This action might not be possible to undo. Are you sure you want to continue?
Analytical School of Jurisprudence
The most important aspect of law is its relation to the state, They treat law as the command emanating from the sovereign i.e., state, It confines study of law ³as it actually exists i.e., positus´ irrespective of its past or future,
For the reason Analytical School / Analytical Positivism / Legal Positivism are used synonymously,
Political Science and Analytical School can be said to have same fate, Although the leader of political science is Aristotle , it was propounded by Plato, In Positivism, Austin is the leader but it was propounded by Jeremy Bentham,
JEREMY BENTHAM (1748-1832)
Champion of codified law advocated reform in the substantive law structure through a process of analysis. Distinguished expository jurisprudence (what the law is) from censorial jurisprudence (what the law ought to be). He believed that every law may be considered in the light of eight different aspects;
Source; law as the will of the sovereign, Subject; persons or property, Objects; acts, situations or forbearance, Extent; law covers a portion of land on which acts have been done, Aspect; directive or sanctional, Force; execution Remedial state appendages, Expression,
Bentham as individualist believed that the function of law is to emancipate individual from the bondage and restraint upon his freedom.
He supported the economic principle of ¶laissez-faire· i.e., minimum interference of the state in the economic activities of the individuals.
The right aim of legislation is the carrying out of the principle of utility i.e., the property or tendency of a thing to prevent some evil (pain) or procure some good (pleasure).
The end of law is the promotion of ¶the greatest happiness of the greatest number·. Happiness of the social order is to be understood in the objective sense by attaining four major goals;
y y y y
Subsistence Abundance Equality Security
Bentham recognised unlimited parliamentary sovereignty. He pleaded for codification and opposed judge made laws.
J S Mill, agreed with Bentham and called his Utilitarianism as Doctrine of Hedonism or theory of pain and pleasure.
Pleasure and pain were the ultimate on which a law was to be judged. Justice implies an urge to retaliate for a wrong i.e. rebel against injury.
Consideration of morality has no place in utilitarianism. He introduced legal positivism and treated legal theory as a science of investigation which should be approached through 5 scientific method of experimenting and reasoning.
BENTHAM·S IDEA OF JUSTICE
Justice is social happiness guaranteed by a social order and protecting certain interests socially recognised by the majority as worthy of being protected.
Justice is based on a system of values i.e. varying set of values of different societies i.e. morals.
The individual living in the society have to conform to the set of values or norms and rationalize his conduct or behaviour accordingly.
FRIEDMAN CRITICISED BENTHAM;
In an effort to blend materialism with idealism, Bentham underestimates the need for individual discretion and flexibility,
His theory fails to balance individual interests with the interests of legislators,
Pleasure and pain alone cannot be tests of the adequacy of law, Bentham·s interest of an unlimited number of individual shall be conducive to the interest of the community i.e. freedom of enterprise automatically leads to greater equality, however, in actual practice, it is freedom of enterprise which is resulting in great inequalities globally,
Man-made law or apostle of individualism is the founder of state socialism,
JOHN AUSTIN ² ANALYTICAL POSITIVISM
Confined study only to the positive law and applied analytical method for the purpose,
Positive law is;
´Laws properly so calledµ as distinguished from morals and other laws which are ´laws improperly so calledµ which lack force or sanction of the state,
´the aggregate of rules set by man as politically superior to men as politically inferior subjectsµ,
Essential attributes of positive law are;
JOHN AUSTIN (1790-1859)
Austin defined law as ´a rule laid for the guidance of intelligent beings by an intelligent being having power over himµ, laws are;
Laws set by God for men, and Human laws-laws made by man for men, Positive morality is not law properly so called but it is law by analogy.
IMPERATIVE THEORY OF LAW
The study and analysis of positive law alone is the appropriate subject matter of jurisprudence.
