UNIVERSITY INSTITUTE OF LEGAL STUDIES

PROJECT REPORT ON
ANALYTICAL POSITIVISM

SUBMITTED TO: SUBMITTED BY:

MS.SUGANDHA MAMTA

UILS, PU 2071/20

CHANDIGARH LL.M. (2 Yrs Evening)

I st Semester

1
ACKNOWLEDGEMENT

Success is a blend of multiple efforts. The final import of this project is also a result of the sheer
hard work and constant support of many people. I would like to take this opportunity to thank all
of them.

To begin with, I would like to express my humble gratitude to my teacher, Dr. Sugandha , for
her able guidance and mentoring. The meticulous manner in which she teaches has paid
significantly in the completion of this project.

Secondly, I would like to thank my department, University Institute of Legal Studies, Panjab
University, Chandigarh, for providing such an expansive library which provided me all the
relevant material required for this project.

Last but not the least, I would like to express my profound gratitude to my parents and my
friends who have constantly supported and motivated me throughout this project.

MAMTA

2
TABLE OF CONTENTS

Contents

INTRODUCTION...........................................................................................................................4
JEREMY BENTHAM.....................................................................................................................5
JEREMY BENTHAM’S VIEW ON LAW.................................................................................6
UTILITARIAN APPROACH OF LAW......................................................................................7
UTILITARIANISM:....................................................................................................................8
Meaning.......................................................................................................................................8
PLEASURE AND PAIN PRINCIPLE IN LEGISLATION:.....................................................10
BENTHAM ON CODIFICATION AND LAW REFORMS........................................................13
CODIFICATION.......................................................................................................................13
COMPLETENESS OF CODES.................................................................................................13
CONTENT.................................................................................................................................14
Form and Cognoscibility............................................................................................................14
LEGAL METHOD....................................................................................................................15
BENTHAM’S LEGAL PHILOSOPHY....................................................................................15
LAW REFORMS...........................................................................................................................16
BENTHAM’S CONTRIBUTION TO ANALYTICAL SCHOOL...............................................17
AUSTIN’S THEORY OF LAW....................................................................................................18
ANALYTICAL APPROACH TO JURISPRUDENCE............................................................18
LAW FOR AUSTIN......................................................................................................................19
Austin’s Contribution; Opening a New Era of Approach.............................................................21
KELSON’S PURE THEORY OF LAW.......................................................................................22
SALIENT FEATURES OF PURE THEORY OF LAW...........................................................23
CONCLUSION..............................................................................................................................24
BIBLIOGRAPHY..........................................................................................................................25

3
INTRODUCTION

ANALYTICAL JURISPRUDENCE:

The major premise of analytical school of jurisprudence is to deal with law as it exist in the
present form. It seeks to analyze 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.

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 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.1 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 fusion. Such
an approach towards law is described Analytical Jurisprudence. C.K Allen, however, 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.

1
 Dhyani S.N., Fundamentals of Jurisprudence (The Indian Approach), Central Law Agency, Ed. 2007, p

4
JEREMY BENTHAM
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 merely the ‘pare – phasing of Bentham’s theory’. 2 Bentham’s classic works
reveal that truly speaking, he should be considered to be the father of analytical positivism and
not John Austin as it is commonly believed. 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. The contribution of the Jeremy Bentham to the English
Law reforms can be summarized thus-

“He determined, in the first place, the principles on which reforms should be based.

Secondly, he determined the method i.e., the mode of legislation, by which reforms should be
carried out in England.”

