ANALYTICAL POSITIVISM (BENTHAM, AUSTIN, HART, KELSEN)

Legal positivism is the most powerful school of thought in jurisprudence. The positivist
movement began at the beginning of the 19th century. The Natural law school predominated the
juristic thought up to that time. Principles of Natural law were considered supreme and according
to some writers, could override the man-made law. The analytical school was a reaction against
the airy assumptions of natural law. In fact, it was because of vagueness and ambiguity of natural
law principles that was instrumental in giving birth to positivist philosophy. Further, the progress
in the field of science and acceptance of a posteriori approach too played an important role in
this regard.

Analytical positivism is mainly associated with Positivism, the approach to law which concerns
itself with positive law i.e., legal system and rules actually in force distinct from ideals systems
or law which should be.

Also called

1. Imperative School- as the exponents of this school treat law as a command emanating
from the sovereign, namely, the State.( C.K.Allen terms it as Imperative school)
2. Positive school- as the main emphasis is on positive law enacted by the State or the
Sovereign distinct from ideals systems or law which should be. The term 'positivism'
was invented by Auguste Comte, a French thinker.
3. Austinian School- as John Austin is considered to be the chief exponent.

Features of Analytical Positivism:

1. Disregarded a priori method of studying law and instead emphasized on analytical and
observation based study of law.
2. It regards law as a closed system of pure facts from which all norms and values are
excluded.
3. The purpose of analytical jurisprudence is to analyse the first principles of law without
reference either to their historical origin or development or their validity.
4. 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.
5. The significance of analytical jurisprudence lies in the fact that it brought about precision
in legal thinking.

EXPONENTS

1. JEREMY BENTHAM:

Jeremy Bentham can be said to be the founder of the Analytical school. He rejected the
hypothetical assumptions of natural law and expounded the principle of utility with scientific
precision. His work was for the first time published in 1945 as ‘The limits of Jurisprudence
defined’. Bentham who was a tireless campaigner of reforms, insisted that prior to reforms, there
has to be a classification of law. He divided jurisprudence into expository and censorial. The
former deals with the law as it is while the latter deals with the law as it ought to be. Bentham’s
analysis of censorial jurisprudence is indicative of the fact that the impact of natural law had not
completely disappeared that’s why he talked of utility. Bentham advocated an imperative theory
of law in which the key concepts are “sovereignty and command”.

Bentham utilitarianism rejected the dogma of natural rights. He regarded the natural rights as
‘rhetorical nonsense upon stilt'. Rights are created not by nature, but by law (men made law).
Need and not the contract, is the basis of state. People obey law because it aims at four ends,
viz., security, substance, abundance and equality. Government exists because they promote
happiness of the people, but not because of any social contract.

Bentham’s theory is called “Utilitarian Individualism”.

Bentham defined law as “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.” He believed that every law may be considered in the light of:

1. Source- law is the will of the sovereign.

2. Subject- person or thing.

3. Object- act, situation, forbearance.

4. Extent- law covers a portion of land on which act is done.

5. Aspect- may be directive or sanctioned.

6. Force- to produce the effect.

7. Remedial state appendages- something attached with the state.

8. Expression- of will.

According to Bentham, the purpose of the law is to bring pleasure and avoid pain (Pain and
Pleasure theory).According to this theory, the right aim of the legislation is to carry out the
principle of utility. Bentham defines utility in two terms:

1. To provide pleasure, benefits, advantages, happiness.

 2. To prevent pain, mischief, evil or unhappiness.

Thus, utility is based on the greatest happiness of the greatest number which means any law is
good/bad depending upon general happiness of the majority of the population. It is clear from
this principle 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.

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. His philosophy that “justice is nothing but happiness of the majority of people” seems
like a great ideal for the welfare states. These two concepts that Law is the command of the
sovereign and purpose of law is to promote individual pleasure and decrease pain were so
masterly analysed by him before Austin. Austin adopted from Bentham, the concept of positive
law in the nature of command of the sovereign, but in his quest to separate law from morality, he
rejected the concept of utility and this was the most disastrous act committed by the successors
of Bentham that they did not consider the work of Bentham in entirety.

