Analytical School With Pure Theory of Law-1

Subject: Jurisprudence
Class : B.Com
Semester- 5th
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University Institute of Legal Studies Campus: Gharuan, Mohali
VISION
Schools of Jurisprudence( Analytical School)
Meaning of the term School
•A particular idea or set of ideas held by the specific
groups. Any idea that the group strongly believes in , be it
through practicing this idea in everyday life or through
fighting for its adoption can be considered as a School of
Thought.
•Some jurists have justified this division or grouping in
the interest of uniformity of laws.
• But others have denounced such disintegration of
jurisprudence into different “schools” as it perpetuates
“over-lapping” and atomisation i.e increases separation of
law into different parts.
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Analytical School/Imperative School/Positive School of
VISION
Jurisprudence
Important Characteristics of Analytical School
• It deals with law as it exists in the present form.
• The most important aspect of law is its relation to the State.
• Law is command of sovereign, namely the State. That is why it is
called the Imperative School.
• The exponents of this school are not concerned with the past or future
of the law, but are concerned with the study of the law as it actually
exists in the present form i.e “Positus”. That is why this school is called
Positive School of Jurisprudence.
• Bentham is considered to be the “Founder of Positive School” while
Austin is considered to be “Father of Positive School or Father of
English Jurisprudence”.
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Cont….. VISION
•It is also called “Austinian School of Jurisprudence”.

• Other Important authors are Holland, Sheldon, Markby etc .
• Contribution of Jeremy Bentham(1748-1832)
•Founder of Analytical School
•Austin owes much to Bentham because his theory is merely para-phasing of
Bentham’s theory.
•Views of Bentham on Law
• Law in England during Bentham’s time developed in a confused way as a
result of the customs or modes of thought which prevailed at different period.
• Law of England grew out of occasion and emergency. That is why it is said
that law in England had in fact grown rather than been made.
• He stressed
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on thorough going classification of law as it is. 4
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.
Cont.... VISION
• He divided jurisprudence in two parts:
• Expositorial Jurisprudence- What law is.
• Censorial Jurisprudence- What law ought to be.
• He stressed on the codification of law.
• Bentham’s concept of law is “IMPERATIVE” one i.e commanding or authoritative because according
to him law is assemblage of sign , declarations of volition conceived or adopted by sovereign in a
State.
•Eight Important Aspects of Law According to Bentham:
• Law is always governed by the will of Sovereign, so according to Bentham Source
of Law is Will of Sovereign. Sovereign can make law by itself, can permit the laws
made by former sovereign, can adopt the laws to be made in future by subordinate
authorities.
• Sovereign always prevails over its Subjects i.e persons or things , which can be
active or passive.
•Law deals with objects i.e Acts, Forbearance or Situation. Depending on each
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Gharuan, it
Cont....
•Law always prevail over territory i.e it covers a portion of land on which
acts are done.
• Law has its own aspect ; Aspect may be Sanctional or Directive. Command
is that aspect of will of sovereign which carries with it the “Force of Law”.
• Force or sanction , which motivates the evidence of law , regulates the
conduct of subjects in the society.
• Remedial State appendages to stop or prevent the evil. They are addressed
to judges with the view to prevent the future evil.
• Bentham was against the judge-made law so he was of the view when
expression of law is complete , the judge should adopt literal interpretation,
if this is not so, judge should adopt liberal interpretation.
• He never regarded customary laws as law because they can not be
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Bentham’s Concept of Utilitarianism
Bentham propounded the principle of “Utilitarianism”. According to this theory the right aim of the legislation is
the carrying out of the principle of utility.
• Utility is defined by Bentham as “the property or the tendency of a thing to prevent some evil or procure some
good”.
•According to this theory , the proper end of every law is the promotion of the “Greatest Happiness of the
Greatest Number”.
• According to Bentham the consequences of good and evil are respectively “Pleasure and Pain”.
•According to Bentham Nature has placed human beings under governance of two sovereign masters i.e
pleasure and pain. They only point to us what we ought to do and what we should refrain from doing.
•The good or evil of the action has to be measured by the quality of the pain and pleasure resulting from it.
•This theory became popular around 1830.

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Cont…. VISION
• He was convinced that if individuals comprising the society were happy and contented, the whole body politic
would enjoy happiness and prosperity.
• Happiness can be ensured by attaining four major goals:

•Subsistence
•Abundance
•Equality
•Security
•That is the function of the law is to meet these ends by (a) by providing subsistence i.e survival or endurance
(b) by producing abundance (c) By establishing equality (d) by maintaining security.
• Security is the most important to Bentham because it aims to protect the honour, property and status of the
person. He believed that the liberty of the individual , a highly important branch of security must sometimes be
given consideration in the light of security. According to Bentham the main objective of the legal regulation
should not be liberty but security and equality.
•He supported the economic principle of “laissez-faire” which meant the minimum interference of the State in
the economic activities of the individuals. 8
Cont VISION
•He believed that people’s right to property must be respected, society should
respect private enterprise so as to promote opportunities for subsistence and
abundance, in this way only the welfare of the State can be done.
•Bentham rejected natural rights and recognised no limitations on Parliamentary
sovereignty.
• Authors who supported Bentham
•John Stuart Mill supported the principle of “Utilitarianism” which is also called the
doctrine of “Hedonism” or the theory of “Pain and Pleasure”.
•John Stuart said that the doctrine of pleasure and pain was altruistic i.e showing
unselfish concern for the welfare of the others and not egoistic since the aim is “the
happiness of all”.
•Pleasure and pain according to Bentham are the ultimate standards on which the
law has to be judged and it is for this reason that morality has no place in Bentham’s
utilitarian approach.
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Cont VISION
•Sir Henry Maine said “Bentham was neither a jurists, nor a moralist in the proper
sense of the word. He theorises not on law but on legislation; when carefully
examined , he seems to be the legislator even in morals. No doubt, his language
seems sometimes to imply that he is explaining moral phenomena, but in reality he
wishes to alter or re-arrange them according to a working rule gathered from his
reflection on legislation”.
•Bentham’s contribution to legal theory is so great that his period is known as