Austin says ´the subject ² matter of jurisprudence is positive law ² law simply and strictly so called, or law set by political superior to political inferiors.µ The chief characteristics of positive law are;
y y y
Law is a command, Imposing a duty, Enforced by sanction,
LAWS NOT COMMANDS
Declaratory or explanatory laws, Laws of repeal, Laws of imperfect obligation,
Criticism of Austin·s imperative theory
Customs overlooked i.e. no historical basis, Permissive character of law i.e. privilege conferring laws ignored,
No judge made law, International law as a positive morality, Notion of Command over-emphasised, Law and morality inter-relationship ignored, Sanction induce obedience,
INDIA AND ANALYTICAL POSITIVISM
The advent of British rule in India brought about radical changes in the then exiting legal system. The improvised system was based on British imperialism sought to impose English laws and the political institutions in India. Lord Macaulay, the law member of the Governor General-in-Council, rejected the ancient Indian Legal and Political Institutions.
Henry Main criticised Ancient Indian Jurisprudence.
INDIA AND ANALYTICAL POSITIVISM
The codified British laws were akin to Austinion concept of Positive law having element of certainty, definiteness, effectiveness, enforcement and sanction.
The British King in parliament was the supreme sovereign authority to make laws for the governance of India and they were above law enacted for India. The then Indian legislature had no authority to change law and the subjects were bound to obey those laws. Thus all the characteristics of positive law i.e., command, duty, sanction and sovereign were present in the pre-independence Indian Legal system.
14 The post independence India is a blend of Natural theory and
INDIA AND ANALYTICAL POSITIVISM
IPC - Section 303. Punishment for murder by lifeconvict; Whoever, being under sentence
of [imprisonment for life], commits murder, shall be punished with death.
IPC - Section 309. Attempt to commit suicide; Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for term which may extend to one year [or with fine, or with both].
Population control measures in India/China.
BINDINGNESS AND RECOGNITION COMES FROM PEOPLE
E.g. Preamble to the Indian Constitution What is the Bindingness of the Preamble? State of West Bengal v. Union of India AIR1974 SC 1510 (Berubari case)The Preamble was not a part of the Constitution and therefore it could never be regarded as a source of any substantive powers.
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 The preamble is the part of the constitution. Though in any ordinary stature not much importance is attached to the preamble, all importance has to be attached to the preamble in a Constitutional statute.
Randhir Singh v. Union of India, AIR 1982 SC 879 The Supreme Court relying on the Preamble, Articles 14, 16 held that Article 39 (a) envisages a constitutional right of ´equal pay for equal workµ for both men and women.
HART·S ANALYTICAL POSITIVISM
Law is a system of two types of rules the union of which provides key to the science of jurisprudence;
Primary rules; duty imposing rules, binding because of popular acceptance e.g., rules of kinship, family sentiments etc., there is no agency for deciding these rules, they are un-official rules suffer from three defects;
y y y
Uncertainty, Static character, and Inefficiency,
Secondary rules; power conferring rules, enable the legislators to modify their policies and law thereupon to accord with social needs, in fact seek to complement or remedy the defects of primary rules, 17
Hart·s positivism explains the existence of law with reference to the rule of recognition binding force of which depends upon its acceptance. The validity of the law is to be tested on the basis of rule of recognition similar to Austin·s ¶Sovereign· and Kelson·s ¶Grundnorm·.
POSITIVISM- IT·S MEANING
Professor H L A Hart has given five meanings of the term ¶Positivism·. 1. Laws are commands of human beings; 2. There is no necessary connection between law and morals as it is and ought to be; 3. The analysis of legal concepts is
A. worth pursuing; B. To be distinguished from historical inquiries into the causes and origins of law and the social phenomena;
4. A legal system is closed logical system in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies and moral standards; 5. Moral judgments cannot be established or defended as statements of facts.
1. LAW IS A COMMAND OF HUMAN BEINGS
The essentials of commands are:
Command shall be general. It shall be issued for all persons.
E.g. Article 14 of the Constitution of India: Equality before law and equal protection of law.
That command shall be obeyed by the community because society is politically organised one.
E.g. Democracy: the Government of the people, by the people and for the people. Post Office Bill: Although this Bill had political support it was not passed as was not accepted by the Society which wasn·t a mere society but a politically organised society.
Delhi Government orders and the decision of the Delhi High Court about ¶Women Helmet Wearing· is in-effective in Delhi due to anti public opinion.
2. Separation between law and morality, 3. Law must be distinguished from historical, sociological,
philosophical or any other inquiry,
Dean Roscoe Pound ´Law is preceptµ. It means it is a principle accepted and followed by society on its own continuously. It means it is indirectly recognised by legal system.
