Analytical School of Jurisprudence

Analytical School of Jurisprudence is a significant school of thought in jurisprudence. It was Austin who played a key role in developing this school, which aims to explain law by examining its nature, purpose, characteristics and functions. This school traces the history and philosophy of evolving human ideas regarding law.

The positivist movement (Analytical School of Jurisprudence) emerged in the early 19th century because, during that time, the natural theory of law lost relevance due to the growing influence of the scientific method on social sciences, including jurisprudence.

Jurists like Austin, Hart and others within this school focused on understanding positive law, which means they looked at “law as it is” rather than “law as it should be.” Jurists of the Analytical School of Jurisprudence believed that law had no connection to moral principles.

These jurists were often referred to as “positivists,” and their school became known as the “positivist school.”

Positivists shared common objectives and perspectives, guided by a few fundamental assumptions:

• Sovereign or Grundnorm: They regarded law as created by authority figures.
• Emphasis on “law as it is”: They concentrated on the existing state of the law, ignoring considerations of what the law should be. Morality and natural law were disregarded.
• Sanction as a concept: They highlighted the idea of sanctions, which were considered significant before the enforcement of laws.

Features of Analytical School of Jurisprudence

• Focus on What Law Is: Analytical School of Jurisprudence is concerned with understanding what the law is, rather than what it should be.
• Law’s Basis in Power: It asserts that law is based on the authority and power of those who enact and enforce it.
• Absence of Moral Law: Positivists argue that there is no inherent moral aspect to law.
• Distinction Between Law and Justice: This school differentiates between law and justice, seeing them as distinct concepts.
• Reaction to Natural Law Theories: The Analytical school opposes natural law theories, which rely on rationalisation, nature, God and emphasise ethical and moral considerations.

Purpose of Analytical School of Jurisprudence

The main objective of the Analytical School of Jurisprudence is to examine and understand the law as it currently exists in its present form. In this school of thought, law is seen as the direction given by the Sovereign authority.

It differs from a priori approaches and aims to study the actual principles of law within the legal system. The Analytical School also seeks to define the relationship between law and the state.

History of Analytical School of Law

In contrast to the concept of Natural Law, which suggests that laws have their origins in a supreme source and are not man-made, the Analytical School emerged as a reaction against such ideas.

Natural Law was dominant until the 18th century, with some arguing that its principles should override human-made laws. The Analytical School of Law challenged this perspective.

Principles of Analytical School of Jurisprudence

The Analytical School seeks to differentiate between how the law currently exists and how it should be. While acknowledging the role of moral factors in shaping law, proponents like Austin tend to disregard moral considerations in their theories.

Analytical Jurists assert that law is a product of human will, meaning it is created by someone or some authority. This school of thought takes a firm stance against ethics and concentrates solely on positive law—focusing on the factual aspects of the law.

​​Founder and Advocates of the Analytical School of Jurisprudence

Bentham (1742-1832), Austin, Sir William Markby (1829-1914), Sheldon Amons (1835-1886), Holland (1835-1926), Salmond (1862-1924) and Prof. HLA Hart (1907) are some of the notable figures who played significant roles in advancing the Analytical or Positivist school of thought in England.

In the United States, Gray and Hohfled also contributed to the Analytical School of Law, while in continental Europe, proponents like Kelsen and Korkunov, among others, lent their support to its development.

Bentham

Bentham advocated for the Analytical School of Jurisprudence, where sovereignty and command played central roles. He recognised the contrast between what society desired and what was logically necessary. Bentham also acknowledged the concept of divided and partial sovereignty while discussing the legal limitations that sovereign authorities might encounter. Unlike Austin, Bentham’s theory placed less emphasis on sanctions. He believed that a sovereign’s decree would constitute a law, even if supported solely by religious or moral consequences. Bentham’s perspective also acknowledged the use of attractive incentives and the idea of rewards in his theory.

John Austin, an English lawyer (1790–1859), simplified Bentham’s philosophy of law and significantly influenced legal thought in the twentieth century. Bentham also critiqued the common law system, which was often seen as the exclusive realm of legal professionals like lawyers and judges, who used complex and technical language to obscure the law from the understanding of ordinary citizens. This, in Bentham’s view, perpetuated a myth. He believed that lawyers were experts in “artificial reason,” a concept originally proposed by Coke.

Bentham differentiated between expositorial jurisprudence (what the law is) and censorial jurisprudence (what the law should be). His definition of law was that it constituted “an assemblage of signals, affirmations of intention conceived or chosen by a sovereign in a State.” While he supported the idea of laissez-faire in economics (minimal government intervention in economic activities), he advocated for utilitarianism, which meant that the primary purpose of legislation should be to promote the greatest happiness for the greatest number of people.

