Module I

Analytical School of law

Bentham
Law is an assemblage of signs
declarative of a volition 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 or are supposed to be
subject to his power.
Bentham
Bentham 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 right aim of legislation is
the carrying out of the principle utility. Bentham defined
utility as the property or tendency of a thing to prevent
some evil or procure some good.
According to him, the consequences of good and evil
are respectively pleasure and pain.
Criticism
According to Friedmann, it suffers from two
weaknesses:
(i) At first, in an effort to blend materialism with
idealism; Bentham underestimates the need
for individual discretion and flexibility in the
application of law overestimating the power
of legislator.
(ii) Secondly , this theory fails to balance
individual interests with the interests of the
community.
John Austin

Father of English Jurisprudence.

Law is a command of sovereign
backed by a sanction.
He distinguishes law from morality.
He divides law into two parts :
(i) Divine law Law set by God for men
(ii) Human Law Laws made by men for
men.
John Austin
Austin accepts 3 kinds of laws :
1. Declaratory or Explanatory Laws They are
not commands but are already in existence
and are passed only to explain the law which
is already in force.
2. Law of Repeal Austin does not treat such
laws as commands because they are in fact
the revocation of a command.
3. Law of Imperfect Obligation They are not
treated as command because there is no
sanction attached to them.
Criticism
Customary Overlooked.
Permissive character of law ignored.
No place for judge made law.
Treats International law as morality.
Command over emphasized.
Interrelationship between law and morality completely
ignored.
Sanction alone is not the means to induce obedience.
Indivisibility of sovereignty criticised.
Austins theory was improved by Holland, Salmond and
Gray.
HLA Hart

Law is the system of two types of rules

the union of which provides key to the
science of jurisprudence. He called these
rules as primary and Secondary rules.
Hart rejected Austins view and said that
primary rules are duly imposing and
secondary rules confer power and the
union of the two is the essence of law.
HLA Hart

Hart does not denounce the role of

natural law in his positivism. Unlike
Austin, Hart contends that it is necessary
for law and morality to have certain
element of natural law as logical
necessity. Thus, morality is implicit in
Harts positive law.
Criticism

Dworkin denounces Harts view of law as

a union of primary and secondary rules
and exclusion of morality from law. He
observes a principle is standard that is
to be observed because it is a
requirement of justice and fairness or
some other dimension of morality.
Kelson Pure theory of
Law.
Law is a normative science distinguished from
natural sciences which are based on cause
and effect as law of gravitation.
Norm is a rule forbidding a certain behaviour.
Kelsons 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.