CHHATRAPATI SHAHUJI MAHARAJ UNIVERSITY, KANPUR

ATAL BIHARI VAJPAYEE SCHOOL OF LEGAL STUDIES

ASSIGNMENT ON

Analytical School of Law

Jurisprudence - I

SUBMITTED IN PARTIAL FULFILLMENT OF

THE REQUIREMENT FOR AWARD OF DEGREE OF
MASTER OF LAWS
SESSION 2022-2024

Supervisor Submitted By
Dr. PRAMOD KUMAR PRASHANT GAUTAM
Assistant Professor LL.M. Ist SEMESTER
ATAL BIHARI VAJPAYEE ROLL NO.
SCHOOL OF LEGAL STUDIES
C.S.J.M.U. KANPUR
ACKNOWLEDGEMENT

I feel proud to acknowledge the able guidance of our esteemed (supervisor to be acknowledged)
I acknowledge with pleasure unparallel infrastructural support that I have received from ATAL
BIHARI VAJPAYEE SCHOOL OF LEGAL STUDIES, C.S.J.M.U. University, KANPUR. In
fact this work is the outcome of outstanding support that I have received from the faculty
members of the college, in particular…….. I find this opportunity to thank the library staff of
the ABV Law College CSJMU. This research work bears testimony to the active
encouragement and guidance of a host of friends and well-wishers. In particular mention must
be made of (optional) It would never have been possible to complete this study without an
untiring support from my family (optional) I am greatly indebted to the various writers, jurists
and all others from whose writings and work I have taken help to complete this dissertation.

Date __________ ( Prashant Kumar Gautam )

Place – Kanpur
DECLARATION

I, Prashant Kumar Gautam, a student of LL.M. of ATAL BIHARI VAJPAYEE SCHOOL OF

LEGAL STUDIES, C.S.J.M.U. University, KANPUR, do hereby declare that this assignment
report is an original work of mine and is result of my own intellectual efforts. I have quoted
titles of all original sources i.e. original documents and name of the authors whose work has
helped me in writing this research paper have been placed at appropriate places. I have not
infringed copy rights of any other author.

Date __________ ( Prashant Kumar Gautam )

Place – Kanpur
Table of Contents
Introduction ................................................................................................................................ 2

Schools of Jurisprudence ........................................................................................................... 3

Definitions.................................................................................................................................. 4

Analytical School ....................................................................................................................... 6

Bentham (1742-1832) ............................................................................................................ 6

CRITICISM AGAINST BENTHAM ................................................................................ 7

John Austin (1790-1859) ....................................................................................................... 8

AUSTIN’S CLASSIFICATION OF LAW............................................................................ 9

SALIENT POINTS OF AUSTIN’S THEORY ................................................................... 10

Conclusion ............................................................................................................................... 11

Bibliography ............................................................................................................................ 12

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Introduction
Concepts under law are analysed through jurisprudence. It also seeks to work out the basic
concepts of laws. Not only does it analyse the laws that are already documented, but it also
evaluates new rules and builds the basis for them. It is the product of the thought of jurists and
philosophers. The right to view, evaluate and conclude about the legal system is open to them.
In terms of how these questions can be best answered, general jurisprudence can be divided
into categories i.e. by the form of inquiry scholars attempt to address and by the hypothesis of
jurisprudence or schools of thought, both. Philosophical, analytical, historical, comparative,
sociological are the numerous schools of jurisprudence that do not reflect different directions
of response to a common aim, but rather different objectives. This paper is an aim towards
studying these schools of jurisprudence in depth and to understand the ideologies given by
different jurists explaining their own reasoning for the same. (Schools of Jurisprudence: A
Critical Study, 2019)

The study of jurisprudence started with the Romans. The term Jurisprudence is derived from
Latin word 'Jurisprudentia' which means either "Knowledge of Law" or "Skill of law". The
word "juris" means law and prudentia mean knowledge, science or skill. Thus, Jurisprudence
signifies knowledge or science of law and its application. In this sense, Jurisprudence covers
the whole body of general legal principles in the world upon which the actual rules of law are
based. Therefore, it does not mean study of statutes or branches of law like consumer, crime,
tort, property, etc., but the basic principles behind the development of these statutes and
branches of law.

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Schools of Jurisprudence
Jurisprudence is the hypothesis and investigation of law. It considers the cause and idea of law.
Law has an unpredictable idea. Its comprehension differs from individuals to individuals.
Everybody has an alternate perception of the law. The article discusses the five schools of
Jurisprudence viz.

