Analytical School of Jurisprudence

Analytical School of Jurisprudence

Introduction:

Jurisprudence in its technical sense is divisible into three main branches. This division is based on certain basic assumptions about ‘law’ characterized by jurists belonging to each school which distinguishes them from those of other schools. The scope of jurisprudence has widened considerably during the 19th century because of the felt necessities of the time.

In the modern age it has been treated as a science of social control of human conduct, hence a comprehensive basis of classification of jurisprudence into different schools according to legal philosophy propounded by the advocates of these schools, has become all the more necessary. Different approaches to the treatment of jurisprudence are represented but its various schools of thoughts. There are four divisions of schools of jurisprudence-

  1. Analytical School
  2. Sociological School
  3. Historical School
  4. Philosophical School

The major difference between four schools of jurisprudence- what is law? Some jurist may define it as sciences, another one may define it as philosophy. Therefore, every jurist has their own approach according to their schools, depending upon which kind of law they are discussing.

ANALYTICAL SCHOOL OF JURISPRUDENCE

The major premise of analytical school of jurisprudence is to deal with law as it exists as the present form. It seeks to examine the principles of law as they actually exist in a given legal system. The exponents of analytical school of jurisprudence consider that the most important aspect of law is its relation to the state.

Further, this school considers that law originates from state and defines relation of law with state. The two main exponents of this school are-

  1. Jeremy Bentham
  2. John Austin

JEREMY BENTHAM (1748-1832)

Bentham is considered to be the founder of ‘positivism’ in the modern sense of the term. He preferred to divide jurisprudence into ‘expository’ and ‘censorial’ jurisprudence. Expository or analytical jurisprudence is concerned with law, it is without any regard to its moral or immoral character. On the other hand censorial jurisprudence is concerned with ‘science of legislation’ that is what the law ought to be.

READ  UNIFORM CIVIL CODE: WHAT’S THE DEBATE ALL ABOUT?

Bentham in his book ‘limits of jurisprudence defined’ said that its duty of state to provide maximum happiness and maximum liberty. In other words he means to test every laws and keep a check whether they are providing maximum happiness and liberty, leading to principle of utility i.e. ‘Greatest Happiness of the Greatest Number of People’.

PRINCIPLE OF UTILITY

According to him the consequences of good and evil are respectively ‘pleasure’ and ‘pain. In simple words, the basic thing which come under principle of utility i.e. pleasure and pain. Principle of utility recognizes the role of pleasure and pain as human life. Pleasure means ‘everything that is good’ and pain means ‘everything that is bad or evil’.

Therefore, keeping the consequences of good and bad in human life the principle approves or dis-approves action on the basis of pleasure and pain. He believed that happiness of social order is to be understood in the objective sense and it broadly includes satisfaction of certain needs, such as need to be fed, clothed, housed etc. According to him, happiness changes its significance in the same way as the meaning also undergoes changes with the changes in societal norms.

He desired to ensure happiness of the community by attending four major goal namely,

  1. Subsistence
  2. Abundance
  3. Equality
  4. Security for the citizens

Therefore, the function of law must be to meet these ends in order to provide subsistence, to provide abundance, to favor equality and to maintain security. John Stuart Mill agreed with Bentham view regarding utilitarianism which is also called the ‘doctrine of hedonism’ or ‘theory of pain & pleasure’.

In order to measure the pain they advise a calculator known as ‘utilitarian calculus’ which give seven factors to calculate pain-

  1. Intention
  2. Duration
  3. Certainty
  4. Nearness
  5. Fecundity
  6. Purity
  7. Extent
READ  The Surrogacy (Regulation) Bill, 2019

The task of government according to Bentham, was to promote happiness of society by furthering enjoyment of pleasure and affording security against pain. He was convinced that if individuals comprising society were convinced that if individuals comprising society were happy and contended, the whole body politic would enjoy happiness and prosperity.

LAISSEZ FAIRE

He believed that, we must remove the hurdles between human beings and freedom. Because when every individual will enjoy his freedom, he himself will start about his own welfare. In other words he meant ‘let the men free’ leading to minimum interference of the state in economic activities of individuals.

CRITICISM AGAINST BENTHAM

  1. He underestimate the need individual discretion and flexibility in the application of law overestimating the power of the legislature.
  2. His theory fails to balance individual interests with the interests of community.
  3. Theory of utilitarianism is that pleasure and pain alone cannot be the final test of the adequacy of law.

It irony of fate that Bentham’s works on law and legislation did not receive much attention during his lifetime but were acclaimed and appreciated after years of his death. He left vast quantity of material in the form of manuscript which was not published until the late 20th century.

JOHN AUSTIN (1790-1859)

Austin is considered to be the ‘Father of English Jurisprudence’. He confined his study only to the positive law and applied analytical method for this purpose. It was he who for the very first time treated jurisprudence as science of law concerned with analysis of legal concepts, their exposition, examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organized society.

He believed that laws are certain kind of rules or guidelines to provide what is wrong and what is right. This kind of guideline is for normal being but at the same time such guidelines are defined by the persons who is ‘politically superior’ than other being. In his words, ‘the aggregate of rules set by man as politically superior to men as politically inferior subjects’.

READ  Adultery as a ground of divorce

According to him, “Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

His theory says, law is command of sovereign which is backed by sanction. Anything which is not in form of command and not given by sovereign and has no sanction behind it, cannot be considered as law.

As per him, the main tool of jurisprudence is ‘analysis.’ Therefore this school was called as ‘Analytical School of Jurisprudence’. He devise this school in England because of which also known as ‘English School of Jurisprudence’.

Further, also law which is command backed by sanction means something which is very urgent that any being is obliged to follow because of which the school is also known as ‘imperative school’. The father of analytical school is Austin, therefore known as ‘Austinian School’.

CRITICISM

  1. Customs were overlooked
  2. Permissive character of law was ignored
  3. No place for judge made law
  4. His theory treats international law as mere morality
  5. Command was over emphasized
  6. Inter-relationship between law and morality was completely ignored
  7. Sanction alone is not the means to induce obedience
  8. Indivisibility of sovereignty criticized

Despite criticism his legal theory has been commended for its clarity, consistency and simplicity.

Conclusion

The purpose of analytical jurisprudence is to analyze without reference either to their historical origin or development, or their ethical significance or validity. The principle of law it begins with concrete facts of the law which deals with the systematic exposition of the legal systems. Therefore, this school is called as analytical school of jurisprudence.

Author: Nishchal Kukade,
Dr. Babasaheb Ambedkar College of Law, Nagpur Final Year Student

Leave a Comment