Amity law school

Amity University Uttar Pradesh

Subject:Jurisprudence
The topic of Assignment:
Analytical school of Jurisprudence,
Historical school of Jurisprudence

Submitted to :
Dr. Sakshi Parashar
Submitted By:
Manish
LL.B
Enrollment No: A032134721158
Batch: 2021-26
 Analytical school of jurisprudence

Introduction

The analytical school of Jurisprudence is often referred to as the ‘Austenian School’ or

‘Positivist School’. It is referred to as the positivist school because the exponents of the
analytical school of jurisprudence are not concerned with the past or the future of law, but are
only concerned with the law as it exists. It is popularly known as Austenian School because
John Austin was the founder of this school. There are five schools of jurisprudence, but this
article would be elucidating the analytical school of jurisprudence.

Jurisprudence

In order to understand the Analytical School of Jurisprudence, we must first make an attempt
to understand what is meant by the term ‘jurisprudence’. The word ‘Jurisprudence’ is derived
from ‘Juris Prudential. It is a Latin term that means science, study or knowledge of law.
Austin defined jurisprudence as the philosophy of positive law. Austin pointed out that
science of law means the law as it is and not as it ought to be. The meaning of jurisprudence
has been changing over time and has been stirring controversy amongst some scholars.
Irrespective of how one chooses to define it, one can understand it to mean the study of the
science of law.

Purpose of Analytical School of Jurisprudence

The key idea behind the analytical school is to deal with the law as it is, i.e., the way it is
existing in its present form. In the Analytical school, the law is regarded as the direction of
the Sovereign. This school differs from the a priori approach. Analytical School tries to
examine and study the principles of law as they truly exist in the legal system. The Analytical
School of Jurisprudence believes that law originates from the state and makes an attempt to
define the relation of law with the state.

History of Analytical School of Jurisprudence

Natural Law refers to the rules and principles which are supposed to have originated from
some supreme source. Natural law is simply discovered by human beings; therefore, it must
not be regarded as man-made. Natural Law is considered to be eternal and is believed to have
existed from the commencement of the creation of the world. Since the Natural School of
Jurisprudence was prominent till the beginning of the 18th century, some writers believed
that the principles of natural law should be held supreme and could override man-made laws.
Analytical school is considered to be a reaction against the Natural school of jurisprudence.
Principles of Analytical School of Jurisprudence

The analytical school attempts to distinguish between law as it is and law as it ought to be.
Although Austin does not deny the success of moral factors in the creation of law, he
disregards morals in his theory. Analytical Jurists believe that law is the product of human
will. Therefore, the common approach is that law is made by ‘someone’. Analytical jurists
have a rigid opinion against ethics. Analytical jurists only focus on the positive law. They are
concerned only with what is the pure fact of law.

Jeremy Bentham

Jeremy Bentham divided jurisprudence into expository and censorial jurisprudence. The
former is concerned with law, it gives no regard to the law’s moral or immoral character. On
the contrary, the latter deals with the science of legislation. In 1782, he authored a book
called ‘The Limits of Jurisprudence Defined’ which was published in 1985. In his view, the
law must not be made by the judges. He was a rigid opponent of the concept of laws being
made by judges. He was a staunch advocate of law solely being made by the legislature. He
said that only the legislature must possess the absolute power of making the laws. In his
book, Bentham stated that the duty lay upon the state to provide utmost happiness along with
maximum liberty. To put it another way, it is necessary to test all laws and examine if they
are providing maximum happiness and liberty. This brings us to the principle of utility. It lays
emphasis on the Greatest Happiness of the Greatest Number.

