Module-I

Analytical School
 Analytical School
• Analytical school is also known as Austinion School
since this approach is established by John Austin.
• It is also called as imperative school because it
treats law as command of sovereign. Dias terms this
approach as ‘positivism’ as the subject matter of
the school is positive law.
• The difference in perception between the
normative (natural) & positivist (factual) notions of
law in jurisprudence is mainly a nineteenth
centaury phenomena.
 Jeremy Bentham
• Jeremy Bentham can be said to be the founder of Analytical
school. In ‘limits of jurisprudence Defined’, written in 1872
(published in 1945) he rejected the clinches of natural law &
expounded the principle of utility with scientific precision.
He divided jurisprudence into expository & censorial. The
former deals with law as it is while the later, deals with
law as it ought- to –be.
Bentham’s analysis of censorial jurisprudence is indicative of
the fact that the impact of natural law had not completely
disappeared that’s why he talked of utility as the
governing rule.
 I
• He however believes that law is a product of state and
sovereign. Bentham’s concept of law is an imperative
one, for which he himself preferred the term ‘mandate’.
• “A law may be defined”, said Bentham as an
assemblage of sign, declarative of a 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 or are not supposed to be subject to his power”.
 II
• The object of ‘Law” to bring “maximum
pleasure to maximum people” or to bring
pleasure & avoid pain.
– Simple pleasure he included e.g. pleasure of
friendship, pleasure of rich, pleasure of good
reputation pleasure of knowledge etc., As to pains
i.e. which create disagreeable feeling or feeling of
dissatisfaction Bentham listed them to be excluded
as pain of sense including diseases of all kinds, pain
of privation- disappointment, regret, or
dissatisfaction, pains of skill, pains of enmity etc.
 III
• Bentham proceeds to enumerate the various
kinds of pain and pleasure which serve as
motives to the adoption of these forms of
conduct which it is desirable in the general
interest of happiness.
• These various kinds of pleasure & pain are
what he calls the sanctions. He enumerates
four kinds of sanctions which he calls the
physical, the political, the moral & the
religious.
 IV
• If the pleasure & pain comes in the ordinary
course of nature & is not attached to our
actions by the will of any individual such a
source of motives is called a physical sanction.
For e.g. the pains following from drunkenness.
• If, on the other hand the pleasure or pain is
attached to an action by the will of a sovereign
ruler or government, it is called a political
sanction, as in the case of ordinary judicial
punishment.
 V
If it is attached to an action by the will of individuals are not
in a position of authority, it is a called a moral (or popular)
sanction, as when a man is ‘boycotted’ or ‘loses caste’.
• Finally, it is attached to an action by the will of a super
natural power it is called a religious sanction as in the case
of Heaven & Hell or of penalties inflicted by the Roman
Catholic Church as the representative of the Divine will on
the earth.
• James Mill accepted all these sanction but characterized
them all as ‘external’ & held that we ought to recognize in
addition to them, the ‘internal’ sanction of conscience i.e.
pleasures & pains of the moral sentiments.
 John Austin (1790-1859)
• In 1832 John Austin’s Lectures were under the
title of the “Province of Jurisprudence
Determined”. This was the first systematic and
comprehensive treatment on subject which
expounded the analytical positivist approach
& as a result of this work Austin is known as
the father of the Analytical school.
• Austin built on the foundation of expository
jurisprudence laid by Bentham & did not
concern himself with extra legal norms.
 I
• He distinguished between the science of legislation & law
from morals.
• Austin jurisprudence meant the formal analysis of legal
conceptions.
• He divides jurisprudence into general jurisprudence &
particular jurisprudence.
• According to him, general jurisprudence is the science
concerned with the expression of the principle, notions &
distinctions which are common to systems of laws,
understanding by systems of law, the ampler & mature
systems, which by reason of their amplitude &maturity are
predominantly pregnant with instructions.
 II
• On the other hand particular jurisprudence according to
Austin, “is the science of any actual system of law or of
any portion of it. The only practical jurisprudence is
particular.”
• He further determine & characterize the notion of law
i.e. law properly so- called is distinct from morals &
other laws that are described laws improperly so –
called.
