Analytical School of Jurisprudence

Analytical School of Jurisprudence | Overview

• Introduction
• Background
• Exponents of Analytical School
• Bentham
• Austin
• Holland
• Salmond
• Tenets of analytical School
• Kelson’s pure theory of law
• Criticism

Introduction

Analytical school is also known as the Austinian school since this approach is established by John Austin. It is also called as an imperative school because it treats law as the command of the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is positive law.

The analytical school gained prominence in the nineteenth century. The distinctive feature of eighteenth-century juristic thought was Reason. Individualism became the manifestation of the cult of reason. Writers like Descartes, Locke, Rousseau, Kant advocated Reason as the last guide and judge in everything.

Bentham breaks away from the spirit of the eighteenth century, rejects natural law and subjective values and emphasizes utility and propounds the concept of expository jurisprudence which deals with the law as it is. Austin takes over tins concept of expository jurisprudence and subjects it to a far more detailed, thorough and searching analysis.

Allen has pointed out that Austin does not revolt against 18th-century individualism but seems to be quite impervious to it. His approach was secular, positivistic and empirical. In fact, it was Austin who propounded the theory of positive law, the foundation of which was laid by Bentham.

Background

The Natural law school predominated of the juristic thought up to the beginning of the eighteenth century. Principles of Natural law were considered supreme and according to some writers, could override the man-made law.

The term Natural law was differently defined and understood by different writers and no single general acceptable meaning of the term “Natural law” or the criterion for ascertaining the content of the principles of Natural Law was there.

Nature, reason, supernatural source, justice, utility were some of the bases from which Natural Law was supposed to be derived. The analytical school was a reaction against the airy assumptions of natural law.

Exponents of Analytical School

The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart.

Bentham

Jeremy Bentham can be said to be the founder of the Analytical school. In one of his books, he rejected the clinches of natural law and expounded the principle of utility with scientific precision. He divided jurisprudence into expository and censorial.

The former deals with the law as it is while the latter deals with the law as it ought to be. Bentham’s analysis of censorial jurisprudence is indicative of the fact that the impact of natural law had not completely disappeared that’s why he talked of utility as the governing rule. Perhaps, because of this reason, Bentham is not styled as the father of analytical school. He, however, believes that law is a product of state and sovereign.

Bentham’s concept of law is an imperative one for which he himself preferred the term “mandate”. A law may be defined, said Bentham, as an assemblage of sin declarative of a violation conceived or adopted by the sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of persons who, in the case, in question are or supposed to be subject to his power.

Austin

Holland

Salmond

1. He gives up the attempt to find the universal elements in law by defining jurisprudence as science of civil law. According to him, there is nothing like universal element in law because it is the science of law of the land and is thus conditioned by factors which prevail in a particular state.
2. He deals with low as it is but the law to him is to be defined not in terms of the sovereign but in terms of courts. Law is something which emanates from courts only.
3. He did not agree with Austin that analysis of law can be done with the help of logic alone. He points out that the study of jurisprudence which ignores ethical and historical aspects will become a barren study.

Tenets of analytical School

1. Difference between law as it is and law as ought to be – This is a trait of all positivism thinkers for example, Bentham’s Law and Morals have same course but different circumference. Austin does not deny that moral factors work in the creation of law, however, he does not allow any place to morals in his theory. To him, positive law carries its own standard itself. This approach has been criticized by Dias, Hughes, Paton, Stone, Fuller, etc.
2. Concentration of positive law – Analytical jurists look exclusively at the positive law. They prefer to be concerned only with what is the pure fact of law. Representing to themselves the whole body of legal precepts that obtain in a given system as made at one stroke on a logical plan to which they conform in every detail, the analytical jurists set out to discover the plan by analysis.
3. Law in terms of and a product of State – Analytical jurist regards law as something made consciously by lawmakers, whether legislative or judicial. They emphasize not the way in which the precepts originate with respect to their content but the fact that they get the conscious stamp of the authority of the state. Thus the most important fact is establishment or authoritative recognition by the state, of a rule of law. In this sense law is a product of conscious and increasingly determinate human will.
4. Logic – For studying law, analytical jurist have mainly taken resort of logic and rejected ethical elements. There is no value of historical or social factors for jurists of analytical school.
5. Statute – Law is that which is made consciously by the state. Statute law is the main concern of the school.

Kelson’s pure theory of law

1. in its being coercive and
2. the fact that this coercive power is derived solely from the sanction attracted to the law itself. His sole object was to determine what can be theoretically known about the law of any kind at anytime under any conditions.

The essential foundations of Kelson’s system may be summarised as under :

1. The aim of theory of law as of any science is to reduce chaos and multiplicity and to bring unity.
2. Legal theory is science not volition. It is knowledge of what law is, not of what the law ought to be.
3. Law is a normative not a natural science.
4. Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.
5. A theory of law is formal, of the way of ordering changing contents in a specific way.
6. The relations of legal theory to a particular system of positive law is that of possible to actual law.

1. His conception of Grundnorm is vague. Friedman puts it, it is a fiction incapable of being traced in legal reality. Kelson seems to have given his thesis on the basis of the written constitution but even in the written constitution Grundnorm is made up of many elements and any one of these elements alone cannot have the title of Grundnorm.
2. Every rule of law or norm derives its efficacy from some other rule or norm standing behind it but the grundnorm has no rule or norm behind it. A grundnorm derives its efficacy from the fact of its minimum effectiveness.
3. Another important objection of Kelson’s theory is that he has not given any criterion by which the “minimum of effectiveness” is to be measured. Writers like Friedman, Stone, Stammer have pointed out that in whatever way the effectiveness is measured, Kelson’s theory has ceased to be pure on this. The minimum of effectiveness cannot be proved except by an enquiry into political and social facts whereas Kelson has altogether rejected political and social facts.

1. Natural Law School(Opens in a new browser tab)
2. Relation between Law and Morality(Opens in a new browser tab)
3. Kelsen’s Pure Theory of Law & HLA Hart’s Theory