Jurisprudence - Analytical school
Introduction of analytical school of jurisprudence
Analytical
school of Jurisprudence is often referred to as ‘Austenian School’ or
‘Positivist School’. Analytical school
of jurisprudence is deals with law as it exists in the present form It seeks to
analyses. the first principles of law as they actually in a given legal system.
This school consider that the most important aspect of law is its relation to
the state. They treat law as a command emanating from the Sovereign, namely,
the State. So, this school is called the Imperative school. This school is
neither concerned with the past of the law nor the future of it, but this
school study of law as it actually exists i. e. positus. This school has become
started during the 19th century might be taken as marking the beginning of the
positivist movement. legal positivism at birth was part of the wider 18th
century intellectual movement known as the enlightenment, which turned away
traditions, superstitions and irrationality to embrace empiricism and science
.it was developed by Bentham and Austin.
They represented intellectual reaction against naturalism. The five
meanings of the term ‘positivism’ have been identifiedPositivism:
1.the
laws are commands of human beings,
2.there
is no necessary connection between law and morals or law as it is and ought to
be
3.the
analysis (or study of the meaning) of legal concepts is (a) worth pursuing and
(b) to be distinguished from historical inquiries into the causes or origins of
laws, from sociological inquiries into the relation of law and other social
phenomena, and from the criticism or appraisal of law whether in terms of
morals, social aims, "functions," or otherwise,
4. a
legal system is a "closed logical system" in which correct legal
decisions can be deduced by logical means from predetermined legal rules
without reference to social aims, policies, moral standards and
5. the
moral judgments cannot be established or defended, as statements of facts can,
by rational argument, evidence, or proof ("non-cognitivism" in
ethics). The second meaning given above may be considered to be proximately
associated with positivism. Emergence of positivism :Emergence of positivism :
1.
Too much focus on religion and morality
2.
Abstract values of natural law
3.
No formal written codes
4.
No specific punishment
5.
Attack on divine theory
6.
Development of new theories
Legal
Positivism is not only the school of thought within jurisprudence that seeks to
separate the law as it is from the law as it ought to be. The main proponents
of this school are Bentham, Holland, Austin, Salmond etc.
JeremyBentham (1748-1832)
1. Introduction:
Geremy Bentham(1748-1832) He was the son of a wealthy London Attorney.
His genius was of rarest quality. He was a talented person having the capacity
and acumen of a jurist and a logician. He started a new era in the history of
legal thought in England. He is considered to be the founder of positivism in
the modern sense of the term. John Austin is regarded as the father of
analytical or positive school. however, it was actually Jeremy Bentham who was
true founder of this school. Austin was inspired by Bentham, and on many
points, his arguments are just a para-phrasing of Bentham’s theory. in his book
entitled Province of Jurisprudence Defined (published 1945) law as the
declaration of a volition (will/wish), adopted by a sovereign concerning the
conduct to be observed by a person, who is supposed to be subject to his power (If
it is simplified it will mean that law is the result of the will of the
sovereign, regarding the conduct of person who is subject to his control.) In
his definition permissive laws are included, which means that these laws are
not commands but merely permission to do or not to do something.
2. Sovereign
He defines sovereign as A person or
assembly of persons To whose will the whole political community pay obedience In
preference to the will of any other person ( It means that a sovereign may be
one or a group of persons. The sovereign must receive obedience from the whole
of the political community. That is the whole of the Nepali political community
must obey the Nepali sovereign. And the political community must not obey any
other political superior).
He says sovereignty is indefinite, unless
expressly limited by religious or political motivation. ( He means that
sovereignty is indefinite unless for political or religious reasons some
limitations are imposed on it. Even sovereign would be bound by his own laws
2. Sanction- is
defined in the form of punishment or reward. ( It means that if some one
refused to obey law, the law is enforced by punishing him or rewarding him.
Bentham
says ‘law is the mandate of sovereign’. He classifies mandates in the following
ways
command:
e.g you must wear seat belt
Prohibition:
e.g you must not wear seat belt
Permission:
(to forebear), you may not wear belts
Permission:
You may wear seat belts
4.
Utility: (Greatest happiness of greatest (number)
Utility
is the part of the theory of legislation. It search for standards for social
progress and the answer is the utility. He found objective standard of human
happiness. He united/integrated the ideas of psychology, ethics and
jurisprudence in order to define utility
The
Utility principle:
He makes a distinction between status of law before it is made and the law
after it is made. Before making law the legislator should take into account the
needs of the people , what is in their advantage and what is not. This should
be done by the legislator by resorting to the principle of utility that is what
gives the majority maximum of happiness. Nature put us under two masters namely
pleasure and pain. We want to avoid pain and seek pleasure. Law is an
instrument for utilitarian reforms. Bentham quantifies pleasure. He was not
concerned about moral quality of pleasure.
