ANALYTICAL SCHOOL OF

JURISPRUDENCE

IMPERATIVE THEORY

POSITIVISIM

AUSTINIAN THEORY
 “WHAT THE LAW IS” and not “WHAT THE LAW OUGHT TO BE”

Morals are not objective

The Law needs to be objective
If we add morals to the definition of law, law won’t be objective anymore.
Analytical school is also called positive school because it is based on positivism.
Positivism comes from the word ‘positum’, which means ‘as it is’.
POSITIVISM – August Comte
- Laws are commands
-Analysis of Legal Concepts can be done without involving sociological,
historical and moral aspects.
-Law laid down is different from what the law ought to be.
-Decisions can be deduced logically from pre-determined rules.
LEGAL POSITIVISM EXPLAINED

Legal positivism is the most influential school of thought in jurisprudence. The positivist movement started at
the beginning of the 19th century.
The jurists of the school consider that the most important aspect of law is its relation to the state. Law is
treated as command emanating from the state. For this reason, this school is also known as the imperative
school.
The term Legal Positivism means the attempt to establish Law as a true science. The Imperative theory of law
is based on an understanding of Law which is free of moralistic notions and merely a collection of empirical
(experimental) rules.
Legal Positivism also says that all Positive laws can be traced back to Human Lawmakers and have no divine
sanction, but are rules made by humans for humans.
POSITIVE LAW

Positive law refers to a body of man-made laws that may regulate conduct in a certain area. This type of law
may be traced back to ancient times and is typically passed by government at the local, regional, or national
level.
Positivelaw is sometimes contrasted with natural law, which is typically based on moral principles. Positive
laws might set the standards for acts that are required as well as those that are prohibited.
Penalties are usually given to those who violate positive law Some examples of positive laws might include
statutes, judicial verdicts, and ordinances.
Positive laws may be written and enacted by government lawmakers, courts, and administrative agencies.
Those who are physically present where the positive laws have governing power are typically required to obey
such laws.
Idea of the Sovereign
According to Imperative theory of law, there are three conditions a person needs to meet to be considered as
Sovereign in a state:
i.The Sovereign’s power must be unlimited and indivisible.
ii.The Sovereign must be clearly located and easily identifiable.
iii.The commands of the Sovereign must be considered Law.
The Sovereign must make it his duty to consciously formulate laws, which must be backed by sanction.
These sanctions must be coercive (powerful) or alluring so as to make people obey them.
The Sovereign therefore, is a dynamic entity consisting of a legislative part as well as a judicial one.
Physical presence of the Sovereign is not necessary, laws can be implemented and acted upon by the
Sovereign’s agents, which may be the Police, the Judiciary or the Bureaucracy. Therefore, while the Sovereign
may physically reside in an individual, its functions may be carried out by proper machinery with a definite
hierarchy.
Therefore, the Sovereign is more an idea, an idea which is used as a source of legitimacy for the entire legal
system in a state.
MAIN PROPONENTS OF ANALYTICAL SCHOOL
HOBBES(1588 -1679)

Among the most-influential philosophers of law from the early modern period was Thomas Hobbes, whose
theory of law was a novel amalgam of themes from both the natural-law and command-theory traditions.
For Hobbes, law was the primary instrument of a sovereign by which to serve the ends of government, which
were principally peace and the personal security of all its citizens.
Writing during and after the English Civil Wars (1642–51), he developed the idea that government which ruled
effectively by law is the only bulwark against anarchy or, as he famously put it, “a war of all against all.”
Hobbes’s philosophy of law is in part an account of what law must be like in order to serve that function. Many
scholars credit Hobbes as the founder of legal positivism, the dominant philosophical theory of law since the
17th century. 
Thomas Hobbes, in his seminal work Leviathan, postulated the first detailed notion of law based on the notion
of sovereign power, where law is understood, by Hobbes, to depend on the sovereign's will. No matter what a
law's content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it
law.
AUSTIN(1790 -1859)
-Founder
of Analytical School/ English Jurisprudence -THE PROVINCE OF JURISPRUDENCE
DETERMINED
-Rejected natural law – ambiguous/misleading
-All rights are created by the State - All laws are commands – command theory
-ALL LAWS ARE COMMANDS OF THE SOVEREIGN BACKED UP BY SANCTIONS
-Customs are not law until given judicial recognition
-“the existence of law is one thing, its merit or demerit another”
-Divided jurisprudence into: particular & general
-Differentiated between Positive Law & Positive Morality
POSITIVE LAW
-Laws strictly so called – Laws set by men as political superiors to political inferiors
-Laws set by men in pursuance of political rights
POSITIVE MORALITY
-Laws not strictly so called – international law
-Laws by analogy – morals, habits, social etiquettes
JEREMY BENTHAM (1748 - 1832)

