The various schools of jurisprudence are the representatives of the thoughts and ideas of the various personalities regarding their perceptions of law and how they had taken or perceived the law. And now of the very famous jurist, Salmond divided the school into 3 categories such as analytical, historical, and philosophical. However, some personalities divided and considered many more schools, also other than the above-mentioned schools. Let just understand one of these schools named as Analytical school of jurisprudence which is also known as the positive or imperative school of jurisprudence.
MEANING OF ANALYTICAL SCHOOL OF JURISPRUDENCE
The Analytical school perceives or accepts the law as it is that’s why it is also called the positive school of jurisprudence. This school undertakes the law the way it is provided in the society presently, and it consists of no relation with the history of such law, the reason behind it’s making, any kind of background, an ethical ground of such law, morality, future law connected with it, etc. The approach of this Analytical school of jurisprudence deals with the relation of law with the state.
ORIGIN OF THE SCHOOL
Earlier during the period of king and queen, all the rules and regulations were established by the king or queen of such place, and the concept consisted of this school regarding the law was originated from such a system only. The idea that the sovereign of the state must have all the authority to construct the rules and laws for the people of such state developed from the early period.
FOCUSING AREA OF THE SCHOOL
The Analytical school aims and provides its attention on two points. It primarily focuses on determining the benefits and losses of the citizens from the established law and subsequently, it also focuses that what the law is not that what law must be or ought to be.
FOUNDERS OF THE ANALYTICAL SCHOOL
The very popular and spotlighted jurist of this school is Jeremy Bentham and John Austin. They also had discovered this school and are known as founders of this school. Moreover, there are many jurists of this school who provided their opinions in the context of the law and belongs to the Analytical school, such as Hens Kelson, Salmond, Holland, H.L.A Hart, etc.
In the context of the contribution, many jurists provided opinions and thoughts or ideas in concern of law and presented their writings about their concept. Here, I would be discussing the contributions of the two main jurists of this school that are Bentham and Austin, and also I would be mentioning the criticisms regarding them.
- Jeremy Bentham
- He was the jurist who introduced the principle of utility which contained the main elements of pain and pleasure. The principle recognizes the role of pleasure and pain in human life and realizes the fundamental role wherein pleasure refers to everything that is good and whereas pain refers to everything bad or evil.
- In the books of ‘Limits of Jurisprudence Defined’, Bentham had mentioned his ideas and opinions regarding law and stated that the job or function of the state is to construct any laws which must be to provide maximum happiness and maximum liberty for all the people.
- He was against the laws made by judges and believed that laws making power should be consistent with the judges and in his opinion, only legislation is the central authority to establish any laws for the state. He believed that the only right and competent authority for making laws is the parliament and thus it must contain absolute power.
- Apart from these, he also had given his opinion that the law must be established to keep the view of the pleasure and pain of the citizens which means that laws must be made by the state to provide maximum happiness to the citizens. And the goal of the established law must be that such law contains subsistence, abundance, security, equality.
- He supported the codification of law and also the supporter of laissez-faire, he believed that laws must be codified as well as must be of such a nature that could remove the barriers between humans and their freedoms if humans get all freedom they will think about their welfare.
- The thought and concept of Bentham were criticized by various jurists on his opinion about absolute power as it might create hurdles in democracy and leads to reduce the value and role of the judiciary.
- The concept of Bentham regarding the freedom of citizens was also criticized as it is not possible to provide unlimited freedom because people misuse it which may lead to crime in society.
- He rejected or not accepted the natural rights, however, he only consisted of the opinion and thoughts in the favor of codified law due to which the natural rights of the people could be neglected or ignored.
- John Austin
- In the year 1790, he was born, and later he joined the army and after that, he became the professor. In the context of the law as per the Analytical school of jurisprudence, the jurist named Bentham and Austin both are highly popular and much emphasized among all the jurists. John Austin was the father of the Analytical school of jurisprudence. He holds the most essential and major aspect of the school.
- He wrote a book which was his major contribution named ‘Province of Jurisprudence Determine’ which was one of his very significant writing in which he expressed and declaimed his opinion about the law.
- John Austin provided his concept of law by categorizing his opinion into two parts such as positive law and positive morality. Let’s just discuss his concept and the classification in detail, which are as follows-
John Austin mainly dealt with positive law. According to him, positive law refers to the law which are currently present and on which every attention is given and no matter such law is correct or invalid. He defined the positive law as the law made by the man for themselves. And Austin stated that any law shall be considered in his opinion, if such law consists of the 3 essentials such as sanction, command, and duty, otherwise it shall not be the law. Thus, if there is any such essential is absent in any law then it must not be considered as the valid law.
John Austin had not accepted the law which only contained positive morality and he denied the positive morality as a law. He disagreed that law which only does consists the morality such as any customs, any moral duty towards family or friends, the best example by which we can understand the concept of Austin is that, for an instance, one person named as ‘A’ standing in the top floor of the building and suddenly he lost his balance in consequence of which he falls over a pipe which was a very dangerous situation for him as to where if he slipped he could lose his life. Also, there is another person named ‘B’ standing nearby such pipe and surely he can stop him to fall which is his moral duty to save such person but that is not lawful duty to help him out. But if ‘B’ had not helped him and not saved his life then as per the opinion of Austin, he would not be punished for not saving the life of ‘A’ because if in the eyes of law the action held by him is not a crime then thus he is not punishable for any crime unless such action of ‘B’ is considered a crime according to the law and also based on positive morality, no person can be punished for any of his actions.
The major criticism was taken place regarding the thoughts and expressions of Austin which involved morality. In the opinion of Austin, the law does not have anything with morality, and the law does not consist of or have any relation with morality, this point of his opinion was very much criticized by other jurists.
In the light of the conclusive part, the Analytical school of jurisprudence refers to the law which is presently available as well as codified. The two very crucial jurists Jeremy Bentham and John Austin who played a very vital role in representing and contributing to this school and expressed his opinion about the law. Both the jurists have given slightly different concepts and provided various principles and ideas about law such as the Principle of utility by Jeremy Bentham, positive law and positive morality by John Austin, etc. But somehow, many criticisms were brought by various other jurists regarding the opinion and concept of law by Bentham and Austin.
Also Read: Realist School of Jurisprudence