Вы находитесь на странице: 1из 15

Analytical School of Jurisprudence

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 Natural law school predominated of the juristic thought up to the beginning of the
eighteenth century. Principles of Natural law were considered supreme and according to
some writers, could override the man-made law. The term Natural law was differently
defined and understood by different writers and no single general acceptable meaning of the
term “Natural law” or the criterion for ascertaining the content of the principles of Natural
Law was there. Nature, reason, supernatural source, justice, utility were some of the bases
from which Natural Law was supposed to be derived. The analytical school was a reaction
against the airy assumptions of natural law.
The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen,
Gray, Hoffield and Hart.
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 not
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”. A law may be defined, said Bentham, as
an assemblage of sin declarative of a violation conceived or adopted by the sovereign in a
state concerning the conduct to be observed in a certain case by a certain person or class of
persons who, in the case, in question are or supposed to be subject to his power.
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 with
extra-legal norms. He distinguished between the science of legislation and law from morals.
To Austin, jurisprudence meant the formal analysis of legal conceptions. He divides
jurisprudence into general jurisprudence and particular jurisprudence. Austin took a legal
system as it is that is positive law and resolved it into its fundamental conception. Positive
law is the outcome of state and sovereign and is different from positive morality. The great
contrast between positive law and positive morality, according to Austin, is that the former is
set by a political superior whereas the latter is not the offspring of state and sovereign, hence
it is not law. Law cannot be defined by reference to any idea of justice. The science of
jurisprudence is only concerned with the positive laws. According to Austin, analysis of
positive law is to be done by the operation of logic on law without consideration of history of
ethical significance. Austin ignored social factors as well as in his analysis of law, he
emphasized that by the operation of logic, it is impossible to find out the universal elements
in law for example, notions was common in all mature legal systems.
Austin’s approach, analysis and deduction are, however, applicable to a unitary polity based
on parliamentary sovereignty. It does not have that relevance to legal systems as in India and
the United States of America.
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 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 with low 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.
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
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
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 them.
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
2. Every rule of law or norm derives its efficacy from some other rule or norm standing
behind it but the grundnormhas 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.
By – Shubhi Pandey
Disclaimer: This document is intended to provide information only. If you are seeking advice
on any matters relating to information on this website, you should – where appropriate –
contact us directly with your specific query or seek advice from qualified professionals only.
We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the
information in this document. However, we may have made mistakes and we will not be
responsible for any loss or damage of any kind arising because of the usage of this
information. Further, upon discovery of any error or omissions, we may delete, add to, or
amend information on this website without notice.