Bentham defined utility as the tendency of something to prevent pain or procure pleasure. According to him, legislation should aim to provide sustenance, generate abundance, ensure equality and preserve security. However, Bentham’s hedonistic doctrine, which evaluated laws based on pleasure and pain, has faced criticism, with some arguing that pleasure and suffering alone cannot be the ultimate measure of a law’s suitability.

John Austin

John Austin (1790-1859) served as a lecturer at the University of London and developed an analytical approach to law, emphasising the rigorous examination and discovery of the underlying principles of law. His focus was primarily on Positive law, also known as Jus positivism, which he defined as “Law, simply and strictly so-called: Law set by political superiors to political inferiors.” Consequently, he coined the terms “analytical” and “positivism” to describe his school of thought, leading to its designation as Analytical Legal Positivism. Austin is often regarded as the founder of the Analytical school and his lectures were published under the title “The Province of Jurisprudence Determined.”

Austin’s definition of law was as follows: “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” He categorised ‘proper law’ into three types: God’s law, Human laws and Positive laws. He also identified two types of ‘improperly’ named laws: laws by analogy and laws by metaphor. Austin explained that “Positive morality” included laws not imposed by individuals in positions of political authority or in pursuit of a legal right. Laws imposed by analogy, such as fashion laws, also fell into this category. Importantly, Austin noted that improper laws were not sanctioned by the State.

According to Austin, every law, properly speaking, must consist of three elements: command, sanction and sovereign authority. He asserted that “law is the mandate of a sovereign, ordering his subjects to do or refrain from specific actions, with an implied threat of punishment for non-compliance.” A ‘command’ represents the wish of a specific individual or group that another person follows specific instructions, with the threat of ‘sanction’ (punishment) in case of disobedience. Commands can be specific (directed at individuals or groups) or universal (issued to the entire community and applicable to classes of actions or abstentions, often referred to as ‘continuous orders’).

Austin believed that the foundation of sovereignty was the habitual obedience to a particular human superior who was not accustomed to obeying a similar superior. Sovereignty was characterised by unrestricted and indivisible power, with no legal constraints or limitations and no separation of powers.

Austin’s conception of jurisprudence focused on the legal systems of civilized nations as the legitimate subject matter. This was because only in such societies could the sovereign effectively enforce their orders through an efficient administrative apparatus. Austin did not consider customs in his definition. He recognised three types of law that could be exceptions to his command-based definition and fall within the scope of jurisprudence: declaratory or explanatory laws, laws of repeal and laws of imperfect obligation (laws without sanctions). Constitutional law, in Austin’s view, derived its authority from public opinion regarding its expediency and morality.

Criticism of Austin’s Theory

Austin’s legal thesis has faced criticism, primarily because it heavily focuses on punishment as the primary means of ensuring compliance, overlooking other aspects of law’s nature and purpose within a community. This concentration on punishment can obscure and distort the true essence of law. Critics argue that Austin’s dismissal of law as a man-made construct ignores its capacity for organic growth. In practice, as a community accepts and follows the law, it becomes an embodiment of the people’s collective will. Additionally, constitutional norms and conventions can govern both the behaviour of individuals and the state, even if they are not enforceable by law. Furthermore, court judgments, or precedents, often become binding laws without explicit command.

Austin’s distinction between positive law and positive morality, according to Justice Holmes, was intended to keep notions of virtue and morality separate from the realm of law. Austin’s positive law theory, in this view, does not consider ideals or justice in law. Holmes explained that “the existence of law is one thing, its merit and demerit another. A law that actually exists is a law, even if we happen to dislike it or if it differs from the text by which we regulate our approval or disapproval.” This approach disregards laws that are permissive and grant privileges, such as the Bonus Act or the Law of Wills.

Some critics, like Bryce, argue that Austin’s contributions to legal research are limited and contain errors, suggesting that his work may no longer be suitable for students.

According to Duguit, the concept of command is not applicable to modern social and welfare law, which often confers advantages or rights and binds the state rather than individuals. In contemporary democratic welfare states like India, finding a single sovereign with unrestricted and absolute power to establish laws, as Austin’s theory suggests, is implausible.

Professor Hart, while acknowledging Austin’s shortcomings, noted that the Austinian formula specifies a crucial requirement: laws that impose responsibilities or duties must be “usually followed.” However, Hart argued that this only accounts for the end result of the legal system. While there is overwhelming evidence against Austin, it is important to recognise that law is composed of prescriptions for behaviour, often expressed in the imperative form, even though Austin’s theory has limitations.

