Analytical School of Jurisprudence

The Analytical School of Jurisprudence, also called Legal Positivism, is a significant branch of
legal theory that underscores the importance of examining law as a set of rules and principles
established and enforced by human authority. This approach gained prominence in the 20th
century, notably through the contributions of legal philosophers like Jeremy Bentham, Hans
Kelson, John Austin, H.L.A. Hart and Joseph Raz.

Central tenets of this school include the separation of law from morality, a focus on analyzing legal
rules and institutions, the recognition of sovereign authority as the source of law, and an emphasis
on providing descriptive and explanatory insights into legal systems. Legal positivists argue that
laws derive their validity from their origin in legitimate legal authorities, regardless of their moral
content.

Analytical school approaches the study of law by examining it in its existing form rather than
prescribing how it should be. This perspective emphasizes the objective analysis of legal systems
as they currently exist, without making normative judgments about their moral or ethical value. In
other words, legal positivists focus on describing the structure, function, and operation of legal
systems as they are observed in practice. This approach seeks to understand the rules, norms,
institutions, and sources of authority that characterize legal systems, without necessarily endorsing
or critiquing them based on moral considerations. Instead, the Analytical School provides a
systematic framework for objectively analyzing and understanding the nature and validity of law
in its present state.

Moreover, the Analytical School offers a critical perspective on natural law theory, which asserts
the existence of inherent moral principles governing the validity of laws. Legal positivists contend
that natural law theory relies too heavily on subjective moral judgments and can blur the distinction
between law and morality. Instead, they advocate for a rigorous, empirical analysis of legal
systems.

In summary, the Analytical School of Jurisprudence provides a structured framework for

understanding the nature, function, and legitimacy of law, focusing on legal rules, institutions, and
sources of authority. Despite criticisms, it remains a influential approach in modern legal theory.

John Austin:
John Austin, born in 1790, was a pioneering English legal philosopher whose ideas reshaped the
landscape of jurisprudence. Hailing from a distinguished family, he embarked on a journey marked
by intellectual curiosity and scholarly pursuit . Austin began to study law in 1812 after five years
in the army and from 1818 to 1825 practiced unsuccessfully at the chancery bar. His powers of
rigorous analysis and his uncompromising intellectual honesty deeply impressed his
contemporaries, and in 1826, when University College, London, was founded, he was appointed
its first professor of jurisprudence, a subject that had previously occupied an unimportant place in
legal studies. He spent the next two years in Germany studying Roman law and the work of
German experts on modern civil law whose ideas of classification and systematic analysis exerted
an influence on him second only to that of Bentham. Both Austin and his wife, Sarah, were ardent
Utilitarians, intimate friends of Bentham and of James and John Stuart Mill, and much concerned
with legal reform. Austin’s first lectures, in 1828, were attended by many distinguished men, but
he failed to attract students and resigned his chair in 1832. In 1834, after delivering a shorter but
equally unsuccessful version of his lectures, he abandoned the teaching of jurisprudence. He was
appointed to the Criminal Law Commission in 1833 and In 1836 he was appointed a commissioner
on the affairs of Malta.

Austin's enduring legacy lies in his groundbreaking work on legal positivism, notably articulated
in his seminal treatise, "The Province of Jurisprudence Determined." In this landmark work, he
expounded upon his theory that law is a command issued by a sovereign authority, emphasizing
its coercive nature and divorcing legal analysis from moral considerations. His meticulous
examination of legal systems laid the foundation for a scientific approach to understanding law,
setting the stage for subsequent generations of legal scholars. Owing to his works, he has been
saluted as the ‘Father of English Jurisprudence’.

Austin’s Theory Of Analytical Positivism

John Austin's legal positivism, notably expounded in his work "The Province of Jurisprudence
Determined," posits that law is essentially a system of commands issued by a sovereign authority,
backed by sanctions. According to Austin, laws are distinguished by their coercive nature, meaning
they are enforced through the threat of punishment or sanctions for non-compliance. In his view,
the key feature of law is its imperative character – it commands certain behaviors and prohibits
others. Austin's theory focuses on the relationship between the sovereign (the lawmaker) and the
subjects (those subject to the law), emphasizing the authority of the former and the obligation of
the latter to obey. He confined his study to positive law which is aggregate of rules set by man as
politically superior to man as politically inferior subjects.