Happiness
derived from alcoholism is as important as happiness derived by saving a
child from under the wheels of a moving
bus.
His
calculus: There are units (lots) of pleasure, and value of them
depends on the following
a. Intensity
(power/strength)
b. Duration
c. Certainty
d. Propinquity (nearness)
He
says pleasure’s value also depend on the consequences it produces Fecundity,
that is chances of being followed by more pleasure Purity, the chances that it
will be followed not by pleasure but by pain
John
AustinJohn Austin (1790-1859)
John Austin ’was the greatest exponent of
this School ,who is the father of English Jurisprudence .He was born in 1790
.At a very age he entered the army in which he served for five year .In1826 he
appointed to the Chair of jurisprudence in the University of London .His
lectures delivered in London University were
published under the volume entitled
“The Province of Jurisprudence
Determined”. In his lectures he discusses the nature of law and its
proper bounds. He also discusses the sources of law and presented an analysis
of English legal system.
in his book entitled “ Province of Jurisprudence Determined, 1832 observes that ‘law
is the command of sovereign’ In general law is made by political
sovereign. A sovereign is a human person or group of persons who has
unlimited power, and accepted by the bulk of people for determinate(defined) period Often commands are the expressionof desires given by
superiors (political). Superior(state/authority) has power/ability to give
sanction (punish) for disobeying law. Laws in general are commands. But some commands like army commander’s command(order)
to troops in the parade are not law. He says laws would be generally obeyed,
to be effective. Austin classifies law as divine
law (given by God to men) and human
law ( set by men for men) Other rules set by men but not by political
superiors are also there such as rules of a club or any voluntary association. Positive
law consists of commands set as a general rules of conduct by a sovereign to the
members of independent political society. Command must be obeyed and
denial to obey or violation of command results into sanction (liability/including punishment). Austin give emphasis to
sovereign (not really to people) and believes that ‘law is law because it is made by
the sovereign and sovereign is sovereign because it makes the law’
Criticism
upon Austin’s TheoryCriticism upon Austin’s Theory
1.
On relation of Law with State- Historical
and sociological jurists says that there was law long before the origin of
state and that law was not a result of ’command of sovereign’ but of ‘custom,
tradition, religion, public opinion, and that part is missing
Lord Bryce says- To
make law both the ‘state’ and ‘people’ have significant role. State is not the
sole author of law as the law existed in the communities long before there was state
Henry Maine observes- The
rules which regulated the lives of his subjects were derived from their immemorial
usages and those rules were administered by domestic tribunals in families or
village communities ( in India) humble
2. On the
Generality of Law- Austin consider ‘law as a general rule of conduct’ and
that idea is not correct all the times An Act of Parliament(legislature)
generally deals on the specific issues as well, such as Far western University
Act deals only on the issues of relating to FU not others Likewise the Act made
to give effect to specific international treaty such as Indo/Nepalese ‘Trade
and Transit Treaty (law) would deal only on trade issues between two countries,
and not others
3. On
Promulgation of Law- Austin says law as a command has to be communicated to
the people who have to obey it. But this rule is not universally acceptable. Until
1887 laws in Japan were communicated only to the officials whose duty was to
administer them and no one else was authorized to read the law. During some
part of Rana regime the law (old Muluki Ain) was provided only to the officials
responsible to administer it and not to others. The idea behind was that those
who read law would be clever and able to cheat and revolt against the regime
“Let
the people abide by, but not be appraised by the law” – a Chinese Proverb
4.
On Law as Command- Austin says ‘law is the command of sovereign’. But all the laws can not
be the command of sovereign. Law that ‘confers power to people’ such as
giving right to vote and law relating to sale of property and making of wills
are not commands. In general
‘implied commands are no commands’ so delegated law (rules/regulations) made by
executive/other independent bodies may not be the (direct) command of sovereign
but they are also laws. The law is not always and only the mercy of the state.
5.
On the Purpose
of Law- Austin’s theory of sovereignty
ignores altogether the purpose of law and
seems one sided – Salmond. It forgets
various elements of law other than force (command). There must be purpose
and reason of (making/implementing) law- Paton. Austin’s theory misses the ethical aspect of law but overemphasizes the imperative part.
