1.

Introduction to Analytical School

Analytical jurisprudence is the general name for the approach to Jurisprudence

which concern itself mainly with classification of legal principles and rules and with
analysis of the concepts, relationships woeds and ideas used in legal system such as
Person, Obligation, Right, Duty, Act, etc. It is mainly associated with Positivism, the
approach to law which concerns itself with positive law i.e., legal system and rules
actually in force distinct from ideals systems or law which should be. Analytical
Jurisprudence though fore – shadowed by Thomas Hobbes, is chiefly associated with
Jeremy Bentham and John Austin. It has been extensively developed in England
notably by Markby, Holland, Salmond, Hart, etc. in the continent by Hans Kelson and
U.S.A. mainly by John Chipmin Gray, Oliver Wendell Holmes, etc. 1

The major premise of analytical school of jurisprudence is to deal with law as it

exist in the present form. It seeks to analyse the first principle of law as they actually
exist in the given legal system. The exponent of analytical school of jurisprudence
considered that the most important aspect of law is its relation to the State. They treat
law as a command emanating from the sovereign, namely, the State. This school is
therefore, also called the imperative school. The advocates of this school are neither
concerned with the past of the law nor with the future of it, but they confine themselves
to the study of law as it actually exists i.e., positus. It is for this reason that this school is
also termed as the Positive School of Jurisprudence. Bentham and Austin are
considered to be the Austinian School of Jurisprudence. The school received
encouragement in United States from distinguished jurists like Gray, Hohfeld and
Kocourck and in the European continent from Kelson, Korkunov and others.

1
John D. Finch, Introduction to Legal Theory, Ed. 2nd, p 40.

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 2. Meaning and Emergence

Analytical School is concerned with law as it is. Analytical Jurisprudence which Sir
John Salmond terms Systematic Jurisprudence and C.K. Allen as Imperative
Jurisprudence is that approach of method which considers law as a body of actual
interrelated principles and not merele a haphazard selection of rule inextricably
interwoven with a transcendental Law of Nature. It seeks to define all laws, classify all
laws, discover the essential features of every law and get a yardstick by which all laws
can be measured. It mainly aims at reconstructing a scientifically valid system by
analyzing legal concept on the basis of observation and comparison by reducing law
into a logical fasion. Such an approach towards law is described Analytical
Jurisprudence. C.K Allen2, ghowever, maintains that since jurists of this School consider
law as an imperative or command emanating from a politically independent sovereign
so the approach of these jurist may be described as Imperative School of
Jurisprudence. Analysis of legal rules, concepts and ideas through empirical or scientific
method is commonly described Analytical Jurisprudence.

Analytical school seeks to analyse the first principle of law as they actually exist in the
given legal system. The exponent of analytical school of jurisprudence considered that
the most important aspect of law is its relation to the State. They treat law as a
command emanating from the sovereign, namely, the State.

2
John D. Finch, Introduction to Legal Theory, Ed. 2nd, p 70.

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 3. Analytical School Jurists

1st. Jeremy Bentham (1748 – 1832):-

Jeremy Bentham heralded a new era in the history of legal thought in England. He is
considered to be the founder of positivism in the modern sense of the term. It has been
rightly said that Austin owes much to Bentham and on many points his propositions are
propositions are merely the ‘pare – phasing of Bentham’s theory’. Bentham’s classic
works reveal that truly speaking, he should be considered to be the real father of
analytical positivism and not John Austin as it is commonly believed. 3

Bentham was the son of a wealthy London Attorney. His genius was of rarest quality.
He was a talented person having the capacity and acumen of a jurist and a logician.
Dicey in his book ‘Law and Public opinion in 19th Century’, has sketched Bentham’s
ideas about individualism, law and legal reforms which have affected the growth of
English law in the positive direction.

Bentham’s concept of law is imperative one i.e., law is an assembly of signs,

declarations of violation conceived or adopted by Sovereign in a State 4. He believed
that every law may be considered in the light of eight different aspects, viz. –

1. Source (law as the will of Sovereign).

2. Subjects (may be persons or things).

3. Objects (act, situation or forbearance).

4. Extent (law covers a portion of land on which acts have been done).

3
Pranjape N.V., Jurisprudence and Legal Theory, Central Law Agency,
4
Limits of jurisprudence defined by Jeremy Bentham

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5. Aspect (may be directive or sanctional).