1. Philosophical School
2. Historical School
3. Realist School
4. Sociological School
5. Analytical School

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Definitions
Jurisprudence is a very wide topic and an easy and accurate definition which covers all the
aspects is very difficult. But many Jurists have tried to define the term ‘Jurisprudence’. Some
of definitions are as follows:

The term “Jurisprudence” is derived from a Latin word “jurisprudentia”, which means
knowledge of the law, where Latin term “juris” means ‘legal’ and “prudentia” signifies ‘skill’
or ‘knowledge’. The definitions of “jurisprudence” given by different jurists differ due to the
personal notions regarding the limitations of the subject as well as due to personal ideology
and nature of society in which the jurist resided. The basic reason for such differences in
theories is due to variable growth and the development of law in different countries. (Mahajan)

Austin defined jurisprudence as “philosophy of positive law,” which means that jurisprudence
is more of a scientific study rather than moral philosophy. That is, it is study of existing laws
rather than natural or moral law. He categorizes jurisprudence as general (philosophy of
positive law) and Particular (science of system of a positive law) Jurisprudence. His theory was
criticized by jurists like Salmond and Holland over the inappropriate categorization. (Bix,
2001)

Holland was an English Jurist, who defined jurisprudence as “the formal science of positive
law”, he believed that jurisprudence should be restricted to the basic principle behind the
natural system of law. His definition was criticized by jurists like Dr. Jenks and Gray over the
existing ambiguity between ‘formal science’ and ‘material science’. (Mahajan)

The main proponents of analytical school are Jeremy Bentham, John Austin HLA hart and
Hans Kelsen. Jeremy Bentham is considered as the founder of analytical school the name of
his book is limits of jurisprudence defined and he defined law as an assemblage of science.

The classification of jurisprudence as Expository jurisprudence and that is “what the law is”
and Censorial jurisprudence that is “what the law ought to be” was done by Jeremy Bentham.
Bentham's legal philosophy is called utilitarian individualism.

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According to him the ultimate end of law is the greatest happiness of greatest number and he
defined utility as property or tendency of a thing to prevent some evil or property or some good
the consequences of good and evil are respectively pleasure and pain. So with all these words
and signs he defined law as an assemblage of science.

John Austin who's considered as the father of analytical school is also called father of English
jurisprudence in his book “Province of Jurisprudence Determined” and he defined law as rules
laid down for the “guidance of an intelligent being by an intelligent being” having power over
him.

According to him “law is a command by sovereign backed by sanctions” so the three essential
elements according to John Austin are command, sovereign, and sanction and he divided law
as law properly so called and Law improperly so-called.

HLA Hart in his book “The concept of Law” defined “law consists of rules which are of broad
application and non-optional character” and according to him the key to the science of
jurisprudence was union of primary and secondary rules.

Hans Kelsen who's known for his pure theory of law. Pure theory of law excludes everything
which is strictly not law so it is a theory which is free from social, historical and political
influences. He defined law as informative science and gave the concept of sein and sollen
norms other than pure theory of law Hans Kelsen is also known for “GRUNDNORM”
according to him grundnorm is the starting point in legal system.

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Analytical School
The analytical school is known by different names. It is called the Positive School because the
exponents of this school are concerned neither with the past nor with the future of law but with
law as it exists, i.e., with law "as it is" (Positum). The school was dominant in England and is
popularly known as the English School. Its founder was John Austin and hence it is also called
the Austinian School. (Mahajan)

The purpose of analytical jurisprudence is to analyse, without reference either to their historical
origin or development or their ethical significance or validity, the first principles of law.

Bentham (1742-1832)

Bentham was the son of a wealthy London Attorney. He was a talented person having the
capacity and acumen of a jurist and a logician. Dicey in his book, “law and Public opinion in
19th century”, has sketched Bentham’s ideas about individualism, law and legal reforms which
have affected the growth of English law in the positive direction. The contribution of Bentham,
to the English law reforms can be summarized thus-

“He determined in the first place, the principles on which reforms should be based.

Secondly, he determined the method, i.e., the mode of legislation by which reforms should be
carried out in England.”

He defined law as:

“A law may be 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 class of persons who in the case in question are or are supposed to be subject
to his power”. (Mahajan). Thus, Bentham's concept of law is an imperative one.

Bentham supported the economic principle of 'laissez faire' which meant interference of the
State in the economic activities of individuals.

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Bentham propounded the principle of utilitarianism. According to this theory, the right aim of
legislation is the carrying out of the principal utility. Bentham defined utility as the property or
tendency of a thing to prevent some evil or procure some good. According to him, the
consequences of good and evil are respectively 'pleasure and pain'.

CRITICISM AGAINST BENTHAM

Bentham’s theory has its weaknesses. “The main weakness of Bentham’s work” says
Friedmann, “derive from two shortcomings- one is Bentham’s abstract and doctrinaire
rationalism which prevents him from seeing man in all his complexity, in his blend of
materialism and idealism, of nobility and baseness, of egoism and altruism. Bentham
underestimates the need for individual discretion and flexibility in the application of law over
estimating the power of the legislator. Secondly, his theory fails to balance individual interests
with the interests of the community.