According to Jeremy Bentham, ‘law is defined as an assemblage of signs declarative of a 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 a class of persons, who in the case in question are subject to
his power’. Therefore, Bentham clearly states that law, which is the will of the sovereign,
regulates the conduct of the people to which it applies. Therefore, the law is what is laid down by
the sovereign3. The people who are subject to the law have to regulate their conduct in
accordance with this will of the sovereign. Moreover, Bentham says that the law does not have to
be in consonance with the principles of ethics. Therefore, law is whatever is laid down by the
sovereign. According to the Bentham, a sovereign is the highest superior body which does not
owe any obedience to any other body. It is the sovereign which claims habitual obedience from
the people living in a politically organized group. Therefore, the sovereign does not owe any
allegiance to any other body or group. It is the will of this sovereign body which is known as
2
John D. Finch, Introduction to Legal Theory, Ed. 2nd, p 70.
3
Pranjape N.V., Jurisprudence and Legal Theory, Central Law Agency, Ed. 6th (2011), pp 16 – 17

5
law. Bentham, however, states that the power of the sovereign is not absolute as is the view of
John Austin. Bentham is of the view that the power of the sovereign can be limited as well as
divided. Therefore, he is of the opinion that a sovereign can, by his own will, limit his own
powers by entering into agreements with certain external agencies which would put restriction on
the power of the sovereign. Jeremy Bentham’s concept of sovereignty is not absolute in nature
and can be restricted to a certain extent. Another important feature of law according to Bentham
is that it should be backed by sanctions.

JEREMY BENTHAM’S VIEW ON LAW

English law as it existed at the end of the 18th century, when Bentham was still in his youth, had
developed almost in a haphazard way as a result of customs or modes of thought which prevailed
at different period. The laws which were then in existence were not enacted with any definite
guiding principles behind them. The law of England, like that of most countries of contemporary
Europe, had grown out of occasion and emergence. It is for this reason that it is often said that in
England law had in fact grown, rather than been made.

Jeremy Bentham defined law “as an assemblage of signs declarative of a 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 or are supposed to be subject to
his power; such violation trusting for its accomplishment to the expectation of certain events
which it is intended such declaration should upon occasion be a means of bringing to pass, and
the prospect of which it is intended should act as a motive upon those conduct is in question”. 4

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. He believed that every law may be
considered in the light of eight different aspects, viz. –
4
Dhyani, S.N., Jurisprudence Indian Legal Theory, Central Law Agency, Ed. 2006, pp 50 – 51

6
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).

5. Aspect (may be directive or sanctional).

6. Force

7. Remedial State appendages

8. Expression

UTILITARIAN APPROACH OF LAW

Utilitarianism is a moral and ethical philosophy in political theory. Though the traces can be
finding even in ancient Greek philosophy it was popularized because of contributions made by
Jeremy Bentham . This concept has played an important role in the first half of the Nineteenth
century. Utilitarianism is a theory mainly based on the principle greatest happiness to the
greatest member5. Utilitarianism became a core principle for all most all Nations in their
political, economical, social functioning today. Bentham strongly said that men's life always lies
between two different masters like Pain and Pleasure. Moreover Bentham said that pain and
pleasure can be measured through arithmetical method and there is a possibility for quantitative
difference between pain and pleasure.

UTILITARIANISM:

Utilitarianism is an English philosophy. It is a theory of morality. It is a tradition of ethical

philosophy. It advocates actions that foster happiness or pleasure and opposes actions that cause

5
Pranjape N.V., Jurisprudence and Legal Theory, Central Law Agency, Ed. 6th (2011), pp 20 – 21

7
unhappiness or harm, when directed toward making social, economic, or political decisions. A
utilitarian philosophy would aim for the betterment of society as a whole. It would say that an
action is right if it results in the happiness of the greatest number of people in a society or a
group. Utilitarianism considers the interests of all humans equally. Though Utilitarianism is one
of the most powerful and persuasive approaches to normative ethics in the history of philosophy.
But this concept was not articulated until the 19th Century.6

Meaning

 Utility means the quality or state of being used; the quality to satisfy human wants; a
public utility, a service provided by one of these.