There are many customary laws i.e. customs having recognised as source of law.
E.g. the common law is based on customary principles. Hindu Marriage ActUnder Section 5, marriage between near relations is prohibited provided the custom gives permission.
4. LEGAL SYSTEM IS THE CLOSED LOGICAL SYSTEM
A legal system is closed logical system in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies and moral standards.
It means law should be based on logic. Question arises what we mean by logic? Logic is such a thing or principle which gives some sort of representation to that thing.
In State of Bihar v. Kameshwar Singh, AIR 1952 SC 352 the Supreme Court relied on Article 39 in deciding that a certain Zamindari Abolition Act had been passed for a public purpose within the meaning of Article 31.
In Re Kerala Education Bill, AIR 1957 SC 956, the Supreme Court observed that the directive principles cannot override the fundamental rights, nevertheless, in determining the scope and ambit of fundamental rights the court may not entirely ignore the directive principles but should adopt ¶the principles of harmonious construction and should attempt to give effect to both as much as possible.
In Kesavananda Bharti v. State of Kerala, AIR 1978 SC 1461, the supreme Court has said that ´fundamental rights and directive principles aim at the same goal of bringing about a social revolution and establishment of a Welfare State and they can be interpreted and applied togetherµ.
5. THE MORAL STATEMENTS CANNOT BE PROVED AS
STATEMENT OF FACTS
E.g. Good Behaviour It cannot be proved from his behaviour, performance mark.
NATURE OF SOVEREIGN
Prof Joseph Raz has outlined four attributes of nature of sovereign as follows: 1. Not subordinate: It means sovereigns, legislative, executive power cannot be conferred or revoked by law because he is beyond law; 2. Illimitable: It means that there are no restrictions, checks to curb his legislative power. He can make any law. 3. Unique: He is one of its own kinds, no one is like him. 4. Unified: Powers are concentrated in single hand, may be an individual or group of individuals.
1. SOVEREIGN IS NOT SUBORDINATE
Article 358, Chapter III of the Constitution of India: After the 44th Amendment Act, 1978 Article 358 provides that when the proclamation of emergency is made by the President under Article 352 , the freedoms guaranteed by Article 19 are automatically suspended and would continue to be so for the period of emergency. Any law, executive order made by the State during this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed by Article 19.
Article 358 makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. Thus Section 358 removes restriction on the Legislative and Executive powers of the state imposed by the Constitution.
Article 359 It empowers the President to suspend the right to move any Court for the enforcement of rights conferred by Part III of the Constitution (except Articles 20 and 21) during the continuance of emergency.
Prior to the 44th Amendment A.D.M. Jabalpur v. Shukla AIR 1976 SC 1207 (Habeas Corpus Case) The respondents challenged the validity of the Proclamation of Emergency by the President under Article 352 and the order of detention made against them under Section 3 of the MISA. They filed applications in different High Courts. The High Courts held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of rights conferred by Articles 19, 21 and 22 the High Court could examine: 1. whether an order of detention was in accordance with the provisions of the MISA; or 2. whether the order was malafide. The State appealed to the Supreme Court.
The Supreme Court by 4:1 majority (A.N.Ray, D.J. Beg, Chandrachud and Bhagwati, JJ )- (Khanna J. Dissenting) held that in view of the Presidential Order no person had any locus standi to move any writ-petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order was under or in compliance with the Act or was illegal, or was vitiated by malafides factual or legal or has based on extraneous considerations.
The moment the right to move any Court for enforcement of the Article 21, was suspended, no one could move any court for any redress.
Position after 1978 In view of the 44th Amendment, 1978 the law laid down in Habeas Corpus case is no longer a good law.
Henceforth, Arts 20 and 21 cannot be suspended during the Proclamation of Emergency.
Consequently a person will be entitled to challenge the validity of his detention even during the operation of emergency. 29
United Kingdom and European Union
In case of dispute between the law made by the UK Parliament and that of European Law, it is the European Union law which shall prevail. Maastricht Treaty·s
In ancient India, Hindu Kings, although were the rulers, were bound by laws formulated, enforced by them.