CRITICISM

Most potent criticism against Bentham’s utilitarianism is that it even justified crimes in order to
achieve pleasure to a great number. Bernard Williams presented an experiment which involved
Jim, a botanist who was faced with the choice of killing one prisoner for release of others or
death of all 20 prisoners. Utilitarianism requires killing of one prisoner. Thus, the theory justifies
criminal activity for the benefit of others.

Karl Marx in “Das Capital” criticized utilitarianism on the ground that in the context of socio
economic conditions of different people, perception of joy or pleasure is also different. What
may be pleasure for a certain group may be pain for the other. So, it cannot be made the uniform
basis for legislation.

Whatsoever may be the criticism of the theory, it cannot be disputed that Bentham was
instrumental in releasing the law from the clutches of vague natural law principles.

2. AUSTIN

John Austin greatly shaped Legal Systems all over the world through his Analytical Approach
to Jurisprudence and Theory of Legal Positivism. Owing to his works he has been saluted as
“Father of English Jurisprudence”. He is known for his theory of sovereignty and legal
positivism mentioned in his book “Province of Jurisprudence Determined”.
Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent
being having power over them. According to Austin, “Law is a command of the sovereign
backed by a sanction.”

Thus we have following essentials:

 Sovereign, which makes a

 Command, which imposes a
 Duty, which IF NOT followed calls for
 Legal sanction.

A. Sovereign: According to Austin, every political set up has a sovereign power which is
habitually obeyed by the people in the society. He says that s sovereign is any person or
body of persons, whom the bulk of a political society habitually obeys and who does not
himself habitually obeys, some other persons or persons. Thus, essential ingredients of
sovereignty, as per Austin are:
i. Sovereignty is indivisible. Sovereign power cannot be shared, i.e. sovereign
will make laws, the sovereign will execute the laws and the sovereign only
will administer the law.
ii. It is an essential attribute of any independent State.
iii. Illimitable: there cannot be any limitations on the power of the sovereign
because if it is so, it would imply that there is another power over and above
the sovereign.
B. Command: Command implies power and authority. It is neither request, nor will or
expression of desire, but it means something which has to be obeyed compulsorily and
mandatorily. There are commands which are laws and which are not, Austin distinguishes
law from other commands by their generality. Laws are general commands, while
specific or particular commands are not laws. However, Austin himself recognizes three
exceptions to the proposition that only general commands are laws:

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.
 C. Duty: The command levies a “legal duty” on those who are politically subject to the
sovereign. Every duty supposes a command by a sovereign by which it is created.

D. Sanction: It is implied in the theory that the sovereign has a power to punish or
penalize for noncompliance of laws. This penalty or punishment imposed is called Legal
Sanction. Such legal sanction, is the motivation behind one’s adherence of law and thus is
a requisite part.

Classification of laws according to Austin:

Laws are of 2 kinds: (1) Law of God, and (2) Human Laws:

(1) Law of God – Laws set by God for men. (2) Human Laws – Laws set by men for men.
Two kinds of Human Laws:

1. Positive Laws are the laws set by political superiors as such, or by men not acting as political
superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws
are the proper subject matter of jurisprudence. Positive Laws involve legal sanctions. “The
matter of jurisprudence is positive law: law simply and strictly so called: or law set by political
superiors to political inferiors.”

2. Other Laws(Positive morality): Those laws which are not set by political superiors or by
men in pursuance of legal rights. Positive morality involves only moral sanctions.

According to Austin, only positive laws are laws properly so called. Other laws are only
laws improperly so called. Laws improperly so called are only specific commands as
distinguished from general commands which are laws properly so called. He puts International
Law and Laws which are by mere opinion, in the category of Laws improperly so called. “The
matter of jurisprudence is positive law: law simply and strictly so called: or law set by political
superiors to political inferiors.”