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John Austin (1790-1859)

John Austin served as an army officer for five years until 1812, when he was called to the bar
by the Inner temple in 1818. But ill health and inability to work efficiently and promptly
prevented him from succeeding at the bar. He was elevated to the chair of jurisprudence in the
University of London in 1826. Thereafter he went to Germany to study Roman law in
Heidelberg and Born universities. His lectures delivered in London University were published
under the title of “The province of Jurisprudence determined”. In his lectures he deals with the
nature of law and its proper bonds.

Austin is called the father of English jurisprudence and the founder of the Analytical School.
The method which Austin applied is called analytical method and he confined his field of study
only to the positive law. Therefore, the school founded by him is called by various names
Analytical; positivism, analytical positivism. Some have objected to all the three terms. the
word ‘positivism’ was started by Augste Comte to indicate a particular method of study.

Austin's most important contribution to legal theory was his substitution of the command of
the sovereign for any ideal of justice in the definition of law. He defined law as "a rule laid
down for the guidance of an intelligent being by an intelligent being having power over him".
(Mahajan)

The substitution of the command of the sovereign by Austin led him to write at a time when
England was actually in dire need of vast legislative reforms. There was no school of
jurisprudence which could share in the handiwork, whereas full confidence was reposed in the
power and wisdom of parliament as a legislative assembly. In these circumstances, it was not
strange that he should have adopted sovereignty as his principle to build on this a science of
jurisprudence sufficient to subserve the requirements of the people.

According to Austin, a law is a command of the sovereign backed by a sanction; Duty and
sanction are correlative terms, the fear or sanction supplying the motive for obedience. This
means that Law is whatever the Law-Maker (the one with the authority to make laws) says and
it supersedes judgements by judges/precedents etc.

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AUSTIN’S CLASSIFICATION OF LAW

Austin’s classification of law falls under two heads, namely, laws set by God, and Laws set by
men to men (human laws).

LAWS SET BY GOD: This category of laws is of no real juristic significance in Austin’s
system, compared, for example, with the scholastic teachings which establish an organic
relation between divine and human law.

HUMAN LAWS: Human laws may be divided into two classes

I. Positive law (laws properly so called): - These are the laws set by political superior as such
or by men not acting as political superior but acting in pursuance of legal rights conferred by
political superiors. Only these laws are the proper subject-matter of jurisprudence.

II. Other laws: These laws which are not set by political superior or by men in pursuance of a
legal right. In this category are multiple types of rules such as, rules of clubs, law of fashion,
laws of natural science, and the rules of international law. Austin names all these ‘positive
morality’.

The laws properly so-called, with laws improperly so called, may be aptly divided into the
following four kinds-

The divine laws, or the laws of God; that is to say, the laws which are set by God to his human
creatures. Positive laws, or the laws which are simply and strictly so called, and which from
the appropriate matter of general and particular jurisprudence. Positive morality, rules of
positive morality or positive moral rules. Laws metaphorical or figurative, or merely
metaphorical or figurative.

The science of jurisprudence, according to Austin, is concerned with positive laws or with laws
as considered without regard to their goodness or badness. All positive law is deduced from a
clearly determinable law-giver as sovereign. In other words, every positive law, or every law
simply and strictly so-called, is set by a sovereign or a sovereign body of persons to a member

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or members of the independent political society wherein that person or body of persons is
sovereign or supreme.

SALIENT POINTS OF AUSTIN’S THEORY

Austin’s theory prominently brings out the following four points;

1. That every law is a species of command;

2. That all positive laws are command of the sovereign either directly or indirectly;
3. That every law prescribes a course of conduct; and
4. That every law has for its sanction the physical force of the state.

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Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation,
application, and requirement of laws. Jurisprudence is the investigation of theories and methods
of insight in regards to the law. It has viable and instructive esteem.

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Bibliography
Bix, Brian. 2001. John Austin. The Stanford Encyclopedia of Philosophy . [Online] Feb 24,
2001. https://plato.stanford.edu/entries/austin-john/#Bib..

Bodenheimer, Edgar. 1981. Jurisprudence, The philosophy and method of Law. USA :
President and Fellows of Harvard College, 1981. 0-674-49001-0.

Mahajan, V.D. Jurisprudence and Legal Theory 1.

Schools of Jurisprudence: A Critical Study. S, Shankar Prasad. 2019. 3, s.l. : Journal of

Emerging Technologies and Innovative Research, 2019, Vol. 6. 2349-5162.

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