SUBMITTED BY

SULAGNA MOHANTI-018
AAKANSH GUPTA-003
MD RIZWAN-004
ROHINI SEN-026
-
BBA.LLB. (HONS)
1ST SEMESTER
ACADEMIC YEAR-2022-2027
JURISPRUDENCE
SUBMITTED TO MR. ARINDAM SAHA

TOPIC : ANALYITCAL SCHOOL OF

JURISPRUDENCE
 ACKNOWLEDGEMENT

I want to thank our faculty, Mr. Arindam Saha, for giving us the chance to
complete this fantastic project on the subject of analytical school of
jurisprudence, through which we learned a great deal of new information.
Additionally, I want to thank Mr. Sanjay Kumar, the vice chancellor, and Mr. Atul
Chauhan, the chancellor, for their encouragement and support.
I want to express my gratitude to my group members for their efforts,
encouragement, and support during this endeavour. It would have been incredibly
challenging to finish our assignment without their assistance. I truly appreciate
him.

CONTRIBUTIONS

Aakansh - Bentham + Purpose of Analytical School + Acknowledge +

Statement of purpose
Rizwan- Austin + Positivism in law + Methodology + Bibliography
Sulagna- Harts + Function of Analytical School
Rohini- Kelson + Introduction + Conclusion + Research Objective
 STATEMENT OF PROBLEM

CRITICAL ANALYSIS OF ANALYTICAL SCHOOL OF JURISPRUDENCE,

ITS ORIGIN, FOUNDERS AND THEIR RESPECTIVE THEORIES ALONG
WITH THEIR CRTICISMS.

RESEARCH OBJECTIVE

Objective of this project is as follows:

1. To gain knowledge about the Analytical School
2. To know the purpose and function of Analytical School
3. To know the relationship between Analytical School and other Schools
4. To know about the application of Analytical School

RESEARCH METHODOLOGY
The project's research technique and design content describe the strategy used to
successfully address the problem statement and meet the specified research
objectives. All of the alternatives for the topic are explained in this project. It
also includes a focus on the possibilities that were deemed to be the most
suitable for the study topic and those that appeared likely to produce the best
results. Additionally, a description of the research's concept and the numerous
methods used are provided.
 INTRODUCTION

The study of the nature, function, and purpose of law is referred to as

jurisprudence. It examines legal concepts like justice, rights, and obligation as
well as the operation and development of legal systems. The law and its place in
society are examined from a variety of perspectives by various jurisprudential
schools. Five of the most significant schools of law are as follows:
SOCIOLOGICAL SCHOOL: This school of thought, known as sociological
jurisprudence, is concerned with the social environment in which laws are created
and upheld. It makes the case that legal frameworks ought to be viewed as the
result of social, economic, and cultural elements. Legal sociologists place a strong
emphasis on how the law shapes social structures and relationships.
ANALYTICAL SCHOOL: This school of thought examines the language and
organisation of legal writings in an effort to clarify and improve upon legal
principles. The concepts that underlie legal thinking and the logical coherence of
legal norms are of interest to analytical jurists.
HISTORICAL SCHOOL: The focus of this school of thinking is on how legal
systems have changed over time and their historical evolution. Legal historians
research how laws have changed over time and the social, economic, and political
conditions in which they were created.
PHILOSOPHICAL SCHOOL: This school of thought focuses on the
fundamental philosophical ideas—such as justice, rights, and morality—that
form the basis of legal systems. The goal of philosophical jurists is to comprehend
the essence of law and how it relates to more general philosophical issues.
REALIST SCHOOL: This school of thought emphasises the empirical and
practical dimensions of law, contending that social, economic, and political
variables influence how laws are formulated. Realist jurists are curious about how
laws are applied and how they are affected by things other than the written law.
These schools of jurisprudence provide different perspectives on the law and how
it functions in society. By studying these different schools of thought, we can gain
a deeper understanding of the nature of law and its relationship to broader social,
political, and philosophical issues.
In this project we are going to focus on ANALYTICAL SCHOOL of
JURISPRUDENCE.
PURPOSE OF ANALYTICAL SCHOOL OF JURISPRUDENCE

The purpose of Analytical jurisprudence is to examine the foundational

principles of law without regard to their historical origins, evolution, ethical
importance or validity. Another purpose is to gain an accurate and intimate
understanding of the fundamental working concepts of all legal reasoning.
According to Salmond, a book of analytical jurisprudence will deal with an
analysis of the concept of law, an examination of the relationship between civil
law and other forms of law, an analysis of the various constituent ideas of which
the complex idea of law is made up, such as State, sovereignty, and
administration of justice, an account of legal sources from which law proceeds,
as well as an investigation of the theory of legislation, and so on.

