The analytical school deals with law as it is, and not as it ought to be. The analytical school considers the most important aspect of the law is its relation with the state. They treat law as a command emanating from the sovereign. Hence, it is also called the imperative school of law. Exponents are neither concerned with the past nor with the future of law but they confine themselves to the study of law as ‘it is’.
The basic approaches of analytical positivism are as follows ;
· Law is the product of a State. It is made consciously by lawmakers, whether legislative or judicial.
· Concentration on positive law i.e. law as it is ( pure fact of law)
· Logic is the main instrument for studying law.
· Ethical aspects do not come under the provision of law and jurists are not concerned with ethics, and
· Statutes are the main source of law.
The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelson, Gray, and H.L.A. Hart.
Jeremy Bentham:
Jeremy Bentham can be said as the founder of the Analytical school. He was also a philosopher economist, jurist and law reformer. He came from a family of wealthy lawyers and he himself was intended for the spirit of the 18th century and rejects natural law and subjective values. He emphasized utility and propounds the concept of “expository jurisprudence”.
Like, For Austin's history of law in which the key concepts are ‘‘Sovereignty and Command’’. On one hand, Austin’s sovereign is assumed as an unlimitable entity but Bentham’s sovereign is not like that and he accepts the divided and partial sovereignty with some legal restrictions imposed on him.
Bentham’s legal philosophy is called utilitarianism, individualism.
Bentham’s Utilitarianism
l Social progress of the time of Bentham was looking for social justice- Bentham found legal positivism as a solution to it.
l Bentham’s utilitarianism is an attempt to find an objective science of society and politics.
l Greatest happiness can be achieved if people follow the law.
l Happiness can be maximized in public and private life.
The objective of classical positivism is for the new science of law and reform creating a condition of modern society. The theory of positivism provides the methodology for guiding reform and support and justification for reform. Therefore, he advocated for good orders and security so as to establish certainty.
Criticism of John Austin:
· Command theory is like gun-man theory, law might have a minimum content of natural law.
· Every law has not backed by sanctions like customary law and international law. Because some of the customary laws are not made by sovereignty or we didn’t know from when and where its made.
· Austin says that law is made by sovereignty but some law is made by sovereignty is not at that time.
· Some of the law is made even the sovereign doesn’t want to make those type of law, like in the UK some of the law makes even crown don’t want to make those type of law.
· Right to vote or election law has not been backed by sanction.
· Law-made authority is only sovereignty then where the pace of judicial precedent.
· Confusion about the status of sovereignty; who is sovereignty in the present context? Whether sovereignty is bound by law or not?
Hans Kelson (1881 -1973)
Hans Kelson was an Austrian jurist. he was born in Prague Austria in 1881 and was a professor of law at the Vienna University .he was also the judge of the supreme constitutional court of Austria for 10 years from 1920 to 1930 .thereafter he shifted to England he came to the united states and work professor of law in several American universities and authorized many books. He released the “theory of Law” entitled the general theory of Law and State in 1945 it drew the attention of modern jurisprudents and came to be known as Kelson's pure theory of law.
An object of Kelson's theory: Kelson rejected Austin’s proposal to set up a superior authority (sovereign) as a source and he interpreted the pure principle which is necessary to achieve the ordered symmetry in the legal system. So the source of the law can be traced.
Kelson Pure Theory Of Law
According to Kelson, a theory of law should be uniform. It should be applicable to all times and in all places .according to him, the law must be free from ethics, politics, history, sociology etc in other words, it must be pure.
Pure theory is closed to some other theories –
Kelson and Austin both are positivists. Hans Kelson's pure theory of law is a part of analytical positivism. Kelson explains his theory by the method of analogy .it deals with the existing fact for example what law is and not as it ought to be.
l Theory of law should be uniform –
According to Kelson, a theory of law should be uniform .for example –it should be applicable at all times and in all places.
l Law is a normative science
According to Kelson law is a normative science and it is not a natural science based on cause and effect like the law of gravitation
l Theory of law must be pure –
According to Kelson's pure theory of law, it must be free from ethics, morality, politics sociology, history etc it must be pure.
Salient features of Kelson’s pure theory of law /essentials of Kelson’s pure theory of law
(1) Reduce chaos and multiplicity to unity.
(2) Legal theory as a science, not violation.
(3) Law is a normative science not a natural.
(4) Kelson’s strict separation of law.
Implications of the pure theory
Law and state are not two different things –
No difference between municipal and international law no difference between a legal person and a natural person.
Criticism
1. Grundnorm is vague and confusing.
2. Kelson also said that the law should be kept free from morality .whether it is possible to keep the law free of morality? Kelson insisted on the law to be effective and thus he accepted indirectly morality as a part of effectiveness.
3. Kelson attempted to change the law into a science, a theory that could be understood through logic, but on the other hand, he emphasized the validity of the grundnorm to assumed, rather than based on some logic.
4 From where grundnorm takes its validity
5. Kelson’s pure theory is without any sociological foundation as it excludes all social facts and needs of society.
6 Historical school criticism that “custom” is a source of law, not a Grundnorm.
Influence of Analytical Law in Nepal
Nepal has been influenced by many schools of jurisprudence but mainly Analytical schools play a vital role in the contribution of the Nepalese Legal System.
l Law is made by the sovereign authority in the same way in Nepal in the preamble of our present constitution the sovereign is vested in Nepalese people. So Nepalese people select their representatives for political superiority to make laws.
l The analytical school takes law as the command of the sovereign. It puts emphasis on legislation as a source of law. The whole system of Nepal is based on its concept of law.
l According to Bentham's Utility Theory, a law is made by sovereign authority that should be based maximization of happiness and minimization of pain. While making our present constitution 100% of people are not satisfied but the majority of people help to pass this constitution so that should be recognized by law.
l According to John Austin,” Law is the command of the sovereign backed by sanction”. So In Nepal, there is Criminal Code 2074 and civil code 2074 to regulate it.
l In Nepal, Legislation made law and the Executive enacts a law and Judiciary implements the law. (Salmond)
l In our present constitution part 31 article 274 has mentioned while making an amendment law it would be passed by two third of the majority of political authority which is also an influence of this school of law.
Conclusion
Analytical school is ‘what law is’ not what law ‘ought to be’. The law must be followed by everyone. If someone violet law it should be punishable. John Austin has Command Theory and Benthan has Utility Theory and Kelson has Pure Theory. H.L.A Hart has defined law as the union of Primary and Secondary rules. All jurist has done a lot of contribution to the Analytical School. The purpose of the Analytical school is to analyze without reference either to their historical origin of development, or their ethical significance or validity. The principle of law begins with concrete facts of law which deal with the systematic exposition of the legal systems. Therefore this school is called the Analytical School of Jurisprudence. This lays emphasis on legislation as a source of law. It made an attempt to bring about precision in legal thinking.
Therefore, Analytical school is binding for all. It take legislation as main source of law. Law is made by sovereign authority and applicable for all.
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good notes
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