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.
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
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
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
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.
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:
- duty and
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
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
Means that, every law is said to be a command , imposing a duty , and enforced
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
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
Some of the grounds for criticism are as follows:
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
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.
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
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
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.
- 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 ,