analytical school of law

7/24/2019 Analytical School of Law

1/19

ANALYTICAL

SCHOOL OF LAW

MADE BY:-

MOHAMMAD

IRFAN

BBA

LLB.

SECTION B.


2/19

15GSOL103034

INDEX

1.) INTRODUCTION

2.) ACKNOWLEDGEMENT

3.) PURPOSE OF ANALYTICAL SCHOOL OF LAW4.) MAIN EXPONENTS OF ANALYTICAL SCHOOL OF LAW

5.) JEREMY BENTHAM

A.) BENTHEMS ANALYTICAL POSITI!ISM ANTI

NATURAL LAW

B.) BENTHEMS CONTRIBUTION TO ANALYTICAL

JURISPRUDENCE

".) JOHN AUSTIN#1$%&'1(5$)

A.) AUSTNS POSITI!E LAW

B.) AUSTINS SEPERATION OF LAW AND MORALE

RATIONALE

C.) AUSTINS NATURE OF LAW

%.) H.L.A. HART

A.) HARTS NATURE OF LAW

B.) PRIMARY RULE

C.) DEFECTS OF PRIMARY RULE

D.) SECONDARY RULE


3/19

(.) HANS KELSEN

A.) KELSENS HAND IN THE ANALYTICAL SCHOOL OF

LAW

B.) KELSENS POSI!ITISM

C.) LEGAL NORM

D.) KELENS CRITICISM

$.) CONCLUSION

1&.) BIBLIOGRAPHY


4/19

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 descriptivelanguage when referring to the aspects of legal systems. This was

a philosophical development that rejected natural laws fusing of

what law is and what it ought to be. !any times jurist have made

their effort to define law, it sources and nature. "or 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.

#ne class of this jurist came to be $nown 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 e'ponents 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 e'ists

that means the law %as it is&.


5/19

ACKNOWLEDGEMENT

"or this project ( want to than$ my concern faculty Sir!r.)ranav *aina without whom this project was impossible.i want

to than$ him for giving me interesting tips and also helps me in

showing a right path so that ( can complete my project easily. #n

the other hand ( also want to than$ my friends who also helped

me a lot for the completion of my project.

As some how is a very interesting and different topic. (t

also helps me in many ways such as learning many new things,+hile doing my research, it also gives me the e'perience that

how to do a research wor$ for any particular thing as a topic

given.

!#HA!!A (*"A-

BBA B.


6/19

PURPOSE OF ANALYTICAL SCHOOL OF LAW

The main purpose of analytical jurisprudence is to analyse or tosee 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 wor$ing concepts of all the logical and legalreasoning.

The positive law ta$es law as a command of sovereign and it also

the importance to legislation or puts emphasis on legislation as

the source of law. (t treats law as a closed system of pure facts

from which all the norms and value comes out or e'ecuted.

Tal$ing about the norm/0

-orm is formal rule or standard laid down by legal,

religious, or social authority against which we came to $now

appropriateness or in other words what is right and what is wrong

of an individual is judged.1

1.2r. S.-. hyani3jurisprudence34rdedition356143551

MAIN EXPONENTS OF ANALYTICAL SCHOOL


7/19

OF LAW

The main e'ponents of Analytical school of law are/0

A.2 Jeremy BenthamB.2 John Austin7.2 Hart.2 Hans $elsen

JEREMY BENTHAM #1%4('1(32)'

To access the significance of John Austin, it is necessary tostudy Jeremy Bentham who was his intellectual god father

from whom John Austin borrowed, developed and completed

his theory of analytical positivism. 8nli$e 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. (ndeed his whole life was devoted in the

improvement of law for promoting happiness in of individuals.

BENTHAM ANALYTICAL POSITI!ISM ANTI'NATURAL

LAW'

"rom 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, techni9ues of

this analytical school.

CENSORIAL AND EXPOSITORY JURISPRUDENCE'


8/19

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/0

%:'pository and censorial&

:'pository which told as what the law is and on the other hand

censorial tells what law ought to be.

BENTAMS CONTRIBUTION TO ANALYTICAL

JURISPRUDENCE'

Jeremy Bentham in his monumental wor$ %The limits of

jurisprudence defined 1;


9/19

theory was altogether rejected in that century as for which

)aton said& it was a great disaster for :nglish jurisprudence

that Bentham was not ta$en into consideration for his theory

while there are many ideas of Bentham only ta$en by Austin

and yet there are strong contrast between the two.The transfer

of his wor$ing rule from legislation to morality seems to me the

true ground of criticism to which Bentham was justly open as

analyst of moral facts.

1Ta$en from jurisprudence r. S.-. hyani

JOHN AUSTIN#1$%&'1(5$)'


10/19

John Austin was popularly credited for founding analytical

positivism in legal theory and for this he was also called as the

father of :nglish jurisprudence, therefore it is necessary in

order to understand his attitude and philosophy concerning

with law.

