Austin Analytical School
Austin Analytical School
Austin Analytical School
Synopsis
Introduction
Definition’s explanation.
Relevance in Indian context.
Criticism of Austin theory.
Analytical school
Analytical school of jurisprudence is deals with law as it exists in the
present form It seeks to analyses.
They treat law as a command emanating from the Sovereign, namely,
the State.
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.
Also called imperative schools and systematic schools Austinian School.
This school tends to exclude many things from law such as the history,
customs, religious or divine law beside this also exclude morals. As for
the explanation for the exclusion of morals, morals are considered to be
subjective in nature according to jurist of analytical school and law
cannot be subjective rather is objective in nature.
While Bentham, Holland, Austin and Salmond are major proponents of
this school, Austin is considered as a father of the Analytical school.
The Analytical school views law as a sovereign’s mandate. It
emphasised the importance of legislation as a source of law.
Analytical approach is of breaking a given problem into smaller part
and solving them individually Analytical jurisprudence’s role is to
accept these premises and break them down into their ultimate atomic
constituents in a well-organised legal framework.
Bentham’s work
History
Jeremy Bentham was born in 1748 in Landon. He was the son of a
wealthy London Attorney. He was a talented person having the capacity
and acumen of a jurist and a logician. He started 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. Austin was inspired by
Bentham, and on many points, his arguments are just a paraphrasing of
Bentham’s theory.
Important book- The limits of jurisprudence defined 1782.
Work
Bentham contrasted expositorial jurisprudence (that is, what the law is)
from censorial jurisprudence (that is what the law ought to be). This
differentiation justified the separation of morality from the law as
morality is a subjective standard of what the law ought to be.
His definition of law which was basis for the Austin’s definition is.
“Law is an assemblage of signals, affirmations of intention conceived or
chosen by a sovereign in a State.”
Bentham ‘legal philosophy is called utilitarian individualism.
he supported the economic principle of “Laissez-faire”. which meant
minimum interference of the State in the economic activities of
individuals.
According to this theory, that the main object of legislation is the
carrying out of the principle of utility, in other words the proper end of
every law is the promotion of the greatest happiness of the greatest
number.
John Austin
History
John Austin ’was the greatest exponent of this School, who is the father
of English Jurisprudence. He was born in 1790. At a very age he entered
the army in which he served for five years. In1826, he appointed to the
Chair of jurisprudence in the University of London. His lectures
delivered in London University were published under the volume
entitled “The Province of Jurisprudence Determined”.
John Austin commonly known as Austin was a disciple of Jeremy
Bentham and like him, he was also a utilitarian because he focused on
the greater happiness of people; as per his views, he considered that the
main purpose of sovereign is to ensure the greatest happiness of his
subjects.
Law
law
law properly
improperly so
so called
called
Classification of law: -
According to Austin law are two type –
1) Laws properly so called 2) Laws improperly so called.
B) Human laws: -These are the laws which are made by one human
being for other human beings. They may be further divided into two
parts.
a) Positive Laws b) Other Laws
Unlimited Power
Indivisible
Continuous
2. Command
There is aspect of command which must be followed as
A desire concerning someone's behaviour.
An expression of that desire
A sanction which is also threatened harm for the non-compliance.
Here if there is no sanction on it then the desire will merely be
request/instruction and not amount to command.
command, sanction, and duties are interconnected because receiving
command becomes a duty to follow otherwise there will be a threat of
sanction.
3. Duty
The command levies a “legal duty” on those who are politically subject
to the “commander” who is sovereign. Every duty supposes a command
by a sovereign by which it is created.
4. Sanctions
In his sense of sanction, Austin differed from Bentham who considered
that sanction could even be moral or religious. He did not considered
command to be a law without sanction because as per him it was the
fear of sanction which induced a man to obey the law. It is implied in
the theory that this sovereign has with itself a power to punish or
penalize for noncompliance of laws. The dread of legal sanction, as an
evil consequence in case of disobeying, is the motivation behind one’s
adherence of law and thus is a requisite part.
There are three exceptions as per Austin which though are not commands but they are
still within the sphere of jurisprudence:
Laws of Repeal:
As per Austin, these are not commanding rather, they are the laws made in order to
revoke the existing laws.
Criticism of Austin
H L A Hart