This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the analytical school of jurisprudence.
This article has been published by Shoronya Banerjee.
Table of Contents
Analytical school of jurisprudence is based on the legal maxim, ‘Ubi civitas ibi lex’ which signifies ‘where there is State, there will not be anarchy’ and therefore, the underlying principle of this school is the relation of law with that of a State. The essential concept of the Analytical school of jurisprudence is to deal with the law as it already exists. Law, according to the Analytical school, is the sovereign’s direction. As a result, analytical schools are also known as imperative schools. In the nineteenth century, the analytical school rose to prominence. It claims that morals are not objective but the law must be objective. If morals are included in the concept of law, the law will no longer be objective. The analytical school takes a ‘positive’ perspective on societal legal issues. The positivists’ main concern is the law that is actually found (positum), rather than the ideal law. Put simply, ideal law is the perfect law for a society or a circumstance whereas law which is actually found concerns logical and welfare thinking in the legislation. Legislations, court precedents, and customary laws are the most important legal sources. This school, which is the most popular in England, establishes the fundamental elements that make up the fabric of law, such as state sovereignty and the administration of justice. While Bentham, Holland, Austin and Salmond are major proponents of this school, Austin is considered as a father of the Analytical school. The present article reflects on the essential aspects related to the Analytical school of jurisprudence.
Positivism in law
The positivist movement began at the turn of the nineteenth century, according to Professor Dias. It was a reaction to a priori thought, which turned away from the reality of actual law in an attempt to uncover the universal validity principle in nature or reason. These ideas were used to explain or condemn actual legislation. Professor Hart had previously said that the term “positivism” had a wide range of connotations. One interpretation is that laws are orders. The founders of British positivism, Bentham and Austin, are connected with this notion. Judges do make law, and positivists do not reject this. In fact, the vast majority of them confess it. The term ‘positivism’ was invented by a French thinker, Auguste Comte.
The antipathy to metaphysical inquiry and the quest for ultimate principles was shared by legal positivism and positivist philosophy in general. Metaphysics refers to the studies of what cannot be reached through objective studies of material reality, for example, cosmology, ontology, etc. Any attempt by jurisprudential experts to detect and define a concept of law that transcended the actual facts of existing legal systems was dismissed. It aimed to keep value concerns out of jurisprudence and limit the discipline’s scope to the investigation and dissection of positive legal orders. Only positive law, according to the legal positivist, is the law and positive law are those legal standards that have been created by the State’s power. Legal positivism has made its most visible appearance in analytical jurisprudence, and therefore the latter acquired the name analytical positivism. Analytical positivism takes a given legal order as its starting point and distils certain fundamental notions, concepts, and distinctions from it using a predominantly inductive method, possibly comparing them in order to find some common elements.
An insight about the Analytical school of jurisprudence
Various names have been attached to the Analytical school. It is known as the Positive school because its adherents are unconcerned about the history or future of law, but as it currently exists. The Analytical school was dominant in England and therefore also came to be known as the English school. It is known as the Austinian school because it was founded by John Austin. This school takes the evolved legal system for granted and continues logically to analyse and classify its key principles in order to reveal their interrelationships. Analytical jurisprudence is the name given to this school because of its focus on the methodical investigation of legal principles. Analytical jurists’ initial interest is to comprehend the structural character of a legal system, and discussions about justice are not only unnecessary but also dangerously confusing for this aim. This approach to law is termed analytical and such writers are styled as Analytical positivists.
The Analytical school views law as a sovereign’s mandate. It emphasised the importance of legislation as a source of law. The notion of law underpins the entire system. Analytical jurisprudence does not produce its premises, rather, the law provides them. Analytical jurisprudence’s role is to accept these premises and break them down into their ultimate atomic constituents in a well-organised legal framework. This school views law as a closed system of pure facts that excludes all norms and values.
Purpose of the Analytical school of jurisprudence
The purpose of Analytical jurisprudence is to examine the foundational principles of law without regard to their historical origins, evolution, ethical importance or validity. According to Salmond, a book of analytical jurisprudence will deal with an analysis of the concept of law, an examination of the relationship between civil law and other forms of law, an analysis of the various constituent ideas of which the complex idea of law is made up, such as State, sovereignty, and administration of justice, an account of legal sources from which law proceeds, as well as an investigation of the theory of legislation, and so on.
