ANALYTICAL SCHOOL OF LAW
MADE BY:MOHAMMAD IRFAN BBA LLB. SECTION B.
15GSOL103034 INDEX 1.) 2.) 3.) 4.) 5.) A.)
INTRODUCTION ACKNOWLEDGEMENT PURPOSE OF ANALYTICAL SCHOOL OF LAW MAIN EXPONENTS OF ANALYTICAL SCHOOL OF LAW JEREMY BENTHAM BENTHEM’S ANALYTICAL POSITIVISM ANTI
B.)
NATURAL LAW BENTHEM’S CONTRIBUTION TO ANALYTICAL
6.) A.) B.)
JURISPRUDENCE JOHN AUSTIN(1970-1859) AUSTN’S POSITIVE LAW AUSTIN’S SEPERATION OF LAW AND MORALE RATIONALE
C.)
AUSTIN’S NATURE OF LAW
7.)
H.L.A. HART
A.)
HART’S NATURE OF LAW
B.)
PRIMARY RULE
C.)
DEFECTS OF PRIMARY RULE
D.)
SECONDARY RULE
8.) A.)
HANS KELSEN KELSEN’S HAND IN THE ANALYTICAL SCHOOL OF
LAW B.) KELSEN’S POSIVITISM C.) LEGAL NORM D.) KELEN’S CRITICISM 9.) CONCLUSION 10.) BIBLIOGRAPHY
INTRODUCTION John Austin may be regarded as the founder of the Analytical School, though he drew his inspiration from Hobbes, and Bentham, his teacher. To him law is a command given by a superior to an inferior and enforced by material sanctions. School of Analytical Jurisprudence Analytical jurisprudence is a legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. Analytic jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. Many times jurist have made their effort to define law, it sources and nature. For the purpose of finding their points of view, the jurist are divided on the basis of their approaches to law. This division has been helpful in understanding the evolution of legal philosophy. One class of this jurist came to be known as “analysts” who had little to do with vague and abstract nations of natural law. These were the believers of analytical school, who propounded positivism. The exponents of this school is not concerned with the past and also it is not with the future of law but with the law as its exists that means the law “as it is”.
ACKNOWLEDGEMENT For this project I want to thank my concern faculty Sir Mr.Pranav Raina without whom this project was impossible.i want to thank him for giving me interesting tips and also helps me in showing a right path so that I can complete my project easily. On the other hand I also want to thank my friends who also helped me a lot for the completion of my project. As some how is a very interesting and different topic. It also helps me in many ways such as learning many new things, While doing my research, it also gives me the experience that how to do a research work for any particular thing as a topic given.
MOHAMMAD IRFAN BBA LLB.
PURPOSE OF ANALYTICAL SCHOOL OF LAW The main purpose of analytical jurisprudence is to analyse or to see the first principle of law without referring either to their historical origin or on the bases of development or their validity. The purpose of analytical jurisprudence is to analyse the first principles of law without reference either to their historical origin or development or their validity. Another purpose of this is to gain an accurate understanding of the fundamental working concepts of all the logical and legal reasoning. The positive law takes law as a command of sovereign and it also the importance to legislation or puts emphasis on legislation as the source of law. It treats law as a closed system of pure facts from which all the norms and value comes out or executed. Talking about the norm:Norm is formal rule or standard laid down by legal, religious, or social authority against which we came to know appropriateness or in other words what is right and what is wrong of an individual is judged.1
1.)Dr. S.N. Dhyani;jurisprudence;3rd edition;2013;221
MAIN EXPONENTS OF ANALYTICAL SCHOOL
OF LAW The main exponents of Analytical school of law are:A.) B.) C.) D.)
Jeremy Bentham John Austin Hart Hans kelsen
JEREMY BENTHAM (1748-1832):To access the significance of John Austin, it is necessary to study Jeremy Bentham who was his intellectual god father from whom John Austin borrowed, developed and completed his theory of analytical positivism. Unlike Austin, Bentham theory had made many splendours sides, besides being a jurist he was the reformer of law and legislation, a moralist and also a philosopher. Indeed his whole life was devoted in the improvement of law for promoting happiness in of individuals.
BENTHAM ANALYTICAL POSITIVISM ANTI-NATURAL LAW:From the point of view Bentham was the leader or head of analytical positivism, the real founder of analytical school of jurisprudence and he also polished the method, techniques of this analytical school.
CENSORIAL AND EXPOSITORY JURISPRUDENCE:-
Bentham as a legal jurist and positivist made a sharp difference and distinction between the law as it is and the law that ought to be. As a positivist he laid the foundation of analytical jurisprudence by distinguishing it from what he calls censorial jurisprudence. To be more precise Bentham divided this jurisprudence into two:“Expository and censorial” Expository which told as what the law is and on the other hand censorial tells what law ought to be.
