A N A L Y T I C A L S C H O O L O F L AW  

INTRODUCTION 
• Established in the 19th century.
• Also known as 'Analytical Positivism', 'Imperative school of Jurisprudence', 'Systemic jurisprudence'. 
• Founder- Jeremey Bentham; Father- John Austin 
• Most important aspect of law is its relationship with state. 
• The emergence of the modern state as the more and more exclusive repository of political and legal
power not only produced class of civil servants, intellectuals and others, but it also demanded more
and more organisation of the legal system, a hierarchical structure of legal authority and the
systematization of the increasing mass of legal material.
• The purpose of analytical jurisprudence is to analyze law without reference to its historical
development, ethical significance and validity. 
• The schools emerged as a result of reaction against the Natural law school, political factors and
development of scientific study.
• Predominant in England. 
• HLA Hart identifies five meanings of the term ‘positivism’ have been identified:
• (1) the laws are commands of human beings,
• (2) there is no necessary connection between law and morals or law as it is and ought to be,
• (3) the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to
be distinguished from historical inquiries into the causes or origins of laws, from
sociological inquiries into the relation of law and other social phenomena, and from the
criticism or appraisal of law whether in terms of morals, social aims, "functions," or
otherwise,
• (4) a legal system is a "closed logical system" in which correct legal decisions can be
deduced by logical means from predetermined legal rules without reference to social aims,
policies, moral standards and
• (5) the moral judgments cannot be established or defended, as statements of facts can, by
rational argument, evidence, or proof
BASIC APPROACH 
• Positivism generally understood as law emanating from a real source, which is obligatory
binding.
• Law is a product of a state. Analytical jurists regard law as something made consciously
by makers whether legislature, judiciary. 
• The idea of positivism emphasizes the separation of law and morality. 
• The focus is on the 'law as it is'. Concentrated only on the pure fact of laws. 
• No relation with law 'as it ought to be'. 
• Ethical aspects do not come under the provisions of law and jurists are concerned with
ethics. 
• Analysis or decomposition of the subject matter of law into irreducible elements. 
• To ascertain the exact relation and points of contact between the larger parts of our jural
system, for example, law and equity.
JEREMY BENTHAM(1748-1832) 
INRODUCTION 
• He is the founder of positivism in the modern sense of the term.
• Austin work greatly based on Bentham's work .
• Averse to the notion of Natural law calling them "nonsense upon stilts."
• Establishment of legal theory as a science of investigation as distinct from the art of
rational conjecture.
• Distinguished expositorial jurisprudence (i.e. what the law is) from censorial
jurisprudence (i.e. what the law ought to be). 
• He was concerned with social and legal reform & he wanted to develop an ethical theory
which established whether something was good or bad according to its benefit for most
people, which he called as the theory of utlitarianism. 
• Condemned judge- made law and customs and pleaded in favour of codification of law. 
L AW  
• Defined Law as:
• “A law may be defined as an assemblage of signs 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 supposed to
be subject to his power". 
• Law may be considered in eight different respects: 
 Source: Sovereign  
 Subject
 Extent
 Aspects
 Force of Law: Sanction 
 Expression
• Bentham reasoned that a system of law that derive its rule exclusively from the
clearly expressed legislative will of a sovereign will produce clearer and more certain
laws than the rules generated by the common law system. 
• Bentham regarded this authorless, unpromulgated and uncodified body of rules that
made up English law as being unworthy of the name ‘law’
U T I L I TA R I A N I S M
• In his An Introduction to the Principles of Morals and Legislation (1789) propounded
the theory of uitlitarianism. 
• He defined utility as the property or tendency of a thing to prevent some evil or to
procure some good. The consequences of good and evil are respectively pleasure and
pain.
“Nature has placed man under the empire of pleasure and pain. We owe to them all our
ideas; we refer to them all our judgments, and all the determination of our life. He who
pretends to withdraw himself from his subjection knows not what he says. His only
object is to seek pleasure and to shun pain… These eternal and irresistible sentiments
ought to be the great study of the moralist and the legislator. The principle of utility
subjects everything to these two motives.
• A teleological theory: look at the consequences or results of an action to decide
whether it is right or wrong.
• Human actions are motivated by the desire to enjoy pleasure or prevent pain.  
• Wrongness or rightness of an action is determined by whether the action create
happiness or unhappiness.
• If an action conforms to principle of utility (action tends to promote happiness or
prevent unhappiness) then the action is  right or at least not morally wrong. 
• According to him, the end of legislation is the ‘greatest happiness of the greatest
number.’
• Pleasure and pain can be scientifically calculated according to the following seven
criteria of the Hedonistic Calculus. These are:
 Intensity or how intense is it, 
 Duration or how long it lasts, 
 Certainty or how probable it is, 
 Propinquity or how soon will the expected effects will become evident, 
 Fecundity or the probability of leading to further pleasure, 
 Purity or how free from pain it is, 
 Extent or how widely it covers 
• He said that the function of law is to emancipate the individual from the bondage
and restraint upon his freedom. 
• Once the individual was made free, he himself shall be looking after his welfare. In
this way, he was a supporter of ‘lassiez faire’ principle of economics.
• Though strongly in favour of the extension of individual legal rights, 
• The laws of the state, he argued, can do nothing to provide directly for the subsistence
of the citizens; all they can do is to create motives, that is, punishments and rewards,
by whose force men may be led to provide subsistence for them.
• Nor should the laws direct individuals to seek abundance; all they are capable of
doing is to create conditions that will stimulate and reward man’s efforts towards
making new acquisitions.
CRITICISM 