Thus, the analytical school of jurisprudence or also known as analytical

positivism is a legal theory that emphasizes the importance of logical reasoning
and analysis in the interpretation of legal texts and the development of legal
rules. The purpose of the analytical school is to provide a systematic and
objective approach to the study of law that is based on the principles of logic,
reason, and empirical evidence. The main goal of the analytical school of
jurisprudence is to understand the law as it exists, rather than to propose ideal or
moral principles for how the law should be. This school emphasizes the
importance of legal rules and precedents as the primary sources of law and
emphasizes the need for clear and consistent interpretation of legal texts.
Overall, the purpose of the analytical school of jurisprudence is to provide a
rigorous and objective framework for understanding and interpreting legal texts
and to promote the development of clear and consistent legal rules that can be
applied impartially to all individuals and situations.1

1
Analy'cal school of jurisprudence- Siddharth Gupta
Function of the Analytical school of Jurisprudence
The analytical school of jurisprudence is one of the major schools of thought in
legal philosophy that emerged in the 19th century. It emphasizes the importance
of logic, reason, and analysis in the study of law. Some of the functions of the
analytical school of jurisprudence include:

• Clarifying legal concepts: The analytical school focuses on analyzing legal

concepts and categories to determine their meaning and scope. By clarifying
these concepts, legal scholars can better understand and equitable.

• Developing legal reasoning: The analytical school emphasizes the use of

deductive reasoning to derive legal principles and rules from basic legal
concepts. This approach helps lawyers and judges to develop logical
arguments and make consistent decisions.

• Promoting legal certainty: The analytical school believes that the law should
be clear and predictable so that people can plan their actions accordingly. By
analyzing legal concepts and categories, the school helps to create a more
coherent and consistent legal system that promotes legal certainty.

• Facilitating cross-cultural dialogue: The analytical school's emphasis on logic

and reason has made it a popular approach to legal philosophy in many
different cultures and legal systems. By providing a common language and
analytical framework, the school has facilitated cross-cultural dialogue and
understanding in the study of law.

• Encouraging legal reform: The analytical school emphasizes the importance

of logical analysis in evaluating existing legal systems and identifying areas
for reform. By using reason and analysis to critique the law, legal scholars can
help to improve the legal system and make it more just and equitable.
SIGNIFICANCE OF ANALYTICAL SCHOOL OF
JURISPRUDENCE

Analytical Jurisprudence’s significance stems from the fact that it provided

clarity to legal reasoning. It gave us a vocabulary that was clear, precise, and
scientific. It accomplished Austin’s goal of “clearing the heads and untying the
knots.” It purposefully left out all external elements that aren’t covered by the
law.
The analytical school of jurisprudence has had a significant impact on the study
and practice of law in many ways. Some of the key significance of the
analytical school of jurisprudence are:

Clear and Consistent Interpretation of Legal Texts: One of the main

contributions of the analytical school is its emphasis on the importance of clear
and consistent interpretation of legal texts. This approach has helped to
minimize the ambiguity and subjectivity that can arise in legal interpretation,
and has led to more predictable and reliable legal outcomes.

Focus on Legal Rules and Precedents: The analytical school emphasizes the
importance of legal rules and precedents as the primary sources of law. This has
helped to promote a more systematic and structured approach to legal analysis,
which has in turn led to more consistent and predictable legal outcomes.

Separation of Law and Morality: The analytical school distinguishes between

law and morality, and emphasizes that the law should be based on objective and
empirical criteria, rather than subjective moral principles. This has helped to
promote a more impartial and fair legal system that is based on reason and
evidence.