• His model of law is the positive law he distinguishes
from positive morality or other kinds of laws the latter
lacking force, sanction & coercion of the State.
 III
• Positive law, on the other hand, he describes as the aggregate
of rules set by men as politically superior to men as politically
inferior subject.
• For him positive law is appropriate matter of jurisprudence &
rejects the law that ought to be which Austin describes as
‘science of legislation’ or utility or ‘positive morality’.
• In this category he includes different types of rules i.e. rules of
the club, law of fashion, law of natural science, the rules of
international law.
• The positive law, therefore remains a distinct & clearly
identifiable characterized by four elements, command,
sanction, duty & sovereignty.
 IV
• The distinction between positive law & positive morality is
brought about by analytical or logical efforts by Austin who
identifies law with command, duty & sanction. It also
implies a relation of superiority & inferiority. It is the
power or might which is absolutely necessary to enforce
compliance. Austin’s positive law devoid of abstract
elements with a strict delimitation & demarcation between
positive law & positive morality through logical method.
• Justice Holmes describes the logical method as washing
law with cynical acid so as to excludes from jurisprudence
considerations of goodness & badness of law
 V
• Julius Stone on the other hand says it is logical acid
& not the cynical acid with which Austin washed
the law to determine & find out true by deriving
out moral, metaphysical & natural elements from
his system of positive law- asserted as law-
properly so-called.
• In other words positive law, according to Austin has
nothing to do with ideal or just law.
• Austin formulated his doctrine to quote his own
words-
 VI
• ‘The existence of law is one thing, its merit &
demerit is another. Whether it be or be not is one
enquiry, whether it be or be not conformable to
an assumed standard, is a different enquiry. 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 or
disapprobation’.
• Such an approach to jurisprudence dominated
nineteenth century legal philosophy.
 Criticism of Austin’s
• Professor Hart brings out several unimpeachable
points of criticism in Austin’s theory of law-
• 1-professor Hart quip this model with ‘gunman
situation’ where the gunman says to his victim ,
‘give me your money or your life’. This is akin to a
situation where the human superior commanding
human herds receives their habitual obedience at
the gun-point unlimited & irresponsive to the needs
& good of his inferiors & thus reducing law to order
of a mafia gang leader.
 I
• Austin’s description of law most closely approximates penal
statute & particularly law that impose duties. However, his
law does not take into account the other types of laws such
as what are sometimes called power conferring laws or
rules of competence. For e.g., some laws give people the
power to make wills or declare themselves trustees or
others confer power on officials to adjudicate or to legislate.
Such laws do not impose duties- they do not require people
to do or refrain from doing certain things.
• Similarly, the laws giving permission to use force for self-
defense also do not conform to Austin’s concept of law.
 II
• In most legal systems including that of India the sovereign
is bound by law. But if laws are orders backed by sanction
how can this be so?
• Moreover, there are different roles, capacities of the
sovereign his capacity as sovereign & his capacity as citizen.
• The idea would be that though he cannot order himself in
his capacity as sovereign but can do so in his capacity as
citizen.
• Further, in modern democracies it is difficult to point where
really sovereignty resides electorate, people or legislature.
 III
• In, India, for example while electorate has this power to
alter the Constitution, it is indeed, ‘we the people of
India’ who are sovereign.
 State of West Bengal Vs Union Of India AIR 1963 SC
1241. The SC has affirmed that under the present
Constitution sovereignty vests in the people of India.
The court rejected the contention that ‘absolute
sovereignty remains vested in the states’.
 In this context if people are sovereign then Austin’s
concept of law involving habitual obedience between
sovereign & subjects becomes meaningless.
 IV
• The separation between ‘is’ & ‘ought’ i.e. law & morality
the central theme of Austin & other positivists is rejected
by Hart who insists that law has necessarily some moral
content what Hart describes ‘minimum content of natural
law’.
• Hart rejects Austin’s trilogy of sovereign, command &
sanction as ‘key to the science of jurisprudence’ because
this pattern is largely applicable to criminal pattern of law
& is inapplicable to modern progressive systems.