 Utilitarianism means the doctrine, expounded by Jeremy Bentham, that the moral and
political rightness of an action is determined by its utility, defined as its contribution to
the greatest good of the greatest number. Bentham made his explanations in his famous
work Fragmentation of Government and Introduction to the principles of moral and
legislation. He said that the true end of the State was to promote the greatest happiness of
the greatest number. In his theory the following issues are the most important. They are:

 Mankind placed between two sovereign masters - According to Bentham, Nature

itself has placed mankind under the governance of two sovereign masters, namely Pain
and Pleasure. So, he said that it is the duty of the State or the State is necessary to the
individual to maximize his pleasure and minimize his pain. More over according to him
utility is the property in any object whereby it tends to produce benefit, advantage,

6
 John D. Finch, Introduction to Legal Theory, Ed. 2nd, p 70.

8
 pleasure, good, happiness or to prevent happening of mischief, pain, evil or unhappiness.

 Sanction - According to Utilitarianism the business of the government is to promote the

happiness of the society. If there is any disturbance the State has every power to punish
the culprits. Bentham distinguished like physical/natural, religious, moral and political.

i. The Physical or Natural Sanction comprises the pains and pleasures which we
may experience or expect, in the ordinary course of nature, not purposely
modified by any human interposition.7

ii. The Moral Sanction comprises such pains and pleasures as we experience or
expect at the hands of our fellows, prompted by the feeling of hatred or good will,
or contempt or regard; in a word, according to the spontaneous disposition of each
individual. The sanction may also be styled popular; the sanction of public
opinion or of honour, or the sanction of the pains and pleasures of sympathy.

iii. The Political Sanction comprises such pains and pleasures as may experience or
expect, at the hands of the magistracy, acting under law. This might, with equal
propriety, be termed the legal sanction.

iv. The Religious Sanction comprises such pains and pleasure as we may experience
or expect, in virtue of the forebodings and promises of religion.

Here, Bentham said that men obey the laws of the State because the probable
mischief of obedience is less than the probable mischief of disobedience.

PLEASURE AND PAIN PRINCIPLE IN LEGISLATION: 

Bentham has classified the pleasure and pain on the basis of human psychology which illustrates
as psychological hedonism:
7
Tripathi, B.N. Mani, Jurisprudence Legal Theory, Allahabad Law Agency, Ed. 2003, p 18

9
 PLEASURES:

 Pleasure of riches,
 Pleasure of good reputation,
 Pleasure of friendship,
 Pleasure of knowledge,
 Pleasure of social affection,
 Pleasure of relief from pain,
 Pleasure of good friendship and social affection.

PAIN:

 Pain of Privation,
 Pain of sense including diseases of all kinds,
 Pain of skill,
 Pain of enmity,
 Pain of piety including feat of divine punishment, and
 Pain of knowledge and imagination.

He also classified the pleasures and pain as sanctions and it divides into four categories as
follows:

 Physical sanction
 Political sanction

10
  Moral sanction
 Religious sanction

 Pain and Pleasure could be calculated on Felicific Calculus

According to Bentham there are two kinds of pleasures and pains are there. They are:

i. Simple pleasures or those which cannot be resolved into other (as the pleasures of
senses, wealth, skill, amity, good name, power, piety, benevolence, malevolence,
memory, imagination, expectation, assistance and relief etc.) and

ii. Complex pleasures are those which can be resolved into various simple ones.

Simple pains are privation, awkwardness, enmity, ill-repute, benevolence, malevolence, memory,
imagination, expectation and association.

Complex pains are those which can be resolve into simple ones.

According to Bentham, pleasure or pain could be arithmetically calculated by taking into account
seven factors, namely:

i. Intensity (more or less efficaciousness)

11
 ii. Duration (longer or shorter life)

iii. Certainty (consideration of definiteness or indefiniteness)

iv. Propinquity (consideration of nearness or remoteness of time)

v. Purity (accompaniment of all pleasure or pain)

vi. Fecundity (capacity of being productive or barren) and

vii. Extensiveness (the number of persons fallen under influence).

These seven factors influence on pleasures or pains. Moreover according to him the balance will
show the tendency of good or bad. He also had given a list of 12 simple pains. These factors
make one pleasure more or less and create dimensions. But Bentham said that these can be
mathematically calculated. However, the critics said that pain and pleasure can't measure in
quantitative methods.8

BENTHAM ON CODIFICATION AND LAW REFORMS

8
http://www.legalservicesindia.co/Analytical-Legal-Positivism.html visited on 23/03/21

12
CODIFICATION

The English term codification was invented by Bentham. It was first used in a letter he wrote to
his brother on 20‐22 August 1806 about a guest he had entertained a couple of days before: ‘You
may remember, or not remember, the flamingness of his zeal for preaching Codification’.
Several codes existed in Europe before Bentham began writing on the subject.

