“Natural&Analytical school”

1) INTRODUCTION :-
2) NATURAL SCHOOL OF JURISPRUDENCE:_
3) CHIEF EXPONENT OF NATURAL SCHOOL:-
4) IDEOLOGY OF NATURAL SCHOOL:-
5) CRITICIZM OF NATURAL SCHOOL:-
6) ANALYTICAL SCHOOL OF JURISPRUDENCE:-
7) CHIEF EXPONENT OF ANALYTICAL SCHOOL:_
8) IDEOLOGY OF ANALYTICAL SCHOOL:-
9) CRITICIZM OF ANALYTICAL SCHOOL:-
10) COCLUSION:_
11) BIBLIOGRAPHY:-
 INTRODUCTION

Etymology:-
The English word is derived from the Latin maxim jurisprudentia. Juris is the
genitive form of jus meaning law, and prudentia means prudence (also: discretion,
foresight, forethought, circumspection. It refers to the exercise of good judgment,
common sense, and caution, especially in the conduct of practical matters. The
word first appeared in written English in 1628, at a time when the word prudence
meant knowledge of, or skill in, a matter. It may have entered English via the French
jurisprudence, which appeared earlier.
History[:_
Ancient Indian jurisprudence is mentioned in various Dharmaśāstra texts, starting
with the Dharmasutra of Bhodhayana.
Jurisprudence in Ancient Rome had its origins with the (periti)—experts in the jus
mos maiorum (traditional law), a body of oral laws and customs.
Praetors established a working body of laws by judging whether or not singular
cases were capable of being prosecuted either by the edicta, the annual
pronunciation of prosecutable offense, or in extraordinary situations, additions
made to the edicta. An iudex would then prescribe a remedy according to the facts
of the case.
The sentences of the iudex were supposed to be simple interpretations of the
traditional customs, but—apart from considering what traditional customs
applied in each case—soon developed a more equitable interpretation, coherently
adapting the law to newer social exigencies. The law was then adjusted with
evolving institutiones (legal concepts), while remaining in the traditional mode.
Praetors were replaced in the 3rd century BC by a laical body of prudentes.
Admission to this body was conditional upon proof of competence or experience.
Under the Roman Empire, schools of law were created, and practice of the law
became more academic. From the early Roman Empire to the 3rd century, a
relevant body of literature was produced by groups of scholars, including the
Proculians and Sabinians. The scientific nature of the studies was unprecedented
in ancient times.
After the 3rd century, juris prudentia became a more bureaucratic activity, with
few notable authors. It was during the Eastern Roman Empire (5th century) that
legal studies were once again undertaken in depth, and it is from this cultural
movement that Justinian's Corpus Juris Civilis was born.
 ** Philosophical school or Natural law school**

The philosophical or ethical school concerns itself chiefly with the relation of law
to certain ideals which law is meant to achieve. It seeks to investigate the purpose
for which a particular law has been enacted. It is not concerned with its historical
or intellectual content. The notable jurists of this school are Grotius (1583-1645),
Immanuel Kant (1724-1804) and Hegel (1770-1831). These jurists regard law
neither as the arbitrary command of a ruler nor as the creation of historical
necessity. To them, the law is the product of human reason and its purpose is to
elevate and ennoble human personality

There were many philosophers contributed to the evolution of

natural law theory.
1. Hugo Grotius: Hugo Grotius(1583–1645) worked as a jurist in the Dutch
Republic and laid the foundations for international law, based on natural law.
Grotius removed the natural law from the jurisdiction of moral theologians and
made it the business of lawyers and philosophers, by asserting that by their very
nature, natural laws were authoritative in themselves, with or without faith in God.
He held that the moral ethics of natural law applied to all social and rational beings,
Christian and non-Christian alike. Grotius also promoted the concept of “Just War”
as a war which was required by natural, national and divine law under certain
circumstances. He developed a series of rules for “right conduct” of war, based on
the principle that actions in a war should “serve the right.” Grotius also wrote De
Jure Praedae, one chapter of which, defending free access to the ocean for all
nations, was reprinted and widely circulated under the title Mare Liberum.

