ANALYTICAL SCHOOL

Exponents

1- Jeremy Bentham
2- HLA Hart

The basic idea of analytical school of jurisprudence is to deal with law, existing
in its present form. It is also called Austinian school as its methodology was set
up by John Austin. Analytical school believes that law is the direction of the
Sovereign. That is why Analytical school is also termed as imperative school.
Analytical school is also termed as positive school of jurisprudence because it is
based on positivism. It is a step away from a priori approach. Analytical school
gained prominence in the nineteenth century. It says morals are not objective;
law needs to be objective, if we add morals to the definition of law, and law
won’t be objective anymore. Austin is known as the father of the Analytical
school of jurisprudence.

Background

Upto the beginning of the eighteenth century the the natural law school
predominated the juristic thought. In the opinion of few writers, the principles
of natural law were held to be supreme and they could override man made laws.
Natural law was derived from justice, reason, utility, nature, supernatural
source. The analytical school was basically the reaction against the assumptions
of natural law.

Exponents of analytical school

The famous exponents of analytical school of jurisprudence are  bentham,

austin, salmond, grey, kelsen, hart, hoffield and holland.

Bentham(1748-1832)
Jeremy is known as the founder of analytical school of jurisprudence. He wrote
a book a called ‘The Limits of Jurisprudence Defined’ in 1782 which got
published in 1985.he was against the judges made law. The making of law
should not be in the hands of judges. The law should only be made by the
legislature and the legislature should possess the absolute power of making the
laws. The law should be based on pain and pleasure. When the state makes laws
it must consider the happiness of the citizens i.e. the law should provide the
happiness to the citizens and alleviate their pain. The goal of the law should be
that whether that law contains equality, security, subsistence and it is abundant
or not i.e. the aim of the law should the above four principles. Jeremy bentham
basically supports the codification of laws. He rejected the natural laws. The
law which is being made by the state or the rights provided by the state has
value natural laws doesn’t exist according to Jeremy bentham.

Jeremy Bentham (1748-1832):

Bentham started 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 prepositions are mere paraphrasing of Bentham’s theory. Bentham’s classic
work reveals that he should be considered the father of analytical positivism and
not John Austin as it is commonly believed. And Bentham was the son of
wealthy London attorney. His genes were of the 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 the 19th century have sketched
Bentham’s ideas about individualism, law and legal reforms which have
affected the growth of English law in a positive direction. Bentham in his book
‘An introduction to the principle of Moral and Legislation’, he was moved to
ask questions about the penal and civil code. It was published for the first time
in 1995 as ‘The limits of Jurisprudence defined’.

A revised edition was published in-laws under the editorship of Prof. Hart
Bentham who was a tireless campaign of reform and insisted that prior to
reform there has to be a classification of law as it is. He advocated that there
should be no reform in substantive law without reforming its structure through a
process of analysis. Like Austin’s theory, Bentham advocated an imperative
theory of law in which the key concepts are “sovereignty and command”. On
one hand, Austin’s sovereign is assumed as an unlimitable or indivisible entity
but Bentham’s sovereign is not like that and he accepts the divided and partial
sovereignty with some legal restrictions imposed on him.

Bentham theory is called “Utilitarian Individualism”.

Bentham defined law as ‘an assemblage of signs, declarative of violation
conceived or adopted by a sovereign in a state which means that law is an
expression of the will of the sovereign in a state.’ He believed that every law
may be considered in the light of eight different as:
• Source- law is the will of the sovereign.
• Subject- person or thing.
• Object- act, situation, forbearance.
• Extent- law covers a portion of land on which act is done.
• Aspect- may be directive or sanctioned.
• Force- to produce the effect.
• Remedial state appendages- something attached with the state.
• Expression- of will.
So, the source of law is the will of the sovereign who may concede laws which
he personally issues as law or adopts previously issued laws by the former
sovereign.
Bentham was the supporters of individuals and believed that the function of law
is to make the individuals free from all the bondage and restrictions. He favored
the economic principle of “Laissez Faire” which means minimum interference
of the state in the economic activities of the individual. Once the individual is
free, they will be looking after their own welfare

The main function of Bentham’s theory:

Bentham desired to ensure the happiness of the community by attaining four
major goals:

1- To provide substance.
2- To produce fullness (abundance)
3- •To favour quality
4- • To maintain security.