AUSTINS POSITI!E LAW'

Austin aim is to determine and characteri>e the nation of law that

is %law properly so0called& which has a difference or distinct from

other laws that are %laws improperly so0called&. Austin=s modellaw was positive law which he distinguish or differentiate between

the morality or other $inds of laws such as the latter lac$ing

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. "or Austin positive law is

the matter of jurisprudence and rejects the law that ought to be

which Austin descries as %science of legislation&. (n different

categories he also includes different types of rules such as rulesof clubs, laws of fashion, laws of different sciences etc.

As per Austin e'istence 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 en9uiry. A law which e'sits has

to be followed by everybody so that everybody in the society lives

in rules and regulations.


11/19

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 e'ists

and everybody has to follow the law.

Amos says that %by ma$ing 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.

AUSTINS NATURE OF LAW'

(t 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#1$&%)'


12/19

H. . A. Harts the concept of law

?1@12 is one of the mostimportant contributions to Analytical Jurisprudence to have beenmade in :ngland since the appearance of Austins the province ofjurisprudence determined

in 1;45. (ndeed Harts 7oncept of aw

has come as an alternative to, and to a great0measure hasdeveloped a new theory of, British positivism by rejecting Austinscommand0duty0sanction them. (n the concept of law

he presentsa positivist account of law that is designed to give a moreade9uate idea of the notion of law by dealing with variousdifficulties besetting Austins philosophy of law. At the centre ofHarts analysis of the concept of law is the concept of rules and inparticular the concept of a social rule, the former being a $ind ofdirective which sets out directions for behaviour and the latter

being different $inds or more or less wide practices or habitualbehaviour of a community which re9uire compliance. His wor$shave initiated a renaissance in Analytical Jurisprudence in:ngland.

HARTS NATURE OF LAW'

As Austin had claimed that trilogy of command, sanction andsovereign constitutes essence or nature of law Hart law is a

system of rules

A.2 primaryB.2 secondary

The union of which e'plains the nature of law and provides $eyto science of jurisprudence. The primary rules are duty imposingrules ? e'ample in a primitive society2 and the secondary rulesare power conferring which provide for the creation or variation ofduties or obligations by removing defects of the primary rules.Thus supplementation of primary rules with secondary rules, saysHart, is the step from pre0legal to legal world. The secondaryrules provide all the three remedies, the rules of recognition, therules of change and the rules of adjudication for removing theuncertainty, static character and inefficiency inherent in theprimary rules and %convert the regime of primary rules into what


13/19

is indisputably a legal system&. His legal systemC a union ofprimary and secondary rules, cannot be complete without theminimum content of -atural aw shared both by law and morals.His positivism contains within it a %minimal version& of -atural

aw which Hart says every legal system must have as a naturalnecessity.

PRIMARY RULE'

According to Hart primary rules are those rules that impose dutyupon an individuals and are binding because it consist practises ofacceptance which people are re9uired to do or to follow or toabstain from certain actions . Hart as$ to imagine a community in

which only primary rule e'ists without a legislation, withoutcourts or officials of any $ind, by this there will only be confusionthat 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&, "or such a society there is no systematic procedurefor solving the doubts of the people of that concern community.

The second defect is the %static character&, change can be seenonly by the slow process of growth and decay and lastly the thirddefect of primary function is %inefficiency& which says that therules are only maintained by diffusing social pressure and there isno agency to determine disputes of that particular rule.

SECONDARY RULES'

The remedy of these three main defect are the supplementation

or the mi'ture of primary rules and secondary rules. According toHart he describes secondary rule as a step from prelegal world tolegal world. He observes introduction of secondary rule is to add


14/19

or to change the judge to determine when the rule have beenbro$en as step forward as important to society for ma$ing therules and regulations chain so that people lives in harmony andpeace.

Hart remar$s %law is a union of primary and secondary rule and inthis manner the law is born.

(n short, H. . A. Hart at best can be described both a positivistand naturalist who by correlating law and morality conceivedwhat Austin and Delsen failed to conceive in legal theory.

HANS KELSEN#1((1'1$%3)'

KELSENS HANDS IN THE ANALYTICAL SCHOOL OF

LAW'

Delsen wor$s to e'pel all non0legal, historical and sociologicalnotions from science of law in order to ma$e it formal and that ofma$ing it common for everyone and everybody has to follow itand should not be denied by anyone. Delsen=s theory was parallelto the theory of John Austin who did something in 1;45 to savejurisprudence from confusion. Delson=s theory of law in somerespect is similar to that of Austin but still $elsen was unawarewhen he originated his theory and hence he rejects manyAustinian concepts.

Similarly $elsen was also influenced by Dant andmade fundamental distinction and difference between man as apart of the subject and laws of caution.


15/19

K*+,*-, P,/0//,'

Delsen rebuilt the structure of legal system which are muchsimilar to the theory of John Austin, in his theory of law legal

system are as distinguished from moral norms and he was also incomplete agreement with Austin as both are jurists and are notconcern with the moral, ideas and many other things.