CRITICISM OF AUSTIN’S THEORY:

1. Austin’s command theory is against the popular sovereignty:

It conflicts with the basic ideas of democracy. Austin’s sovereign is superior and everybody else
is subordinate to him. The idea of popular sovereignty which lies at the basis of democracy has
been ignored by Austin. In democracy supreme power resides in the people. Thus, Austin’s
theory of sovereignty does not fit in with a democratic set-up.
2. Lacks universality: Austin’s definition of law as a command is not universal. It applies to
only certain laws such as criminal law and ignores a major portion of law which defines certain
rights for the people and empowers them. Such laws neither command nor forbid for the
commission of certain acts. International law and law of contract belong to this category.

Further, the theory is majorly applicable on Monarchical Police State which authors the law and
has the power to inflict evil on those who do not comply. In the modern era, there are
empowering and enabling laws which confer privileges on the citizens. They are purely of
permissive nature and give discretion to the individual himself. They cannot be called a
command in their true sense.  For e.g. the law which gives a person right to vote does not
command him whom to vote.

3. Ignores real/judge made law: Real law, which refers to the judge-made law, cannot be said
to be a law “properly so-called” based on the parameters provided by Austin. However, this
cannot be said to be true in the modern era. A significant part of several modern legal systems
comprises of judge made law because during the course of administration of justice, judges not
only interpret the law, they also declare the law.

4. Sovereignty need not lie in a determinate body: because in modern democratic states
sovereignty lies not in determinate body. It resides with the people as expressed in the
constitution.

5. Law is not always the command of the sovereign. In many countries, customary laws are
supreme and they are not issued in the form of commands. Henry Maine cites the example of
Ranjit Singh whom he regards as an absolute despot possessing qualities of Austin’s determinate
human superior. “Ranjit Singh”, says Maine, “could have commanded anything; the smallest
disobedience to his commands would have been followed by death or mutilation”. Yet Ranjit
Singh never issued a command which Austin could call law. The rules which regulated his
subjects were derived from their immemorial usages.

On this ground, some authors have criticized the positivist theory of law as a theory of gunman,
as it makes no real distinction between a law and the command of a bank-robber who points his
gun at the bank clerk and orders him to give him money.

6. Ignored customary law: Austin ignores the fact that foundation of law lies in common
consciousness of the people which manifests itself in customs and thus also overlooks
Customary law which has always been widely respected and followed. Personal laws like Hindu
Law or Muslim law, existed long before a sovereign began to legislate, and yet, these laws were
not only acknowledged but followed with immense devotion.

7. Sanction is not the only means to induce obedience to laws: some authors like Bryce held
that there are other factors also like convenience, habit, sympathy etc due to which a person
obeys the laws. Hart says that it is the inner morality of the people which commends them to
obey a law.

8. Overlooked the relationship between laws and morals which even his predecessor Bentham
acknowledged.

However, every political theory has some limitations. Austin formulated his propositions
according to English law as it existed at that time. He wiped out many false notions which had
obscured the true meaning of law. He gave final death blow to the theory of natural law. As
remarked by Sir Henry Maine, “No conception of law and society has ever removed such a
mass of undoubted delusions”.

3. H.L.A Hart

H.L.A Hart, professor of Jurisprudence in the University of Oxford, produced his monumental
work in 1961, “The Concept of Law”. The main focus of Hart’s work was to highlight the
shortcomings from which the Austin’s theory of sovereignty was suffering and at the same time
he propounded his own ‘Dual System of law’, thus, deviating from the strict positivist and
monolithic approach of Austin. He presented a much reformed and socially oriented positivistic
theory of law.