2. Thomas Hobbes: Thomas Hobbes founded a social contractualist theory of legal

positivism. He declared that all men could agree that what they sought (happiness)
was subject to contention, but that a broad consensus could form around what they
feared (violent death at the hands of another, and loss of liberty and personal
property). Natural law was defined as the way in which a rational human being,
seeking to survive and prosper, would act. It could be discovered by considering
humankind’s natural rights; previous interpretations had derived natural rights by
 considering the natural law. In Hobbes’ opinion, the only way that natural law
could prevail was by all men submitting to the commands of a sovereign. The
ultimate source of law now became the sovereign, who was responsible for
creating and enforcing laws to govern the bbehaviour of his subjects. Since the
sovereign’s decisions need not be grounded in morality, the result was legal
positivism, the concept that law was created by the state and must therefore be
obeyed by the citizens belonging to that state. Jeremy Bentham further developed
the theory by modifying the concept of legal positivism.
In Thomas Hobbes’s treatise Leviathan, natural law is a precept, or general rule,
discovered through reason, by which a man is forbidden to do anything which is
destructive of his life, or takes away the means of preserving his life; and forbidden
to omit doing anything which he thinks may preserve his life. Hobbes defines nine
Laws of Nature.

3. John Locke: John Locke (1632–1704) is among the most influential political
philosophers of the modern period. In theTwo Treatises of Government he defended
the claim that men are by nature free and equal against claims that God had made
all people naturally subject to a monarch. He argued that people have rights, such
as the right to life, liberty, and property that have a foundation independent of the
laws of any particular society. Locke used the claim that men are naturally free and
equal as part of the justification for understanding legitimate political government
as the result of a social contract where people in the state of nature conditionally
transfer some of their rights to the government in order to better ensure the stable,
comfortable enjoyment of their lives, liberty, and property. Since governments
exist by the consent of the people in order to protect the rights of the people and
promote the public good, governments that fail to do so can be resisted and
replaced with new governments. Locke is thus also important for his defense of the
right of revolution. Locke also defends the principle of majority rule and the
separation of legislative and executive powers. In the Letter Concerning Toleration,
Locke denied that coercion should be used to bring people to (what the ruler
believes is) the true religion and also denied that churches should have any
coercive power over their members. Locke elaborated on these themes in his later
political writings, such as the Second Letter on Toleration and Third Letter on
Toleration.
4. Jean Rousseau: Jean-Jacques Rousseau(1712 – 1778) believed modern man’s
enslavement to his own needs was responsible for all sorts of societal ills, from
exploitation and domination of others to poor self-esteem and depression.
Rousseau believed that good government must have the freedom of all its citizens
as its most fundamental objective. The Social Contract in particular is Rousseau’s
attempt to imagine the form of government that best affirms the individual
freedom of all its citizens, with certain constraints inherent to a complex, modern,
civil society. Rousseau acknowledged that as long as property and laws exist,
people can never be as entirely free in modern society as they are in the state of
nature, a point later echoed by Marx and many other Communist and anarchist
social philosophers. Nonetheless, Rousseau strongly believed in the existence of
certain principles of government that, if enacted, can afford the members of society
a level of freedom that at least approximates the freedom enjoyed in the state of
nature. In The Social Contract and his other works of political philosophy,
Rousseau is devoted to outlining these principles and how they may be given
expression in a functional modern state.

5. Immanuel Kant: Immanuel Kant(1724-1804) is one of the most influential

philosophers in the history of Western philosophy. His contributions to
metaphysics, epistemology, ethics, and aesthetics have had a profound impact on
almost every philosophical movement that followed him. This article focuses on his
metaphysics and epistemology in one of his most important works, The Critique of
Pure Reason . A large part of Kant’s work addresses the question “What can we
know?” The answer, if it can be stated simply, is that our knowledge is constrained
to mathematics and the science of the natural, empirical world. It is impossible,
Kant argues, to extend knowledge to the supersensible realm of speculative
metaphysics. The reason that knowledge has these constraints, Kant argues, is that
the mind plays an active role in constituting the features of experience and limiting
the mind’s access only to the empirical realm of space and time.
.
 **Analytical School**

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.