Development of Legal Positivism: The analytical school is one of the main

proponents of legal positivism, which is the theory that law is a social construct
that is created and enforced by the state. This has helped to establish a
foundation for the study and analysis of law that is based on empirical evidence
and objective criteria.

Overall, the analytical school of jurisprudence has helped to establish a rigorous

and objective framework for the study and analysis of law that has had a
significant impact on legal theory and practice. Its emphasis on clear and
consistent interpretation of legal texts, legal rules and precedents, separation of
law and morality, and legal positivism has helped to promote a more
predictable, impartial, and fair legal system.
 JEREMY BENTHAMS THEORY ON ANALYTICAL SCHOOL
Jeremy Bentham is widely regarded as one of the key figures of the analytical
school of jurisprudence. Bentham's theory of analytical jurisprudence is
characterized by his emphasis on legal positivism, the separation of law and
morality, and the importance of clear and consistent legal language. Legal
positivism is the idea that the law is a social construct created and enforced by
the state. Bentham believed that legal rules and principles should be based on
empirical evidence, rather than moral or religious principles. He argued that
laws should be designed to promote the greatest happiness of the greatest
number of people, and that legal rules should be evaluated based on their ability
to contribute to this goal. Bentham also emphasized the separation of law and
morality. He believed that the law should not be based on subjective moral
principles, but rather on objective and empirical criteria. This approach helped
to promote a more impartial and fair legal system that is based on reason and
evidence. Another important aspect of Bentham's theory of analytical
jurisprudence is his emphasis on clear and consistent legal language. He
believed that legal texts should be written in a way that is accessible and
understandable to the general public, and that legal terminology should be
defined and used consistently to avoid confusion and ambiguity. Overall,
Bentham's theory of analytical jurisprudence has had a significant impact on the
study and practice of law. His emphasis on legal positivism, the separation of
law and morality, and clear and consistent legal language have helped to
establish a rigorous and objective framework for the study and analysis of law
that has had a lasting impact on legal theory and practice.2

Bentham advocated for an imperative conception of law, in which sovereignty

and command are central principles. The contrast between social desirability
and logical necessity was recognised by Bentham. He also accepted divided and
partial sovereignty while debating the legal constraints that the sovereign
authority may face. In general, sanctions play a less important role in Bentham’s
theory than they do in Austin’s. Even if simply supported by religious or moral
consequences, Bentham believed that a sovereign’s edict would constitute law.
Alluring incentives and the idea of rewards are acknowledged in Bentham’s
account.

The English lawyer John Austin (1790–1859) published a much-simplified

version of Bentham’s philosophy of law, which helped set the agenda for key
work in the twentieth century. Bentham also advanced a critique of the common
law as the exclusive domain of the professional elite, lawyers and judges, in
which often obscure and technical language was used to keep the law shrouded

2
Oishika Banerji of Amity Law School, Kolkata
in mystery from the perspective of ordinary citizens, all in the service of
perpetuating the myth. In Bentham’s opinion, lawyers are experts in “artificial
reason,” as Coke had first proposed.

Bentham contrasted expositorial jurisprudence (that is, what the law is) from
censorial jurisprudence (that is what the law ought to be). His definition of law
is “law is an assemblage of signals, affirmations of intention conceived or
chosen by a sovereign in a State.” While supporting the economic idea of
laissez-faire (minimum government intervention in people’s economic activity),
he advocated for utilitarianism which signified that ‘the legitimate purpose of
every legislation is the advancement of the greatest pleasure of the greatest
number.’ Bentham defined utility as “the property or tendency of a thing to
prevent some evil (‘pain’) or procure some good (‘pleasure’).” According to
him, the role of legislation should be to achieve these goals, namely, to provide
sustenance, produce abundance, promote equality, and preserve security.
Bentham’s hedonism doctrine, or philosophy of pain and pleasure, has been
attacked on the grounds that pleasure and suffering cannot be the final measure
of a law’s fitness.3

Despite the significant contributions that Jeremy Bentham made to the

development of the analytical school of jurisprudence, his theory has been
subject to several criticisms. Some of the main criticisms of Bentham's theory of
analytical jurisprudence are:

Overemphasis on Utility: One of the main criticisms of Bentham's theory is that

it places too much emphasis on the utility of legal rules and principles. Critics
argue that the law should not only be evaluated based on its ability to promote
the greatest happiness of the greatest number of people, but also on its ability to
protect individual rights and freedoms.

