation on the notion of things that are, and not things that ought to be. The whole fabric of law is based on the essentials of State sovereignty and the administration of justice. This school occupies a predominant position in England. The main propounders of this school are Bentham, Austin, Hart, Kelsen, Salmond etc.

1. Bentham’s concept of law: He can be said to be the founder of positive school of jurisprudence. Though there is a belief that Austin is the father, but Austin owes a much to Bentham. He is regarded as the champion of codified law. He has differentiated between expositorial jurisprudence (what the law ought to be) from censorial jurisprudence( what the law is). He supported the principle of Laissez Faire and expounded the concept of utilitarianism. To him, the fundamental principle of law is to favor equality, maintain security, produce abundance etc.

2. Austin’s concept of law: He confined his law only to Jus positivism( it means law simply and strictly so called: law set by political superiors to political inferiors.) He is considered to be father of English jurisprudence. To him, law consists of three elements viz. command, sanction and sovereign. He opines that law is the command of the sovereign. There is an implied threat of the sanction if the command is not obeyed. Command is an expression of a wish by a person or body of persons requiring another person shall do or forbear from doing or refusing to do something. A command may be particular or general command. While a particular command is directed to a particular person, a general command is directed to a body of persons.

3. Hart’s concept of law: He is regarded as the contemporary representative of the English school of jurisprudence of positive school. He has criticized the Austin’s concept of jurisprudence in his book, “ The concept of Law.” To him, “ Law consists of rules which are of broad application and non optional in character, but which are at the same time amenable to formalization, legislation and adjudication. To him,, law is a system of social rules which acquire the character of legal rules. According to him, law is synonomous to legal system. Obligation, to him, is similar to a duty. And, law is concerned with obligation and not coercion.  He proposed two types of rules: primary rule( It lays down the standards of behavior or that which imposes duties) and secondary rule( It is that rule by which the primary rules may be introduced, eliminated or varied.) The union of primary and secondary rules forms the basic core of a legal system. Hart views “laws as a one way protection of authority, from the officials down and constructs a theory of law which gives the central role to the official behavior.”

4. Kelsen’s concept of law: According to Kelsen, “law is an order if human behavior.” He proposed a pure theory of law and is logically self supporting. He opined, “ Laws are ought propositions.” Law does not attempt to describe what actually occurs but only prescribe certain rules. The law is a system of behaviourial norms which can be traced back to some grundnorm( basic norm) from which they derive their existence. The grundnorm must be efficacious or else it will result into revolution. Where there is a written Constitution, the grundnorm will be that the Constitution must be obeyed. Where there is no Constitution, one must look into the social behavior of the grundnorm. While in international law the quintessential grundnorm is pacta sunt servanda( treaty obligations are binding upon the parties.)

Hence, what can be inferred from the positive school of law is that the positivists look into the practical aspect of the law, rather than being concentrated on theoretical aspects.

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Subham Chatterjee

Subham Chatterjee is a penultimate year law student from Tezpur Law College, Assam. Apart from excelling in academics, he has presented papers in national seminars, contributed chapters in edited books published internationally. He also brought accolades by winning Moot Court Competition, Client counselling competition and Quiz Competitions apart from participating in various competitions. He has recently authored an ISBN book 'Land Laws of Assam: A Reference Book for the students of Gauhati University" He is also a trained Hindustani Classical (Vocal) and Rabindra Sangeet singer.

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