Analytical school of jurisprudence deals with the present. Its purpose is to analyze and digest the law of the land, as it exists today. The analysis of the first principle of civil law or the law of land is done irrespective of its historical origin or ethical significance. It examines the relationship of civil law with the other forms of law. It also analyses the various constituent ideas of which the complex idea of law is made up, e.g., those of the state, sovereignty and administration of justice, customs, precedents and principles of legislation. Further, it also inquires into the scientific arrangement of law, the conception of legal rights, ownership, possession, principles of liability, intention and negligence, the law of obligation, the law of persons, the law of property, the law of procedure etc. which by reason of theoretical interest deserve special attention.
Analytical jurisprudence treats of the dogma or exposition of the abstract principles of law as it exists now. This gives an analysis of the basic principle of civil law as it exists. It pays no attention to their past stages of evolution; nor does it consider whether they are good or bad; i.e., it more or less ignores the historical and ethical aspects of study.
Analytical school of jurisprudence is also called the positivist school of jurisprudence because it considers law as it is and not as it ought to be. The main features of analytical school can be summarized as follows—
Bentham’s legal philosophy is called ‘utilitarian individualism’. He was an individualist. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. Once the individual was made free, he himself shall be looking after his welfare. In this way, he was a supporter of ‘lassiez faire’ principle of economics. He pleaded for codification and condemned judge-made law and customs, etc.
Bentham was a realist and his activities were many sided. His keen desire for law reform based on the doctrine of utility, his ambition for codification based on complete dislike for judge-made law filled his work with a sense of mission. According to Bentham, the end of legislation is the ‘greatest happiness of the greatest number.’ He defined utility as the property or tendency of a thing to prevent some evil or to procure some good. The consequences of good and evil are respectively pleasure and pain. The purpose of law is to bring pleasure and avoid pain. Pleasure and pain are the ultimate standards on which a law should be judged. All consideration of justice and morality disappear from this approach.
The business of the government, according to Bentham, was to promote the happiness of the society by furthering the enjoyment of pleasure and affording security against pain. “It is the greatest happiness of the greatest number that is the measure of right and wrong.” He was convinced that, if the individuals composing the society were happy and contented, the whole body politic would enjoy happiness and prosperity.
Commenting on the Bentham’s philosophy, Sir Henry Maine, observed— “Bentham was in truth, neither jurist nor a moralist in the proper sense of the word. The theories are not on law, but on legislation. When carefully examined, he may be seen to be a legislator even in morals. No doubt his language seems sometimes to imply that he is explaining moral phenomenon, but in reality he wishes to alter or rearrange them according to a working rule gathered from his reflection on legislation.”
Austin was much inspired by the scientific treatment of Roman law and drew inspiration to introduce the same method to the legal exposition of law in England. Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. The science of jurisprudence, according to Austin, is concerned with positive laws or with laws as considered without regard to their goodness or badness. All positive law is deduced from a clearly determinable lawgiver as sovereign.
In other words, every positive law, or every law simply and strictly so-called, is set by a sovereign or a sovereign body of persons to a member or members of the independent political society wherein that person or body of persons is sovereign or supreme.
While defining a sovereign, Austin said, “If a determinate human superior, not in a habit of obedience to alike superior, receives habitual obedience from the bulk of a given society; that determinate superior is sovereign in that society and the society (including the superior) is a society political and independent.”
According to Austin, the superior may be either an individual or a body or aggregate of individuals. Thus, English sovereign for him is merely the ‘person’ who has the last word in a particular connection. His conception of sovereignty asserts that, in every human society, where there is law, there is to be found latent beneath the variety of political forms, in a democracy as well as in an absolute monarchy, a relationship between subjects rendering habitual obedience and a sovereign who renders habitual obedience to none.
Professor Hart has criticized the Austinian conception of law by linking it with his own original concept of law viewed from the positivists’ standpoint. He has rejected any system of law based simply on coercive orders on the ground that this view is patterned on criminal law when, to a large extent, the modern legal system confers both public and private legal powers, for instance, in the case of the law relating to wills, contracts, marriage etc. According to him, many laws do not have sanction attached to them; for instance customary laws, enabling laws and laws imposing duties on public authorities.
In view of Gray, the body of rules, the judge lays down, is not the expression of pre-existing law, but the law itself, that the judges are creators rather than the discoverers of the law. Even the statutory law laid down by a legislature gains meaning and precision, in his view, only after it has been interpreted by a court and applied in a concrete case.
“The law of the state or of any organized body of men is composed of the rules which the courts, that is, the judicial organ of that body lay down for the determination of legal rights and duties.” Gray
Although the judges, according to Gray, seek the rules laid down by them not in their own whims, but derive them from sources of a general character (such as statutes, judicial precedents, opinions of expert, customs, public policies and principles of morality), the law becomes concrete and positive only in the pronouncements of the courts. Judge-made law thus was to Gray the final and most authoritative form of law. This conviction led him to the sweeping declaration that “it is true, in the civil as well as in the common law, that the rules laid down by the courts of a country state the present law correctively.“
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.