Schools of Jurisprudence
NOVEMBER 27, 2016
There are basically five schools of jurisprudence. We will discuss these schools along with
their leading jurists.
1. Philosophical school or Natural law
2. Analytical School
3. Historical School
4. Sociological School
5. Realist School
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. Click Here to Read More
Analytical School
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.
John 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
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. Click Here to Read More
Historical School
Historical school of jurisprudence believes that law is an outcome of a long historical
development of the society because it originates from the social custom, conventions
religious principles, economic needs and relations of the people.
According to this theory, the law is the product of the forces and influence of the past. Law is
based on the general consciousness of people. The consciousness started from the very
beginning of the society. There was no person like sovereign for the creation of law.
Savigny, Sir Henry Maine and Edmund Burke are the renowned jurists of this school.
Savigny is regarded as the founder of the historical school. He has given the Volksgeist
theory. According to this theory, the law is based upon the general will or free will of
common people. He says that law grows with the growth of Nations increases with it and dies
with the dissolution of the nations. In this way law is a national character. The consciousness
of people. In other words, according to this theory law is based on will or free will of
common people. A law which is suitable to one society may not be suitable for other society.
In this way, the law has no universal application because it based upon the local conditions
local situations, local circumstances, local customs, elements etc. All these things effect law
and make it suitable to the society.
According to Burke, “Law is the product of the General process. In this sense, it is a dynamic
organ which changes and develops according to the suitable circumstances in society.
This theory has some defects. Being conservative in its outlook it relies on past, however, its
merit is that it shows that law must change with the changes in society. It clearly believes that
if a law is not according to the will of the people, it will never be obeyed. In this way, it
supplemented the analytical school of law. Click Here to Read More
Sociological School of Jurisprudence
The sociological school of jurisprudence emerged as the synthesis of various juristic
thoughts. The exponents of this school treat law as a social phenomenon. According to them,
the law is a social function, an expression of human society concerning the external relations
of its individual members. Montesquieu, Auguste Comte, Herbert Spencer, Duguit and
Rosco Pound are the notable jurists of this school.
The exponents of this school lay greater stress on the functional aspect of law rather than its
abstract contents. They regard the law as a social institution essentially inter-linked with their
disciplines bearing direct impact on the society.
Every individual has to observe these rules because he understands that only by following
these rules he can realize all his needs. The supporters of sociological school are of
the view that the state does not create the laws but only formulates so that social unity is
preserved and social needs are satisfied. So laws did not come from states but from society.
The sanction behind the law is not the force of state but the awareness on the part of the
individual. Click Here to Read More
Realist School
In America, Sociological Jurisprudence has developed an extreme wing under the name of
the realist school. They are concerned with the study of law as it works and functions which
means investigating the social factors that make a law on the hand and the social results on
the other. They emphasize more on what the courts may do rather than abstract logical
deductions from general rules and on the inarticulate ideological premises underlying a legal
American Realism is not a school of jurisprudence but it is a pedagogy of thought. The
prominent jurists of this thought are Holmes, Gray and Jerome Frank.
Analytical Legal Positivism
Analytical jurisprudence is the general name for the approach to Jurisprudence which concern
itself mainly with classification of legal principles and rules and with analysis of the
concepts, relationships woeds and ideas used in legal system such as Person, Obligation,
Right, Duty, Act, etc. It is mainly associated with Positivism, the approach to law which
concerns itself with positive law i.e., legal system and rules actually in force distinct from
ideals systems or law which should be. Analytical Jurisprudence though fore – shadowed by
Thomas Hobbes, is chiefly associated with Jeremy Bentham and Jhon Austin. It has been
extensively developed in England notably by Markby, Holland, Salmond, Hart, etc. in the
continent by Hans Kelson and U.S.A. mainly by John Chipmin Gray, Oliver Wendell
Holmes, etc.
Analytical School
The major premise of analytical school of jurisprudence is to deal with law as it exist in the
present form. It seeks to analyse the first principle of law as they actually exist in the given
legal system. The exponent of analytical school of jurisprudence considered that the most
important aspect of law is its relation to the State. They treat law as a command emanating
from the sovereign, namely, the State. This school is therefore, also called the imperative
school. The advocates of this school are neither concerned with the past of the law nor with
the future of it, but they confine themselves to the study of law as it actually exists i.e.,
positus. It is for this reason that this school is also termed as the Positive School of
Jurisprudence. Bentham and Austin are considered to be the Austinian School of
Jurisprudence. The school received encouragement in United States from distinguished jurists
like Gray, Hohfeld and Kocourck and in the European continent from Kelson, Korkunov and
Analytical School – Meaning
Analytical Jurisprudence which Sir John Salmond terms Systematic Jurisprudence and C.K.
Allen as Imperative Jurisprudence is that approach of method which considers law as a body
of actual interrelated principles and not merele a haphazard selection of rule inextricably
interwoven with a transcendental Law of Nature. It seeks to define all laws, classify all laws,
discover the essential features of every law and get a yardstick by which all laws can be
measured. It mainly aims at reconstructing a scientifically valid system by analyzing legal
concept on the basis of observation and comparison by reducing law into a logical fasion.
Such an approach towards law is described Analytical Jurisprudence. C.K Allen, ghowever,
maintains that since jurists of this School consider law as an imperative or command
emanating from a politically independent sovereign so the approach of these jurist may be
described as Imperative School of Jurisprudence. Analysis of legal rules, concepts and ideas
through empirical or scientific method is commonly described Analytical Jurisprudence.
Jeremy Bentham (1748 – 1832)
Jeremy Bentham heralded a new era in the history of legal thought in England. He is
considered to be the founder of positivism in the modern sense of the term. It has been rightly
said that Austin owes much to Bentham and on many points his propositions are propositions
are merely the ‘pare – phasing of Bentham’s theory’. Bentham’s classic works reveal that
truly speaking, he should be considered to be the father of analytical positivism and not John
Austin as it is commonly believed.