Professor Dias’s Comparison of Bentham and Austin’s Propositions

Professor Dias conducted a comparison between Bentham and Austin on the Analytical School of Law, concluding that Bentham’s theory was more comprehensive and flexible than Austin’s. Here are the significant points of comparison highlighted by Professor Dias:

Definition of Sovereignty: Bentham’s definition of sovereignty was more open-ended, allowing for flexibility and avoiding the constraints of indivisibility and illimitability. This flexibility allowed Bentham to accommodate scenarios where authority is divided among different organs, as in a federation, or within specific sectors. It also allowed for constraints on authority and self-bindingness.

Scope of Law: Bentham had a broader understanding of the law compared to Austin. He avoided the notion of “law properly so-called,” which Austin’s theory had. This broader perspective allowed for a more inclusive view of what constitutes law.

Sanction: Bentham’s concept of sanction was both broader and less significant than Austin’s. According to Bentham, laws are laws, even if they are justified by moral or religious sanctions. They might even be accompanied by rewards. This approach acknowledged a wider range of motivations for obeying the law.

Sanction by Nullity: Unlike Austin, Bentham didn’t rely on the concept of “sanction by nullity.” His theory had an imperfection in its imperative basis, but it was more flexible and expansive than Austin’s. Bentham’s theory could accommodate permissions to a certain extent and didn’t rely on the fiction of ‘tacit command.’

Hart’s Concept of Law

Professor HLA Hart (1907) is widely regarded as one of the most prominent advocates of British positivism in modern times. He critiqued Austin’s thesis in his influential work titled “The Concept of Law.” Hart’s analysis led to a more nuanced understanding of law:

Nature of Law: Hart proposed that law consists of norms with broad applicability and non-optional character. These norms are subject to formalisation, legislation and adjudication. In essence, law comprises social norms that have evolved to take on the form of legal regulations. The term ‘law’ refers to a set of publicly ascertainable regulations.

Legal Rules and Duty: According to Hart, a legal rule establishes a code of behaviour that is followed with an expectation of compliance. The law sets a standard of behaviour rather than making a mere demand. People follow this norm not only out of a sense of duty but also because they expect others to do the same. This perspective emphasises duty over coercion and highlights the role of social acceptance.

Duty vs. Coercion: Hart stressed that the law is more concerned with duty than with coercion. While individuals cannot be forced to obey the law, they are considered to have a duty to do so. Duty and responsibility are closely related concepts in this context.

Internal and External Elements: Hart made a distinction between the internal and external aspects of rules. Internalisation signifies that a rule is accepted by people, while habitually obeyed (as defined by Austin) indicates external compliance. Hart argued that Austin’s predictive theory focused solely on external elements and ignored the internal aspects of rules.

Primary and Secondary Rules: Hart categorised rules into two types. Primary rules establish norms of conduct and impose obligations, such as international law. Secondary rules determine, introduce, eliminate, or modify the primary rules. Power-conferring rules, both public and private (e.g., statutes and constitutions), fall into the category of secondary rules. The “rules of recognition” derive from these secondary rules and provide authoritative criteria for identifying primary norms of duty.

Ultimate Rule of Recognition: Hart introduced the concept of the “ultimate rule of recognition,” which serves as the final requirement for the legality of a legal order. It plays a crucial role in establishing the legitimacy of a legal system.

Core of a Legal System: Hart argued that a legal system’s core consists of the combination of primary and subsidiary rules. For a legal system to function effectively, both citizens must adhere to primary norms and authorities must follow secondary rules. These two requirements are both necessary and sufficient for the existence of a legal system.

Hart’s theory of law places significant emphasis on the role of official behaviour and addresses important questions about the relationship between the validity and efficacy of legal rules. In his view, a rule is considered “valid” when it meets the conditions established by the rule of recognition and it is considered “effective” when people adhere to it. While an ultimate rule of recognition need not be legitimate, it must not be ignored, meaning that officials must obey it for a legal system to function properly.

Criticism of Hart’s Proponents

The theories of HLA Hart have faced criticism and alternative perspectives from jurists like Ronald Dworkin and Lon Fuller:

Ronald Dworkin: Dworkin challenged Hart’s concept of law by introducing the distinction between ‘rules’ and ‘principles.’ He argued that a legal system should not be seen merely as a collection of rules but as a combination of sound principles and policies. According to Dworkin, a principle is a norm that must be followed because it is a necessity of justice, fairness, or another facet of morality. In Dworkin’s view, law is not just about rules but also about upholding principles of justice and morality.

Lon Fuller: Fuller emphasised that the legal system should concern itself with both “law as it is” and “law as it ought to be.” He believed that the law should not be divorced from the concept of morality. Fuller argued that the legal system is a tool for guiding normal human behavior and it should reflect not only existing laws but also moral principles and values. In his famous work “The Morality of Law,” Fuller explored the idea that law should aim for internal morality, which means that it should align with the principles of fairness, justice and morality.

