Analytical School Of Jurisprudence and Its Criticism

In this article we are going to understand about Analytical School of Jurisprudence and Its Criticism. Jeremy Bentham is known as the father of Jurisprudence. Bentham was the first one to analyse what is law. Bentham’s classic work reveals that he should be considered as father of Analytical positivism not John Austin as it is commonly believed. Before understanding Analytical School of Jurisprudence and its criticism we shall understand what is Jurisprudence.

There is no universal uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject. The word Jurisprudence is derived from the Latin word “Jurisprudentia” which means “Knowledge of Law” or “skills in Law”. The Latin word “Juris” means “Law” and “Prudentia” means “Skill or Knowledge”.

Thus Jurisprudence means Knowledge of law. In this sense it covers the whole body of legal principles in the world.

Jeremy Bentham is known as the father of Jurisprudence. Bentham was the first one to analyse what is law. He divided his study into two parts.

1. Examination of law as it is – Command of Sovereign.
2. Examination of law as it ought to be – Morality of Law.

However Austin stuck to the idea that the law is the command of the Sovereign. According to John Austin, “Science of Jurisprudence is concerned with positive laws, that is law strictly so called. It has nothing to do with the goodness or badness of law.

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.” The analytical school is positive in its approach. The jusrits of analytical school that the most importance aspect of law is its relation to the state law is treated as an imperative or command emanating from the state. hence ,this school is also known as the Imperative school or Positive school.

This school is known as Analytical School name because this school seeks to analyze the first principle of law.

This school is known as Imperative school because according to this school law is command of sovereign.

It is called as Positive school because it considered law as it is not as it ought to be.

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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.

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

• Jeremy Bentham
• John Austin
• Kelson
• H.L.A Hart

Jeremy Bentham

Jeremy Bnetham is known as the father of Jurisprudence. Betham was the first one to analyze what is law. Bentham’s classic work reveals that he should be considered as father of Analytical positivism not John Austin as it is commonly believed.

John Austin

John Austin is also known as the father of English Jurisprudence. John Austin was born in 1790 and he joined the army and served as an army official for 5 years until 1812. He was called to the Bar in 1818 after graduation. After his graduation he joined newly founded Benthamite University college as professor in the university of London.

Hans kelson was another jurist who has the credit of reviving the original analytical legal thoughts in the 20th century through his “Pure theory of Law”. He was born at Prague in Austria in 1881 and was a professor of law at Vienna university. He was also the judge of the Supreme constitutional court of Austria for years during 1920-1930.Thereafter he shifted to England, he came to United States and worked as professor of law in several American universities and authored many books. He was also the professor of political science in the california university.

Hans Kelson, belonging to Vienna school of legal thought, proposed a pure theory of law. A theory which is free from social, historical, political, psychological etc. influences and logically self supporting.

Pure theory of law deals with what is, and it is not concerned with about law ought to be. This theory considered as normative science and not a natural science.

According to Kelson, there is no distinction between public and private law, both laws are the same. He also said that state and laws are not different. He denies difference between juristic persona and natural person.

Kelson’s pure theory of law covers the legal concepts such as

1. State
2. Sovereignty
3. Private law
4. Public law
5. Legal personality
6. Rights and duties

Kelson gave pure theory of law due to national and international conditions at that time. Kelson did not favor widen the scope of Jurisprudence by co relating it with all science. He insisted on the separation of law from politics, sociology, metaphysics.

Herbert Lionel Adolphus Hart was born on 18 July, 1907 was an English philosopher. He was the professor of Jurisprudence at Oxford University during 1952-1968. Then he joined as principal of Brasenose college.

He gave The Concept of law which has been hailed as the most important work of legal philosophy written in the twentieth century”. He rejected the Austin’s theory of Analytical positivism and expounded his legal theory based on relationship between law and society.

According to Hart, Law is a system of two types of rules the Union of which provides key to the science of Jurisprudence. These rules are called the primary and secondary rules.

Rejecting Austin’s views that law is a command, Hart emphasised that primary rules are duty imposing while secondary rules confer power and the union of the 2 rules is the essence of law.

According to Heart, Rules of Obligation are distinguishable from other rules in that they are supported by great social pressure because they are felt to be necessary to maintain society. Our conscience also imposes an obligation.

Having said that he talked about two kinds of rules;

1. Primary Rules
2. Secondary Rules

Primary rules

Primary rules are one which tells people to do things, or not to do things. Primary rules are ‘duty imposing’ rules. They impose certain specific duties on the citizens of the state to act in a certain manner, or they may be subject to certain legal sanctions. Hart characterizes primary rules as “basic” rules. They tell the citizen what one can and cannot do under the law. They lay down duties. These rules are to do with physical matters.

In short Primary rules are those rules which impose “Duty” on a member of society. According to Hart, primary rules are unofficial, they suffer from 3 major defects.

1. Uncertainty
2. Static Character
3. Inefficiency

Secondary Rules

Secondary rules are helpful to remove these defects. Secondary rules are ones which let people, by doing certain things, introduce new rules of the first kind, or alter them. They give people (private individuals or public bodies) the power to introduce or vary the first kind of rule. Secondary rules are not duty-imposing rules. They are what Hart calls power-conferring rules.

Secondary rules are those rules which confirm ‘powers’ like Contract, Marriage, Will, Delegated Legislation – the power to make law.