Analytical

Assignment on
Jurisprudence
Jurisprud
ence

Submitted By: Mohd Abid

Hussain Ansari

Guided By: Dr.Prof.

Eqbal Husain

Acknowledgement
Writing the Acknowledgement for the project
in the subject of Constitution is a fairly
simple undertaking for anyone who has
attended even a single class of Dr. Prof.
Eqbal Husain. The clarity, the command and
the humour he brings into every class is
infectious, making any student believe that
there can be no easier subject that the
Jurisprudence and that anyone can master
it, provided he gives the subject the respect
and recognition that Sir himself gives the
subject.
Furthermore I would like to thank all those
people who gave the subject their time and
wrote books which I eventually referred and
also I thank the library staff who liaised with
us in searching material relating to the
project.
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My father, a Lawyer with large access to

books of value has been of great help to me.
Without the contribution of the above said
people I could have never completed this
project.
Mohd. Abid Hussain Ansari
B.A.LL.B (Hons) 4th Semester
2nd Year

Jurisprudence
Definitions and
Explanations
Jurisprudence was the first of the social sciences to be born. Its province has
been determined and re-determined because the nature of the subject is that no
delineation of its scope cans be regarded as final. On torts or contracts,
for example, a student may be recommended to read any of the
standard textbooks with the assurance that, whichever book he does read, he
will derive much the same idea as to what the subject is about. With
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jurisprudence this is not so. Books called jurisprudence vary so widely in

subject matter and treatment that the answer to the question, what is
jurisprudence? Will vary in almost each and every book.1
The word Jurisprudence is derived from a Latin word Jurisprudentia which
means knowledge of law. In the Latin language jure or juris means law and
prudentia means skill or knowledge2.
Jurisprudence then signifies a practical knowledge of law and its application 3.
It is a science which ascertains the fundamental principles of which the law is
the expression. Jurist of different ages have tried to give a definition of the term
Jurisprudence. But no definition can be said to be correct in its absolute
sense.
Jurisprudence is the theory and philosophy of law. The Latin words juris is
the genitive form of jus meaning "law." So, juris means "of law" or "legal."
Prudentia, meaning "knowledge" in Latin, translates into English as
"prudence." The native English word is "wisdom," which originally also meant
"knowledge." As jurisprudence has developed, there are three main aspects with
which scholarly writing engages:
Natural law is the idea that there are unchangeable laws of nature
which govern us, and that our laws and institutions should try to align
with this natural law.
Analytic jurisprudence asks questions distinctive to legal philosophy
like, What is law?" "What are the criteria for legal validity?" or

1 Extracted from R.W.M. Dias book Jurisprudence

2 When we speak of a person as a jurist, what we imply in his knowledge which
is of a special kind that it is comprehensive and such as to enable him to
formulate general truths; or in other words the knowledge is scientific. This
means that the jurisprudence is in general the same as that of all science; a
complete grasp, a systematic penetration of its subject-matter; the power of
following the most general propositions into their minutest ramification and
inversely of ascending from the most concrete care, through all intermediate
stages of thought to the principle which governs itMoyle, Introduction to the
Institute of Justinions. P. 61.
3 T.E. Holland, The Elements of Jurisprudence (13 th Ed.), pp. 6, 7.
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"What is the relationship between law and morality?" and other such
questions that legal philosophers may engage.
Normative jurisprudence asks what law ought to be. It is close to
political philosophy, and includes questions of whether one ought to
obey the law, on what grounds law-breakers might properly be
punished, the proper uses and limits of regulation, and how judges
ought to decide cases.
Modern jurisprudence and philosophy of law is dominated today primarily by
Western academics. The ideas of the Western legal tradition have become so
pervasive throughout the world that it is tempting to see them as universal.
Historically, however, many philosophers from other traditions have discussed
the same questions, from Islamic scholars to the ancient Greeks.
Austin4 defines jurisprudence as Science of law which deals with analysis of
the concept or its underlying principles.
As per Salmond,5 jurisprudence can be defined in two senses
1. In the Generic sense jurisprudence can be defined as Science of Civil
Law
2. In the Specific sense jurisprudence can be defined as the science of the
first principle of civil law.
According to E.W. Patterson6, defines Jurisprudence it means a body of
ordered knowledge, which deals with a particular species of law.
According to Julius Stone7, jurisprudence means Lawyers extroversion. It is
the lawyers examination of the precepts, ideals and techniques of the law in the
light derived from present knowledge in disciplines other than the law.
It is the name given to a type of investigation into law, an investigation of an
abstract, general and theoretical nature, which seeks to lay the essential
principles of law and legal system. It, as philosophy of law attempts to correlate
4 The Province of Jurisprudence Determined
5 Salmond, Jurisprudence (10th Ed.) p. 1
6 E.W. Patterson, Jurisprudence (1st Ed.) p.1
7 Julius Stone, The province and Functions of Law p. 25
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with Social values and provides practical solutions by way of fusion of facts,
justice and value. The people of this world have formed certain ideas and
conceptions about the nature if justice and law. It involves the study of general
theoretical questions about the nature of law and legal systems, about the
relationship of law to justice, morality and about the social nature of law. It, as a
science of law is primarily concerned with regulation of human conduct in
accordance with the set values, needs and goals of each society. As the values,
needs and goals are of a changing character, the nature of jurisprudence also
keeps on changing to cater to the need of a particular society.
According to Robert C. Clark, Jurisprudence is a science of law in general. It
does not confine itself to any particular system of law but applies to all the
systems of law or to most of them. It gives the general ideas, conception and
fundamental principles on which all or most of the systems of laws of the world
are based.
Jurisprudence is the most important and the most useful of legal studies as it
deals with the fundamental principles on which rests the superstructure of law. It
is very helpful as it provides an opportunity to bring the theory and life into
focus and how to think rather than just to know. It furnishes such materials
which ultimately help in cultivating ones own ideas in relation to a particular
theory.
Jurisprudence is a subject whose knowledge is the basis and the foundation of
the whole legal studies and that is why it has considerable importance for the
law students, law teachers, practicing lawyers and even the judges. It is not
mere knowledge of law; it is something more than that.

