ANALYTICAL

SCHOOL OF LAW

MADE BY:MOHAMMAD
IRFAN
BBA
LLB.
SECTION B.

15GSOL103034
INDEX
1.)
2.)
3.)
4.)
5.)
A.)

INTRODUCTION
ACKNOWLEDGEMENT
PURPOSE OF ANALYTICAL SCHOOL OF LAW
MAIN EXPONENTS OF ANALYTICAL SCHOOL OF LAW
JEREMY BENTHAM
BENTHEMS ANALYTICAL POSITIVISM ANTI

B.)

NATURAL LAW
BENTHEMS CONTRIBUTION TO ANALYTICAL

6.)
A.)
B.)

JURISPRUDENCE
JOHN AUSTIN(1970-1859)
AUSTNS POSITIVE LAW
AUSTINS SEPERATION OF LAW AND MORALE
RATIONALE

C.)

AUSTINS NATURE OF LAW

7.)

H.L.A. HART

A.)

HARTS NATURE OF LAW

B.)

PRIMARY RULE

C.)

DEFECTS OF PRIMARY RULE

D.)

SECONDARY RULE

8.)
A.)

HANS KELSEN
KELSENS HAND IN THE ANALYTICAL SCHOOL OF

LAW
B.) KELSENS POSIVITISM
C.) LEGAL NORM
D.) KELENS CRITICISM
9.) CONCLUSION
10.) BIBLIOGRAPHY

INTRODUCTION
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.

ACKNOWLEDGEMENT
For this project I want to thank my concern faculty Sir
Mr.Pranav Raina without whom this project was impossible.i want
to thank him for giving me interesting tips and also helps me in
showing a right path so that I can complete my project easily. On
the other hand I also want to thank my friends who also helped
me a lot for the completion of my project.
As some how is a very interesting and different topic. It
also helps me in many ways such as learning many new things,
While doing my research, it also gives me the experience that
how to do a research work for any particular thing as a topic
given.

MOHAMMAD IRFAN
BBA LLB.

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.
Talking about the norm:Norm is formal rule or standard laid down by legal,
religious, or social authority against which we came to know
appropriateness or in other words what is right and what is wrong
of an individual is judged.1

1.)Dr. S.N. Dhyani;jurisprudence;3rd edition;2013;221

MAIN EXPONENTS OF ANALYTICAL SCHOOL

OF LAW
The main exponents of Analytical school of law are:A.)
B.)
C.)
D.)

Jeremy Bentham
John Austin
Hart
Hans kelsen

JEREMY BENTHAM (1748-1832):To access the significance of John Austin, it is necessary to

study Jeremy Bentham who was his intellectual god father
from whom John Austin borrowed, developed and completed
his theory of analytical positivism. Unlike Austin, Bentham
theory had made many splendours sides, besides being a jurist
he was the reformer of law and legislation, a moralist and also
a philosopher. Indeed his whole life was devoted in the
improvement of law for promoting happiness in of individuals.

BENTHAM ANALYTICAL POSITIVISM ANTI-NATURAL

LAW:From the point of view Bentham was the leader or head of
analytical positivism, the real founder of analytical school of
jurisprudence and he also polished the method, techniques of
this analytical school.

CENSORIAL AND EXPOSITORY JURISPRUDENCE:-

Bentham as a legal jurist and positivist made a sharp

difference and distinction between the law as it is and the law
that ought to be. As a positivist he laid the foundation of
analytical jurisprudence by distinguishing it from what he calls
censorial jurisprudence. To be more precise Bentham divided
this jurisprudence into two:Expository and censorial
Expository which told as what the law is and on the other hand
censorial tells what law ought to be.

BENTAMS CONTRIBUTION TO ANALYTICAL

JURISPRUDENCE:Jeremy Bentham in his monumental work The limits of
jurisprudence defined 1872 and the law in general
expounded the analytical positivism which subsequently
became the analytical school of jurisprudence. In these work
he invented as well as perfected the tools of analysis to
determine the nature of law as well as its purposes. He
delineated the subject matter of law by testing legal principles
and action on the matrix of his hedonistic doctrine of utility.
One of the cardinal purpose of law according to Bentham being
to provide security and protection, besides aiming, abundance
and equality.1 As already observed Bentham was the newton of
analytical school, as he based law on sovereigns command and
coercion without regards to its moral nature.
However, there is one remarkable thing about Benthams
philosophy was that he had a great sway during the nineteenth
century so as far as individual freedom and justice
and
protection of public interest. However it was shocking that his

theory was altogether rejected in that century as for which

Paton said it was a great disaster for English jurisprudence
that Bentham was not taken into consideration for his theory
while there are many ideas of Bentham only taken by Austin
and yet there are strong contrast between the two.The transfer
of his working rule from legislation to morality seems to me the
true ground of criticism to which Bentham was justly open as
analyst of moral facts.