CRITICISM AGAINST BENTHAM

The weakness of Bentham theory are as follows:

1. According to Friedman; Bentham’s theory mainly suffers from two
weaknesses:
• Bentham mingled materialism with ideas.
• His theory fails to balance the individual interest with the interest of the
community.
2. The main concept of pleasure and pain is not the final test of the
adequacy of law or we can only say they’re not the ultimate goal of law
oflegislation

3. Bentham theory states that the interest of an unlimited number of

individuals shall be contributed to the interest of the community but in
practice, because of the inequality it is not possible.
 4. The concept of “Laissez Faire” which provides a complete framework
of freedom to the individuals and provide them the opportunities for
development was not completely right and even in the later time
‘legislation was used to restrict individuals in economic matters’.

Importance:
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.
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.
 2. HLA HART ON ANALYTICAL JURISPRUDENCE

H.L.A Hart’s Theory of Law: - Primary & Secondary Rules

Hart unlike his predecessors did tilt towards morality as being not an integral
part of law but at the same time he believed that morality had an influence on
law and he called this ‘the minimum content of natural law’. His famous works
include ‘The Concept of law’, ‘The Causation of law’ and ‘Law Liberty and
Morality’. Hart agrees in his book that law is an obligation, law makes certain
human conduct non optional or non obligatory. But he disagrees with law being
just a command as per Austin’s theory.

Jurisprudence is a name given to a certain type of investigation into law, an

investigation of an abstract, general and theoretical nature which seeks to lay
bare the essential principles of law and legal systems. The word ‘jurisprudence’
has been derived from a Latin word jurisprudentia which means ‘knowledge of
law’. ‘Juris’ means law and ‘prudentia’ means skill or knowledge. Thus,
jurisprudence signifies knowledge of law and its application.[1] Jurisprudence is
the study of fundamental legal principles. Different jurists have given different
definitions of the term jurisprudence as per follows:-

· According to Salmond jurisprudence is the ‘Science of the first principles of

the civil law’.

· According to Austin jurisprudence is the ‘Philosophy of positive law’etc.

Professor Herbert Lionel Adolphus Hart (H.L.A.Hart) is an influential legal

professor. Hart revolutionized the methods of jurisprudence and the philosophy
of law.

1) He authored ‘The Concept of Law’ and made major contributions to

political philosophy.
 2) He is regarded as the leading contemporary representative of British
positivism. From his book it shows that he is a linguistic, philosopher,
barrister and a jurist.
3) To Hart, law is system of rules. According to him: “Where there is law,
the human conduct non-optional or obligatory.” Thus idea of obligation is
at the core of a Rule. Rules of obligation are supported by great social
pressures because they are felt necessary to maintain the society. To Hart,
concept of law is equivalent to the legal system. Hart mentioned that rules
of law fall into different logical categories that have distinct legal and
social functions. He distinguished primary rules from secondary rules or
duty imposing rules from power conferring rule.
4) Primary rules are rules meant to guide the conduct of the individuals and
other legal persons and secondary rules are rules about how primary rules
are to be created and recognized. The example of duty imposing rules are
rules of Income Tax Act, Wealth tax Act, etc. which requires that taxes
must be paid. The examples of power conferring rules are power to enter
into a contract, make will etc. These may be used or ignored.

Concept of “Rule”

1) Law can be analysed in terms of rules which is largely based on Hart’s

theory of law. According to him, rules are concerned not with what
happens but with what is to be done.
2) Rules are imperative or prescriptive rather than indicative or descriptive.
Rules have a certain independence or self-legitimating character. Rules
are different from commands. Commands normally call for one unique
performance whereas rules have a general application and demands
repeated activity. In some cases rules are constitutive and define the
activity in a question like rules of a game while in others they regulate
activities which would take place in any case whether the rules existed or
not like rules of grammar, of morals and of law. Rules of game, club, and
societies share the feature of rule of law in so far as these are of formal
nature, are open to amendment by bodies authorized for this purpose, and
some sort of adjudicating process is also found when there is any
difficulty as to meaning or the application of these rules. As against these
rules of morality or law are not amenable to legislative alteration and are
not resolvable by adjudication.[ Legal and moral rules both are invitum.
 Obedience to them is non-optional. Rules of game and club apply only
within limited context, to players during the game. Law and morals are
concerned with much broader aspects of life. Rules of games are not
compulsory; withdrawal and resignation are permanent possibilities. In
case of morals, there is no such choice and this is largely true of law also.
Thus according to Hart, ‘Law consists of rules which are of broad
application and non-optional character, but which are at the same time
amenable to formalization, legislation and adjudication.’[8]