Introduction- Analytical
Jurisprudence
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Central Idea
Law as it exists i.e. Law as it is, regardless of good or bad, past or future.
A law, which actually exists, is a law, though we happen to dislike it, or though
it varies from the text, by which we regulate our approbation and
disapprobation.8
Different Names:
Positive School, because it focused on, positum (Latin) which means,
as it is.
English School, because this school was dominant in England.
Austinian School, because it was founded by John Austin.
Origin:
Imperative concept of law was first proposed by Bentham during his
life time (1742-1832) but his work remained unpublished till 1945.
Prof. Dias points that until recently John Austin used to be styled the
father of the English Jurisprudence, but it is now clear from a work of
Bentham first published in 1945 that it is he, if anyone, who deserved
such a title.
However, John Austin is considered the de facto originator of this school
of jurisprudence.

Chief Exponents of Analytical School

of Jurisprudence
1.
2.
3.
4.
5.
6.
7.
8.
9.

Jeremy Bentham (1742-1832)

John Austin (1790-1859)
Sir William Markby (1829-1914)
Sheldon Amos (18351886)
Thomas Erskine Holland (1835 1926)
John Salmond (1862 1924)
Herbert Lionel Adolphus Hart (1907-1992)
Horace Gray (1828-1902)
Wesley Newcomb Hohfeld (1879-1918)

8 Austin 1832/1995: Lecture V, p. 157

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10.Hans Kelsen (1881-1973)

11. Nikolai Mikhailovich Korkunov (1853-1904)
I will be dealing with some of the prominent jurists in my assignment work.

Scope of Analytical School

1.

Analysis of the legal system and legal concepts such as Right, Duty

etc.

2.
3.

Analysis of the relation between civil law and other forms of law.
Analysis of the legal structure of a state and administration

of justice.

4.
5.

In depth investigation into the actual sources of law.

Investigation of the theory of legislation, precedents and customary

law.

6.

An inquiry into the scientific arrangement of law into distinct

departments along with an analysis of distinctions on which the division

is based.

7.

An investigation of the theory of legal liability in civil and criminal

cases.

8.
9.

An examination of all other relevant legal concepts.

Worldwide legal education today owes its basis to analytical school

of jurisprudence.

Utility of Analytical School

Analytical school of jurisprudence explains in detail the complex legal
concepts such as, Law itself, State, possession etc.
It provides analysis of the various legal systems of the world.
It elaborates the structure of a legal system.
It provides a logical basis and helps determine the purpose of law.
It provides answer to the question, Why is it so?
It separates law from morality.

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 It enables lawyers and judges to interpret law with logic and efficacy for
smooth functioning of a legal system.
Analytical jurisprudence is using a neutral point of view and descriptive
language when referring to the aspects of legal systems. This was
a philosophical development that rejected natural law's fusing of what law is
and what it ought to be. David Hume famously argued in A Treatise of Human
Nature that people invariably slip between describing that the world is a certain
way to saying therefore we ought to conclude on a particular course of action.
But as a matter of pure logic, one cannot conclude that we ought to do
something merely because something is the case. So analyzing and clarifying
the way the world is must be treated as a strictly separate question to normative
and evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?";
"What is the law?"; "What is the relationship between law
and power/sociology? and, "What is the relationship between law
and morality?"
Legal positivism is the dominant theory, although there are a growing number
of critics, who offer their own interpretations.
Analytical jurisprudence is a legal theory that draws on the resources of modern
analytical philosophy to try to understand the nature of law. Since the
boundaries of analytical philosophy are somewhat vague, it is difficult to say
how far it extends. H. L. A. Hart was probably the most influential writer in the
modern school of analytical jurisprudence, though its history goes back at least
to Jeremy Bentham.
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that
legal reasoning is or can be modeled as a mechanical, algorithmic process).
Indeed, it was the analytical jurists who first pointed out that legal formalism
are fundamentally mistaken as a theory of law.
Analytic or 'clarificatory' jurisprudence uses a neutral point of view and
descriptive language when referring to the aspects of legal systems. This was a
philosophical development that rejected natural law's fusing of what law is and
what it ought to be. David Hume famously argued in A Treatise of Human
Nature that people invariably slip between describing that the world is a certain
way to saying therefore we ought to conclude on a particular course of action.
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But as a matter of pure logic, one cannot conclude that we ought to do

