Introduction to analytical school
The main features/essential characteristics of the Analytical School of Jurisprudence are as under:- The jurists of analytical school consider that the most important aspect of the law is its relation to the State Law is treated as an imperative or command emanating from the state. For this very 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 the law as it exists, i.e. ‘ as it is (positus). For this reason, this school is termed a positive school.
Its founder is John Austin who was the professor of jurisprudence at the University of London. He is also considered as the father of English jurisprudence. He studied Roman Law in Germany.
There he was that Roman Law is very systematic and scientific whereas English Law is not systematic and scientific. So he tried to make English law in a good manner.
For this purpose, he wrote the book ‘Province of English Jurisprudence’. In this book, he defined English law and made it systematically.
Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals and the religion from the definition of the law.
Before Austin, the law was based upon customs and morals but Austin reduced all things from the definition of law. He divided law into two parts :
(i) Law propriety so-called
(ii) Law impropriety so-called.
It further divided into two parts:-
(1) Law of God (Divine Law)
(2) Law of Men ( Human Law) Law of God is also called divine law. It is a law set by God for human beings on earth. Men also make the law of men is made by men, so it is called human Law.
This law makes a relationship between persons and the Law. This law is imposed upon persons and is made by persons. Human law is further divided into two parts:-
(I) Positive Law
(II) Positive Moral Law
Positive Law is the main subject of jurisprudence. This classification can be seen as under-
Classification of Law according to analytical school
(A) Law propriety so-called
(b) Law impropriety so called
A.1) Law of God
A.2) Law of Men
A.2.i) Positive Law
A.2.ii) Positive moral Law Law of analogy law by Metaphor Law impropriety so-called:- There are certain laws, which are called impropriety laws e.g. Divine Law, Moral Law, and religious Law. But his law is not the subject of jurisprudence. This law is concerned only with the administrations of jurisprudence.
The law is the subject matter of jurisprudence. The analytical school of jurisprudence deals with the following matter:-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons, acts and intention, etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss ‘Command Theory’. He says that “Law is the command of the sovereign.” Sovereign here means a politically superior body or a determinate person or determinate body of persons like the king of the council.
The command of these persons shall be the law in the country. This law must be obeyed by certain persons. If it is not obeyed hen the order of these persons shall not be law. It means there must be politically inferior persons. If the command is disobeyed then the political superior should have the power to punish, those persons who have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts, we find that the following characteristics of Analytical School:-
(IV) Sanction Power.
This means the political superior person or a determinate person or body of person or intelligent persons. This may be compared with the kind or the head of state in the monarchy system and parliament in a democratic system.
There must be some order of the Sovereign. This order may be oral or written. The Sovereign which is followed by force is called command.
This command must be followed by some persons, it means the politically inferior persons who are under the control of the Sovereign, are under a duty to follow the order of the Sovereign.
There must be sanction or the power of force behind the command of the Sovereign and there is no force or sanction then such command shall not be law. The sovereign must have the power to punish those who do not obey this command.
Exclusions from law
In this way the above-mentioned things are essential then it will be the law. But Austin excluded some commands from the concept of the law. These are:-
If there is a command for the explanation of already existed law command shall not be the law.
The Repeal Law:
I there is a command for the repealing of already existed law then the second command shall not be law.
AUSTIN LAW (AUSTIN’S METHOD)
Austin adopted an analytical method that excluded all types of morals and religion from Law. His school is also called an analytical school or imperative school. Imperative means force behind the law.
CRITICISM OF ANALYTICAL SCHOOL
Various writers have criticized the command theory of Austin on the following ground:
Analytical school is based upon the law. According to Austin, the law does not include customs but we see that customs are a very important part of society. There were customs by which the society and later on state came into existence.
In-state also customs played an important role in the administration of justice. Even in modern times, customs play an important role in the formation of law. So we cannot ignore customs from the law.
Precedent means the decisions of the court, which are also called as the judge-made laws. The judge made laws because these laws were not the command of the Sovereign. These laws were not enforceable at that time, so he excluded these laws from his concept of the law.
There are certain conventions or methods, which are observed or followed by the coming generation. These conventions or methods, later on, take the form of law.
The become law afterward by their regular observance. In England, the base of English Law is conventions, which is very popular in the World. So we cannot ignore conventions. But Austin did not include conventions in his concept of law.
International Law Ignored
Austin did not include international law in his law. According to his law, there is no Sovereign for enforcing international law. But in modern days we cannot exclude international law from the field of law because it plays an important role in maintaining peace and society at the international level. In other words, it is also a form of the municipal law of civil law.
Command Theory is not suitable
It is not easy to understand the ‘Commands Theory’ for common persons. Not all need to be enforceable or all common people should be considered as law. Only those commands which are related to law and order should be law.
It is difficult to separate those commands from others by the common people or persons. So this theory is not suitable in modern times. It is also an artificial theory haveing no sense in the modern world.
Only Power Is Not Necessary
According to the ‘Command Theory’, the law can be imposed only with the help of power, But we have the result of the tyrants or forced rules which were thrown away by the people of the French Revolution, of Panamaeto. Law can be enforced even without power if they are suitable for society.
The Command Theory has also excluded morals from the field of law. But we have observed that morals have also an important role in the formation of law. We cannot ignore morals from the law because laws are meant for the society and such laws must be according to the feelings of society. The feelings of society are based upon morals. So we can’t ignore morals from the field of law.
In this way the theory of command has been criticized and which is not considered as suitable in modern times. But we also can’t ignore the contribution of Austin for systematically giving he meaning of the law. He scientifically gives the concept of law. These views became the base for the coming writers, jurists, and philosophers. So we can say that Austin contributed a lot in the field of jurisprudence.
Wiki- Analytical jurisprudence