Analytical School of
Jurisprudence
Introduction
• Jurisprudence was the first of the social sciences to be born.
It’s province has been determined and re-determined because
the nature of the subject is that no delineation of its scope can
be regarded as final. On torts or contracts, for example, a
student may be recommended to read any of the standard
textbooks with the assurance that, whichever book he does
read, he will derive much the same idea as to what the subject
is about. With jurisprudence this is not so. Books called
‘jurisprudence’ vary so widely in subject matter and treatment
that the answer to the question, what is jurisprudence?, will
vary in almost each and every book.
(Extracted from R.W.M. Dias’ book ‘Jurisprudence’)
Analytical School of Jurisprudence
• 1. Central Idea:
⇨Law as it exists i.e. Law as it is, regardless of good or bad, past or future.
“A law, which actually exists, is a law, though we happen to dislike it, or
though it vary from the text, by which we regulate our approbation and
disapprobation.”
• 2. Different Names:
Positive School, because it focused on ‘positum’ (Latin) which means ‘as it
is.’
English School, because this school was dominant in England.
Austinian School, because it was founded by John Austin.
Origin:
• Imperative concept of law was first proposed by Bentham during
his life time (1742-1832) but his work remained unpublished till
1945.
• Prof. Dias points that until recently John Austin used to be known
as the “father of the English Jurisprudence”, but it is now clear
from a work of Bentham first published in 1945 that it is he, if
anyone, who deserved such a title.
• However, John Austin is considered the de facto originator of this
school of jurisprudence.
Chief Exponents of Analytical
School of Jurisprudence
1. Jeremy Bentham (1742-1832)
2. John Austin (1790-1859)
3. Sir William Markby (1829-1914)
4. Sheldon Amos (1835–1886)
5. Thomas Erskine Holland (1835–1926)
6. John Salmond (1862–1924)
7. Herbert Lionel Adolphus Hart (1907-1992)
8. Horace Gray (1828-1902)
9. Wesley Newcomb Hohfeld (1879-1918)
10. Hans Kelsen (1881-1973)
11. Nikolai Mikhailovich Korkunov (1853-1904)
(i) Analysis of the legal system and legal concepts such as Right, Duty etc.
(ii) Analysis of the relation between civil law and other forms of law.
(iii) Analysis of the legal structure of a state and administration of justice.
(iv) In depth investigation into the actual sources of law.
(v) Investigation of the theory of legislation, precedents and customary
law.
(vi) An inquiry into the scientific arrangement of law into distinct
departments along with an analysis of distinctions on which the division is
based.
(vii) An investigation of the theory of legal liability in civil and criminal
cases.
(viii) An examination of all other relevant legal concepts.
(ix) Worldwide legal education today owes its basis to analytical school of
jurisprudence.
Utility of Analytical School
Analytical school of jurisprudence explains in detail the complex legal
concepts such as ‘Law’ itself, ‘State’, ‘possession’ etc.
It provides analysis of the various legal systems of the world.
It elaborates the structure of a legal system.
It provides a logical basis and helps determine the purpose of law.
It provides answer to the question ‘Why is it so?’
It separates law from morality.
It enables lawyers and judges to interpret law with logic and efficacy
for smooth functioning of a legal system.
1. Jeremy Bentham (1742-1832)
“Law is an assemblage of signs, declarative of volition, 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
supposed to be the subject to his power.”
Bentham’s theory contains key concepts viz. Sovereignty, Command and
Sanctions.
Bentham believed that there was the possibility of complete scientific
codification of law.
Bentham was against the judge-made law.
Bentham attributed the element of ‘utility’ to law. He defined utility as, “the
property of a thing to prevent some evil or to produce some good.”
2. John Austin (1790-18569)
Imperative theory of law states;
“Law is the general command of sovereign enforceable with sanctions.”
John Austin is best known for his work developing the theory of legal positivism.
He attempted to clearly separate moral rules from "positive law."
Austin divided laws into two kinds;
A) ‘Laws Properly So Called’ or Positive Law. E.g. PPC, QSO, etc.
B) ‘Laws Improperly So Called’ or Positive Morality. E.g. Religious Rules,
Moral Rules, Customs etc.
Austin attributed three elements with ‘positive law’ which are;
i) Command
ii) Sovereign
iii) Sanction
i) Command:
“Commands are expression of desires given by superiors to inferiors.”
ii) Sovereign:
“A Sovereign is any person or body of persons whom the bulk of a
political society habitually obeys but who does not habitually obey
any other (earthly) person or institution. .”
A sovereign may be an individual person, e.g. King, Queen, Sultan etc, or a
group of persons, e.g. Parliament, Congress, House of Lords etc.
Austin thought that all independent political societies, by their nature, have a
sovereign.
iii) Sanction:
“An evil or punishment attached to a command.”
E.g. Fine, Imprisonment, etc.
3. John Salmond (1862–1924)
“ Jurisprudence is the science of civil law. By law he means the law of the
land.”
Salmond makes a distinction between the use of term jurisprudence in the
‘generic’ and ‘specific’ sense.
A) Generic: deals with basic principles governing all legal systems of the
world. E.g. ‘Audi alteram palteram’
B) Specific: deals with one particular legal system. E.g. England
Salmond believes in the consideration of concepts of justice and the
relationship of law and justice.
It investigates the real value of existing legal institutions and an exposition of
desirable of changes in the law.
4. Thomas Erskine Holland (1835–1926)
“Jurisprudence is the formal science of positive law.”
Holland follows the definition given by Austin with addition of
just one word i.e. ‘Formal’.
Formal means concerned with form and structure of a legal
system.
Holland believes that jurisprudence does not deal with the actual
material contents of law but with its fundamental conceptions.
E.g. Concept of ownership, not its legal procedure.
1. Analytical vs. Historical School
Historical school in its ideal condition would require an
accurate record of the history of all legal systems as its
material whereas analytical school requires only the
existing legal systems.
Its aim is to show how a given rule came to be what it is
whereas analytical school answers ‘why it is what it is?’
It uses evolutionary history and hundreds of legal
systems to as its subject-matter whereas analytical
school examines the available subject-matter, its
structure, and rules in order to reach its principles and
theories by analysis.
2. Analytical vs. Ethical School
Ethical jurisprudence deals with the law as it ought to be
in an ideal state whereas Analytical jurisprudence deals
with law as it is.
It investigates the role of morality in law whereas the
analytical schools separates law from morality.
It concerns itself with the relation of law to certain ideals
which law is meant to achieve whereas analytical school
adheres to the analysis of existing system.
Criticism
1. No legal system exists in a vacuum; hence cannot be fully understood
by focusing only on the law itself. Modern trends suggest the blending
of socio-economic factors in the study of jurisprudence.
2. Analytical School conflicts with the usage of the term ‘law’ as it does
not include customary law, international law and constitutional law in
its domain.
3. Bentham was enemy of the judge-made law (Judicial Precedents).
Today, precedents serve as an important tool in entire legal system.
4. All laws are not necessarily commands. Some laws prescribe action
but without are sanctions such as ‘repealing’, ‘declaratory’ laws.
a. E.g. A law that gives a citizen right to vote, etc.
5. The analytical school disregards the moral element in law which
implies that even unjust law is a law.
6. Analytical school does not take into account legal change. It takes for
granted the perfection of a legal system and proceeds to explain its
fundamentals. However, change is undoubtedly a permanent factor in
all walks of life.