Function of the Analytical school of jurisprudence
The Analytical school’s fundamental objective is to provide legal principles in a clear and methodical manner that is relevant to a larger and more developed legal system. It begins with the real facts of law as they exist now. It tries to define those words, explains their meanings, and illustrates how they are related to one another. One of the goals of the Analytical school is to have a thorough knowledge of the underlying notions that underpin all legal thinking.
Significance of the Analytical school of Jurisprudence
Analytical Jurisprudence’s significance stems from the fact that it provided clarity to legal reasoning. It gave us a vocabulary that was clear, precise, and scientific. It accomplished Austin’s goal of “clearing the heads and untying the knots.” It purposefully left out all external elements that aren’t covered by the law.
Founder and advocates of the Analytical school of jurisprudence
Bentham (1742-1832), Austin, Sir William Markby (1829-1914), Sheldon Amons (1835-1886), Holland (1835-1926), Salmond (1862-1924), and Prof. HLA Hart (1907) are the most prominent proponents of the Analytical or Positivist school in England. Gray and Hohfled aided this school in the United States, while Kelsen, Korkunov, and others aided it on the continent of Europe.
Everything that Bentham had to say
Bentham advocated for an imperative conception of law, in which sovereignty and command are central principles. The contrast between social desirability and logical necessity was recognised by Bentham. He also accepted divided and partial sovereignty while debating the legal constraints that the sovereign authority may face. In general, sanctions play a less important role in Bentham’s theory than they do in Austin’s. Even if simply supported by religious or moral consequences, Bentham believed that a sovereign’s edict would constitute law. Alluring incentives and the idea of rewards are acknowledged in Bentham’s account.
The English lawyer John Austin (1790–1859) published a much-simplified version of Bentham’s philosophy of law, which helped set the agenda for key work in the twentieth century. Bentham also advanced a critique of the common law as the exclusive domain of the professional elite, lawyers and judges, in which often obscure and technical language was used to keep the law shrouded in mystery from the perspective of ordinary citizens, all in the service of perpetuating the myth. In Bentham’s opinion, lawyers are experts in “artificial reason,” as Coke had first proposed.
Bentham contrasted expositorial jurisprudence (that is, what the law is) from censorial jurisprudence (that is what the law ought to be). His definition of law is “law is an assemblage of signals, affirmations of intention conceived or chosen by a sovereign in a State.” While supporting the economic idea of laissez-faire (minimum government intervention in people’s economic activity), he advocated for utilitarianism which signified that ‘the legitimate purpose of every legislation is the advancement of the greatest pleasure of the greatest number.’ Bentham defined utility as “the property or tendency of a thing to prevent some evil (‘pain’) or procure some good (‘pleasure’).” According to him, the role of legislation should be to achieve these goals, namely, to provide sustenance, produce abundance, promote equality, and preserve security. Bentham’s hedonism doctrine, or philosophy of pain and pleasure, has been attacked on the grounds that pleasure and suffering cannot be the final measure of a law’s fitness.
John Austin and his sayings
John Austin (1790-1859) worked as a lecturer at the University of London. He used the analytical technique – ‘Law should be rigorously examined and evaluated, and the principle underlying it should be discovered’ and limited his research to Positive law that is Jus positivism (‘Law, simply and strictly so-called: Law set by political superiors to political inferiors’). As a result, he used the terms “analytical,” and “positivism,” to describe the school he formed, therefore, the Analytical school of jurisprudence is also known as Analytical Legal Positivism. Being the father of the Analytical school, his lectures got published under the title, “the Province of Jurisprudence Determined.”
Austin defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. According to him, ‘proper law’ encompasses God’s law, Human laws, and Positive laws. Laws by analogy and laws by metaphor are two types of ‘improperly’ named laws. Austin claims that “Positive morality” comprises laws not imposed by men (as political superiors) or in the pursuit of a legal right, as well as laws imposed by analogy, such as fashion laws. He further stated that the improper laws were not sanctioned by the State.
