ANALYTICAL SCHOOL OF JURISPRUDENCE

The Analytical School of Jurisprudence is centered on the law as it exists in its current, practical form. Unlike other schools that delve into the historical evolution or moral aspects of law, this school focuses purely on “law as it is”, not “what it was” or “what it ought to be.”

💬 Why is it called the Imperative or Positive School?

This school treats law as a command issued by the State, which is why it is often referred to as the Imperative School of Jurisprudence.

🎓 Key Thinkers:
Some of the most influential legal philosophers who shaped this school include:

Jeremy Bentham
John Austin
H.L.A. Hart
Hans Kelson

JEREMY BENTHAM

Jeremy Bentham is one of the main proponents of Analytical Jurisprudence. He opposed the idea of Natural Law and Natural Rights, famously criticizing Natural Law as “Nonsense upon slits” and “Anarchial fallacies“

Jeremy Bentham divided jurisprudence into two main types:

Expository- The term expository is concerned with law as it is without giving any regard to its moral or immoral character.
Censorial- Censorial Jurisprudence on the other hand concerns itself with the science of legislation, that deals with what ought to be.

Famous works by Jeremy Bentham:

Limits of Jurisprudence Defined
An Introduction to the Principles of Morals and Legislation
A Fragment of Government
Of Laws in General

BENTHAM’S UTILITARIANISM

Bentham is considered as the founder of Utilitarianism. According to this theory, the right aim of legislation is to carry out the principle of utility.

In other words:

🧠 The proper end of every law is the promotion of the greatest happiness of the greatest number.

According to Bentham, the task of government is to promote the happiness of society by:

Furthering enjoyment of pleasure
Providing security against pain

To ensure community happiness, Bentham believed the government should aim for:

Subsistence
Abundance
Equality
Security for Citizens

This principle of Utilitarianism is also known as the Doctrine of Hedonism or the Theory of Pain and Pleasure.

💡 Hedonism means the pursuit of pleasure. Thus, the main objective of any law is to maximize pleasure.

Pleasure and pain, according to Bentham, can be measured using what he called the Hedonistic Calculus, which includes 7 factors:

📌 Factor	💬 Explanation
Intensity	How strong is the pleasure?
Duration	How long will the pleasure last?
Certainty	How likely is it that the pleasure will occur?
Remoteness	How soon will the pleasure occur?
Fecundity	Probability that the action will be followed by sensations of the same kind
Purity	Probability that it will not be followed by sensations of the opposite kind
Extent	How many people will be affected?

CRITICISM AGAINST BENTHAM

Although Bentham’s theory of Utilitarianism laid the foundation for modern legal thought, it has faced criticism from various scholars, particularly for over-simplifying complex legal and moral concerns.

According to Friedmann, Bentham’s theory suffers from two major weaknesses:

Overestimation of Legislative Power
Bentham underestimated the importance of individual discretion and flexibility in applying the law, while overestimating the role of legislators in crafting perfect legal systems.
Failure to Balance Competing Interests
The theory fails to strike a balance between individual interests and the interests of the community as a whole. In other words, it may promote the happiness of the majority while neglecting the rights of the minority.

JOHN AUSTIN

John Austin is widely regarded as the Father of the Analytical School of Jurisprudence and is also celebrated as the Father of English Jurisprudence.

He devoted his entire study to positive law, employing a strictly analytical method to dissect legal principles with precision. One of his most influential contributions to legal theory is the Imperative Theory of Law, which has become a cornerstone of modern legal positivism.

Positive Law vs Positive Morality:

Positive Law:

Austin defines positive law as law strictly so called.
He links law to three essential elements:

Command
Duty
Sanction

If any of these three elements is missing, it cannot be considered as positive law.

According to Austin, positive laws are:

Made by political superiors to political inferiors
Or, issued by individuals empowered by their political status

Positive Morality

In contrast, positive morality is described by Austin as law not strictly so called or law made by analogy.

In simpler terms:

These are not laws in the real sense—rather, they are moral rules or societal norms that lack legal enforceability.

Austin dismissed them as mere morals that do not carry the same authority as state-made laws.

IMPERATIVE THEORY OF LAW

The Imperative Theory of Law was propounded by John Austin, a key figure of the Analytical School of Jurisprudence.

Austin rejected the concept of natural law, criticizing it as ambiguous and misleading. In its place, he introduced the Command Theory of Law, asserting that:

💡 All laws are essentially commands.

According to Austin, every law comprises three fundamental elements:

Command – An expression of the will of the sovereign.
Duty – The obligation imposed on subjects to follow the command.
Sanction – A penalty or consequence for disobedience.

