ABSTRACT

This article deals with analytical

jurisprudence topics presented in
John Austin’s work, his
predecessors, and its influence
on the contemporary theory of
law. The article analyses his
analytical method, understanding
of what the method implies, and
its application in understanding
law as a social phenomenon. Not
only does the article analyse the
law phenomenon, but it also
presents his views on similar
phenomena in law, such as
international and constitutional
austin anayltical theory law, the phenomenon of
School of positivism sovereignty and a sovereign, and
the principle of general utility as
one of the moral principles. His
theory of law was one of the
most significant theoretical
approaches in England of the
19th century, and also
constituted the baseline for new
conceptions and the basis of
critical analyses of later positive
law theories.

Nadar Karishma jagdish

SYLL.B
ROLLNO :92
DIV: B
 INTRODUCTION
The word jurisprudence was first used in 1628. It derived from the Latin word ‘ juris prudential’,
here ‘juris means ‘of law’ and ‘prudentia’ means wisdom, knowledge. So the word jurisprudence
means knowledge of law.
According to the oxford advanced learners dictionary, “jurisprudence is the scientific study of
law”
According to the BLACK’S law dictionary, ”jurisprudence is the study of the first principles of
the law of nature, the civil law, and the law of nations.”
“ More modernly , the study of the general or fundamental elements of a particular legal system,
as opposed to its practical and concrete details.”
Jurisprudence was the first of the social sciences to be born. It’s province has been determined
and re-determined because the nature of the subject is that no delineation of its scope can be
regarded as final .On torts or contracts, for example, a student may be recommended to read any
of the standard textbooks with the assurance that, whichever book he does read, he will derive
much the same idea as to what the subject is about. With jurisprudence this is not so. Books
called “jurisprudence” vary so widely in subject matter and treatment that the answer to the
question, what is jurisprudence? , will vary in almost each and every book.

Schools of jurisprudence:
School of thought is a principle or body of principles accepted as authoritative and advocated by
one or more scholars belonging to a specific discipline .Major schools of jurisprudence are
analytical school, historical school, philosophical school, sociological school, realist school,
natural law theory, ethical school, comparative school etc. In this note, I’ll discuss about the
analytical school of jurisprudence.
ANALYTICAL SCHOOL OF JURISPRUDENCE
1.Central idea:
Law as it exists i.e. law as it is, regardless of good or bad, past or future. “a law, which actually
exists , is a law, though we happen to dislike it, or though it vary from the text, by which we
regulate our approbation and disapprobation.”
2.Different names:
a. Positive school: Because it focused on “positum” (Latin), which means ‘as it is.’
b. English school: Because this school was dominant in England .
c. Austinian school: Because it was founded by John Austin. analytical jurisprudence is a
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. 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. 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. Origin Imperative concept of law was first proposed by Bentham during his life
time (1742-1832), but his work remained unpublished till 1945. Prof. Dias points that until
recently John Austin used to be styled the “father of the English jurisprudence”, but it is now
clear from a work of Bentham first published in 1945 that it is he, if anyone, who deserved such
a title.
However, John Austin is considered the de facto originator of this school of jurisprudence.
Chief exponents of analytical school of jurisprudence
1.Jeremy Bentham
2.John Austin
3.William Markby
4.Holland
5.Salmond
6.HLA Hart.
Jeremy Bentham (1742-1832):
“Law is an assemblage of signs, declarative of volition, conceived or adopted by the sovereign in
a state, concerning the conduct to be observed in a certain case by a certain person or class of
persons who in the case in question are supposed to be the subject to his power.”
Bentham’s theory contains key concepts viz. Sovereignty, Command and Sanctions. Bentham
believed that there was the possibility of complete scientific codification of law. Bentham was
against the judge-made law.
Bentham attributed the element of „utility‟ to law.
He defined utility as, “the property of a thing to prevent some evil or to produce some good.”

John Austin (1790-1859):

Imperative theory of law states
“Law is the general command of sovereign enforceable with sanctions.”
John Austin is best known for his work developing the theory of legal positivism. He attempted
to clearly separate moral rules from “positive law”
Austin divided laws into two kinds:

law

law properly law improperly

so called so called

law of god human law

1.“laws properly so called” or positive law. i.e. human law

2.“laws improperly so called” or positive morality. E.g. religious rules, moral rules, customs
etc
1)Laws properly so called: - These laws are commands which arebacked 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 parts
A) Laws of God: -these are the laws which are made by God for men .All the law mentioned in
the divine books are considered as
thedivine laws and are not backed by any sanction but when not followed are criticized by the
fellow follower and are deemed to be punish by God either through karma or in the divine world
once entered. Natural laws are also divine laws.
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 superior 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. These are the regular laws such as the
constitution governing the society.
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. Customs are not commanded by any superior or there
no sanctions as such other than the rejection of the member of the societies hence, referred by
the Austin as improper law. This classification of law helped Austin to further talk specifically
about the positive law in his theory called, Positive theory of law, Command theory, Imperative
theory of law. In broad sense of law Austin defined law as
“a rule laid down for the guidance of an intelligent being by an intelligent being having power
over him”
Whereas specifically talking about the positive law he defined them as a
“Command of the sovereign which is backed by sanction”
Austin noted that every law, properly referred to as such, must have three elements, namely,
command, sanction, and sovereign authority thereby intending to say that “law is the mandate
of a sovereign, ordering his subjects to do or refrain from specific actions. If the command is
not followed, there is an implied threat of punishment”. So, a proper law according to Austin
must have these 4 aspects that are. Sovereign, Command, Duty and Legal sanction
1.Sovereign
According to Austin, every political set up has a sovereign power which is habitually obeyed
by the people in the society. There is only one sovereign in the society, and it can be a single
person or a group. Anindividual or group of people to whom the entire population obeys but
he does not obey to anyone. The only boundaries of sovereign power are physical limits.
There are certain characteristics of a sovereign to identify one.
 Unlimited Power
 Indivisible
 Continuous
2.Command
There is aspect of command which must be followed as
 A desire concerning someone's behaviour.
 An expression of that desire
 A sanction which is also threatened harm for the non-compliance. Here if there is no
sanction on it then the desire will merely be request /instruction and not amount to
command. command, sanction, and duties are interconnected because receiving
command becomes a duty to follow otherwise there will be a threat of sanction.
3.Duty
The command levies a “legal duty” on those who are politically subject to the “commander”
who is sovereign. Every duty supposes a command by a sovereign by which it is created .
4.Sanctions
In his sense of sanction, Austin differed from Bentham who considered that sanction could
even be moral or religious. He did not considered command to be a law without sanction
because as per him it was the fear of sanction which induced a man to obey the law. It is
 implied in the theory that this sovereign has with itself a power to punish or penalize for
noncompliance of laws. The dread of legal sanction, as an evil consequence in case of
disobeying, is the motivation behind one’s adherence of law and thus is a requisite part.
There are three exceptions as per Austin which though are not commands but they are still
within the sphere of jurisprudence:
 Declaratory or Explanatory Law: Austin said that it is not proper to consider them as
commands because they are just made in order to explain those laws which are at
present in force.
 Laws of Repeal: As per Austin, these are not commanding rather, they are the laws
made in order to revoke the existing laws.
 Law of imperfect obligation: He said that these laws do not have active sanction; they
could be law of morality or international laws.

Criticism of Austin
1. When Austin comments that sovereign is the creator of laws, he ignores the fact that
foundation of law lies in common consciousness of the people .Thus, it overlooks ,
Customary law which has always been widely respected and followed. Personal laws like
Hindu Law, Canon Law or Muslim law, existed long before a sovereign began to legislate,
and yet, these laws were not only acknowledged but followed with immense devotion.
Courts may misinterpret a statue or reject a custom. In this process, the court often lays
down Precedents or Case-Laws which are often religiously followed in future cases
2. Austin’s theory does not apply to Constitutional law. The sovereign, no matter how strong
will always be subjected to the Constitution and the latter cannot be equated with a
“command” of a state. It will be an absurd idea to say that Constitution, which is a
command of the sovereign, will, in turn, direct the sovereign .Further, the Constitution is
primarily the highest law and essentially comes before the state. It defeats Austin’s
preposition that Sovereign creates the law laid by the constitution.
3. The concept of command, according to Dugu it, is inapplicable to modern social/welfare
law, which does not order individuals but confers advantages, and which binds the State
rather than the person. Law does not only issue instructions, but it also sometimes grants
rights, such as the right to form a will. As a result, Austin’s legal idea is manifestly
inapplicable in today’s democratic welfare state. In India, for example, it is impossible to
find a single sovereign who can be said to have unrestricted and absolute power to establish
laws.
4. Unlike what is believes, the sanction is not the only motivation behind adherence to the
law. It is also respected out of prudence and morality. One does not normally enter into a
second marital relationship during the lifetime of the first spouse because they are scared of
being penalized but also because of love and respect. Also, if everyone decides to challenge
the law given by sovereign, it is bound to collapse…legal sanction shave practical
limitations.
5. Austin fails to recognize that International Law is not created by a sovereign and yet is
recognized and appreciated by the majority of states as a law. There is no authority in
International Arena which can enforce international obligations or sanction them. Yet, they
Also ,if everyone decides to challenge the law given by sovereign, it is bound to collapse…
legal sanctions have practical limitations.
 6. Austin’s difference between positive law and positive morality, according to Justice
Holmes, is to keep notions of virtue and badness out of the sphere of law. According to
Austin’s positive law, there is no place for ideals or justice in law because “the existence of
law is one thing, its merit and demerit another. A law that actually exists, is a law, even if
we happen to dislike it or if it differs from the text by which we regulate our approval or
disapproval. ”Thus, it makes laws which are completely against the norm of justices’
acceptable law this could be seen in the Hart vs fuller debate where the question of the law
made during the nazi regime have all the ingredient of law as per Austin’s requirement but
are against the general principle of justice thus even accepting these as acceptable laws.