“Benthamite era” in the legal history of England.
•He introduced legal positivism and treated legal theory as a science of investigation
which should be based on experiments and reason.
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Cont VISION
Criticism Against Bentham
•According to Friedmann, it suffers from two weaknesses:
•He under-estimates the need for individual discretion and flexibility in the
application of law, over-estimating the power of the legislator, when he tries to blend
materialism with idealism.
•His theory fails to balance individual interests with the interest of the community.
• Pleasure and pain cannot be the final test to judge the adequacy of law.
•According to him the interests of an unlimited number of individuals is conducive to
the interest of the community which means that freedom of enterprise will lead to
greater quality of competition.
• But when it is put to actual practice, it is just the reverse of it resulting into
inequality i.e means of production and distribution get into the hands of few people
who start exploiting others.
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Cont VISION
Bentham’s View on Justice
•According to Bentham longing for justice is longing for happiness.
•Justice includes in it social happiness, which is guaranteed by social order,
protecting social interests which are socially recognized by the majority and are
worthy of being protected.
• A social order is just if it is satisfactory to all men.
•Bentham agreed with Hans Kelson who said “absolute justice is an irrational ideal,
an illusion- one of the eternal illusions of mankind”.
•Bentham’s concept of justice is based on set of values(morals) which vary according
to society to society ; the individuals have to rationalise their behaviour according to
the set values and thus behave accordingly.
•If they don’t there would be conflict of interest and if there is no conflict of interest
there would be no need for justice.
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Cont VISION
Criticism Against Bentham
•According to Friedmann, it suffers from two weaknesses. (1) Bentham
underestimates the need for individual discretion and flexibility in the application of
law, overestimating the power of the legislator. (2) His theory fails to balance
individual interests with the interests of the community.
• His theory of pleasure and pain cannot be the final test of the adequacy of law.
• Bentham believes in the policy of laissez-faire i.e minimum interference of State in
the economic activities which means that freedom of enterprise will automatically
lead to greater quality, but when put to actual practice, it is just the reverse of it
resulting into inequality.
•Bentham supported that law should always be made by the legislation, but
practically legislation used to restrict the individual’s freedom in economic matters.
•That’s why Dicey said “the apostle(ambassador) of individualism was destined to
become the founder of state’s socialism”.
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Cont VISION
Contribution of Bentham:
•His theory of “Utilitarianism” and his legal reforms ushered new era in the history of
the legislation in England.
•He was intellectual God–father of John Austin because from Bentham, the latter
borrowed, developed, and perfected his theory of Analytical positivism.
•G.W Paton said “it was shocking that Bentham’s moralising and utilitarian theory of
law was altogether rejected and excluded from European Jurisprudence during the
dying decades of 19th century . Though the main concern of Bentham was to
advocate reforms, but his brilliant insight in human behaviour and shape of model
law was the greatest contribution to European jurisprudence”.
• His theory always focused on promotion of happiness of people.

