ANALYTICAL POSITIVISM OR ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical positivism (also known as the Analytical or Imperative school of law) is the most important school of thought in jurisprudence. The analytical school of jurisprudence is one of the most renowned contributions of Austin. It, therefore, explains law with reference to nature, purpose, characteristic, and function of the same. This school describes the history and philosophy of motion of emerging human thoughts on the aspect of law.

The positivist movement had been started at the beginning of the 19^th decade because in this period of time the natural theory of law was not considered as relevant due to the influence of the scientific method on the concept of social sciences including jurisprudence.

Jurists of the school such as Austin, Hart, and others analyzed the same sense of law i.e. positive law. They did not rely on the concept of ‘law ought to be’ instead considered the concept of ‘law as it is’ existing. They also considered that law contains no relation with moral principles.

The jurists were named ‘positivists’=  school was known as ‘positivist school’.

Different positivists had the same objective and perspective in their thoughts where few basic assumptions are followed by them which include;

• Sovereign or Grundnorm – As the law created by the authority.
• Relied on the ‘law as it is’ not on ‘the law ought to be’ – ignored morality and natural law.
• Determined and encouraged the concept of sanction – sanction which was substantive before the enforcement of laws.

Features of Analytical school of Jurisprudence

• Concerned with strictly so called i.e. what law is, not what it ought to be?.
• Law is not based upon idea of good or bad, it is based upon power of superior
• There is no moral law.
• Law and justice differs
• This school is reaction against natural law theories, which are based upon rationalization or nature confined law or God and gave importance to ethical and moral issues.

Jeremy Bentham (1748-1832)

Bentham is considered to be the founder of ‘positivism’ in the modern sense of the term. He preferred to divide jurisprudence into ‘expository’ and ‘censorial’ jurisprudence. Expository or analytical jurisprudence is concerned with law, it is without any regard to its moral or immoral character. On the other hand censorial jurisprudence is concerned with ‘science of legislation’ that is what the law ought to be.

Bentham in his book ‘limits of jurisprudence defined’ said that its duty of state to provide maximum happiness and maximum liberty. In other words he means to test every laws and keep a check whether they are providing maximum happiness and liberty, leading to principle of utility i.e. ‘Greatest Happiness of the Greatest Number of People’.

Bentham had defined law with the help of two important aspects such as;

• Law is “Happiness is the Greatest Good”: According to Bentham, the laws framed must promote pleasure and decrease any kind of pain to human beings.
• Law is the command of the sovereign: The concept of sovereignty came into existence by Bentham before Austin would compose it. Bentham says the law is the command given by the sovereign.

Bentham’s Philosophy of Individualism

The legal philosophy of Bentham is called “Individualism” because he was an individualist and propounded that the law is to be made for the emancipation of the individuals and restraining on their freedom.

Principle Of Utility

According to him the consequences of good and evil are respectively ‘pleasure’ and ‘pain. In simple words, the basic thing which come under principle of utility i.e. pleasure and pain. Principle of utility recognizes the role of pleasure and pain as human life.

Pleasure = ‘everything that is good’

Pain = ‘everything that is bad or evil’.

Therefore, keeping the consequences of good and bad in human life the principle approves or dis-approves action on the basis of pleasure and pain. He believed that happiness of social order is to be understood in the objective sense and it broadly includes satisfaction of certain needs, such as need to be fed, clothed, housed etc. According to him, happiness changes its significance in the same way as the meaning also undergoes changes with the changes in societal norms.

He desired to ensure happiness of the community by attending four major goal namely,

• Subsistence
• Abundance
• Equality
• Security for the citizens

Therefore, the function of law must be to meet these ends in order to provide subsistence, to provide abundance, to favor equality and to maintain security.

In order to measure the pain they advise a calculator known as ‘utilitarian calculus’ which give seven factors to calculate pain-

• Intention
• Duration
• Certainty
• Nearness
• Fecundity
• Purity
• Extent

The task of government according to Bentham, was to promote happiness of society by furthering enjoyment of pleasure and affording security against pain. He was convinced that if individuals comprising society were convinced that if individuals comprising society were happy and contended, the whole body politic would enjoy happiness and prosperity.

Laissez Faire

He believed that, we must remove the hurdles between human beings and freedom. Because when every individual will enjoy his freedom, he himself will start about his own welfare. In other words he meant ‘let the men free’ leading to minimum interference of the state in economic activities of individuals.

Criticism:

• His theory ignores balancing the interest of the individual with the community’s interest.
• His principle of utilitarianism says about pain and pleasure are the final and ultimate test of the adequacy of law but they cannot be defined as the final test.
• His theory was in the form of Laissez-Faire policy which harms the individuals in the society majorly on poor section people.
• Sole importance given on pleasure which is quantified is not a proper decision.

