ANALYTICAL OR POSITIVE SCHOOL

 Salmond segregated jurisprudence into three major schools – analytical,

ethical and historical school.
 The major premise of analytical school of jurisprudence is to deal with
law as it exists in the present form. It seeks to analyse the first principles
of law as they actually exist in a given legal system.
 They treat law as a command emanating from the sovereign, namely, the
state. This school is therefore, also called the imperative school.
 Analytical school propounders confined their theories to presently
existing laws and does not take into consideration law of the past or the
future.
 Main propounders –
1) Jeremy Bentham
2) John Austin
3) Holland
4) Salmond
5) Gray
6) HLA Hart
7) Kelson

I) JEREMY BENTHAM (1748-1832) – FOUNDER OF

ANALYTICAL POSITIVISM

 Divided jurisprudence into expositorial and censorial jurisprudence

 Expository or analytical jurisprudence is concerned with law as it is
without any regard to its moral or immoral character
 Censorial Jurisprudence is concerned with science of legislation, i.e.
what the law ought to be
 The function of expositorial jurisprudence is to ascertain what the law is
while that of the censorial jurisprudence is to ascertain what the law
ought to be.
Jeremy Bentham defined law as “an assemblage of signs declarative of a
volition conceived by or adopted by the sovereign in the state”
 Bentham also rejected the natural law theory and co-related law with
sovereignty and utility. He was a critic of natural law philosophy.
 In his view, nature has placed mankind under two sovereign masters,
namely pain and pleasure which alone decide as to what man should do
or not do.
  He termed this as ‘hedonic calculus’ which later came to be known as his
principle of utility.
 According to Bentham, only those laws could be upheld which promoted
four goals of subsistence, abundance, equality and security.
 He supported the economic principle of laissez-faire which meant
minimum interference of the state in the economic activities of
individuals.
 Bentham propounded the principle of utilitarianism. According to this
theory, the greatest aim of legislature is carrying out of the principle of
utility (greatest happiness for greatest number of people)
 Bentham defined utility as the property or tendency of a thing to prevent
some evil (pain) or procure some good (pleasure).
 The task of government according to Bentham, was to promote happiness
of society by furthering enjoyment of pleasure and affording security
against pain.
 Bentham’s perception of justice is based on system of values and each
society has its own different set of values .i.e., morals. The individuals
living in the society have to conform to the set values or norms and
rationalise his conduct or behaviour accordingly. If they do not, there
would be conflict of justice.
CRITICISM-
1) Theory of utilitarianism – fails to balance individual interests with the
interest of the community
2) Theory of hedonistic calculus – pain and pleasure alone cannot be the
final test of the adequacy of law
3) Overestimating sovereign’s power. There might be biases
4) He is completely against the judge made law
5) Law & morals – completely different. Ignored the contribution of morals
in law.
6) Principle of laissez faire – contradicting his own notion of sovereignty.

II) JOHN AUSTIN (1790-1859) – FATHER OF ENGLISH

JURISPRUDENCE

 Austin described positive law as the aggregate of rules set by man as

politically superior to men as politically inferior subjects.
 Confined his theory only to positive law meanings ‘laws properly so
called’ as distinguished from morals and other laws which he described as
‘laws improperly so called’ which lacks force or sanction of the State.
  Four essential attributes of positive law –
1)Command
2)Sanction
3)Duty
4)Sovereignty
 Austin distinguishes positive law from positive morality which is devoid
of any legal sanction. He identifies law with command, duty and sanction.
 According to Austin, the study and analysis of positive law alone is the
appropriate subject matter of jurisprudence – law simply and strictly so
called or law set by political superior to political inferior.
Austin, accepts that there are three kinds of laws which, though not commands,
may be included within the purview of law by way of exception –
1) Declaratory or Explanatory laws – These are not commands because they
are already in existence and are passed only to explain the law which is
already in force.
2) Laws of repeal – Austin does not treat such laws as commands because
they are in fact the revocation of command
3) Laws of imperfect obligation – They are not treated as command because
there is no sanction attached to them.
CRITICISM –
1) Austin’s view law is command of sovereign is not supported by historical
evolution of law when customs played a significant role in regulating
human conduct.
2) Austin’s theory does not take notice of laws which are of a permissive
character and confer privileges.
3) No place for judge made law
4) Austin’s theory treats international law as mere morality – because it
lacks sanction
5) Over emphasized command
6) Inter-relationship between law and morality completely ignored
7) Sanction alone is not the means to induce obedience
8) Indivisibility of sovereignty criticised

