UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

Analytical school of Jurisprudence

Submitted To Submitted By
Dr. V.P. Singh Manish Pathak
R230208033
B.A. LL.B. IIIrd Sem
 Analytical School of Jurisprudence

Introduction:
Jurisprudence (Latin jurisprudentia, from jus, “law,” and prudentia, “knowledge”),
knowledge of the law and its interpretation, or the science and philosophy of law. In
ancient Rome the term was used in the former sense. Those who were so skilled in the
law that they could decide a novel or doubtful case were called juris prudentes, whether
or not they were judges, and the body of law built up by their interpretation was called
juris prudentia. This development of law by interpretation is akin to what English-
speaking peoples call “case” law—law arising from a body of decided cases; in France
and Spain the term jurisprudence is still used in that sense.

The word jurisprudence is usually used to describe what was often called at an earlier
period the philosophy of law and what Continental writers now call the theory or science
of law. An English or U.S. treatise on jurisprudence defines the essential elements in our
conception of law; the relation that law bears to the cognate social sciences, politics,
ethics, and economics; the way in which law originates—in popular customs, judicial
usage, and legislation—and the way in which it ceases to exist—by desuetude, change of
usage, abrogation, or repeal; its application with reference to persons, time, and place;
and the way in which it is enforced. Jurisprudence formulates legal relations, rights, and
duties. It may undertake to classify law and to construct a system in which every rule of
law may find an appropriate place. It may also attempt to classify all the relations that the
law recognizes or creates and which it regulates or orders, that is, the relations of state
and government to individuals and groups, and of individuals and groups to each other. It
may even analyze the fundamental conceptions of the family, of property, and of
succession.

Schools of Jurisprudence

The principal modern schools of jurisprudence are the natural-law school, the analytical
school, the historical school, the comparative school, and the sociological school. The
first three differ mainly in their views of the nature and origin of law and its relation to
ethics.

To the natural-law jurist, law is antecedent to the state; to the analytical jurist, it is the
creation of the state; and to the historical jurist, state and law are social products,
developing side by side, and each influencing the other. To the natural-law jurist, law is
cognizable by pure reason; to the analytical jurist, it is the command of the sovereign
power; to the historical jurist, it is the formulated wisdom of men and women. To the
natural-law jurist, law is applied ethics, and, in the extreme form of the theory, that which
is not right is not law. To the analytical jurist, a law that commands what is ethically
wrong or forbids what is ethically right is no less a law if it proceeds from the political
sovereign. The historical jurist accepts this position taken by the analytical school, but
points out that it is difficult for a lawmaker to act otherwise than in accord with the
contemporary sense of right, and that laws which run counter to that sense are not likely
to be enforced. Historical jurisprudence differs from analytical jurisprudence chiefly in
emphasizing the great part played by social custom in developing and establishing law.
To the analytical jurist, customary law, including judicial custom, is an anomaly that
should be abolished by covering the whole field of social relations with written codes.

Analytical School of Jurisprudence

Analytical jurisprudence is a legal theory that draws on the resources of modern

analytical philosophy to try to understand the nature of law. Since the boundaries of
analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L.
A. Hart was probably the most influential writer in the modern school of analytical
jurisprudence, though its history goes back at least to Jeremy Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal
reasoning is or can be modeled as a mechanical, algorithmic process). Indeed, it was the
analytical jurists who first pointed out that legal formalism is fundamentally mistaken as
a theory of law.

Analytic or 'clarificatory' jurisprudence uses a neutral point of view and descriptive

language when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law's fusing of what law is and what it ought to be.[15]
David Hume famously argued in A Treatise of Human Nature[1][16] that people
invariably slip between describing that the world is a certain way to saying therefore we
ought to conclude on a particular course of action. But as a matter of pure logic, one
cannot conclude that we ought to do something merely because something is the case. So
analyzing and clarifying the way the world is must be treated as a strictly separate
question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is
the law?"; "What is the relationship between law and power/sociology?” and, "What is
the relationship between law and morality?" Legal positivism is the dominant theory,
although there are a growing number of critics, who offer their own interpretations.