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John Austin (1790-1859) VISION
•Born in 1790, he joined the army and served as an ARMY OFFICER for five years
until 1812.
• He was called to the Bar in 1818 after his graduation.
• Later on he joined as Professor of law in the newly founded Benthamite University
College in London.
• He was elevated to the chair of jurisprudence in the University of London in 1826.
•The army life of strict discipline and command had its reflection in the Austin’s life
and philosophy.
•The name of his book is “Province of Jurisprudence Determined” in 1832, while the
name of the book of Bentham is “The Limits of Jurisprudence Defined”. In his work
Austin , dealt with the sources and the nature of the law and analysis of the English
legal system.
• He also wrote “Plea for the Constitution” in response to Gray’s work on
“Parliamentary Government”.
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The Concept of Analytical Positivism
VISION by John Austin
•He is father of “English Jurisprudence”.
• He divided laws into two parts (1) Laws properly so called (2) Laws improperly so
called.
• Laws properly so called- laws which are other than the morals.
•Laws improperly so called- laws which lack the force or sanction of the State.
• Positive law- It is the aggregate of rules set by man as politically superior to men as
politically inferior subjects. There are four attributes of positive law:
•(1) Command (2) Sanction (3)Duty (4) Sovereignty
• Positive law is different from “Positive Morality” because “Positive Morality” is not
backed by legal sanctions.
• He always identifies law with command , duty and sanction.
•According to Justice Holmes “Austin’s distinction between positive law and positive
morality seeks to exclude the consideration of the goodness or badness in the realm
of law. 16
The Concept of Analytical Positivism
VISION by John Austin
•In Austin’s positive law there is no place for ideal or justness in law.
•He distinguished science of jurisprudence from ethics because he separated law
from morals.
•Science of jurisprudence is concerned with the positive laws irrespective of their
goodness or badness.
• Thus Amos observed that a positive law according to Austin must be legally binding
though it may be unjust.
•Thus he made system of law logical, coercive and enforceable being distinct from
law as it ought to be.
•According to Austin “Command is the science of jurisprudence”.
•Austin says “ the existence of law is one thing , its merit and demerit another…. A
law which actually exists is a law, though we happen to dislike it or though it may
vary from the text by which we regulate our approbation(approval) or
disapprobation”.
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Austin’s Imperative TheoryVISION
of Law
•According to Austin “Law is a rule which is laid for the guidance of intelligent beings
by an intelligent being having power over him”.
• Law according to Austin is of two types:
•(1)Law set by God for men (2)Human Law-Law made by men for men.
•He says positive morality is not “law properly so called” but it is law by analogy(a
comparison between one thing and another typically for the purpose of explanation
or clarification.)
• He says the subject matter of jurisprudence is positive law- law simply and strictly
so called; or law set by political superior to political inferiors.
•The chief characteristics of positive law- command, duty and sanction i.e every duty
is a command, imposing a duty and enforced by sanction.
•Thus we can say law is command given by sovereign, carrying with it threat of evil,
which is called sanction and the party commanded and threatened is under an
obligation to obey it.
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Austin’s Imperative TheoryVISION
of Law
•Duty and command are co-relative and fear of punishment is the motive for
obedience of such command.
• Laws which are not COMMANDS but are still RECOGNISED by Austin:
•Declaratory or Explanatory Laws- These are not commands because they are in
existence and are passed to explain the law which is already in force.
•Laws of repeal- Austin does not treat such laws as commands because they are in
fact the revocation (the official cancellation of decree) of a command.
•Laws of imperfect obligation-They are not treated as command because there is no

sanction attached to them. Austin holds that command to become law, must be
accompanied by duty and sanction for its enforcement.
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Criticism of Austin’s Imperative
VISIONTheory of Law
•Grounds on which Austin’s theory is criticised:
•Customs not given much importance- Customs play important role in regulating the
human conduct , but according to Austin since law is command given by sovereign so
no importance is given to the customs. Customs still continue to be potent source of
law even after the existence of the State yet they are not recognized by Austin.
• Permissive character of law ignored- Austin’s theory does not take notice of laws
which are of a permissive character and confer privileges e.g the Bonus Act.
•No place for Judge–made law- In the present era, the body of judiciary has emerged
as a law making agency and this accepted in modern times all over the world, but
the law made by the judges is not recognized by Austin.
•Command over-emphasized- The Swedish Jurist Olivecrona denounced Austin’s
theory of law because it over-emphasized on “command” as an inevitable
constituent of law. In modern societies law is considered as an expression of the
general will of the people so command aspect has lost its significance.
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Criticism of Austin’s Imperative
VISIONTheory of Law
•Grounds on which Austin’s theory is criticised:
•It is unrealistic to think that in modern era sovereign can give arbitrary commands.
The fact is that sovereign is an integral part of the community and in making laws it is
guided by public opinion.
• The relationship of law and morality completely ignored- Law cannot be completely
divorced from ethics or morality which provide strength to it. The legal concepts like
“right” “wrong” “duty” “obligation” etc themselves suggest that there is some
ethical or moral element present in them. Dr. Jethro Brown said “even the most
despotic legislator cannot think of or act without availing himself of the spirit of his
race and time”.
•Sanction alone is not the means to induce obedience- The factors like fear ,
detterance, sympathy, reason can be used to make a person obey the law , it is not
essential that sanctions alone can induce the person to obey the law.
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Criticism and Contribution of Austin’s Imperative Theory of
VISION
Law
•Indivisibility of Sovereignty criticised - (1)According to Austin the sovereign could
not be under the duty because his being under duty would impliedly mean that
there is another sovereign above him. But Jethro Brown says that the sovereign
could well be bound by a duty towards his subject.(2) Austin also talked that
sovereign body is indivisible, this view is not right because even Bentham showed
that in the British era, sovereignty could be divided, by conferring concurrent power
of law-making between colonial legislature and British Crown.
• Contribution of John Austin:
• The credit of heralding new era in the English legal thought goes to Austin.
• He is acknowledged as the pioneer of the modern positivism by Prof. Olivecrona.
• The merit of Austin’s theory of law lies in its simplicity, consistency and clarity of
exposition.
• Dr. Allen said “for a systematic exposition of the methods of English Jurisprudence
we will have to turn to Austin.”
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Contribution of Austin’s Imperative
VISION Theory of Law
• However Holland, Salmond and Gray later on tried to improve the theory of Austin.
• Salmond said that sovereign is not the sole-law giver instead law consists of rules
recognised and acted upon by law-courts.
• Gray said that law is rule of conduct and it is laid by the persons acting as judicial
organs of the State.
• Holland in his book named “Elements of Jurisprudence” accepted command as

inseparable element of law and said “it is general rule of human action enforced by
superior authority on his subjects”.
•These modifications in the Austinian theory later gave rise to Vienna School in later
years.
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H.L.A Hart’s Conception of VISION
Law
•Herbert Lionel Adolphus Hart was born in 1907.
•He practised at the Chancery Bar and thereafter, worked as a Professor of