Austin (1790 – 1859)

John Austin is the founder of the Analytical school and father of the English Jurisprudence. He was born in 1790. He was elected to the chair of Jurisprudence at the University if London in 1826. His lectures delivered in the London University were published in 1832 under the title ‘the Province of Jurisprudence Determined’.

Austin defined law as ‘a rule laid down for the guidance of intelligent being by an intelligent being having power over him’.

• Austin’s Definition of Law

“Law is a command of the sovereign backed by a sanction.”

LAW = COMMAND + SOVEREIGN + SANCTION

His notion was that where there is no sovereign, there is no independent political society and vice versa is also applicable. For him, Law, was a set of rules established by men as politically superior, or sovereign, to men as politically subject.

The fundamentals of his theory are: Command, Sovereign and Sanction.

1. Command: Commands are the rules or expressions of imposed by a superior authority (by force or compulsion) on the Inferiors. The former is the sovereign which authorize the rules of conduct of the latter, the general public.

The commands may be

• General Command = issued for the guidance of a whole community, or
• Particular command = issued for the guidance of a particular community/ Individual.

Austin emphasizes that only General Commands form laws and they must be lawful and continuous.

• Sovereign: Sovereign is a source of law and every rule emerges from a sovereign. A sovereign may be any individual or body of individuals, whom the politically influenced mass of people habitually follow. However, he himself does not obey an individually or body of individuals.
• Sanction: To ensure and administer justice the state, applies physical force as sanction. Therefore, it is the sole crux of Positive Law. It instils fear of punishment in case one disobeys the laws. Sanction is related to duty shaped by the command of a sovereign authority and sanction becomes absolute necessity for enforcement of law.
• Punishment:

Imprisonment of any type

Fines

Forfeiture of property

Classification of Law by Austin:

(Austin theory of Imperative Law)

Austin separated law as improperly so-called and law properly so-called. He encourages positive law only because he is a positivist.

He recognized that law can be set by both God (divine law) or by men to men, where law set by God is regarded as ambiguous and misleading according to him and on the other hand laws set by men to men is of three types;

• Laws set by political superiors to their inferiors – law properly so-called.
• Laws set by men who are not political superiors – positive morality.

Criticism:

Australians theory has been criticized by a number of jurist points of the criticism against Austin theory of law which are as follows:-

1. Custom ignored:- As per the Australian theory we founded that law is the command of the sovereign. Austin mainly focuses on the commands that are given by the sovereign are the laws. But in the earlier times, not the command of any superior but custom regulates the conduct of the people. Continue to regulate the conduct of the people, even after coming of the state into existence. Some jurists are in favour of the customs as laws and they say that laws are not the command of the sovereign but the custom followed by the people for a long time. But Austin in his theory of law emphasized only the law as the command of the sovereign and ignored the custom as a law.
2. Judge made law:- Austin in his theory has not provided any place for judge-made law. In the course of their duty judges make law by applying precedents and interpreting the law. Though an Austinan would say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the commands of the sovereign body, in modern times, will deny that judge perform a creative function and Austin’s definition of law does not include it.
3. As against the command:- Austin believes that the determination of human superiority is the only law-maker and its commands are laws. But with other historic jurists, Sir Henry Main criticized Austen’s theory of sovereignty and condemned it. Sir Henry Men believes that sovereignty does not exist in the determination of human superiority. According to him, “a large population of influences, which we can call for a lesser ethic, which permanently shapes, limits or prohibits the real direction of forces by its sovereign”.
4. This theory makes the sovereign completely absolute:- This theory makes the sovereign completely absolute, but in practice, it is not possible to be completely absolute. In the ancient and medieval era, there were absolute monarchs. But the monarchs could not remain completely absolute in his actions and behavior. They were subject to ethics theory, code of conduct, and investigation of religion. If he tried to violate established moral, ethical, and religious canons, he was in danger of facing rebellion.
5. This theory is not even applicable to Europe:- Austin has claimed that the King-in-Parliament is sovereign in England. But legally, this claim is not right because neither the king nor the parliament can go to the extent of becoming completely absolute. Always have to pay attention to the wishes of the public. The reality is that the public is the ultimate source of power. It is public which empowers Parliament. This is the reason why elections are held every five years after the House of Commons. And in the absence of the House of Lords, the House of Lords is quite ineffective.

Holland (1835-1928)

Holland is a follower of Austin. He followed the concept of the analytical approach of the study of law which is thoughts of Austin and the same was carried further by him. He rejected Austin’s thoughts on ‘Particular Jurisprudence’ by stressing that if the jurisprudence is science then it is always general and universal but not particular.

His famous book is “The Elements of Jurisprudence”.