Kinds Of Rules

Rules are of two kinds:-

· Primary Rules

· Secondary Rules

Primary rules regulate the behavior of man in the society. These rules either
grant rights or impose obligations on the members of the society.[9]

Example:- Rules of criminal law forbidding murder, robbery, rash driving are
primary rules, tort rules, the individual right to freedom of speech ,the
provisions of contracts that define the primary obligations of the parties, the
environmental law rule that forbids discharge of toxic substances in rivers and
streams etc.[10]

Secondary rules are those that stipulate how and by whom the primary rules
may be formed, recognized modified or extinguished.[11]

Example: - Contract law rules that enable parties to form contracts, the rules
that allow testators to create a will, the constitutional rules that confer
legislative powers on Congress, the statute that authorizes the Supreme Court to
promulgate rules of practice and procedure for the federal courts.[12]
Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell
you what your are legally obligated to do (or refrain from) and what
consequences attach to obedience or disobedience. Thus, the criminal law rules
that prohibit theft, forbid certain conduct and provide for penalties for violating
the prohibition. Technically, the class of secondary rules includes everything
except primary rules. For example, secondary rules are legal rules that allow for
the creation, extinction, and alteration of secondary rules; secondary rules are
power-conferring rules. Thus, contract law empowers individuals and firms to
make contracts; contracts themselves are usually collections of primary rules.
More precisely, primary rules are rules that govern conduct, and secondary rules
are rules that do not. Thus, the distinction between primary and secondary rules
is just a bit different than the difference between duty-imposing and power-
conferring rules: duty-imposing rules impose duties, whereas power-conferring
rules confer power. This leaves open the possibility that some rules can regulate
other rules, but do so by imposing duties. For example, a secondary rule might
impose a duty to legislate in a certain way or a prohibition on certain kinds of
rule creation. One of the really nifty things about Hart's introduction of the
distinction between primary and secondary rules was his account as to why
secondary rules are important. We can certainly imagine a system in which
there were primary rules, but no secondary rules. This would be a system of
customary law. Certain actions would be required; others would be taboo. But
there would be no mechanism by which the set of obligations could be changed.
Of course, customary law need not be completely static. It is possible that
customs might gradually change over time, but this process would require a
change in social norms. It could not be legislated. Secondary rules enable
relatively more rapid legal change at a lower cost. Moreover secondary rules
enable individuals to create customized primary rules that govern their private
relationships or privately owned resources.

Difference In Gist

· Under primary rules, human beings are required to do or abstain from certain
actions; secondary rules are in a sense parasitic upon or secondary to the first.

· The primary rules bind people whether they like or not, wish or not; secondary
rules bestow facilities upon them for realizing their wishes.
· Primary rules are essential for social life whereas secondary rules are
necessary for the development of a legal system.

Conclusion & Criticism Made On The Rule Theory

The view of Lord Lloyd is that Hart’s description of a developed legal system in
terms of a union of primary and secondary rules is undoubtedly of value as a
tool of analysis of much that has puzzled both the jurists and the political
theorists. Professor Hart himself seems to recognize that his legal system is not
necessarily as comprehensive as he appears to indicate since he suggests that
there are other elements in a legal system, and in particular the “open texture”
of legal rules as well as the relationship of law to morality and justice. Lord
Lloyd asks the question whether it is possible to reduce to reduce all the rules of
the legal system to rules which impose duties and to rules which confer powers.
This is an over-simplification of a point. It can be said that many of the so
called rules of recognition do not so much confer power but specify criteria
which are to be applied in particular cases, such as the rules of procedure and
evidence. It is doubtful whether all the so-called secondary rules can properly
be treated as a unified class. Professor Hart concedes that a full detailed
taxonomy of the varieties of law still remains to be accomplished.

According to Hart, the rule of recognition is a secondary rule, but the view of
Prof. Dias is that it looks more like the acceptance of a special kind of rule than
a power. Hart’s concept is based on the distinction between rules creating duties
and rules creating powers on a legal system is constituted by their union, but the
view of Dias is that it is questionable whether such a sharp distinction can be
drawn. The same rule can create a power plus a duty to exercise it, or a power
plus a duty not to exercise it.

According to Dias, Hart’s avowed positivism in relation to his concept of law is

open to criticism. Hart says that the acceptance of a rule of recognition rests on
social facts, but he does not concern himself with the reasons why, or the
circumstances in which, it comes to be accepted. Social and moral
considerations may set limits on a rule of recognition at the time of acceptance.