The basic idea of analytical school of jurisprudence is to deal with law, existing in its present form. It is also called Austinian school as its methodology was set up by John Austin. Analytical school believes that law is the direction of the Sovereign. That is why Analytical school is also termed as imperative school. Analytical school is also termed as positive school of jurisprudence because it is based on positivism. It is a step away from a priori approach. Analytical school gained prominence in the nineteenth century. It says morals are not objective; law needs to be objective, if we add morals to the definition of law, and law won’t be objective anymore. Austin is known as the father of the Analytical school of jurisprudence.
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Background
Upto the beginning of the eighteenth century the the natural law school predominated the juristic thought. In the opinion of few writers, the principles of natural law were held to be supreme and they could override man made laws. Natural law was derived from justice, reason, utility, nature, supernatural source. The analytical school was basically the reaction against the assumptions of natural law.
Exponents of analytical school
The famous exponents of analytical school of jurisprudence are bentham, austin, salmond, grey, kelsen, hart, hoffield and holland.
Bentham(1748-1832)
Jeremy is known as the founder of analytical school of jurisprudence. He wrote a book a called ‘The Limits of Jurisprudence Defined’ in 1782 which got published in e was against the judges made law. The making of law should not be in the hands of judges. The law should only be made by the legislature and the legislature should possess the absolute power of making the laws. The law should be based on pain and pleasure. When the state makes laws it must consider the happiness of the citizens i.e. the law should provide the happiness to the citizens and alleviate their pain. The goal of the law should be that whether that law contains equality, security, subsistence and it is abundant or not i.e. the aim of the law should the above four principles. Jeremy bentham basically supports the codification of laws. He rejected the natural laws. The law which is being made by the state or the rights provided by the state has value natural laws doesn’t exist according to Jeremy bentham.
Austin(1790-1859)
The existence of law is one thing , its merit or demerit the other
He is considered as the father of English jurisprudence. He was an army officer and a professor too. He wrote the book called ‘Province of Jurisprudence Determined’ in e also published a book called ‘A plea for Constitution’. He divided the law in two parts positive law and positive morality. He called positive laws as ‘laws properly so called’ .He called positive morality as ‘laws improperly so called’. The main approach of our law is from positive law i.e. the law which we have made for ourselves. Any law is a positive law when it consists of three elements sanction, command and duty. For example a law made by a parliament has a sanction ,command and its your duty to follow it. Custom is not laws according to Austin. It doesn’t matter what your custom, tradition and morals says as according to Austin these are not laws. People only follow the laws because it carries the punishment with it, if you don’t follow the laws.
Hart(1907-1992)
Hart unlike his predecessors did tilt towards morality as being not an integral part of law but at the same time he believed that morality had an influence on law and he called this ‘the minimum content of natural law’. His famous works include ‘The Concept of law’, ‘The Causation of law’ and ‘Law Liberty and Morality’. Hart agrees in his book that law is an obligation, law makes certain human conduct non optional or non obligatory. But he disagrees with law being just a command as per Austin’s theory.
Kelsen
Hans Kelsen was a professor of law at university of Vienna. He propounded theory of law in his essay. He was the most famous positivist of 20th century. His theory represents developments in two directions.
1. Refined development in analytical positivism
2. Reaction against different approaches of 20th century.
Basic idea of positivism was that law should be distinguished from morality, equity etc. At the end of 19th century , sociological school came into prominence. This theory’s literature began to develop before 1918 when Kelsen examining Austrian Constitution. To understand this theory Kelsen propounded “Principle of elimination”: to understand law we should eliminate morality, equity, human nature and meta judicial idea.
Holland
Holland is also a supporter of analytical school. He is considered as the follower of Austin. He interprets positive law differently as compared to Austin. He defines laws as the rules of external human action which are enforced by sovereign political authority.
Criticisms
Jeremy Bentham
Friedman says if there is a contradiction between an individual’s pleasure and community’s pleasure which pleasure should be supported? Bentham fails to answer that.
John Austin
In today’s times custom plays a very big role so his views on customs fail in today’s world. He completely overlooked the customs. He says international law is not law it’s a morality because it has no sanction in current world his views on international law fails.
Kelsen
Many jurists have considered his idea of Grundnorm as vague.
“The views of the authors are personal“
