This article is written by Leninsha Thereza Pereira of 10th Semester of BALLB of Govind Ramnath Kare College of Law Margao, Goa, an intern under Legal Vidhiya
Abstract
In this Article the readers will come across various aspects of Analytical Positivism some of which being a brief introduction to the concept of Analytical Positivism , moving ahead to the features and some examples of Analytical Positivism including its Criticisms and the Conclusion according to the perspective of the writer. Analytical positivism has been a highly influential school of thought in jurisprudence since it first emerged in the early 19th century.
Introduction
The word “legal theory” was coined by Dr.W. Friedman in 1945.Philosophers of legal theory have been categorized into different schools of thoughts on the basis of their approach to law. Jeremy Bentham (1748-1832) a British philosopher and jurist who is considered to be one of the founders of analytical positivism. It has helped to clarify the nature of law and to distinguish law from other social norms. It has also provided a framework for analyzing and understanding legal systems.
However, analytical positivism has also been criticized for its emphasis on the coercive nature of law and for its neglect of the role of morality in law. Critics argue that analytical positivism fails to account for the fact that law is often used to promote justice and social welfare. They also argue that analytical positivism is too rigid and that it cannot account for the complexity of modern legal systems. Sir Henry Maine was one who coined the word “Analytical” and this school asThe positivist movement started at the beginning of the 19th century because during 19th century Natural Law Theory was no more considered to be significant due to influence of scientific methods upon social sciences including jurisprudence. Law is treated as command of Sovereign. That is why this school is also known as the imperative school.Jeremy Bentham is the founder of the Analytical School. John Austin is considered as the father of this school and also known as father of English Jurisprudence. AS this approach is established by John Austin. So, this school also known as the Austinian school. Some exponents of Analytical School are Jeremy Bentham , John Asutin , Holland, Salmond etc.
Meaning of the term Positivism
The term “positivism” was coined by Auguste Comte, a French thinker. According to Professor H.L.A. Hart states that 1.The laws are commands. Analytical positivism is a philosophical approach to jurisprudence that emphasizes the importance of empirical evidence and logical reasoning in the study of law. It is based on the assumption that the law is a social construct, created and enforced by human beings, and that it can be understood and analyzed through scientific inquiry. Analytical positivists argue that the law should be studied separately from morality, and that the question of what the law is should not be confused with the question of what the law ought to be. This is known as the separation of law and morality. Analytical positivism is often contrasted with normative jurisprudence, which is concerned with the question of what the law ought to be. Analytical positivists, on the other hand, are concerned with the question of what the law is, regardless of whether it is morally just or not.
One of the key concepts in analytical positivism is the concept of the sovereign. The sovereign is the ultimate authority to create and enforce law. The sovereign is typically a state, but it can also be another entity, such as a monarch or a religious leader. Analytical positivists argue that the sovereign is not bound by the law that it creates. This is because the sovereign is the ultimate source of law, and it has the power to change or abolish the law at any time. Analytical positivists also distinguish between primary and secondary rules of law. Primary rules are the rules that create obligations and duties for individuals. Secondary rules are the rules that govern the creation and application of primary rules.
For example, a criminal law that prohibits murder is a primary rule. A law that establishes a court system to adjudicate criminal cases is a secondary rule.
Aims of Analytical Positivism
1.The main task of the analytical school is the lucid and systematic exposition of the legal ideas.
2.To analyze the first principle of law without referring historical development or ethical validity.
3.To gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning.
Features of analytical positivism include:
1.Analytical positivism is the separation of law and morality. This means that analytical positivists believe that law can be valid even if it is unjust or immoral. For example, a law that requires people to pay taxes, even if they disagree with how the tax money is spent, would be considered a valid law under analytical positivism.
2.Analytical positivism is the idea that law is a system of rules that are created and enforced by the state. This means that analytical positivists do not recognize customary law or religious law as valid law.
3.Analytical positivists are primarily concerned with the study of positive law, which is the law that is actually in force, as opposed to natural law, which is a system of law that is based on moral principles.
4.Analytical positivism has been a highly influential school of thought in jurisprudence since it first emerged in the early 19th century. Some of the most famous analytical positivists include John Austin, H.L.A. Hart, and Hans Kelsen.
5.The law is a set of rules. Analytical positivists define law as a set of rules that are created and enforced by human beings. These rules can be written or unwritten, formal or informal.
6.The law is distinct from morality. Analytical positivists argue that the law is separate from morality, and that the question of what the law is should not be confused with the question of what the law ought to be.
7.The law is enforceable by the state. Analytical positivists argue that the law is enforceable by the state, which has the power to punish those who violate the law.
8.Law is a social construct, distinct from morality and religion .Law is based on the authority of the sovereign. Law is coercive, meaning that it is backed by the threat of punishment. Law is a closed system of rules, and moral considerations are irrelevant to its validity. Law is objective and can be studied scientifically.