Lack of Moral Consideration: Bentham's separation of law and morality has

also been criticized for failing to take into account the role that morality can
play in shaping legal norms and principles. Critics argue that moral
considerations should be taken into account when making legal decisions, and
that the law should reflect a shared sense of moral values and principles.

Ignoring the Social Context: Another criticism of Bentham's theory is that it

fails to take into account the social context in which legal rules and principles
are created and enforced. Critics argue that the law is not simply a product of

3Analy'cal School of Jurisprudence

July 8, 2021 by Aayushi Mittra
the state, but is also influenced by social norms, cultural values, and historical
traditions.

Limited View of Language: Finally, Bentham's emphasis on clear and

consistent legal language has been criticized for being too narrow and limited.
Critics argue that legal language is often complex and nuanced, and that a more
flexible and adaptive approach to legal language is necessary to reflect the
changing needs and values of society.

Inadequate Attention to Individual Rights: Some critics of Bentham's theory

argue that his emphasis on promoting the greatest happiness of the greatest
number of people ignores the importance of protecting individual rights and
liberties. Critics argue that a legal system that ignores individual rights and
liberties can be oppressive and unjust.

Overall, while Bentham's theory of analytical jurisprudence has made important

contributions to the study and practice of law, it is not without its limitations
and criticisms. Critics argue that a more comprehensive and nuanced approach
to legal theory is necessary to reflect the complex and dynamic nature of the law
and its role in society.
JOHN AUSTIN
John Austin ’was the greatest exponent of this School ,who is the father of
English Jurisprudence .He was born in 1790 .At a very age he entered the army
in which he served for five year .In1826 he appointed to the Chair of
jurisprudence in the University of London .His lectures delivered in London
University were published under the volume entitled “The Province of
Jurisprudence Determined”. In his lectures he discusses the nature of law and its
proper bounds. He also discusses the sources of law and presented an analysis
of English legal system.

Austin ‘s Analytical Positivism

Austin ‘s definition of law: -Austin is the father of English jurisprudence he

confined his only to the positive law. Austin defined law as “A rule laid down
for the guidance of an intelligent being by an intelligent being having power
over him. He also stated that “Law is the command of the Sovereign”. Austin
believed that in the society, subjects are bound by the command issued by the
sovereign from time to time.

Classification of law: - According to Austin law are two type –

1) Laws properly so called 2) Laws improperly so called

1) Laws properly so called: - These laws are commands which are backed by
sanctions of the state, are called law properly so called. Law properly so called
is the positive law, which means law “as it is” rather than law “as it ought to be”
with which he is not at all concerned. It is divided in two part.

A) Laws of God B) Human laws

A) Laws of God: -these are the laws which are made by God for men.
B) Human laws: -These are the laws which are made by one human being for
other human beings. They may be further divided into two parts.
a) Positive Laws
b) Other Laws

a) Positive Laws: - These are the laws set by political superiors as such, or by
men not acting as political superiors but acting in pursuance of legal rights
conferred by political superiors, only these laws are the proper subject matter of
jurisprudence.
b) Other Laws: - Other laws is known as positive Morality, other laws which are
not set by political superiors or by men in pursuance of legal rights. This class
includes International Law.

2) Laws improperly so called: -These laws are not commanding and thus, are
not backed by sanctions. These laws are not obligatory.

Austin’s Imperative Theory of Law or Analytical Positivism: -This theory is

known as Positive theory of law, Command theory, Imperative theory of law.
Austin opined that

only positive law is the proper subject matter of the study of jurisprudence. He
defined” the jurisprudence is the philosophy of positive law.