Analytic, or 'clarificatory' jurisprudence is using a neutral point of view and descriptive

language when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law's fusing of what law is and what it ought to be.
David Hume famously argued in A Treatise of Human Nature that people invariably slip
between describing that the world is a certain way to saying therefore we ought to
conclude on a particular course of action. But as a matter of pure logic, one cannot
conclude that we ought to do something merely because something is the case. So
analysing and clarifying the way the world is must be treated as a strictly separate
question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is
the law?"; "What is the relationship between law and power/sociology?"; and, "What is
the relationship between law and morality?" Legal positivism is the dominant theory,
although there are a growing number of critics, who offer their own interpretations.

Legal positivists

Main article: Legal positivism

Positivism simply means that the law is something that is "posited": laws are validly
made in accordance with socially accepted rules. The positivist view on law can be seen
to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or
any other normative end, but their success or failure in doing so does not determine their
validity. Provided a law is properly formed, in accordance with the rules recognized in
the society concerned, it is a valid law, regardless of whether it is just by some other
standard. Secondly, that law is nothing more than a set of rules to provide order and
governance of society. No legal positivist, however, argues that it follows that the law is
therefore to be obeyed, no matter what. This is seen as a separate question entirely.

 What the law is - is determined by social facts (or "sources')

 What obedience the law is owed - is determined by moral considerations.

Bentham and Austin

Bentham's utilitarian theories remained dominant in law till the twentieth century. One of
the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch
supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate
for democracy, and strongly atheist. Bentham's views about law and jurisprudence were
popularized by his student, John Austin. Austin was the first chair of law at the new
University of London from 1829. Austin's utilitarian answer to "what is law?" was that
law is "commands, backed by threat of sanctions, from a sovereign, to who people have a
habit of obedience". Contemporary legal positivists have long abandoned this view, and
have criticised its oversimplification, H.L.A. Hart particularly.

Hans Kelsen

Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most
influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and
basic legal norm, still retains some influence. It is a hypothetical norm on which all
subsequent levels of a legal system such as constitutional law and "simple" law are based.
Kelsen's pure theory of law described the law as being a set of social facts, which are
normatively binding too. Law's normativity, meaning that we must obey it, derives from
a basic rule which sits outside the law we can alter. It is a rule proscribing the validity of
all others.

Kelsen was a Professor at several universities in Europe, notably the University of

Vienna and the University of Cologne. In 1940, he moved to the United States, giving the
Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full
professor at the department of political science at the University of California, Berkeley
in 1945. During those years, he increasingly dealt with issues of international law and
international institutions such as the United Nations.

H. L. A. Hart

In the Anglophone world, the pivotal writer was H. L. A. Hart, who argued that the law
should be understood as a system of social rules. Hart rejected Kelsen's views that
sanctions were essential to law and that a normative social phenomenon, like law, can not
be grounded in non-normative social facts. Hart revived analytical jurisprudence as an
important theoretical debate in the twentieth century through his book The Concept of
Law As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of
rules'.

Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules
(rules addressed to officials to administer primary rules). Secondary rules are divided into
rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be
varied) and the rule of recognition (allowing laws to be identified as valid). The "rule of
recognition", a customary practice of the officials (especially judges) that identifies
certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil
MacCormick in 1981 (second edition due in 2007), which further refined and offered
some important criticisms that led MacCormick to develop his own theory (the best
example of which is his recently published Institutions of Law, 2007). Other important
critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz.

In recent years, debates about the nature of law have become increasingly fine-grained.
One important debate is within legal positivism. One school is sometimes called
exclusive legal positivism, and it is associated with the view that the legal validity of a
norm can never depend on its moral correctness. A second school is labeled inclusive
legal positivism, a major proponent of which is Wil Waluchow, and it is associated with
the view that moral considerations may determine the legal validity of a norm, but that it
is not necessary that this is the case.

Joseph Raz

Some philosophers used to contend that positivism was the theory that there is "no
necessary connection" between law and morality; but influential contemporary
positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As
Raz points out, it is a necessary truth that there are vices that a legal system cannot
possibly have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but criticized Hart's "soft social thesis"
approach in The Authority of Law Raz argues that law is authority, identifiable purely
through social sources, without reference to moral reasoning. Any categorization of rules
beyond their role as authoritative is best left to sociology, rather than jurisprudence.

Analytical Jurisprudence, according to John Austin

The "science of law," as the expression is generally used, means the examination of laws
in general in one or other of the ways just indicated. It means an investigation of laws
which exist or have existed in some given society in fact—in other words, positive, laws ;
and it means an examination not limited to the exposition of particular systems.
Analytical jurisprudence is in England associated chiefly with the name of JOHN
AUSTIN (q.v.), whose Province of Jurisprudence Determined systematized and
completed the work begun in England by Hobbes, and continued at a later date and from
a different point of view by Bentham. The best view of the subject will be obtained by
taking Austin’s principal positions in outline, and considering the criticism which later
jurists have bestowed upon them.