Bentham was the son of a wealthy London Attorney. His genius was of rarest quality. He was
a talented person having the capacity and acumen of a jurist and a logician. Dicey in his book
‘Law and Public opinion in 19th Century’, has sketched Bentham’s ideas about
individualism, law and legal reforms which have affected the growth of English law in the
positive direction. The contribution of the Jeremy Bentham to the English Law reforms can
be summarised thus-

“He determined, in the first place, the principles on which reforms should be based.

Secondly, he determined the method i.e., the mode of legislation, by which reforms should be
carried out in England.”
Jeremy Bentham’s View on Law
English law as it existed at the end of the 18th century, when Bentham was still in his youth,
had developed almost in a haphazard way as a result of customs or modes of thought which
prevailed at different period. The laws which were then in existence were not enacted with
any definite guiding principles behind them. The law of England, like that of most countries
of contemporary Europe, had grown out of occasion and emergence. It is for this reason that
it is often said that in England law had in fact grown, rather than been made.

Jeremy Bentham defined law “as an assemblage of signs declarative of a volition conceived
or adopted by the Sovereign in a State, concerning the conduct to be observed in a certain
case by a certain person or class of persons, who in the case in question are or are supposed to
be subject to his power; such violation trusting for its accomplishment to the expectation of
certain events which it is intended such declaration should upon occasion be a means of
bringing to pass, and the prospect of which it is intended should act as a motive upon those
conduct is in question”.

Bentham’s concept of law is imperative one i.e., law is an assembly of signs, declarations of
violation conceived or adopted by Sovereign in a State. He believed that every law may be
considered in the light of eight different aspects, viz. –
1. Source (law as the will of Sovereign).
2. Subjects (may be persons or things).
3. Objects (act, situation or forbearance).
4. Extent (law covers a portion of land on which acts have been done).
5. Aspect (may be directive or sanctional).
6. Force
7. Remedial State Appendages.
8. Expression.
Bentham’s Contribution
Bentham’s contribution to legal theory is epoch making. “The transition from the peculiar
brand of natural law doctrine in the work of Blackstone to the rigorous positivism of
Bentham represents one of the major developments in the history modern legal theory.” He
gave new directions for law making and legal research.