something merely because something is the case. So analyzing and clarifying
the way the world is must be treated as a strictly separate question to normative
and evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?";
"What is the law?"; "What is the relationship between law and
power/sociology?" and, "What is the relationship between law and morality?"
Legal positivism is the dominant theory, although there are a growing number
of critics, who offer their own interpretations.

Analytical Positivism
Positivism simply means that the law is something that is "posited": laws are
validly made in accordance with socially accepted rules. The positivist view on
law can be seen to cover two broad principles:
Firstly, that laws may seek to enforce justice, morality, or any
other normative end, but their success or failure in doing so does not
determine their validity. Provided a law is properly formed, in accordance
with the rules recognized in the society concerned, it is a valid law,
regardless of whether it is just by some other standard.
Secondly, that law is nothing more than a set of rules to provide order and
governance of society. No legal positivist, however, argues that it follows
that the law is therefore to be obeyed, no matter what. This is seen as a
separate question entirely:
What the law is- is determined by social facts (or "sources')
What obedience the law is owed - is determined by moral
considerations.
The analytical school is known by different names. It is called 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. Its
founder was JOHN AUSTIN and hence it is also called AUSTINIAN SCHOOL.
This school takes for granted the developed legal system and proceeds logically
to analyse its basic concepts and to classify them in order to bring out there
relation to one another. This concentration of systematic analyses of legal
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concepts has given this school the name ANALYTICAL JURISPRUDENCE.

The first concern of the
Jurist is to understand the structural nature of a legal system and for this
purpose, discussion of justice is not only is commonly termed analytical and
such writers are often styled ANALYTICAL POSITIVISTs. The term positivism
was invented by Auguste Comte.

Views of Prominent Jurists

Jeremy Bentham (1742-1832)
Law is an assemblage of signs, declarative of 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
supposed to be the subject to his power.
Benthams theory contains key concepts viz. Sovereignty, Command and
Sanctions.
Bentham believed that there was the possibility of complete scientific
codification of law.
Bentham was against the judge-made law.
Bentham attributed the element of utility to law. He defined utility as,
the property of a thing to prevent some evil or to produce some good.
Jeremy Bentham as an individualist believed that the function of law is to
emancipate individual from the bondage and restrain upon his freedom. He
defined law 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; such volition trusting for its
accomplishment to the expectation of certain events which it is intended such
declaration should act as a motive upon those whose conduct is in question9
One of the earliest legal positivists was Jeremy Bentham. Bentham was an early
and staunch supporter of the utilitarian concept (along with Hume), an
avid prison reformer, advocate for democracy, and strongly atheist.
9 Of Laws in General (edited by Hart) 1970, p.1
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Bentham's views about law and jurisprudence were popularized by his

student, John Austin.
Austin was the first chair of law at the new University of London from
1829.Austin's utilitarian answer to "what is law?" was that law is "commands,
backed by threat of sanctions, from a sovereign, to who people have a habit of
obedience". Contemporary legal positivists have long abandoned this view, and
have criticized oversimplification, H.L.A. Hart particularly.
John Austin has been paid credit as the founder father of the English Analytical
School of Jurisprudence until in the year 1945 when the work of Jeremy
Bentham was got published by Prof Everett of University College of London.
Jeremy Bentham is the real founder father of the English School
of Jurisprudence but the real and full credit has never been paid to this Jurist
because of his indolence in not getting his works published in spite of his whole
life has been devoted to legal writing.
The actual credit of bringing this man in front of light of Jurisprudence must
really go to Prof. Everett who discovered one of the most important
manuscripts of Jeremy Benthams thoughts on jurisprudence at University
College of London. It was this work was brought to the public. This works was
fully deciphered and here the stress on the word, decipher is given because it
was the real work of Prof. Everett that authenticated the manuscript. This was
found out to be a Treatise, The Limits of Jurisprudence Defined and the year of
work was found out to be 1782.The above work reveals how much was really
did John Austin owe to Jeremy Bentham and he is due to this unknown man of
jurisprudence. Jeremy Bentham works clearly reveal that he was really an
analyst who did real work in the mechanics of law. The many facets of Jeremy
Bentham could be very well understood by going through Jeremy Bentham
and the Law edited initially by G. W. Keeton and G. Schwarzenberger.
Bentham was really a realist in temper and in his approach to Jurisprudence are
two important aspects namely:
1. The Analytical tool of law; and
2. The Utility tool of law.
John Austin took from Jeremy Bentham the analytical tool but rejected the
utility tool as a one that beyond the realm of Jurisprudence proper. Thus his
definition of law can found to be very wide enough to spread over
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administrative and subordinate legislation. Hence, only his approach of analysis