Austin’s first position is to distinguish between laws properly so called and laws
improperly so called. In any of the older writers on law, we find the various senses in
which the word is used grouped together as variations of one common meaning. Thus
Blackstone advances to his proper subject, municipal laws, through (1) the laws of
inanimate matter, (2) the laws of animal nutrition, digestion, &c., (3) the laws of nature,
which are rules imposed by God on men and discoverable reason alone, and (4) the
revealed or Divine law, which is part of the law of nature directly expounded by God. All
of these are connected by this common element that they are "rules of action dictated by
some superior being." And some such generalization as this is to be found at the basis of
most treatises on jurisprudence which have not been composed under the influence of the
analytical school. Austin disposes of it by the distinction that some of those laws are
commands, while others are not commands. The so-called laws of nature are not
commands; they are uniformities which resemble commands only in so far as they may
be supposed to have been ordered by some intelligent being. But they are not commands
in the only proper sense of that word,--they are not addressed to reasonable beings, who
may not will obedience to them. Laws of nature are not addressed to anybody, and there
is no possible question of obedience or disobedience to them. Austin accordingly
pronounces them laws improperly so called, and confines his attention to laws properly
so called, which are commands addressed by a human superior to a human inferior.

This distinction seems to simple and obvious that the energy and even bitterness with
which Austin insists upon it now seems superfluous. But the indiscriminate identification
of everything to which common speech gives the name of a law was, and still is, a fruitful
source confusion. Blackstone’s statement that when God "put matter into motion He
established certain laws of motion, to which all movable matter must conform," and that
in those creatures that have neither the power to think nor to will such laws must be
invariably obeyed, so long as the creature itself subsits, for its existence existence
depends on that obedience, imputes to the law of gravitation in respect of both its origin
and its execution the equalities of an Act of Parliament. On the other hand the qualities of
the law of gravitation are imputed to certain legal principles which, under the name of
law of nature, are asserted to be binding all the over the globe, so that "no human laws
are of any validity if contrary to this." Nonsense like this so exasperated Austin that he
never fails to stigmatize the use of "natural laws" in the sense of scientific facts as
improper, or as metaphorical. A later writer has pointed out hat law in scientific sense has
acquired a position of its own, from which it is impossible to dislodge it, and which
involves none of the ambiguities and confusions against which Austin protested. It would
be as reasonable for the of science as for the jurist to set up his own conception of law as
the only legitimate one. There is perhaps only one field of inquiry where the two opposed
conceptions law are still to be found entangled. The "laws of political economy" still
hover in the minds of many between the jural and the scientific conception. Certain
economical principles appear to have acquired a double character, —that of scientific
generalizations, and that of rules which may be disobeyed. Measures are pronounced to
be a violation of the laws of political economy, with a vague implication that these being
laws of nature any violation of them must be particularly heinous. Having eliminated
metaphorical or figurative laws, we restrict ourselves to those laws which are commands.
This word is the key to the analysis of law, and accordingly a large portin of Austin’s
work is occupied with the determination of its meaning. A command is an order issued by
a superior to an inferior. It is a signification of desire distinguished by this peculiarity that
"the party to whom it is directed is liable to evil from the other, in case he comply not
with the desire." "If you are able and willing to harm me in case I comply not with your
wish, the expression of your wish amounts to a command." Being liable to evil in case I
comply not with the wish which you signify, I am bound or obliged by it, or I lie under a
duty to obey it. The evil is called a sanction, and the command or duty is said to be
sanctioned by the chance of incurring the evil. The three terms command, duty, and
sanction are thus inseparably connected. As Austin expressed it in the language of formal
logic, "each of the three terms signifies the same notion, but each denotes a different part
of that notion, and connotes the residue."

All commands, however, are not laws. That term is reserved for commands which oblige
generally to the performance of acts of a class. A command to your servant to rise at such
an hour on such a morning is a particular command, but not a law or rule ; a command to
rise always at that hour is a law or rule. Of this distinction it is sufficient to say in the
meantime that it involves, when we come to deal with positive laws, the rejection of
particular enactments to which by inveterate usage the term law would certainly be
applied. On the other hand it is not, according to Austin, necessary that a true law should
bind persons as a class. Obligation imposed on the grantee of an office specially created
by parliament would imply a law ; a general order to go into mourning addressed to the
whole nation for a particular occasion would not be a law.

