Analytical School of Jurisprudence

By | August 23, 2018
International

Introduction

Analytical school is also known as the Austinian school since this approach is established by John Austin. It is also called as an imperative school because it treats law as command of the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is positive law.

The analytical school gained prominence in the nineteenth century. The distinctive feature of eighteenth-century juristic thought was Reason. Individualism became the manifestation of the cult of reason. Writers like Descartes, Locke, Rousseau, Kant advocated Reason as the last guide and judge in everything. Bentham breaks away from the spirit of the eighteenth century, rejects natural law and subjective values and emphasizes utility and propounds the concept of expository jurisprudence which deals with the law as it is.  Austin takes over tins concept of expository jurisprudence and subjects it to a far more detailed, thorough and searching analysis. Allen has pointed out that Austin does not revolt against 18th-century individualism but seems to be quite impervious to it. His approach was secular, positivistic and empirical. In fact, it was Austin who propounded the theory of positive law, the foundation of which was laid by Bentham.

BACKGROUND 

The Natural law school predominated of the juristic thought up to the beginning of the eighteenth century. Principles of Natural law were considered supreme and according to some writers, could override the man-made law. The term Natural law was differently defined and understood by different writers and no single general acceptable meaning of the term “Natural law” or the criterion for ascertaining the content of the principles of Natural Law was there. Nature, reason, supernatural source, justice, utility were some of the bases from which Natural Law was supposed to be derived. The analytical school was a reaction against the airy assumptions of natural law.

EXPONENTS OF ANALYTICAL SCHOOL

The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart.

Bentham

Jeremy Bentham can be said to be the founder of the Analytical school. In one of his books, he rejected the clinches of natural law and expounded the principle of utility with scientific precision. He divided jurisprudence into expository and censorial. The former deals with the law as it is while the latter deals with the law as it ought to be. Bentham’s analysis of censorial jurisprudence is indicative of the fact that the impact of natural law had not completely disappeared that’s why he talked of utility as the governing rule. Perhaps, because of this reason, Bentham is not styled as the father of analytical school. He, however, believes that law is a product of state and sovereign. Bentham’s concept of law is an imperative one for which he himself referred the term “mandate”. A law may be defined, said Bentham, as an assemblage of sin declarative of a violation 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.

Austin

In 1832, John Austin’s lectures were published under the title of “the Province of Jurisprudence Determined”. This was the first systematic and comprehensive treatment on subject which expounded the analytical positivist approach and as a result of this work, Austin is known as the father of the Analytical School. He limited the scope of jurisprudence and prescribed its boundaries. His approach was analytical.

Analysis was according to him the principle method of study in jurisprudence. Austin built on the foundation of expository jurisprudence laid by Bentham and did not concern himself with extra-legal norms. He distinguished between the science of legislation and law from morals.

To Austin, jurisprudence meant the formal analysis of legal conceptions. He divides jurisprudence into general jurisprudence and particular jurisprudence. Austin took a legal system as it is that is positive law and resolved it into its fundamental conception. Positive law is the outcome of state and sovereign and is different from positive morality. The great contrast between positive law and positive morality, according to Austin, is that the former is set by a political superior whereas the latter is not the offspring of state and sovereign, hence it is not law. Law cannot be defined by reference to any idea of justice. The science of jurisprudence is only concerned with the positive laws. According to Austin, analysis of positive law is to be done by the operation of logic on law without consideration of history of ethical significance. Austin ignored social factors as well as in his analysis of law, he emphasized that by the operation of logic, it is impossible to find out the universal elements in law for example, notions was common in all mature legal systems.

Austin’s approach, analysis and deduction are, however, applicable to a unitary polity based on parliamentary sovereignty. It does not have that relevance to legal systems as in India and the United States of America.

Holland

Holland is another supporter of analytical school. He is the follower of Austin. However, he differs from Austin as to the interpretation of the term positive law. For him, all laws are of not the command of sovereign, rather, he defines law as rules of external human action enforced by a sovereign political authority.

Salmond

Salmond also belongs to the analytical school but differs from his predecessors in a number of ways. These are :
  1. He gives up the attempt to find the universal elements in law by defining jurisprudence as science of civil law. According to him, there is nothing like universal element in law because it is the science of law of the land and is thus conditioned by factors which prevail in a particular state.
  2. He deals with low as it is but law to him is to be defined not in terms of the sovereign but in terms of courts. Law is something which emanates from courts only.
  3. He did not agree with Austin that analysis of law can be done with the help of logic alone. He points out that the study of jurisprudence which ignores ethical and historical aspects will become a barren study.