Jeremy Bentham’s Principle of Utility gives rise to the concept of pain and pleasure.
Utilitarianism is also known as the ‘Theory of Pain and Pleasure’ and ‘The Doctrine of
Hedonism’. This principle recognizes the role of pain and pleasure in the life of humans.
While the pain could be understood to mean ‘all things that are bad or evil’, Pleasure simply
denotes ‘everything that is good. In order to measure pain, he came up with a ‘utilitarian
calculus’. The utilitarian calculus gave 7 factors to calculate pain. The 7 factors include
intention, duration, certainty, nearness, fecundity, purity, and extent.

According to Bentham, happiness was always constantly evolving, its importance was
impacted by the constant change in the social norms. According to Bentham, the happiness of
social order must be understood in the objective sense. It comprises satisfaction of certain
needs. He said that if the goal is to ensure the happiness of the community, security for the
citizens, equality, subsistence, and abundance must be ensured.

Unlike the sociological school of jurisprudence, Jeremy Bentham was not an opponent of
Laissez-Faire. Laissez-Faire gives predominance to an individual’s interest over society’s
interest or the welfare of the state. Bentham propagated the freedom of human beings.
According to him, only when every single individual enjoys his freedom, he would be the
advocate or propagator of his own welfare. In consonance with Laissez-Faire, he meant men
must be free with minimal interference from the state in the economic activities of
individuals.

Freidman criticized Bentham’s theory by pointing out certain loopholes in it. He said that
amalgamated materialism and law. He also said that the theory fails to maintain equilibrium
between the interests of individuals and society. Another general criticism of his theory
would be that Laissez-Faire cannot be practiced in its entirety as some restrictions may be
necessary.

John Austin

John Austin was a British legal philosopher and reformer. He came up with the first
systematic alternative to utilitarian approaches to law and natural law theories. John Austin,
for the very first time, regarded jurisprudence as the science of law in connection with the
analysis of legal concepts, their exposition, examination, and comparison in a scientific
manner in order to determine their scope and extent in a given politically organized society.
The definition of law elucidated in his work, ‘The Province of Jurisprudence Determined’,
put emphasis on a law to be a species of command that tends to separate positive law from
morality.

John Austin divided the law into positive law and positive morality. While he referred to the
former as ‘laws properly so called, he said that the latter are mere ‘laws improperly so-called.
He said that a law is a positive law when it comprises of primarily 3 elements. Those 3
elements are sanction, command, and duty. The most suitable example of such a law would
be the laws made by the parliament, as there lies a sanction, that is followed by a command
and it becomes the citizen’s duty to abide by or follow it. Austin strictly disregarded customs
to be laws. Since failure to abide by the law is usually followed by some kind of punishment
or fine, people tend to abide by it.

He believed that an attempt must be made to analyze positive law by applying logic instead
of merely relying on its ethical significance. John Austin disregarded social factors, he
focused on logic. He pointed out that positive law comprises both explicit and implicit orders
from superiority. The law is a reflection of the sovereign’s wishes and its foundation lies
upon the sovereign’s authority. The law is considered in the abstract form by outriding
morals and ethics so that it does not hinder the application of the law.

Austin was of the opinion that laws are some kinds of rules that establish and help
differentiate right from wrong. In Austin’s words, “Law is a rule laid down for the guidance
of an intelligent being by an intelligent being having power over him.” In simple words, it is
the political superior who gets to lay down these rules and the common people who are
politically inferior to him need to follow those rules. His theory regarded law as the command
of the sovereign. Therefore, a rule not given by the sovereign i.e., not commanded and
sanctioned by the sovereign will not be referred to as ‘law’.
The main loophole in Austin’s theory was that he disregarded customs with respect to law.
Customs form an integral part of human life therefore ignoring customs, which at times, even
regulates a human’s conduct and mannerism, would not be entirely right. This brings us to
the next drawback i.e., the relation between law and morality. It is a general opinion that
morals and laws are interconnected as morals provide substance or strength to law.

