ANALYTICAL SCHOOL

AUGUST COMTE-
The father of modern scientific positivism (1798-1857)

JEREMY BENTHAM-
The father of English analytical jurisprudence
(1748-1832)

JOHN AUSTIN-
Founder of analytical jurisprudence (1790-1859)
 ANALYTICAL JURISPRUDENCE- MEANING

• Salmond termed it as systematic

jurisprudence
• CK Allen – imperative jurisprudence
• Law as a body of actual interrelated
principles and not merely hapazard
selection of rules inextricably interwoven.
Aims at reconstructing a scientifically valid system
by analysing legal concepts on the basis of
observation and comparison by reducing law into
a logical fiction.
 Books

• Bentham- LIMITS OF JURISPRUDENCE

DEFINED
(Written in 1782 but was published in 1945)

• Austin – PROVINCE OF
JURISPRUDENCE DETERMINED (1832)
 BENTHAM

• He defined law as the command of

sovereign –idea borrowed from Hobbes.
• He gave two concepts-

1. Law as the command of sovereign

2. Law is to promote individual pleasure and
decrease pain (Theory of Utility)
 Bentham’s philosophy created two schools

• Pure Analysts- interested in the analysis of

positive law.

• Theological writers- Interested in the ends

and purposes of law.
 Bentham’s contribution in English law

1. Principles of reformation of laws

determined
2. Methods of introducing reforms like
legislation suggested.
 Imperative concept
Every law may be considered in the light of eight different
aspects:

1. Source (Law as will of sovereign)

2. Subjects (persons or things)
3. Objects (act, situation or forbearance)
4. Extent
5. Aspect (directive or sanctional )
6. Force
7. Remedial state
8. Expression
 Bentham’s Utilitarianism
OR
Doctrine of Hedonism

• Concept of laissez faire

• Concept of pleasure and pain
• Happiness of community by attaining four
major goals:
1. subsistence
2. Abundance
3. Equality
4. Security for the citizens
 CRITICISM
1. Difficulty in balancing individual interest
and interest of society
2. Difficult blend of materialism and idealism
 John Austin(1790-1859)
Law is an aggregate of rules set by man
as politically superior to men as politically
inferior.
Attributes of law are:
1. Command
2. Sanction
3. Duty
4. sovereignty
 Austin’s concept of Law
He divides law into two parts:
1. Laws set by God for men
2. Human Law

Law though not command even than included in

law are:
3. Declaratory Law
4. Laws of repeal
5. Laws of imperfect obligation
 Criticism
1. Customs overlooked
2. Permissive character of law ignored
3. No place for judge made law
4. Treats International law as mere morality
5. Command over emphasised
6. Law and morality relationship ignored
7. Sanction alone is not the means to induce
obedience
8. Minimal content of natural law ignored.
 Contribution of Austin
Prof Olivercona – Pioneer of modern
positivism
Sir Henry Maine – No conception of law
and society ever removed such a mass of
undoubted delusions.
Simplicity, consistency and clarity of
exposition
• Improved upon by Holland, Salmond and
Gray
• Modifications in Austinian theory lead
towards evolution of Vienna school
 Prof. Buckland

Austin’s theory of analysis of legal concepts

meant Jurisprudence ‘for the students in the
days of my youth. Infact it meant Austin. He was
a religion, today he seems to be regarded as
disease.’
 HLA HART’S CONCEPT OF
LAW
• The Concept of Law" emerged from a set of lectures Hart delivered in 1952. The lectures
were preceded by Hart's Holmes lecture, Positivism and the Separation of Law and
Morals at Harvard Law School. The book developed a sophisticated view of legal positivism.
• Among the ideas developed in the book are:
• A critique of John Austin's theory that law is the command of the sovereign backed by the
threat of punishment.
• A distinction between primary and secondary legal rules, where a primary rule governs
conduct and a secondary rule allows the creation, alteration, or extinction of primary rules.
• A distinction between the internal and external points of view of law and rules, close to (and
influenced by) Max Weber's distinction between the sociological and the legal perspectives of
law.
• The idea of the rule of recognition, a social rule that differentiated between those norms that
have the authority of law and those that do not. Hart viewed the rule of recognition as an
evolution from Hans Kelsen's "Grundnorm", or "basic norm".
• A reply to Ronald Dworkin, who criticized legal positivism in general and especially Hart's
account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) andLaw's
Empire (1986).
Born Herbert Lionel Adolphus Hart
18 July 1907
Harrogate, England
Died 19 December 1992
Oxford, England