6. Force

7. Remedial State Appendages.

8. Expression.5

Criticism of Bentham:-

(1) The moral and psychological basis of utilitarianism is not real:

Utilitarianism is based on the notion that whatever functions should or should not be
performed by the individual should be tested on the touch-stone of utility. If this notion is
accepted, each individual will work only for his own pleasure.

(2) Against human nature:

The utilitarian’s are of the view that the individual does every work for the attainment of
pleasure and for the avoidance of pain. But this analysis of human nature is one-sided.
The fact is that human nature is complex. He has qualities like pity, faith, service,
benevolence, love, sympathy, sacrifice and forgiveness in him.

(3) The utilitarian’s laid emphasis upon the material comforts only and ignored
the spiritual happiness:

The utilitarian’s have cared only for physical comfort, and have ignored the suppression
of sense and self-control. They have also no cared for the spiritual comfort which one
derives from self-sacrifice for the sake of humanity.

(4) It is improper to lay emphasis solely upon the quantity of pleasures:

Bentham has stressed only upon the quantity of pleasure. He has not taken up the
qualitative difference; therefore, John Stuart Mill has taken up the qualitative difference,
which is appropriate.

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Limits of jurisprudence defined by Jeremy Bentham

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2nd . John Austin (1790 – 1859):- John Austin is the founder of the Analytical
School. He is considered as the ‘father of English Jurisprudence.’ He was elected to the
Chair of Jurisprudence in the University of London in 1826. Then he proceeded to
Germany and devoted some time to the study of Roman Law at it was taken in
Germany. The scientific treatment of Roman Law there made him aware of the chaotic
legal exposition of law in his own country. He took inspiration from it and proceeded to
make scientific arrangement of English Law. The method which he applied was
essentially of English origin. He avoid metaphysical method which is a German
character.6

Positive Law as Command

The law properly so – called is the positive law depends upon political authority – the
sovereign. Every rule, therefore, according to Austin is a command. So laws properly so
called are a species of commands. If you express or intimate a wish that I shall do or
forbear from some of your wish, the expression or intimation of your wish is a command.
If I am bound by it, I lie under a duty to obey it. Command – duty are, therefore,
correlative terms. Command further implies not only duty but sanction also.

Law is Command

Positive law is the subject – matter of jurisprudence, Austin says that only the positive
law is the proper subject – matter of study for jurisprudence. “The matter of
jurisprudence is positive law: law simply and strictly so called: or law set by political
superiors to political inferiors.” Jurisprudence is the general science of positive law. The
characteristics of law.

6
Austin : The Province of Jurisprudence Determined

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Command and Sanction7

Sanction as an evil which will be incurred if a command is disobeyed and is the means
by which a command or duty is enforced. It is wider than punishment. A reward for
obeying the command can scarcely be called a sanction. A command embraces:

(a) A wish or desire conceived by a rational being to another rational being who shall do
or forbear as commanded;

(b) An evil to proceed from the former to be incurred by the latter in case of non –
compliance; and

(c) An expression or intimation of the will by words or otherwise.

Commands are of two species:

(a) Las or rules (General Command), and

(b) Occasional commands (Particular command).

A command is a law or rules where it obliges generally to acts or forbearances of

people. It is occasional or particular when it obliges to a specific individual for act or
forbearance. Law is a command which obliges a person or persons to a course of
conduct. It requires signification and can, therefore, only emanate from a determinable
source or author (a person or body of persons).8

7
Austin : The Province of Jurisprudence Determined
8
Dhyani, S.N., Jurisprudence Indian Legal Theory, Central Law Agency, Ed. 2006

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Laws proceed from superiors and bind and oblige inferiors. Superiors are invested with
might: the power of affecting others with pain or evil and thereby of forcing them to
conform their conduct to their orders.