Jurisprudence in Oxford during 1952-68.
• He rejected Austin’s theory of imperative law and gave his legal theory on the
relationship between law and society.
• His classic work “The Concept of Law” was written in criticism of Austin’s theory.
• His theory was different from his predecessors because he said law, coercion and
the morality are related to each other and have social implications.
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H.L.A Hart’s Conception of Law – Primary and Secondary
VISION
Rules.
•According to Hart , law is based on the union of two types of rules:
•Primary Rules- rules which impose duty
•Secondary Rules- rules which confer power to create the duty
• The union of the two rules is the essence of law.
•These rules are not formally made or interpreted.
• The primary rules which impose duty are binding in nature as they are accepted
popularly such as the rules of kinship, family sentiments etc.
•But these rules suffer from four major defects:
•Uncertainty – They are uncertain in nature because they are not enforced by the
courts . Law becomes certain through the interpretation and since interpretation is
always made by the Court so absence of courts lead to uncertainty.
•Static- They are static in nature because they evolve and are not formally made.
•Inefficiency – They are not much efficient due to lack of enforcement machinery.
•Lack of Agency- Besides there is no agency to decide about these rules.
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H.L.A Hart’s Conception of Law – Primary and Secondary
VISION
Rules.
•Secondary Rules- the rules which confer power to create the duty.
•These rules are related to the three important agencies Legislature, Executive and
Judiciary.
•These laws do not suffer from the three lacunas because these are made by the
formal agencies i.e legislature, executive and judiciary.
•The secondary rules always enable the legislators to modify their policies according
to the changing needs of the society.
•These rules try to remove the defect from primary rules and it is the union of the
two which gives birth to the law.
•Thus primary rules which impose duties are concerned with actions involving
physical movement or changes whereas the secondary rules which confer public or
private powers provide for operations which lead to creation or variation of duties or
obligations.
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Law – Rules of Recognition
•Hart talks about the concept of “Rules of Recognition”.
•He says only the rules which are recognised in one way or the other, are accepted in
the society and such rules have binding force.
•The validity of law is to be tested on the basis of rule of recognition which is similar
to Austin’s conception of sovereign.
•Hart says that rule of recognition is not extra–jural hypothesis like Kelson’s basic
“Grundnorm”.
•For example-Whatever is enacted by the British Queen in Parliament is the rule of
recognition.
•All those rules which are recognised and which are binding on citizens, officials,
legislatures, Courts and various other governmental agencies are rules of positive
law.
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Law –Rules of Recognition
•Important Postulates of H.L.A Hart’s Philosphy:
•He accepted law as a command , as advocated by Bentham and his disciple Austin.
•He believed that analysis of legal concepts are worth pursuing as distinguished from
mere sociological and historical inquiries.
•The judicial decisions were to be deduced from pre-determined rules without

recourse to social aims , objectives , policy or morality.
•Moral judgements cannot be defended by rational argument, evidence or proof.
•The “law actually as it is” has to be kept separate from “ law as it ought to be”.
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Law and Morality
•H.L.A Hart does not denounce the role of natural law in his positivism.
•Hart contends that it is necessary for law and morality to have certain element of
natural law as a logical necessity.
•Hart says that as a member of society individuals feel morally bound to abide by
primary and secondary rules as a matter of duty and obligation.
• According to him there are four attributes of morality:
•(1) Importance (2) Immunity from deliberate change (3)Voluntary character of
moral offences (4) Forms of moral pressure which separate it from etiquette, custom
and other social rules. The rules which govern the sexual behavior provide the best
example of morality.
•Hart observed that a balance has to be drawn between the freedom of individuals
to have intellectual and artistic freedom and the duty of the law to protect society
from depravity and corruption. Law has to function to ensure that morality of society
does not disintegrate.
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H.L.A Hart’s Conception of Law and Morality And its
VISION
Criticism
• Hart says “law’s function is only the last line of defence; other attempts to preserve
the accepted morality should come from within the society itself e.g through
education, mass media etc.
•Criticism of H.L.A Hart’s Philosophy :
•Dworkin drew distinction between “rules” and “principles” and pointed out that a
legal system cannot be conceived merely as an aggregate of rules but it has to be
based on certain solid principles and policies.
•These principles are broad formulations of generalisation where as rules are
detailed precepts having a distinct and definite effect , they are more specific than
principles.
•For example no one can take advantage of his own wrong , is a well established
principle of law.
•Dworkin says rules are applicable in an “all-or–nothing fashion” and their
distinguishing feature is “reason”.
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VISION
Criticism
•Dworkin points out that judges have the discretion of creating new legal rules where
the existing law is silent on a particular point or does not provide necessary guidance
in a particular case - situation.
•Lon Fuller has also criticised Hart’s theory that there is no law other than the rules
of recognition.
•Fuller says that legal system must concern itself with both law “as it is” and “as it
ought to be”.
•He says that law may be of little service and may cause both injustice and misery if
they do not conform to the “internal morality”.
•Eight conditions according to Fuller which constitute the internal morality of law :
•There must be rules(2) Rules must be published (3)Retractive (which can be drawn
back) legislation must not be used abusively (4)The rules must be understandable.
(5)The rules must not be contradictory .(6)The rules must be require the conduct
beyond the power of the affected parties.
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VISION
Criticism
(7)The rules must not be changed so frequently that the subjects cannot guide their
actions by them.
(8)There must be congruence(similarity) between the rules as announced and their