Era 20th-century philosophy

Region Western Philosophers
School Analytic
Main interests Jurisprudence, 
legal positivism, 
linguistic philosophy, 
political philosophy, 
liberalism,utilitarianism
Influences  [hide]
•Jeremy Bentham, 
John Austin,J.L. Austin, 
Ludwig Wittgenstein, 
Hans Kelsen,Max Weber
Influenced  [hide]
•Ronald Dworkin, John
Rawls,Joseph Raz, John
Finnis, Neil MacCormick, 
Brian Barry, John Gardner
 PRIMARY AND SECONDARY
RULES
• Primary rules – It lays down standards of behaviour and
are rules of obligation .i.e the rules which impose duty.

• Secondary rules: which specify the rules in which primary

rules may be ascertained, amended, rescinded and
enforced.
- Rules of recognition
- Rules of change
- Rules of adjudication

Law is the union of primary and secondary rules

 GRUNDNORM AS EXPLAINED BY
KELSON
• It is the starting point of a legal system.
• Dynamic process but Austin’s theory is
static.
• In Britain grundnorm is “Crown in
parliament”
• In USA it is the “constitution”.
• The task of legal theory is only to clarify
the relation between “grundnorm” and all
other inferior norms and not to enter into
goodness or badness of any law.
 GRUNDNORM
• Norm is a kind of directive through which certain
act is permitted or authorised or commanded.
• By norm we mean something ought to be done,
especially the human behaviour that ought to be
there.
• Grundnorm delegates authority to inferior norms
which in this way derive validity from the norms
superior to themselves.
• Its validity is pre supposed and cannot be
challenged.
 Friedrich Carl von Savigny

Born 21 February 1779

Frankfurt am Main, 
Holy Roman Empire

Died 25 October 1861 (aged 82)

Berlin, Kingdom of Prussia

School German Historical School

Main interests Legal studies, legal philosophy

Influences  [hide]
•Gustav Hugo

Influenced  [hide]
•August von Bethmann-Hollweg
 HISTORICAL SCHOOL AND
SAVIGNY
• Savigny- VOLKSGEIST
• “VOICE OF THE PEOPLE” or SPIRIT OF THE PEOPLE.

• Law cannot be made or altered. It is found.

• Law is not the product of command of the sovereign but
instinctive sense of right possessed by every race or
community.
• Law cannot be universal it is always particular.
 SAVIGNY’S THEORY

• Savigny favoured customary law as compared to

legislative law.
• Law cannot be different than the customs and traditions.

• Jurist is more important than legislator. He is the

representative of the national spirit .i.e. The Volksgeist.

• It is a dynamic and social process and gradually invents

in the society.
 CRITICISM OF THE SAVIGNY’S
THEORY
• Excessive emphasis upon the unconscious forces
• Ignored the importance of legislation.
• Volksgeist itself an abstract idea and vague.
• No importance was given to law reforms.
• Nazism, fascism and Islamic movements are the
result of misconception of better culture and division
of world on racial discrimination.
• Postponed the emergence of sociological school it
postponed the study of scientific appraisal of society
in terms of its ends and goals.
 CONTRIBUTION MADE BY
•
SAVIGNY
Interpreted jurisprudence and law in terms of
voice of people.
• Influenced the authors of anthropological of
Henry Maine, sociological approach of Pound,
the realistic approach of Swedish Realists.
• Revolutionary and agent of cultural and
historical renaissance.
• BUT racial discrimination is also the result of this
theory.
 Henry James Sumner Maine

The young Maine

Born
15 August 1822
Kelso, Scotland, UK

Died
3 February 1888 (aged 65)
Cannes, France

Nationality British
Fields History, Law
Institutions
University of Oxford
University of Cambridge
University of Calcutta

