Analytical Postivism (Indian Perspective) PDF

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ANALYTICAL POSTIVISM – INDIAN PERSPECTIVE

Analytical positivism (given by Austin, Kelson and Hart) which dominated the English Legal system for more than a century was mainly founded on three basis assumption or principles:(i) (ii) (iii)

Sovereign or Grundnorm as the law making authority; Emphasis on law ‘as it is’, or positive law and exclusion of morality; Insistence on sanction which was a coercive force behind enforcement of laws.

In other words, we can say that analytical positivism presupposes that sovereign or the law maker is over and above the law and the law is solely based on coercion or force and it has nothing to do with the concepts of morality, justice or ethics.

1. Ancient Indian Jurisprudence:If we analyse the analytical positivism of the English Legal system to the ancient Indian jurisprudence we can say that it was contradictory to the analytical positivism of English legal system. (i)

(ii)

(iii)

According to Austinian positivism, sovereign being the law maker, is considered superior to law. But in ancient Indian legal system, law is given the highest place by which the subjects as well as the king or ruler were equally bound. Further, analytical positivism provides that law has nothing to do with the morality or ethics. But in ancient Indian jurisprudence law namely, dharma has a prime place and the King or the ruler was to rule according to dharma. The dharma consisted in observance of truth, non-violence and rightful code of moral conduct which hold or sustains the men together in harmony and establishes social solidarity. Thus, it would be seen that the law, morality and religion were coexisting concepts unlike analytical positivism of Austin which completely divested the notions of morality and justice from law. The element of ‘sanction’ found expression in the ancient Indian legal system by way of danda which meant punishment. According to great

ancient law giver Manu, it is the fear of danda which makes people to follow dharma. However, the King had to exercise this power of danda according to dharma and in case he does not follow the path of dharma then he may also be punished.

Kelson’s theory of Grundnorm, fits into the legal philosophy of ancient India in so far as the Indian jurists considered dharma as the Grundnorm as it didn’t derive its validity from the king and the king is also subordinate to the dharma.

2. British Rule:The advent of British rule in India brought about radical changes in the then existing legal system. Sir Henry Maine, the author of Ancient Law, criticised ancient Indian jurisprudence as ‘an idealistic imagination’. Further Macaulay gradually introduced the notions of British juristic concepts through equity, justice, and good conscience and brought about codification of laws. These codified laws were akin to the Austinian concept of positive law having the element of certainty, effective enforcement and sanction. As the British king in Parliament was the supreme sovereign authority to make laws for the governance of India and the King was above the law enacted for India. The Indian legislature had no authority to change the law. The subjects were bound to obey these laws. Thus, all characteristics of positive law, namely, command, duty, sanction, sovereign etc. were present in the legal system introduced by British rulers in India. So it can be said that the analytical positivism found its place in the Indian legal system during the British period. 3. Post Independence Period:After the independence, the Constitution of India was drafted which came into force on 26 th Jan. 1950. It can be termed as Grundnorm as per the Kelson’s theory because all the statutes and legislative enactments derive their validity from the Constitution of India whose validity lies in its whole hearted acceptance by the People of India without any exception. In fact, it is presupposed to be valid.

It must be stated that the positivism in post-independence Indian law differs from Austinain conception of analytical positivism. While positivism in post-independence era seeks to establish harmonious construction between ‘is’ and ‘ought’, that is, it does not ignore the element of justice or morality from the law, but in case of Austinian analytical positivism, there is no place for these elements, i.e., morality and justice. Best examples of taking note of morality and justice in interpreting law is the cases of Keshavananda Bharti v. State of Kerala (1973 SC), Minerva Mills v. Union of India (1980 SC) etc. in which the Supreme court adopted the approach harmonious construction in deciding the cases involving conflict between fundamental rights and directive principles of state policy. However, there are other cases where the Supreme Court adopted the rigid positivistic analytical approach, e.g., in the case of Tilkayat Shri Govindlaji Maharaja v. State of Rajasthan (1963 SC), the court held that the firman of a ruler is law by which subjects were bound legally without any exception. (this view is similar to the Austinian supremacy of sovereign as law maker). Similarly, in the case of Re Kerala Education Bill (1958 SC), the Court declined to look beyond the enacted fundamental rights and didn’t think it necessary to take into consideration the sociological conditions which impelled the legislature to pass such law (Kerala education bill)....