So far we have arrived at a definition of laws properly so called. Austin holds superiority
and inferiority to be necessarily implied in command, and such statements as that "laws
emanate from superiors" to be the merest tautology and trifling. Elsewhere he sums up
the characteristics of true laws as ascertained by the analysis thus : -- (1) laws, being
commands, emanate form a determinate source ; (2) ever sanction is an evil annexed to a
command ; and (3) every duty implies a command, and chiefly means obnoxiousness to
the evils annexed to commands.

Of true laws, those only are the subject of juris-prudence which are laws strictly so
called, or positive laws. Austin accordingly proceeds to distinguish positive from other
true laws, which are either laws set by God to men or laws set by men to men, not,
however, as political superiors nor in pursuance of a legal right. The discussion of the
first of these true but not positive leads Austin to his celebrated discussion of the
Utilitarian theory. The laws set by God are either revealed or unrevealed, i.e., either
expressed in direct command, or made known to men in one or other of the ways denoted
by such phrases as the "light of nature," natural reason," "dictates of nature," and so forth.
Austin maintains that the principle of general utility, based ultimately on the assumed
benevolence of God, is the true index to such of His commands as He has not chosen to
reveal. His exposition of the meaning of the principles is a most valuable contribution to
moral science, though he rests its claims ultimately on a basis which many of its
supporters would disavow. And the whole discussion is now generally condemned as
lying outside the proper scope of the treatise, although the reason for so condemning it is
not always correctly stated. It is found in such assumptions of fact as that there is a God,
the He issued commands to men in what Austin calls the "truths of revelation," that He
designs the happiness of all His creatures, that there is a predominance of good in the
order of the world—which do not now command universal assent. It is impossible to
place these propositions on the same scientific footing as the assumption of fact with
reference to human society on which jurisprudence rest. If the "Divine laws" were facts
like Acts of Parliament, it is conceived that the discussion of their characteristics would
not be out of place in a scheme of jurisprudence.

The second set of laws properly so called, which are not positive laws, consists of three
classes :—(1) those which are set by men living in a state of nature ; (2) those which are
set by sovereigns but not as political superiors, e.g., when one sovereign commands
another to act to a principle of international law ; and (3) those set by subjects but not in
pursuance of legal rights. And (3) those set by subjects but not in pursuance of legal
rights. This group, to which Austin gives the name of positive morality, helps to explain
his conception of positive law. Men are living in a state of nature, or a state of anarchy,
when they are not living in a state of government or as members of a political society.
"Political society’ thus becomes the central fact of the theory, and some of the objections
that have been urged against it arise from its being applied to conditions of life in which
Austin would not have admitted the existence of a political society. Again, the third set in
the group is intimately connected with positive laws on the one hand and rules of positive
morality which are not even laws properly so called on the other. Thus laws set by
subjects in consequence of a legal right are clothed with legal sanctions, and are laws
positive. A law set by guardian to ward, in pursuance of a right which the guardian is
bound to exercise, is a positive law pure and simple; a law set by master to slave, in
pursuance of a legal; right which he is not bound to exercise, is, in Austin’s phraseology,
to be regarded both as a positive moral rule and as a positive law. (FOOTNOTE 356-1)
On the other hand the rules set by a club or society, and enforced upon its members by
exclusion from the society, but not in pursuance of any legal right, are laws, but not
positive laws. They are imperative and proceed from a determinate source, but they have
no legal or political sanction. Closely connected with this positive morality, consisting of
true but not positive laws, is the positive morality whose rules are not laws properly so
called at all, though they are generally denominated laws. Such are the laws of honour,
the laws of fashion, and, most important of all, international law.