Law = command + sanction + sovereign
Austin noted that every law, properly referred to as such, must have three elements, namely, command, sanction, and sovereign authority thereby intending to say that “law is the mandate of a sovereign, ordering his subjects to do or refrain from specific actions. If the command is not followed, there is an implied threat of punishment”.
A ‘command’ is a declaration of a specific individual’s or group’s wish that another person does or refrain from doing anything that would result in evil in the case of disobedience, i.e. ‘sanction.’ As a result, every law is a command that imposes a responsibility and is enforced by punishment. A command, according to Austin, can be specific (directed to a single individual or group of people) or universal (issued to the whole community and informing classes of acts and forbearances, they are often referred to as ‘continuous orders’). A specific command is effective when the individual or group being commanded obeys it whereas a general command is successful when the majority of a political society obeys it on a regular basis.
According to Austin ‘if a definite human superior not in the habit of obedience to a similar superior gains habitual obedience from the mass of a given society, that determinate superior is the sovereign in that society’. As a result, the fact of obedience is the foundation of sovereignty. The sovereign’s power is unrestricted and indivisible (there is no separation of powers). The sovereign is not constrained by any legal restrictions or their own laws.
Only the legal systems of civilised nations may become the legitimate subject matter of jurisprudence, according to Austin’s conception of law as the “command of the sovereign,” because the sovereign can only execute their orders with an efficient administrative apparatus in such societies. Customs are not taken into account in Austin’s definition. Austin believes that there are three types of law that, while not commands, may be included in the scope of jurisprudence as an exception, namely declaratory or explanatory laws, Laws of repeal and Laws of imperfect obligation (no sanctions attached). According to him, Constitutional law derives its force from a public opinion regarding its expediency and morality.
Criticism of Austin’s theory
- Austin’s thesis is questioned since punishment isn’t the only way to get people to obey. The concentration on punishment as a mark of law in Austin’s theory obscures and distorts the true nature and purpose of law in a community. He dismisses law as a man-made construct, ignoring its characteristic of organic growth. As the community accepts the law, it is followed. In modern times, the law is nothing more than the people’s collective will. Furthermore, the Constitution’s norms and conventions control the conduct of the people and the State, despite the fact that they are not enforceable by law. Furthermore, court judgments (precedents) become binding laws despite the fact that no one has commanded them.
- Austin’s difference between positive law and positive morality, according to Justice Holmes, is to keep notions of virtue and badness out of the sphere of law. According to Austin’s positive law, there is no place for ideals or justice in law, because “the existence of law is one thing, its merit and demerit another. A law that actually exists, is a law, even if we happen to dislike it or if it differs from the text by which we regulate our approval or disapproval.” Austin’s approach disregards laws that are permissive and grant privileges (eg the Bonus Act, Law of Wills). Bryce had observed that “Austin’s contribution to legal research is so meagre and mired in mistakes, that his work ought no longer to find a position among those required for students.”
- The concept of command, according to Duguit, is inapplicable to modern social/welfare law, which does not order individuals but confers advantages, and which binds the State rather than the person. Law does not only issue instructions, it sometimes grants rights, such as the right to form a will. As a result, Austin’s legal idea is manifestly inapplicable in today’s democratic welfare state. In India, for example, it is impossible to find a single sovereign who can be said to have unrestricted and absolute power to establish laws. Austin’s idea may be extended to the highest British Parliament (there is no division of power in England into different organs of State that is the legislature, executive and judiciary).
- Prof Hart had remarked to Austin that “however, the explanation of precisely where and why he is incorrect has proven to be a continual source of enlightenment, for his faults are frequently the misinterpretation of essential facts for the comprehension of law and society”. According to him, the Austinian formula specifies one crucial requirement, namely that if laws impose responsibilities or duties, they must be ‘usually followed.’ However, although necessary, this merely accounts for the legal system’s “final result.” The overwhelming evidence against Austin should not hide the reality that law is made up of prescriptions for behaviour, which are frequently expressed in the imperative form.
