Analytical School of law Module –I Analytical School of law

Bentham “Law is 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.”

Bentham Bentham supported the economic principle of ‘laissez faire’ which meant minimum interference of the State in the economic activities of individuals. Bentham propounded the principle of utilitarianism. According to this theory, the right aim of legislation is the carrying out of the principle 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 According to Friedmann, it suffers from two weaknesses: At first, in an effort to blend materialism with idealism; Bentham underestimates the need for individual discretion and flexibility in the application of law overestimating the power of legislator. Secondly , this theory fails to balance individual interests with the interests of the community.

John Austin “Father of English Jurisprudence”. “Law is a command of sovereign backed by a sanction.” He distinguishes law from morality. He divides law into two parts : Divine law – Law set by God for men Human Law – Laws made by men for men.

John Austin Austin accepts 3 kinds of laws : Declaratory or Explanatory Laws – They are not commands but are already in existence and are passed only to explain the law which is already in force. Law of Repeal – Austin does not treat such laws as commands because they are in fact the revocation of a command. Law of Imperfect Obligation – They are not treated as command because there is no sanction attached to them.

Criticism Customary Overlooked. Permissive character of law ignored. No place for judge made law. Treats International law as morality. Command over emphasized. Interrelationship between law and morality completely ignored. Sanction alone is not the means to induce obedience. Indivisibility of sovereignty criticised. Austin’s theory was improved by Holland, Salmond and Gray.

HLA Hart Law is the system of two types of rules the union of which provides key to the science of jurisprudence. He called these rules as primary and Secondary rules. Hart rejected Austin’s view and said that primary rules are duly imposing and secondary rules confer power and the union of the two is the essence of law.

HLA Hart Hart does not denounce the role of natural law in his positivism. Unlike Austin, Hart contends that it is necessary for law and morality to have certain element of natural law as logical necessity. Thus, morality is implicit in Hart’s positive law.

Criticism Dworkin denounces Hart’s view of law as a union of primary and secondary rules and exclusion of morality from law. He observes “a principle is standard that is to be observed because it is a requirement of justice and fairness or some other dimension of morality.”

Kelson – Pure theory of Law. Law is a normative science distinguished from natural sciences which are based on cause and effect as law of gravitation. Norm is a rule forbidding a certain behaviour. Kelson’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm which he termed as ‘grundnorm’.