BASIC PROPOSITIONS OF HART’S CONCEPT OF LAW

1. Hart deviates from Austin’s theory in terms of content, origin and range. In terms of
content, he says that not all laws are imperative or coercive. Some are facilitative, allowing us to
create contracts and other legal relations. Austin believed that every legal system had to have a
sovereign who creates the law (origin) while remaining unaffected by it (range), i.e sovereign is
never bound by the laws he create. Hart argues that this is an inaccurate description of law, as
laws may have several sources and legislators are very often subject to the laws they create. He
further asserts that laws are much broader in scope than coercive orders, contrary to the
‘command theory’ of Austin. Frequently laws are enabling and so allow citizens to carry out
authoritative acts such as the making of wills or contracts which have legal effect.
2. legal system is union of primary and secondary rules (Dual system of law):
According to Hart, a legal system may be best considered a "union" of primary rules of
obligation or duty and secondary rules of recognition, change, and adjudication. Hart
characterizes the distinction between primary and secondary rules in the following way:
Rules of the first type impose duties; rules of the second type confer powers, public or private.
Rules of the first type concern actions involving physical movement or changes; rules of the
second type provide for operations which lead not merely to physical movement or change, but
to the creation or variation of duties or obligations.
In Hart's view, a society might live only by primary rules of obligation, but will suffer from three
defects: there will be uncertainty as to what the rules are and their scope; the rules will be static
insofar as there is no means of deliberately eliminating or introducing rules; and, the social
pressure by which rules are maintained will be inefficient because there is no agency for finally
settling disputes over violations of the primary rules. These defects may be remedied by
secondary rules that "specify the ways in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation conclusively
determined. Thus, a secondary rule of recognition will remove the uncertainty of the regime of
primary rules by providing a rule for conclusive identification of the primary rules of
obligation."Secondary rules of change will remedy the static character of primary rules by
empowering an individual or body to introduce new primary rules of conduct for the group, or
for some class within it, and to eliminate old rules." The remedy for the inefficiency of the social
pressure is secondary rules of adjudication empowering individuals to determine authoritatively
whether, on a particular occasion, a primary rule has been broken. Hart concludes that “the
introduction of the remedy for each defect might, in itself, be considered a step from the pre-
legal into the legal world," and that "certainly all three remedies together are enough to convert
the regime of primary rules into what is indisputably a legal system.” The ‘union’ of primary and
secondary rules may be regarded as the essence of law, for a modern municipal legal system will
combine both kinds of rules.
Thus, according to Hart:
1. Uncertainty in primary rules is removed by--------secondary rules of recognition
2. Static character of primary rules is eliminated by--------secondary rules of change
3. Inefficiency in primary rules is removed by--------secondary rules of adjudication.
According to Hart, there are two minimum requirements which must be satisfied in order for a
legal system to exist: 1) private citizens must generally obey the primary rules of obligation, and
2) public officials must accept the secondary rules of recognition, change, and adjudication as
standards of official conduct.
3. For Hart, law is a system of rules. He distinguished duty imposing rules from power
conferring rule. The example of duty imposing rules are rules of Income Tax Act, Wealth tax
Act, etc. which require that taxes must be paid. The examples of power conferring rules are
power to enter into a contract, make will etc.
4. Law and morality: Hart stated that law and morality are very close, though not necessarily
related. He is deeply sympathetic to what he calls "the core of good sense of natural law" and
believes that law should continually be subject to moral scrutiny.” Hart endorses the formal
principle of justice as desirable which emphasizes that laws should treat like cases alike and
different cases differently. Impartiality in rule application is a moral standard which, according
to Hart, is necessary in a legal system. Thus, any judge applying a particular legal rule is
expected to do so uninfluenced by “prejudice, interest, or caprice.”
Hart defines legal positivism as the theory that there is no logically necessary connection
between law and morality. However, he describes his own viewpoint as a "soft positivism,"
because he admits that rules of recognition may consider the compatibility or incompatibility of a
rule with moral values as a criterion of the rule’s legal validity.
5. Internal aspect of law: Hart rejects Austin’s legal framework solely based on coercion, for its
being penal, punitive, prohibitive or preventive in nature. According to hart, law cannot be
understood merely in term of sanction or coercion. It is indeed much beyond it. It is essentially in
spirit remedial and procedural embodying principles of minimal natural justice and morality
which are excluded and rejected by Austin. Acc. to Hart, rules of a legal system has the inner
aspect or inner point of view. Hart says, law depends not only on external society pressure
imposed upon men to prevent them from deviating from the law, but also on inner point of view
that human beings take towards a rule conceived as imposing an obligation. Thus, he
distinguishes between the "external" and "internal" points of view with respect to how the rules
of a legal system may be described or evaluated. The external point of view is that of an observer
who does not necessarily have to accept the rules of the legal system. The external observer may
be able to evaluate the extent to which the rules of the legal system produce a regular pattern of
conduct on the part of individuals to whom the rules apply. The internal point of view, on the
other hand, is that of individuals who are governed by the rules of the legal system and who
accept these rules as standards of conduct. The external aspect of rules may in some cases enable
us to predict the conduct of individuals, but we may have to consider the 'internal' aspect of rules
in order to interpret or explain the conduct of individuals.
Thus, Hart’s positivism is more complex than that of Austin. He rejects many assumptions of
Austin for instance law as a command which obliges persons to obey such orders. He makes a
difference between valid law and order of a gunman by distinguishing between ‘being obliged’
as a matter of fact and ‘being under an obligation’ a condition which involves general
acceptance of norms as standard of behavior. According to Hart, in the contemporary world,
international law is the conspicuous illustration of a system of primary rules.
Thus, Hart makes considerable improvement in analytical positivism, his study being very
comprehensive and constructive.