made one jurist to state that his analysis of rights and duties has the embryo that
has been already seeded by him that once was thought to be the birth child of
twentieth century thinking as stated by W. G. Friedmann, 1948.Thus, the utility
tool of law that compelled him to put it in the utilitycrucible every law to find
out whether it comes out the test to give the greatest happiness of the greatest
number that was also a seed that was already germane to the Roscoe Pounds
Sociological School of Jurisprudence. Thus, the analytical and the utility tool
with which he approached law made him to examine the structure, the
conceptions, and the functioning of the legal system whether it gives greatest
happiness of the greatest number. Hence, in every legal right if it embodies a
privilege he analyzed the utility tool for analysis of the privilege. Hence only
though he may be called as an individualist but yet he carried on with him the
collectivism that could be seen reflected in Prof. Everett. Thus it made a fertile
ground for him to analyze the every legal terms like rights, power, duties,
prohibition, obligations property liberty etc., to find out it has any practical
utility and if not so to discard the same. Hence, only G. W. Paton a jurist called
him as Gospel who acted with missionary zeal to be the father or a precursor to
the codification of law and specifically to Civil Code. Thus the many facets of
law and specifically to two sides namely the analytical and utility sides created
the Pure Science of law or the Teleological school and the Analytical school.
Hence, in short he can be called as the original founder father of English
Jurisprudence.
Bentham Utilitarianism
Bentham propounded the principle of utilitarianism. According to this theory,
the right aim of legislation is the carrying out the principle of utility. In other
words, the proper end of every law is the promotion of the happiness of the
greatest number. 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. Bentham
proceeded from the axiom that nature placed mankind under governance of two
factors i.e. pleasure and pain. They alone can point out the two us what we
ought to do and what we should refrain from doing. The good or evil of an
action should be measured by the quantity of pain resulting from it. The task of
the government according to him is to promote happiness of the society by
furthering enjoyment of pleasure and affording security against them. He was
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convinced that if the individuals comprising the society were happy and
contented, the whole body politics would enjoy happiness and prosper.

John Austin (1790-1859)

John Austin is considered by many to be the creator of the school of analytical
jurisprudence, as well as, more specifically, the approach to law known as legal
positivism. Austin's particular command theory of law has been subject to
pervasive criticism, but its simplicity gives it an evocative power that continues
to attract adherents. Early in his career, Austin came under the influence of
Jeremy Bentham, and Bentham's utilitarianism is evident (though with some
differences) in the work for which Austin is best known today. On Austin's
reading of utilitarianism, Divine will is equated with Utilitarian principles:
The commands which God has revealed we must gather from the terms
wherein they are promulgated. The command which he has not revealed, we
must construe by the principle of utility.
This particular reading of utilitarianism, however, has had little long-term
influence, though it seems to have been the part of his work that received the
most attention in his own day. Some have also seen Austin as being one of the
early advocates of rule utilitarianism. Additionally, Austin early on shared
many of the ideas of the Benthamite philosophical radicals; he was a strong
proponent of modern political economy, a believer in Hartleian metaphysics,
and a most enthusiastic Malthusian. He lost most of his radical inclinations
as he grew older. Austin's importance to legal theory lies elsewherehis
theorizing about law was novel at four different levels of generality. First, he
was arguably the first writer to approach the theory of law analytically (as
contrasted with approaches to law more grounded in history or sociology,
or arguments about law that were secondary to more general moral and political
theories). Analytical jurisprudence emphasizes the analysis of key concepts,
including law, (legal) right, (legal) duty, and legal validity. Though analytical
jurisprudence has been challenged by some in recent years (e.g., Leiter 2007), it
remains the dominant approach to discussing the nature of law. Analytical
jurisprudence, an approach to theorizing about law, has sometimes been
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confused with what the American legal realists (an influential group of
theorists prominent in the early decades of the 20th century) called legal
formalism a narrow approach to how judges should decide cases. The American
legal realists saw Austin in particular and analytical jurisprudence in general,
as their opponents in their critical and reform-minded efforts. In this, the realists
were simply mistaken; unfortunately, it is a mistake that can still be found in
some contemporary legal commentators.
Second, Austin's work should be seen against a background where most English
judges and commentators saw common-law reasoning (the incremental creation
or modification of law through judicial resolution of particular disputes) as
supreme, as declaring existing law, as discovering the requirements of Reason,
as the immemorial wisdom of popular custom. Such (Anglo-American) theories
about common law reasoning fit with a larger tradition of theorizing about law
(which had strong roots in continental European thought e.g., the
historical jurisprudence of theorists like Karl Friedrich von Savigny (1975): the
idea that generally law did or should reflect community mores, spirit, or custom.
In general, one might look at many of the theorists prior to Austin as
exemplifying an approach that was more community-oriented law as arising
from societal values or needs, or expressive of societal customs or morality. By
contrast, Austins is one of the first, and one of the most distinctive, theories that
views law as being imperium oriented viewing law as mostly the rules imposed
from above from certain authorized (pedigreed) sources.
More top-down theories of law, like that of Austin, better fit the more
centralized governments (and the modern political theories about government)
of modern times.
Third, within analytical jurisprudence, Austin was the first systematic exponent
of a view of law known as legal positivism. Most of the important theoretical
work on law prior to Austin had treated jurisprudence as though it were merely
a branch of moral theory or political theory: asking how should the state
govern? (And when were governments legitimate?), and under what
circumstances did citizens have an obligation to obey the law? Austin
specifically, and legal positivism generally, offered a quite different approach to
law: as an object of scientific study, dominated neither by prescription nor by
moral evaluation. Subtle jurisprudential questions aside, Austin's efforts to treat
law systematically gained popularity in the late 19th century among English
lawyers who wanted to approach their profession, and their professional
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training, in a more serious and rigorous manner. Legal positivism asserts (or
assumes) that it is both possible and valuable to have a morally neutral
descriptive (or conceptual though this is not a term Austin used) theory of law.
(The main competitor to legal positivism, in Austin's day as in our own,
has been natural law theory.) Legal positivism does not deny that moral and
political criticism of legal systems is important, but insists that a descriptive or
conceptual approach to law is valuable, both on its own terms and as a
necessary prelude to criticism.
There were theorists prior to Austin who arguably offered views similar to legal
positivism or who at least foreshadowed legal positivism in some way. Among
these would be Thomas Hobbes, with his amoral view of laws as the product of
Leviathan (Hobbes 1996); David Hume, with his argument for separating is and
ought (which worked as a sharp criticism for some forms of natural law
theory, which purported to derive moral truths from statements about human
nature) (Hume 1739/2000); and Jeremy Bentham, with his attacks on judicial
lawmaking and on those, like Sir William Blackstone, who justified such
lawmaking with natural-law-like justifications (Bentham 1970, 1996). Austin's
famous formulation of what could be called the dogma of legal positivism is as
follows:
The existence of law is one thing; its merit or demerit is another. Whether it be
or be not is one enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry.
A law, which actually exists, is a law, though we happen to dislike it, or
though it varies from the text, by which we regulate our approbation
and disapprobation.
Fourth, Austin's version of legal positivism, a command theory of law,
was also, for a time, quite influential. Austin's theory had similarities with views
developed by Jeremy Bentham, whose theory could also be characterized as
a command theory. Bentham, in a posthumously published work, would
define law as:
as 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: such volition trusting for its
accomplishment to the expectation of certain events which it is intended such
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declaration should upon occasion be a means of bringing to pass, and the