Positive law has four element-

1) Sovereign 2) Command 3) Sanction

4) Duty

1) Sovereign: - Law is the command of sovereign which obliges a person or

persons to a course of conduct. Sovereign means ,such a person who is superior
,nobody can

interfere. He is the supreme, irresistible, absolute and uncontrolled authority. are

some importance salient features of sovereignty :-
a) Indivisibility
b) Illimitability

c) Essentiality There
d) Inalienability

2) Command :-A command means a wish or desire conceived by a rational

being to another rational being who shall do or forbear .it is an evil to proceed
from the former to be incurred by the latter in case of non -compliance and it is
an expression or intimation of will by word or otherwise Command are two type
a) General Command

b) Particular or specific Command

a) General Command: - A general command is a law or rule where it is obliges

generally to acts so forbearances of a class. All command is not law, it is only
the general command.
b) Particular Command: -It is particular when it obliges to a specific individual
act.

3) Sanction: -Sanction is an evil which will be incurred if a command is

disobeyed and is the means by which a command or duty is enforced. It is wider
sense of punishment. A reword for obeying the command can scarcely be called
a sanction.

4) Duty: -when the party commanded and threatened is under an obligation to

obey it. It is called duty.
Thus, in Austin’s theory duty and command are co-relative and fear of sanction
is the motive for obedience of such command i.e law .The chief characteristics
of positive law are Sovereign Command ,Duty and Sanctions .

Criticism of Austin’s Imperative Theory of law:- 1) Sovereign is not the only

source of law.

2) Law is older than state.

3) Customs overlooked.
4) No place for judge -made law.
5) Law is not always shaped in the form of a command.

6)All command are not laws.

7) International law is not a law.

8) Over Emphasis on logic.
9) This theory is Artificial.
10) Conventions is not law.

Contribution of Austin s theory:-In spite of the various criticism Austin” s

theory, Salmond says that his theory of law contains an important element of
truth in as much as it rightly recognizes the essential fact that civil law is the
product of the state and depends for its existence on the physical force of the
state exercised through the agency of judicial tribunals. the credit goes to Austin
for opening an era of new approach to law .Austin was intimate with great
thinkers and philosophes of his time like Bentham and Mill .Austin told true
meaning of law and legal terms .his stand was to expel from the mind all ethical
notions while considering the nature of “positive law”. He gave a new life of
theory of natural law. He is the father of English jurisprudence. Austin was first
who distinguished between law and justice. Salmond and Gray further improved
upon his theory and considerable modified the analytical positivist approach.
Gray remarked: if Austin went too far in considering the law as always procced
in from the state he conferred a great benefit on jurisprudence by bringing out
clearly that the law is at the mercy of the state.
Herbert Lionel Adolphus Hart:
Herbert Lionel Adolphus Hart4 (1907-92) is a gigantic champion of modern
Anglo-English legal theory. Legal positivism, of which Hart was the major
proponent, has been variously evolved and significantly refined in many respects
and by many followers. But at the same time legal positivism demonstrates signs
of an excessive pluralism and a theoretical fragmentation of detailed analyses, so
much that nothing we can say about legal positivism in general can be agreed to
by all positivists. Inclusive positivists differ with the exclusives, and within each
camp they differ with each other on the reasons why the opposite camp is wrong5.
However, Hart’s shadow hovers over these disagreements and his theory remains
by far the most interesting and internally consistent version of legal positivism.
This is why we need to go back at Hart’s writings and explore his insights about
law, legal theory and the concept of justice. What follows is a critical examination
of Hart’s methodological premises in an attempt to bring to light the conceptions
underneath his concept of law and justice.

In his book The Concept of Law, Hart has analyzed the relation between law,
coercion, and morality, and has also attempted to clarify the question of whether
all laws may be properly conceptualized as coercive orders or as moral
commands. Hart says that there is no rationally necessary correlation between law
and coercion or between law and morality. According to him, classifying all laws
as coercive orders or as moral commands is oversimplifying the relation between
law, coercion, and morality. He also explicates that to conceptualize all laws as
coercive orders or as moral commands is to impose a deceptive appearance of
uniformity on different kinds of laws and on different kinds of social functions
which laws may perform. Hence, it will be mischaracterization of the purpose,
function, content, mode of origin, and range of application of some laws.

