Analytical School of Jurisprudence

By:

Altaf Ahmed Sheikh

LLB Part-I Quaid-e-Azam Law College, Lahore.

Introduction

Jurisprudence was the first of the social sciences to be born. Its province has been determined and re-determined because the nature of the subject is that no delineation of its scope can be regarded as final. On torts or contracts, for example, a student may be recommended to read any of the standard textbooks with the assurance that, whichever book he does read, he will derive much the same idea as to what the subject is about. With jurisprudence this is not so. Books called jurisprudence vary so widely in subject matter and treatment that the answer to the question, what is jurisprudence?, will vary in almost each and every book. (Extracted from R.W.M. Dias book Jurisprudence)

Jurisprudence
Derivation From Latin word jris prdentia, first used in 1628. JURIS PRUDENTIA

of Law

Proficiency, Wisdom, Knowledge

Wisdom/Knowledge of Law

Jurisprudence

Meaning
Literal Meaning According to Oxford Advanced Learners Dictionary;

Jurisprudence is the scientific study of law.

Legal Meaning

According to Blacks Law Dictionary (9th Edition);

1.Jurisprudence is the study of the first principles of the law of nature, the civil law, and the law of nations. 2.More modernly, the study of the general or fundamental elements of a particular legal system, as opposed to its practical and concrete details.

Definition

Jurisprudence is a name given to certain type of investigation into law and investigation of an abstract, general or theoretical in nature which seeks to lay the essential principles of law and legal system.
(John Salmond 1862-1924)

Jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to the social existence.
(Prof. R.W.M. Dias 1921-2009)

Jurisprudence is a science of law in general. It does not confine itself to any particular system of law but applies to all the systems of law or to most of them. It gives the general ideas, conception and fundamental principles on which all or most of the systems of laws of the world are based.
(Robert C. Clark 1944 -)

Schools of Jurisprudence

What is a School of thought? School of thought is a principle or body of principles accepted as authoritative and advocated by one or more scholars belonging to a specific discipline.

Example: Four Schools of thought in Islamic Shariah (Hanfi,

Shafi, Hanbali, Maliki), Darwins School of Evolution, etc.

Major Schools of Jurisprudence

Jurisprudence

Analytical

Historical

Ethical

Sociological

Comparative

Traditional

Modern

Analytical School of Jurisprudence

1. Central Idea:
Law as it exists i.e. Law as it is, regardless of good or bad, past or future.

A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
(Austin 1832/1995: Lecture V, p. 157)

2. Different Names:

Positive School, because it focused on positum (Latin) which means as it is. English School, because this school was dominant in England. Austinian School, because it was founded by John Austin.

Origin:

Imperative concept of law was first proposed by Bentham during his life time (1742-1832) but his work remained unpublished till 1945. Prof. Dias points that until recently John Austin used to be styled the father of the English Jurisprudence, but it is now clear from a work of Bentham first published in 1945 that it is he, if anyone, who deserved such a title. However, John Austin is considered the de facto originator of this school of jurisprudence.

Chief Exponents of Analytical School of Jurisprudence

1. Jeremy Bentham (1742-1832) 2. John Austin (1790-1859) 3. Sir William Markby (1829-1914) 4. Sheldon Amos (18351886) 5. Thomas Erskine Holland (18351926) 6. John Salmond (18621924) 7. Herbert Lionel Adolphus Hart (1907-1992) 8. Horace Gray (1828-1902) 9. Wesley Newcomb Hohfeld (1879-1918) 10. Hans Kelsen (1881-1973) 11. Nikolai Mikhailovich Korkunov (1853-1904)

Scope of Analytical School

Scope of analytical school of jurisprudence can be observed as follows; (i) Analysis of the legal system and legal concepts such as Right, Duty etc. (ii) Analysis of the relation between civil law and other forms of law. (iii) Analysis of the legal structure of a state and administration of justice. (iv) In depth investigation into the actual sources of law. (v) Investigation of the theory of legislation, precedents and customary law. (vi) An inquiry into the scientific arrangement of law into distinct departments along with an analysis of distinctions on which the division is based. (vii) An investigation of the theory of legal liability in civil and criminal cases. (viii) An examination of all other relevant legal concepts. (ix) Worldwide legal education today owes its basis to analytical school of jurisprudence.

Utility of Analytical School

Analytical school of jurisprudence explains in detail the complex legal concepts such as Law itself, State, possession etc. It provides analysis of the various legal systems of the world. It elaborates the structure of a legal system. It provides a logical basis and helps determine the purpose of law. It provides answer to the question Why is it so? It separates law from morality. It enables lawyers and judges to interpret law with logic and efficacy for smooth functioning of a legal system.

Views of Prominent Jurists

1. Jeremy Bentham (1742-1832) Law is an assemblage of signs, declarative of volition, conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons who in the case in question are supposed to be the subject to his power. Benthams theory contains key concepts viz. Sovereignty, Command and Sanctions. Bentham believed that there was the possibility of complete scientific codification of law. Bentham was against the judge-made law. Bentham attributed the element of utility to law. He defined utility as, the property of a thing to prevent some evil or to produce some good.

Views of Prominent Jurists (continued)

2. John Austin (1790-18569)

Imperative theory of law states;

Law is the general command of sovereign enforceable with sanctions.