✅ Austin believed that law is the command of the sovereign, backed by the threat of sanction, and must be obeyed by those subject to the law.

While Austin’s theory strictly revolves around the idea of command, he acknowledged a few exceptions—types of law that do not constitute a command, yet still form part of the legal system:

1. Declaratory or Explanatory Laws

These laws do not command anything new.

They merely clarify or explain the existing laws already in force.

2. Laws of Repeal

These are not commands either.

They function to withdraw or revoke previous commands.

3. Laws of Imperfect Obligation

These laws lack sanctions, and therefore,

Are not commands in Austin’s strict sense.

CRITICISM OF IMPERATIVE THEORY

This theory does not take permissive character of law
There is no place for Judge Made Law
International Law is not treated as real law in the imperative theory.
He overemphasis command in his theory
Sanction does not guarantee obedience
Indivisibility of Sovereign in his theory was criticized

H.L.A. HART

H.L.A. Hart is regarded as one of the most influential thinkers of the Analytical School of Jurisprudence. A professor of jurisprudence at Oxford, Hart is best known for his groundbreaking work:

📘 “The Concept of Law”

He challenged John Austin’s command theory and proposed a more nuanced understanding of law, focusing on its relationship with society.

Hart introduced a two-tier system of rules, which he believed was the key to understanding law

Primary Rules – The primary rules are the rules which imposes duty on the others
Secondary Rules – Secondary rules are the rules which are power conferring and enable the legislators to modify the policies according to the needs of society.

Hart`s Positivist Prespective:

H.L.A. Hart redefined legal positivism with a refined and modern approach. His theory revolves around four major ideas:

(i) Analytical Jurisprudence Matters

He emphasized that legal concepts must be analyzed in their own right, apart from historical or sociological contexts.

(ii) Judicial Reasoning Should Follow Predetermined Rules

Judges must derive decisions from existing legal rules, not personal opinions.

(iii) Morality ≠ Rational Proof

Moral judgments, according to Hart, cannot be proven through reason or evidence like legal rules can.

(iv) Law “As It Is” vs. Law “As It Ought to Be”

There must be a clear distinction between the existing law and what law should be.
✨ This principle separates Hart from natural law theorists.

Notable Works by H.L.A. Hart:

The Concept of Law
Causation in Law
Law, Liberty and Morality

HANS KELSON

Hans Kelsen is one of the most influential figures of the Analytical School of Law. He put forth the celebrated Theory of the Pure Science of Law, a cornerstone in modern legal positivism.

What is the Pure Theory of Law?

Kelsen’s Pure Theory aims to isolate law from politics, morality, sociology, and other disciplines. He sought to define what law is—not what it should be.

Essence of Law: Kelsen focused on identifying the very essence of law—that intrinsic quality which makes a rule “law”.
Law as Direction, Not Command: Unlike Austin, who treated law as a command to the people, Kelsen viewed law as directions to officials—those responsible for implementing and interpreting legal norms.
Hierarchical Structure: His theory is built upon a pyramidical structure of norms, where each legal norm draws its validity from a higher one which is known as grundnorm

GRUNDNORM

The concept of Grundnorm originates from the Pure Theory of Law developed by renowned jurist Hans Kelsen. The term “Grundnorm” is a German word meaning “fundamental norm. In Kelsen’s legal framework, the Grundnorm serves as the highest and most foundational legal norm in a legal system. Important points related to grundnorm are:

Supreme Legal Authority: The Grundnorm is the source from which all other legal norms derive their validity.
Normative Hierarchy: Kelsen emphasized that legal systems operate under a hierarchy of norms, where each rule gains legitimacy from a superior one.
Chain of Validity: Each norm is connected like links in a chain, ultimately tracing back to the Grundnorm.
Self-Existent: The Grundnorm is not created or validated by another norm—it is assumed to exist and accepted as the foundational basis of the legal system.

FEATURES OF THEORY OF PURE SCIENCE OF LAW

This theory eliminates confusion of natural law
This theory focuses on law as it is
This theory considers law as normative, not natural science
This theory is not concerned with practical enforcement of norms.

CRITICISM OF KELSON’S THEORY

This theory is based on hypothetical considerations and is impractical
This theory fails to resolve ideological conflicts
This theory ignores legal purpose and customs.
Kelson`s pure theory of law suffers from methodological shortcoming because he ignore the fact that the action of the authority enforcing law to be valid, has to be in accordance with the procedure and therefore it is necessary to probe into the content of law.

References:

Studies of Legal Theory and Jurisprudence by Dr. N.V. Pranjape

ANALYTICAL SCHOOL OF JURISPRUDENCE

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