Hart’s concept of law :

According to Hart, the concept of duty signifies that a rule is accepted by the
people (i.e., it is internalised) rather than habitually obeyed (as defined by
Austin). There is a distinction between internal and exterior elements of
regulations. The former means “having a responsibility” (without force), whilst
the latter entails “being obligated” (under a compulsion). According to
Hart, Austin’s predictive theory ignored internal features of rules and only dealt

4
HLA Hart was formerly Professor of Jurisprudence at Oxford University, Principal of Brasenose College, and
Fellow of University College.

.
with exterior ones. There are two sorts of rules, according to Hart. The main rule
establishes norms of conduct or imposes obligations (for example, international
law), whereas the secondary rule determines, introduces, eliminates, or modifies
the primary rule. Power-conferring rules, public or private, are the secondary
rules (e.g. statutes, constitution). The ‘rules of recognition,’ which give
authoritative criteria for determining main norms of duty, are developed from
these. The ‘ultimate rule of recognition’ is the last requirement for a legal order’s
legality. A legal system’s core is made up of the union of main and subsidiary
rules. A civilisation ruled solely by fundamental laws (i.e., a simple primordial
society) is inefficient, stagnant, and unpredictable. The legal order must be
effective, which means that citizens must follow main norms and authorities must
follow secondary regulations. These two requirements are both essential and
sufficient for a legal system to exist.6

Hart created a theory of law in which official behaviour plays a fundamental role.
Some of the “puzzles” associated with the concept of legal validity, according to
Hart, address the relationship between the validity and efficacy of legislation.
When a rule meets all of the conditions set out by the rule of recognition, it is
considered to be “valid.” When people follow the rules, they are called to be
‘effective.’7 It is not necessary for an ultimate rule of recognition to be legitimate,
but it should not be ignored, i.e. it must be effective (officials must obey it).

H.L.A. Hart was a prominent legal philosopher who developed a theory of law
within the analytical school of jurisprudence. His work, "The Concept of Law,"
has been influential in shaping contemporary legal philosophy. Here are some key
features of Hart's theory:

• Primary and secondary rules: Hart distinguishes between primary rules, which
are the basic rules of conduct that govern behavior in society (such as rules
against theft or assault), and secondary rules, which are rules that govern the
creation and modification of primary rules (such as rules for the appointment
of judges or the amendment of a constitution).

• The rule of recognition: Hart argues that the existence and validity of a legal
system depend on the acceptance of a "rule of recognition," which is a social
rule that specifies the criteria for identifying valid primary and secondary rules
of the legal system. The rule of recognition is a key element in establishing
legal authority and ensuring the coherence and stability of the legal system.

6
hHps://www.legalserviceindia.com/legal/ar'cle-5234-characteris'cs-of-analy'cal-school-of-
jurisprudence.html
• The internal point of view: Hart emphasizes the importance of understanding
legal rules from the perspective of those who are subject to them. This
"internal point of view" is necessary for understanding the normative force of
legal rules and the way in which they guide behavior in society.

• Legal positivism: Hart's theory is a form of legal positivism, which holds that
the existence and validity of law depend on social facts, rather than moral or
natural facts. This means that legal rules are not necessarily moral or just, but
they are valid because they are recognized and enforced by a legal system.8

Overall, Hart's theory emphasizes the importance of understanding the structure

and function of legal systems in order to understand the nature of law and legal
authority.

Criticism of Hart’s proponents

Some jurists, Dworkin like and Lon Fuller, have harshly challenged Hart’s idea
of law. Dworkin distinguished between ‘rules’ and ‘principles,’ stating that a
legal system cannot be viewed just as a collection of rules, but rather as a
collection of sound principles and policies. He stated that “a principle is a norm
to be followed because it is a necessity of justice, fairness, or another facet of
morality.” Fuller felt that the legal system, as a tool for normal human behaviour,
should be concerned with both law as “it is” and law as “it ought to be.” Thus,
the law cannot be completely divorced from the concept of morality.

H.L.A. Hart's analytical school of jurisprudence is a prominent legal theory that

emphasizes the importance of language, logic, and the social practices of legal
institutions. However, it is not without its critics. Some of the criticisms of Hart's
analytical school of jurisprudence include:

• Overemphasis on legal positivism: Hart's analytical school of jurisprudence

is often associated with legal positivism, which holds that law is a purely
man-made creation that is separate from morality. Critics argue that this
emphasis on legal positivism ignores the ways in which legal systems are
influenced by moral and political values.