-Divided jurisprudence into: expository(what law is) & censorial (what law ought to be)
Expository: Authoritative (derived from Legislative power)& Unauthoritative (derived from text books on
laws/religious texts)
-He opposed the idea of natural law and natural rights
-Popular for being the Founder of Utilitarianism – Hedonism (pursuit of pleasure)
-First person to use the term international law
-LIMITS OF JURISPUDENCE DEFINED
-OF LAWS IN GENERAL
H.L.A HART (1907 -1992)

The Concept of Law is a 1961 book by the legal philosopher HLA Hart and his most famous work.
The Concept of Law presents Hart's theory of legal positivism—the view that laws are rules made by humans
and that there is no inherent or necessary connection between law and morality—within the framework
of analytic philosophy.
Hart sought to provide a theory of descriptive sociology and analytical jurisprudence.
The book addresses a number of traditional jurisprudential topics such as the nature of law, whether laws are
rules, and the relation between law and morality. 
H.L.A HART (1907 -1992)

Hart, like 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 called this “the minimum content of natural law”.
Hart in his book “The Concept of Law”, agrees that law is an obligation. Law makes certain human conduct non-
optional or obligatory.
He disagreed with law being just a command as per Austin’s theory. Hence, used the word obligation.
Why Austin's Theory is not adequate:
All laws are not orders backed up by threats
-Sometimes laws confer powers
-Sometimes the result of not following the law is nullity and not sanction
-Customs are laws and not orders
The notion of continuity of obedience is deficient, no continuity in idea of obedience
Austin’s notion of sovereignty is deficient, unlimited power is not practical
H.L.A HART (1907 -1992)

According to Hart, ‘Law consists of rules which are of broad application and non-optional character, but which
are at the same time amenable to formalization, legislation and adjudication’
Legal Rules are of two types:
PRIMARY RULES – lays down duties
SECONDARY RULES – provides for introducing new primary rules or altering or removing them
Rule of Recognition
Rule of Change
Rule of Adjudication
Sanction Imposing Rules
HART FULLER DEBATE

LAW & MORALITY - NAZI REGIME/APARTHAID – exception – CANNOT BE DEFINED

Harvard Law Review (1958)
HANS KELSON (1881 - 1993) – PURE THEORY OF LAW

To identify the very essence of law, the one thing that makes something law.
Kelson interpreted law differently, not like the command to the people as per Austin, but as the directions.
The existence of a legal norm in respect of which the act is carried out makes the act legal – VALIDITY OF
EVERY NORM IS BASED ON ANOTHER NORM – IT IS AN ASCENDING HIERARCHY

ABOVE ALL NORM IS GRUNDNORM (FUNDAMENTAL NORM)

-Grundnorm is the hypothesis which closes up the arch of legal logic

Austin’s Theory
Relevance in modern Indian politics & legal society – Criticism
Presumption about the subjects
Austin’s theory of sovereignty presumes that people will exactly obey what the sovereign will command which is
not true in the present scenario in India politics. His theories put the habitual obedience by subject on the bottom
line of the philosophy. Those who deem the sovereign as the fit will obey voluntarily. Those who think sovereign
as faulty will obey in the fear that the evil of their resistance will surpass the evil of obedience. And those who are
not certain about will obey sovereign out of custom. Also, Austin’s theory presumes that people are perfectly
educated politically.
But that is not true in the modern scenario. The people who deem the government as unfit criticize, protest and
resist the government and its policies. Which sometimes causes even the total failure of constitutional machinery
like one observed in 1975 when Indira Gandhi (then PM) imposed emergency. There are many other examples in
India only where we have seen people like Anna Hazare, Ramdev and Kejriwal protesting and organizing marches
against the government and demanding changes in its structure or introduction of new laws or amendment of
existing. Also, in a country like India, where one-third of the country (35million people approx) can’t read and
write and where people can kill each other because of fake news and propaganda, it would be lethal and unfair to
presume that most population is politically educated.
Thus, we can say that the presumption of habitual obedience, which is at the very basis of Austin’s sovereign
theory can’t prevail in the present Indian political and legal society.
Doesn’t give room to common law other law-making bodies
According to Austin, only those commands that are given by a political superior i.e. sovereign are laws the real sense. He
has tried to define the law from the sources of its origin than its functions. Though, there is a subtle acceptance of law made
by judges (precedents) unless except it goes against the laws made by the sovereign but it is not appropriate in any sense. 
In India, the Supreme Court is the keeper of the constitution and it has the power to declare any legislation as void if it
contravenes any of the provisions of the constitution and thus protects the fundamental rights of the people of the country.
But according to Austin, courts/judges are the mere the subordinate sources of law and they have to function within the
parameters set by the sovereign. Also, executive bodies like CBI, police, MCDs which are directly in touch with the public
and understand their needs better, can’t make laws for the public’s benefit because statutory instruments are the recognized
source of law. If all this is applied in the modern scenario it can lead to serious chaos and disrupt the country.
 Also, according to Austin’s definitions, customs are also not a source of law and thus not applicable. Law of the church,
the law of the merchants, and many other personal and customary laws like Hindu Law, Muslim law, etc which are in
existence much before this theory, though not been acknowledged but governing the day to day behaviour of the bulk of the
population and is enforced by the state, none of these would be law according to Austin’s definition. Thus, Austin was also
not cognizant of the common law which is the foundation of many countries’ governmental setup.
Thus, we can infer that Austin’s theory is incompatible with modern political and social scenario of India as it doesn’t
give room to the very basic ideas of democracy, constitutionalism and de-centralization and separation of power.
Ignorance of human elements and the fundamental values of the constitution