Professor Dias’s comparison of Bentham and Austin’s propositions
Prof Dias compared Bentham and Austin and came to the conclusion that the former had a more comprehensive and flexible theory than the latter. The following are the significant grounds of comparisons that Professor Dias had put forth:
- Betham’s definition of sovereignty was open-ended, avoiding the constraints of indivisibility and illimitability. He was able to accommodate the division of authority across organs, as in a federation, or division in specific sectors, as well as authority constraints and self-bindingness.
- Bentham had a larger understanding of the law than Austin, and the former avoided the absurdity of “law properly so-called.”
- Bentham’s sanction was both broader and less significant than Austin’s. Even if they are justified by moral or religious sanctions, laws are laws. They might even be accompanied by awards.
- Bentham didn’t have to use “sanction by nullity.” His theory had a flaw in the imperative basis, but it was so much larger and less rigid than Austin’s that he was able to accommodate permissions up to a degree. He avoided the fiction of ‘tacit command.’
Hart’s concept of law
Professor Hart (1907) is often recognized as the most prominent exponent of British positivism in the modern era. He criticised Austin’s thesis in his noteworthy work “The Concept of Law.” Hart observed that “law consists of norms with a broad applicability and non-optional nature, yet which are susceptible to formalisation, legislation, and adjudication”. He said that law is a collection of social norms (rules derived from social pressure) that take on the form of legal regulations. The term ‘law’ refers to a set of “publicly ascertainable regulations.” According to Hart, the law is the same as a legal system. A ‘legal rule’ is one that establishes a code of behaviour that is followed with the expectation. The law establishes a standard of behaviour, not a demand. This norm is followed not just because there is a sense of duty to do so, but also because others are expected to do so as well. As a result, even though a person cannot be forced to respect the law, he or she is nevertheless considered to have a duty to do so. As a result, the law is more concerned with duty than with coercion. A related concept to a ‘responsibility’ is an obligation.
According to Hart, the concept of duty signifies that a rule is accepted by the people (i.e., it is internalised) rather than habitually obeyed (as defined by Austin). There is a distinction between internal and exterior elements of regulations. The former means “having a responsibility” (without force), whilst the latter entails “being obligated” (under a compulsion). According to Hart, Austin’s predictive theory ignored internal features of rules and only dealt with exterior ones. There are two sorts of rules, according to Hart. The main rule establishes norms of conduct or imposes obligations (for example, international law), whereas the secondary rule determines, introduces, eliminates, or modifies the primary rule. Power-conferring rules, public or private, are the secondary rules (e.g. statutes, constitution). The ‘rules of recognition,’ which give authoritative criteria for determining main norms of duty, are developed from these. The ‘ultimate rule of recognition’ is the last requirement for a legal order’s legality. A legal system’s core is made up of the union of main and subsidiary rules. A civilisation ruled solely by fundamental laws (i.e., a simple primordial society) is inefficient, stagnant, and unpredictable. The legal order must be effective, which means that citizens must follow main norms and authorities must follow secondary regulations. These two requirements are both essential and sufficient for a legal system to exist.
Hart created a theory of law in which official behaviour plays a fundamental role. Some of the “puzzles” associated with the concept of legal validity, according to Hart, address the relationship between the validity and efficacy of legislation. When a rule meets all of the conditions set out by the rule of recognition, it is considered to be “valid.” When people follow the rules, they are called to be ‘effective.’ It is not necessary for an ultimate rule of recognition to be legitimate, but it should not be ignored, i.e. it must be effective (officials must obey it).
Criticism of Hart’s proponents
Some jurists, like Ronald Dworkin and Lon Fuller, have harshly challenged Hart’s idea of law. Dworkin distinguished between ‘rules’ and ‘principles,’ stating that a legal system cannot be viewed just as a collection of rules, but rather as a collection of sound principles and policies. He stated that “a principle is a norm to be followed because it is a necessity of justice, fairness, or another facet of morality.” Fuller felt that the legal system, as a tool for normal human behaviour, should be concerned with both law as “it is” and law as “it ought to be.” Thus, the law cannot be completely divorced from the concept of morality.