He chooses to exclude all external influence or even history and completely indulges in gaining
access to first principles of law as it is, regardless of its “goodness” or “badness” or “moral
worthiness”.
He gave Four Attributes of Law:

Sovereign, which makes a

Command, which imposes a

Duty, which IF NOT followed calls for

Legal sanction.

Sovereign:
According to Austin, every political set up has a sovereign power which is habitually obeyed by
the people in the society. There is only one sovereign in the society and it can be a single person
or a group. It is the sole source of power and creator of laws and thus there can be no legal limits
or “de jure” limits to its power. There can, however, be “de facto” or physical limits since the
extent of the coercive force of the commands and their obedience by people have practical limits.

A good example is a well-known quote of De Lolme- “British parliament can do anything but
make a woman a man and a man a woman.”

The only boundaries of sovereign power are physical limits. If read into an existing situation, he
refers to statutes, legislated by the parliament or any parallel body, which has to be obeyed by the
people, regardless of how the statute is.

Command:
His definition is also called “Command theory” or “Imperative theory” of law. “Imperative Law
is a rule which prescribes a general course of action imposed by an authority which enforces it by
superior power either by physical force or any other form of compulsion.”

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

Legal Sanction:
It is implied in the theory that this sovereign has with itself a power to punish or penalize for
noncompliance of laws. This penalty or punishment imposed is called Legal Sanction. The dread
of legal sanction, as an evil consequence in case of disobeying, is the motivation behind one’s
adherence of law and thus is a requisite part.

While influential in shaping legal thought, Austin's theory has faced criticism for its narrow focus
on the sovereign's commands, neglecting other aspects of law such as justice, morality, and societal
norms. It fails to acknowledge the intricate and multifaceted nature of law, which often comprises
rules that do not neatly align with the command and sanction framework. When he comments that
sovereign is the creator of laws, he ignores the fact that foundation of law lies in common
consciousness of the people. He completely ignores justice and any definition of law is incomplete
if it fails to acknowledge that the end of law is justice.

It has to be borne in minds that despite the fair criticisms, Austin’s theory stands as one of the most
important legal philosophies and some of its aspects still hold relevance.

Austin’s Theory And Indian Farm Bills: Criticism

The Indian farm bills, introduced in September 2020, sparked significant controversy and criticism.
By examining the Indian farm bills through the lens of John Austin's legal positivism, it can be
easily understood that his theory fails to accommodate the common consciousness, customs and
pluralistic nature of Indian law and society. The Farm bills were severely criticised as they
followed analytical approach rather than a sociological approach. Here are a few reasons to
determine why the Austinian Theory failed in context of the Farm bills in India:

 Democratic Deficit: Legal positivism, as articulated by John Austin, emphasizes the role
of the sovereign authority in creating laws, which derive their legitimacy from this
authority. In a democratic society, the sovereign authority is ideally representative of the
will of the people. However, The Indian farm bills argue that they were enacted without
sufficient consultation or consensus-building among the stakeholders, particularly small-
scale farmers. The lack of democratic input and debate raises concerns about the legitimacy
of the laws under Austin's framework. In a truly democratic system, laws should reflect the
interests and concerns of all affected parties, ensuring that they are just and equitable.

 Ignoring Social and Economic Realities: Austin's theory often focuses narrowly on the
formal structure of law, overlooking the broader social, economic, and historical contexts
in which legal systems operate. The farm bills fail to address the complex realities of Indian
agriculture, including issues such as land ownership, access to markets, and the
socioeconomic vulnerability of smallholder farmers. By neglecting these contextual factors,
the laws risk exacerbating existing inequalities and disparities rather than promoting the
 common good. This departure from Austin's emphasis on law as a tool for social harmony
and progress underscores the limitations of a purely positivist approach to legal analysis.

