Analytical School of Jurisprudence Jurispru dence By:
Altaf Ahmed Sheikh LLB Part-I Quaid-e-Azam Law College, Lahore.
Introduction
Jurisprudence was the first of the social sciences to be born. born. It‟s province has been determined and re-determined because the nature of the subject is that no delineation of its scope can 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 jurisprudence this is not so. Books called „jurisprudence‟ vary so widely in subject subject matter and treatment treatment that the answer to the the question, what is jurisprudence?, will vary in almost each and every book. (Extracted from R.W.M. Dias‟ book „Jurisprudence‟) „Jurisprudence‟)
Jurisprudence Jurisprudenc e Derivation From Latin word „jūris prūdentia‟ , first used in 1628. JURIS PRUDENTIA PRUDENTI A
of Law
Proficiency, Wisdom, Knowledge
Wisdom/Knowledge Wisdom/Knowled ge of Law
Jurisprudence
Meaning Literal Meaning According to Oxford Advanced Learners‟ Dictionary Dictionary ;
“ Jurisprudence is the scientific study of law.”
Legal Meaning
According to Black‟s Law Dictionary (9th Edition);
1.“Jurisprudence is the study of the first principles of the law 1.“Jurisprudence of nature, the civil law, and the law of nations.” 2.“More modernly, the study of the general or fundamental elements of a particular legal system, as opposed to its practical and concrete details.” details.”
Definition
Jurisprudence is a name name given to certain certain type of investigation investigation into law and investigation of an abstract, general or theoretical in nature which seeks to lay the essential principles of law and legal system. (John Salmond 1862-1924)
Jurisprudence is an opportunity for the lawyer lawyer to bring theory and life into focus, for it concerns human thought in relation to the social existence. (Prof. R.W.M. Dias 1921-2009)
Jurisprudence is a science science of law in general. It It does not confine itself to any particular system system of law but applies to all the systems of law or to most of them. It gives gives the general ideas, ideas, conception and fundamental principles on which which all or most of the systems of law lawss of the world world are are based. based. (Robert C. Clark 1944 -)
Schools of Jurisprudenc Jurisprudence e
What is a School of thought? thought? “School of thought is a principle or body of principles accepted as authoritative and advocated by one or more scholars belonging to a specific discipline.”
Example: Four Schools of thought in Islamic Shariah (Hanfi, Shafi, Hanbali, Maliki), Darwin‟s School of Evolution, etc.
Major Schools of Jurisprudence Jurisprudence Jurisprude nce
Analytical
Historical
Traditional T raditional
Ethical
Sociological
Comparative
Modern
Analytical School of Jurisprudence Jurispr udence
1. 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 vary from the text, by which we regulate our approbation and disapprobation disapprobation.” .” (Austin 1832/1995: Lecture V, p. 157)
2. Different Names:
Positive School, because it focused on positum „positum ‟ (Latin) which means „as it is.‟ English School, because this school was dominant in England. Austinian School School, because it was founded by John Austin.
Origin:
Imperative concept of law was first proposed by Bentham during his life time (1742-1832) (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. Jeremy Bentham (1742-1832) 2. John Austin (1790-1859) 3. Sir William Markby (1829-1914) 4. Sheldon Amos (1835 – 1886) 1886) 5. Thomas Erskine Holland (1835 – 1926) 1926) 6. John Salmond (1862 – 1924) 1924) 7. Herbert Lionel Adolphus Hart (1907-1992) 8. Horace Gray (1828-1902) 9. Wesley Newcomb Hohfeld (1879-1918) 10. Hans Kelsen (1881-1973) 11. Nikolai Mikhailovich Korkunov (1853-1904)
Scope of Analytical School Scope of analyti Scope analytical cal school school of juris jurisprudence prudence can can be observed observed as follows; (i) Analysis of the legal system and legal concepts such as Right, Duty etc. (ii) Analysis of the relation between civil law and other forms of law law.. (iii) Analysis Analysis of of the legal structure structure of a state state and administra administration tion of justice justice.. (iv) In depth investigation into the actual sources of law law.. (v) Investigation of of the theory of legislation, precedents precedents and customary law. law. (vi) An inquiry into the scientific arrangement arrangement of law into distinct distinct departments along with an analysis of distinctions on which the division is based. (vii) An investigation investigation of the theory of legal liability in civil civil and criminal cases. cases. (viii) An examination of all other relevant legal concepts. concepts. (ix) Worldwide legal education today owes its basis to analytical school of jurisprudence.
Utility of Analytical School Analytical school of jurisprudence jurisprudence explains in detail the the complex legal concepts such as „Law‟ itself, „State‟, „possession‟ etc. It provides analysis of the various legal systems of the world. It elaborates elaborates the the structure of a legal 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. It enables lawyers and judges to interpret law with logic and efficacy for smooth functioning of a legal system.
