SUBJECT - JURISPRUDENCE - I

Project Topic – analytical School

------------------------------------------------------

[ASSISTANT PROFESSOR OF LAW , IILS ]

--------------------------------------------------

1
 TABLE OF CONTENTS

1. INTRODUCTION

2. RESARCH OBJECTIVES

3. RESEARCH METHODOLOGY

4. SOURCE OF DATA

5. RESEARCH QUESTION

6. PURPOSE OF ANALYTICAL SCHOOL

7. HISTORY OF ANALYTICAL SCHOOL

8. PRINCIPLE OF ANALYTICAL SCHOOL

9. EXPONENTS OF ANALYTICAL SCHOOL

10. IMPORTANCE OF ANALYTICAL SCHOOL

11.CONCLUSION

12.BIBLIOGRAPHY

2
 RESEARCH OBJECTIVE

• This project help us to understand Analytical school and its concept

.

RESEARCH METHODOLOGY

This research used both qualitative and quantitative method and combination of
primary and secondary sources . The qualitative data supports quantitative data
analysis and result.

SOURCE OF DATA
The sources which I used in this project is secondary source of data , like which
includes book , Article and unpublished research works and websites .

RESEARCH QUESTION

1. What is analytical school jurisprudence?

2. Who called imperative school as analytical school?
3. Was Bentham a legal positivist?
4. What is importance of jurisprudence?

3
 INTRODUCTION

Austin may be regarded as the founder of the Analytical School, though he drew
his inspiration from Hobbes, and Bentham, his teacher. To him law is a command
given by superior to an inferior and enforced by material sanctions. School of
Analytical Jurisprudence Analytical jurisprudence is a legal theory that draws on the
resources of modern analytical philosophy to try to understand the nature of
law. Analytic jurisprudence uses a neutral point ofview and descriptive language
when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law's fusing of what law is and what it ought
to be. Many times jurist have made their effort to define law, it sources and nature.
For the purpose of finding their points of view, the jurist are divided on the basis of
their approaches to law. This division has been helpful in understanding the
evolution of legal philosophy.

One class of this jurist came to be known as “analysts” who had little to do with
vague and abstract nations of natural law. These were the believers of analytical
school, who propounded positivism.

The exponents of this school is not concerned with the past and also it is not with
the future of law but with the law as its exists that means the law “as it is”.

4
 PURPOSE OF ANALYTICAL SCHOOL
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

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.

PRINCIPLE 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

5
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.

6
 EXPONENT OF ANALYTICAL SCHOOL
The main exponents of analytical school of law are –
1. Jeremy Bentham
2. John Austin
3. Hans kelsen
4. Holland
5. Salmond
6. H. L. A Hart

Jeremy Bentham

Bentham (1748-1832) is considered the founder of positivism in the modern sense

of the term and laid the foundation for Analytical school of Jurisprudence and he
started a new era in the history of legal thought in England. Bentham advocated
that the substantive law can only be through a process of analysis by reforming its
structure. Bentham’s theory also had ‘sovereignty and command’ as its primary
concept and his perception of justice is based on a system of values and each
society has its own different set of values.
Bentham’s theory is known as Utilitarian individualism. He defined law as,” an
assemblage of rights, declarative of violation conceived or adopted by a sovereign
in a state which means that law is an expression of the will of the sovereign in a
state”.
According to him, the source of law is the will of the sovereign who may consist of
laws which are issued by him or the laws that were made by a former sovereign
could be permitted. He favoured the economic principle of ‘ Laissez-faire’ which
refers to the policy of leaving things to take their own course by not interfering.
Thus he is of the opinion that the state should not interfere in the matter and the
individual’s work according to their will and that is why he believed that the
purpose of the law is to end any kind of bondage and restrictions that exist for

7
individuals which will result in the welfare of the society i.e., people at large. The
main purpose behind the law was to procure pleasure benefits to the people and
to avoid any kind of pain, evil or unhappiness.
The proper end of every law is to promote maximum happiness of the maximum
people and Bentham focused on pleasure that is why Bentham’s Utilitarianism
theory is also called ‘Greatest Happiness Principle’. Bentham also introduced legal
positivism and tried to incorporate scientific methods for a better understanding
of law.

Criticism

1. According to Friedman, Bentham’s theory has the following loopholes:-

1. He amalgamated materialism and law.
2. And the theory is not able to maintain equilibrium between the interests of
individuals and society.
2) The principle of Laissez-faire which provides for no interference of law is not
successful in the long run as some sort of restrictions are necessary for the greater
good and smooth functioning.

John Austin

John Austin was a 19th-century British legal philosopher and reformer who
formulated the first systematic alternative to both natural law theories and
utilitarian approaches to law. He is considered to be the father of English
jurisprudence and the founder of Analytical school as he adopted the primary and
extensive procedure for a subject, which helped him to present as well as to
elucidate the analytical positivist approach. His work namely ‘The Province of
Jurisprudence Determined (1832) advocated a definition of law as a species of
command that tends to separate positive law from morality. He was influenced by
the scientific treatment of Roman law and he initiated scientific arguments of
English law. Like Bentham, he opined that ‘law’ is only an aggregate of the
individual law. In his classic work published under the title, ‘The Province of

8
Jurisprudence determined’, he concentrated on the origin and essence of law and
even analyzed the legal system of England. His theory is based on expository
jurisprudence which was proposed by Bentham and did not bother with extra-legal
norms.
According to Austin’s ‘Command Theory of law,’ the law can be defined as,” the
command of the sovereign imposing a duty which is backed by the threat of
sanction in event of non-compliance.”
He was of the view that positive law should be analyzed by applying logic rather
than relying on ethical significance. He ignored social factors and emphasized on
the logic. He pointed out that positive law comprises both explicit and implicit
orders from superiority. The law is a reflection of what sovereign’s wishes and is
based on the sovereign’s authority. The law is considered in the abstract form by
outriding moral and ethics so that it did not hinder the application of law.
Austin’s theory can be summed up into the following features:-
1. Command ( by superior)
2. Duty (imposing duty on political inferior)
3. Sanction
4. Sovereignty

