ANALYTICAL

SCHOOL
Sanjana Mittal
 OUTLINE OF THE TOPIC
 Introduction to Analytical School of Jurisprudence

By Jeremy Bentham
• Definition of law
• Principle of Utility
• Criticism
By John Austin
• Definition of law
• Sovereign- command- duty- sanction theory
• Division of laws
• Criticism
HLA Hart
• Definition of law
• Rules and Obligations
• Emergence of Legal System
• Rule of Recognition
• Criticism
 POSITIVE SCHOOL OF
JURISPRUDENCE
• Positive in its approach

• Positum - Analyse and dissect the law of the land as it exists

today
• Motto - Ubi civitas ibi lex - where there is state there will not
be anarchy- state is a necessary evil
• Province of Law according to Legal Positivism-
Judicial Precedents
Commands
Legislation
 MAIN
PROPONENTS

BENTHAM AUSTIN
(Father of English H L A HART
(Founder of Positivism) Jurisprudence)
JEREMY BENTHAM
 DEFINITION OF LAW
• Law is an assemblage of signs, declarative of volition

conceived or adopted by the Sovereign in a State,

concerning the conduct to be observed in a certain case by

certain person or class of persons.

• Stipulative definition

• Books-

1. An introduction to the Principles of Morals and Legislation

2. Of laws in general
LAW ACCORDING TO BENTHAM CAN BE
CONSIDERED IN 8 DIFFERENT ASPECTS:
1. Source of law - will of the Sovereign

2. Subjects - persons or things

3. Objects - act / situation / forbearance

4. Extent - territorial

5. Aspect - Directive/ Sanctional

6. Sanction - force that regulates conduct

7. Remedial State Appendages - Judiciary

8. Expression - codification
 Censorial &
Expositorial
Jurisprudence

Liassez Champion
faire BENTHAM of
Codification

Utilitarianism
 LAISSEZ FAIRE
 Function of law is to emancipate an individual from the

bondage and restraint upon his freedom.

 Laissez faire - minimum interference of State in the

economic activities of individuals.

 Gave rise to theory of Utilitarianism

 UTILITARIANISM
 Aim of legislation- carry out Principle of Utility- Hedonistic Calculus

 Utility = property or tendency of a thing to prevent some evil or procure

some good

 Consequence - evil = pain Sovereign Master

good= pleasure

 Greatest happiness of ‘greatest number’

 Happiness can be achieved by

•subsistence
• abundance
• equality
• security
 CRITICISM

 Friedman - Two defects:

• overestimates power of legislator

• fails to balance individual interests with interest of the

community

 Hedonistic calculus - alone cannot be the final test of

adequacy of law.

 Too much emphasis on codified law.

 JOHN
AUSTIN
 AUSTIN
 Father of Modern Jurisprudence

 Books -

1. Lectures on Jurisprudence

2. Province of Jurisprudence determined(1995) - First 10 of the

series of lectures on jurisprudence that Austin delivered at the
University of London

 Prof. Olivercona- Austin is pioneer of modern positivism.

 DEFINITION OF LAW
 Positive law - laws properly so called

Aggregate of rules set by man as politically superior

to men as politically inferior subjects.

 Essential attributes of positive law -

• Command
• Duty
• Sanction
• Sovereignty
 Determinate
Human
superior

Receive habitual
Not in a habit of obedience from
obedience to a SOVEREIGN the bulk of a
like superior given society

Cannot be
Legally
Limited & is
Indivisible
 A wish or a desire
conceived by a
rational being

Leads to evil
Intimation of
in event of COMMAND wish by words
non
or other signs
compliance

General Command -
Criminal law
Special Command -
Appropriation of Property
 AUSTIN’S LAWS

LAWS PROPERLY SO LAWS IMPROPERLY SO

CALLED - By Authority CALLED - By Opinion

LAWS SET BY HUMANS LAWS SET BY GOD-

TO HUMANS SCRIPTURES LAWS BY METAPHOR
(Laws of Science)
LAWS SET BY SOVREIGN

COMMON LAW made by LAWS BY ANALOGY

Judges made on the (Unrevealed Law of God,
authority of Sovereign Customary Law, International
Law)

POSITIVE LAW POSITIVE MORALITY

 AUSTIN’S EXCEPTIONS TO LAWS
Laws not properly so called but included within realm of
Jurisprudence-

Declaratory laws

Laws to repeal some laws

Laws of imperfect obligation

 CRITICISM
 Sanction is not the only means to induce obedience.