“With Bentham came the advent of legal positivism and with it the establishment of legal
theory as a science of investigation as distinct from the art of rational conjecture, Bentham
laid the foundations of this new approach, but, far from containing the solution to problems
involving the nature of positive law, his work was only the beginning of very long and varied,
series of debates, which are still going on today.”
Bentham’s Influence
Whatever may be the shortcomings of Bentham’s theory, which every theory is bound to
have, his constructive thinking and zeal for legal reform heralded a new era of legal reforms
in England. Legislation has become the most important method of law making in modern
times. In the field of jurisprudence, his definition of law down the foundations of new
schools. As stated earlier, Austin owes much to Bentham.
John Austin (1790 – 1859)
John Austin is the founder of the Analytical School. He is considered as the ‘father of English
Jurisprudence.’ He was elected to the Chair of Jurisprudence in the University of London in
1826. Then he proceeded to Germany and devoted some time to the study of Roman Law at it
was taken in Germany. The scientific treatment of Roman Law there made him aware of the
chaotic legal exposition of law in his own country. He took inspiration from it and proceeded
to make scientific arrangement of English Law. The method which he applied was essentially
of English origin. He avoid metaphysical method which is a German character.
Austin’s Approach towards Jurisprudence
Austin’s approach towards Jurisprudence and Law is found in his own work. ‘The Province
of Jurisprudence Determined’. The function of jurisprudence, in view of Austin, was to find
out general notions, principles and distinctions abstracted from positive system of law mature
and developed legal system of Rome and England. His first task, therefore, was to separate
‘positive’ law from positive morality and ethics. Positive law, according to Austin, was the
law as it is (Positus) rather than law as it ought to be with which he was not at all concerned.
His particular concept of law was, however, imperative being the command of the sovereign.
For ‘Every positive Law set by a given sovereign to a person or persons in a state of
subjection to its author’. According to Austin ‘The science of jurisprudence is concerned with
positive law or with laws strictly so called, as concerned without regard to their goodness or
badness. The positive law is characterized by four elements command, sanction, duty and
Austin’s method – Analytical
The method, which Austin applied, is called analytical method and he confined his his field
of study only to the positive law. Therefore, the school founded by him is called by various
names – ‘analytical’, ‘positivism’, ‘analytical positivism’. Some have objected to all three
terms. They say that the word ‘Positivism’ was started by Auguste Comte to indicate a
particular method of study. Though this positivism, later on, prepared the way for the 19th
century legal thought, it does not convey exactly the same at both the places. Therefore, the
word ‘positivism’ alone will not give a complete idea of Austin’s school. In the same way,
‘analysis’ also did not remain confined only to this school, therefore, it alone cannot give a
separate identity to the school. ‘Analytical positivism’ too may create confusion. The ‘Vienna
School’ in its ‘Pure Theory of Law’ also applies analytical positivism although in many
respect they vitally differ from Austin’s school. To avoid confusion and to give clarity which
is the aim of classification, Prof. Allen thinks it proper to call the Austin’s school as
‘Imperative School’. This name he gave on the bais of Austin’s conception of law )’Law is
Austin Theory of Imperative Law
‘Law’ in its most comprehensive and literal sense is a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. This excludes the ‘laws’ of
inanimate objects (physics, etc.) and the laws of plant or animal growth which are described
by Austin as law improperly so called’. Next, Austin recognizes the law of God or divine law
which he regards as ambiguous and misleading. Law properly so called is the positive law,
that is law set by men to men. These are of three types;

1. Laws set by political superiors to their subjects,

2. Laws set by men who are not political superiors, and
3. Rules improperly but by analogy termed law e.g., law of fashion or honour or rules of
international law.

The law set by political superior is the law properly so – called and (b) and (c) are positive
Austin Conception of Law
Austin defined law as “a rule laid for the guidance of an intelligent being by an intelligent
being having power over him.” He divides law into two parts, namely, (1) Laws set by God
for men, and (2) Human Law, that is laws made by men for men. He says that positive
morality is not law properly so called but it is law by analogy. According to him the study
and analysis of positive law alone is the appropriate subject – matter of jurisprudence. To
quote him, “the subject – matter of jurisprudence is positive law – law simply and strictly so
called; or law set by political superior to political inferiors.” The chief characteristics of
positive law are command, duty and sanctions, that is every law is command, imposing a
duty, enforced by sanction.

Austin, however, accepts that there are three kinds of laws which, though, not commands,
may be included within the purview of law by way of exception. They are: -
1. Declaratory or Explanatory laws; These are not commands because they are already in
existence and are passed only to explain the law which is already in force.
2. Laws of repeal; Austin does not treat such laws as commands because they are in fact the
revocation of a command.
3. Laws of imperfect obligation; they are not treated as command because there is no sanction
to them. Austin holds that command to become law, must be accompanied by duty and
sanction for its enforcement.
Austin’s Concept of Law
Austin’s Definition of Law; Law, in the common use, means and includes things which
cannot be properly called ‘law’. Austin defined law as ‘a rule laid down for the guidance of
an intelligent being by an intelligent being having power over him.’