The influence of Austin’s theory was great due to its simplicity, consistency and clarity of
exposition. That is why Gray remarked: “If Austin went too far in considering the law as
always proceeding from the state, he conferred a great benefit on jurisprudence by
bringing out clearly that the law is at the mercy of the state.” Austin’s method in
described as characteristics of English jurisprudence. Prof. Allen says: “Far a
systematic exposition of the methods of English jurisprudence we will have to turn to
Austin.” The same is true about American also because Austin’s method was greatly
adopted there Austin’s theory had little influence in the continent for the time being, and
especially Germans, who always mixed metaphysical notions with jurisprudence, were
least appreciate of it. But of late years Austin has received an increasing attention and
respect from the jurists of the Continent also. Germans also have come round the
Austin’s view and many of them are abjuring all ‘micnt positivisches Rechet.’

The latin analytical theories have improved upon Austin’s theory and have given a more
practical and logical basis. Holland, though accepted the ‘command’ theory, made a
slight variation. He says:-

“A law, in the proper sense of the term is, therefore, a general rule of human action,
taking cognizance only of external acts, enforced by determinate authority.”

Later Jurists improved upon his theory

Salmond and Gray further improved upon it and considerably modified the analytical
positivist approach. They differ from Austin in his emphasis on sovereign as law giver.

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According to Salmond, the law consists of the rules recognized and acted on by the
court of justice.

Criticism Of Austin’s Theory:- Criticism of Austin’s Theory of Sovereignty:

(1) This theory is against popular sovereignty:

This theory is deadly against Rousseau’s concept of the General Will which is the very
basis of democracy. It conflicts with the basic ideas of democracy. Austin’s sovereign is
superior and everybody else is sub-ordinate to him.

The idea of popular sovereignty which lies at the basis of democracy has been ignored
by Austin. In democracy supreme power resides in the people. On the contrary Austin’s
world is hierarchical. Thus, Austin’s theory of sovereignty does not fit in with a
democratic set-up.

(2) It ignores the power of public opinion and political sovereignty:

Austin’s concept of sovereignty ignores the claim of public opinion and political
sovereignty. Austin’s determinate human sovereign is superior to all. He wields the
power and exercise sovereignty. Austin’s theory ignores the massive influence of the
electorate, public opinion and the political sovereignty. Sir Henry Maine believes that it
is a historical fact that sovereignty has repeatedly been for a time in the hands of a
number of persons indeterminate.

(3) Law is not the command of the sovereign:

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Austin is of the opinion that the determinate human superior is the only law-maker and
his commands are laws. But Sir Henry Maine with other historical jurists has vehemently
criticized and condemned Austin’s theory of Sovereignty. Sir Henry Maine believes that
sovereignty does not reside in the determinate human superior.

Maine cites the example of Ranjit Singh whom he regards as an absolute despot
possessing qualities of Austin’s determinate human superior “Ranjit Singh”, says Maine,
“could have commanded anything; the smallest disobedience to his commands would
have been followed by death or mutilation”.

Yet Ranjit Singh never “once in all his life issued a command which Austin could’ call
law…. The rules which regulated the life of his subjects were derived from their
immemorial usages and these rules were administered by domestic tribunals, in families
or village communities”.

Clark, Sid-wick, Marby, Lowell, Wilson, T.H Green, Lightwood, Marriam and Willoughby.
All these political thinkers are of the opinion that John Austin has laid unnecessary
emphasis on this only one element (the order of the sovereign) and ignored many other
elements.

Austin’s definition of law as “a command given by a superior to an inferior” is not

accepted by most of the political thinkers. Professor Laski believes that to think of law
as simple a command is even for the jurist”, “to strain definition to the verge of
decency”.

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Many of the political thinkers believe that Austin’s concept of sovereignty completely
ignores the common law of Great Britain. John Austin attempted to defend this charge
by saying that “whatever the Sovereignty permits that is also law. But this defence of
Austin could not satisfy the critics. The critics argued that the development of the
Common Law was a great political stir which could not be averted by the sovereign.
Hence, the sovereign had no other alternative than to permit the Common Law to exist.

(4) Sovereign is not indivisible according to Pluralists:

According to Pluralists, Sovereignty is not indivisible. It can be divided. Laski is of the

opinion that, “it is impossible to make the legal theory of sovereignty valid for political
philosophy. It would be a lasting benefit to Political Science if the whole concept of
sovereignty were surrendered”.