III) HLA HART (1907-1992)

 According to Hart, law is a system of two types of rules – primary and

secondary the union of which provides key to the science of
jurisprudence.
 Rejects Austin’s view that law is a command.
 HLA Hart emphasized that primary rules are duty imposing while
secondary rules confer power and the union of two is the essence of law.
 The primary rules which impose duty upon individuals are binding
because of the popular acceptance such as the rules of the society while
the secondary rules which are power conferring, enable the legislators to
modify their policies according to the needs of the society.
 Secondary rules seek to remedy the defects of the primary rules by
1) introduction of new primary rules
2) repealing/amendment of obsolete primary rules
3) controlling operations of the primary rules
 3 major defects of primary rules – uncertainty, static character and
inefficiency
RULE OF RECOGNITION
 Professor Hart’s positivism explains the existence of law with reference
to the rule of recognition binding force of which depends upon its
acceptance. The validity of law is to be tested on the basis of rule of
recognition which is similar to Austin’s conception of sovereign.
 According to him, rule of recognition is the sole rule in a legal system
whose binding force depends upon its acceptance.
 Thus, HLA Hart’s conception of positivism centred around the following
considerations –
1. He accepted law as a command as advocated by Bentham and his
disciple Austin
2. He believed that analysis of legal conceptions are worth pursuing
as distinguished from mere sociological and historical inquiries.
3. The judicial decisions were to be deduced from pre-determined
rules without recourse to social aims, objectives, policy or morality
4. Moral judgments cannot be defended by rational argument,
evidence or proof; and
5. The law as it is actually laid down has to be kept separate from law
as it ought to be.

 Hart’s view on Law and Morality

 Hart, therefore, asserts that law and morality are complementary and
supplementary to each other because people are morally
bound/obliged to follow the law.
 Distinction between Positive Law & Morality
  Positive law differs from natural law or morality. While the former
consists of rules for governance of the outward acts of the mankind
while the latter consists of principle of natural rights or wrongs or
principles of justice based on reason in the widest sense.
 The essence of difference between positivism and natural law lies in
that the former is based on factual notion of law as it is while the latter
sought to study law from philosophical, abstract and ideal angle with
reference to morality, reason and conscience, all of which are beyond
human power, control and authority.
 Another distinction between law and morality is that law is meant to
regulate external relations between individuals whereas morality
regulates the inner life i.e. conscience of man, it not external.
CRITICISM –
1. Law & Morality – he said connected only in certain aspects
2. Judge made laws – he didn’t completely acknowledge this freedom
3. Primary & secondary laws – not all laws falls in them only
4. He recognized laws as rules and not as norms
5. He didn’t fully develop any particular head
IV) HANS KELSON
 Kelson separated law from other social sciences. Kelson divested moral,
ideal or ethical elements from law and wished to create a ‘pure’ science
of law devoid of all moral and sociological considerations.
 He rejected Austin’s view of ‘law as a command’. He wanted legal theory
to be objective.
 He disregarded justice the notion of justice as an essential element of law.
 Kelson’s theory of pure science of law which is also known as ‘theory of
interpretation’
 According to kelson, norm is a rule forbidding or prescribing a certain
behaviour. For him, legal order is the hierarchy of norms having sanction
and jurisprudence is the study of these norms which comprise legal order.
 Kelson’s pure theory of law is based on pyramidical structure of
hierarchy of norms which derive their validity from the basic norm which
he termed as ‘grundnorm’.
 Kelson considers legal science as a pyramid of norms with grundnorm at
the apex. The sub ordinate norms are controlled by norms superior to
them in hierarchical order.
SALIENT FEATURES OF KELSON’S THEORY –
 1. Pure theory of law deals with the knowledge of what law is and it is not
concerned about what law ought to be.
2. The theory considers law as a normative science and not a natural science
3. Kelson’s pure theory of law is a theory of norms not so much concerned
with the effectiveness of the legal norm
4. It is a formal theory confined to a particular system of positive law
actually in operation.
CRITICISM -
1. It excludes all references of social facts and needs of the society. Thus,
his pure theory of law is without any sociological foundation
2. Kelson’s assertion that all the norms excepting the basic norm
(grundnorm) are pure, has no logical basis.
3. The theory is found to be based on hypothetical considerations without
any practicability. Not practical to divest law from the influence of
political ideology and social needs.
4. Provides no solution for the conflicts arising out of ideological
differences
5. Kelson’s account of legal dynamics is inadequate. It ignores the purpose
of law