Analytical school of Jurisprudence

1. ANALYTICAL SCHOOL
OF JURISPRUDENCE
KASHYAP THAKKAR
JURISPRUDENCE
SEM - V

2. SCHOOLS OF JURISPRUDENCE
• Schools are groups of thoughts that are based on broadly
the same fundamental premise.
• As a theory or philosophy of Law, Salmond dividend Schools
of Jurisprudence into three types:
1. Analytical School
2. Sociological School
3. Historical School
4. Philosophical School

3. ANALYTICAL SCHOOL
• Analytical school 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.

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

5. (subjects ought
to follow the
laws)
(positive
moral
obligations)

6. FEATURES OF ANALYTICAL THEORY
• The purpose of the analytical school of jurisprudence is to
analyse the first principles of law.
• The main task of the analytical school is the effective and
systematic interpretation 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.

7. JOHN AUSTIN ANALYTICAL POSITIVISM
• John Austin is the originator of the analytical school. He is
the father of English Jurisprudence. The scientific
treatment of Roman Law was 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. The major thrust in
Austinian positive law was on the separation of law from
morals.
• Salmond has criticized Austin’s theory of law which
completely deprives law from morality.

8. JOHN AUSTIN ANALYTICAL POSITIVISM
• Starting point of Austin theory is his definition of
independent and politically organized society and
sovereign.
• He said , ‘If a determinate human superior, not in a
habit of obedience to a like superior, commands
habitual obedience from a bulk of a society, such a
society is politically organised and independent.’
• He defined Law as: “A rule laid down for the
intelligent being by an intelligent being having power
over him”.

9. JOHN AUSTIN ANALYTICAL POSITIVISM
• If we analyze the content of the positive law we find
the following characteristics:
1. Law is a command
2. Only general law is command
3. Sovereign is the main source of law
4. There is sanction to enforce the law
5. There is clear cut separation of law and morals.

10. LAW AS COMMAND
• The notion law in command was advanced by Bodin
and Hobbs.
• It is said that Austin theory is based on this idea:
1. Command – different from request and wishes.
2. It has an element of Fear (Sanctions)
3. Penalty for disobedience.

11. LAW AS COMMAND
• Two kinds of Commands:
1. General Command – are issued for the guidance
of a whole community.
2. Particular command are issued for the guidance of
a particular community/ individual.
• Only general commands are law .
• General commands must also be continuous and
lawful.

12. SOVEREIGN
• A society without sovereignty cannot be called a
state.
• The determinate human superior is the only law-
maker. His commands are laws and without him the
state can have no laws.

13. SANCTION FOR ENFORCEMENT
• Sanction is absolutely necessary to enforce law.
• Sanction is the sole crux of Positive law.
• It denotes the fear of punishment in case of
disobedience of the laws.
• There is no sanction behind the International law
therefore Austin called it as a positive morality.

14. SEPARATION OF LAW & MORALS
• Law and morality are separate.
• laws are general commands issued by a sovereign to
members of an independent political society, and
backed up by credible threats of punishment or other
adverse consequences ("sanctions") in the event of
non-compliance.
• Though, morality must be consulted in determining
what the law should be.

15. CRITICISM
• Sovereign is not only the source of law.
• Theory ignores custom.
• No Place for Judge made laws or precedents.
• It cannot be applied in the area of civil law.

16. THANK YOU