Taken from jurisprudence Dr. S.N. Dhyani

JOHN AUSTIN(1970-1859):-

John Austin was popularly credited for founding analytical

positivism in legal theory and for this he was also called as the
father of English jurisprudence, therefore it is necessary in
order to understand his attitude and philosophy concerning
with law.

AUSTINS POSITIVE LAW:Austin aim is to determine and characterize the nation of law that
is law properly so-called which has a difference or distinct from
other laws that are laws improperly so-called. Austins model
law was positive law which he distinguish or differentiate between
the morality or other kinds of laws such as the latter lacking
force, coercion of the state. He describes positive law on the
other hand that are the rules set by the men who are politically
superior to men as politically inferior. For Austin positive law is
the matter of jurisprudence and rejects the law that ought to be
which Austin descries as science of legislation. In different
categories he also includes different types of rules such as rules
of clubs, laws of fashion, laws of different sciences etc.
As per Austin existence of law is one thing and its merits and
demerits is other, whether it be or be not confirmable to an
assumed standard, is a different enquiry. A law which exsits has
to be followed by everybody so that everybody in the society lives
in rules and regulations.

AUSTIN SEPERATION OF LAW AND MORALS

RATIONALE:The major theory of Austin is based on the separation between
law and morals. Austin did a sharp differentiation and
distinction between science of jurisprudence and science of
legislation. The former is concern with positive laws
irrespective of their goodness and badness, and the law exists
and everybody has to follow the law.
Amos says that by making the difference between the
positive law and morals, Austin not only laid the foundation of
science of law but also cleared the conceptions of law.

AUSTINS NATURE OF LAW:It is already observed that Austin created the system of law
which is not concerned with the normative aspect.
As per Austin every positive law is a set by a sovereign
person or a sovereign body of person, to the member and
members of independent political society wherein its important
that person is a sovereign or supreme.Thus the great
contribution of Austin over Hobbes is concept of law and once
law is made, everybody has to follow that law and has to live
within the rules and regulations.

H.L.A. HART(1907):-

H. L. A. Hart's the concept of law (1961) is one of the most

important contributions to Analytical Jurisprudence to have been
made in England since the appearance of Austin's the province of
jurisprudence determined in 1832. Indeed Hart's Concept of Law
has come as an alternative to, and to a great-measure has
developed a new theory of, British positivism by rejecting Austin's
command-duty-sanction them. In the concept of law he presents
a positivist account of law that is designed to give a more
adequate idea of the notion of law by dealing with various
difficulties besetting Austin's philosophy of law. At the centre of
Hart's analysis of the concept of law is the concept of rules and in
particular the concept of a social rule, the former being a kind of
directive which sets out directions for behaviour and the latter
being different kinds or more or less wide practices or habitual
behaviour of a community which require compliance. His works
have initiated a renaissance in Analytical Jurisprudence in
England.

HARTS NATURE OF LAW:As Austin had claimed that trilogy of command, sanction and
sovereign constitutes essence or nature of law Hart law is a
system of rules
A.)
B.)

primary
secondary

The union of which explains the nature of law and provides key
to science of jurisprudence'. The primary rules are duty imposing
rules ( example in a primitive society) and the secondary rules
are power conferring which provide for the creation or variation of
duties or obligations by removing defects of the primary rules.
Thus supplementation of primary rules with secondary rules, says
Hart, is the step from pre-legal to legal world. The secondary
rules provide all the three remedies, the rules of recognition, the
rules of change and the rules of adjudication for removing the
uncertainty, static character and inefficiency inherent in the
primary rules and convert the regime of primary rules into what

is indisputably a legal system. His legal system a union of

primary and secondary rules, cannot be complete without the
minimum content of Natural Law shared both by law and morals.
His positivism contains within it a minimal version of Natural
Law which Hart says every legal system must have as a natural
necessity.

PRIMARY RULE:According to Hart primary rules are those rules that impose duty
upon an individuals and are binding because it consist practises of
acceptance which people are required to do or to follow or to
abstain from certain actions . Hart ask to imagine a community in
which only primary rule exists without a legislation, without
courts or officials of any kind, by this there will only be confusion
that what is to be followed and what not to be followed.