Lindsay remarks, we look at the facts it is clear enough that the theory of the sovereign
states has broken down”. Barker is also of the opinion that no other principle of Political
Silence is as useless as the theory of sovereignty. The Pluralists challenge the claims of
the state to supremacy on the ground that society consists of many associations and
the state is but one among them. Therefore, the state cannot be endowed with
sovereign power of the community. Sovereignty is divisible and it must be divided
between the state and various other associations of the individuals.

(5) Sovereignty does not reside with a determinate person in the federation:

In a federal state sovereignty does not reside with a determinate person. It is impossible
to discover sovereign in a federal state. It is very difficult to locate the sovereign in a
federal state. For example, in the federal state of U.S.A.

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 3rd HLA Hart

Hart's main development beyond Kelsen is to transform Kelsen's basic norm into a
more complex analysis of law that distinguishes two kinds of "rules."Hart's explicit
motive is explanatory rather than logical. He is trying to explain (as Austin could not)
how we can coherently explain of the development from primitive to "evolved" legal
systems.

2 Types of Rules :

Primary Rules (Pre-legal Era)

A legal system, he says, consists first of "primary rules." These confer (legal) rights in
duties and Hart does not try at all to eliminate such evaluative talk. Legal commands,
along with enabling legislation, repealing, declaring etc., all create change or remove
rights and duties. They do this whether or not they are backed by punishment.

2) Secondary Rules

The primary rules are valid if they follow from what Hart calls "secondary rules." We can
view the evolution of a secondary rule structure as a sign a legal system is maturing.
The secondary rules fall into three categories which remedy what Hart portrays as three
"weaknesses" of primitive law.

The rules of recognition counter the vagueness and uncertainty of traditional law. It
gives some explicit criteria for determining what counts as a primary legal rule. Usually it
is inclusion in some canonical collection of promulgated laws. In English systems, the
rule of recognition includes (somewhat vaguely) the previous decisions of judges. In
primitive systems, this secondary rule is implicit, vague or simply absent.

Primitive systems also are very slow to change and adapt their laws. Developed or
evolved systems have rules of change which counter this inflexibility. They make it

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explicit how the law can be changed. These are legislative procedural rules (first
reading, . . . executive signing.)

Finally, developed systems have rules of adjudication to counter the inefficiency of

private enforcement and the vendettas and feuds which result. This usually means
setting up dedicated institutions (courts) together with rules for their operation in
determining guilt and interpreting statutes.

Law is a complex, authoritative social decision process--a procedure for resolving

disputes.Hart makes a distinction like that of Kelsen, between the "existence" of a basic
norm and the validity of laws following from it. Like Kelsen, he has trouble explicating
the normative force of the secondary rules.Hart has recourse to an "internal-external"
analysis. The point of view for validity is internal. When we judge a law valid, we do so
from the perspective of a member of the legal community-we take the secondary rules
for granted. The secondary rules do not follow from any other rules. We can only
"justify" them from the outside. Externally, then, Hart treats the normative status of
secondary rules as a question "closed on fact." The fact is the fact of implicit internal
acceptance. That a secondary rule is accepted is an external, descriptive fact. Inside
the system, we view the secondary rules as norms. Outside (from the point of view of
the sociologist) is only descriptive fact. This makes Hart's theory useful for
analytic/scientific purposes.

However, it leaves us with a vestige of the problem we noticed in both Austin to Kelsen.
How can a "brute fact" create an obligation (even a legal one)? Internally, how can blind
acceptance make it normative? Positivism eventually flounders on this problem. We
need more analysis of the internal point of view to account for the normative status-or it
begins to look like an illusion (from the scientific point of view).

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 KELSON’S PURE THEORY

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and
philosopher Hans Kelsen (1881–1973) (see the bibliographical note). Kelsen began his
long career as a legal theorist at the beginning of the 20th century. The traditional legal
philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political
ideology and moralizing on the one hand, or with attempts to reduce the law to natural
or social sciences, on the other hand. He found both of these reductionist endeavors
seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid
reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as
a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this
purity serves as its “basic methodological principle”. 9

The Basic Norm

The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of
legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal
science”, to other domains. The law, Kelsen maintained, is basically a scheme of
interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a
legal-normative meaning to certain actions and events in the world (PT1, 10). Suppose,
for example, that a new law is enacted by the California legislature. How is it done?
Presumably, some people gather in a hall, debate the issue, eventually raise their
hands in response to the question of whether they approve a certain document or not,
count the number of people who say “yes”, and then promulgate a string of words, etc.
Now, of course, the actions and events described here are not the law. To say that the
description is of the enactment of a new law is to interpret these actions and events in a
certain way.