Criticism of Austin’s theory

1. According to Austin, law is created by sovereign but he overlooked the role

played by customs and common consciousness of people in the evolution of
law which always regulates the conduct of human beings.
2. He did not accept the judiciary as a law-making agency and neglected its
role in expounding law through the application of precedents.
3. Austin’s theory does not apply to constitutional law as it will be an absurd
idea to consider the Constitution which is the sovereign’s command itself to
direct the sovereign. And the constitution comes before the state as it is the
paramount law of the country.
4. It also ignores the relation between law and morality as morals provide
strength to law and they are both inseparable from each other.
5. Austin’s approach is applicable to a unitary polity that is based on
parliamentary sovereignty and thus is not applicable to legal systems that
exist today like in India and USA.

9
Holland
Holland (1835-1928) was a Professor of International law at Oxford University. He
is one of the exponents of analytical school and followed the analytical approach
to jurisprudence as propounded by Austin and Bentham. However, he deviates
from the Austinian conception of the term positive law. According to him, all the
laws are not orders of supreme authority instead they are rules of external human
action that are implemented by a sovereign political power.
Holland says, ” Law is the general rule of external human action enforced by
sovereign political authority. All other rules for the guidance of human action are
enforced by sovereign political authority .” He simply defined Jurisprudence as ‘ the
formal science of positive law’.

Salmond
Salmond (1862-1924) also supported the Analytical School of Jurisprudence but he
varies in the opinion from the other jurists in a myriad of ways.
According to him, Imperative law refers to ” a precept or rule of action imposed
upon man by the same authority which enforces obedience to it. In other words,
imperative law refers to the command or a rule which is enforced by some superior
power”. He agrees that law includes every rule irrespective of their mode of origin,
it’s just that law should be acknowledged by the courts.[6]
Salmond’s definition of law: ” Jurisprudence is the science of civil law”, by law he
means the law of land as administered by courts and includes statutes, customs
and judicial precedents. He defines law as the body of principles conceded and
followed by the state in the management of justice. According to him, the laws are
supreme, only if they are formulated and accepted by courts. He also argues that
the laws only regulate the external aspect of human behaviour but cannot regulate
the inner beliefs and consciousness of humans. The general doctrine is that the jury
must determine facts and judge the law.

Criticism

10
 1. Vinogradoff criticises Salmond’s definition of law as the courts are
responsible only for the implementation and application of law and not to
describe and elucidate law.
2. Salmond ignores the parts of law that are not formulated by courts such as
conventions which play a significant role in propounding the law.
3. His definition is more apt for case law but not regarding statutory law.

Kelsen

Austrian jurist and philosopher Hans Kelsen (1881-1973) also supported Analytical
school. He propounded the pure theory of law and has redefined Positivism. He
developed the theory on a ‘ theoretical and philosophical basis’.
According to him, the law must stay free and uninterrupted from social sciences
like psychology, human science or social history. And the concept of law would be
pure free from any other investigation such as sociological, political, historical,
logical etc. which reflects its purity as it will shun all-powerful, moral, mental and
sociological components. Thus, ‘ the law will stand on its own’.
According to the theory, law should be uniform and it should be universally
applicable. And the pure theory of law deals with the existing fact for eg – What
law is and not as it ought to be which depicts inclination towards Positivism.
According to Kelson, it is not imperative for every legal rule to stand on its own.
One legal rule is a derivation from another legal rule and is related to another. But
Grundnorm is an exception as it exists because of its popularity, people willfully
agree to the rule and even follow it.

Criticism

1. Natural law is ignored in the theory.

2. This theory lacks practical significance.

11
 3. According to Kelsen law should be free from ethics and morality but these
are inseparable and go hand in hand.
4. The concept of Grundnorm is also vague and not pure.

Hart(1907-1992)
Hart unlike his predecessors did tilt towards morality as being not an integral part
of law but at the same time he believed that morality had an influence on law and
he called this ‘the minimum content of natural law’. His famous works include
‘The Concept of law’, ‘The Causation of law’ and ‘Law Liberty and Morality’. Hart
agrees in his book that law is an obligation, law makes certain human conduct
non optional or non obligatory. But he disagrees with law being just a command
as per Austin’s theory.

12
 IMPORTANCE OF ANALYTICAL SCHOOL

1. This school brought about precision in legal thinking and helps people to
understand in a better way.
2. It provided clear and more scientific terminology so as to have proper
demarcation in law and to bring in uniformity.
3. It also presented law in the pure form as it kept other considerations that
could influence outside.

13
 CONCLUSION

Thus the central idea of the Analytical School of Jurisprudence is Positivism. It

focuses on Law as it exists i.e. law as it is regardless of good or bad, past or future
rather than how it ought to be. A law, which actually exists, is a law, though we
happen to dislike it, or though it varies from the text, by which we regulate any
application and disapprobation. In all, it can be said that Analytical Jurisprudence
is a legal theory that draws on the resources of modern analytical philosophy and
helps us to understand law.

14
 BIBLIOGRAPHY

PRIMARY SOURCES -
• BOOKS

SECONDARY SORCES -
• https://legalreadings.com/analytical-school-of-jurisprudence/

• https://lawcorner.in/analytical-school-of-jurisprudence/

• https://www.legalbites.in/analytical-school-jurisprudence/

15