Analytical School of Jurisprudence

1. Bentham started the school by attacking natural law. He was a legal reformer who disliked loose moral reasoning and uncertain law. Instead of judging law by appeals to nature or morality, he wanted law to be clear, written and codified, so that an ordinary person could read and understand it.
2. For Bentham, law is the command of the State. Therefore, its legal validity, which means its standing as law, does not depend on morality. A law is law because the State enacted it, and we judge it afterwards by how useful it is.
3. Expository and censorial jurisprudence: Describing the law is a different task from criticising it. This distinction follows from the point above. The expositor describes the law as it is (de lege lata). The censor asks what the law ought to be (de lege ferenda) and proposes reforms. Bentham said that jurisprudence as a science must be expository. However, he did not tell lawyers to stop criticising bad law. He told them to keep the two tasks apart.
4. Principle of utility:

   The test for criticising a law is the happiness it produces. Censorial jurisprudence needs a test, and Bentham chose the greatest happiness of the greatest number. He used this principle to reform legislation, and not as a source of law. A statute stays valid even if it fails the test, but it can then be criticised.

5. Codification:

   Written law makes the law certain. The same concern for clarity led Bentham to codification, which means arranging the law in a written and systematic code. He believed that unwritten, judge-made law, which is the common law, is uncertain and out of reach of ordinary people. He is credited with coining the word, and his ideas influenced the drafting of the Indian Penal Code.

6. Criticism:

   Utility is hard to measure, and it can overlook justice. Happiness differs from person to person. In addition, a minority may suffer for the benefit of the majority, and a law with no moral limits can become oppressive. Bentham also never completed a full theory of law. Austin took that task forward.

1. Austin took Bentham's idea of law as a command and built a complete theory from it. His book The Province of Jurisprudence Determined (1832) marks the start of modern legal positivism. His theory is called the Command Theory or the Imperative Theory.
2. Definition:

   Law is the command of a sovereign, backed by sanction. Austin limited the word "law" to positive law, which means law laid down by a sovereign. From this definition, he drew four elements: command, sovereign, duty and sanction. If one of them is missing, the rule is not law in the strict sense.

3. The four elements work together.
   • A command is an order from a superior, such as a law against theft.
   • The sovereign is the supreme authority that issues it. The people habitually obey the sovereign, it obeys no one else, and it is legally unlimited.
   • When a command is issued, a duty arises, which is a legal obligation, such as the duty to pay tax.
   • A sanction is the punishment for disobedience. Austin called it the backbone of law, because without it the command loses its binding force.
4. According to Austin, positive morality is not law. Rules that social opinion enforces, such as etiquette, are not commands of a sovereign. Therefore, Austin called them positive morality and kept them apart from positive law.
5. General and particular jurisprudence:
   • General jurisprudence deals with principles common to all legal systems, such as right, duty and sanction.
   • Particular jurisprudence deals with the law of one country.
6. Merits:

   He made the study of law clear and precise. He separated law from morality, and in this way he gave positivism its foundation.

7. Criticism:

   The definition is too narrow for modern law. There are five main problems:

   • An unlimited sovereign does not fit constitutional systems. In Kesavananda Bharati v. State of Kerala (1973), the Indian Supreme Court held that Parliament cannot change the basic structure of the Constitution.
   • The theory cannot explain customary law, which exists before any command. Austin answered that a custom becomes law when the courts adopt it, but the custom was already followed before that.
   • It ignores judge-made law, which develops through precedent and not through commands.
   • It denies that international law is law. Austin called it "positive international morality".
   • It gives too much weight to sanction, since many laws confer rights or powers and do not punish anyone.

These weaknesses led Hart to rebuild the theory.