3. HANS KELSEN

Hans Kelsen (1881 – 1973) was an Austrian jurist and philosopher. He is considered as one of
the prominent and very important jurists of the 20th century and is credited with reviving the
original analytical theory in the 20th century with his ‘Pure Theory of Law’. Kelsen was
Professor of Law at the Vienna University. His book Reine Rechtslehre (Pure Theory of Law)
was published in two editions; the first one in 1934, in Europe, and the second one, which was
the expanded edition, was published in 1960, after he joined as a faculty at the University of
California. His school of thought is also known as the Vienna School or the Functional School of
Jurisprudence.

Kelsen started his pure theory with certain premises:

a. He believed that a theory of law must always be based upon law “as it is” and not on law “as it
ought to be”.

b. According to him, a theory of law must hold good at all times in all places. Thus, he was an
advocate of general jurisprudence.
c. He opined that a theory of law must be ‘pure’, that is, it must be free from the influence of
other social sciences and disciplines. A theory of law must deal with law alone. He did not deny
the importance of the other social sciences. However, he always believed that law must stay
away from other considerations.

d. He believed that law is a normative science and that legal theory must be concerned with the
effects of legal norms. He always equated the knowledge of law with that of “norms”.

PURE THEORY OF LAW

Kelsen’s pure theory of law is one of positive law which is based on normative order eliminating
all extra-legal and non-legal elements from it. This theory is concerned with the theory of norms,
and not with the effectiveness of the legal norms. He wanted to separate law from all moral,
social, ideal or ethical elements and wished to create ‘pure’ science of law divorced all moral
and sociological considerations. It was rigorously insisted upon by Kelsen to limit the scope of
the study of law to its purest form. He was against widening of the scope of jurisprudence by co-
relating it with the social sciences such as politics, sociology, metaphysics etc. These social
subjects were not devalued by the thinker, only separated from law in order to reduce chaos. The
theory dealt with what law ‘is’ and not what it ‘ought to be’.

In short, what Kelsen tried to do for law is what the sciences do to understand nature’s physical
elements. Kelsen adopted an “objective/ descriptive” approach. His theory looks at the “science
of law” which would describe conduct as legal or illegal or making statements about legal rights
and duties as objectively as possible.
Why Kelsen proposed Pure theory of law

According to Kelsen, Laws are scattered in the society which creates ambiguity regarding the
source of law. It has resulted into a chaos in the legal system. Therefore, in order to achieve
uniformity, Kelsen developed his own ‘Pure theory of law’.

