Analytical school of Jurisprudence

Analytical school of Jurisprudence

1. ANALYTICAL SCHOOL OF JURISPRUDENCE KASHYAP THAKKAR JURISPRUDENCE SEM - V

2. SCHOOLs of JURISPRUDENCE Schools are groups of thoughts that are based on broadly the same fundamental premise. As a theory or philosophy of Law, Salmond dividend Schools of Jurisprudence into three types: Analytical School Sociological School Historical School Philosophical School

3. Analytical School Analytical school is the most powerful school of thought in jurisprudence. The positivist movement began at the beginning of the 19th century. The analytical school is positive in its approach. The jurists of the school consider that the most important aspect of the law is its relation to the state. Law is treated as command emanating from the state. Due to this reason, this school is also known as the imperative school.

4. Chief Exponents of the Theory  Bentham  Austin  Sir William Markby  Sheldon Amos  Holland  Salmond  Professor HLA Hart

5. (subjects ought to follow the laws) (positive moral obligations)

6. FEAtuRES OF ANALYTICAL THEORY The purpose of the analytical school of jurisprudence is to analyse the first principles of law. The main task of the analytical school is the effective and systematic interpretation of the legal ideas. One motive of the analytical school is to gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning. The analytical school takes law as the command of the sovereign. It puts emphasis on legislation as the source of law.

7. John Austin Analytical POSitIVISM John Austin is the originator of the analytical school.  He is the father of English Jurisprudence. The scientific treatment of Roman Law was influenced Austin. For that reason, he started the scientific arrangement of English law.  Like Bentham, Austin was of the opinion that ‘law’ is only an aggregate of individual laws. The major thrust in Austinian positive law was on the separation of law from morals.   Salmond has criticized Austin’s theory of law which completely deprives law from morality.

8. John Austin Analytical POSitIVISM Starting point of Austin theory is his definition of independent and politically organized society and sovereign. He said , ‘If a determinate human superior, not in a habit of obedience to a like superior, commands habitual obedience from a bulk of a society, such a society is politically organised and independent.’ He defined Law as: “A rule laid down for the intelligent being by an intelligent being having power over him”.

9. John Austin Analytical POSitIVISM If we analyze the content of the positive law we find the following characteristics: Law is a command Only general law is command Sovereign is the main source of law There is sanction to enforce the law There is clear cut separation of law and morals.

10. LAW AS COMMAND The notion law in command was advanced by Bodin and Hobbs. It is said that Austin theory is based on this idea: Command – different from request and wishes. It has an element of Fear (Sanctions) Penalty for disobedience.

11. LAW AS COMMAND Two kinds of Commands: General Command – are issued for the guidance of a whole community. Particular command are issued for the guidance of a particular community/ individual. Only general commands are law . General commands must also be continuous and lawful.

12. SOVEREIGN A society without sovereignty cannot be called a state. The determinate human superior is the only law-maker. His commands are laws and without him the state can have no laws.

13. Sanction for Enforcement Sanction is absolutely necessary to enforce law. Sanction is the sole crux of Positive law. It denotes the fear of punishment in case of disobedience of the laws. There is no sanction behind the International law therefore Austin called it as a positive morality.

14. SEPARATION OF LAW & MORALS Law and morality are separate. laws are general commands issued by a sovereign to members of an independent political society, and backed up by credible threats of punishment or other adverse consequences ("sanctions") in the event of non-compliance. Though, morality must be consulted in determining what the law should be.

15. CRITICISM Sovereign is not only the source of law. Theory ignores custom. No Place for Judge made laws or precedents. It cannot be applied in the area of civil law.

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