• Austin analysis of law does not account for laws governing
the succession of one government by another in a society.
 V
• Sociologist perception of law is anti-thesis of
command & results from long evolution, racial,
climatic, economic needs & social goals.
• It is a cementing force in society influenced by
moral, cultural, social & psychological imperatives.
• They have correlated law with life of the people
insisting on legal order as a measure of social
control to be explained & understood in the
context of social setting.
 VI
• The jurists of Historical school School like Vinogradoff &
Maine besides Savigny, Hugo etc. demonstrated that law
can never be divorced from history & other cultural
factors.
• Sir Henry Maine challenged the validity of Austinion
positivism especially in relation to primitive communities.
• Gustav RadbruGch main charge against Austinianism is
that it leads to dictatorship as happened in Germany
during the Nazi Rule. During Nazi period Hitler’s word
became law unto himself & he himself the supreme
commander, the supreme legislature & the highest Cts
 H L A HART
• Prof. Hart’s positivism continues within it a content of
natural law.
• According to Hart the legal system is a system of social
rules. The rules are ‘social’ in two senses: first, in that
they regulate the conduct of members of societies;
secondly, in that they derive human social practices.
• They are not the only social rules. They are, for
example , rules of morality. Like rules of morality, laws
are concerned with obligations, they make certain
conduct “obligatory”.
 I
• The two types of rules the union of which Hart
claims provides ‘key to the science of
jurisprudence’, are what he calls as ‘primary’ &
‘secondary’ rules.
• His distinction between primary rules of duty
imposing & secondary rules of power conferring is
of great significance.
• Hart observes that union of these two types of legal
rules is a most powerful tool for analysis of much
that has puzzled both the jurist & political theorist.
 II
Primary Rules: Hart asks us to imagine a community in which
only primary rules exist without a legislature, courts, or
officials of any kind. Such a group is living what he calls a
pre-legal state. Such a primitive small community closely
knit by ties e.g. kinship, common sentiment and belief.
According to Hart primary rules are those that impose duty
upon individuals and are binding because of practice of
acceptance which people are required to do or to abstain
from certain actions. Hart typically characterizes primary
rule as imposing duties or obligations on individual in
primitive community.
 III
• There are three defects from such a community suffers
because of social control based on a regime of unofficial
rules & according to Hart would require three
modifications.
• The first defect in the simple social structure of primary
rules is what we may call uncertainty. For in such a
community there is no systematic procedure for resolving
doubts or questions as to what the rules are or what their
scope is.
• The second defect is the static character. Change is
accomplished only by the slow process of growth & decay.
 IV
• The third defect of the regime of primary rules is the
inefficiency. The rules are maintained only by diffuse
social pressure & there is no agency for determining
disputes about the rules, their incidence & their
violations.
• Secondary rules: the remedy for these three main
defects is the supplementation of primary rules with
secondary rules.
• Hart himself describes the introduction of secondary
rules as a ‘step from the pre- legal to legal world.
 V
• He observes, ‘introduction of secondary rules or power
conferring rules enabling legislators to change or add &
judge to determine when the rules have been broken as
‘step forward as important to society as invention of the
wheel’.
• The introduction of remedies for all these defects is
sufficient to bring about a legal system.
• Law, therefore, can be viewed as the union of primary &
secondary rules.
• Hart remarks: ‘Law is a union of primary & secondary
rules’. It is in this manner that law is born.
 VI
• distinction between Primary and secondary rules: Hart
makes a distinction between primary & secondary rules.
He describes primary rules as imposing duties,
obligations. Whereas secondary rules are those which
confer power or power conferring rules which means
power to the creation & variation of obligations.
• However, he admits the distinction is only very rough & in
places it does become some what blurred.
• This distinction between duty imposing & power
conferring is what Alf Ross refers, to the distinction
between norms of conduct & norms of competence.
 Hart’s criticism
• Dworkin has criticized Hart for representing
law as a system of rules & for suggesting that ,
at certain points, the judges use their
discretion & play a legislative role.