prospect of which it is intended should act as a motive upon those whose
conduct is in question.
However, Austin's command theory was more influential than
Benthams; because the latter's jurisprudential writings did not appear in an
even-roughly systematic form until well after Austin's work had already been
published, with Bentham's most systematic discussion only appearing
posthumously, late in the20th century.
According to Austin, law is a command relating to general conduct of the
subject to which command such sovereign has annexed sanctions or penalties
case of neglect.
According to Austin positive law has three characteristics:
1. It is a type of command
2. It is laid down by political superior
3. It is backed by sanction

Command
Commands are expression of desire given by superior to inferior. This
relationship between superiors and inferiors consist for Austin his ability to
punish him for disobedience. Austin distinguishes law from other commands by
them generally i.e. law being general command; and indeed laws seems much
less like the transitory commands barked out on the parade grounds and obeyed
there and then by the troops, and much more like such things as the standing
orders of a military station which remain in force generally and continuously for
all persons on the stations.

Political Superior
Some criticize the positive theory as gunman law on the ground that it make
no real distinction between law and the command of a bank robber who points
his gun at the bank clerk and orders him to hand over content of the but such
criticism overlook the Austins second requirement for to qualify as law a
command must have been given by a political superior or sovereign. To Austin a
sovereign is any person or body of person whom the bulk of a political society
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habitually obeys and who does not himself habitually obey same other person or
persons.

Sanctions
Law stands in need of sanctions. Not for the positivity in this a mere practical
need, law to him is something for the citizens to obey not as he pleases but
whether he likes it or not and this cannot be without some of the methods of
coercion. Therefore, sanctions are a logical part of the concept of law; they
consist of the penalties inflicted on the order of the sovereignty for the violation
of law in the words institutionalised punishment.

Criticism
1.

Austin makes sovereign illimitable by law that is complete absence

of rule of law.

2.
3.

Sanction should not always be in the form of punishment.

There should be distinction or disparity between n command which

are laws from which are not.

4.

There is an objection that the theory conflicts with ordinary usage

by denying the name law to rules which are generally classified as

legal. E.g. Rule of customary law, international law and much of
constitution law. None of these rules originate from sovereign commands.

5.

Natural law objection that positivist consider is law as law and do

not take account of law as it ought to be.