The chief exponents of the Analytical school of Jurisprudence were Bentham and
Austin. It is also called the positivist school of jurisprudence because it considers
law as it is and not as it ought to be. In fact, it was Sir Henry Maine who coined the
word ‘analytical’. This school is also called imperative school because it treats law
as a command of the sovereign. Bentham introduced legal positivism and treated
legal theory as a science of investigation which should be approached through the
scientific method of experimenting and reasoning. ohn Austin is the father of
Analytical School. Austin said that only positive law is the subject matter of
jurisprudence. He separated both the morals and the religion from the definition
of the law. Prior to Austin, the law was based upon customs and morals but Austin
reduced all things from the definition of law.
 **This viewpoint is based on two principles.

1. Law is the command of the sovereign.

2. Force is the essence of law. (i.e. what cannot be enforced is not a law)

Analytical school of jurisprudence deals with the following matter:-

1. An Analysis of the conception of civil law.

2. The study of various relations between civil law and other forms of law.

3. An inquiry into the scientific arrangement of law.

4. An account of legal sources from which the law proceeds.

5. The study of the theory of liability.

6. The study of the conception of legal rights and duties.

7. To investigate such legal concepts as property, contracts, persons, acts, and

intention etc.

This theory was bitterly criticized in the 19th century by the Pluralists and the sociological
jurists. Despite its shortcoming, this theory has explained a lot about the law. The
analytical school of jurisprudence provides that law must be made by the state in the
interest of general welfare. It favors codification of law and regards the law as a command
with legal sanction behind it.

**EXPONENTS OF ANALYTICAL SCHOOL:-

The prominent exponents of this school are Bentham, Austin, Holland, Salmond,
Kelsen, Gray, Hoffield and Hart.

**Bentham:-

Jeremy Bentham can be said to be the founder of the Analytical school. In one of his
books, he rejected the clinches of natural law and expounded the principle of utility
with scientific precision. He divided jurisprudence into expository and censorial.
The former deals with the law as it is while the latter deals with the law as it ought
to be. Bentham’s analysis of censorial jurisprudence is indicative of the fact that
 the impact of natural law had no completely disappeared that’s why he talked of
utility as the governing rule. Perhaps, because of this reason, Bentham is not styled
as the father of analytical school. He, however, believes that law is a product of state
and sovereign. Bentham’s concept of law is an imperative one for which he himself
referred the term “mandate

**Austin:-

In 1832, John Austin’s lectures were published under the title of “the Province of
Jurisprudence Determined”. This was the first systematic and comprehensive
treatment on subject which expounded the analytical positivist approach and as a
result of this work, Austin is known as the father of the Analytical School. He limited
the scope of jurisprudence and prescribed its boundaries. His approach was
analytical.Analysis was according to him the principle method of study in
jurisprudence. Austin built on the foundation of expository jurisprudence laid by
Bentham and did not concern himself extra-legal norms. He distinguished between
the science of legislation and law for morals

**Holland:-

Holland is another supporter of analytical school. He is the follower of Austin.

However, he differs from Austin as to the interpretation of the term positive law.
For him, all laws are of not the command of sovereign, rather, he defines law as
rules of external human action enforced by a sovereign political authority.

**Salmond:-

Salmond also belongs to the analytical school but differs from his predecessors in
a number of ways. These are :
1. He gives up the attempt to find the universal elements in law by defining
jurisprudence as science of civil law. According to him, there is nothing like
universal element in law because it is the science of law of the land and is thus
conditioned by factors which prevail in a particular state.

2. He deals withlow as it is but law to him is to be defined not in terms of the sovereign
but in terms of courts. Law is something which emanates from courts only.

