405150700 Jurisprudence Project ON Schools OF Jurisprudence docx PDF

Preview

Summary

hgyujb...

Description

Introduction

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.

Analytical School / Positivist Theory :

The start of 19th century might be taken as the mark of the beginning of the positivist movement. The term ‘positivism’ has many meanings, which were tabulated by Prof. Hart as follows: (i)

Laws are commands;

(ii) The analysis of legal concepts is – (a) worth pursuing; (b) distinct from sociological & historical inquiries; (iii) Decisions can be deduced logically from predetermined rules without recourse to social aims, policy or morality; (iv) Moral judgments can’t be established or defended by rationale, argument, evidence or proof; & (v) The law as it is actually laid down has to be kept separate from the law that ought to be.

Positivism flourishes in stable conditions. The difficulties of maintaining a right separation b/w ‘law what is’ & ‘what ought to be’ come to light in turmoil. JOHN AUSTIN John Austin was a Prof. in London University, 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 & devoted some time to the study of Roman Law. Austin, a disciple of Bentham, is a positivist & concerned with ‘what law is’ & ‘not what law ought to be’. ‘Positus’ means ‘as it is’. For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply & strictly so called’ or ‘law set by political superiors to political inferiors’. He believed that ‘Law’ is only an aggregate of laws & defined ‘law’, “As a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. To him, law is the command of a sovereign requiring his subjects to do or forbear from doing something. There is an implied threat of ‘sanction’ if the command is not obeyed.

LA W ----------------------------------------Law properly so called ------------------------------Law by God or Divine Law

Law by humans / Laws set by men for men --------------------------------

Law by political superiors to political inferiors

This is called Positive Law

Law improperly so called -------------------------------Law by analogy Law by metaphor

Law by superiors Law of fashion All the laws to inferiors, but & public opinion, of nature, i.e., the superiors r not i.e., international law of motion, political superiors law, customs & gravitation, traditions etc. --------------------------

Positive Morality

He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’. The former are general commands addressed to the community at large & enjoined classes of acts & forbearance. They are divided into laws set by God / divine law / law of God & laws set by men to men. Laws set by men to men also fell into 2 categories – the first consisted of laws set by political superiors to political inferiors. This was termed by Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject matter of jurisprudence. Thus, law properly so-called must hv 3 elements– (i) command, (ii) sanction & (iii) sovereign. The secondcategory consisted of laws set by men to men neither as political superiors nor in pursuance of rights conferred upon them by such superiors, e.g., those set by a master to a servant or the rules of a club. They are still laws properly so called because they are commands, but he distinguished them from positive law by giving them the term ‘positive morality’.

Analogous to the laws of the latter class are a number of rules to which the name ‘laws improperly so called’ is given. They are opinions or sentiments of an undeterminate body of men & laws of fashion or honour. He places intl. law under this class. In the same way, there are certain other rules which are called law metaphorically – laws of nature. They are laws improperly so called.

‘Positive law’ (law simply & strictly so called or law set by political superiors to political inferiors) is the only proper subject matter of jurisprudence. Jurisprudence is the general science of positive law.

Laws properly so called are species of commands. But being a command, it flows from a determinate source or emanates from a determinate author. For whenever a command is expressed of intimated, one party signifies a wish that another shall do or forbear & the latter is obnoxious to an evil which the former intends to inflict in case the wish is disregarded. The key to understanding law properly so called lies in duty which is created by the command of a sovereign. Duty & sanction are correlative terms – whenever duty lies, a command has been signified & whenever a command is signified, a duty is imposed.

In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which are inextricably linked & can’t be separated. According to him, there are 3 kinds of laws, which, though not commands, are still within the province of jurisprudence:

(i) Declaratory of Explanatory Laws : Austin does not regard them as commands because they are passed only to explain laws already in force, e.g., General Clauses Act. (ii) Laws to Repeal Laws : These too r not commands but are rather the revocation of a command. They release from duties imposed by existing laws & are named permissive laws. (iii) Laws of Imperfect Obligation : These laws have no sanction attached to them. Thus, there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s, etc.

Criticisms of Austin’s Theory :

(i) Customs ignored : For Austin, law is the command of sovereign. In the early times, not the command of any superior, but customs regulated the conduct of the people. Even after coming of State into existence, customs continued to regulate the conduct. Therefore, customs should also be included in the study of jurisprudence, but he ignored them. Customs have been in existence since old times. Customs hv also bn an important source of law. As per Austin, customs can only be a law if the sovereign accepts them as law, while customs provide the basis on which the law can be based. Thus, even if the sovereign does not recognise them as law, customs have always bn an important source of law & can’t be ignored.

(ii) Judge-made law : There is no place for judge-made law. In the course of their duty (while applying precedents & interpreting the law), judges make law. Though an Austian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the commands of the sovereign. However, in modern times, judges perform a creative function & Austin’s definition of law does not include it.

(iii) Command theory untenable : Command presupposes a commander. No indeterminate party can command, expressly or tacitly or can receive obedience or submission. The question is whether he can be discovered, who might be regarded as having commanded the whole corpus of law. In democratic system, it is not possible that one person commands.

(iv) Sanction is not the only means to induce obedience : As per Austin, it is the sanction alone which induces the man to obey law, while it is open to criticism from many points of view as there are many other considerations such as reasoning, logic, love, etc. due to which people obey.