4 h"ps://legalvidhiya.com/analy4cal-school-of-jurisprudence/
 • Limited scope of analysis: Some critics argue that Hart's theory is overly
focused on the internal workings of legal institutions and fails to address
broader social and political issues. By emphasizing the technical aspects of
legal decision-making, Hart's theory neglects the ways in which law is
shaped by power relations and social hierarchies.

• Lack of practical application: Finally, some critics argue that Hart's theory
has limited practical value because it is too abstract and disconnected from
real-world legal problems. By focusing on the internal logic of legal
concepts, Hart's theory fails to provide guidance for legal practitioners and
policymakers who must grapple with complex legal issues in the real world.9

4
Dhyani, SN (2004) Fundamental of Jurisprudence Allahabad: Central Law Agency, p207.
5
Hart op cit, p 91.
 Hans Kelson

One of the most influential legal thinkers of the 20th century was an Austrian
jurist and philosopher named Hans Kelson. The nature of law and the function of
the judicial system in society were the main topics of Kelson's writings. Great
analytical school judge Hans Kelson developed the concept of "the Pure Theory
of Law." The Vienna school is the name of this idea. Kelson is an Austrian
national. In 1881, he was born in Prague, Austria.He taught law at the University
of Vienna.In addition, from 1920 to 1930, he served as a justice on Austria's
Supreme Constitutional Court for ten years.He eventually relocated to
England.He immigrated to the US and served as a law professor in various
American Universities.

Kelson’s Pure Theory of Law:

According to Hans Kelsen's Pure Theory of Law, the rule of law is an independent
set of standards that are established and upheld through formal legal procedures.
According to Kelsen, the method used to establish a legal norm determines
whether it is valid rather than its content.
The legal system is a hierarchical framework of norms, according to the Pure
Theory of Law, with the fundamental norms (Grundnorm) at the top that serve as
the cornerstone for all other legal norms. According to Kelsen, judges should only
understand and implement the law as it is written and that the law should be free
from outside influences like politics and morality.
According to Kelsen's theory, a clear and well-defined legal system is essential
as well as the significance of legal predictability and certainty. He thought that
the legal system should be set up to allow for the resolution of conflicts between
norms and that the law should be viewed as a system of logically linked norms.
A fascinating revival of analytical law is the Kelson Theory. Law, according to
Kelson, is a normative discipline as opposed to a natural science. This theory,
which distinguishes between law and other subjects like politics, sociology,
history, economics, psychology, and ethics, is known as the "pure theory of
law."Commonly referred to as the Vienna School, its originator is Hans Kelson.
According to some, Kelson's pure theory of law was an attempt to save
jurisprudence from nebulous mysticism and, in this sense, was a renewal of John
Austin's 19th century analytical jurisprudence.He developed a legal science that
was pure and unaffected by moral or social factors. Although he intended legal
theory to be objective, he disagreed with Austin's definition of law as a command
because it adds subjective considerations. He describes science as a body of
knowledge or as the sum of cognitions organised logically and methodically.Law
must be applied "As it is," not "as it ought to be," according to Kelson. Since
Austin's notion of "sovereign" is similar to Kelson's Grundnorm and without
which law cannot be obligatory and binding, Kelson's pure theory of law is a
theory of positive law based on normative order that excludes all additional legal
and nonlegal elements. Kelson claimed that his unadulterated theory applied
everywhere and at all periods.It must not contain any politics, sociology, or
history.