The next issue with his theory would be in its applicability. In terms of its applicability, it is
quite restrictive. It can be said that it will only be applicable to a unitary polity that finds its
basis in parliamentary sovereignty. Therefore, in a country like India that upholds
constitutional sovereignty, this theory would not be of much use. Lastly, just like Bentham,
Austin does not recognize the judiciary as a law-making agency and neglected the way the
judiciary applied precedents.

Hans Kelson

Hans Kelson was an Austrian jurist and philosopher. He supported the Analytical school of
jurisprudence. He propounded the pure theory of law. He said that the law must be free from social
sciences. The main aim of this theory was to reduce chaos and multiplicity and to bring unity. Kelson
regarded law as an order of human behavior. Kelson did not deny the value of social sciences. His
only intention was to make the law free from all additional non-legal factors. In Kelson’s view, there
lies no difference between law and state, they are the same. Hence, no distinction between public and
private law.

Kelson was of the view that a dynamic system is one where new norms derive authority from basic
norms. It is a downwards to upwards system of norms that ends at basic norm/grundnorm. An Act is
deemed to be valid since it derives its validity from a legislative body. The legislative body derives its
authority from the constitution. The constitution is the basic norm which is a result of various
conditions like socio-economic, political, etc, and is valid per se. This theory regards law as a
normative science.

Critics of his theory have argued that it has no sociological foundation and regarded it to be an
impractical theory based on hypothetical considerations. It is also believed that it would not be
desirable to free law from politics and ideologies. This theory doesn’t recognize justice as an
important element of law which is indeed not true. He wanted legal knowledge to be free from foreign
elements. He refused to separate law from state and argued that law is nothing but a will of the state.
He made an attempt to form an autonomous legal science on positivistic empirical foundations. Some
jurists disregarded his grundnorm concept.

Conclusion

It can be safely said that positivism forms the crux of the Analytical School of Jurisprudence.
This school lays emphasis on legislation as the source of law. It made an attempt to bring
about precision in legal thinking
 Historical School of Jurisprudence

Introduction:

common parlance, the word jurisprudence avowed to be the ‘knowledge of the law’ qua it
was derived from the Latin word ‘Jurisprudential. But it has a broader connotation at times,
as it must be considered beyond a mere knowledge of the law. It is a science, which
endeavors to ascertain the underlying principles that crystallized the law and can bring in the
coherent system, which is being in existence as a subservient fixed principle of justice. In a
nutshell, jurisprudence is the theory of law that comprises precedents as well. Thus, it
reflexes the fait accompli rationale for the origin of legal concepts.

As being a complex notion, the law elicits people to have diversified views and definitions of
it. For instance, Savigny, the father of the historical school of jurisprudence, considered that
the peculiar legal system is the mirror-symmetrical of people’s conscience and propounded
the folksiest concept. On the other hand, John Austin, father of the analytical or positive
school, opined that the sovereign commands embedded with sanctions are the law. Some
consider law as rightness (Ethics) of will and can never be imposed by external legislation.
Per contra, others described the law as a science of the totality of rules for which external
legislation is possible (Nomology).

However, these many conceptions will not leave it as a vague and undefined concept since
the same is perceptual in nature. In the long run, the notion that the majority of society
approves will form a principle. Comprehensibly, jurisprudence is the body of principles
accepted by the majority of the population. The philosophy of law or theory of law does not
study the characteristics of law in a particular country but studies law; in general, that is,
those attributions are common to all legal systems.

Concerning the historical school of jurisprudence, it emerged as an adverse response to both

the natural school of law and analytical legal positivism. In the words of Prof. Dias, its
reaction against the natural law theories can be the basis of several important principles of
historical jurisprudence. The collective belief, which the eminent thinkers of this school
purported are, that the law is found and not made.