 Disregard for Legal Pluralism: Austin's theory assumes a centralized legal authority and a
unitary legal system. However, India is characterized by legal pluralism, with diverse
customary and traditional laws coexisting alongside statutory law. The farm bills, by
seeking to impose uniform regulations on agricultural markets across the country, overlook
the pluralistic nature of Indian society. This disregard for legal pluralism could undermine
local autonomy and customary practices, further alienating marginalized communities and
exacerbating social tensions.

 Neglecting Social Justice: While Austin's legal positivism tends to prioritize the formal
structure of law, critics argue that it should also be concerned with issues of social justice
and equity. The farm bills, by prioritizing market-oriented reforms and deregulation, risk
exacerbating existing inequalities in the agricultural sector. The laws fail to address the
structural inequalities and injustices faced by small-scale farmers, who often lack access to
resources and face exploitative practices by powerful market players. This neglect of social
justice concerns undermines the legitimacy of the farm bills from a positivist perspective,
as law should serve the interests of justice and fairness in society.

 Resistance and Non-Compliance: Austin's theory assumes that the threat of sanctions is
sufficient to ensure compliance with the law. However, the widespread protests by farmers
in India and their refusal to comply with the new laws demonstrate the limitations of this
perspective. Despite the potential sanctions, farmers have been willing to endure hardship
and face legal repercussions to oppose laws they perceive as unjust.

 Unjust Commands: Austin's theory assumes that the commands issued by the sovereign are
just and equitable. However, the Indian farm laws were perceived by many farmers as
unjust and favoring corporate interests over their own. The laws aimed to liberalize
agricultural markets and facilitate contract farming, which small-scale farmers feared
 would lead to exploitation and loss of livelihoods. This highlights a discrepancy between
the commands of the sovereign and the principles of justice and fairness.

 Complex Power Dynamics: Austin's theory oversimplifies the relationship between the
sovereign and the subjects, ignoring the complex power dynamics at play within society.
In the case of the Indian farm laws, the commands issued by the sovereign reflect the
interests of powerful corporate entities and political elites, rather than the needs and
concerns of the farming community. This highlights the influence of various social,
economic, and political factors that shape the formulation and implementation of laws,
challenging the notion of law as purely a product of sovereign command.

In summary, the Indian farm laws serve as a potent criticism of Austin's command theory of law
by highlighting issues of legitimacy, justice, resistance, and power dynamics that are not
adequately addressed by the theory. The laws' contentious nature reveals the limitations of viewing
law as simply commands backed by sanctions, urging for a more nuanced understanding of legal
systems that considers the complexities of societal dynamics and power structures. John Austin's
legal positivism in light of the Indian farm bills highlights the limitations of a purely formalistic
and coercive approach to legal analysis. By adopting a sociological perspective, we can better
understand the complex social dynamics and power relations that shape legal outcomes, leading
to more equitable and just legal reforms. Moving forward, it is imperative to integrate sociological
insights into legal theory and practice to address the multifaceted challenges facing contemporary
societies.

Conclusion:

In today's complex and interconnected world, John Austin's command theory of law faces
significant limitations. While Austin's emphasis on the sovereign's commands provided a
foundational framework for understanding legal authority in the 19th century, it struggles to
account for the diverse array of legal sources and authorities that shape contemporary legal systems.
The rise of globalization, legal pluralism, and technological innovation has challenged traditional
notions of centralized legal authority and unitary legal systems. Moreover, the increasing
recognition of law's role in promoting social justice, human rights, and participatory democracy
highlights the inadequacy of Austin's theory in addressing pressing moral and ethical concerns.
Contemporary legal systems are confronted with complex global challenges that require
interdisciplinary approaches and a reevaluation of traditional legal theories. Integrating insights
from sociology, political science, ethics, and other disciplines can provide a more nuanced
understanding of law and its role in shaping societies in the 21st century.