Herbert Lionel Adolphus Hart (19071992)

In the Anglophone world, the pivotal writer was H.L.A. Hart, who argued that
the law should be understood as a system of social rules. Hart rejected Kelsen's
views that sanctions were essential to law and that a normative social
phenomenon, like law, cannot be grounded in non-normative social facts. Hart
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revived analytical jurisprudence as an important theoretical debate in the

twentieth century through his book The Concept of Law. As the chair of
jurisprudence at Oxford University, Hart argued law is a 'system of rules'. Rules,
said Hart, are divided into primary rules (rules of conduct) and secondary rules
(rules addressed to officials to administer primary rules). Secondary rules are
divided into rules of adjudication (to resolve legal disputes), rules of change
(allowing laws to be varied) and the rule of recognition (allowing laws to be
identified as valid). The "rule of recognition", a customary practice of the
officials (especially judges) that identifies certain acts and decisions as sources
of law. A pivotal book on Hart was written by Neil Mac
Cormick in 1981(second edition due in 2007), which further refined and offered
some important criticisms that led Mac Cormick to develop his own theory (the
best example of which is his recently published Institutions of Law, 2007).
Other important critiques have included that of Ronald Dworkin, John Finnis,
and Joseph Raz. In recent years, debates about the nature of law have become
increasingly fine-grained. One important debate is within legal positivism. One
school is sometimes called exclusive legal positivism, and it is associated with
the view that the legal validity of a norm can never depend on its moral
correctness. A second school is labeled inclusive legal positivism, and it is
associated with the view that moral considerations may determine the legal
validity of a norm, but that it is not necessary that this is the case.
He rejected Austins theory of analytical positivism and expounded his legal
theory based on relationship between law and society. He favoured analytical
approach to law for better understanding of it. Hearts notion of law is all
together diff from his predecessors because he believed that law, coercion and
morality are related social phenomena having sociological implications.

Harts Conception of Law

According to Hart, law is a system of two types of rules the union of which
provides key to the science of jurisprudence. These rules, he called as primary
and secondary rules. Laws that impose duties or obligations on individuals are
described by Hart as "primary rules of obligation." In order for a system of
primary rules to function effectively, "secondary rules" may also be necessary in
order to provide an authoritative statement of all the primary rules. Secondary
rules may be necessary in order to allow legislators to make changes in the
primary rules if the primary rules are found to be defective or inadequate.
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Secondary rules may also be necessary in order to enable courts to resolve

disputes over the interpretation and application of the primary rules. The
secondary rules of a legal system may thus include
rules of recognition,
rules of change, and
rules of adjudication.
In order for the primary rules of a legal system to function effectively, the rules
must be sufficiently clear and intelligible to be understood by those individuals
to whom they apply. If the primary rules are not sufficiently clear or intelligible,
then there may be uncertainty about the obligations which have been imposed
on individuals. Vagueness or ambiguity in the secondary rules of a legal system
may also cause uncertainty as to whether powers have been conferred on
individuals in accordance with statutory requirements or may cause uncertainty
as to whether legislators have the authority to change laws. Vagueness or
ambiguity in the secondary rules of a legal system may also cause uncertainty as
to whether courts have jurisdiction over disputes concerning the interpretation
and application of laws. Primary rules of obligation are not in themselves
sufficient to establish a system of laws that can be formally recognized,
changed, or adjudicated, says Hart. Primary rules must be combined with
secondary rules in order to advance from the pre-legal to the legal stage of
determination. A legal system may thus be established by a union of primary
and secondary rules (although Hart does not claim that this union is the only
valid criterion of a legal system or that a legal system must be described in these
terms in order to be properly defined).

Harts Rule of Recognition

The rule of recognition is a master meta-rule underlying any legal system that
defines the common identifying test for legal validity (or "what counts as law")
within any legal system.
He thus articulates its application:
...to say that a given rule is valid is to recognize it as passing all the tests
provided by the rule of recognition and so as a rule of the system. We can
indeed simply say that the statement that a particular rule is valid means that it
satisfies all the criteria provided by the rule of recognition.
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In Hart's view, the rule of recognition arises out of a convention among officials
whereby they accept the rule's criteria as standards that empower and govern
their actions as officials. The rule is cognizable from the social practices of
officials acknowledging the rule as a legitimate standard of behaviour, exerting
social pressure on one another to conform to it, and generally satisfying the
rule's requirements. To this end, as explained by Hart, the rule has three
functions:
1. To establish a test for valid law in the applicable legal system,
2. To confer validity to everything else in the applicable legal system, and
3. To unify the laws in the applicable legal system.
According to Hart, any rule that complies with the rule of recognition is a valid
legal rule. For example, if the rule of recognition were "what Professor Savellos
says is law", then any rule that Professor Savellos spoke would be a valid legal
rule.