Brief about the historical school of jurisprudence:

This school believes that the emergence of law is from the evolution of social practices,
intrinsically linked with customs, moral principles, spiritual codes, economic interests, and
Rules of etiquette. It argues that law is the fruitful outcome of the evolutionary process that
society has gone through ever since its origin and not just exists as an upshot of royal
command or command of the sovereign in a trice. Here is the subject that controverts the
notion of the natural school of law, which argues that law originated from the command of
supreme power and has some divine references. Since being the product of the past, it
resulted in historical progression and developments. “The Historical school of Jurisprudence
manifests the belief that like men has past so does the law[1].”

This school of jurisprudence further holds that the law is based on the collective conscience
of mankind since the societal outset and rests upon the notion of laws are the established
facts.

It counted the idea of manmade laws by agreeing on the fact that the law is dynamic, not
static, and evolves overtimes in accordance with the societal changes and needs. They
substantiate it with the principle of ‘Formulation of the law is for the people and by the
people. Salmond considers the historical school as, “That branch of legal philosophy which is
termed historical jurisprudence is the general portion of legal history.

This school is also known as the continental school of jurisprudence, as it relies on the
customs and beliefs of the people that vary over time but not on the commands of judges or
any other superior powers.

The historical school of jurisprudence wholly rejected the definition of law propounded by
analytical jurists. For instance, Austin and Bentham opined, ‘a law may be resolved into a
general command, one emanating from a sovereign or lawgivers and imposing an obligation
upon citizens, which obligation is enforced by a sanction or penalty, threatened in the case of
disobedience’. The aforesaid definition was rejected as untrue, unsatisfactory, and not
applicable or impracticable.

Montesquieu,

Charles-Louis de Secondat, baron de La Brède et de Montesquieu is the 1st jurist who

endorsed the historical school approach in understanding the concept of law, said Sir Henry
Maine. Montesquieu was a French judge, philosopher, politician and intellectual, who
researched and construed laws of various societies and concluded that the ‘law is the creation
of the climate, local situation, accident or imposture’. Hence, there is no point in arguing
whether or not the law is good since it depends on the social milieu.

He further alluded that the law should be dynamic as, like society, it changes in accordance
with the needs and demands of the civilization. However, he did not go further in explaining
his perception of law and society or historical school by establishing a detailed theory. He
prescribed that the law should be capable of meeting the demands of hoi polloi. Indeed, he
suggested the same in his book ‘The Spirit of laws’.
Savigny,

Friedrich Karl von Savigny, a German jurist, and historian, is considered to be the father of
the historical school of jurisprudence. He was pointing to the ideas of natural and positive
laws and rejected the same. He believed that the law is not universal as it varies with the time,
place, and conscience of the people, thus, it cannot be employed abruptly.

Key perceptions of Savigny,

• Law is sui generis.

• Law develops with people’s life and conscience not made or invented.
• Law is relatable to language, which bears its own country’s customs and
cultures, hence cannot be applied universally.
• Law grows with nations and dies with its dissolution.
• Law is found as a societal principle nevertheless later, developed by jurists.

What is a law according to Savigny?, “ it is a product of times the germ of which like the
germ of State, exists in the nature of men as being made for society and which develops from
this germ various forms, according to the environing the influences which play upon
it.” Lucidly, the law is the outcome of the historical course, which has manifested the
customary laws. Thus, the law isn’t a product of enacted legislation but is a replica of the
national spirit. As mentioned, in Savigny’s opinion, the legal system is a reflection of the
national consciousness, he named it volkgeist.

Law as the product of ‘volkgeist’:

In common parlance, volkgeist is the collective consciousness of the people in a society.

Generally, a specific set of people always resembles a particular genre of culture, morals,
beliefs, and intellectual conscience as a community or nation, later such traits and customs of
society form the legal bedrock, depending on which the future legal decisions will be made.
Thus, the sense volkgeist becomes the part and source of law.

Savigny added that volkgeist is the outgrowth of the developing spirit of the national hood.
Thereby, he advised the legislators to think before opting for reforms since reforms are the
end of a national sense of continuity. Thus, according to him, the law is an integral part of the
nation, which is an organism that grows and dies with time.