Introduction

Analytical school is also known as the Austinian school since this approach is established
by John Austin. It is also called as an imperative school because it treats law as command
of the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the
school is positive law.
The analytical school gained prominence in the nineteenth century. The distinctive
feature of eighteenth-century juristic thought was Reason. Individualism became the
manifestation of the cult of reason. Writers like Descartes, Locke, Rousseau, Kant
advocated Reason as the last guide and judge in everything. Bentham breaks away from
the spirit of the eighteenth century, rejects natural law and subjective values and
emphasizes utility and propounds the concept of expository jurisprudence which deals
with the law as it is. Austin takes over tins concept of expository jurisprudence and
subjects it to a far more detailed, thorough and searching analysis. Allen has pointed out
that Austin does not revolt against 18th-century individualism but seems to be quite
impervious to it. His approach was secular, positivistic and empirical. In fact, it was
Austin who propounded the theory of positive law, the foundation of which was laid by
Bentham.

Analytical School / Positivist Theory :

The start of 19th century might be taken as the mark of the beginning of the positivist
movement. The term ‘positivism’ has many meanings, which were tabulated by Prof.
Hart as follows:
(i) Laws are commands;
(ii) The analysis of legal concepts is – (a) worth pursuing; (b) distinct from
sociological & historical inquiries;
(iii) Decisions can be deduced logically from predetermined rules without recourse to
social aims, policy or morality;
(iv) Moral judgments can’t be established or defended by rationale, argument, evidence
or proof; &
(v) The law as it is actually laid down has to be kept separate from the law that ought
to be.
Positivism flourishes in stable conditions. The difficulties of maintaining a right
separation b/w ‘law what is’ & ‘what ought to be’ come to light in turmoil.
JOHN AUSTIN
John Austin was a Prof. in London University, is the founder of the Analytical
School. He is considered as the Father of English Jurisprudence. He was elected to the
chair of Jurisprudence in the University of London in 1826. Then he proceeded to
Germany & devoted some time to the study of Roman Law. Austin, a disciple of
Bentham, is a positivist & concerned with ‘what law is’ & ‘not what law ought to be’.
‘Positus’ means ‘as it is’.

For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply & strictly so called’
or ‘law set by political superiors to political inferiors’. He believed that ‘Law’ is only an
aggregate of laws & defined ‘law’, “As a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him”. To him, law is the
command of a sovereign requiring his subjects to do or forbear from doing
something. There is an implied threat of ‘sanction’ if the command is not obeyed.

LAW
-----------------------------------------

Law properly so called Law improperly so called

------------------------------- --------------------------------

Law by God Law by humans Law by analogy

or Divine Law / Laws set by Law by metaphor
men for men
--------------------------------

Law by political Law by superiors Law of fashion All the laws

superiors to to inferiors, but & public opinion, of nature, i.e.,
political inferiors the superiors r not i.e., international law of motion,
political superiors law, customs & gravitation,
traditions etc.
This is called
Positive Law --------------------------
 Positive Morality

He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’. The
former are general commands addressed to the community at large & enjoined classes of
acts & forbearance. They are divided into laws set by God / divine law / law of God &
laws set by men to men. Laws set by men to men also fell into 2 categories –
the first consisted of laws set by political superiors to political inferiors. This was termed
by Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject
matter of jurisprudence. Thus, law properly so-called must hv 3 elements–
(i) command, (ii) sanction & (iii) sovereign. The secondcategory consisted of laws set by
men to men neither as political superiors nor in pursuance of rights conferred upon them
by such superiors, e.g., those set by a master to a servant or the rules of a club. They are
still laws properly so called because they are commands, but he distinguished them from
positive law by giving them the term ‘positive morality’.

Analogous to the laws of the latter class are a number of rules to which the name ‘laws
improperly so called’ is given. They are opinions or sentiments of an undeterminate body
of men & laws of fashion or honour. He places intl. law under this class. In the same
way, there are certain other rules which are called law metaphorically – laws of nature.
They are laws improperly so called.

‘Positive law’ (law simply & strictly so called or law set by political superiors to political
inferiors) is the only proper subject matter of jurisprudence. Jurisprudence is the general
science of positive law.