3. He did not agree with Austin that analysis of law can be done with the help of logic
alone. He points out that the study of jurisprudence which ignores ethical and
historical aspects will become a barren study.
 The specific nature of this order consists –
1. in its being coercive and

2. the fact that this coercive power is derived solely from the sanction attracted to the law
itself. His sole object was to determine what can be theoretically known about the law of
any kind at anytime under any conditions.

The essential foundations of Kelson’s system may be summarised as under :

1. The aim of theory of law as of any science is to reduce chaos and multiplicity and to
bring unity.

2. Legal theory is science not volition. It is knowledge of what law is, not of what the
law ought to be.

3. Law is a normative not a natural science.

4. Legal theory is a theory of norms. It is not concerned with the effectiveness of legal
order.

5. A theory of law is formal, of the way of ordering changing contents in a specific way.

6. The relations of legal theory to a particular system of positive law is that of possible
to actual law.
The most distinguishing feature of Kelson’s theory is the idea of norms. To Kelson,
jurisprudence is a knowledge of a hierarchy of norms. A norm is simply a
preposition in hypothetical form. Jurisprudence consists of the examination of the
nature and Organisation of such normative proportions. It includes all norms
created in the process of applying some general norm to a specific action.
According to Kelson, a dynamic system is one in which fresh norms are constantly
being created on the authority of an original or basic norm, while a static system is
one which is at rest in that the basic norm determines the content of those derived
from it in addition to imparting validity to the

Tenets of analytical School:-

1. Difference between law as it is and law as ought to be – This is a trait of all positivism
thinkers for example, Bentham’s Law and Morals have same course but different
circumference. Austin does not deny that moral factors work in the creation of law,
however, he does not allow any place to morals in his theory. To him, positive law carries
 its own standard itself. This approach has been criticized by Dias, Hughes, Paton, Stone,
Fuller, etc.

2. Concentration of positive law – Analytical jurists look exclusively at the positive law. They
prefer to be concerned only with what is the pure fact of law. Representing to themselves
the whole body of legal precepts that obtain in a given system as made at one stroke on a
logical plan to which they conform in every detail, the analytical jurists set out to discover
the plan by analysis.

3. Law in terms of and a product of State – Analytical jurist regards law as something made
consciously by lawmakers, whether legislative or judicial. They emphasize not the way in
which the precepts originate with respect to their content but the fact that they get the
conscious stamp of the authority of the state. Thus the most important fact is
establishment or authoritative recognition by the state, of a rule of law. In this sense law
is a product of conscious and increasingly determinate human will.

4. Logic – For studying law, analytical jurist have mainly taken resort of logic and rejected
ethical elements. There is no value of historical or social factors for jurists of analytical
school.

5. Statute – Law is that which is made consciously by the state. Statute law is the main concern
of the school
**Kelson’s pure theory of law:-

Kelson’s theory of law which is known as pure theory of law implies that law must
remain free from Social Sciences like psychology, sociology or social history.
Kelson’s aim was to establish a science of law which will be pure in the sense that
it will strictly eschew all metaphysical, ethical, moral, psychological and
sociological elements. His aim goes beyond establishing an autonomous legal
science on positivistic empirical foundations, as he constantly criticized the ideas
of justice and the principles of natural law. He altogether excludes all such factors
from the study of law. Kelson defines law as an order of human behaviour.

**CRITICISM OF KELSON’S THEORY**

Kelson’s pure theory of law has been criticized by jurists. The main criticisms are
as follows :
1. His conception of Grundnorm is vague. Friedman puts it, it is a fiction incapable of
being traced in legal reality. Kelson seems to have given his thesis on the basis of
 written constitution but even in the written constitution Grundnorm is made up of
many elements and any one of these elements alone cannot have the title of
Grundnorm.

2. Every rule of law or norm derives its efficacy from some other rule or norm
standing behind it but the grundnorm has no rule or norm behind it. A grundnorm
derives its efficacy from the fact of its minimum effectiveness.

