Author Name:   Sugandha.ch

Analytical Law School, Jurisprudence, Bentham, Austin, Salmond, Pound, Positive Law School, Positivism

Analytical Law School

Many times jurists have made their efforts to define law, its sources and nature. For the purpose of understanding their points of view, the jurists 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 these jurists came to be known as "positivists" or "analysts" who had little to do with vague and abstract notions of natural law. These were the believers of Analytical or Positive School, who propounded positivism. The term 'positivism' was invented by Auguste Comte, a French thinker.

The exponents of this school are neither concerned with the past nor with the future of law but with the law as it exists, i.e. with law 'as it is' (Positrum). Its founder was John Austin and hence it is also called Austinian School.

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 is to gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning.

The positive law takes law as the command of the sovereign. It puts emphasis on legislation as the source of law. It regards law as a closed system of pure facts from which all norms and values are excluded.

Importance:
-Bought about precision in legal thinking

-Provided us with clear and scientific terminology

-Excluded external considerations which fall outside the scope of law

Chief exponents:
1. Bentham
2. Austin
3. Salmond
4. Holland
5. Hart

Apart from these, this school received encouragement from Europe from Kelson.
This article primarily deals with Bentham, Austin, Pound and Salmond to understand the evolution of this school.

Bentham

Jeremy Bentham was a lifelong former of law. According to him, no reform of substantive law could be brought about without a reform of its original form and structure.

Bentham advocated an imperative theory of law, in which key concepts were sovereignty and command, similar to Austin’s postulation. However he drew a distinction between social desirability and logical necessity, which Austin did not. The model of Austin was the criminal statute. But Bentham undertook “rational reconstruction” which is wider that the model of Austin.

In his book An Introduction to the Principles of Morals and Legislation, he has moved to ask questions about the penal and civil code. While investigating its answers, he was led to Laws in General. What was originally conceived as an appendix developed into a major consideration which was finished in 1782 and published in 1945 as The Limits of Jurisprudence Defined.

Every law according to Bentham has a directive and a sanctioned part. Here, directive aspect refers to the aspects of sovereignty will towards an act situation and the sanctioned aspect refers to the force of a law. The law in force is dependent upon motivation for obedience: political, physical, moral, religious and threats of punishments and rewards.

Sanctions are provided by subsidiary law but they themselves require a further set of subsidiary addressed to judges to prevent any further evil.

Austin

Law as defined by Austin is the aggregate of the rules set by men as political superior or sovereign to men as politically subject.

Criticism:
1. Law is not a command.

2. Law is not a duty, it is rather enabling than restrictive.

3. This definition does not cover customs and international law.

4. Also his definition ignores the social aspect of law and psychological factors which secure its obedience.

5. It has no universal application.

Merits:
1. This definition lays down precise boundaries within which jurisprudence is to work.
2. This definition completely applies to English law.

Pound

The definition of law according to Pound gave a valuable approach and opened new fields of study in context of social problems. According to him, law is a social institution to satisfy social wants.

The only criticism received to his definition was that it gave no heed to nature and character of law.

The merit of this definition was that it talks about policy and progress as well as theory of justice.

Salmond

Law as per Salmond is that it is body of principles recognised and applied by State in the administration of justice.

Criticism:
1. He confuses justice with law: Law is actually in force whether it is evil or good, whereas justice is the ideal founded in moral nature of man.

2. Law is defined in terms of purpose: Law serves many ends and by confining it only to pursuit of justice, Salmond has narrowed the field of law.

3. Courts not legislation: conventions are not included in this definition because they are not enforced by Courts. Meaning of courts is not defined. Certain areas of law, like customs, international law etc. can also not be incorporated since even these are not enforceable by law.

Merits:
This definition bought about a change in analytical positivist view.
1. It expanded the boundaries of jurisprudence that was narrowed by Austin.
2. It gave importance to courts.
3. By including its purpose and emphasizing the role of Court in its enforcement, he gave law a practical shape.

The author can be reached at: sug.ch@legalserviceindia.com

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