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Analytical Positivisim Indian Prespective

Analytical school of jurisprudence

Many jurists have made their efforts to define law, its sources, and nature. To understand their point of view we divide them into the different school and one out of such school is the Analytical School of jurisprudence, which was found by ‘Jeremy Bentham’. Analytical School of jurisprudence is also known as Imperative school or Austinain School of jurisprudence.

Analytical school of jurisprudence:

  1. Jeremy Bentham
  2. Johan Austin
  3. H.L.A Hart
  4. Hans Kelsen

The jurists of the Analytical school of law basically believe in the definition that Law is the command of Sovereign and back by sanction.
So they basically believe in three things:
  1. Sovereign
  2. Command
  3. Sanction (fear of Punishment)
Under this school the jurist believe that people follow the law (the law is nothing only the command of  the king (sovereign)) due to the fear of sanction (punishment) as well as due to interrelationship between the subject and king or subject with other subjects[1] , they only believe in Law it is (proper laws) but they don’t believe in ‘Law ought to be’ (Improper laws or Morality based laws’.[2]They also, believe in the theory of Utilitarianism which basically means Maximum people must be happy and  minimum people should be in pain[3]  which was also known as Hedonism.[4]. According to them, the law is the combination of Primary laws ( it is) and Secondary laws (ought to be).[5]

Analytical Positivism Indian Perspective

Analytical positivism of Austin, Kant, Hart, etc., basically focuses on three assumptions, namely:

  1. Sovereign or Grundnorm as the law creating authority
  2. Emphasis on law ‘as it is’ and exclusion of morality
  3. Insistence on the sanction which was a coercive force behind the enforcement of laws.

As the concept of analytical positivism was not applicable in the ancient Indian jurisprudence because in analytical positivism, sovereign was the lawmaker, so that is why he was always   considered superior to the law but in ancient time the Indian jurisprudences follow the concept of dharma, according to which all the subject including the ruler or the king was similar in front of the law and law was considered to be superior than all. Law, morality, and religion was co-existing at that time but the jurist of analytical doesn’t believe in morality and religion because they only believe in ‘law it is the proper laws.

Thus the concept of sanction was existing in ancient time in the form of ‘DANDA’ but the king was not free to exercise such power in Austin sense and King was only considered to be the promoter of dharma.

Than in the Medieval period, the Indian legal system was greatly affected by the Muslim law which was given by the Holy Quran’. But at that time there were many rulers such as Allauddin Khilji which doesn’t follow the Muslim law according to him, the law is the one which is made by him, and the law at that time was different for Muslims and Hindus.

Due to the British rule in India, the Indian legal system undergoes a radical change. The Britishers don’t believe in moral or improper laws so that is why they have rejected the ancient Indian legal system. They gradually introduced the notions of the British juristic concept of equity, justice, and good conscience[6].

Sir Henry Maine criticized ancient Indian Jurisprudence as an idealistic imagination. So at that time, they form the codified law which fulfills the assumptions of Austinain's concept of positive law. The British king in Parliament was the supreme or sovereign authority to make laws for the governance of India and they were above law enacted for India.

The Indian legislature had no authority to change the law. The Indian’s were bound to obey the laws enacted and thus all the characteristics of positive law, namely, command, duty, sanction, sovereign, etc. were present in the legal system introduced by British rulers in India.

During Post-Independent period the Indians tries to reconstruct the Indian legal system as a result of which the form the ‘Indian Constitution 1950’, as a Grundnorm the concept (the concept given by Kelsonite). Now in the present-day scenario all the laws get their legal validity from the constitution.

So, the concept of Analytical positivism is applicable in India, But the concept was not completely applicable in India because the jurist of analytical school only talks about the law are it’ (proper laws) and the Indian Constitution wants to create the Harmonies construction between both  the law it is’ (the proper laws) and the' law ought to be’(the improper law or the moral laws). The Supreme court in its most of their Cases have used the concept Doctrine of Harmonies construction such as:
  1. Tilkayat Shri Govindlaji Maharaja v. State of Rajasthan[7]
  2. Re Kerala Education Bill[8]

Conclusion
So according to me the assumptions of analytical positivism were not applicable in ancient Indian legal system due to the application of ‘The concept of dharma’ at that time. According to dharma the law was considered to be superior to the king or rulers or the sovereign. Then later during the medieval period, the concept was also not applicable due to the Muslim law but there were certain rulers which have followed the concept of analytical school but not in the Austin sense because according to Austin law is applicable on the subject that means all the persons equally but according to the Muslim rulers they have formed the  laws which were different for Muslims and Hindus.

When India was under the British rule or during the pre-independent period the British government doesn’t agree with the Indian legal system the moral and the improper laws. So they start making codified laws and the concept of analytical school was applicable at that time because such laws were formed by the British parliament and the law provides immunities’ to the British government which makes them above the law, as well as the law, also provides the provision for sanctions. Indians were been forced to follow all such laws because they were not given any powers to alter such laws.

Present Scenario
Now in the present-day scenario or in the post-independent period the constitution is the supreme authority and all the legislatures or laws get their legal authority from the constitution and there is also the concept of sanction ( the fear of punishment) due to which the people follow the laws so all three assumptions of analytical school are fulfilled but along with this the constitution also give dually importance to the’ moral laws’ or ‘the improper laws’ or ‘the laws ought to be’ and tries to make harmonies construction between them. But the jurist of analytical doesn’t believe in the improper laws.
  1. H.L.A.Hart
  2. John Austin
  3. Jeremy Bentham
  4. Name given by John Austin
  5. H.L.A.Hart
  6. See Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461: Minerva Mills v. Union of India , AIR 1980 SC 1789, Waman Rao  v. Union of India , AIR 1981 SC 271, etc.
  7. AIR 1963 SC 1638
  8. AIR 1958 SC 956 

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