BENTAM’S CONTRIBUTION TO ANALYTICAL JURISPRUDENCE:Jeremy Bentham in his monumental work “The limits of jurisprudence defined 1872” and “the law in general” expounded the analytical positivism which subsequently became the analytical school of jurisprudence. In these work he invented as well as perfected the tools of analysis to determine the nature of law as well as its purposes. He delineated the subject matter of law by testing legal principles and action on the matrix of his hedonistic doctrine of utility. One of the cardinal purpose of law according to Bentham being to provide security and protection, besides aiming, abundance and equality.1 As already observed Bentham was the newton of analytical school, as he based law on sovereign’s command and coercion without regards to its moral nature. However, there is one remarkable thing about Bentham’s philosophy was that he had a great sway during the nineteenth century so as far as individual freedom and justice and protection of public interest. However it was shocking that his
theory was altogether rejected in that century as for which Paton said” it was a great disaster for English jurisprudence that Bentham was not taken into consideration for his theory while there are many ideas of Bentham only taken by Austin and yet there are strong contrast between the two.The transfer of his working rule from legislation to morality seems to me the true ground of criticism to which Bentham was justly open as analyst of moral facts.
1
Taken from jurisprudence Dr. S.N. Dhyani
JOHN AUSTIN(1970-1859):-
John Austin was popularly credited for founding analytical positivism in legal theory and for this he was also called as the father of English jurisprudence, therefore it is necessary in order to understand his attitude and philosophy concerning with law.
AUSTIN’S POSITIVE LAW:Austin aim is to determine and characterize the nation of law that is “law properly so-called” which has a difference or distinct from other laws that are “laws improperly so-called”. Austin’s model law was positive law which he distinguish or differentiate between the morality or other kinds of laws such as the latter lacking force, coercion of the state. He describes positive law on the other hand that are the rules set by the men who are politically superior to men as politically inferior. For Austin positive law is the matter of jurisprudence and rejects the law that ought to be which Austin descries as “science of legislation”. In different categories he also includes different types of rules such as rules of clubs, laws of fashion, laws of different sciences etc. As per Austin existence of law is one thing and its merits and demerits is other, whether it be or be not confirmable to an assumed standard, is a different enquiry. A law which exsits has to be followed by everybody so that everybody in the society lives in rules and regulations.
AUSTIN SEPERATION OF LAW AND MORALS RATIONALE:The major theory of Austin is based on the separation between law and morals. Austin did a sharp differentiation and distinction between science of jurisprudence and science of legislation. The former is concern with positive laws irrespective of their goodness and badness, and the law exists and everybody has to follow the law. Amos says that “by making the difference between the positive law and morals, Austin not only laid the foundation of science of law but also cleared the conceptions of law.
AUSTIN’S NATURE OF LAW:It is already observed that Austin created the system of law which is not concerned with the normative aspect. As per Austin every positive law is a set by a sovereign person or a sovereign body of person, to the member and members of independent political society wherein its important that person is a sovereign or supreme.Thus the great contribution of Austin over Hobbes is concept of law and once law is made, everybody has to follow that law and has to live within the rules and regulations.
H.L.A. HART(1907):-
H. L. A. Hart's the concept of law (1961) is one of the most important contributions to Analytical Jurisprudence to have been made in England since the appearance of Austin's the province of jurisprudence determined in 1832. Indeed Hart's Concept of Law has come as an alternative to, and to a great-measure has developed a new theory of, British positivism by rejecting Austin's command-duty-sanction them. In the concept of law he presents a positivist account of law that is designed to give a more adequate idea of the notion of law by dealing with various difficulties besetting Austin's philosophy of law. At the centre of Hart's analysis of the concept of law is the concept of rules and in particular the concept of a social rule, the former being a kind of directive which sets out directions for behaviour and the latter being different kinds or more or less wide practices or habitual behaviour of a community which require compliance. His works have initiated a renaissance in Analytical Jurisprudence in England.
HART’S NATURE OF LAW:As Austin had claimed that trilogy of command, sanction and sovereign constitutes essence or nature of law Hart law is a system of rules A.) B.)
primary secondary
The union of which explains the nature of law and provides ‘key to science of jurisprudence'. The primary rules are duty imposing rules ( example in a primitive society) and the secondary rules are power conferring which provide for the creation or variation of duties or obligations by removing defects of the primary rules. Thus supplementation of primary rules with secondary rules, says Hart, is the step from pre-legal to legal world. The secondary rules provide all the three remedies, the rules of recognition, the rules of change and the rules of adjudication for removing the uncertainty, static character and inefficiency inherent in the primary rules and “convert the regime of primary rules into what
is indisputably a legal system”. His legal system— a union of primary and secondary rules, cannot be complete without the minimum content of Natural Law shared both by law and morals. His positivism contains within it a “minimal version” of Natural Law which Hart says every legal system must have as a natural necessity.