3. Another important objection of Kelson’s theory is that he has not given any
criterion by which the “minimum of effectiveness” is to be measured. Writers like
Friedman, Stone, Stammer have pointed out that in whatever way the effectiveness
is measured, Kelson’s theory has ceased to be pure on this. The minimum of
effectiveness cannot be proved except by an enquiry into political and social facts
whereas Kelson has altogether rejected political and social facts.
 ANALYTICAL SCHOOL

John Austin may be regarded as the founder of the Analytical School, though he
drew his inspiration from Hobbes, and Bentham, his teacher. To him law is a
command given by a superior to an inferior and enforced by material sanctions.
School of Analytical Jurisprudence Analytical jurisprudence is a legal theory that
draws on the resources of modern analytical philosophy to try to understand the
nature of law. Analytic jurisprudence uses a neutral point of view and descriptive
language when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law's fusing of what law is and what it ought to
be. Many times jurist have made their effort to define law, it sources and nature.
For the purpose of finding their points of view, the jurist are divided on the basis of
their approaches to law. This division has been helpful in understanding the
evolution of legal philosophy.

One class of this jurist came to be known as “analysts” who had little to do with
vague and abstract nations of natural law. These were the believers of analytical
school, who propounded positivism.The exponents of this school is not concerned
with the past and also it is not with the future of law but with the law as its exists
that means the law “as it is”.

PURPOSE OF ANALYTICAL SCHOOL OF LAW

The main purpose of analytical jurisprudence is to analyse or to see the first

principle of law without referring either to their historical origin or on the bases of
development or their validity.

The purpose of analytical jurisprudence is to analyse the first principles of law

without reference either to their historical origin or development or their validity.

Another purpose of this is to gain an accurate understanding of the fundamental

working concepts of all the logical and legal reasoning. The positive law takes law
as a command of sovereign and it also the importance to legislation or puts
emphasis on legislation as the source of law. It treats law as a closed system of pure
facts from which all the norms and value comes out or executed.
 CONCLUSION

The topic of mine “the analytical school of law” gives me a lot to learn. It tells me
about different-different jurists and there different openions. This topic is very
important as it tells us about legal theory that draws on the resources of modern
analytical philosophy to try to understand the nature of law. Since the boundaries
of analytical philosophy are somewhat vague, it is difficult to say how far it extends.
H.L.A.Hart was probably the most influential writer in the modern school of
analytical jurisprudence, though its history goes back at least to Jeremy Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism (the idea that
legal reasoning is or can be modelled as a mechanical, algorithmic process).
Indeed, it was the analytical jurists who first pointed out that legal formalism is
fundamentally mistaken as a theory of law.

Analytical jurisprudence uses a neutral point of view and descriptive language

when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law's fusing of what law is and what it ought to
be. David Hume famously argued in A Treatise of Human Nature that people
invariably slip between describing that the world is a certain way to saying
therefore we ought to conclude on a particular course of action. But as a matter of
pure logic, one cannot conclude that we ought to do something merely because
something is the case. Jurisprudence is the study of law. It is a type of science that
explores the creation, application, and enforcement of laws. Jurisprudence is the study of
theories and philosophies regarding the law. It has a practical and educational value.

There are five schools of jurisprudence. In the natural law school, there are four periods
of evolution of theory. In this, the period of renaissance played a vital role in the
development of natural law theory. It is marked by rationalism and emergence of new
ideas in different fields of knowledge. In the period of the Renaissance there were many
philosophers propounded their theories but mainly Hugo Grotius, Thomas Hobbes, John
Locke, Jean Rousseau and Immanuel Kant were propounded natural law theory in the best
way. So in the renaissance period, the rise of humanism the natural law became open to
rational inquiry free from religious trappings.

So, I can conclude my topic by giving thanks to all the people who helped me in
completing my project.
 There are basically five schools of jurisprudence. We will discuss only two schools along
with their leading jurists.

1. Philosophical school or Natural law

2. Analytical School

3. Historical School

4. Sociological School

5. Realist School