John Austin is best known for his work developing the theory of legal positivism. He attempted to clearly separate moral rules from "positive law." Austin divided laws into two kinds; A) Laws Properly So Called or Positive Law. E.g. PPC, QSO, etc. B) Laws Improperly So Called or Positive Morality. E.g. Religious Rules, Moral Rules, Customs etc.

Austin attributed three elements with positive law which are; i) Command ii) Sovereign iii) Sanction

Cont i) Command: Commands are expression of desires given by superiors to inferiors. ii) Sovereign: A Sovereign is any person or body of persons whom the bulk of a political society habitually obeys but who does not habitually obey any other (earthly) person or institution. . A sovereign may be an individual person, e.g. King, Queen, Sultan etc, or a group of persons, e.g. Parliament, Congress, House of Lords etc. Austin thought that all independent political societies, by their nature, have a sovereign. iii) Sanction: An evil or punishment attached to a command. E.g. Fine, Imprisonment, etc.

Views of Prominent Jurists (continued)

3. John Salmond (18621924)

Jurisprudence is the science of civil law. By law he means the law of the land.

Salmond makes a distinction between the use of term jurisprudence in the generic and specific sense. A) Generic: deals with basic principles governing all legal systems of the world. E.g. Audi alteram palteram B) Specific: deals with one particular legal system. E.g. England Salmond believes in the consideration of concepts of justice and the relationship of law and justice. It investigates the real value of existing legal institutions and an exposition of desirable of changes in the law.

Views of Prominent Jurists (continued)

4. Thomas Erskine Holland (18351926) Jurisprudence is the formal science of positive law. Holland follows the definition given by Austin with addition of just one word i.e. Formal. Formal means concerned with form and structure of a legal system. Holland believes that jurisprudence does not deal with the actual material contents of law but with its fundamental conceptions. E.g. Concept of ownership, not its legal procedure.

Comparison of Analytical School with Other Schools of Jurisprudence

1. Analytical vs. Historical School Historical school in its ideal condition would require an accurate record of the history of all legal systems as its material whereas analytical school requires only the existing legal systems. Its aim is to show how a given rule came to be what it is whereas analytical school answers why it is what it is? It uses evolutionary history and hundreds of legal systems to as its subject-matter whereas analytical school examines the available subject-matter, its structure, and rules in order to reach its principles and theories by analysis.

Comparison of Analytical School with Other Schools of Jurisprudence (Cont)

2. Analytical vs. Ethical School Ethical jurisprudence deals with the law as it ought to be in an ideal state whereas Analytical jurisprudence deals with law as it is. It investigates the role of morality in law whereas the analytical schools separates law from morality. It concerns itself with the relation of law to certain ideals which law is meant to achieve whereas analytical school adheres to the analysis of existing system.

Criticism

No legal system exists in a vacuum; hence cannot be fully understood by focusing only on the law itself. Modern trends suggest the blending of socio-economic factors in the study of jurisprudence. Analytical School conflicts with the usage of the term law as it does not include customary law, international law and constitutional law in its domain. Bentham was enemy of the judge-made law (Judicial Precedents). Today, precedents serve as an important tool in entire legal system. All laws are not necessarily commands. Some laws prescribe action but without are sanctions such as repealing, declaratory laws. E.g. A law that gives a citizen right to vote, etc. The analytical school disregards the moral element in law which implies that even unjust law is a law. Analytical school does not take into account legal change. It takes for granted the perfection of a legal system and proceeds to explain its fundamentals. However, change is undoubtedly a permanent factor in all walks of life.

My Point of View

Jurisprudence, as a discipline of research, has a vast scope and it shall not be limited by any attempt at fixing its external boundaries. Any theory which confines the jurisdiction of jurisprudence reflects narrow vision and conservative approach. Thus, a synthesis of more than one schools of thoughts in jurisprudence is necessitated which shall embrace all emerging trends and tackle the existing challenges resolutely.

Conclusion

Jurisprudence, in its existence as a discrete discipline of social science owes its birth largely to the analytical school. It has succeeded in resolving much of the complexities faced by the jurists, lawyers and judges in the early stages of its development. However, its strict adherence to the limited domain of law as it is restricts it from evolving into an all-inclusive school of thought. The age of information technology and globalization where cyberspace laws and international laws are growing prominent everyday, requires analytical school to review its doctrine and extend its spectrum in order to accommodate the missing factors which presently earn itself strongest criticism from the jurists of the other schools of thought.

Bibliography

R.W.M. Dais (2011), Jurisprudence, Irfan Law Books Publishers, Lahore. Austin, John (1832/1995), The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge University Press. Bentham, Jeremy (1970), Of Laws in General, (H.L.A. Hart, ed., London). Llyod (1979), Introduction of Jurisprudence, London Stevens & Sons. Cotterrell, Roger (2003), The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed. (London: LexisNexis). Bryan A. Garner, (2009), Blacks Law Dictionary, Ninth Edition.

Web Resources

http://www.plato.stanford.edu/entries/austin-john/ http://www.en.wikipedia.org/wiki/John_Austin_(legal_philosop her) http://www.lsolum.typepad.com/legal_theory_lexicon/2004/05 /legal_theory_le_4.html http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html http://www.ebooksread.com/authors-eng/n-m-nikolaimikhailovich-korkunov/general-theory-of-law-goo/page-37general-theory-of-law-goo.shtml http://www.scribd.com/Redmax!

Thank You

Questions & Answers