COMPLETENESS OF CODES

Although lauding the benefits the Danish, Swedish, Prussian and Sardinian codes had conferred
on the people of those nations, Bentham considered these earlier codes to be incomplete. The
legal system he envisioned would only be fully realized when all law was codified. As early as in
the 1770s, his first codifications attempts targeted the Russian Emperess Catherine II for which
he wrote a draft of an introduction to a Penal Code in French. As in many instances in Bentham’s
career, the Code was not finished, but the draft of the introduction was later published in English
in 1789 as Introduction.9

Bentham’s codes were written within a radical perspective of offering democratic institutions for
all. In order to achieve this aim, Bentham devised codes, which would prevent abuse of
government power. Bentham goes about affording securities against misrule, as he calls them, by
a certain number of procedural rules:

‐ publicity of government action (legislative and executive branch), through sessions open to the
public and publication of proceedings of government action

‐ free press, which Bentham calls the Public Opinion Tribunal and which includes the press, but
also any member of the public interested in a given political topic

9
See Letters 1 et 536 in The Correspondence of Jeremy Bentham, vol. 3 (January 1781‐October 1788), ed.
Ian R. Christie, London: The Athlone Press, 1971.

13
‐ nomography, which is the science of writing legislation, which teaches how to write clearly. It
deals with methodology, definition of key‐terms, lay out of information, syntax, organization of
the material (numbering paragraphs etc)

CONTENT

The numerous drafts Bentham drew for his codes contained changes in what he called the
"matter" of the law, as well as in its form. His plans for the laws of evidence and pleading, for
example, entirely revised and streamlined the existing rules on the subjects. Similarly, in the area
of contracts he would have stripped away the prevailing chaos and rebuilt the law according to a
few easily understood principles. Thus, the codes proposed by Bentham were different, not only
that they were to be th1e whole of the law rather than simply another authority, but also because
their content was more than a distillation of prevailing statutes and court decisions.

Form and Cognoscibility

Bentham worked to make his codified law understandable and enlightening. He reasoned that if
the law were to guide the citizens' conduct it must be present in their minds. Informing the
citizens of the law, or as Bentham put it, making the laws "cognoscible," would be impossible
unless both of two related goals were attained. First, the law must be clear and simple enough for
the "plain" man to be capable of grasping it. Second, the law must be "promulgated" or made
accessible to the citizen. The first necessity concerns the internal structure of the law, while the
second involves bringing the body of the law into juxtaposition with the populace. The two goals
are interdependent. The law cannot be brought to the citizen if it is not in written form or if it is
too voluminous to be read or distributed. Bentham realized that unless the law were made both
internally logical and externally discoverable, it could not possibly serve as a guide to human
conduct. The existing law illustrated for Bentham the gravity of the defect of the incognoscibility
of law.

14
LEGAL METHOD

If the law could attain the degree of publicity and popularity Bentham believed possible, then it
was conceivable that every man could represent himself in court. Where is the need for the legal
specialist if the law is readily accessible to, and understood by, every citizen? In addition, the
population would benefit by ridding itself of that self-serving class who so perverted truth and
justice. Bentham believed that judges also had a vested interest in the prevailing injustice which
they perpetuated through the arbitrariness of common law method. As a solution, Bentham
proposed that power be taken from the hands of the judges and lawyers and transferred to the
legislators. Limiting all law to the code would reduce the need for judicial lawmaking and for
reliance on specialized practitioners. Further, Bentham emphasized that in judging whether a
given case falls within the law, the text of the law should be the sole authority or standard. If
ambiguity exists' in the text, the legislature itself should resolve it. Enactments must no longer be
entirely abandoned to the "interpretation" of the judges.

