A common introduction for all the School of Jurisprudence.

Since jurisprudence has been treated as a science of social control on human

conduct, there is a comprehensive basis of classifying it (jurisprudence) into
different schools. School means thought. Every school has a legal philosophy
given by the supporters of that school. These thoughts are based on certain basic
assumptions about „law‟ characterized by jurists belonging to each school.

The story of all these schools depicts the movement of human thought
and legal philosophy from the very beginning of human history to the present
day. Their study becomes necessary for understanding law. There are four
divisions of schools of jurisprudence-

• Natural school of law

• Analytical School
• Sociological School
• Historical School
• Philosophical School

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IMPERATIVE SCHOOL / ANALYTICAL SCHOOL

It is one of the most important schools of thought. This theory was

created around the 18th and 19th centuries by jurists John Austin and Jeremy
Bentham.

The supporters of this school are neither concerned with the past nor with
the future of law - but with the law as it exists, i.e. with law 'as it is'
Reasons for its Growth

• Impact of Natural Law: Though Natural law was predominated upto the
beginning of 18th century but few people (Jurist) reacted against the
assumptions of natural law.
• Political Power: The analytical school was established to justify the
power of the ruling monarch against the other agencies eg. Pope, Lords.

JEREMY BENTHAM (1748 -1832)

Jeremy Bentham is said to be the father and founder of the Analytical school
of jurisprudence. Bentham rejected the natural law and promoted the principle
of utility. He believes that law is a product of state and sovereign.

He said that „sovereign‟ is a person or group to whom the people of the society
have to obey to.

Bentham was the supporter of individuals. He believed that the

function of law is to make the individuals free from all the bondage and
restrictions.

He favoured the economic principle of “Laissez Faire” which means

minimum interference of the state in the economic activities of the individual.
That once the individual is free, they will be looking after their own welfare.

Thus Bentham came up with the principle of utilitarianism - i.e. the

every law/ legislation should aim for the promotion of the “greatest good for the
greatest number”. The purpose of the law is to bring pleasure (i.e. benefits,
advantages and happiness) and to avoid pain (i.e. mischief, evil or unhappiness).
It is the ultimate standard on which a law should be judged.
 He also identified that human behaviour is governed by these two key
factors:

• The desire for pleasure,

• The avoidance of pain.

John Stuart Mill agreed with Bentham view regarding utilitarianism which is
also called the „doctrine of hedonism‟ or „theory of pain & pleasure‟.

For Bentham, law had to contain the following factors:

• A collection of words
• Which indicate an intention
• Which are conceived or adopted by a sovereign in a state
• Which describe the desired behaviour
• Of the people to whom the intention is directed

According to him, the function of law (i.e. to ensure happiness of the

community) must be to meet four major goal namely,

• to provide subsistence,
• to provide abundance,
• to favour equality and
• to maintain security.

Bentham further proposed a system of codification of the law – where there will
be a universal set of laws - that are easy to understand, and are able to be easily
communicated to the public, so that people know what they had to do - to obey
the laws.
 Criticism of Bentham

1. There is an overestimate of the powers of the legislator and underestimate

the need for the flexibility of the application of the law.
2. According to him, the initial aim of the legislation was only to remove the
problems from the individual‟s freedom and provide him opportunity for
his self-progress. But the legislation, started restricted the individual‟s
freedom in many matters.
3. His theory of pain and pleasure was criticized on the ground that pleasure
and pain alone cannot be the final test of the adequacy of law.

JOHN AUSTIN (1790-1859)

John Austin, confined his field of study only to the positive law – Jus
Positivism (Law set by the political superiors). The school founded by him is
called as analytical or positivism. He is considered as the father of English
jurisprudence because he was the first jurist to make jurisprudence as a
„science‟.

According to him, Human laws may be divided into two classes-

1. Positive law (laws properly so called) - which relates to a rule laid down
for the guidance of humans by an intelligent being having power over
such human beings.
2. Other laws - In this category there are multiple types of rules such as,
rules of clubs, law of fashion, laws of natural science, and the rules of
international law. Austin names all of these as „positive morality‟.

According to him, there is no need to relate law with morality or ethics.

He was opposed to Natural Law School or morality approach.
Every Positive law or „laws properly so called‟ must have three elements of ;

1. COMMAND - It is a WISH by a person or a body of person that other

person shall do or not do some act.
A command maybe particular i.e. addressed to a person or group of person.
Or it may be general i.e. for the community at large.
2. SANCTION – Every law is a command which is imposing duty. It is
enforced by a sanction. People are bound to obey command because of a
mental fear created upon them.
3. SOVEREIGN - Sovereign is a person or a body of persons who are
politically organized and society habitually obeys them.
However, Austin‟s sovereign like Bentham‟s Sovereign is also limited
by the Principles of Utilitarianism. The Sovereign according to Austin also,
will not make any law against utility.

EXCEPTIONS: - All the commands are not law. There are three kinds of laws
which are not commands, yet are still within the province of jurisprudence.
These are.-

1. Declaratory or Explanatory Laws: - Austin does not regard them as

commands, because they are passed only to explain laws already in force.
2. Laws to repeal laws: - These too are not commands but are rather the
revocation of a command.
3. Laws of imperfect obligation: - These laws have no sanction attached to
them.