9.Analytical positivism is a school of thought in jurisprudence that holds that law is a set of rules that are created and enforced by the state, and that law is distinct from morality. Analytical positivists argue that the law is what it is, rather than what it ought to be, and that the law should be studied and analyzed in a scientific and objective manner.
10.Analytical positivism was developed in the 19th century by jurists such as Jeremy Bentham and John Austin. Bentham argued that the law should be evaluated based on its utility, or its ability to maximize pleasure and minimize pain. Austin, on the other hand, defined law as a command from a sovereign, backed by the threat of a sanction.
11.Analytical positivism has been criticized for its emphasis on state power and its separation of law from morality. However, it remains an influential school of thought in jurisprudence, and its concepts such as the distinction between law and morality are widely accepted by legal scholars.
12.Law is a set of rules created and enforced by the state. This means that the state is the ultimate source of law, and that only rules that are created or recognized by the state can be considered law.
13.Law is distinct from morality. This means that there is no necessary connection between what is legal and what is morally right. Law is simply a set of rules that are enforced by the state, regardless of whether or not those rules are morally justified.
14.The law should be studied and analyzed in a scientific and objective manner. This means that jurists should focus on the law as it is, rather than the law as it ought to be. Jurists should also avoid using moral or normative language when describing the law.
15.Some of the most prominent analytical positivists in jurisprudence include: Jeremy Bentham ,John Austin, H.L.A. Hart ,Hans Kelsen and Ronald Dworkin.
16.Analytical positivism has had a significant impact on the development of legal theory and practice. It has helped to clarify the nature of law and its relationship to other social phenomena, such as morality and politics. Analytical positivism has also been influential in the development of legal education and legal research.
17.However, it is important to note that analytical positivism is not the only school of thought in jurisprudence. There are many other schools of thought, such as natural law theory, legal realism, and critical legal studies, that offer different perspectives on the nature and purpose of law.
Examples of analytical positivism research:
1.A study of the relationship between poverty and crime rates using data from a national survey.
2.An experiment to test the effectiveness of a new drug treatment for depression.
3. A statistical analysis of the factors that influence educational achievement.
The key tenets of analytical positivism:
Law is a human-made system of rules. Law is distinct from morality and other social norms. Law is based on the authority of the state. Law is a system of rules that are created and enforced by the state. Law can be valid even if it is unjust or immoral.
Analytical Positivism Research Methods
Analytical positivist researchers use a variety of methods to collect data and test hypotheses. Some of the most common methods include:
Surveys: Surveys are questionnaires that are distributed to a sample of people. They can be used to collect data on a wide range of topics, such as demographics, attitudes, and behaviours’.
Experiments: Experiments are designed to test the effects of one variable on another. They typically involve randomly assigning participants to different groups and exposing them to different treatments. Researchers then compare the outcomes of the different groups to see if the treatment had a significant effect.
Statistical analysis: Statistical analysis is used to analyze data and draw inferences about populations. Analytical positivist researchers often use statistical methods to test hypotheses about the relationships between different variables.
Criticisms of analytical positivism
1.Analytical positivism has been criticized on a number of grounds, including Its narrow focus on the law. Analytical positivists tend to neglect other important aspects of the legal system, such as legal institutions and legal culture. One criticism is that it is too narrow in its definition of law. For example, analytical positivists might not recognize customary law or religious law as valid law, even though these types of law are widely enforced in some societies.
2. Its emphasis on the sovereign. Analytical positivists have been accused of giving too much power to the sovereign and of not paying enough attention to the rights of individuals.
3.Its separation of law and morality. Analytical positivists have been accused of ignoring the important moral dimensions of the law.
4.The main task of the analytical school is the lucid and systematic exposition of the legal ideas. it overlooks the relationship between law and morality. While it is true that law and morality are distinct concepts, they are also interrelated. For example, many laws are based on moral principles, such as the principle of justice.
5.To analyze the first principle of law without referring historical development or ethical validity. To gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning.
Conclusion
Analytical positivism is a complex and sophisticated philosophical movement that has had a profound impact on the study of law. It is important to understand the key features of analytical positivism, as well as its criticisms, in order to appreciate its contributions to jurisprudence. Despite these criticisms, analytical positivism remains one of the most influential schools of thought in jurisprudence. analytical positivism has also been criticized for its emphasis on the coercive nature of law and for its neglect of the role of morality in law. Critics argue that analytical positivism fails to account for the fact that law is often used to promote justice and social welfare. They also argue that analytical positivism is too rigid and that it cannot account for the complexity of modern legal systems. It has been particularly influential in the development of common law systems. Inspite of its critics, analytical positivism remains an important school of thought in jurisprudence. It continues to provide a valuable framework for studying and understanding law.
References
V.D Mahajan’s , Jurisprudence & Legal Theory , page no 13-17 , Eastern Book Company, Fifth Edition 2012)
Lloyd’s , Introduction to Jurisprudence, page no 1 – 9 ( M.P.P House – 2016).
Dr. S.R Myneni , Jurisprudence ( Legal Theory) page no 6- 21, Asia Law House, (2nd Edition 2017)