Nowhere does Austins’ phraseology come more bluntly into conflict with common usage
than in pronouncing the law of nations (which in substance is a compact body of well-
defined rules resembling nothing so much as the ordinary rules of law) to be not laws at
all, even in the wider sense of the term. That the rules of a private club should be law
properly so called, while the whole mass of international jurisprudence is mere opinion,
shocks our sense of the proprieties of expression. Yet no man was more careful than
Austin to observe these properties. He recognizes fully the futility of definitions which
involve a painful struggle with the current of ordinary speech. But in the present instance
the apparent paralogism cannot be avoided if we accept the limitation of laws properly so
called to commands proceeding from a determinate source. And that limitations is so
generally present in our conception of law that to ignore it would be a worse anomaly
than this. No one finds fault with the statement that the so-called code of honour or the
dictates of fashion are not, properly speaking, laws. We repel the same statement applied
to the law of nature, because it resembles in so many of its most striking features—in the
certainty of a large portion of it, in its terminology, in its substantial principles—the most
universal elements of actual systems of law, and because, moreover, the assumption that
brought it into existence was nothing else than this, that it consisted of those abiding
portions of legal systems which prevail everywhere by their own authority. But, though
"positive morality" may not be the best phrase to describe such a code of rules, the
distinction insisted on by Austin is unimpeachable.
The elimination of those laws properly and improperly so called which are not positive
laws brings us to the definition of positive law, which is the keystone of the system.
Every positive law is "set by a sovereign person, or sovereign body of persons, to a
member or members of the independent political society wherein that person or body is
sovereign or superior." Though possibly sprung directly from another source, it is a
positive law, by the institution of that present sovereign in the character of a political
superior. The question is as to the historical origin of the principle, but as to its present
authority. "The legislator is he, not by whose authority the law was first made, but by
whose authority it continues to be law." This definition involves the analysis of the
connected expressions sovereignty, subjection, and independent political society, and of
determinate body,—which last analysis Austin performs in connexion with that of
commands. These are all excellent examples of the logical method pf which he was so
great a master. The broad results alone need be noticed here. In order that a given society
may form a society political and independent, the generality or bulk of its members must
be in a habit of obedience to a certain and common superior ; whilst that certain person or
body of persons must be habitually obedient to a certain person or body. All the italicized
words point to circumstances under which it might be difficult to say whether a given
society is political and independent or not. Several of these Austin has discussed,—e.g.,
the state of things in which a political society yields obedience which may or may not be
called habitual to some external power, and the state of things in which a political society
is divided between contending claimants for sovereign power, and it is uncertain which
shall prevail, and over how much of the society. So long as that uncertainty remains we
have a state of anarchy. Further, an independent society to be political must not fall
below a number which can only be called considerable. Neither then in a state of anarchy,
nor in inconsiderable communities, nor among men living in a state of nature, have we
the proper phenomena of a political society. The last limitation goes some way to meet
the most serious criticism to which Austin’s system has been exposed, and it ought to be
stated in his own words. He supposes a society which may be styled independent, which
is considerable in numbers and which is in a savage or extremely barbarous condition. In
such a society, "the bulk of its members is not in the habit of obedience to one and the
same superior. For the purpose of attacking an external enemy, or for the purpose of
repelling an attack, the bulk of its members who are capable of bearing arms submits to
one leader or one body of leaders. But as soon as that emergency passes the transient
submision ceases, and the society reverts to the state which may be deemed its ordinary
state. The bulk of each of the families which compose the given society renders habitual
obedience to its own peculiar chief, but those domestic societies are themselves
independent societies, or are not united and compacted into one political society by
habitual and general obedience to one common superior, and there is no law (simply or
strictly so styled) which can be called the law of that society. The so-called laws which
are common to the bulk of the community are purely and properly customary laws—that
is to say, laws which are set or imposed by the general opinion of the community, but are
not enforced by legal or political sanctions." Such, he says, are the savage societies of
hunters and fishers in North America, and such were the Germans as described by
Tacitus. He takes no account of societies in an intermediate stage between this and the
condition which constitutes political society.

We need not follow the analysis is detail. Much ingenuity is displayed in grouping the
various kinds of government, in detecting the sovereign authority under the disguises
which it wears in the complicated State system of the Unites States or under the fictions
of English law, in elucidating the precise meaning of abstract political terms. Incidentally
the source of many celebrated fallacies in political thought is laid bare. That the question
who is sovereign in a given state is a question of fact and not of law or morals or religion,
that the sovereign is incapable of legal limitation, that law is such by the sovereign’s
command, that no real or assumed compact can limit his action—are positions which
Austin has been accused of enforcing with needles iteration. He has cleared them,
however, from the air of paradox with which they had been previously encumbered, and
his influence was in no direction more widely felt than in making them the
commonplaces of educated opinion in this generation.