actual enforcement .
•Lon Fuller believed that “law represents order simplicitier” and “law should
correspond to demand of justice or morality or men’s notion of what ought to be”.
•Thus according to Lon Fuller both “is” and “ought” seem to be inseparable or
indissolubly fused.
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Distinction between Positive Law and Morality
VISION
•Positive Law consists of rules for governance of the outward acts of the mankind
while the Morality consists of principles of justice based on reason in the widest
sense.
•Morality is unwritten law which is followed by mankind as eternal laws being of
divine origin and immutable. Positive law, is made and enforced by the State.
•Taylor in his treatise “The Conception of Morality in Jurisprudence” has stated that
morality emanates from natural law whereas law emerges from absolute obligation ,
morality exists in abstract form whereas law exists in the concrete form, though both
have separate existence but they are components of single phenomenon.
•Morals are adjusted with changes in the society but law needs outside force of the
State to be set in motion.
•When individual moralities begin to clash due to changing rules of the society, it
calls for enactment of law to lay down common standards of behaviour.
•Thus genetically law and morality are complementary.
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Distinction between Positive Law and Morality
VISION
•Friedmann says there cannot be and there never has been a complete separation of
law and morality. According to him, there is distinct interaction between law and
morality, but this does not permit law to be rejected on the ground of its morality.
•R.W.M Dias said that those who assert law as it is, and not as it ought to be, do not
Deny the value of the latter, that is moral aspect of law but only contend that the
two should be kept apart.
•Positivism flourished in the Benthamite and Austinian period when social conditions
became stable and necessity of projecting a rigid separation between “what law is”
and “what ought to be” occasioned only when social conditions were in turmoil.
•Thus positivism represents the intellectual reaction against naturalism and need for
law to maintain order in society.
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Kelson’s Theory of Law VISION
•Hans Kelson is having the credit of reviving the original analytical legal thought in
the 20th century through his “Pure Theory of Law”.
•He was born in Prague in Austria in 1881 and was a Professor of Law at the Vienna
University.
•He was Judge of the Supreme Constitutional Court of Austria for ten years during
1920-1930. There after he shifted to England.
•He was Emeritus Professor of Political Science in the California University when he
expounded his “Pure Theory of Law” which is considered to be Kelson’s unique
contribution to legal theory.
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Kelson’s Theory of Pure Science of Law
VISION
•Kelson did not favour widening the scope of jurisprudence by co-relating it with all
social sciences and insisted on separation of law from politics, sociology, metaphysics
and all other extra legal disciplines.
• It is said that Kelson’s Pure Theory of Law tried to rescue jurisprudence from vague
mysticism and thus it was in a way “revival of John Austin’s 19th century analytical
jurisprudence.”
•Like Austin , Kelson divested moral, ideal or ethical elements from law and wished
to create “Pure” Science of law devoid of all moral and sociological considerations.
•He discarded the notion of justice as an essential element of law because many
laws, though not just , may still continue as law.
• Kelson “Pure Theory of law” is a theory of positive law based on normative order
eliminating all extra-legal and non-legal elements from it . He believed that a theory
of law should be uniform.
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Kelson’s Theory of Pure Science of Law
VISION
•Kelson’s theory of Pure Science of law is also known as “Theory of Interpretation”.
• It was reaction against vicious ideology which was corrupting the legal theory and
the jurisprudence of a totalitarian state.
•He named his theory “Pure Theory/Science of Law” because science to be called
“rational” must stand in a two-fold relation to its object, viz it determines the
conception of the object and establishes its reality, the object is theoretical and
establishing its reality is practical act.
•Kelson says his theory is applicable to all places and at all the times.
• It must be free from ethics ,politics, sociology, history etc though he did not deny
the value of these branches of knowledge.
•He only wanted that law should be clear of them.
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Law as “Normative Science”.
VISION
• Law is described by Kelson as “normative science” and not “natural science”.
•The laws of natural science are capable of being accurately described, determined
and discovered in the form of “is”(dasein) because they generally are based on cause
and effect relationship such as law of gravitation.
•But the science of law is knowledge of what law “ought to be”(das-sollen).
•It is the ought character which provides normative character to law.
•For example if A commits theft he ought to be punished.
•Like Austin, Kelson also considers sanction as an essential element of law but he
prefers to call it “norm”.
• Thus according to Kelson, “Law is a primary norm which stipulates “sanction”.
•It is called positive law because it is concerned only with actual and not with ideal
law.
• Dr. Allen has described Kelsenite theory of law as a “structural analysis as exact as
possible of positive law- an analysis free of ethical or political judgements or values.
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Kelson – Law As NormativeVISION
Science
•According to Kelson “norm” or “sanction” is a rule forbidding or prescribing a
certain behaviour.
• For him legal order is the hierarchy of norms having sanction and jurisprudence is
the study of these norms which comprise legal order.
• He says there is difference between the moral norm and the legal norm.
•For example moral norm says that “no one shall steal” but since there is no
sanction behind it , it lacks coercive force but if it is to be reduced in the form of
legal norm , it would say “if a person steals , he ought to be punished by the
competent organ or State.
39
Kelson concept of “The Grundnorm”
VISION
•Kelson says that there is “pyramidical structure of hierarchy of norms”, which derive
their validity from the basic norm which is termed as “Grundnorm”.
• Grundnorm determines the content and gives validity to other norms derived from
it.
•Kelson has no answer to the question that as to where from the “Grundnorm” or
the basic norm derives its validity.
• Julius Stone comments that just as Austin’s sovereign in the particular society is a
mere starting point for his legal theory , so also basic norm has to be accepted as a
hypothetical starting point or fiction which gives a legal system coherence (meaning
of coherence-the quality of being logical and consistent ) and a systematic form.
• Thus while all norms derive their validity from the basic norm “Grundnorm”, the
validity of basic norm cannot be objectively tested instead, it has got to be presumed
or pre-supposed .
•Kelson considers Grundnorm as a fiction rather than a hypothesis.
40
VISION
•Kelson says the Grundnorm need not to be same in every legal order(State) but it
must be necessarily there.
•It may be in the form of the written Constitution or the will of the dictator.
•For example in India the written Constitution is Grundnorm.
Pyramid of Norms
•Kelson considers legal science as a “Pyramid of Norms” with Grundnorm at the top
or the Apex.
•The subordinate Norms are controlled by norms superior to them in the hierarchal
order.
•The basic norm Grundnorm is independent of any other norm being at the Apex.
•The process of one norm deriving its power from the norm immediately superior to
it , until it reaches the Grundnorm has been termed by Kelson as “concretisation
of the legal system”. 41
VISION
•The system of norms proceeds from downwards to upwards and finally it closes at
the “Grundnorm” at the top .
• The Grundnorm is taken for granted as a norm creating organ and the creation of it
cannot be demonstrated scientifically nor it is required to be validated by any other
norm.
• A statute is valid because it derives its legal authority from the legislative body , the
legislative body in its own turn derives its authority from the norm i.e Constitution.
•As to the question from where does the Constitution derives its validity there is no
answer but it is Grundnorm according to Kelsonite conception of Pure Theory of Law.
•Kelson says that Grundnorm develops as a result of social, economic,political and

