CHARACTERISTICS OF ANALYTICAL SCHOOL OF JURISPRUDENCE
- Khushi Sheikh
Introduction
The Analytical School of jurisprudence, often referred to as the positivistic approach, constitutes a pivotal paradigm within the realm of legal science. Jurisprudence, denoted as the science of law[1], serves as the intellectual foundation from which legal principles derive their meaning and significance. As legal scholars embarked on the study of law, each guided by their own conceptions, the Analytical School emerged as a salient and influential theory, leaving an indelible mark on the evolving landscape of legal thought.
The emergence of the Analytical School can be traced back to the 18th and 19th centuries, a transformative era characterized by a discernible shift from metaphysical reasoning to a more pragmatic rationale. This pivotal juncture in legal philosophy saw the Analytical School carve its niche by adopting an analytical lens through which legal principles and concepts were scrutinized. The school’s foundation lies in the divergence from abstract metaphysical ideals, steering towards a more methodical and empirical examination of legal tenets.
Proponents of legal positivism staunchly adhere to the notion that only positive law holds the status of true law, where positive law is construed as the legal framework established by the authoritative entities of the state. In elucidating legal positivism, Julius Moor explain ‘ legal positivism as a view according to which law is produced by the ruling power in society in a historical process. In this view law is only that which commanded and anything which it has commanded is law by virtue of this circumstance’[2].
The Analytical School of Law, in stark contrast, draws a sharp distinction between ‘law as it is’ and ‘law as it ought to be.’ This analytical framework places its focal point on ‘law as it is,’ portraying law not as an abstract ideal but as a manifestation of the directives emanating from political authority. In this conceptualization, the legitimacy of law is not contingent upon considerations of moral virtue, historical lineage, or sociological implications; rather, it is firmly grounded in the authoritative commands of the ruling power. This analytical perspective thus seeks to discern and analyze law in its actual, implemented form, divorced from normative aspirations or ethical evaluations.
In stark contrast to the Analytical School stands the Natural Law theory, offering a diametrically opposed perspective in the realm of jurisprudence. The Natural Law theory places its emphasis on the philosophy of metaphysical nature, introducing a paradigm where the foundations of law are intricately intertwined with abstract ideals. This stands in stark contrast to the Analytical School’s assertion that the primary wellspring of law resides in the state.
The Analytical School's distinctive approach underscores the centrality of empirical facts and experiences in deciphering legal principles. This departure from metaphysical preconceived ideals marks a defining characteristic of the Analytical School’s jurisprudential stance. The evolution of legal thought during this epoch, as encapsulated by the Analytical School, reflects a profound transition in how scholars perceived and approached the study of law. It is within this intricate interplay of ideas and perspectives that the Analytical School solidified its place as a cornerstone in the edifice of jurisprudential theory.
Significant Advocates of Analytical School of Jurisprudence
The positivistic and analytical approach to law boasts eminent advocates, with Jeremy Bentham and John Austin standing as pivotal figures considered the founders of this theoretical framework. Their groundbreaking ideas have not only laid the foundation but have also been further refined and expanded upon by influential jurists like Herbert Lionel Adolphus Hart and Joseph Raz.
John Austin
A prominent British legal philosopher, is particularly renowned for his imperative theory, a cornerstone of the analytical approach. At the core of Austin’s perspective is the assertion that law fundamentally constitutes a command emanating from a sovereign authority to its subjects, compelling them to conform to a specified course of conduct. Austin’s comprehensive definition incorporates three indispensable elements.
Firstly, the element of command introduces the notion of an expression of wish from one party to another, underscored by significant consequences if the command is disregarded. This dimension inherently introduces a sense of fear associated with non-compliance. Commands, in Austin’s taxonomy, can be categorized as general, addressing a class of persons, or particular, tailored to specific individuals.