• Bentham underestimates the need for individual discretion and flexibility in the
application of law over estimating the power of the legislator. 
• Secondly, his theory fails to balance individual interests with the interests of the
community. Bentham’s theory suggested that interests of an unlimited number of
individuals shall be conducive to the interest of the community.
• Bentham advocated that law should be made exclusively by legislation which was
supposed to remove inroad to individual’s freedom and provide him opportunities for
development of the self. 
• But the legislation, in later times, was used restrict the individual’s freedom in
economic matters.
JOHN AUSTIN(1790-1859) 
INTRODUCTION 
• Father of English Jurisprudence. 
• Opposed the theory of Natural law and his theory of law seeks to define law not by reference
to its content but according to the formal criteria which differentiates legal rule from other
rules like moral rules, etiquettes. 
• According to him law should be carefully studied and analysed and the principles underlying
therein should be found out. 
• Positive law the only subject matters of study of jurisprudence.
• Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him.
• The substitution of the command of the sovereign by Austin led him to write at a time when
England was actually in dire need of vast legislative reforms. 
• Law is thus, strictly divorced from justice and instead of being based on the ideas of good and
bad, is based on the power of a superior.
L AW    
• “Law is the aggregate of rules set by men as politically superior, or sovereign,
to men as politically subject.”
• 'Law properly so called' 
 Divine Law: No significance 
 Positive Laws: These are the laws set by political superior as such or by men not acting as political superior
but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper
subject-matter of jurisprudence. 
• 'law improperly so called'
 In this category 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 these ‘positive morality’. 
• The science of jurisprudence, according to Austin, is concerned with positive laws or with laws as
considered without regard to their goodness or badness.
• Every positive law, or every law simply and strictly so-called, is set by a sovereign or a sovereign body of
persons to a member or members of the independent political society wherein that person or body of persons
is sovereign or supreme. 
  L AW A S C O M M A N D  

• According to Austin, positive law comprises the commands of a political sovereign

supported by sanctions on those who disobey. There are three key elements of this
concept of law:
• (1) a political sovereign, 
• (2) command and
• (3) sanction. 
   

• Sovereign according to Austin is:

 “if a determinate human superior, not in a habit of obedience to alike superior, receives
habitual obedience from the bulk of a given society, that determinate superior is
sovereign in that society and the society (including the superior) is a society political
and independent" 
 the idea of obedience
 position of sovereign above the law. 
• Sanction: There is an implied threat of a sanction if the command is not obeyed.
• Austin defines command as 
• “if you express or intimate a wish that I shall do or forbear from some act and if you will visit me with
an evil, in case I comply with your wish-it is a command”. 
• Law, signifies a command which obliges a person or persons to a course of conduct. The person who
receives the command must realise that there is a possibility of incurring some evil in the event
of disobedience. 
• Every command does not create a law. 
• It is only the general commands, which obliges to a course of conduct, is law. 
• Exception: three kinds of laws which though not commands, are still within the province of
jurisprudence. They are.- 
ü Declaratory or Explanatory Laws: - Austin does not regard them as commands, because they are passed
only to explain laws already in force.
ü Laws to repeal laws: - These too are not commands but are rather the revocation of a command. 
ü Laws of imperfect obligation: - These laws have no sanction attached to them.
CRITICISM 

• Customs overlooked.
• Law conferring privileges
• No place for judge made law
• Conventions
• Sanction not the only means to induce obedience.
• Command over emphaised. 
H L A H A RT ( 1 9 0 7 - 1 9 9 2 )  
INTRODUCTION 

• Regarded as the leading contemporary representative of British positivism. 