• He has argued that the conception of law as a
system of rules fails to take account of, what he
calls “principles”. He also maintains that judges
do not have strong discretion, believing that
even in ‘hard cases’ there is ‘one right answer’.
 I
• According the Fuller the purpose of legal system is to
govern the rules of human conduct, hence in his law ‘is’ &
‘ought’ is inseparable & it is improper & inconceivable to
assume law without its inner morality.
• He criticizes the non-functional basis of Hart’s concept of
law. He further criticizes Hart’s concept of the rule of
recognition as it used for the persistence of law.
• According to Lloyd Hart’s description of a legal system in
terms of a union of primary & secondary rules provides a
tool of analysis for much that has puzzled both jurist &
political theorist.
 Kelsen’s Pure Theory of Law
• Kelson’s theory of law which is known as the pure theory
of law implies that law must remain free from social
sciences like psychology, sociology or social history etc.
• kelson’s aim is to establish a science of law which will be
pure in the sense that it will strictly eschew all
metaphysical, ethical moral, psychological & sociological
elements.
• Kelson defines law as an order of human behavior. The
specific nature of this order consists (I)- in its being
coercive and (II)- in the fact that this coercive power is
derived from the sanctions attached to the law itself.
 I
• The essential foundations of kelson’s system may be-
• The aim of a theory of law, as of any science, is to
knowledge is to reduce chaos & multiplicity & to bring
unity.
• Legal theory is science , not volition. It is knowledge of
what the law is, not of what the law ought to be.
• Law is a normative & not a natural science.
• Legal theory is a theory of norms. It is not concerned with
the effectiveness of legal order.
• A theory of law is formal, of the way of ordering changing
contents in a specific way.
 II
• The relations of legal theory to a particular system of
positive law is that of possible to actual law.
• The most distinguishing feature of kelson’s theory is
the idea of norms. To kelson jurisprudence is a
knowledge of a hierarchy of norms. A norm is simply
a proposition in a hypothetical form.
• Every legal norm in a given legal order deduces its
validity from a basic norm, i.e., “GRUNDNORM”.
• This fundamental norm itself is not capable of
deduction; it must be assumed as initial hypothesis.
 Criticism

• Kelson’s pure theory of law has been criticized by jurists. The

main criticisms are as follows:
• His conception of ‘Grundnorm’ is vague. Friedmann puts it, it
is a fiction incapable of being traced in legal reality. Kelson
seems to have given his thesis on the basis of written
Constitution Grundnorm is made up of many elements & any
one of these elements alone cannot have the title of
‘grundnorm’.
• Every rule of law or norm derives its efficasy from some
other rule or norm standing behind it. But the grundnorm
has no rule or norm standing behind it. But the grundnorm
has no rule behind it.
 I
• The question arises that if we cannot discover the efficacy
of the grundnorm is a rule of law, in what does it reside.
Kelson is silent on this point rather he finds the answer in
factors which are outside the law. He is out to say that a
grundnorm derives its efficacy from the fact of its
minimum effectiveness.
• Another important objection of kelson’s theory is that he
has not given any criterion by which the ‘minimum of
effectiveness’ is to be measured.
• Sociological jurists have criticized Kelson’s pure theory of
law on the ground that it lacks practical significance.
Analytical Positivism & Indian Legal
System
• Manu, the great law-giver also makes the king
subordinate to a higher law & hoigher power i.e. danda
or incarnation of the Spirit of punishment.
• Manu says only a king who is honest & true to its
coronation oath & follows shastras & rules with colleges
could wield danda, not one who rules capriciously.
• The duty of the king was to enforce law in consultation
with shastras. Moreover, in ancient India law was the
revealation & thus there was sanction of religion &
morality behind it.
 I
• King was under & not above law. Manusmriti place danda
over the king & his status might be similar to the maxim
that ‘king can do no wrong’.
• According to Manu ‘it is danda who is king, he is the
regulator of the entire universe’. It is through the fear of
danda the world observes dharma. However, the exercise
of danda is not to be arbitrary & unlimited exercise of
prerogative powers of the sovereign in the Austinion
sense.
• There is a restriction on the king never to exercise this
power of danda in violation of dharma.