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Analytical School of Jurisprudence

Jurisprudence is divided into three branches on the technical sense. This division is based upon the assumption of jurist belonging to different school about the ‘law’. The scope of jurisprudence has been considerably widened since 19th century pertaining to need of an hour. In modern times it has been thought to be as science of social control for human behaviour so a comprehensive legal philosophy founded by the advocates of different school became demanding.

Salmond divided jurisprudence into three major school which are known as Analytical school, Historical school and Ethical school. The division is correspond to legal exposition, history and lastly of science of legislation, i.e dogmatic , historical and ethical aspect of jurisprudence. It must be however be stated that eminent author of Salmond’s jurisprudence, P.J. Fitzgerald has omitted to mention the division of jurisprudence into three branches, because in his opinion such a division of the concerned subject into particular compartment is unwarranted the reason that for full exposition of the present preposition of law under analytical school there is no unanimity of opinion regarding desirability of grouping the essential concerning theme our nature of law some jurist have justified the division of grouping in the interest of uniformity and identification into definite category of branches known as school of jurisprudence.

Analytical school

The main premises of this school of jurisprudence is to deal with law in its present form , it seeks to analyze the initial principle of law as they actually exist in given legal system. The exponent of analytical school consider that major important aspect of law is its relation to the sovereign state . They observed law as a command from the sovereign, the state, therefore this school is also called as imperative school. The advocates of this school are neither concern with the past of the law nor with the future, meanwhile they just focus to the study of law exist presently or positus.

Bentham heralded a new era in the history of legal thoughts . He’s considered to be founder of positivism in the modern sense of the term. It has been rightly observe that Austin owes much to Bentham and on many prospective his preposition were nearly the paraphrasing of Bentham’s theory. Bentham was talented person having the capacity of acumen of a jurist logician. Dicey, In his book ‘law and public opinion in 19th century’ he has sketched Bentham’s idea about individualism and law reforms which have affected the growth of English law in direction of positivism.

The contribution of Bentham can be summarised as:

He determined, in the first place, principles on which reform should be based.
Secondly, He determined the method or a mode of legislation by which reforms should be carried out in England.

Bentham’s Expositorial and Censorial Jurisprudence

Bentham preferred to categorise jurisprudence into ‘expositorial’ and ‘Censorial’ jurisprudence .
Analytical jurisprudence or Expository is concerned with law , as without taking consideration of any moral or immoral characters. Censorial jurisprudence on the other hand is said to be science of legislation, meaning ‘what the law ought to be’.

Bentham’s views on law and legal positivism

English law by its nature during the end of 18th century , when Bentham was young , had developed almost in haphazard way as a result of custom or thought which prevailed at different time. The law which were came into existence were not in enacted with any definite principal guarding them behind. The law of England, like that of most countries of contemporary Europe had grown out of various occasion emergency or need of an hour . It is due to this reason that it is often said that England law had in fact grown rather than being propounded.

Bentham campaigned of the reform and greatly emphasised that prior to reform there has to be brief classification of law as it is. He was an expert of codified law and of English law reform which in his view was in chaos that time. He argued that there could be no reform in substantive law leaving out the reforming its structure through a process of analysis. And so he differentiated expositorial jurisprudence ( i.e. what the law is) and censorial jurisprudence ( i.e. what ought to be ) which laid greater emphasis on art of forming a legislation.

Bentham’s views on Justice

Bentham agrees with the thought of Hans Kelson who once said Absolute justice is an irrational ideal, an illusion - one of the eternal illusions of mankind. He believed justice to be primarily a quality of social order regulating mutual relations of men. A social order is said to be just if it is satisfactory to all men. And so, longing for justice is , in fact, longing for happiness in the society.

In laymen words, justice is nothing but social happiness guaranteed by a social order and protecting certain interests socially recognized by the majority as worthy of being protected.
Bentham’s perception of justice is based on system of values  and each society has its own different set of values, i.e, morals. The individual living in the society have to conform the set values or norms and rationalise his conduct of interest.

Bentham: A progenitor of modern analytical jurisprudence
Bentham was primarily concerned with the law reform and so he differentiated censorial or evaluative jurisprudence from expository or analytical jurisprudence. According to him, expository jurisprudence is mainly concerned with law as it is , without any concern of law as it ought to be.

Meaning, he did not think morality as an essential attribute of law. He expounded the concept of ‘positive law’ which commanded citizen to obey the law as it it or face legal actions in the situation of disobedience. Thus he completely discarded the superiority of natural law , he argued the supremacy of the law made by the Sovereign.

Criticism against Bentham

Bentham theory of utilitarianism is subjected to vast criticism on many aspects. As according to Friedmann , it lacks primarily in two ways. Firstly, in an effort to put materialism with idealism in one jar, Bentham underestimated the need for individual discretion and flexibility in application of law accordingly, and overestimated the power of the legislator. Secondly , his theory fails to balance individual interest and community interest. And adding-on to this , Bentham’s hedonistic calculus, means that utilitarianism is that pleasure and pain alone cannot be the final test of the adequacy of law.