Law of 2 kinds: (1) Law of God, and (2) Human Laws: This may be divided into two parts:
(1) Law of God – Laws set by God for men. (2) Human Laws – Laws set by men for men.

Two kinds of Human Laws, Human Laws may be divided into two classes;
1. Positive Law; These are the laws set by political superiors as such, or by men not acting as
political superiors but acting in pursuance of legal rights conferred by political superiors.
Only these laws are the proper subject – matter of jurisprudence.

2. Other Laws; Those laws which are not set by political superiors (set by persons who are
not acting in the capacity or character of political superiors) or by men in pursuance of legal

Analogous to the laws of the latter class are a number of rules to which the name of law is
improperly given. They are opinions or sentiments of an undeterminate body of men, as laws
of fashion or honour. Austin places International Law under this class. In the same way, there
are certain other rules which are called law metaphorically. They too are laws improperly so

Positive Law as Command

The law properly so – called is the positive law depends upon political authority – the
sovereign. Every rule, therefore, according to Austin is a command. So laws properly so
called are a species of commands. If you express or intimate a wish that I shall do or forbear
from some of your wish, the expression or intimation of your wish is a command. If I am
bound by it, I lie under a duty to obey it. Command – duty are, therefore, correlative terms.
Command further implies not only duty but sanction also.

Law is Command
Positive law is the subject – matter of jurisprudence, Austin says that only the positive law is
the proper subject – matter of study for jurisprudence. “The matter of jurisprudence is
positive law: law simply and strictly so called: or law set by political superiors to political
inferiors.” Jurisprudence is the general science of positive law. The characteristics of law.

Command and Sanction

Sanction as an evil which will be incurred if a command is disobeyed and is the means by
which a command or duty is enforced. It is wider than punishment. A reward for obeying the
command can scarcely be called a sanction. A command embraces:
(a) A wish or desire conceived by a rational being to another rational being who shall do or
forbear as commanded;
(b) An evil to proceed from the former to be incurred by the latter in case of non –
compliance; and
(c) An expression or intimation of the will by words or otherwise.

Commands are of two species:

(a) Las or rules, and
(b) Occasional commands.

A command is a law or rules where it obliges generally to acts or forbearances of people. It is

occasional or particular when it obliges to a specific individual for act or forbearance.

Law is a command which obliges a person or persons to a course of conduct. It requires

signification and can, therefore, only emanate from a determinable source or author (a person
or body of persons).