Harts Views on Law and Morality

According to Hart, there is no necessary logical connection between the content
of law and morality, and that the existence of legal rights and duties may be
devoid of any moral justification.3 Thus, his interpretation of the relation
between law and morality differs from that of Ronald Dworkin, who in Laws
Empire suggests that every legal action has a moral dimension. Dworkin rejects
the concept of law as acceptance of conventional patterns of recognition, and
describes law not merely as a descriptive concept but as an interpretive concept
which combines jurisprudence and adjudication.
Hart defines legal positivism as the theory that there is no logically necessary
connection between law and morality. However, he describes his own viewpoint
as a "soft positivism," because he admits that rules of recognition may consider
the compatibility or incompatibility of a rule with moral values as a criterion of
the rules legal validity.
Moral and legal rules may overlap, because moral and legal obligation may be
similar in some situations. However, moral and legal obligation may also differ
in some situations. Moral and legal rules may apply to similar aspects of
conduct, such as the obligation to be honest and truthful or the obligation to
respect the rights of other individuals. However, moral rules cannot always be
changed in the same way that legal rules can be changed.
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John Salmond (1862 1924)

Jurisprudence is the science of civil law. By law he means the law of
the land.
Salmond makes a distinction between the use of term jurisprudence in the
generic and, specific sense:
A. Generic: deals with basic principles governing all legal systems of the
world. E.g., Audi alteram palteram
B. Specific: deals with one particular legal system. E.g. England
Salmond believes in the consideration of concepts of justice and the relationship
of law and justice. It investigates the real value of existing legal institutions and
an exposition of desirable of changes in the law.

Thomas Erskine Holland (18351926)

Jurisprudence is the formal science of positive law.
Holland follows the definition given by Austin with addition of just one word
i.e., Formal- Formal means concerned with form and structure of a legal
system. Holland believes that jurisprudence does not deal with the actual
material contents of law but with its fundamental conceptions. E.g., Concept of
ownership, not its legal procedure.

Hans Kelsen (1881-1973)

Kelsen began his long career as a legal theorist at the beginning of the 20th
century. The traditional legal philosophies at the time, were, Kelsen claimed,
hopelessly contaminated with political ideology and moralizing on the one
hand, or with attempts to reduce the law to natural or social sciences, on the
other hand. He found both of these reductionist endeavours seriously flawed.
Instead, Kelsen suggested a pure theory of law which would avoid
reductionism of any kind. The jurisprudence Kelsen propounded characterizes
itself as a pure theory of law because it aims at cognition focused on the law
alone and this purity serves as its basic methodological principle. By "pure"
Kelsen meant that all elements impure to law had to be hived off to leave a
remnant of material which is essentially legal. Accordingly all natural law,
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moral, religious, social, and other accretions that are not strictly law had to be
eliminated. This type of positive law approach is therefore in the tradition of
Austin. He rejected Austins definition of law as command as it introduces
subjective consideration whereas he wanted legal theory to be objective. He
defines science as a system of knowledge or a totality of cognitions
systematically arranged according to logical principles.

Law as Normative Science

Kelsen attempted to reconstruct 'legal science (Rechtswissenschaft)' as a science
of 'norms (Normen)', on analogy with Immanuel Kant's conception of natural
science. This type of legal science would be 'pure' in two senses.
Firstly, it would be 'pure' in a sense analogous to that in Kant's Metaphysical
Foundations of Natural Science. It would set out a priori a 'pure part' of legal
science, consisting of a framework of fundamental concepts. Then, in an
empirical part of legal science, this framework would be applied to empirical
(sociological, historical and so on) material so as to understand that material as
'law'.
The science, in both of its parts, would also be 'pure' in a second sense, in being
solely descriptive - excluding from the science any element of evaluation. The
core subject matter of legal science, for Kelsen, is legal norms. He defines a
'norm' as 'the meaning of an act of will'. Thus, for Kelsen a norm does not
necessarily have any element of generality - hence not all norms are rules.
Indeed, as the meaning of an act of will, a norm is not intrinsically rational;
departing from Kant both back toward David Hume as well as in the direction
of contemporary philosophical positivism, Kelsen denies the existence of
practical reason.
Legal science, as Kelsen would like it to be, has to describe a legal norm
without either evaluating it or adopting it as an evaluation. This can be done by
distinguishing rigorously between the social statement that is the norm itself and
the legal-scientific restatement of it that is, or is contained in, a description of
the norm. Kelsen terms the norm itself a 'legal norm (Rechtsnorm)' and its
descriptive restatement a 'legal proposition (Rechtssatz)'. Thus, when a jurist
(legal scientist) states that the law of a certain country contains the norm 'theft is
to be punished with imprisonment', this legal proposition is not a comment on
whether anybody in that country has a moral or other extra-legal obligation to
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impose, accept or evade such a penalty. In reading Kelsen, however, one has to
bear in mind that, when he refers to a 'norm', he is usually speaking elliptically:
he is uttering a legal proposition which stands for a legal norm, in much the
same way that a picture of a dog shows the dog but does not bark.
This kind of 'purity' already excludes ideas of natural law, in which description
and evaluation are intimately connected. That leaves as the subject matter of
legal science only positive law. Kelsen is a 'legal positivist' both in that he
excludes evaluation from legal science, through a strict separation of 'is' and
'ought', and in that he considers only positive law to be law. Although he never
made much sense of the idea of 'custom', he included all public international
law as 'law'.
At the same time, although it is not easy to reconcile with his rejection of
practical reason, Kelsen was emphatic that politicians should support and make
use of legal science. And legal scientists should assist them, for instance in law
reform. Although if, when doing so, they go beyond the role of mere technician
and recommend policy-based choices between possible norms, they will no
longer be acting as legal scientists. For Kelsen, 'is' and 'ought' occupy separate
worlds as a matter of logic, but not in practice. Their logical separation should
be incorporated into practice.

