Introduction
The analytical school of law is considered to be the most important aspect of law regarding its relation to the state. Herein, the law is treated as if it has emerged from the sovereign i.e. the state. This is the reason why the analytical school of jurisprudence is also considered to be a positive school of jurisprudence. Analytical jurisprudence is chiefly associated with Jeremy Bentham and John Austin. It is the general approach with many legal principles and rules with analysis of certain concepts; furthermore, it is also associated with the legal systems such as obligation, person, duty, rights, etc. thus, it can be concluded to be mainly associated with positivism. However, this theory has also been criticized by many jurists for laying different opinions about the positive school of law which will be discussed further.
Analytical positivism
The term positivism can be clearly understood by the following five points-
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- Law commands.
- Legal concepts are considered to be distinct from sociological and historical inquiries.
- The law needs to be kept separate from the law that it ought to be.
- The judgments that are given orally can neither be defended nor accepted by rational arguments.
- Decisions can be reduced by determining the rules from the prior.
John Austin’s legal positivism
John Austin is a prominent British philosopher who is well known for his work related to the development of the theory of legal positivism. He has made great efforts to deduce the meaning to the terms ‘moral rules’ from what is known as ‘positive law’.
Austin has defined positive law as consisting of commands of a politics backed by sanctions on those who refuse to obey the commands.
Austin has primarily constituted three key constituents for this concept which are as follows:
- Political sovereignty
- Command
- Sanctions
Austin believed that a society that does not have political sovereignty does not have a law in a strict sense of positive law. Political sovereignty was considered to be a necessary feature in the political society which regards and claims itself to be independent. Thus, Austin was of the notion that where there is no political sovereignty, there is no independent political society and vice versa can also be true.
Austin also tried to differentiate between positive law and positive morality. As per Austin, positive laws that can give resemblance to moral rules can make up for positive morality. And thus, some rules of positive morality are co-extensive with the positive school; of law. For example rules against stealing, assaulting, killing someone, etc.
It is believed by Austin that whenever there is a conflict between positive law and positive morality then each and every time positive law would prevail over positive morality.
Criticism of Austin’s theory for positive law
Salmond has criticized Austin’s theory of law stating that it completely divides law from morality and held that the law to be effective must have the elements of justice and ethics otherwise it cannot be considered as proper law.
Gustav Radbruch, a German philosopher, also agreed to this and stated that a purposive law can never be separated from morality and justice as they include values, ideals, notions of justice, etc.
Dworkin also rejected the positive conceptions of law and interpretations.
Some statements regarding Austin’s positivism are discussed below:
- Relations between morals and law overlooked -
According to Austin the science of jurisprudence is concerned with positive law not keeping in mind whether it may be good or bad which signifies that law is not related with morals. But this is not true as the law is organic in nature and not an arbitrary command.
- Law conferring privileges -
The laws, which only confer privilege or are only of permissive character, are not covered by Austin’s definition of law.
Austin's perspective that treats law as sovereignty is considered artificial, which ignores spontaneous growth.
- Rules set by private people -
According to Austin, positive law does not include within itself rules set by private persons which in an undue extension of legal rights are not able to understand its nature and are considered to be too vague.
Austin’s law of the command of sovereigns is not guaranteed by historical facts and so this theory has completely ignored the importance of customs.
Jeremy Bentham and the principle of utility
Jeremy Bentham is considered to be the founder of positivism. Austin’s theory can be regarded as the mere paraphrasing of Bentham’s theory. And according to Bentham, there are eight different aspects of the law which are as follows:
- Aspect
- Force
- Subject
- Objects
- Sources
- Extent
- Expression
- Remedial appendages
Jeremy Bentham also gave the famous theory of utility and according to him, any person is governed by two expressions that are pain and pleasure. Any man wants to decrease pain and increase pleasure and thus, any law should be made keeping in mind the theory of utility. Any law should aim at maximizing pleasure and minimizing the pain of the persons whom it governs.
Jereme Bentham also proposed the codification of all the laws and stated that the uncodified body of rules was a part of English law and was not worthy of being called law.
Therefore, Jeremy Bentham has played a crucial role in the development of the theory of Legal Positivism.
Criticism of Austin and Bentham
According to Austin sovereignty is considered to be supreme and owns allegiance over nobody else. However, the concepts of international law restrict these. It has limited powers over international law and so the idea of sovereignty is challenged by the concept of international law. Moreover, the fundamental rights that are given to the people restrict the powers of the sovereign but the sovereign has to exercise its powers according to the fundamental rights of the people therefore, the sovereign cannot breach the rights of the people while exercising its powers.
Also in this legal theory, the concept of the legal system was completely ignored as they only concentrated and talked about sovereignty and it being the source of the laws.
Sovereign is something that is supreme and has absolute powers and so the idea of sovereignty that is given by both the jurists gives rise to an autocratic regime. Since it does not give any powers to other people and acts as it wants, there are no restrictions on the powers of the sovereign. Thus, we can say that the idea of a sovereign gave rise to the idea of an autocratic regime.
One of the main shortcomings that was criticized by almost everyone was the fact that both Austin and Bentham regarded sanctions as the only basis of law. They believe that the existence of the law is not possible without it being backed by sanctions. And so if the will of sovereignty is not backed by sanctions then it can never be regarded as law.
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