Salmond. Legal principles are also law
but they are not commands.‘All laws are not produced by law and all laws do
not produce laws’
Salmond’stheory (definition) of law:
Law may be defined as the “body of principles recognized
and applied by the state in the administration of justice”. For him ‘law consists of the rules recognized and
acted upon by the court of law”. Courts
according to him may reject to apply custom as law. He says the ‘interpretation of legislation’ may also
result into law. He defines the law in abstract sense and consider ‘law
is an instrument of justice’. His definition spells out the ethical
purpose of law as well
Main Criticisms on
Salmond’s theory
Medicine
is not only that prescribed by the doctor? There are others too says –Vinogradoff
The formulation of law is a major pre-condition for
justice and the application and enforcement by courts. In English history justice was mainly dispensed on the discretion of
judges based on maxims of equity, justice and good-concise. Body
of law and various principles evolved and collected later. So now the law can
not be said only to the body of rules recognized by courts, and applied.
Court can overrule the earlier court decisions as
well. Any rule can be changed. Cardozo
Salmond defines law as ‘body of principles’ focusing to principles and less focusing to
concrete law as legislation. Salmond
opines, purpose of law is to ensure justice, but purpose ( and function as
well) of law is more than that as to maintain law and order, facilitate social,
economic, political and cultural process of society too. Roscoe Pound says
Salmond’s definition reduces the law to mere collection of isolated doctrines. Jerome
Frank says his definition is narrow and
ignores administrative law
Legal Positivism/ Law as a Normative System: HansKelsen
Kelsen’s positive theory is commonly called as the
‘Pure theory of law’ His theory is also said as ‘normativelegal system’because
for him law is the ‘norm’ The term ‘norm’ may be said as the ‘rule of conduct’
or the ‘rule of behavior’ (of human beings). Kelsen believes that law (is
independent and) must be free from ethics, politics, sociology, history, etc. In
other words law is developed on the basis of law (legal rules) itself
Legal ‘norms’ are expression of ‘ought's’
(bindingness). Norm is a ‘proposition’ in hypothetical forms. Norms can be classified a the ‘primary norm’
and ‘secondary norms’. Kelsen believes that there is a hierarchy of
‘norms’ (law) for example ‘Na’ ‘Nb’ ‘Nc’ (suppose norm ‘Na’ is the ‘grundnorm’
(basic norm). Kelsen says a dynamic system is one, in which fresh
norms are constantly being created on the authority of an original or basic
norm said as ‘grund-norm’ (
basic/fundamental norm). Grund-norm
(can be understood as popular movements/revolution for the change of state system and law as well) for which Kelsen
says “presupposition”. Legal norms are created under the authority
of ‘grund-norm’ like the laws as the constitution, legislation etc
He
rejected the idea of command , because it introduces a psychological element
into a theory of law. In his view to be a pure law, psychology (psychological
component) should be separated from law . So he is in favor of de-
psychologised command.
Law
is primary norm which stipulates the sanction (punishment) and therefore law
arrives to its function. Kelsen make
distinction between legal and other ‘oughts’ and says legal ‘oughts’ are backed
by the force of state. Main function of
law is to give guidance by prescribing how people ought to behave? ‘Ought
norm’(binding law) deals with, what ought to occur? such as if a person commits
crime (murder, theft etc), s/he ought to be punished. If the judge/court asks some
one to imprison, prison staff have to follow the norm and put in prison. Legal
norm prescribes conduct by attachinga sanction to contrary behaviors
Efficacy
/effectiveness of Law
In order to exist for longer period law must be effective and efficient. Efficacy
of the legal order is a condition for
the validity of every norm. In other words existence of legal system rest on
the degree of obeying the law by people. If laws are largely obeyed they are
effective or efficacious, and if not
they may not exist for long or their existence is in question
Critical
Observations:
Despite Kelsen’s theory is called as ‘pure theory’
(making efforts to exclude sociology, history, politics, ethics from law), in
indirect sense he suggests that moral and social values are indispensible in
prescribing (human) behavior. In England the Grund-norm is that “precedents
ought to be binding” but no new norm (secondary norm) coming under the
precedent. Effectiveness of norm or law cannot be measured in isolation as
effectiveness of law depends on sociological/social factors and that is
excluded in his theory. The grundnorm is effective, and continues to be
effective, in so far as an element of morality is built in as part of the
criterion of validity. Kelsen accepts that grundnorm (is made with) is a
political decision, and not dictated by effectiveness ; if so apolitical factor
is involved in law and the law is no more pure.
Legal Positivism:
H.L.A. Hart
Prof
HLA Hart in his book entitled the “Concept of Law-1961” opines that “Legal
system constitutes the union of primary and secondary rules”. “Where there is
law, there human conduct is in some sense non optional or obligatory”-Hart. He develops the theory by criticizing Austin’s view
(of the “command of sovereign”) saying that the “command” may lead to accept
coercion (compulsion). He
says continuance
of preexisting laws (as customary rules) can not be explained on the basis
of command. On
the issue of Austin’s “habit of obedience” he observes that
this rule do not apply all the times such as for the succession of throne (part
of sovereignty) successor would accept it
not because of habit, but as a rule. He distinguishes rules into ‘having an obligation’ or ‘being
obliged’, -giving the example that if a gunman threatens ‘A’ to shoot him
if he denied to handover his money- at that situation ‘A’ is ‘obliged’ to
handover (to avoid unintended consequences) but he has ‘no (legal) obligation’ to do so Rules are conceived to imposing obligations.