In Austin’s definition of sanction, we can see that he has ignored the human elements like mutual understanding
and cooperation between the state and the subjects and on the other hand, we can see that he has made vague
presumptions about the subjects like habitual obedience, which is an extremely rare phenomenon in the modern
world. He hasn’t established the right balance between the role of the state and citizens and their relationship with
each other.
Also, Austin’s theory has totally ignored the values and ethics like Liberty of thoughts and beliefs, Equality of
status, etc which are enshrined in the preamble and are the fundamentals of the Indian constitution. Also, India
because of its religious and cultural diversity, has not been considered as a federal state where all the power is with
sovereign by the constitution-makers. It has been beautifully made as a “Union of states” as mentioned in U/A 1 of
the constitution. This is to keep all the states integrated in India but at the same time preserve their individual
autonomy and give them a sense of freedom both of which are in favour of the nation. But Austin’s theory is short-
sighted in this context and there is no such arrangement in his theory.
Thus, we can infer from the above information that Austin’s theory can’t be applied in the modern political and
legal Indian society because of being very rigid and short-sighted approach towards running the state and
ignorance of the core values of democracy. 
  Absolute, unrestricted and indivisible powers to sovereign

Austin has postulated that the sovereign is free from all restraints of any kind of law and that no sanctions of any nature can be imposed on him.
The command of sovereignty is superior to overall individuals and associations. The zero accountability of the sovereign in Austin’s theory brings
the whole country and its people at the mercy of a single person who can decide someone’s life and death according to his mood and personal
whims. Also, because there is only one body as sovereign, it is more prone to attacks and outside pressure from foreign leading to political
instability.
Austin seems to inject an anarchical element into the world order and was probably giving an excuse for the worst excesses of 19th-century
sovereigns like Nazi Germany, slaughtering of Jewish people, world war, etc by imparting sovereign absolute power. Sovereign is not bound to
obey anyone’s order. There is no question of right or wrong, just or unjust, all his commands are to be obeyed. Again, the epitome of absolute
power can corrupt absolutely. In modern times, if such things into existence into any country, it will become much more vulnerable to rebels, riots
or even full-fledged war.
Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will make laws, the sovereign will execute the
laws and the sovereign only will administer the law. This philosophy is also in contravention with the idea of democracy and the Indian federal
structure. 
In Golak Nath v. State of Punjab, it was clearly laid down that separation of power is uncompromisable provision of the constitution by C.J.
Subba Rao in the following words: –
“The three organs of the government have to exercise their functions keeping in mind certain encroachments assigned by the constitution. The
constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without
overstepping their limits. All the organs must function within the spheres allotted to them by the constitution. No authority which is created by the
constitution is supreme. The constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the
Constitution.”

Thus, we can infer from the above facts that all Austin’s theory is not suitable for the modern Indian political and legal scenario because it
leads to political instability, anarchy, and social chaos.
Not cognizant of international law

In the modern era, there are multiple international laws every country has to follow. The importance of
international laws can be understood from the fact that nowadays procedures exist to make the state liable for
injuries caused to foreigners in their land.
Various other principles of international law seem to have cored the concept of sovereignty. A sovereign
doesn’t have the power to perpetuate inhumane action against his citizens as the same shall come into great
criticism from the world order and it shall soon have to face the consequences of surviving in a hostile world
atmosphere if it continues to do so. Also, violation of International laws is also not good for a nation’s socio-
economic well-being leading to serious crisis and various other restrictions in terms of
imports/exports. Especially, in case of a country like India which is trying to boost its economy and GDP by
means of foreign investment and exports in recent times under the campaign like Make in India.  But Austin’s
theory doesn’t give any room to international laws/relations and makes sovereign the supreme and all-pervasive
authority of the land who is not answerable to any.
Thus, from the above facts, we can say that Austin’s theory is a bit impractical to apply in the modern era
of globalization.