Tenets of analytical School

  1. Difference between law as it is and law as ought to be – This is a trait of all positivism thinkers for example, Bentham’s Law and Morals have same course but different circumference. Austin does not deny that moral factors work in the creation of law, however, he does not allow any place to morals in his theory. To him, positive law carries its own standard itself. This approach has been criticized by Dias, Hughes, Paton, Stone, Fuller, etc.
  2. Concentration of positive law – Analytical jurists look exclusively at the positive law. They prefer to be concerned only with what is the pure fact of law. Representing to themselves the whole body of legal precepts that obtain in a given system as made at one stroke on a logical plan to which they conform in every detail, the analytical jurists set out to discover the plan by analysis.
  3. Law in terms of and a product of State – Analytical jurist regards law as something made consciously by lawmakers, whether legislative or judicial. They emphasize not the way in which the precepts originate with respect to their content but the fact that they get the conscious stamp of the authority of the state. Thus the most important fact is establishment or authoritative recognition by the state, of a rule of law. In this sense law is a product of conscious and increasingly determinate human will.
  4. Logic – For studying law, analytical jurist have mainly taken resort of logic and rejected ethical elements. There is no value of historical or social factors for jurists of analytical school.
  5. Statute – Law is that which is made consciously by the state. Statute law is the main concern of the school.

Kelson’s pure theory of law

Kelson’s theory of law which is known as pure theory of law implies that law must remain free from Social Sciences like psychology, sociology or social history. Kelson’s aim was to establish a science of law which will be pure in the sense that it will strictly eschew all metaphysical, ethical, moral, psychological and sociological elements. His aim goes beyond establishing an autonomous legal science on positivistic empirical foundations, as he constantly criticized the ideas of justice and the principles of natural law. He altogether excludes all such factors from the study of law. Kelson defines law as an order of human behaviour.

The specific nature of this order consists –

  1. in its being coercive and
  2. the fact that this coercive power is derived solely from the sanction attracted to the law itself. His sole object was to determine what can be theoretically known about the law of any kind at anytime under any conditions.

The essential foundations of Kelson’s system may be summarised as under :

  1. The aim of theory of law as of any science is to reduce chaos and multiplicity and to bring unity.
  2. Legal theory is science not volition. It is knowledge of what law is, not of what the law ought to be.
  3. Law is a normative not a natural science.
  4. Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.
  5. A theory of law is formal, of the way of ordering changing contents in a specific way.
  6. The relations of legal theory to a particular system of positive law is that of possible to actual law.

The most distinguishing feature of Kelson’s theory is the idea of norms. To Kelson, jurisprudence is a knowledge of a hierarchy of norms. A norm is simply a preposition in hypothetical form. Jurisprudence consists of the examination of the nature and Organisation of such normative proportions. It includes all norms created in the process of applying some general norm to a specific action. According to Kelson, a dynamic system is one in which fresh norms are constantly being created on the authority of an original or basic norm, while a static system is one which is at rest in that the basic norm determines the content of those derived from it in addition to imparting validity to them.

Criticism

Kelson’s pure theory of law has been criticized by jurists. The main criticisms are as follows :

  1. His conception of Grundnorm is vague. Friedman puts it, it is a fiction incapable of being traced in legal reality. Kelson seems to have given his thesis on the basis of written constitution but even in the written constitution Grundnorm is made up of many elements and any one of these elements alone cannot have the title of Grundnorm.
  2. Every rule of law or norm derives its efficacy from some other rule or norm standing behind it but the grundnorm has no rule or norm behind it. A grundnorm derives its efficacy from the fact of its minimum effectiveness.
  3. Another important objection of Kelson’s theory is that he has not given any criterion by which the “minimum of effectiveness” is to be measured. Writers like Friedman, Stone, Stammer have pointed out that in whatever way the effectiveness is measured, Kelson’s theory has ceased to be pure on this. The minimum of effectiveness cannot be proved except by an enquiry into political and social facts whereas Kelson has altogether rejected political and social facts.

By – Shubhi Pandey

(RDVV)

SOURCES

  • STUDIES IN JURISPRUDENCE AND LEGAL METHOD BY DR. N.V. PARANJAPE

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