other conditions and it is supposed to be valid by itself.
42
VISION
• Thus all the legal norms of which the legal system is formed of , can be traced back
to the final source.
•The final source is the “Grundnorm” which is defined as the postulated ultimate
rule according to which the norms of this order are established and annulled ,
receive or lose their validity.
•Kelson characterised law as a technique of social organisation.
•It is not an end but is a specified means , as an apparatus of compulsion to which
there adheres no political or ethical value.
•Kelson said “law is not eternal sacred order , but a compromise of battling social
forces and so the concept of law has no moral connotations whatsoever.”
•Weakness of Grundnorm:
•Grundnorm looses its applicability when a new Govt. comes into power
overthrowing the existing Govt. by revolution.
43
VISION
•In such circumstances, the Courts are confronted with the problem whether to
continue applying the “laws” of the overthrown regime even though they are no
longer effective or to apply the laws introduced by the new revolutionary Govt.
which lacks legitimacy.
•There is no unanimity of judicial opinion in this regard.
• This matter has to be decided according to political exigencies of the situation and
general acceptance by the people.
•Salient Features of Kelson’s Theory of Pure Science of Law
• The theory aims to reduce chaos and confusion created by the supporters of
natural law philosophy.
•Pure theory of law deals with the knowledge of what law is, and it is not concerned
about what law ought to be.
•The theory considers law as a normative science and not a natural science.
•It is theory of norms not much concerned with the effectiveness of the legal norm.
44
VISION
•It is formal theory confined to a particular system of positive law as actually in
operation.
•Implications of Kelson’s Theory of Pure Sciences of Law
•It covers a wide spectrum of legal concepts such as State, sovereignty, private and
public law, legal personality right and duty etc.
• According to Kelson law and State are not different but they in fact one and the
same.
•He says there is no difference between private and public law.
•He says all legal personalities are artificial unless these personalities derive their
validity from “Grundnorm”.
•He says that legal duties are the essence of law and gives no consideration to
individual rights.
•In his view legal right is merely the duty as viewed by the person entitled to require
its fulfilment. 45
Criticism of Kelson’s TheoryVISION
•The credit of evolving a normative theory of law goes to Hans Kelson.
• But there were certain weaknesses in the “Pure Theory of Law”.
•Firstly it excludes all references of social facts and felt needs of the society. Thus
there is no sociological base behind the “Pure Theory of Law”.
•Secondly Kelson’s assertion that all the norms except the basic norm(Grundnorm)
are pure, has no logical basis. One fails to understand as to how subsequent norms
which derive their authority from the “Grundnorm” can be pure when the
“Grundnorm” itself is based on hypothesis that it is an outcome of the combination
of various social and political factors and circumstances in a given situation.
•Thirdly the theory is found to be based on hypothetical considerations without any