Frequently, social pressures put obligations to make the
rules, as they are important and help to restrict free use of violence etc.
Abiding rules depends heavily on operation of feelings
of ‘shame’,
‘remorse and guilt’ (and not on morality). Rules
requiring honesty or truth, keeping promises are either obligation or duty.
But rules that specified under criminal law or civil
law to individuals would provide rights co-relative to obligation
The Two Rules
– Hart:- P&S Rules by HLA hart
Ø PR concerns on actions involving movement
and changes SR provides for operation for example –
society or social structure is one of the PRs- because that require rule that
must contain in some form restriction on the free use of violence/crime and the
law setting institutions and procedures to deal upon those violence or crime
could be said as SR
Ø Under PR human beings are required to do or
abstain from certain actions whether they wish or not, but SR are often
parasitic to primary rules – PR ensures the right to vote (under the
constitution-whether the people would cast or not, no matter) but SR (law and
institutions relating to election management) must make arrangements for
casting vote for everyone concerned .
The legal system constitutes with two rules namely a. Primary
Rules of Obligation (PR) b. Secondary
Rules of Recognition(SR). PR ensures rights, imposes duties and SR
create the organs of the state, that how and who shall make the laws and how
they shall be implemented and how Judiciary shall adjudicate- for
example Constitution that ensures
fundamental rights could be said as PR. The rules relating Parliament, and how it shall make laws, and the rules
providing for the Council of Ministers regarding the implementation of rules
and rules establishing the Supreme Court and giving it powers to enforce FRs
and to hear appeals from lower courts fall to the classification of SR. Under
PR human beings are required to do or abstain from certain actions whether they
wish or not, but SR are often parasitic to primary rules – PR ensures the right to vote (under the constitution-whether
the people would cast or not, no matter) But SR (law and institutions relating to election management) must make
arrangements for casting vote for everyone concerned .
Defects in Primary Rules (Hart)
Uncertainty of the regime of primary rules rest on the
introduction of a rule of recognition Remedy for static quality of regime of
primary rules consists in (until) the introduction of secondary rule Defects
and inefficiency (of rules) will be remedied by secondary rules by empowering
individuals to make authoritative determination of law in question-on
particular occasion, whether primary rule has been broken
Critical Observations
No emphasis to mortality (because some degree of
morality is essential for continued existence of society and a legal system(
RWM Dias). Hart’s concept is based on ‘rules creating power’ and ‘rules
creating duties’. Since long past legal system was continued by their union.
Whether drawing such sharp distinction is good?. Prof Fuller observes that on
occasions the same rule can create power plus duty to exercise it, or power and
duty not to exercise it. Even the rules about secondary rules which may be of
power or duty conferring such as rule requiring government to change a law on
referendum or the duty of the judge to hear a case. Distinction lies not on
rules but on circumstances. There can be primary rule without the rule of
recognition ‘which is not necessity, but a luxury, found in advanced legal
systems
ConclusionConclusion:
Positivism
means that the law as it is actually laid down, positum, has to be kept
separate from the law that ought to be. Bentham defined ‘law’ as ‘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 supposed to be subject
to his power’. Thus, the concept of law for Bentham was an imperative one.
Austin thought that ‘law’ is only an aggregate of individual laws. He defined
‘law’ as a general command of a sovereign backed by a sanction. According to
Kelsen, whose ‘pure theory of law’ is based upon norms, law is the primary
norm, which stipulates sanction. He conceded that a law is a ‘de-psychologised
command, a command which does not imply a ‘will’ in a psychological sense of
the term…a rule expressing the fact that somebody ought to act in a certain
way, without implying that anybody really ‘wants’ the person to act in that
way’. In thus school of last legislation Is the source of law. And similarity
HL-Hart concept of Two Rule PR and SR . Thank
you
Prepare by:
BA.LLB III Sem STUDENT
At Far-Western university
Reference:-
Jurisprudence book
https://epgp.inflibnet.ac.in
https://www.iilsindia.com/blogs/austin-founder-analytical-school/
http://www.legalservicesindia.com/article/519/Natural-Law.html
Analytical
School of Jurisprudence – Notes for Law Students (legalbites.in)
Analytical
School of Jurisprudence | Legal Readings
https://www.law.cornell.edu/wex/jurisprudence
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