Law As Normative Science:

Law, according to Kelson, is the depsychologized order. In contrast to natural
sciences, which are founded on cause and effect, such as gravity, he described
law as a normative discipline.The form of "Is" (sein), which is a fundamental
component of all natural science, allows for the precise description,
determination, and discovery of the natural sciences.But the study of law focuses
on understanding what the rule should be. (sollen).Law acquires its normative
nature from the "ought" clause.
The Grundnorm: Kelson's pure theory of law is founded on a pyramidal hierarchy
of norms, each of which derives its legitimacy from the Grundnorm.The
Grundnorm, also known as the fundamental norm, establishes the validity of all
other norms that are drawn from it. Legal science is viewed as a tower by Kelson.
The subordinate norms are governed by the norms that are above them in the
hierarchy, with the Grundnorm at the top.The Grundnorm, however, is unaffected
by any other word being at the apex. According to Kelson, the concretization of
the legal system is the process by which one norm derives its authority from the
norm that is immediately superior to it until it achieves the Grundnorm. As a
result, the system of norms progresses from downward to upward before coming
to a close at the Grundnorm at the top.

Essential foundations of Kelson theory:

1) The goal of law theory, as with all sciences, is to bring order out of disorder
and diversity.
2) Legal theory is knowledge of what the law is, not knowledge of what the law
"ought to be." It is a study, not an act of will.
3. Law is not a natural study; it is a normative field.
4) As a theory of norms, legal theory is not preoccupied with the efficacy of legal
norms.
5) A theory of law is formal; it is a theory of how to organise things and modify
their content.
6) The relationship between a specific system of positive law and legal theory is
one of potential to actual.
Implication of Kelson’s theory Pure Science of Law:

The broad notion of state covered by Kelson's pure theory of law includes state
sovereignty, private public law, legal personality, right and duty, and international
law. The following are some implications of Kelson's philosophy of law:
1) There is no distinction between the state and the law.
2) Public law and private law have no differences.
There is no distinction between a natural person and a legal person.
4) The judicial system does not recognise personal obligations or rights.
5) International law is supreme

Criticism of Kelson `s pure theory of law:

1-Grundnorm is vague and confusing
2-The purity of norms cannot be maintained
3-This theory has lacks practical significance
4-Kelson ignored Customs
5-Kelson ignored Natural law and Morality.
6-International law is the weakest point of Kelson s theory.
 CONCLUSION

The analytical school of law is a significant viewpoint that focuses on the

vocabulary and organisation of legal documents. By examining the logical
consistency of legal regulations and the guiding principles of legal reasoning, this
school of thought tries to clarify and improve upon legal notions.
The analytical approach's emphasis on the accurate and consistent application of
legal concepts is one of its key advantages. Analytical jurists can spot ambiguities
and inconsistencies in legal norms and attempt to create more exact and consistent
legal conceptions by scrutinising the language and structure of legal writings.
The analytical strategy does, however, have some drawbacks. Critics claim that
it ignores the larger social, economic, and political circumstances in which legal
norms are made and applied and instead places too much emphasis on the
formalistic features of the law. According to others, the analytical approach can
also be extremely complicated and difficult for persons without legal experience
to understand.
Overall, the analytical school of law offers an insightful viewpoint on the nature
and purpose of law. Analytical jurists have contributed to the creation of a more
exact and consistent legal system by highlighting the logical coherence and
consistency of legal notions. However, it is crucial to understand that broader
social, economic, and political elements must also be taken into account and that
the law cannot be comprehended only by a formalistic analysis of legal texts.
 REFERENCE
Books:

• N.V. Paranjape, Study in jurisprudence & Legal Theory(CLA Allhabad 9'"

edition-2019).

• S.N. Dhyani Jurisprudence Indian Legal Theory( CLA Allahabad 5th Edition
2019)

• V.D. Mahajan, Jurisprudence and Legal Theory.

Websites:

1. LiveLaw
2. Ipleaders
3. Khaitan and co.
4. SCC online
5. Wikipedia

Articles :

1. https://ijcrt.org/papers/IJCRT22A6251.pdf
2. https://www.toppr.com/guides/business-laws-cs//rights-

andpawnor/#:~:text=Pawnee%20has%20a%20right%20to%20seek%20reimbur
semen t%
20of%20extraordinary%20expenses,the%20sale%20of%20such%20goods.

3. https://www.vedantu.com/commerce/rights-of-pawnee-and-pawnor
4. https://www.casemine.com/search/in/the%2Bindian%2Bcontract%2Bact
%2Bsection

%2B176

5. https://www.scconline.com/blog/post/2021/07/20/pawnor-jurispudence /