Views of Prominent Jurists Jurist s 1. 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.” Bentham‟s 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.”
Views of Prominent Prominent Jurists (continued…)
2. John 2. John Austin (1790-18569) (1790-18569)
Imperative theory of law states; “Law is the general command of sovereign enforceable with sanctions.”
John Austin is best known known for his work developing the theory theory of legal of legal positivism. positivism. He attempted to clearly separate moral rules from "positive law." Austin divided laws into two kinds; A) „Laws Properly So Called‟ or Positive Law. E.g. PPC, QSO, etc. B) „Laws Improperly So Called‟ or Positive Morality. E.g. Religious Rules, Moral Rules, Customs etc. Austin attributed three elements elements with „positive law‟ which which are; i) Command ii) Sovereign iii) Sanction
Cont…
i) Command: “Commands are expression of desires given by superiors to inferiors.” ii) Sovereign: “ A Sovereign is any person or body of persons whom the bulk of a
political society habitually obeys but who does not habitually obey ob ey any other (earthly) person or institution. .” A sovereign may be an individual person, e.g. e.g. King, Queen, Sultan etc, or a group of persons, e.g. Parliament, Congress, House of Lords etc. Austin thought that all independent political political societies, by their nature, have a sovereign.
iii) Sanction: “An evil or punishment attached to a command.”
E.g. Fine, Imprisonment, etc.
Views of Prominent Jurists Jurists (continued…)
3. John Salmond (1862 – 1924) 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 „ generic‟ and „specific‟ sense. jurisprudence in the generic‟ A) Generic: deals with basic principles governing all legal Audi alteram palteram‟ palteram‟ systems of the world. E.g. „ Audi 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.
Views of Prominent Jurists Jurists (continued…)
4. Thomas Erskine Holland (1835 – 1926) 1926) “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‟. 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.
Comparison of Analytical School with Other Schools of Jurisprudence
vs. Historical School School 1. Analytical vs. Historical school in its ideal condition would require an accurate record of the history of all legal systems as its material whereas analytical school requires only the existing legal systems. Its aim is to show how a given rule came to be what it is whereas analytical school answers „why it is what it is?‟ It uses evolutionary history and hundreds of legal systems to as its subject-matter whereas analytical school examines the available subject-matter, its structure, and rules in order to reach its principles and theories by analysis.
Comparison of Analytical School with Other Schools of Jurisprudence (Cont…) vs. Ethical School School 2. Analytical vs. Ethical jurisprudence deals with the law as it ought to be in an ideal state whereas Analytical jurisprudence deals with law as it is. It investigates the role of morality in law whereas the analytical schools separates law from morality. It concerns itself with the relation of law to t o certain ideals which law is meant to achieve achieve whereas analytical school adheres to the analysis of existing system.
Criticism
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. 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 necessaril y commands. Some laws prescribe action but bu t 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 ele ment in law which implies implie s 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 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 schools of thoughts in jurisprudence is necessitated which shall embrace all emerging trends and tackle the existing challenges resolutely.
Conclusion
Jurisprudence, in its existence existence as a discrete discipline of social 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, it‟s 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 laws and international laws laws are growing prominent everyday, 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.
Bibliography Jurisprudence e , Irfan Law Books R.W.M. Dais (2011), Jurisprudenc Publishers, Lahore. Jurisprudence e (1832/1995), The Province of Jurisprudenc Austin, John (1832/1995), W. Rumble (ed.), Cambridge University Press. Determined , W. Bentham, Jeremy (1970), Of Laws in General , (H.L.A. Hart, ed., London). Jurisprudence‟ e‟ , London Stevens & Llyod (1979), „Introduction of Jurisprudenc Sons. Cotterrell, Roger (2003), The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed . (London: LexisNexis). Bryan A. Garner, (2009), „ Black‟s Law Dictionary‟, Ninth Edition.
Web Resources
http://www.plato.stanford.edu/entries/austin-john/ http://www.en.wikipedia.org/wiki/John_Aust http://www.en.wi kipedia.org/wiki/John_Austin_(legal_philosop in_(legal_philosop her) http://www.lsolum.typepad.com/legal http://www.lsolum .typepad.com/legal_theory_lexicon/2004/05 _theory_lexicon/2004/05 /legal_theory_le_4.html http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html http://www.ebooksread.com/authors-eng/n-m-nikolaimikhailovich-korkunov/general-theory-of-law-goo/page-37general-theory-of-law-goo.shtml http://www.scribd.com/Redmax!! http://www.scribd.com/Redmax
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Questions & Answers