The Basic Norms or Grundnorms

Kelsen assumes, however, that the scientific representation of a positive-legal
order, as a hierarchy of legal propositions, must have a guarantor of unity. This
guarantor cannot be other than a component of the representation, hence a legal
proposition. Being a legal proposition, it counts as a representation of an actual
norm. So Kelsen calls it, elliptically, a 'basic norm (Grundnorm)'. A basic norm
is 'presupposed' in legal science for each order of positive law, to make it
possible to understand that material as an order of positive law. This norm is
simply that 'the historically first constitution is to be obeyed'. That constitution
may have become established by custom or by revolution: the jurist does not
evaluate the circumstances.
The idea of the basic norm serves three theoretical functions in Kelsen's theory
of law: The first is to ground a non-reductive explanation of legal validity. The
second function is to ground a non-reductive explanation of the normativity of

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law. The third function is to explain the systematic nature of legal norms. These
three issues are not un-related.
Kelsen rightly noticed that legal norms necessarily come in systems. There are
no free floating legal norms. If, for example, somebody suggests that the law
requires a will to be attested by two witnesses, one should always wonder
which legal system is talked about; is it US law, Canadian law, German law, or
the law in some other legal system? Furthermore, legal systems are themselves
organized in a hierarchical structure, manifesting a great deal of complexity but
also a certain systematic unity. We talk about Canadian law, or German law,
etc., not only because these are separate countries in which there is law. They
are also separate legal systems, manifesting a certain cohesion and unity. This
systematic unity Kelsen meant to capture by the following two postulates:
Every two norms that ultimately derive their validity from one
basic norm belong to the same legal system.
All legal norms of a given legal system ultimately derive their
validity from one basic norm.

Criticism
The concept of a basic norm involves an infinite regress. If the basic norm of a
particular positive-legal order is an authorising norm, one can ask what is the
source of the authority of the basic norm itself. If 'is' and 'ought' are to remain
entirely separated, that can only be a still more 'basic' norm; and then the same
question could be asked again, and so on infinitely. The concept of a basic
norm is doubly contradictory: it is self-contradictory in that it involves an
infinite regress; in addition, since no such norm actually exists, to presuppose
the existence of such a norm contradicts reality. The concept is a full 'fiction' in
the sense to be found in Hans Vaihinger's 'philosophy of "as if"'.

Criticism on Analytical School

No legal system exists in a vacuum; hence cannot be fully understood
by focusing only on the law itself. Modern trends suggest the blending
of socio-economic factors in the study of jurisprudence.
Analytical School conflicts with the usage of the term law as it does not
include customary law, international law and constitutional law in its
domain.
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 Bentham was enemy of the judge-made law (Judicial Precedents). Today,

precedents serve as an important tool in entire legal system.
All laws are not necessarily commands. Some laws prescribe action but
without are sanctions such as, repealing, declaratory laws. E.g., a law
that gives a citizen right to vote, etc.
The analytical school disregards the moral element in law which implies
that even unjust law is a law.
Analytical school does not take into account legal change. It takes for
granted the perfection of a legal system and proceeds to explain its
fundamentals. However, change is undoubtedly a permanent factor in
all walks of life.

My Point of View
Jurisprudence, as a discipline of research, has a vast scope and it shall not be
limited by any attempt at fixing its external boundaries. Any theory which
confines the jurisdiction of jurisprudence reflects narrow vision and
conservative approach. Thus, a synthesis of more than one school of thoughts in
jurisprudence is necessitated which shall embrace all emerging trends and tackle
the existing challenges resolutely.

Conclusion
Jurisprudence, in its existence as a discrete discipline of social science owes its
birth largely to the analytical school. It has succeeded in resolving much of
the complexities faced by the jurists, lawyers and judges in the early stages
of its development. However, its strict adherence to the limited domain of law,
as it is restricts it from evolving into an all- inclusive school of thought. The age
of information technology and globalization where cyberspace laws and
international laws are growing prominent every day, requires analytical school
to review its doctrine and extend its spectrum in order to accommodate the
missing factors which presently earn itself strongest criticism from the jurists of
the other schools of thought.
Legal philosophy is often divided into questions of analytical jurisprudence,
concerned with the nature of law, and questions of normative jurisprudence,
concerned with questions about what the law ought to be. This familiar
distinction can be drawn in a number of different ways. These differ less in their
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attitudes towards the significance of morality for law everyone agrees that law
morally ought to conform to moral demands but rather than their attitude
towards the significance of law for morality, whether basic legal concepts are
morally fundamental.

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