Ought Proposition by Austin

“X ought to do or ought not to do a thing else he shall be punished.”

 In Austin‟s proposition, the words „ought to do‟ or „ought not to do‟ are
binding upon the people. In other words: The people are bound or obliged by
the State to do or not to do a particular thing. At the same time, the sanction i.e.
punishment element goes with the word „shall‟ and that is compulsory. It
focuses on Law as it exists i.e. law as it is - regardless of good or bad.

Criticism of Austin‟s Theory of Law

1. Laws before state - It is not necessary for the law to exist if the sovereign
exists. There were societies before the existence of sovereign. There were
many rules prevailing. When there was no political superior - Law had its
origin in custom, religion and public opinion.
2. Sanction - laws exist not because of the force of the state but due to willing
of the people. Also, there exists no sanction in Civil Laws unlike Criminal
Laws.
3. Customs and Personal Laws (Hindu Law or Muslim Law) have their
origin in religion, customs and traditions. Austin‟s definition strictly
excludes them.
4. It also ignores the relation between law and morality as morals provide
strength to law and they are both inseparable from each other
5. Constitutional Laws which actually regulate the conduct of people and also
the state - are not enforceable by law.
6. Social welfare part has been ignored by Austin.
7. No place for judge-made law: Austin avoids the creative function of the
judiciary for example applying of the precedents and the interpretation of
laws.
8. Austin theory treats international law as morality: Austin doesn‟t treat
international law as a law. Because it is lacking sanction. This view of
 Austin neglects the increasing role of international law in achieving world
peace.

SIR JOHN SALMOND (1862 – 1924)

Law as per Salmond is that it is body of principles recognised and

applied by State in the administration of justice.

Salmond also belongs to the Analytical School but he differs from other
jurists. Though Salmond, deals with law „as it is‟ but law - not in relation to the
sovereign but in terms of the courts. For him, Law is something which
originates from courts only. Thus he gave importance to courts.

Further he states that the laws only regulate the external aspect of human
behaviour but cannot regulate the inner beliefs and consciousness of humans.

Criticism:

He confuses justice with law: Law is actually in force whether it is evil or good,
whereas justice is the ideal founded in moral nature of man.

H.L.A, HART

Hart In his influential book „The Concept of Law‟ emphasized on „social

element‟ which his predecessors ignored.

There is certain conduct which any social organization must contain,

concerning human beings and their natural environment. He points out towards
minimum content of Natural law. It is required for the survival of men while
associating with each other.
Further, Hart says that the purpose of human being is to survive in the society
and for an effective survival, it is essential that the elements of morality and
human reasoning should be a part of the legal process. Though Law and
morality are two distinct concepts but they overlap.

Thus, the concept of Hart includes two elements. He is also referred as a

Naturalist and hence he is often called an Analytical Naturalist too.

According to Hart, the law is a system of social rules which acquire the shape of
legal rules. A legal rule prescribes a code of conduct which is obligatory. There
are two types of rules. These are:

1. Primary rules – which impose duty/ obligation and lays down standards
of behaviour.
2. Secondary rules – they specify the means in which the primary rules may
be determined, introduced, rejected or varied, and the manner in which
their violation may be finally determined.

And a person cannot be compelled to obey the law. Law is concerned with
obligation rather than coercion or force. An obligation is similar to a duty.

Criticism:

Professor Hart‟s concept of law has been severely criticised for mixing up
primary and secondary rules. According to jurists it is only a tool of analysis.

ANALYTICAL POSITIVISM: INDIAN PERSPECTIVE

Analytical positivism of Austin basically focuses on law „as it is‟ and exclusion
of morality. Insistence on the sanction which was a coercive force behind the
enforcement of laws.
The concept of analytical positivism was not applicable in the ancient Indian
jurisprudence because in analytical positivism, sovereign was the lawmaker, as
he was always considered superior to the law.

In ancient time, the Indian jurisprudence follows the concept of dharma.

According to which, all including the ruler or the king was similar in front of
the law and law was considered to be superior to all. Law, morality, and religion
co-existed at that time but the jurist of analytical doesn‟t believe in morality and
religion.

Due to the British rule in India, the Indian legal system went a big change. The
Britishers did not believe in morals. They rejected the ancient Indian legal
system. They gradually introduced the notions of the British juristic concept of
equity, justice, and good conscience.

Thus, came the codified law. The British king in Parliament was the
supreme or sovereign authority to make laws for the governance of India and
they were above the law enacted for India.

The Indian legislature had no authority to change the law. The Indians were
bound to obey the laws enacted. Thus all the characteristics of positive law,
namely, command, sanction and sovereign were introduced by British rulers in
India.
Concluding, this concept was not completely applicable in India because
the jurist of analytical school only talks about the proper laws.
During Post-Independent period the Indians constructed the Indian legal
system in the form the Indian Constitution 1950, (a Grundnorm). Focus was to
create the Harmony between both the proper laws and the improper law or the
moral laws. In the present-day scenario all the laws (proper laws and the moral
laws) get their legal validity from the Constitution.