• His book “the concept of law” was published in 196.
• Idea of obligation is at the core of a rule. 
• Criticizes Austin's Command Theory. 
• He has rejected any system of law based simply on coercive orders.
• Laws may differ from the commands of a sovereign, because they may apply to those
individuals who enact them and not merely to other individuals. 
• Modern legal system confers both public and private legal powers, for instance, in the
case of the law relating to wills, contracts, marriage etc. 
• Many laws do not have sanction attached to them for instance customary laws,
enabling laws and laws imposing duties on public authorities.
H A RT ' S C O N C E P T I O N O F L AW  
• Primary Rules
 Primary rules lay down standards of behaviour and are rules of obligation, that is, rules that
impose duties.
 Three defects: Uncertain, static and inefficient.
• Secondary Rules
 Power conferring rules and enable the legislators to modify their policies according to the needs of
the society. 
 They seek to remedy the defects of primary rules, primary rules are ancillary to them.
 Rule of recognition cures the uncertainty, Rule of change cures the static nature and Rule of
adjudication cures the inefficiency of primary rules. 
• Underdeveloped society which has no secondary rules but only primary rules of obligation, would
not really possess a legal system at all but a mere ‘set’ of rules. 
• Union of primary rules and secondary rules which constitute the core of a legal system. 
RULE OF RECOGNITION 

• Rule of recognition sets out the criteria of legal validity, and because the law of a particular system just is the set
of rules that officials of a certain system are under a duty to apply and the rule of recognition sets out the content
of this duty.
• ‘secondary rules’ i.e., rules those conferring powers, include an important ‘rule of recognition’ which is used ‘for
the identification of primary rules of obligation.’ It refers only to formal criteria and thus excludes morality. 
• Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal
system may be described or evaluated. 
• The internal point of view, is the views of individuals who are governed by the rules of the legal system and who
accept these rules as standards of conduct.
• Legal system to exist there must be general obedience by the citizens to possess ‘an internal point of view'
meaning that aw depends not only on the external social pressure which are brought to bear on human beings to
prevent them from deviating from the rules but also on the inner point of view that human beings take towards a
rule imposing an obligation.
• Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a
legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition
by which the validity of any primary or secondary rule may be evaluated.
• If a primary or secondary rule satisfies the criteria which are provided by the ultimate rule of recognition, then
that rule is legally valid.
• There is no necessary logical connection between the content of law and morality, and
that the existence of legal rights and duties may be devoid of any moral justification.
• Legal positivism as the theory that there is no logically necessary connection between
law and morality. 
• However, he describes his own viewpoint as a "soft positivism," (Inclusionary
Positivism) because he admits that rules of recognition may consider the compatibility
or incompatibility of a rule with moral values as a criterion of the rule’s legal validity.
• International law is described by Hart as problematic, because it may not have all of
the elements of a fully-developed legal system.
• International law may in some cases lack secondary rules of recognition, change, and
adjudication.
R U L E O F A D J U D I C AT I O N  

• In any legal system, there may be cases in which existing laws are vague or
indeterminate and that judicial discretion may be necessary in order to clarify existing
laws in these cases. 
• "No vehicles are allowed in the park"
• The concept of 'Open texture": Hart also argues that by clarifying vague or
indeterminate laws, judges may actually make new laws. 
• This argument is rejected by Ronald Dworkin, who contends that judicial discretion is
not an exercise in making new laws but is a means of determining which legal
principles are most consistent with existing laws and which legal principles provide
the best justification for existing laws.5
• Dworkin differentiates between 'rule' and 'principle'. 
• Rule applies in all or nothing fashion, unlike principles. 
• Dworkin criticises Hart’s rule of recognition as he believes that it is not possible to
claim that there is criteria that determines what is ‘law’ and what it is not (he is
basically attacking the Rule of Recognition). This can be seen when there is a
disagreement amongst judges within case law. 
• Dworkin’s argument is that Hart’s rule of recognition is based on content, due to its
source and linguistic merits, rather than because of what it actually aims to achieve. 
• He states there is no rule of recognition which distinguishes between legal and moral
principles and a judge in a hard case must therefore appeal to principles, which
include his own conception of what is the best interpretation of the network of
political structures and decisions within his community
CRITICISM 

• For Dworkin, in addition to settled legal rules, the law is comprised of legal principles
which arise from the moral interpretation of these rules, rather than from ‘social
sources’ alone. 
• Dworkin, incorporating such principles is essential in a theory of law. 
• He states that positivism “forces us to miss the important roles of these standards that
are not rules” and thus rejects Hart’s rule of recognition for the very reason that it
fails to incorporate principles.
• Dworkin claims that law is concerned not only with what has been established, and
the rules relating to the laws themselves, but also with principles.