Grundnorm

According to Kelsen, norms cannot exist by themselves in the legal system as one norm depends
on another, higher authorising norm. So every norm has to be related to other legal norms which
are in turn related to higher legal norms. Such chain of norms therefore creates a hierarchy of
norms with the Primary Norms at the bottom of the triangular/pyramid structure. The next level
of norms constitute the Dependent or Secondary Norms which give validity to the bottom of the
triangle, i.e. the primary norms. Other higher Dependent Norms give validity to the lower
Dependent Norms but this is not an infinite system and there is an apex end point. This apex end
point is at the top of the hierarchy. It is known as the “grundnorm” or the “basic norm”.

The diagram illustrates this hierarchy in the shape of a pyramid. The norms become general (at
the top) to specific (at the bottom). Thus the higher norms will be dealing with issues such as
how law is created. And, the administration of justice at the bottom level specifies certain actions
in specific cases with each norm gaining legal validity from another, higher norm. It can be seen
that at the top of the pyramid, there is the basic norm or the Grundnorm which gives the whole
system its validity while putting a logical and finite end to the hierarchy and the validity of
which is pre supposed. Thus, while the validity of norms depends on higher norms, the validity
of the Grundnorm is presupposed. One cannot say whether the grundnorm in itself is good or
bad. That is the task of ethics or political science. It is not the concern of the jurist to ask as to its
origin or to question its purity or impurity. Thus, Kelsen recognizes extra legal character of
grundnorm.
To illustrate the Kelsen’s hierarchy of norms, the decision given by a judge who creates a norm
is authorized by the norms defining the courts' jurisdiction. Those norms may either be expressed
in statute or they may be written in a Constitution. So it may be seen that a legal order is made up
of hierarchy of norms among whom there is a relationship of subordination.

How to determine the efficacy of norms?

As per Kelsen, efficacy of norms can be determined by general obedience to such norm by the
majority of the people, so that if the people in general start disobeying norms, the norms are no
longer effective and therefore, no longer valid and thus the Grundnorm will have to change to
accommodate this allowing for a new set of legal norms to be created. According to Kelsen, if
the officials of a state no longer (efficiently and effectively) apply the primary norms, then the
Grundnorm of the state is no longer valid and has to change.

KELSEN DISAGREED WITH AUSTIN

Firstly, he rejected the idea of command, because it introduces a psychological element into a
theory of law, which should, in his view, be pure.

Secondly, according to Austin sanction was something that is outside the law imparting its
validity. To Kelsen such a statement is irrelevant as validity of a rule has nothing to do with its
sanctions.
Criticism of Kelsen’s theory
1.Rigid separation of laws and morality: Kelsen’s rigid emphasis on the study of law without
considering other elements such as politics, morality and questions of justice leaves a significant
gap in the theory because law does not exist in a vacuum. Critiques of Kelsen believe that this
theory is an exercise in logic, and that there is lack of reality in his theory thereby rendering it
insufficient to understand the whole implications of legal systems and laws.
2. Ignores inner aspect of law: Kelsen’s emphasis on the role of officials in the system of law
unduly focuses on the issue of law enforcement. In effect, it ignores the ordinary citizen’s role in
the state as well as their interests in the development of law. For Kelsen, the common citizens
have little to do with the law other than acting in the ways which justify the application of
sanctions by the officials. This is an unnecessarily one-sided view of the law which only looks at
the external, coercive element of the law while disregarding the fact that laws can also bind
citizens to act or to forebear to act in certain ways.
3. Indirectly supports usurpation of power: Kelsen’s theory holds that, legal norms can exist
only in a system which is on the whole efficacious. Therefore, an inference can be drawn that
validity of a system is based on its efficacy. Efficacy is also described as meaning the regular and
effective application of sanctions by officials. This may therefore imply that anyone who is
capable of usurping power in a given society can then enforce his new power by applying
sanctions efficaciously which then results in the legitimate change of the basic norm. This is a
problematic feature of the theory as it seems to legitimize revolutions and power usurpation.
4. Kelsen’s theory not strictly pure: Kelsen claims his theory to be pure. But when he talks
about minimum effectiveness of grundnorm, his theory ceases to be pure as minimum
effectiveness can be proved only by an enquiry into political and social facts whereas Kelsen has
altogether rejected these facts.