PRIMARY RULE:According to Hart primary rules are those rules that impose duty upon an individuals and are binding because it consist practises of acceptance which people are required to do or to follow or to abstain from certain actions . Hart ask to imagine a community in which only primary rule exists without a legislation, without courts or officials of any kind, by this there will only be confusion that what is to be followed and what not to be followed.
DEFECTS OF PRIMARY RULES:The first defect of this primary rule is what we can call is “uncertainty”, For such a society there is no systematic procedure for solving the doubts of the people of that concern community. The second defect is the “static character”, change can be seen only by the slow process of growth and decay and lastly the third defect of primary function is “inefficiency” which says that the rules are only maintained by diffusing social pressure and there is no agency to determine disputes of that particular rule.
SECONDARY RULES:The remedy of these three main defect are the supplementation or the mixture of primary rules and secondary rules. According to Hart he describes secondary rule as a step from prelegal world to legal world. He observes introduction of secondary rule is to add
or to change the judge to determine when the rule have been broken as step forward as important to society for making the rules and regulations chain so that people lives in harmony and peace. Hart remarks “law is a union of primary and secondary rule and in this manner the law is born.
In short, H. L. A. Hart at best can be described both a positivist and naturalist who by correlating law and morality conceived what Austin and Kelsen failed to conceive in legal theory.
HANS KELSEN(1881-1973):KELSEN’S HANDS IN THE ANALYTICAL SCHOOL OF LAW:Kelsen works to expel all non-legal, historical and sociological notions from science of law in order to make it formal and that of making it common for everyone and everybody has to follow it and should not be denied by anyone. Kelsen’s theory was parallel to the theory of John Austin who did something in 1832 to save jurisprudence from confusion. Kelson’s theory of law in some respect is similar to that of Austin but still kelsen was unaware when he originated his theory and hence he rejects many Austinian concepts. Similarly kelsen was also influenced by Kant and made fundamental distinction and difference between man as a part of the subject and laws of caution.
Kelsen’s Positivism:Kelsen rebuilt the structure of legal system which are much similar to the theory of John Austin, in his theory of law legal system are as distinguished from moral norms and he was also in complete agreement with Austin as both are jurists and are not concern with the moral, ideas and many other things. Austin separated jurisprudence from science of legislation and positive law. Kelson was also a pure theorist of law rigidly which excludes politics, sociology from legal science. Like Austin kelsen also wants to separate the ring of jurisprudence from that natural
sciences and he also points out many other sciences besides law are normative such as all philosophy, economics, logic and his grund’s norm theory. For Austin law is a command backed up by threat of forces while on other hand for kelsen it is the norm that directs an official to apply force under certain instant circumstances.
LEGAL NORMS:Before saying something about norm the question arises what is the rule of law? Rules and norms are the kinds of directives which tells us about the directions for behaviour. The norms as per kelsen are set of rules set by the law which has to be followed by all the people of the society. A norm says kelsen is a rule prescribing a certain behaviour. In kelsen’s thought norms belongs to that particular rule that has no ethical moral or natural law. The structure of legal norm is totally different from the moral norm.
KELSEN’S CRITICISM:-
Kelsen did his last contribution towards the legal theory so that it should not be affected by the political interests. In his theory he kept law as a tool of political, ideological manipulations by which law remain pure and free from the bases of political, ideological and economic doctrine and theories. As Kelsen theory was not free from criticism and the first thing that arises is the purity of norms. That is attempt to delete or exclude all the reference of social facts and social justice. Moreover kelsen’s said that grundnorm in the nature of being a hypothesis is the combination of various social and political consideration. According to kelsen all the norms are pure norms excluding basic norm or grundnorm and it is not understandable how the norms can be pure when basic norm itself is adulterated. Kelsen theory of law is quite positivism excluding all domains of jurisprudence and the ideal of justice are mere emotions and legal system devoid either a moral or immoral one and law can be alienated from social and moral values and pressure.
CONCLUSION:-
The topic of mine “the analytical school of law” gives me a lot to learn. It tells me about different-different jurists and there different openions. This topic is very important as it tells us about legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H.L.A.Hart was probably the most influential writer in the modern school of analytical jurisprudence, though its history goes back at least to Jeremy Bentham. Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law. Analytical jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So I can conclude my topic by giving thanks to all the people who helped me in completing my project.
MOHAMMAD IRFAN BBA LLB. .
BIBLIOGRAPHY 1.) Fundamentals of jurisprudence; Dr. S.N.Dhyani; 3rd Edition; 2013 2.) Jurisprudence and legal theories; V.D. Mahajan; 5th Edition 2015 3.) Lawyersupdate.co.in; 2nd –November-2013;13:00 PM 4.) www.grkarelawlibrary.yolasite.com;3rd-November2015;13:20 PM 5.)
[email protected] ;3rd –November2015;13:25 PM