Austin separated jurisprudence from science of legislation andpositive law. Delson was also a pure theorist of law rigidly whiche'cludes politics, sociology from legal science. i$e Austin $elsenalso wants to separate the ring of jurisprudence from that natural

sciences and he also points out many other sciences besides laware normative such as all philosophy, economics, logic and hisgrund=s norm theory.

"or Austin law is a command bac$ed up by threat offorces while on other hand for $elsen it is the norm that directsan official to apply force under certain instant circumstances.

LEGAL NORMS'

Before saying something about norm the 9uestion arises what isthe rule of lawE *ules and norms are the $inds of directives whichtells us about the directions for behaviour. The norms as per$elsen are set of rules set by the law which has to be followed byall the people of the society. A norm says $elsen is a ruleprescribing a certain behaviour. (n $elsen=s thought normsbelongs to that particular rule that has no ethical moral or natural

law. The structure of legal norm is totally different from the moralnorm.

KELSENS CRITICISM'


16/19

Delsen did his last contribution towards the legal theory so that itshould not be affected by the political interests. (n his theory he$ept law as a tool of political, ideological manipulations by whichlaw remain pure and free from the bases of political, ideological

and economic doctrine and theories.

As Delsen theory was not free from criticism and the firstthing that arises is the purity of norms. That is attempt to deleteor e'clude all the reference of social facts and social justice.

!oreover $elsen=s said that grundnorm in the nature ofbeing a hypothesis is the combination of various social andpolitical consideration. According to $elsen all the norms are purenorms e'cluding basic norm or grundnorm and it is notunderstandable how the norms can be pure when basic normitself is adulterated.

Delsen theory of law is 9uite positivism e'cluding alldomains of jurisprudence and the ideal of justice are mereemotions and legal system devoid either a moral or immoral oneand law can be alienated from social and moral values andpressure.

CONCLUSION'


17/19

The topic of mine %the analytical school of law& gives me a lot tolearn. (t tells me about different0different jurists and theredifferent openions. This topic is very important as it tells us aboutlegal theory that draws on the resources of modern analytical

philosophy to try to understand the nature of law. Since theboundaries of analytical philosophy are somewhat vague, it isdifficult to say how far it e'tends. H..A.Hart was probably themost influential writer in the modern school of analyticaljurisprudence, though its history goes bac$ at least to JeremyBentham.

Analytical jurisprudence is not to be mista$en for legalformalism ?the idea that legal reasoning is or can be modelled as

a mechanical, algorithmic process2. (ndeed, it was the analyticaljurists who first pointed out that legal formalism is fundamentallymista$en as a theory of law.

Analytical jurisprudence uses a neutral point of view anddescriptive language when referring to the aspects of legalsystems. This was a philosophical development that rejectednatural laws fusing of what law is and what it ought to be. avidHume famously argued in A Treatise of Human -ature that peopleinvariably slip between describing that the world is a certain wayto saying therefore we ought to conclude on a particular course ofaction. But as a matter of pure logic, one cannot conclude that weought to do something merely because something is the case.

So ( can conclude my topic by giving than$s to all the peoplewho helped me in completing my project.

!#HA!!A (*"A-

BBA B.

.


18/19

BIBLIOGRAPHY

1.2 "undamentals of jurisprudence3 r. S.-.hyani3 4rd :dition3

56145.2 Jurisprudence and legal theories3 F.. !ahajan3 Gth:dition

561G4.2 awyersupdate.co.in3 5nd-ovember05614314/66 )!

I.2 www.gr$arelawlibrary.yolasite.com34rd 0-ovember0

561G314/56)!G.2 www.sug.chlegalserviceindia.com34rd -ovember0

561G314/5G )!
http://var/www/apps/conversion/tmp/scratch_7/http:%2F%2Fwww.grkarelawlibrary.yolasite.com%3B3rd-November-2015%3B13:20http://var/www/apps/conversion/tmp/scratch_7/http:%2F%2Fwww.grkarelawlibrary.yolasite.com%3B3rd-November-2015%3B13:20http://var/www/apps/conversion/tmp/scratch_7/http:%2F%2Fwww.grkarelawlibrary.yolasite.com%3B3rd-November-2015%3B13:20http://var/www/apps/conversion/tmp/scratch_7/http:%2F%2Fwww.grkarelawlibrary.yolasite.com%3B3rd-November-2015%3B13:20http://var/www/apps/conversion/tmp/scratch_7/http:%2F%[email protected]://var/www/apps/conversion/tmp/scratch_7/http:%2F%[email protected]://var/www/apps/conversion/tmp/scratch_7/http:%2F%2Fwww.grkarelawlibrary.yolasite.com%3B3rd-November-2015%3B13:20http://var/www/apps/conversion/tmp/scratch_7/http:%2F%2Fwww.grkarelawlibrary.yolasite.com%3B3rd-November-2015%3B13:20


19/19

analytical school of law

Documents