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‘Analytical School’

Prof. S. D. Bhosale

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(..5 b..)

ANALYTICAL SCHOOL / POSITIVE LAW SCHOOL

QUESTION BANK.

Q. 1. “Law is a command of sovereign” Discuss.

Q. 2. Describe briefly the Analytical School of Jurisprudence.

Q. 3. Critically examine Austin’s imperative theory of law.

Q. 4. Explain the important futures of analytical school.

SHORT NOTES.

1. Analytical Positivism.

SYNOPSIS.

MEANING.

I)

Bentham (1742 to 1832) –

a)

b)

c)

d)

Bentham’s Definition of Law –

Bentham’s Utilitarianism –

Criticism –

Conclusion –

II)

a)

John Austin (1790 to 1859) –

Conception of Law –

b)

Kinds of Law –

a)

b)

Positive Law-

Law is a Command of Sovereign-

Other Laws-

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c) Criticism –

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1)

2)

3)

4)

5)

6)

7)

8)

Custom ignored-

Permissive Laws-

Judge-made Law-

International Law-

Over-emphasis on command –

No relation between Law and Morality –

Emphasis on Sanction –

Conclusion –

MEANING.-

The school is called an ‘Analytical School’ because it concentrates on the systematic

analysis of legal concepts. The school is also called the ‘positive law school’ because the

exponents of this school are concerned with the law ‘as it exists and not what the law ‘ought

to be. Natural law school is concerned with “what law ought to be”, but positive law school

is concerned with the law “as it is”. The school has emerged and flourished in England;

therefore, it is called an ‘English school’. John Austin founded the school; therefore, it is

also called ‘Austinion School’. The school is called different names such as ‘Analytical

school’, ‘Positive school’, ‘English School’, ‘Austin’s School’ etc.

The chief exponents of this school are Bentham, Austin, Sir William Markby,

Holland, Salmond, and Prof. H. L. A. Hart. Other exponents are Gray, Hohfield, Kelson,

etc. The school gained momentum in the 19^thcentury.

I)

Bentham (1742 to 1832) –

Though Austin is considered to be the father of ‘Positive Law School’. Jeremy

Bentham appears to be the founder of this school. Austin owes much to Bentham, and on

many points, his propositions paraphrase Bentham’s theory that Austin was Bentham's

disciple. According to some exponents, Bentham is to be considered as a father of

‘Analytical School’ and not Austin (as it is commonly believed). Bentham’s work on law

and legislation did not receive much attention during his lifetime but got high appreciation

after his death.

a)

Bentham’s Definition of Law –

Bentham defined law as ‘‘an assemblage of sign, declarative of volition (decision)

conceived or adopted by the sovereign in a state, concerning conduct to be observed in a

certain case, by a certain person or a class of persons, who in the case in question are, or

are supposed to be subject to his power’’.

Bentham was a champion of codification (earlier laws were not codified but

customary as such.) According to him, before the reformation, substantive law has to be

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thoroughly analysed. He favours analysis of law. i.e. “what law is” than “what law ought

to be”. Thus, Bentham first time took a turn from established notions of natural law. i.e.

‘what law ought to be.’

b)

Bentham’s Utilitarianism –

Bentham was an individualist. According to him, “the function of law is to free the

individual from the bondages and restraints upon his freedom. Freed individual will look

after his welfare”. Thus, he was a supporter of ‘lassiez faire’ principle of economy. He was

in favour of codification and condemned ‘Judge-made law’ and ‘custom’. Bentham

propounded the principle of utility. According to him, the end of every law is the promotion

of the greatest happiness of the greatest number of people. He defined ‘utility’ as “the

property or tendency of thing to prevent some evil or procure some good”. The

consequences of good and evil are, respectively, ‘pleasure’ and ‘pain’. According to him,

the purpose of the law is to bring pleasure and avoid pain. According to him, every act of

a person is guided by ‘pleasure’ and ‘pain’ which he calls ‘hedonistic calculus’. He,

therefore, stresses the need to enact a law so that the person intending to do a crime would

calculate beforehand the pain of punishment that he is going to suffer.

c)

Criticism –

According to Freedman, the theory of utilitarianism suffers from a weakness viz –

1) In an effort to blend materialism with idealism, Bentham underestimates the need

for individual discretion and flexibility in the application of the law. He

overestimates the power of the legislature.