 Duguit - the notion of command is inapplicable to modern/

social welfare legislations.

 Customs overlooked

 No place for judge made law

 International law treated as mere positive morality.

POSITIVISM IN INDIAN LAW

Draconian enactments of Parliament-

confer extensive powers on executive to
impose restriction on individual’s freedom
TADA, MISA, Prevention Detention Act
1950,
POTA etc.
Habeas Corpus case- ADM Jabalpur vs
Shivkant Shukla
 HLA HART
HLA HART- Herbert Adolphus Hart
• Rejected Austin’s theory of analytical positivism.
• Hart’s theory- Soft Positivism
• Expounded his legal theory based on the
relationship between law and society.
• The idea of law as command that people obey
because of sanction misses an important quality of
law- the reflective acceptance of law as binding on
the people to whom it is directed.

Books- the Concept of Law

 DEFINITION OF LAW- HLA HART
• Law is a system of two types of rules the union of
which provides key to the science of jurisprudence.
Primary rules Secondary rules

Duty imposing rules Power conferring rules

Establish authorities such
Are in form of
as courts, legislatures,
Unofficial rules and
executive governments,
therefore suffer from
thereby curing defects of
defects
primary rules.
 RULES AND OBLIGATIONS
Rules acc. to Hart arise out of obligation.
Difference between obligation and obliged
Sovereign command backed by threat overlooks
obligation.
Obligation arises from social pressure- ostracizing,
stigmatizing etc.
Rules are in form of negative injunctions that limit
the freedom of individuals.
Obligation gives rise to internal aspects of rule
Liquor ban eg.
 Primary society

Social rules

Pressure to conform

Pressure results in sanctions

Primary obligation rules

 EMERGENCE OF LEGAL SYSTEM

Primary rules of Obligation • PRIMITIVE SOCIETY-

followed- considered binding- • Small groups
fear of social sanctions • Stable environment

Social pressure becomes evident

need new types of rules felt defects • SOCIETY GETS
in primary rules appear- LARGER & MORE
COMPLEX
1- UNCERTAINTY
2- STATIC CHARACTER
3- INEFFICIENCY

• Emergence of
Secondary rules emerge-
developed
establish-Legislature, Courts, societies-
Executive LEGAL
Provide for rule of recognition SYSTEM
 RULE OF RECOGNITION

Similar to Austin’s concept of Sovereign

It is the sole rule in legal system whose
binding force depends upon its acceptance.
Provides ultimate criterion for verifying
validity of laws
Parliamentarians/ judges while making law
– obey rules of recognition while making
law
 LAW AND MORALITY
Law and morality are complimentary and
supplementary to each other.
Morality is a necessary condition of society and the
law has a function to ensure that morality of society
does not disintegrate.
Examples according to Hart of association of legal
rules with moral rules- rules against murder, assault,
theft, robbery, rape etc.
Judges discretion to take morality into account.
But these considerations are not necessary
connections and their absence does not deprive law
of its validity
 CRITICISM
• Ronald Dworkin- Legal system cannot be conceived
merely as aggregate of rules but has to be based on
solid principles. Principles are broad formulations of
generalization. It is the standard to be observed
because it requires fairness or justice or some other
dimension of morality. Eg. No one can take
advantage of his own wrong
• Lon Fuller- Law contains its own implicit morality.
Laws may cause injustice if they do not conform to “
inner morality”.