Austin’s positivism: Relevance in India.

If we examine Austin's definition, we might conclude that orders issued by sovereign authority are
always supreme and unalterable. Yet since there is no monarchy, no sovereign power or authority,
and only democracy exists in India, that portion of the term is not valid there because it is in
conflict with constitutional rules. In India, elected representatives of the people, such as M.P. and
M.L.A., are in charge of forming a partially sovereign government. The constitution's bounds
must be respected by government decisions. As a result, we can conclude that the assumption of
habitual obedience, which forms the cornerstone of Austin's sovereign theory, cannot be upheld in
the current political and legal landscape of India. If we examine this portion of Austin's definition,
we may conclude that while the entire kingdom must obey the sovereign's directives, the
sovereign is not answerable to anyone. The Sovereign will enact laws, carry them out, and serve
as the only person to administrate them. In that section, the concepts of democracy and Indian
federalism are opposed. Law-making in India is not the responsibility of a single person like the
sovereign because laws are formed by the Legislature, by Ordinance, by the delegation of power,
by the authority, and in every step of the process an institution or apparatus is involved. As
Austin's theory doesn't accommodate the fundamental concepts of democracy, constitutionalism,
decentralization, and separation of powers, we might deduce that it is incompatible with the
contemporary political and social environment of India

1.Austin's thesis is entirely built on the concept of the "Sovereign," however India lacks a
monarchy and hence there is no concept of the sovereign. Here, the President of India, who is
indirectly elected and obligated to act within the bounds of the Constitution, is the head of the
institution.
2. It has been established in the present period that "Sanction" is a component of "Law" but that
the idea that "Only sanction" is a component of the Law is incorrect.
3. Because of its rigidity, short-sightedness, and disregard for the fundamental principles of
democracy, Austin's theory is not applicable in the contemporary political and legal Indian culture
4. Because Austin's theory promotes political instability, anarchy, and social disorder, it is not
appropriate for the contemporary Indian political and legal environment.
5. His view disregards a number of factors, including democracy, international law, the separation
of powers, etc

Professor Dias’s comparison of Bentham and Austin’s propositions

Prof Dias compared Bentham and Austin and came to the conclusion that the former had a more
comprehensive and flexible theory than the latter. The following are the significant grounds of
comparisons that Professor Dias had put forth:
Betham’s definition of sovereignty was open-ended, avoiding the constraints of indivisibility and
illimitability. He was able to accommodate the division of authority across organs, as in a
federation, or division in specific sectors, as well as authority constraints and self-bindingness.
Bentham had a larger understanding of the law than Austin, and the former avoided the absurdity
of “law properly so-called.”
Bentham’s sanction was both broader and less significant than Austin’s. Even if they are justified
by moral or religious sanctions, laws are laws. They might even be accompanied by awards.
Bentham didn’t have to use “sanction by nullity.” His theory had a flaw in the imperative basis,
but it was so much larger and less rigid than Austin’s that he was able to accommodate
permissions up to a degree. He avoided the fiction of ‘tacit command.’

Conclusion
The different schools of thought in jurisprudence indicate distinct approaches in handling the
subject. The Analytical school of jurisprudence highlighted the positive approach that needs to be
adopted to address legal challenges. The school came with its own sets of pros and cons that the
above highlighted, nevertheless one cannot ignore that the school had a lot to offer to society in
general.

Bibliography:
https://lawtimesjournal.in/analytical-school-of-jurisprudence/.

https://www.legalbites.in/analytical-school-jurisprudence/.

https://www.lawcolumn.in/analytical-school-of-jurisprudence/.

http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/
Intellectual_Property_Law_in_India.pdf.

https://www.scribd.com/document/647251041/Austin-analytical-school