(v) International Law : Austin put Intl. Law under positive morality a/w the law of honour & law of fashion. The so-called law of nations consists of opinions or sentiments. It, therefore, is no law properly so called. The main ingredient of law lacking in Intl. Law is sanction, but this alone will not deprive from being called law. Now-a-days, Intl. Law is playing an important role &, thus, it can’t be totally negated. Hence, nobody will accept that Intl. Law is not law. Therefore, according to Austin, a very imp. branch of law shall be excluded from the study of jurisprudence.

(vi) Relation of law & morals overlooked : To Austin, law isn’t concerned with morals but this isn’t correct proposition. Law is not an arbitrary command, but it is a growth of an organic nature. Moreover, law has not grown as a result of blind forces, but it has been developed consciously & has been directed towards a definite ends. It isn’t completely devoid of ethical & moral elements. Any law, which is devoid of ethics or morality, can’t withstand the test of time. People don’t accept it whole-heartedly because of it being unethical. Hence, morals hv always bn an integral part of law.

(vii) Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure Code, etc. He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity Act, etc.

Contribution of Bentham to analytical positivism:

JEREMYBENTHAM ( 1748 – 1832 ) laid down the foundation of positivism in the modern sense of term. He was a ferment champion of codified law & of reforming English law, which was, according to him, in utter chaos. He distinguished b/w ‘expositional jurisprudence (what the law is)’ & ‘censorial jurisprudence (what law ought to be) or the art of legislation’. The main function of the former was ‘to evaluate law’, while that of the later ‘to analyse law’. According to Jeremy Bentham, ‘law is defined 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 a class of persons, who in the case in question are subject to his power’. Therefore, Bentham clearly states that law, which is the will of the sovereign, regulates the conduct of the people to which it applies.

Therefore, the law is what is laid down by the sovereign. The people who are subject to the law have to regulate their conduct in accordance with this will of the sovereign. Moreover, Bentham says that the law does not have to be in consonance with the principles of ethics. Therefore, law is whatever is laid down by the sovereign. According to the Bentham, a sovereign is the highest superior body which does not owe any obedience to any other body. It is the sovereign which claims habitual obedience from the people living in a politically organized group.12Therefore, the sovereign does not owe any allegiance to any other body or group. It is the will of this sovereign body which is known as law. Bentham, however, states that the power of the sovereign is not absolute as is the view of John Austin. Bentham is of the view that the power of the sovereign can be limited as well as divided. Therefore, he is of the opinion that a sovereign can, by his own will, limit his own powers by entering into agreements with certain external agencies which would put restriction on the power of the sovereign. Jeremy Bentham’s concept of sovereignty is not absolute in nature and can be restricted to a certain extent. Another important feature of law according to Bentham is that it should be backed by sanctions.

Bentham gave the ‘Principle of Utility’, which says, “Only those laws are important, which give maximum happiness to the maximum number of people”. Those laws, which are not giving maximum pleasure & giving maximum pain to the people ought to be removed. Pleasure & pain are the basic ingredients of this principle. He also gave “Hedonistic Calculus, which is the imaginary principle to judge pleasure & pain of any law”.

Principle of Utility Jeremy Bentham also gave his famous theory of utility. According to Bentham, any person is governed by two masters, that is, pain and pleasure. Every man wants to increase the pleasure and diminish the pain. Therefore, any law should be made by keeping in mind this theory of utility. Every law should be promulgated by the sovereign in such a way that it diminishes the pain and maximises the pleasure of the people who would be governed by that particular law. Therefore, every law should be measured by the yardstick of public utility, that is, how much pain is it causing to the people and how much pleasure is the person getting from the law. Any law should aim at maximising pleasure and minimising the pain of the persons whom it governs. Along with the Principle of Utility, Jeremy Bentham proposed the codification of all the laws and stated that the uncodified body of rules that was part of the English Law was not worthy of being called as law. Therefore, Jeremy Bentham played a crucial role in the development of the theory of Legal Positivism. Comparison of Bentham & Austin :

(i) Bentham provided a deeper & more adaptable theory. His concept of sovereignty was flexible as it avoided indivisibility & illimitability. He was, thus, able to accommodate the division of authority b/w organs as in a federation or division in certain areas as well as restrictions of authority.

(ii) His concept of law was broader than Austin’s. He avoided the absurdity of ‘law properly so called’.

(iii) His sanction was both wider & less important than Austin’s sanction. Laws are still laws even though supported by moral or religious sanctions or they may even be accompanied by rewards. He, thus, had no need to resort to a sanction by nullity.

Conclusion

Legal Positivism, as we have already seen, is one of the most influential schools in the jurisprudence of law and relies on the law as a fact. The jurists of this school only analyse the law as it is and do not consider how it should have been. According to the views of great jurists such as John Austin and Jeremy Bentham, the moral principles do not

determine the law of the land. However, there are certain positivists who do believe in the existence of the principles of ethics and morality and moreover, they are of the opinion that these moral principles are responsible, to some extent, in shaping the laws. Therefore, it can be clearly seen that although the overall idea of the jurists of this school is similar, but certain differences in their thinking does exist. The common notion of all the jurists belonging to the Legal Positivist School is that law is what is laid down by the superior and backed by sanctions. Moreover, they are of the common opinion that the moral principles are not to be taken into account while judging the validity of laws. All laws are valid which flow from the determinate superior and is backed by sanctions. However, there are certain shortcomings of the Legal Positivist School such as it fails to elucidate upon any kind of legal system and sees sanctions as the only basis of law. Moreover, the concept of absolute sovereignty given by John Austin is challenged by International Law as well as fundamental rights that are available with the individuals. Although there are certain limitations, Legal Positivism is regarded as the most influential school of thought in jurisprudence....