9
Introduction to the Problems of Legal Theory, B.L. Paulson and S.L. Paulson, trans.,
Oxford: Clarendon Press.
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 4. CASE LAWS
Maneka Gandhi VS Union of India:-

Pre-Maneka Gandhi: Old Position (Analytical school)

The concept of ‘personal liberty’ first came up for consideration of the Supreme Court in
A.K. Gopalan’s case. In this case, the Petitioner had been detained under Preventive
Detention Act, 1950. The petitioner challenged the validity of his detention on the
ground that it was violative of his Right to freedom of movement under Art. 19(1)(d),
which is the very essence of personal liberty guaranteed by Art. 21 of the Constitution.
He argued that the words ‘personal liberty’ include the freedom of movement also and
therefore the Preventive Detention Act, 1950 must also satisfy the requirements of Art.
19(5). It was further argued that Art. 21 and Art. 19 should be read together as Art. 19
laid out the substantive rights while Art. 21 provided procedural rights. It was also
argued that the words “procedure established by law” actually meant “due process of
law” from the American Constitution which includes principles of natural justice and the
impugned law does not satisfy that requirement.

Post-Maneka Gandhi: New Dimension (Natural School)

In Maneka Gandhi’s case, the meaning and content of the words ‘personal liberty’ again
came up for the consideration of the Supreme Court. In this case, the petitioner’s
passport had been impounded by the Central Government u/s 10(3)(c) of the Passport
Act, 1967. Here, the Supreme Court not only overruled A.K. Gopalan’s case but also
widened the scope of words ‘personal liberty’ considerably. Bhagwati, J. observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a

variety of rights which go to constitute the personal liberty of man and some of them
have raised to the status of distinct fundamental rights and given additional protection
under Article 19.”

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 Navtej Singh Johar v. Union of India

Much has already been written and said about the recent landmark decision of
the Supreme Court in Navtej Singh Johar v. Union of India, where a bench of
five judges of the Supreme Court partially struck down Section 377 of the
Indian Penal Code (IPC), which made “carnal intercourse against the order of
nature” a criminal offence. Four separate judgments were delivered by the
court, by Chief Justice Misra (supported by Khanwilkar J), and Justices Nariman,
Chandrachud and Malhotra. Though the conclusions arrived at were the same,
some of the reasoning was different. For example, Justice Nariman held that
there is no presumption of constitutionality for pre-Constitution laws [Nariman
J, paragraph 90], Justice Chandrachud rejected [Chandrachud J, paragraph 36]
the “sex plus” test laid down in Air India v. Nergesh Mirza, (1981) 4 SCC 335,
while the other judges didn’t dwell much on these subjects. This post therefore
focuses on some of the key highlights of the reasoning of the majority in the
case. All paragraph number references are from the original judgments
published on the website of the Supreme Court of India. 

Before  [Analytical school  Law as it is]

After  [Natural School  Law as ought to be]

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 5 . CONCLUSION

At the end it can be concluded that, analytical school of jurisprudence consider that the
most important aspect of law is its relation to the State. The School is, therefore also
called the imperative school. The school received encouragement in United States from
distinguished jurists like Gray, Hohfeld and Kocourck and in the European continent
from Kelson, Korkunov and others.

Analytical Jurisprudence is that approach of method which considers law as a body of

actual interrelated principles and not merely a haphazard selection of rule inextricably
interwoven with a transcendental Law of Nature. It seeks to define all laws, classify all
laws, discover the essential features of every law and get a yardstick by which all laws
can be measured.

6. BIBLIOGRAPHY

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1. Dhyani S.N., Fundamentals of Jurisprudence (The Indian Approach)

2. Pranjape N.V., Jurisprudence and Legal Theory

3. Austin : The Province of Jurisprudence Determined

4. Legal Service India

5. Class Notes

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