Alma mater Pembroke College, Cambridge

Signature
 SIR HENRY MAINE &
ANTHROPOLOGICAL SCHOOL
• Sir Henry Maine, in full Sir Henry James
Sumner Maine   (born August 15, 1822, 
Kelso, Roxburgh,Scotland—died February
3, 1888, Cannes, France), British jurist
and legal historian who pioneered the
study of comparative law, notably primitive
 law and anthropological jurisprudence.
• While professor of civil law at the University
of Cambridge (1847–54), Maine also began
lecturing onRoman law at the Inns of Court,
London.
• These lectures became the basis of his 
Ancient Law: Its Connection with the Early Hi
story of Society, and Its Relation to Modern I
deas
 (1861), which influenced both political theory
and anthropology, the latter primarily
because of Maine’s controversial views on
primitive law.
 CONNECTION WITH INDIA
• A member of the council of the governor-general of 
India (1863–69), Maine was largely responsible for
the codification of Indian law. In 1869 he became the
first professor of comparative jurisprudence at the 
University of Oxford and, in 1887, a professor of
international law at Cambridge. He was knighted in
1871. His other books include lectures on the Early
History of Institutions (1875), a sequel to his Ancient
Law. Maine was the recipient of a remarkable number
of honours, medals, and distinctions. He was also
known for his extensive writing in popular periodicals.
 LEGAL ANTHROPOLOGY
• Legal anthropology, also known
as anthropology of laws.
• It is a sub-discipline of anthropology which
specializes in "the cross-cultural study of social
ordering“. 
• This broad definition of the field captures the wide
array of research done by legal anthropologists
today. Earlier legal anthropological research often
focused more narrowly on conflict management,
crime, sanctions, or formal regulation.
ENGLISH HISTORICAL SCHOOL & SIR
HENRY MAINE
• DEVELOPMENT OF SOCIETY IN EARLY PERIOD:
1. Patriarchal system in Indo-European stock, the Romans
and the Hindus.
2. Eldest Male-Eldest Ascendent -> Absolutely Supreme
3. Family Groups-> Union of families
4. Aggregation of families-> Gen or House-> Tribes->
Commonwealth.
5. Commonwealth as a collection of Tribes united by common
descent from the progenitor of an original family.
6. Common obedience to living ascendent- Patria Potestas
 DEVELOPMENT OF LAW
• Themistes (Judgments)
Homeric word- Themis(Godddess of
Justice). Award pronounced by themis
ought to be executed by King (custodian
under divine inspiration).
• Custom
recurring application of judgments lead to
uniform practice and habit resulted in the
growth of customs in society. Power to priest
• Era of codes
eg Twelve Tables of Rome and Manu’s
code
Lawyers, Jurists and learned men broke
the priestly monopoly.
 STATIC AND PROGRESSIVE SOCIETIES

• Era of codified laws restricted the

spontaneous growth of law.
• An era begin after codes- distinction
between Stationery and Progressive
societies.
• Stationery societies.
The society which remain static eg Eastern
society which do not move forward beyond
the era of the codes
 Progressive societies.

• Proceed to develop with the help of three

new instrumentalities:-
1. Legal fiction
2. Equity
3. Legislation
 LEGAL FICTION
• Instrumentality of Change when required
• Instrumentality of reform to overcome the
rigidity of law.
• In broader sense “any assumption” which
conceals or affects to conceal the fact that
rule of law has undergone a change, its letter
remained unchanged , its operation being
modified.
• Eg “the King is dead but long live the King”
 EQUITY
• Advanced stage of fiction to give clearer
view to the things.
• In English and Roman legal system equity
came to remove the injustice, delay and
other inconveniences.
• Rigid legal system in England forced the
people to move to the King(The Fountain
of Justice)
• The king in turn authorised the Chancellor to
provide alternate remedy to the needy where
the common law judges where failing.
• English Law- Chancellor
• Roman Law- Preator Peregrinus
• Advised judges in commercial matters of
foreign merchants.
• Preator Urbanus helped adopting the law for
Tribes
• Enlish Law- Equity Justice
• Roman Law- Jus Civile Jus Gentium
 LEGISLATION
• Quick remedy
• Most effective remedy
• Based on its fundamental laws.
 MOVEMENT FROM STATUS TO
CONTRACT
• Earlier status of females and children
Male(husband and father) as a guardian
• But present position is different
• Thus movement is there.
 REASONS FOR CHANGE
1. Pater Familia (dependency on family)
became obsolete
• Growth of individual rights, personality,
freedom and obligations.
• Emergence of contractual relations between
parties.
2. Benthamite doctrine of free contract for
regulating relations between
individuals( wife, Slaves)
 Instances
• The theory of Social Contract as given by
Hobbes-Locke-Rousseau.
• Open system of voting
• These transformations and changes gave
a death blow to ancient and medieval
notions of society and social institutions.
3. The growth of Industrial and commercial
culture- Law of Contract.
• American Declaration of Independence
Laissez faire
• Theory of free contract/consent/abolition of
slavery in 1843.