The second critical element in Austin’s analytical approach is the concept of the sovereign. The term “sovereign,” etymologically rooted in the French “souverain” and Latin “superanus,” conveys the idea of being above. In the preamble of the Indian Constitution, India is characterized as a sovereign state, signifying its supreme authority unswayed by external or internal influences. According to Austin, the sovereign is a determinate human superior, distinct from the habit of obedience to a similar superior and receives habitual obedience from majority of the society[3]. External sovereignty is exemplified by the absence of habitual obedience to a similar superior, while internal sovereignty is illustrated by the majority’s habitual obedience.
The third vital element In Austin’s theory is the concept of sanctions. Sanctions, in this context, serve as the mechanism of coercion to enforce the sovereign’s command, instilling a profound sense of necessity for obedience. Obedience is deemed imperative irrespective of individual preferences. Sanctions, diverse in nature, encompass political, social, and religious dimensions. Examples such as the Model Penal Code of 1962 in the USA and the Indian Penal Code of 1834 epitomize the codification of sanctions aimed at upholding law and order in society. Through this intricate framework, John Austin not only defined but also contextualized law within the intricate fabric of societal structures.
Jeremy Bentham
Jeremy Bentham, hailed as the progenitor of modern analytical jurisprudence, embarked on a mission to infuse the study of law with a logical and reasoned approach, seeking to instill a scientific perspective into the examination of legal precepts. His overarching principle stipulated that the legitimacy of laws is contingent upon their acknowledgment by sovereign authority, a perspective that distinctly separates legal analysis from moral considerations.
While Bentham’s viewpoint converges with Austin’s assertion that law is essentially the command of the sovereign, it introduces a nuanced dimension by challenging the absolute authority of the sovereign. Bentham posits that the powers of the sovereign are not boundless but are, in fact, circumscribed to a certain extent. This subtle refinement adds complexity to the understanding of the sovereign’s role in legal positivism.
One of Bentham’s seminal contributions to the theory of positivism is his theory of utility. In this proposition, he posits that every individual is inherently governed by two elemental forces: pain and pleasure. Bentham contends that the driving force behind human behaviour is the pursuit of pleasure and the avoidance of pain. This fundamental principle seamlessly dovetails into the next crucial element of the positivist theory – sanctions.
In a departure from Austin’s emphasis on negative sanctions, Bentham introduces a distinctive positive aspect. In his nuanced perspective, sanctions should encompass not only punishments but also rewards. Recognizing the inherent human inclination to seek pleasure, Bentham argues that the prospect of rewards serves as a potent motivator for individuals to comply with the law, fostering a natural predisposition toward law-abiding behaviour.
Bentham’s elaborate framework thus not only underscores the imperative nature of law but also delves into the psychological underpinnings that propel individuals to conform to legal norms. By intertwining logical analysis, nuanced perspectives on sovereign authority, and a comprehensive understanding of human motivations, Bentham’s contributions significantly enrich the landscape of legal positivism.
Conclusion
In conclusion, the juxtaposition of the analytical approach, emphasizing the law as it is, with the intrinsic connection to natural moral and ethical foundations is pivotal. While the analytical perspective scrutinizes the practicality and reasonability of laws, it should not overshadow the profound influence of natural laws that governed human existence before the establishment of state-prescribed regulations. Recognizing the symbiotic relationship between law, rooted in societal emergence, and the inherent principles of natural law and morality provides a more comprehensive understanding of jurisprudence. In essence, a holistic approach that integrates both natural law theory and analytical jurisprudence unveils a richer comprehension of the intricate tapestry that weaves together the origins and essence of law.
[1] Henry Campbell Black, Black’s Law Dictionary 992 (St. Paul Minn, West Publishing Co., 4th edn., 1968).
[2] N.K. Jayakumar, Lectures in Jurisprudence 125, (Lexis Nexis, 3rd edn., 2015).
[3] John Austin, The province of Jurisprudence Determined, (John Murray, Albemarle Street, 1832).