Laws properly so called are species of commands. But being a command, it flows from a
determinate source or emanates from a determinate author. For whenever a command is
expressed of intimated, one party signifies a wish that another shall do or forbear & the
latter is obnoxious to an evil which the former intends to inflict in case the wish is
disregarded. The key to understanding law properly so called lies in duty which is
created by the command of a sovereign. Duty & sanction are correlative
terms – whenever duty lies, a command has been signified & whenever a command is
signified, a duty is imposed.
In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which are
inextricably linked & can’t be separated. According to him, there are 3 kinds of laws,
which, though not commands, are still within the province of jurisprudence:

(i) Declaratory of Explanatory Laws : Austin does not regard them as commands
because they are passed only to explain laws already in force, e.g., General Clauses Act.
(ii) Laws to Repeal Laws : These too r not commands but are rather the revocation of
a command. They release from duties imposed by existing laws & are named permissive
laws.
(iii) Laws of Imperfect Obligation : These laws have no sanction attached to them.
Thus, there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P.,
F.D.s, etc.

Criticisms of Austin’s Theory :

(i) Customs ignored : For Austin, law is the command of sovereign. In the early
times, not the command of any superior, but customs regulated the conduct of the people.
Even after coming of State into existence, customs continued to regulate the conduct.
Therefore, customs should also be included in the study of jurisprudence, but he ignored
them. Customs have been in existence since old times. Customs hv also bn an important
source of law. As per Austin, customs can only be a law if the sovereign accepts them as
law, while customs provide the basis on which the law can be based. Thus, even if the
sovereign does not recognise them as law, customs have always bn an important source
of law & can’t be ignored.

(ii) Judge-made law : There is no place for judge-made law. In the course of their duty
(while applying precedents & interpreting the law), judges make law. Though an Austian
would say that judges act under the powers delegated to them by the sovereign, therefore,
their acts are the commands of the sovereign. However, in modern times, judges perform
a creative function & Austin’s definition of law does not include it.

(iii) Command theory untenable : Command presupposes a commander. No

indeterminate party can command, expressly or tacitly or can receive obedience or
submission. The question is whether he can be discovered, who might be regarded as
having commanded the whole corpus of law. In democratic system, it is not possible that
one person commands.
(iv) Sanction is not the only means to induce obedience : As per Austin, it is the
sanction alone which induces the man to obey law, while it is open to criticism from
many points of view as there are many other considerations such as reasoning, logic,
love, etc. due to which people obey.

(v) International Law : Austin put Intl. Law under positive morality a/w the law of
honour & law of fashion. The so-called law of nations consists of opinions or sentiments.
It, therefore, is no law properly so called. The main ingredient of law lacking in Intl. Law
is sanction, but this alone will not deprive from being called law. Now-a-days, Intl. Law
is playing an important role &, thus, it can’t be totally negated. Hence, nobody will
accept that Intl. Law is not law. Therefore, according to Austin, a very imp. branch of
law shall be excluded from the study of jurisprudence.

(vi) Relation of law & morals overlooked : To Austin, law isn’t concerned with morals
but this isn’t correct proposition. Law is not an arbitrary command, but it is a growth of
an organic nature. Moreover, law has not grown as a result of blind forces, but it has
been developed consciously & has been directed towards a definite ends. It isn’t
completely devoid of ethical & moral elements. Any law, which is devoid of ethics or
morality, can’t withstand the test of time. People don’t accept it whole-heartedly because
of it being unethical. Hence, morals hv always bn an integral part of law.

(vii) Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure
Code, etc. He also does not talk about laws conferring privileges, e.g., Payment of Bonus
Act, Gratuity Act, etc.

Contribution of Bentham to analytical positivism:

JEREMYBENTHAM ( 1748 – 1832 ) laid down the foundation of positivism in the

modern sense of term. He was a ferment champion of codified law & of reforming
English law, which was, according to him, in utter chaos. He distinguished b/w
‘expositional jurisprudence (what the law is)’ & ‘censorial jurisprudence (what law ought
to be) or the art of legislation’. The main function of the former was ‘to evaluate law’,
while that of the later ‘to analyse law’.
According to Jeremy Bentham, ‘law is defined as an assemblage of signs declarative of a
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 a class of persons, who in the case in
question are subject to his power’. Therefore, Bentham clearly states that law, which is
the will of the sovereign, regulates the conduct of the people to which it applies.
Therefore, the law is what is laid down by the sovereign. The people who are subject to
the law have to regulate their conduct in accordance with this will of the sovereign.
Moreover, Bentham says that the law does not have to be in consonance with the
principles of ethics. Therefore, law is whatever is laid down by the sovereign. According
to the Bentham, a sovereign is the highest superior body which does not owe any
obedience to any other body. It is the sovereign which claims habitual obedience from the
people living in a politically organized group.12Therefore, the sovereign does not owe
any allegiance to any other body or group. It is the will of this sovereign body which is
known as law. Bentham, however, states that the power of the sovereign is not absolute as
is the view of John Austin. Bentham is of the view that the power of the sovereign can be
limited as well as divided. Therefore, he is of the opinion that a sovereign can, by his own
will, limit his own powers by entering into agreements with certain external agencies
which would put restriction on the power of the sovereign. Jeremy Bentham’s concept of
sovereignty is not absolute in nature and can be restricted to a certain extent. Another
important feature of law according to Bentham is that it should be backed by sanctions.

Bentham gave the ‘Principle of Utility’, which says, “Only those laws are important,
which give maximum happiness to the maximum number of people”. Those laws, which
are not giving maximum pleasure & giving maximum pain to the people ought to be
removed. Pleasure & pain are the basic ingredients of this principle. He also gave
“Hedonistic Calculus, which is the imaginary principle to judge pleasure & pain of any
law”.

Principle of Utility
Jeremy Bentham also gave his famous theory of utility. According to Bentham, any
person is governed by two masters, that is, pain and pleasure. Every man wants to
increase the pleasure and diminish the pain. Therefore, any law should be made by
keeping in mind this theory of utility. Every law should be promulgated by the sovereign
in such a way that it diminishes the pain and maximises the pleasure of the people who
would be governed by that particular law. Therefore, every law should be measured by
the yardstick of public utility, that is, how much pain is it causing to the people and how
much pleasure is the person getting from the law. Any law should aim at maximising
pleasure and minimising the pain of the persons whom it governs.
Along with the Principle of Utility, Jeremy Bentham proposed the codification of all the
laws and stated that the uncodified body of rules that was part of the English Law was not
worthy of being called as law.
Therefore, Jeremy Bentham played a crucial role in the development of the theory of
Legal Positivism.
Comparison of Bentham & Austin :
(i) Bentham provided a deeper & more adaptable theory. His concept of sovereignty
was flexible as it avoided indivisibility & illimitability. He was, thus, able to
accommodate the division of authority b/w organs as in a federation or division in certain
areas as well as restrictions of authority.

(ii) His concept of law was broader than Austin’s. He avoided the absurdity of ‘law
properly so called’.

(iii) His sanction was both wider & less important than Austin’s sanction. Laws are
still laws even though supported by moral or religious sanctions or they may even be
accompanied by rewards. He, thus, had no need to resort to a sanction by nullity.

Conclusion

Legal Positivism, as we have already seen, is one of the most influential schools in the
jurisprudence of law and relies on the law as a fact. The jurists of this school only analyse
the law as it is and do not consider how it should have been. According to the views of
great jurists such as John Austin and Jeremy Bentham, the moral principles do not
determine the law of the land. However, there are certain positivists who do believe in the
existence of the principles of ethics and morality and moreover, they are of the opinion
that these moral principles are responsible, to some extent, in shaping the laws.
Therefore, it can be clearly seen that although the overall idea of the jurists of this school
is similar, but certain differences in their thinking does exist. The common notion of all
the jurists belonging to the Legal Positivist School is that law is what is laid down by the
superior and backed by sanctions. Moreover, they are of the common opinion that the
moral principles are not to be taken into account while judging the validity of laws. All
laws are valid which flow from the determinate superior and is backed by sanctions.
However, there are certain shortcomings of the Legal Positivist School such as it fails to
elucidate upon any kind of legal system and sees sanctions as the only basis of law.
Moreover, the concept of absolute sovereignty given by John Austin is challenged by
International Law as well as fundamental rights that are available with the individuals.
Although there are certain limitations, Legal Positivism is regarded as the most
influential school of thought in jurisprudence.