2. Illimitable Article 53 (1) says that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 74: Before the 42nd Amendment, 1976 Originally , Article 74 (1) provided that there shall be Council of Ministers with the Prime Minister at the head, to aid and advise the President in the exercise of his functions. Article 74 (2) says that the question whether any, and if so, what advice was tendered by the Ministers to the President shall not be inquired into in any court.
Prior to the Constitution (42nd Amendment) Act, 1976 there was no clear provision in the Constitution that the President was bound by the ministerial advice. A purely literal and legalistic interpretation of these Article conveys the impressions the President, if he so desire, could become a dictator. After the 42nd Amendment Act, 1976 This amendment removed all doubts about the position of the President under the Indian Constitution. It says ´there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in exercise of his functions act in accordance with such adviceµ. It makes it wide clear that the President shall be bound by the advice of the Council of Ministers.
Question arises Who is Supreme? The President or the Prime Minister and his Council of Ministers? After the 42nd Amendment, now the President has to work as per the advice of the Prime Minister and council of ministers. The pendulum of power has shifted from one extreme to other extreme i.e. Absolute power to no power. Have we created new Absolute power holder? To answer this question, it becomes necessary to study the relationship between the President and the Prime Minster and his Council of Ministers after the 44th Amendment Act, 1978 which added the following proviso in clause (1) of Article 74. ´Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsiderationµ.
He is one of its own kinds, no one is like him.
Powers are concentrated in single hand, may be an individual or group of individuals. In India, the President is the head of the State. All the powers are concentrated into his hands. However he cannot exercise these powers without consultation with the Prime Minister and his Council of Ministers. According to Article 75 (1), the Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice Prime Minister.
Austin·s sovereign concept can prevail only in autocratic state, in limited sense. International law is based on two principles of International comity, every sovereign state is absolutely sovereign within its sphere and every sovereign state should respect other sovereign state. Pan Am Aeroplane Blast Although Colonel Gaddafi, the sovereign leader of Libya, controls Libya through dictatorship, he had to bowed down to International pressure on the locker bee incident.
Iraq-Kuwait War Late Saddam Hussain, who tried to control Kuwait after evasion in 1993, had to leave and run back into his own country thereafter. It did not end there rather he was forced down to surrender on his own soil by the Americans and later on sentenced to death on 30th December 2006 at 8:30 am (Indian Standard Time).
End of Taliban Ruled Government in Afghanistan
WHAT DO YOU MEAN BY COMMAND?
To call a particular act ¶command·, Prof Joseph Raz laid down six essential conditions. 1. Austin desires some other person to behave in a certain way; 2. He has expressed his desire; 3. He intends to cause harm or pain to these persons if his desire is not fulfilled; 4. He has power to do so; 5. He has expressed his intention to do so; 6. He expresses the content of his desire.
1. Austin desires some other person to behave in a certain way 2. He has expressed his desire Indian Penal Code, in general, lays down criteria to be followed by individuals in day to day affairs. E.g. Section 378 IPC defines offence of ¶Theft·.
3. He intends to cause harm or pain to these persons if his desire is not fulfilled 4. He has power to do so 5. He has expressed his intention to do so 6. He expresses the content of his desire
Section 379 lays down the punishment for the offence of ¶Theft·.
Austin·s description of law closely approximates ¶law that imposes duties· and not the laws ¶that are power conferring laws or rules of competence·.
E.g. Penal Statute are duty imposing. In case of the criminal law, it is not individual·s discretion whether to obey or not. He has to obey.
What is about ¶civil law·? It is power conferring laws or rules of competence. E.g. Indian Contract Act. It is not binding on all the subjects unless they desire, need. In case of contract, it is one·s own discretion, whether to enter into a contract with particular person or not.
John Austin does not regard ¶International Law as true law·.
Is law always ¶the command· of the determinate superior authority i.e. the sovereign? The clear cut answer is ¶no·. Anti-social practices like SATI, DEVDASI, DOWRY are prohibited by laws which are the outcome of strong social resurrection. Although law is command of sovereign, it·s validity is to be proven on the touchstone of ¶Judicial Pyre·. Sovereign cannot pass any law and be with it. Judiciary may declare it to be void. TADA, Section 309 IPC
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.