Kelsen’s Concept of Law

Hans Kelsen (1881-1973), a prominent figure of the ‘Vienna School’ of legal philosophy, developed a “pure theory of law” that sought to create a theory of law free from extraneous influences like social, historical, political, psychological factors, focusing exclusively on the technical and logically self-supporting aspects of law. Here are some key aspects of Kelsen’s legal philosophy:

Normative Nature of Law: Kelsen viewed law as a normative system, a “coercive order.” In other words, law prescribes what should happen (norms) rather than describing what actually happens (is). For example, if someone commits theft, the law prescribes that the individual should be penalised.

Norms and Ought Propositions: According to Kelsen, laws are expressed as “ought propositions” or norms. These norms dictate that if a certain condition is met, a specific consequence should follow. They establish a set of principles for human behaviour.

Hierarchy of Norms: Kelsen introduced the concept of a “ladder of norms,” where each norm derives its validity from a higher norm. Norms are valid because they are either decreed by a higher standard or are part of a legitimate legal hierarchy. Some norms are coercive, while others are facilitative and do not compel individuals (e.g., the right to write a will).

Fundamental Norm (Grundnorm): The entire legal system can be traced back to a fundamental norm, the “grundnorm,” from which it derives its legitimacy. This grundnorm must be effective, meaning that people must trust it. The grundnorm varies; it can be a written constitution or a dictator’s will, depending on the legal system.

Validity and Pre-Supposition: The validity of norms in a legal system is accounted for by the grundnorm. However, the grundnorm’s validity cannot be objectively evaluated; it must be assumed or pre-supposed. It seeks legitimacy outside the law itself and confers legality as long as the legal order is “by and large effective.”

Dynamic Legal System: Kelsen’s theory presents a formal, scientific and dynamic view of the legal system. It does not incorporate theories of justice and aims to be objective and value-neutral. It focuses on the structure and validity of legal norms.

Influence and Legacy: Hans Kelsen’s pure theory of law has had a significant impact on modern legal philosophy. His ideas have been championed by eminent jurists like Julius Stone and H.L.A. Hart, contributing to ongoing discussions about the nature and structure of legal systems.

Criticism Surrounding Kelsen’s Theory

Critics have raised several objections to Hans Kelsen’s pure theory of law, highlighting some limitations and contentious points in his legal philosophy:

Legitimacy vs. Effectiveness: One major criticism is that Kelsen’s theory suggests that a legal order is considered lawful as long as it is successful or effective, regardless of its legitimacy or how it was enacted. This perspective can lead to situations where laws that are fundamentally illegitimate but enforced effectively are still considered valid.

Lack of Criterion for Grundnorm’s Efficacy: Kelsen’s theory does not provide a clear criterion for determining the minimal efficacy required for a grundnorm. The effectiveness of the grundnorm alone does not necessarily imply the validity or legitimacy of the entire legal system.

Limited Role of Grundnorm: Critics argue that Kelsen’s theory assigns the grundnorm the role of generating or verifying a legal order but does not offer substantive content to the legal system. This raises questions about how norms derive their content and whether they can remain “pure” when the grundnorm is influenced by various social and political factors.

Role of Courts: Kelsen’s theory places a significant burden on the courts to determine the standard of the grundnorm and assess the legitimacy and efficacy of a legal order. Critics question whether this places too much power in the hands of the judiciary.

Julius Stone’s Critique: Julius Stone challenged Kelsen’s assumption that all norms, except the grundnorm, are “pure.” He argued that when the grundnorm itself is influenced by various social and political variables, it is unrealistic to consider other norms as pure. Stone’s critique emphasised the complexity and interplay of factors in legal systems.

Coercion-Centric View: Kelsen’s theory, like Austin and Hart, has been criticised for its emphasis on external coercion in defining law. Critics argue that this approach fails to consider the underlying worth or quality of laws and focuses solely on formal conditions.

Exclusion of Morality: Kelsen, along with Austin and Hart, is criticised for excluding morality from the essence of law. Critics argue that the purpose and moral content of laws should also be considered and law cannot be divorced entirely from moral considerations once enacted.

Conclusion

The Analytical School of Jurisprudence is a prominent approach in legal philosophy that seeks to understand and analyse law by focusing on its internal logic, structure and language. It emphasises a rigorous examination of legal concepts and principles, aiming to provide clear and objective interpretations of legal rules.

Proponents of this school, such as John Austin and H.L.A. Hart, distinguish between “law as it is” and “law as it ought to be,” prioritising the former. They contend that law is a product of human will, created by political authorities and that it should be studied as a factual phenomenon rather than a moral or normative one. The Analytical School of Law has had a significant influence on the development of legal theory, particularly in common law jurisdictions, shaping discussions about the nature and function of law within societies.