2) Bentham’s theory fails to balance individual interest with that of the community.

His theory of utility seems contradictory to his concept of individualism.

d)

Conclusion –

Bentham’s theory of utilitarianism, hedonistic calculus and his thoughts as to legal

reforms and codification ushered a new era in the history of legislation. Legislation has

become one of the most popular methods of law-making worldwide in modern times.

II)

John Austin (1790 to 1859) –

Austin’s book on the lectures delivered at London University was published with

the title “the province of Jurisprudence determined”. This book gained popularity and

placed Austin’s views about the law before the world. He is called the father of positive

law school.

a)

Conception of Law –

Austin defied the law as a rule laid down for the guidance of an intelligent being by

an intelligent being having power over him”.

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b) Kinds of Laws–

Austin has divided laws into two categories-

Law of God – i.e. law set by God for men.

Human Laws – i.e. laws set by men for men.

He divides human laws further into two categories, viz-

Positive Law-

i)

ii)

a)

These are the laws set by political superiors or persons acting under the right

conferred by a political superior. He describes that only those laws, i.e. positive laws, are

the subject matter of jurisprudence and not any other law.

Law is a Command of Sovereign-

He defines ‘positive law’ as a ‘command of the sovereign’. According to him chief

characteristics of positive law are command, duty and sanction. In other words, i. e. every

law is a command, imposing a duty and enforced by sanction. Sanction is the penal force

of the state.

b)

Other Laws-

Other laws are those laws which are not set by the political superior or by the person

acting under the right conferred by the political superior. He calls these laws improper laws

or “laws improperly so-called”. He further says that these laws are opinions or sentiments

of an indeterminate body of men and are laws of fashion or honours. According to Austin,

international law falls under this category. According to him, there are some rules which

are called 'law metaphorically'. They are also improper laws or laws improperly so-called.

c)

Criticism –

Austin’s theory is criticized on the following grounds viz.

Custom ignored-

1)

Austin defines “law as a command of a sovereign”, which is not supported by the

historical evolution of law, where custom had played a very important role. However,

Austin has ignored the custom.

2)

Permissive Laws-

Austin's theory does not take into consideration the laws which are of permissive

character and confer certain privileges upon persons, such as the Wills Act, Bonus Act etc.

3)

Judge-made Law-

Judge-made law has no place in Austin’s conception of law. However, in modern

times all over the world, it is accepted as one of the sources of law-making. In India also

judiciary plays an important role in laying precedents and giving positive directions.

4)

International Law-

Austin does not recognize International law as a law. According to him,

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international law lacks sanction. For him, international law is merely a rule of positive

morality. However, this view of Austin is not tenable because of the increasing importance

of international law.

5)

Over-emphasis on command –

Austin has over-emphasised command. In the modern democratic world, the general

will of the people is deciding factor and not anybody’s command.

6)

No relation between Law and Morality –

Austin has ignored the relationship between law and morality, which is the greatest

shortcoming of Austin’s theory. In fact, the law cannot completely be separated from ethics

and morality.

7)

Emphasis on Sanction –

According to Austin, 'law is a command of sovereign enforced by sanction'. In fact,

apart from sanction, there are many things like reason, motive, morality etc., by which man

gives obedience to the law.

8)

Conclusion –

In spite of criticism, Austin’s theory ushered a new era in the analysis of law. He is

called a pioneer or father of the modern positive approach. Austin’s positive law theory

has a great contribution to jurisprudence.

*****