practicability. It is not possible to divest law from the influence of political ideology
and social needs.He does not consider justice and morality as essential attributes of
law.
46
•Fourthly, Friedmann says Kelson’s theory provides no solution for the conflicts
arising out of ideological differences. His theory rejects the element of justice as a
mere emotion which is not true. Law cannot be completely divorced from ethics and
morality which gives it a honourable place in the society.
•Fifthly Kelson’s account of legal dynamics is inadequate. It ignores the purpose of
law. For example while considering the validity or otherwise, of a particular
enactment the courts do take into account the prevailing custom or the motives of
the legislature and try to co-relate it with the social purpose which Act seeks to
achieve.
•Sixthly Kelson’s Pure Theory of Law also suffers from Methodological short-comings.
He ignores the fact that the action of the authority enforcing law to be valid ,has to
be in accordance with the procedure and therefore , it becomes necessary to probe
into the content of law. Mere use of force would not validate a law. Kelson’s
normative system being one-sided remains indifferent to the content of the norms.
47
•Seventhly, Kelson maintained that Grundnorm imparts validity as long as the “total
legal order” remains effective. But this does not hold good when Judiciary of the
State refuses to accept the legality of a usurper(usurper means a person who takes
position of power illegally by force)and is deposed sooner or later because of his
legal order cannot said to be effective.
•In Jilani Vs Govt. of Punjab , the Supreme Court of Pakistan declared the usurpers of
State power, as illegal as they were unlawful ab initio notwithstanding effectiveness.
•Thus it can be said that Kelson’s theory drew no distinction between effectiveness
of legal order which the subjects are compelled to obey due to fear and force of the
usurper of State power and effectiveness of a democratically accepted ruler whose
legal order they willingly obey.
48
Analytical Positivism Vs Indian Legal System
VISION
• Analytical positivism of Austin, Kant and Hart had three main characteristics:
•(1) Sovereign or Grundnorm as the law creating authority (2) Emphasis on law “as it
is” and exclusion of morality (3)insistence on sanction which was coercive force
behind enforcement of laws .
•Thus analytical positivism pre-supposes that sovereign or the law-maker is over and
above law and law is solely based on coercion or force and it has nothing to do with
the concepts of morality, justice or ethics.
•But there exists contradiction in the analytical positivism of the English legal system
and ancient Indian Jurisprudence.
• In the Austinian Positivism, sovereign being the law maker, is considered superior
to law but in ancient legal system, law is given the highest place by which the
subjects as well as the ruler were equally bound.
•Thus the law named Dharma occupied prime place in the Indian legal system and
the King or the ruler was to rule according to Dharma.
49
VISION
•Dharma consists of Achara(rules of daily routine), Vyavahara(rules or decrees or
commands of the King) and Prayaschitta(Penance).
•Vyavahara(the rules or commands of the King) were contained in Vedas, Smritis
which described traditions or customs as revealed or collected by the Sages(Rishis).
They emphasized on Sadachar i.e conduct of a virtuous man.
•In India law, morality and religion were co-existing concepts unlike analytical
positivism of Austin which completely divested morality and justice from law.
•The King was asked to enforce Law according to Shastras.
•The element of “Sanction” found expression in the ancient legal system by way of
“danda” which meant “Punishment” under the fear of which people used to follow
Dharma.
•King was not free to act arbitrarily but there is reference in the Shantiparva(it is 12 th
of 18 books of the Indian Epic Mahabharata, it basically talks about good
governance) that King who does not follow Dharma can be punished.
50
VISION
•King had to act according to Dharma that is why King was called as upholder of
Dharma, the Dharma(Rajdharma) was the real sovereign and not the King.
•The sovereignty of Dharma has been explained in Satpatha Brahmana contained a
passage saying “Since law is the King of Kings , far more powerful and rigid that
nothing can be mightier than the law by whose aid………even the weak may prevail
over the strong”.
•Kelson’s theory of Grundnorm fits into the legal philosophy of Ancient India as the
Indian Jurists also subordinated the authority of the King to Dharma which was
above the King’s sovereignty. The duty of the king was to act according to Dharma
which was akin to Grundnorm as it did not derive its validity from the King.
• Coming of Moghuls
•With the coming of Moghuls, the ancient Indian Legal System was substituted by
the Muslim Law of Shariah as laid down by Holy Quran.
51
VISION
•Many of the Muslim rulers like Allauddin Khilji arrogantly asserted “Law is what I say
and not what Quran says”.
•Many laws were discriminatory and differently applied for Muslims and Hindus.
•Muslim rulers did not make any juristic contribution instead they de-stabilised the
ancient legal system and thus hampered the cause of justice in India.
•Coming of Britishers:
•There came radical change in the Indian Legal System with the coming of the
Britishers.
•Lord Macaulay, the Law Member of the Governor-General – in –Council declared
Indian legal and political institutions as “dotages of Brahminical Superstition”.
•Sir Henry Maine, the author of “Ancient Law” criticised ancient Indian Jurisprudence
as an “idealistic imagination”.
•Macaulay introduced the codification of laws by applying the principles of justice
equity and good conscience.
52
VISION
• These codified laws were akin to Austinian concept of positive law having the
element of certainty, definiteness, effective enforcement and sanction.
• The Indian Legislature had no authority to change law. The subjects were bound to
obey British laws.
• Thus all the characteristics of positive law namely command, duty sanction and
sovereign were present in the legal system introduced by the British rulers in India.
•It is in this sense that the analytical positivism found its place in the Indian Legal
System during the British Colonial rule.
•Post Independence Era
• In order to deal with the changing conditions of the society the need for drafting
the Constitution arose.
•The Constitution of India was drafted , it came into force on 26th January 1950 and it
was termed as “Grundnorm” because all other statutes and legislative enactments
derived their validity from the Constitution.
53
Positivism in the Post- Independence
VISION Era
•Positivism of post–independence era is different from the Analytical Positivism
because today’s positivism seeks to establish harmonious relation between “is” and
“ought” means it does not ignore the element of morality from the law unlike earlier
when there was no importance given to morality.
• The approach of harmonious construction adopted by the Apex Court in cases
involving the conflict between the fundamental rights and directive principles
provide best example of fusion of law with justice and morality.
• But in case of Tilkayat Shri Govindlaji Maharaja Vs State of Rajasthan the Apex
Court ruled that the “firman” of the ruler is law by which subjects were bound legally
without any exception. This view is analogous to the Austin’s supermacy of sovereign
as law-maker.
• In “Re Kerala Education Bill” case, the Apex Court did not look beyond the letter of
fundamental rights and ignored sociological imperatives which forced legislature to
pass such law.
54
VISION Era
• The glimpses of positivism in the Indian Law can also be seen in those enactments
of the Parliament which are framed to meet the external and internal dangers to
public peace, security and integrity of India.
•The security measures such as Preventive Detention Act, 1950, MISA, TADA and now
POTA are examples which confer extensive power to the executive to impose
restrictions on the individual freedoms, all this shows State’s despoticism much
similar to the Austinian pattern which upheld the omnipotence of the sovereign.
• The Supreme Court adopted positivistic approach in the historic Habeas Corpus
Case wherein it was held that the fundamental rights remain suspended during the
Proclamation of Emergency and the writ of habeas corpus is not maintainable so
long as the right to life and personal liberty envisaged under Article 21 itself remains
suspended. The Court in this case justified the unbriddled power of the Executive
disregarding notions of justice, fair play and morality which was contrary to the spirit
of the Welfare State.
55
VISION Era
• The attitude of the Court has changed and now there is tendency on the part of the
judiciary to restrain and restrict the executive from usurping power and exceeding its
permissible limits.
•Law in today’s era is looked as an effective instrument of social change for the
welfare of the society.
•Law in today’s Era has to play a functional role in the present time to serve the
suffering Indian Masses.
•The developing trends in PIL and Judicial Activism has highlighted the weakness of
the positivistic approach not only in India but in all other progressive democratic
countries of the world.
•With the adoption of the Constitution in 1950, India became democratic, secular,
republic and socialist nation embodying within it the humanistic principles of
freedom, liberty, equality and social justice.
56
VISION Era
•The positivist approach adopted in A.K Gopalan Vs State of Madras by the Supreme
Court in which it relied on the rigid principle of “procedure established by law” and
held that the word “law” used in Article 21 could not be interpreted to include
within it the principles of natural justice, was found incompatible with the
developing trend of social justice and so was finally departed in Maneka Gandhi Vs
Union of India wherein it was held that the procedure prescribed by law has to be
just, fair, reasonable and not oppressive and arbitrary.
•The Court ruled that the American concept of “due process” i.e reasonableness and
fairness was implicit in the expression “procedure established by law”.
• This view found support in Unni Krishnan Vs State of A.P and also in Consumer
Education & Research Centre Vs Union of India and the trend today is to interpret
the right of life and liberty under Article 21 in a manner so as to fulfill the cherished
goal of social justice and social change.
• It can be said Positivistic approach hardly has any place in modern Indian setting.
57
Sociological School VISION
of Jurisprudence
•Main Characteristics of Sociological School
•The exponents of this school lay greater stress on functional aspect of law rather
than its abstract contentions.
• They consider law as a social institution , inter-linked with other disciplines bearing
direct impact on the society.
•It discards the abstract notions of analytical positivism which lay over- emphasis on
command or power aspect of law.
•They define law in terms of court’s rulings and decisions thus approaching a realistic
approach to law.
58
Sociological School VISION
of Jurisprudence
Four Developmental Stages of Sociological Jurisprudence
(a) Empirical Scientific Approach to Law- Auguste Compte, the founder of

