Jurisprudence analytical school, Slides of Law

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Prepared by: Mayank Kapila Assistant Professor (Law), M.S. College, Motihari, B.R.A. Bihar University, Muzaffarpur Contact:- kapilalegal.brabu@gmail.com

ANALYTICAL SCHOOL OF

JURISPRUDENCE

Introduction

 Analytical school was perhaps, a reaction against the natural law theory that was based on morality and ethics.  During 19 th Century, the natural law theory lost its significance mainly due to the influence of scientific techniques over social sciences including jurisprudence.  Analytical School is concerned neither with the past nor with the future but with the law as it exists i.e. law as it is.  It undertook the task of separating the law as ‘it is’ and the law as is ‘ought to be.’  This separation is the most fundamental philosophical assumption of legal positivism.

John Austin ( 1790 – 1859 )

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Austin’s Positivism

 Austin defined law as a rule laid down for the guidance of an intelligent being by another intelligent being having power over him.  Austin defines law in two parts: Proper Law and Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to man and Secondly, laws made by man for man.  Human law is divided into two heads: Positive Law and Positive Morality.  Only Positive laws are the proper subject matter of jurisprudence.

Law defined by John Austin

 According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction.  The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors.  The basic features of Command theory are:

• Command (by political superiors).
• Duty (imposing duty on political inferiors).
• Sanction.
• Sovereignty.

Exception to Austin’s Theory

 Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law.  Austin, though accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception.They are: a) Declaratory/Explanatory laws : They are not commands because they are already in existence and are passed only to explain the law which is already enforced. b) Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command. c) Law of Imperfect obligations: They are not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement.

Jeremy Bentham ( 1748 - 1832 )

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 Founder of positivism  Like Austin’s theory, Bentham advocated an imperative theory of law in which the key concepts are “sovereignty and command”.  On one hand, Austin’s sovereign is assumed as an unlimitable or indivisible entity but Bentham’s sovereign is not like that and he accepts the divided and partial sovereignty with some legal restrictions imposed on him.  Bentham theory is called “ Utilitarian Individualism ”.  Legal System- When a number of persons (‘subjects’) are supposed to be in a habit of paying obedience to a person, or an assemblage of persons, of a known and certain description (‘governor or governors’) such persons altogether (‘subjects and governors’) are said to be in a state of political society.

 Bentham believed that the willingness of the ruled to obey the command of sovereign is based on the ‘reward’ and ‘punishment’ they will suffer as a result of either obeying or not obeying.  The legal system is nothing more than the collection of individuals that obey a sovereign issuing commands that are backed by mainly coercion but also some rewards.  Unlike natural law theory, Bentham’s conception of law has no recourse to more ‘lofty’ principles such as divine authority or religious based morality or complying with the law because it is ‘rational’ and hence ‘right’ for human flourishing.

 According to Bentham, every law may be considered in the light of 8 different aspects:-  Source - law is the will of the sovereign.  Subject - person or thing.  Object - act, situation, forbearance.  Extent - law covers a portion of land on which act is done.  Aspect - may be directive or sanctioned.  Force - to produce the effect.  Remedial state appendages- something attached with the state.  Expression - of will.

Utility

 Bentham defines ‘utility’ in two terms:- To provide pleasure property/tendency of a thing, to provide some pleasure, benefits, advantages, happiness. To prevent pain, to prevent the happening of mischief, pain, evil or unhappiness.  The utility is based on the greatest number of happiness of the greatest number (maximum happiness to the maximum number of people). That is why this theory is also known as “ greatest happiness principle ”, which means any law is good/bad depends upon general happiness of the majority of the population.

Few Questions

 Is it possible to measure pleasure and pain in quantitative terms?  Can we accurately predict/calculate the consequences/impact of an act or a legislation?  Is it the right thing to do?

Think…..

(images are being used for academic purpose only)

Think….

(images are being used for academic purpose only)