Laws proceed from superiors and bind and oblige inferiors. Superiors are invested with
might: the power of affecting others with pain or evil and thereby of forcing them to conform
their conduct to their orders.
Command Exceptions
The proposition that all laws are commands must, therefore, be taken with limitations for it is
applied to objects which are not commands. These exceptions are:
(a) Acts of the legislature to explain positive laws or which are declaratory of the existing
laws only;
(b) Repealing statutes (which are revocations of commands);
(c) Laws of imperfect obligations without an effective sanction like rules of morality or rules
of international law.
Theory of Sovereignty
Every positive law (or every law properly so – called) is set by a sovereign person or a
sovereign body to a member or members of independent political society wherein that person
or body is sovereign or supreme. In other words, law is set by the sovereign to a person or
persons who are in a state of subjection to its author. The relationship subsisting between the
superior and rest of the given society is that of sovereign and subject. Generality of its
member must be in a habit of obedience to a determinate common superior. Further the
power of the sovereign is incapable of legal limitation.
Austin’s method of Jurisprudence
Austin Method: analysis; This method can be applied only in civilized societies. The name of
this school – ‘analytical’ itself indicates the method. Austin considered analysis as the chief
instrument of jurisprudence. Austin’s definition of law as the “command of the sovereign”
suggests that only the legal systems of the civilized societies can become the proper subject –
matter of jurisprudence because it is possible only in such societies that the sovereign can
enforce his commands with an effective machinery of administration. Law should be
carefully studied and analyzed and the principle underlying therein should be found out. This
method is proving inadequate in modern times because jurisprudence is to solve many legal
problems which have arisen under changed conditions and it has to make constructive
suggestions also, but, at the time, when Austin gave his theory, it helped in removing the
confusion created by the abstract theories about the scope and method of jurisprudence.
Austin’s Contribution; Opening a New Era of Approach
These are the weaknesses of Austin’s theory pointing out by his critics. Every theory has its
limitations. Moreover Austin laid down many of his propositions as deduced from English
law as it was during his time. The credit goes to Austin for opening an era of new approach to
law. Even the defects of his theory have been a source of further enlightenment on the subject
as Hart says, “But the demonstration of precisely where and why he is wrong has proved to
be constant source of illumination, for his errors are often the mis – statement of truths of
central importance for the understanding of law and society’. One of his great critics,
Olivercrona, also acknowledges him as the pioneer of the modern positivists approach to law.
Thus Austin made great contributions to jurisprudence.
Austin’s method Characteristic of English Jurisprudence; Austin’s Influence
The influence of Austin’s theory was great due to its simplicity, consistency and clarity of
exposition. That is why Gray remarked: “If Austin went too far in considering the law as
always proceeding from the state, he conferred a great benefit on jurisprudence by bringing
out clearly that the law is at the mercy of the state.” Austin’s method in described as
characteristics of English jurisprudence. Prof. Allen says: “Far a systematic exposition of the
methods of English jurisprudence we will have to turn to Austin.” The same is true about
American also because Austin’s method was greatly adopted there Austin’s theory had little
influence in the continent for the time being, and especially Germans, who always mixed
metaphysical notions with jurisprudence, were least appreciate of it. But of late years Austin
has received an increasing attention and respect from the jurists of the Continent also.
Germans also have come round the Austin’s view and many of them are abjuring all ‘micnt
positivisches Rechet.’

The latin analytical theories have improved upon Austin’s theory and have given a more
practical and logical basis. Holland, though accepted the ‘command’ theory, made a slight
variation. He says:-

“A law, in the proper sense of the term is, therefore, a general rule of human action, taking
cognizance only of external acts, enforced by determinate authority.”
Later Jurists improved upon his theory
Salmond and Gray further improved upon it and considerably modified the analytical
positivist approach. They differ from Austin in his emphasis on sovereign as law giver.
According to Salmond, the law consists of the rules recognized and acted on by the court of
justice. Gray defines law what has been laid down as a rule of conduct by the persons ating as
judicial organs of the state. This emphasis on the personal factor in law, later on, caused the
emergence of the ‘Realist’ school of law.

The ‘Vienna School’ of law which is known as ‘pure Theory of Law’ (which we shall discuss
later on) also owes to Austin’s theory.
Austin’s Followers
Austin’s influence upon English legal thought has been profound and continuing. He has
been followed and emulated by many English jurists like Amos, Mark by, Holland, Salmond
and Hart – the last of the two partly reject Austin’s concept of law. Both for Salmond and
Hart positive law cannot be divorced from justice or morality. In the United States Gray,
Hohfield and Kocourek and the distinguished exponents of Analytical School of
Jurisprudence in one or the other way. In the continent Hans Kelson has been the most
influential jurist whose theory of ‘pure law’ has attracted world wide attention.

At the end it can be concluded that, analytical school of jurisprudence consider that the most
important aspect of law is its relation to the State. The School is, therefore also called the
imperative school. The school received encouragement in United States from distinguished
jurists like Gray, Hohfeld and Kocourck and in the European continent from Kelson,
Korkunov and others.

Analytical Jurisprudence is that approach of method which considers law as a body of actual
interrelated principles and not merely a haphazard selection of rule inextricably interwoven
with a transcendental Law of Nature. It seeks to define all laws, classify all laws, discover the
essential features of every law and get a yardstick by which all laws can be measured.