Q.2. Discuss the salient features of the Analytical school of jurisprudence indicate its shortcomings. Why is this theory called as Command/Imperative theory of law ?
Discuss the main characteristics of Analytical school. Why is it called analytical?
Discuss in brief the characteristic features of the Analytical school. Why this theory is called ‘Positive theory of law?’
Ans. Salient features of Analytical school of jurisprudence- The jurists of Analytical school consider that the most important aspect of law is its relation to the state. Law is treated as an imperative or command emanating from the state. For this reason this school is known as the Imperative school. 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” (positus). For this reason, this school is termed as the ‘positive school’. Its founder is John Austin who was the professor of jurisprudence in the University of London.
The positive school takes for granted the developed legal system and proceeds logically to analyze its basic concepts and classify them so as to bring out their relations to one another. This concentration on the systematic analysis of the legal concepts has given this school the name of Analytical school of jurispirjdence.
In 1832, John Austin, after a course of lectures at the London University, published a work which he entitled, The Province of Jurisprudence Determined, and what he determined came out with great vigour of analysis. After his death he achieved greater fame and became the founder of what was popularly called the analytical school. This title seems to be misleading as it suggests that analysis is the exclusive property of this school instead of being (as it is) a method used throughout jurisprudence. Hence Allen prefers to speak of the imperative schools, for this emphasizes Austin’s particular conception of law.
Austin was not unmindful of the part played by ethics in the evolution of law. Indeed, he devoted several lectures to the theory of utility. But, finding works on jurisprudence full of confusion, Austin decided to confine jurisprudence to a study of law as it is, leaving the study of the ideal forms of law to the science of legislation. Austin’s followers were even more rigorous than their master in confining jurisprudence to an analysis of rules in force.
The leading exponents of the Analytical school in England are Markby, Holland and Salmond. Markby was a judge of the Calcutta High Court (1866-1878) and his “Elements of Law” was published in 1871. Holland published his Elements of Jurisprudence in 1880. Salmond was a judge of the Supreme Court of New Zealand and his great work Jurisprudence or Theory of Law was published in 1902. The works of these authors are regarded as standard works on Analytical Jurisprudence.
The defects of analytical method are obviously enough. It restricts itself to the facts of matured legal systems and traits of law as it is. Analysis reveals Austin’s foundation to be rather unstable. Firstly, it is clear that there are no universal rules of law—hardly a rule today but may be matched by its opposite of yesterday. Secondly, there are few concepts which are common to all legal systems, and if we confine our analysis to such as we think are universal, we run two dangers; firstly, if further research shows that there are no concepts which are common to all systems, then there is no basis for general jurisprudence at all; secondly, even if a few notions are proved to be universal they form a somewhat narrow basis for a science of law. Rules of property that were considered axiomatic in 1850 do not apply in Russia or other Soviet nations, nor in many other countries. Today it is increasingly recognized that useful as analysis may be, it will not suffice to answer all problems of jurisprudence.
The influence of the analytical school waned-began to diminish in the period of ascendancy of the Historical school, but the latter too lost its hold on the world of thought by becoming fatalistic, insisting too much on the unconscious growth of law and repudiating the element of purposeful effort as a factor in legal evolution. This led to the development of sociological jurisprudence.