Sociological Jurisprudence gave the concept of “Scientific Positivism”. He did not give
recognition to hypothetical considerations, based his study on logical observations to
establish relation between law and society. This was the first stage of the evolution
of sociological jurisprudence.
(b) The Impact of Darwinian Theory- The next stage is called the “biological stage”
because of the influence of the Darwin’s evolutionary theory.
•They define law in terms of court’s rulings and decisions thus approaching a realistic
approach to law.
59

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Subject: Jurisprudence

•It is also called “Austinian School of Jurisprudence”.

•This theory became popular around 1830.

• Happiness can be ensured by attaining four major goals:

•Bentham’s contribution to legal theory is so great that his period is known as

• His theory always focused on promotion of happiness of people.

•Laws of imperfect obligation-They are not treated as command because there is no

• Holland in his book named “Elements of Jurisprudence” accepted command as

•He practised at the Chancery Bar and thereafter, worked as a Professor of

•The judicial decisions were to be deduced from pre-determined rules without

•Moral judgements cannot be defended by rational argument, evidence or proof.

(8)There must be congruence(similarity) between the rules as announced and their

•Kelson says that Grundnorm develops as a result of social, economic,political and

•Thirdly the theory is found to be based on hypothetical considerations without any

(a) Empirical Scientific Approach to Law- Auguste Compte, the founder of

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