John Austin

Austin joined army and served for five years till 1812 , he was called to the Bar in year 1818 after his graduation and devoted his time to equity , legal practice and draftsmanship. Later, he was elevated to the chair of jurisprudence in the university of London 1826. He was attracted to scientific treatment of Roman law and took inspiration to introduce the same method to the legal exposition of law in England. Austin published a lecture as Province of jurisprudence Determined in 1832

Austin’s Analytical Positivism

Austin was known to be father of English Jurisprudence. He focused his studies upto the positive law only and applied analytical method for the purpose. By the positive law , Austin meant ‘law property so called’ as distinct from morals and other laws which he described as ‘laws improperly so called’ which lacked force or sanction of the sovereign state. Austin described law as ‘an aggregate rules set by politically superior man over the man politically inferior’.

He formed four essentials attributes of law namely:
  1. command
  2. sanction
  3. duty and
  4. sovereignty.
He for the first time treated jurisprudence to be a science of law concerned along with the analysis of legal concept - their exposition , examination and comparison in a scientific manner for determining the scope and extent in a given politically society. He distinguished positive law form positive morality which is devoid of any legal sanction. He identified law with command , duty and sanction.

Austin’s Imperative Theory Of Law

Austin’s analytical school was preferably termed as Imperative school by Dr. Allen. He further stated that , Austin defined law as ‘a rule laid for the guidance of intelligent beings, by an intelligent beings having power over him.’ He has divided law into two parts , firstly, Law made by god from mankind ; and secondly, Human law, or law made by man for man. He stated that so called positive morality is not law, but it is analogy.

As per work of Austin, analysis of positive law alone is the appropriate matter of subject of jurisprudence. If I quote his words, ‘the subject matter of jurisprudence is positive law- law simply and strictly so called; or law set by political superior to political inferior’. The major identification of positive law are command , duty and sanctions.

Means that, every law is said to be a command , imposing a duty , and enforced by sanction.
However, Austin accepts the existence of three kind of law , which may not be a command but included within purview of law by way of exception,
First, Declaratory Or Explanatory law- These are not commands due the pre-existence and are passed only to explain the laws which are already in force.
Second, Laws of Repeal - Austin did not treat repealed law as command as by the nature , they are revocation of earlier commands.
Thirdly, Laws of imperfect obligation- The lack to be treated as command as they are not attached with any sanction per se.


Criticism of Austin’s Imperative Theory of Law

Austin’s theory of positive law had been criticised on major aspects and termed as full of errors which hardly has any significance in juristic thought process by Bryce.

Some of the grounds for criticism are as follows:
  1. Customs overlooked:

    Austin’s theory states that ‘law is command of the sovereign’ lack on the foundation by historical evolution of law when custom played and important role to regulate the human behaviour. Also that, custom is still a major source of law in modern era , even after the establishment of organised sovereignty
  2. Permissive character of law ignored:

    Austin’s theory lacks on noting laws which are of permissive nature and confers privileges , the Bonus Act , or the Laws of Wills , etc.
  3. No place for judge-made law:

    Judicial precedent was not given any acknowledgment in the Austin’s theory meanwhile the creative functions of judiciary as a law-making agency has been widely accepted world wide in modern times.
  4. Inter- relationship between Law and Morality completely ignored:

    The greatest shortcoming of the Austin’s theory is said to be the complete ignorance of the relationship between law and morality. Law can never be completely set aside from ethics or morality which is the strength to it. The words like ‘rights’ , ‘wrong’ , ‘duty’, etc. has in themselves an imbedded idea of morality or ethics


Conclusion
When the analytical positivism of English legal system was examined in light of ancient Indian Jurisprudence would uproot certain contradictory facts. Where in Austin’s theory sovereign is given the utmost power higher than the law, on other hand contrary to it , In ancient Indian legal system , Law is given the higher place by which both the state and subjects are bound to. So the Dharma occupied a highest place in Indian legal system and sovereign was bound to rule according to dharma.

In Indian legal system dharma consist in observance of truth , non-violence and rightful code of moral conduct which holds or sustains men together in harmony and establishes social solidarity. Dharma in Indian context is consist of achara (rules of daily routine), Vyavahara (rule or decree or commands of the king) and prayaschitta (penance). The king was bound to enforce law according Shastras . The element of ‘Sanction’ found expression in the ancient Indian legal system by way of danda (punishment) and so the great ancient law-giver Manu says it is the fear of danda which makes people to follow dharma. The glimpses of positivism in laws framed after the independence differs from Austinian conception of analytical positivism in way that the former seeks to establish harmonious relationship between ‘is’ and ‘ought’ that is, it do not ignore the element of justice or morality from the law, whereas , there is no place for there elements in the latter.

References:

  1. http://www.legalservicesindia.com/article/1702/Analytical-Law-School.html
  2. https://www.legalbites.in/analytical-school-jurisprudence/
  3. https://blog.ipleaders.in/schools-jurisprudence-thinkers/
  4. Pg. 25, Dr. N.V. Paranjape, Studies In Jurisprudence & Legal Theory (Central Law Agency )

Written By: Siddharth Gupta, BBA. LL.B (Hons) , Amity Law School , Noida

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