BENTHAM’S LEGAL PHILOSOPHY

Bentham criticized the natural law theory of his contemporaries for its tendency to offer deeply
felt beliefs where proofs were required. He' thought that he had found a much more objective or
scientific ground for legal decisions in pleasures, pains and happiness

“What happiness is everyone knows, because what pleasure is everyman knows, and what pain is
everyman knows. But what [natural] justice is, this on every occasion is the subject matter of
dispute.10”

10
P. King, Utilitarian Jurisprudence in America 25-26, (unpublished thesis, in University of Illinois Library).

15
LAW REFORMS
The history of the law reforms of Jeremy Bentham is full of encouragement to those reformers
who find themselves in advance of the public opinion of their own. Bentham, during his long
life of 84 years,-which ended in I832, the year when modern England began in the passage of the
Reform Bill,-was the persistent and forceful advocate of fundamental reforms in the law of
England. These reforms may be shortly stated as the substitution of a natural for a technical
procedure, and a written or legislative for an unwritten or judge-made law. During his life,
however, his demand for reform fell upon unheeding ears; he was for the most part a voice
crying in the wilderness. A generation had come and gone after his death before his reforms were
first established in England by the Judicature Act of I873, and it is only in the present century
that professional and public opinion has been aroused to the necessity of such reform in the
country.

Mr. Dicey calls the period from I820 to I870 in English history that of Benthamism or
Individual-ism, and styles it the era of Utilitarian Reform, as contrasted with the period of Old
Toryism, or Conservatism, which preceded, and that of Collectivism, or Amelioration of Social
Conditions which has followed. Bentham's philosophy-that of Utilitarianism, the greatest
happiness of the greatest number,-made a profound impression upon the public thought of his
own and succeeding generations. Bentham's reforms did not relate alone to procedure, but he
vigorously denounced the whole system of judge-made law, as -he termed it, and demanded the
substitution of a written for an un- written law. 11 His scheme of reform in the substantive law
meant more than the mere substitution of a written for an unwritten law, as he demanded that all
the statute law, whatever the form of government, should be based on scientific and
philosophical principles, for the benefit of man. Bentham saw nothing but evil in judge-made law
and nothing but good in codification, that is, in the reduction of the entire body of the so-called
unwritten or judge-made law to a written or statutory form.. He had admired the judgments of
Lord Mansfield in the King's Bench, but deplored his introduction of new principles into the law
of England; and he emphatically objected to the use of fictions whereby the ancient and obsolete
rules of the common law were made subservient to new conditions.

11
Dhyani, S.N., Jurisprudence Indian Legal Theory, Central Law Agency, Ed. 2006, pp 53 – 54

16
BENTHAM’S CONTRIBUTION TO ANALYTICAL
SCHOOL

1. Bentham’s contribution to the legal theory and legislation is so much that his era is known as
“Benthanite Era” in the legal history of England. He introduced legal positivism and treated the
study of law as a science of investigation through scientific methods of experiments and
reasoning. This philosophy that “justice is nothing but social happiness or the happiness of the
majority of people” seems like a great moral of ideal for the welfare of states.

2. He agreed with Kelson who said absolute justice is an irrational ideal, an illusion- one of the
eternal illusions of mankind. Bentham’s perception of justice is based on the system of values i.e.
morals. The individuals living in society have to conform to the set values or norms and
rationalize their conduct/behavior accordingly.12

3. Bentham defined law as an “assemblage of signs declarative of a violation 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/are supposed to be subject of
his power.

4. Expression- where the expression of law is completely in unequivocal terms, the judge must
adopt liberal interpretation. It is only where the expression of law is incomplete that the judge
may resort to liberal interpretation.

12
http://www.legalservicesindia.com/Analytical-Legal-Positivism.

17
AUSTIN’S THEORY OF LAW

John Austin (1790-1859) was a Legal Expert who greatly shaped Legal Systems all over the
world through his Analytical Approach to Jurisprudence and Theory of Legal Positivism.
The reader must not fret upon these hefty phrases as they will be discussed in coming
paragraphs. In furtherance of his “Legal Positivism” theory was his notion “Law as a
Command”. Owing to his works he has been saluted as “Father of English Jurisprudence”.