• According to Holland, Jurisprudence is

“the formal science of that relation of mankind which is generally recognized as having legal consequences – the formal science of positive law”.

The important terms to be remembered here is:

• Formal: The jurisprudence concerns the human relation which is governed by the rules of law.
• Positive Law: Holland deals with the law as it is or existing law and does not concern with the law ought to be, which is the same as the concept of Austin.

Holland’s Criticism

• Buckland criticized the concept of distinction of the word ‘particular’ and ‘general’ in the particular jurisprudence concept of Austin by saying it is not a correct separation.
• Buckland also said that law is not a mechanical structure like geological deposits but the law is development or growth and its true analogy is with biology.
• Salmond, Jethrow, Brown, and Gray also criticized Holland for his rejection of ‘particular jurisprudence’ and agreed with Austin on this concept.

Dias and Hughes observed Holland’s jurisprudence with geology is erroneous because according to the law is a social institution and which differs its structure upon its objectives, traditions, and environment

Salmond (1862 – 1924)

Salmond is a legal positivist and belongs to an analytical school. He says jurisprudence is a science as same in the eyes of Austin and Holland. He has defined law in a unique way which is different when it is compared to Austin.

Salmond’s famous book is “Jurisprudence or Theory of the law”.

Salmond’s Contribution to the Analytical school of jurisprudence

• According to Salmond, the law is “the body of principles recognized and applied by the state in the administration of justice”. It means the law is rules which are acted by the courts of justice. The final and true test of the adequacy of law is defined by the enforceability of law in the courts of justice.
• According to Salmond, Jurisprudence is “the science of first principles of the civil law”.
• The civil law here is the law that is applied by the administration in the court of justice and it is the first principle and the final test of the adequacy of law.
• Salmond’s definition of law has brought a drastic change in the thoughts of analytical positivists.
• Inspired by him many realist jurists have considered law as it is and not law which ought to be.

Salmond’s Criticism

• Vinogradoff criticized Salmond’s definition of law, according to his law is to be formulated precisely by applying it in a court of justice.
• Critiques also said that the definition is itself defective because on their thoughts law is logically subsequent to the justice of administration.
• The definition of law is vitiated because when the rule has existed for the purpose of applying it in the court of justice.
• The purpose of the law Is not only justice but it also must be accepted universally.
• He has also narrowed the field of law according to the critiques.

Hans Kelsen (1881 – 1973)

Kelsen has contributed the pure theory of law to the analytical school of jurisprudence. He also accepted the concept of law as normative in nature and not a natural science.

Hans Kelson was an Austrian jurist, legal philosopher, and political Philosopher belonging to a legal positivism school of thought. Roscoe Pound was appreciated as Kelson’s “undoubtedly the leading jurist of time.”

His famous book is “The Pure Theory of Law”.

Pure Theory of Law or Vienna School

Kelsen defines law as

“the body of norms which stipulates sanction”.

Here, the norm is a pattern or model, the definition says that a kind of directive by which a certain act is permitted or authorized or commanded. His theory says to be pure because he eliminates alien elements which make the structure of the legal system improper. According to him, the law must be positive law.

According to Kelsen, Jurisprudence is “the study of a hierarchy of norms, the validity of each norm depending on that of a superior norm ‘Grund Norm’.

For example– Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC, and other laws check their validity from the Grundnorm which is Constitution. If in IPC any such law made which is against the Grundnorm then they will become invalid.

His definition executes the relationship between the Grund norm and all other norms. For him norm is a ‘rule of conduct’ and grund norm is the superior norm. The grund norm delegates authority to inferior norms which derives their validity from the norms superior to themselves.

The validity of other inferior norms can be defined by testing against grund norm.

Key Features of Kelsen’s Pure Theory

1. Law as Science: Kelsen tried to present a theory that could be attempted to change Law in science, a theory that could be understood through logic.
2. As a positive law: In the first paragraph of the pure theory of law, Kelsen introduces his theory as a theory of positive theory. This principle of positive law is then presented by Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm ‘, where all other norms are related to each other either being inferior norms.
3. Law “As it is”: Kelsen emphasized that analysis should focus on the law ‘as it is’ in fact laid down, not as ‘it ought to be’.
4. Law and morality: Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.
5. The theory of law should be uniform: According to Kalsen, the theory of law should be applied at all times and in all places.
6. Static Aspect of Law: Kelsey distinguished the static theory of law from the dynamic theory of law. The static theory of law represented the law as a hierarchy of laws where individual laws were related to each other either being inferior, the one to other, or superior with respect to each other.

Kelsen’s Criticism

• The concept of Grundnorm is vague and creates confusion.
• His theory of him did not give importance to his practicality of it.
• He directly ignored morality and natural law.
• As he says his theory is pure and excludes improper elements in it but the critiques say that it is not possible to maintain purity.