Jurisprudence

Schools of Jurisprudence – Analytical Positivism

Legal positivism is the most powerful school of thought in jurisprudence. The positivist movement began at the beginning of the 19th century. The analytical school is positive in its approach. The jurists of the school consider that the most important aspect of the law is its relation to the state. Law is treated as command emanating from the state. Due to this reason, this school is also known as the imperative school. Learn Analytical positivism here.

Schools of Jurisprudence – Analytical Positivism

Meaning of Positivism
The term ‘positivism’ has 5 meanings:

  1. Law commands.
  2. The analysis of the legal concepts is distinct from the sociological and historical inquiries and critical evaluation.
  3. Pre-determined rules can deduce decisions.
  4. Moral judgments cannot be accepted or defended by rational arguments.
  5. Law, as it is (actually), has to be kept separate from the law that ought to be.
  6. The fifth meaning is correctly associated with positivism.

Features of the Theory

  • The purpose of the analytical school of jurisprudence is to analyze the first principles of law.
  • The main task of the analytical school is the articulate and systematic exposition of the legal ideas.
  • One motive of the analytical school is to gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning.
  • The analytical school takes law as the command of the sovereign.
  • It puts emphasis on legislation as the source of law. The whole system is based on its concept of law.

Features

  • The school considers law as a closed system of pure facts from which all norms and values are excluded.
  •  The ideals do not bother the analytical lawyer. He/she takes the law as a  given matter created by the state.
  • The significance of analytical jurisprudence lies in the fact that it brought about precision in legal thinking.

Chief Exponents of the Theory

  1.  Bentham
  2.  Austin
  3.  Sir William Markby
  4.  Sheldon Amos
  5.  Holland
  6.  Salmond
  7.  Professor HLA Hart

Jeremy Bentham & Analytical Positivism

The founder of positivism is Jeremy Bentham. Austin owes much to Bentham and on many points, his prepositions are merely the ‘paraphrasing of Bentham’s Theory’.  According to Betham, there are different aspects of the law.

  1. Source
  2. Subjects
  3. Objects
  4. Extent
  5. Aspect
  6. Force
  7. Remedial appendages
  8. Expression

Analytical Positivism

                                                                                                                         Source: Jeremy Bentham and Analytical Positivism

Criticism of Bentham’s Theory

There are two shortcomings of Bentham’s theory.

  1. Bentham’s abstract and doctrinaire rationalism
  2. Bentham’s weakness to develop clearly his own conception of the balance between individual and community interests.

John Austin and Analytical Positivism

John Austin is the originator of the analytical school.  He is the father of Engish Jurisprudence. The scientific treatment of Roman Law influenced Austin. For that reason, he started the scientific arrangement of English law.  Like Bentham, Austin was of the opinion that ‘law’ is only an aggregate of individual laws.  In his lecture book titled ‘The Province of Jurisprudence Determined’, Austin dealt with the nature of law, sources of law and showcased an analysis of the English legal system. The major thrust in Austinianpositive law was on the separation of law from morals.  Salmond has criticized Austin’s theory of law which completely deprives law from morality.

Difference between Philosophy of Austin and Bentham

Bentham is a conscious innovator of new forms of inquiry into the structure of law.
He made explicit his method and the general logic of inquiry.
Bentham thinks that command is only 1 of 4 aspects which the will of the legislator may bear to the act concerning which he is legislating.

Question on Analytical Positivism

Ques1. Which of the following(s) is/are true

  1. Law commands.
  2. The analysis of the legal concepts is distinct from the sociological and historical inquiries and critical evaluation.
  3. Pre-determined rules can deduce decisions.
  4. All of the above

Ans. Option 4 is correct

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