Analytical positivism- not just rules which have been established by legal theory.

Auguste comte (1798-1857)- Comte was regarded as the founder of modern

positivism. Philosophical founder of modern positivism. 3 stages in the evolution of
human thinking-

1. Theological stage- all phenomena are explained wrt supernatural causes and the
intervention of a divine being
2. Metaphysical stage- hidden rules and deeper thinking. They believed in
abstract ideas of working of nature.
3. Positivist stage- last stage, rejected all hypothetical construction. It is a
departure from a particular feat of law or the area of positivism. It has been divorced
from the other areas of law.

Interpretation of law in Middle Ages was influenced by theology. Law was in close
connection with divine revelation. Positivism has a scientific attitude.

Earlier society was following a priori. They rejected this. This is how analytical
positivism came into picture. Analytical positivism prioritised empirical evidence and
logical analysis. Legal concepts and theories should be clear and precise and grounded
in observable facts. This movement rejects metaphysical. They focused on the
scientific and empirical foundation of legal reasoning.

Analytical positivism aims to eliminate ambiguity in legal languages based on

observation and analysis.

1. Jeremy Bentham- (1748-1832)- Bentham propounded the principle of

utilitarianism. Context was the era of industrialisation. Utilitarianism flourished in
England in 18th Century. Nature has placed mankind under the governance of 2
sovereign masters- pleasure and pain. They alone point out to us what we ought to do
and should refrain from doing. Every act or inaction should be measured as per
pleasure and pain. Hedonism- greatest happiness of the greatest number. Bentham
proposed a system of felicific calculus (algorithm formulated by Bentham for
calculating the degree or amount of pleasure the specific action is likely to induce)
wherein actions are evaluated based on factors such as intensity, duration, certainty
and proximity. Bentahmite legislators 4 goals- Subsistence , Abundance, Equality,
Security. Bentham says most important goal is security. Law makers after security
should promote equality. Equality should be encouraged when it does not harm
security.States can become rich by maintaining sacrosanct right to property. Private
property is allowed as per law. State can create punishments and rewards. Security
and equality form the main objective of legislations.

Merits and criticism of Benthamite philosophy-

Merits
1. Simplistic approach
2. Clarity and straightforward criteria- maximising happiness
3. Principle of utility seen as a principle of democratic governance
4. Maximising welfare of majority
5. Flexibility- Bentham’s utilitarianism can adapt to various situations. Pragmatic
decision making by weighing and balancing the consequences of actions.

Criticism
1. Oversimplified
2. Challenge of quantification of pleasure and pain
3. Minority rights
4. pursuit of immediate pleasure
5. Disregards the principle of justice

2. John Stuart Mill- agreed with Bentham, actions are right in proportion as they
tend to promote happiness and those actions are wrong as they tend to promote the
reverse of happiness.

3. John Austin (1792-1859)- propounder of analytical positivism. It is what the

law is or the normative pronouncement by state. Law is essentially a command,
initially given by Bentham and Jering. Austin was an English Jurist, he has analysed
the origins and working of the law. Adherent of utilitarian philosophy. Principle of
utility appeared to be the ultimate test of law. The end of a sovereign political
government is the greatest possible advancement of human happiness. A political
inconsistency in John Austin’s approach to law- he rejects the inclusion of ethical and
moral principles in law. Contradiction between utility of law and command of
sovereign. He seems to incorporate ethical concept in his legal philosophy.

Bentham and Austin - contrast. Austin made distinction between juris and ethics.
Juris-study of law, ethics-study of moral rules. If one wants to see only law then
Bentham is correct. Austin believed in analysing laws without a moral perspective.
Jurisprudence should be separate and independent feat concerned only with the
understanding and explaining the law as it exists without making judgements about
their moral value. The jurist is merely concerned with law as it is. The legislator or
ethical philosopher alone should be concerned with what law ought to be but with
positivists it is law as it is. (Ulpian Definition also)

Austin divided jurisprudence into general and particular

(fundamental principles-ideas, principles, differneces in different legal systems esp in

bigger and more advances one. This task would involve an exposition of the leading
terms such as rights, punishments, categorisation of rights and further classification of
obligations and collaboration of various distinctions of legal systems) Most important
function of positive law- empiritive character. Not every type of command was
considered law by Austin, only general commands. Only the general command which
is applicable is a command. The most essential characteristic is the empiritive
character. Command may not come from a legislative body such as parliament. It may
proceed from an official organ. Judge made law was a positive law in the true sense.

International law is also law even though Austin’s requirement isn’t fulfilled. He did
not deny that positive law could be unjust in a loose sense. Law of god may seep into
laws of sovereign. Upper hand thought must be given to laws established by
authorities. The positive law carries its standard in itself. Deviation from or
disobedience to positive law is unjust wrt that law though it may be just wrt law of
superior authority.

Merits and Demerits-

Merits- Clarity. Austin;’s command theory categorically identifies source of law.

Easier to determine their legitimacy
Separation of law and morality
Promoting a more objective and impartial understanding of legal system
Analytical approach is better, laws and commands with sanctions

Demerits/criticism-
Oversimplification, Over formalistic, limited scope, exclusive focus on command-
ignores international law, authoritarian in nature. In Austin’s philosophy to determine
who is sovereign (applicability to modern states is challenging).