1. Hart rebuilt the school by fixing Austin's weaknesses. He is the most refined modern positivist. He did not reject analytical jurisprudence. Instead, he improved it in his book The Concept of Law (1961).
2. Criticism of Austin: Command, sovereign and sanction are not enough. Hart made five points:
   • Law is more than a gunman's order backed by a threat. People may obey a gunman, but they do not call him a lawmaker.
   • Many laws are power-conferring, and not duty-imposing. The rules for making a will or a contract tell people how to create legal effects. They do not order anyone to do anything.
   • A modern sovereign is not unlimited.
   • A habit of obedience cannot explain how law continues. A new king can make law at once, before anyone has formed a habit of obeying him.
   • Judge-made and customary law are left out.
3. Law is a union of primary and secondary rules. Hart's answer starts from the two main problems with Austin's model. It fits only duty-imposing rules, and it cannot explain power-conferring rules or the continuity of law. So Hart replaced the model of commands with a model of rules in two layers. Primary rules tell people what to do. Secondary rules tell people how the primary rules are identified, changed and applied.
4. Primary rules: They impose duties, and Austin's theory fits only these. The laws against theft and murder are examples. They tell people what they must or must not do, and Austin looked only at this kind of rule. Hart said that a small and close-knit society can live with primary rules alone. However, such a system has three defects:
   • Uncertainty: there is no way to settle doubt about what the rules are or how far they reach.
   • Static character: there is no way to change the rules deliberately or quickly when circumstances change.
   • Inefficiency: there is no authority to decide whether a rule was broken, so disputes are settled only by private action and social pressure.
5. Secondary rules: Each one cures one of these defects. Secondary rules are rules about rules. They provide ways to identify, change and apply the primary rules:
   • Rule of recognition: it cures uncertainty. It is the test of legal validity, and it shows how to identify valid law. In India, the Constitution, statutes and precedents are recognised as law. This rule takes the place of Austin's sovereign.
   • Rule of change: it cures the static character of the system. It shows how law is made or repealed, such as the amendment procedure in Article 368.
   • Rule of adjudication: it cures inefficiency. It shows who decides disputes and whether a rule was broken, which is the work of the courts.

   In other words, primary rules tell people what to do, and secondary rules make that system of duties certain, changeable and enforceable. Hart therefore treated the union of the two as the mark of a legal system.

6. Internal and external aspects:

   People may follow law from fear, or accept it as a standard. The external view is close to Austin's picture of obedience through fear of punishment. In the internal point of view, a person accepts the rule as a standard for his own conduct. Hart said that officials must take this internal point of view toward the rule of recognition. However, the acceptance need not be moral. Austin missed this aspect.

7. Law and morality: They are separate, but law has a minimum content of natural law. Hart kept law and morality apart. However, he accepted that any legal system that is to survive needs rules against violence and theft.
8. Open texture: Rules do not settle every case. A rule that says "no vehicles in the park" clearly covers a car, which is in the core of the rule. However, a bicycle or an ambulance falls in the penumbra, the area of doubt. In such cases, the judge must use discretion.
9. Contribution:

   Hart made positivism fit modern constitutional systems. He explained judge-made and customary law. He also explained international law as a primitive system with few secondary rules, and not as no law at all.

10. Criticism:

    Hart's theory has three weaknesses.

    • The rule of recognition is abstract and unwritten.
    • It still separates law from morality.
    • Rules do not settle hard cases. Ronald Dworkin argued in Taking Rights Seriously (1977) that judges use principles as well as rules.

1. Kelsen approached the problem differently: He wanted a pure science of law. He was an Austrian jurist and drafted the Austrian Constitution of 1920. His Pure Theory of Law (1934) studies law free of politics, sociology, ethics, morality and psychology.
2. Law is a system of norms, and not a command. A norm says how people ought to behave, which Kelsen expressed with the German word Sollen, meaning "ought". For example, "if theft is committed, punishment ought to be imposed". The focus is on the legal consequence, and not on moral guilt.
3. Sovereignty is a political idea, and not a legal one. Since law is a system of norms, it does not need a supreme commander. Instead, it comes from a basic norm.
4. Grundnorm: The basic norm gives validity to all other norms. It is hypothetical, which means it is presupposed and not written. It can be put as "the Constitution ought to be obeyed". The Constitution gets its validity from it, and every other law gets its validity from the Constitution.
5. Hierarchy of norms (Stufenbau): Each norm gets its validity from the one above it. The order is Grundnorm, Constitution, statutes, delegated legislation, administrative orders and judicial decisions. Therefore, a lower norm that contradicts a higher one is invalid. In India, for example, courts strike down rules that go beyond the Act under which they were made, which are called ultra vires rules, meaning beyond the power given.
6. Sanction and morality: A sanction is a legal consequence, and law is separate from morality. Like the other analytical jurists, Kelsen said that an unjust law is still law if it was validly made.
7. The Grundnorm in practice: Pakistan's courts used it to justify a military takeover. Kelsen said that a legal order must be effective as a whole, and that when a revolution succeeds, a new Grundnorm takes the place of the old one. This is the principle of effectiveness. In State v. Dosso (1958), the Federal Court of Pakistan applied this idea and held that a successful revolution creates a new legal order. The Supreme Court overruled the decision in Asma Jilani v. Government of the Punjab (1972). The cases show how the Grundnorm can be used to justify any government that holds power.
8. Contribution:

   He gave the strictest form of analytical jurisprudence. He introduced a norm-based legal system and explained legal validity in constitutional terms.

9. Criticism: Kelsen's theory has four weaknesses.
   • The Grundnorm is fictional.
   • The theory is too formal and ignores social reality.
   • It leaves out justice and morality.
   • It ignores the creative role of judges.