ANALYTICAL APPROACH TO JURISPRUDENCE

“Analysis” is breaking down a problem into smaller problems so they can be solved
individually. Analytical Approach in general parlance is a method through which a broad subject
is broken down into smaller topics and subtopics in order to solve problems conduct studies or
resolve uncertainties. In Austin’s Analytical Approach, his effort is to gain a precise and in-
depth understanding of Fundamental Concepts of legal reasoning. He chooses to exclude all
external influence or even history and completely indulges in gaining access to first principles of
law as it is, regardless of its “goodness” or “badness” or “moral worthiness”. This approach leads
to reading of “Law as it is” or “Positum” (and not the ideal law) also called “Positive Law”,
advocated by Austin in his Theory of Legal Positivism. From now, we have a fair idea of what
is Austin’s analytical approach which gives us the theory of legal positivism.13

Positive law is basically human-made law.  It includes statutes laid down by legislatures or rules
and regulations by the human institution. Black’s law dictionary defines positive law as “Law
actually and specifically enacted or adopted by proper authority for the government of an
organized society.” This is principally how Austin frames his notion of Law, which
fundamentally constitutes Positive Laws for him.

13
John D. Finch, Introduction to Legal Theory, Ed. 2nd, p 40.

18
LAW FOR AUSTIN

“Law is the aggregate of rules set by men as politically superior, or sovereign, to men

as politically subject.”

In other words, he says, laws are man-made rules by sovereign imposed upon the society it
governs. He equates a law to a “command” by a body which is politically higher.

Thus we have following essentials

 Sovereign, which makes a

 Command, which imposes a

 Duty, which IF NOT followed calls for

 Legal sanction.

“Sovereign”

According to Austin, every political set up has a sovereign power which is habitually obeyed by
the people in the society. There is only one sovereign in the society and it can be a single person
or a group. It is the sole source of power and creator of laws and thus there can be no legal limits
or “de jure” limits to its power. There can, however, be “de facto” or physical limits since the
extent of the coercive force of the commands and their obedience by people have practical limits.

A good example is a well-known quote of De Lolme- “British parliament can do anything but
make a woman a man and a man a woman.”14

The only boundaries of sovereign power are physical limits. If read into an existing situation, he
refers to statutes, legislated by the parliament or any parallel body, which has to be obeyed by
the people, regardless of how the statute is.

14
Austin : The Province of Jurisprudence Determined p 9

19
“Command”

His definition is also called “Command theory” or “Imperative theory” of law. “Imperative
Law is a rule which prescribes a general course of action imposed by an authority which enforces
it by superior power either by physical force or any other form of compulsion.”

“Duty”

The command levies a “legal duty” on those who are politically subject to the “commander”
who is sovereign. Every duty supposes a command by a sovereign by which it is created.

“Legal sanction”

It is implied in the theory that this sovereign has with itself a power to punish or penalize for
noncompliance of laws. This penalty or punishment imposed is called Legal Sanction. The dread
of legal sanction, as an evil consequence in case of disobeying, is the motivation behind one’s
adherence of law and thus is a requisite part.15

How does it help us out?

By keeping law aloof from all external factors, Analytical Jurisprudence takes for granted, the
history and development of the Legal system and concerns itself with basic concepts as the legal
system is. It spares the reader from redundant information which might cloud his judgement. It
lays down a systematic explanation of actual facts of law and purely law. The first job is to lay
down a scheme following which analysis is to be performed. Then the laws are broken down to
fragments, each of which is separately explained. By keeping them isolated from ethical
concerns, morality, and justice, an accurate meaning of the law is established.

The approach also helps in the establishment of the relationship between two or more concepts in
a more lucid and fundamental manner. This approach is often lauded for bringing precision,
15
http://www.legalserviceindia.com/legalanalytical-positivisim-

20
simplicity, and clarity in legal thinking. It gives clear, definite and scientific terminology. He
removed many false notions which had obscured the meaning of legal terms.16

He also made it very clear that the law is, after all, at the mercy of the all-powerful and
condescending state and not the god or religion or even morality.