DEFECTS OF PRIMARY RULES:The first defect of this primary rule is what we can call is
uncertainty, For such a society there is no systematic procedure
for solving the doubts of the people of that concern community.
The second defect is the static character, change can be seen
only by the slow process of growth and decay and lastly the third
defect of primary function is inefficiency which says that the
rules are only maintained by diffusing social pressure and there is
no agency to determine disputes of that particular rule.

SECONDARY RULES:The remedy of these three main defect are the supplementation
or the mixture of primary rules and secondary rules. According to
Hart he describes secondary rule as a step from prelegal world to
legal world. He observes introduction of secondary rule is to add

or to change the judge to determine when the rule have been

broken as step forward as important to society for making the
rules and regulations chain so that people lives in harmony and
peace.
Hart remarks law is a union of primary and secondary rule and in
this manner the law is born.

In short, H. L. A. Hart at best can be described both a positivist

and naturalist who by correlating law and morality conceived
what Austin and Kelsen failed to conceive in legal theory.

HANS KELSEN(1881-1973):KELSENS HANDS IN THE ANALYTICAL SCHOOL OF

LAW:Kelsen works to expel all non-legal, historical and sociological
notions from science of law in order to make it formal and that of
making it common for everyone and everybody has to follow it
and should not be denied by anyone. Kelsens theory was parallel
to the theory of John Austin who did something in 1832 to save
jurisprudence from confusion. Kelsons theory of law in some
respect is similar to that of Austin but still kelsen was unaware
when he originated his theory and hence he rejects many
Austinian concepts.
Similarly kelsen was also influenced by Kant and
made fundamental distinction and difference between man as a
part of the subject and laws of caution.

Kelsens Positivism:Kelsen rebuilt the structure of legal system which are much
similar to the theory of John Austin, in his theory of law legal
system are as distinguished from moral norms and he was also in
complete agreement with Austin as both are jurists and are not
concern with the moral, ideas and many other things.
Austin separated jurisprudence from science of legislation and
positive law. Kelson was also a pure theorist of law rigidly which
excludes politics, sociology from legal science. Like Austin kelsen
also wants to separate the ring of jurisprudence from that natural

sciences and he also points out many other sciences besides law
are normative such as all philosophy, economics, logic and his
grunds norm theory.
For Austin law is a command backed up by threat of
forces while on other hand for kelsen it is the norm that directs
an official to apply force under certain instant circumstances.

LEGAL NORMS:Before saying something about norm the question arises what is
the rule of law? Rules and norms are the kinds of directives which
tells us about the directions for behaviour. The norms as per
kelsen are set of rules set by the law which has to be followed by
all the people of the society. A norm says kelsen is a rule
prescribing a certain behaviour. In kelsens thought norms
belongs to that particular rule that has no ethical moral or natural
law. The structure of legal norm is totally different from the moral
norm.

KELSENS CRITICISM:-

Kelsen did his last contribution towards the legal theory so that it
should not be affected by the political interests. In his theory he
kept law as a tool of political, ideological manipulations by which
law remain pure and free from the bases of political, ideological
and economic doctrine and theories.
As Kelsen theory was not free from criticism and the first
thing that arises is the purity of norms. That is attempt to delete
or exclude all the reference of social facts and social justice.
Moreover kelsens said that grundnorm in the nature of
being a hypothesis is the combination of various social and
political consideration. According to kelsen all the norms are pure
norms excluding basic norm or grundnorm and it is not
understandable how the norms can be pure when basic norm
itself is adulterated.
Kelsen theory of law is quite positivism excluding all
domains of jurisprudence and the ideal of justice are mere
emotions and legal system devoid either a moral or immoral one
and law can be alienated from social and moral values and
pressure.

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.
So I can conclude my topic by giving thanks to all the people
who helped me in completing my project.

MOHAMMAD IRFAN
BBA LLB.
.

BIBLIOGRAPHY
1.) Fundamentals of jurisprudence; Dr. S.N.Dhyani; 3rd Edition;
2013
2.) Jurisprudence and legal theories; V.D. Mahajan; 5th Edition
2015
3.) Lawyersupdate.co.in; 2nd November-2013;13:00 PM
4.) www.grkarelawlibrary.yolasite.com;3rd-November2015;13:20 PM
5.) www.sug.ch@legalserviceindia.com ;3rd November2015;13:25 PM