Kelsen’s concept of law
Hans Kelsen (1881-1973), a member of the ‘Vienna School’ of legal philosophy, offered a “pure theory of law,” that is, a theory-free of social, historical, political, psychological, and other influences thus omitting everything that is not technically law and logically self-supporting. The law is a normative (‘law as a coercive order’) rather than natural science, and it comes with punishments. The test of legality can be found inside the legal system itself. He described the law as “a set of rules governing human behaviour.” Laws, according to Kelsen, are ought propositions, or ‘norms’. If X occurs, then Y should occur. As a result, if someone steals, the individual should be penalised. Law does not seek to describe what occurs in reality (‘is’), but rather only prescribes a set of principles. An act of volition has a legal meaning called a norm. It refers to the act of commanding, permitting, or authorising specific behaviour.
A norm is valid only because it is derived from or decreed by a higher standard. This requires a ‘ladder of norms,’ with one norm legitimate based on the validity of another norm. There are also ‘dependent’ or facilitative norms that do not coerce people (for example, the right to write a will, the President’s authority and the use of force in self-defence). The so-called “independent” norms are actually coercive norms. The dependent norms are dependent on their validity on the independent norms (e.g., Section 299 of the Indian Penal Code, 1860 derives its validity from Section 302). As a result, the legislation does not have an exclusively commanding or obligatory nature.
The law is a set of behavioural standards that may be traced back to a grundnorm, or fundamental norm, from which they gain their legitimacy. The grundnorm must be effective, that is, people must have trust in it, otherwise, a revolution will occur. There will always be some type of grundnorm in any legal system, whether it is in the shape of a Constitution or a dictator’s will. The grundnorm will be that the ‘Constitution needs to be observed’ when there is a written Constitution (for eg in India, USA). Where there is no written Constitution (like in the United Kingdom), the grundnorm must be derived from social behaviour. The grundnorm of international law is the concept ‘pacta sunt servanda’ (treaty duties bind parties).
While the validity of norms issued from it is accounted for by the grundnorm, one cannot account for one’s own validity by referring to another norm. Its validity cannot be objectively evaluated, rather it must be assumed or pre-supposed. It searches for evidence of its own legitimacy in areas other than the law. It does, however, confer legality as long as the legal order is ‘by and large effective.’ It should secure a minimum efficacy, and when it loses the support of the people, it should be replaced by another grundnorm.
No theory of justice can form part of the pure theory of law. Kelsen painted a formal, scientific, and dynamic picture of the judicial system. He has had a significant impact on modern legal philosophy. Kelsen’s idea has been vigorously maintained by eminent jurists such as Stone and Friedmann.
Criticism surrounding Kelsen’s theory
Kelsen’s thesis is criticised because he believes that a legal order is lawful if it is successful, regardless of whether it is an illegitimate rule enacted by unconstitutional means. This suggests that law is a system of external coercion, in which individuals are compelled to follow laws. The effectiveness of a grundnorm does not always imply that legislation is valid. Kelsen does not specify a criterion for determining grundnorm’s minimal efficacy. The grundnorm only generates or verifies a legal or tier, but it does not offer content to a legal order. The courts are responsible for determining the grundnorm standard and determining the legitimacy and efficacy of a legal order. Kelsen’s assumption that all norms save the grundnorm are pure was disputed by Julius Stone. He claimed that other norms that take their legitimacy from grundnorm cannot stay pure when grundnorm is a composite of many social and political variables. He had said that ‘we are invited to forget the illegitimacy of the ancestor in admiration of the pure blood of the progeny.’
Austin, Kelsen, and Hart’s ideas are dominated by coercive components. According to their beliefs, any social norm becomes legislation if certain formal conditions are met, regardless of its underlying worth or quality. The essence of law is found in its purpose rather than its form. Morality is excluded from the law by all three philosophers because morality no longer plays a role after a law is enacted.
The different schools of thought in jurisprudence indicate distinct approaches in handling the subject. The Analytical school of jurisprudence highlighted the positive approach that needs to be adopted to address legal challenges. The school came with its own sets of pros and cons that the article highlighted, nevertheless one cannot ignore that the school had a lot to offer to society in general.
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