Austin’s Contribution; Opening a New Era of

Approach

Every theory has its limitations. Moreover Austin laid down many of his propositions as deduced
from English law as it was during his time. The credit goes to Austin for opening an era of new
approach to law. Even the defects of his theory have been a source of further enlightenment on
the subject as Hart says, “But the demonstration of precisely where and why he is wrong has
proved to be constant source of illumination, for his errors are often the mis – statement of truths
of central importance for the understanding of law and society’. One of his great critics,
Olivercrona, also acknowledges him as the pioneer of the modern positivists approach to law.
Thus Austin made great contributions to jurisprudence.

16
https://blog.ipleaders.in/john-austins-analytical-approach-positive-law

21
KELSON’S PURE THEORY OF LAW

Hans Kelson (1881-1973)-

     Hans Kelson was Austrian Jurist. He was born at Prague in Austria in 1881 and was a
professor of law at the Vienna University. he was also the judge of the supreme constitutional
Court of Austria for 10 years during 1920 to 1930.  Thereafter he shifted to England he came to
the United States and work as a professor of law in several American Universities and authored
many books. He released the "Theory of law entitled "The General Theory of Law and State
1945. it drew the attention of the modern jurisprudents and came to be known as Kelson's Pure
Theory of Law. Kelson’s theory of law which is known as the pure theory of law implies that
law must remain free from Social Sciences like psychology, sociology or social history. Kelson’s
aim was to establish a science of law which will be pure in the sense that it will still strictly
eschew all metaphysical, ethical, moral, psychological and sociological elements. His aim goes
beyond establishing an autonomous legal science on positivistic empirical foundations, as he
constantly criticized the ideas of justice and the principles of natural law. He altogether excludes
all such factors from the study of law. Kelson defines law as an order of human behavior.

Kelsons Pure theory of Law:

 According to Kelson a theory of law should be uniform. It should be applicable to all times and
in all places.  According to him, Law must be free from ethics, politics, history, sociology etc in
other words, it must be pure.17

Pure theory is closed to some other theories: Kelson and Austin both are positivists. Hans
Kelson's Pure theory of law is a part of analytical positivism. Kelson explains his theory by the
method of analogy. It deals with the existing fact for example what law is and not as it ought to
be.

17
H. Kelsen, Introduction to the Problems of Legal Theory, p.1.

22
The theory of law must be distinguished from this law itself : Law itself consists of a mass of
heterogeneous of rules and the function of the theory of law is to relate them in a logical pattern
and to recognize them in single ordinarily unit.

Theory of Law should be uniform: According to Kelsen, a theory of law should be uniform. for
example - it should be applicable at all times and in all places.

Law is normative science: According to Kelson law is a normative science and it is not a natural
science based on cause and effect like law of gravitation.

Theory of Law must be pure: According to Kelson's pure theory of law, it must be free from
Ethics, Morality, Politics Sociology, History etc it must be pure.

SALIENT FEATURES OF PURE THEORY OF LAW

1) Reduce chaos and multiplicity to unity- The aim of the Pure theory is to reduce chaos and
multiplicity.

(2) Legal theory as a science of what law is, not what ought to be - Pure theory of law deals
with the knowledge of what law is, and it is not concerned about what law ought to be. 18

(3) Law as normative science - Theory considered as a normative science and not a natural

science.

(4) It is formal theory confined to a particular system of positive law as actually in operation.

(5) The relation of legal theory to a particular system of positive law is that of possible to actual
law.

18
H. Kelsen, Pure Theory of Law (1967), p.1

23
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 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.

24
 BIBLIOGRAPHY

 Jurisprudence and Legal Theory, 5th edition by VD Mahajan.

 Jurisprudence and Legal Theory, Ed. 6th (2011), by Pranjape N.V.
 V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book
Company.
 W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian
Edition).
  Jurisprudence Indian Leg

25