IDEAL INSTITUTE OF MANAGEMENT AND TECHNOLOGY AND

SCHOOL OF LAW
JURISPRUDENCE
PRESENTATION ON

ANALYTICAL POSITIVISM
SUBMITTED BY: SUBMITTED TO:
NANDINI JAISWAL AASTHA BHATNAGAR
THIRD-YEAR SECTION A ASST PROFESSOR
04713403819
 INTRODUCTION
• The major premise of the analytical school of jurisprudence is to deal with the law as it exists
in its present form. It seeks to examine the principles of law as they actually exist in a given
legal system. The exponents of the analytical school of jurisprudence consider that the most
important aspect of the law is its relation to the state.
• Further, this school considers that law originates from the state and defines the relation of law
with the state. The two main exponents of this school are-
1.Jeremy Bentham
2.John Austin
 JEREMY BENTHAM
• Bentham advocated for an imperative conception of law, in which sovereignty and command are
central principles. The contrast between social desirability and logical necessity was recognized by
Bentham. In general, sanctions play a less important role in Bentham’s theory than they do in
Austin’s. Even if simply supported by religious or moral consequences, Bentham believed that a
sovereign’s edict would constitute law.
• Bentham contrasted Expositorial jurisprudence (that is, what the law is) with censorial
jurisprudence (that is what the law ought to be). His definition of law is “law is an assemblage of
signals, affirmations of intention conceived or chosen by a sovereign in a State.” While supporting
the economic idea of laissez-faire (minimum government intervention in people’s economic activity),
he advocated for utilitarianism which signified that ‘the legitimate purpose of every legislation is the
advancement of the greatest pleasure of the greatest number.’ Bentham defined utility as “the
property or tendency of a thing to prevent some evil (‘pain’) or procure some good (‘pleasure’).”
According to him, the role of legislation should be to achieve these goals, namely, to provide
sustenance, produce abundance, promote equality, and preserve security.
 JOHN AUSTIN (1790-1859)
• He used the analytical technique – ‘Law should be rigorously examined and evaluated, and
the principle underlying it should be discovered’ and limited his research to Positive law that
is Jus positivism (‘Law, simply and strictly so-called: Law set by political superiors to
political inferiors’). As a result, he used the terms “analytical,” and “positivism,” to describe
the school he formed, therefore, the Analytical school of jurisprudence is also known as
Analytical Legal Positivism.
• Austin defined law as “a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him”. According to him, ‘proper law’ encompasses God’s
law, Human laws, and Positive laws.
 HLA HART’S CONCEPT OF LAW
• Professor Hart (1907) is often recognized as the most prominent exponent of British positivism in the
modern era. He criticized Austin’s thesis in his noteworthy work “The Concept of Law.” Hart
observed that “law consists of norms with a broad applicability and non-optional nature, yet which
are susceptible to formalization, legislation, and adjudication”. He said that law is a collection of
social norms (rules derived from social pressure) that take on the form of legal regulations. The term
‘law’ refers to a set of “publicly ascertainable regulations.
• According to Hart, the concept of duty signifies that a rule is accepted by the people (i.e., it is
internalized) rather than habitually obeyed (as defined by Austin). There is a distinction between
internal and exterior elements of regulations. The former means “having a responsibility” (without
force), whilst the latter entails “being obligated” (under a compulsion).
 KELSON’S CONCEPT OF LAW
• Hans Kelsen (1881-1973), a member of the ‘Vienna School’ of legal philosophy, offered a “pure theory of
law,” that is, a theory free of social, historical, political, psychological, and other influences thus omitting
everything that is not technically law and logically self-supporting. The law is a normative (‘law as a coercive
order’) rather than natural science, and it comes with punishments. The test of legality can be found inside the
legal system itself. He described the law as “a set of rules governing human behavior.” Laws, according to
Kelsen, are ought propositions, or ‘norms’.
• The law is a set of behavioral standards that may be traced back to a grundnorm, or fundamental norm, from
which they gain their legitimacy. The grundnorm must be effective, that is, people must have trust in it,
otherwise, a revolution will occur. There will always be some type of grundnorm in any legal system, whether
it is in the shape of a Constitution or a dictator’s will. The grundnorm will be that the ‘Constitution needs to
be observed when there is a written Constitution (for eg in India, USA). Where there is no written
Constitution (like in the United Kingdom), the grundnorm must be derived from social behavior. The
grundnorm of international law is the concept ‘pacta sunt servanda’ (treaty duties bind parties).
 CONCLUSION
• The different schools of thought in jurisprudence indicate distinct approaches to handling the
subject. Austin, Kelsen, and Hart’s ideas are dominated by coercive components. According to
their beliefs, any social norm becomes legislation if certain formal conditions are met,
regardless of its underlying worth or quality. The essence of law is found in its purpose rather
than its form. Morality is excluded from the law by all three philosophers because morality no
longer plays a role after a law is enacted.
• The Analytical school of jurisprudence highlighted the positive approach that needs to be
adopted to address legal challenges. The school came with its own sets of pros and cons that
the article highlighted, nevertheless one cannot ignore that the school had a lot to offer to
society in general.