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APPROCHES OF APPROCHES OF JURISPRUDENCEJURISPRUDENCE
IMPERATIVE SCHOOLIMPERATIVE SCHOOL
HISTORICAL SCHOOLHISTORICAL SCHOOL
SOCIOLOGICAL SCHOOLSOCIOLOGICAL SCHOOL
REALIST SCHOOLREALIST SCHOOL
NATURAL LAW SCHOOLNATURAL LAW SCHOOL
ANALYTICAL SCHOOLANALYTICAL SCHOOL
Main exponents of this school are Main exponents of this school are BenthamBentham
AustinAustin
Holland Holland
GrayGray
SalmondSalmond
Kelson Kelson
Hart. Hart.
LAWLAW
LAWS PROPERLY SO CALLED
LAWS IMPROPERLY SO CALLED
LAWS SET BY GOD TO MEN
LAWS SET BY MEN TO MEN
LAWS BY ANALOGY
LAWS BY METAPHOR
LAWS SET BY MEN , NOT AS
POLITICAL SUPERIOR
LAWS SET BY MEN TO MEN AS POLITICAL SUPERIOR OR INPURSUANCE OF A RIGHT CONFERRED IN SUCH SUPERIOR [POSITIVE LAW] POSITIVE
MORALITY
ANALYTICAL SCHOOLANALYTICAL SCHOOL
ALSO KNOWN AS ENGLISH SCHOOLALSO KNOWN AS ENGLISH SCHOOL
IMPERATIVE SCHOOL – C. K. ALLENIMPERATIVE SCHOOL – C. K. ALLEN
GUN MAN THEORY – H.L.A HARTGUN MAN THEORY – H.L.A HART
POSITIVE SCHOOL OF LAW.POSITIVE SCHOOL OF LAW.
SYSTEMATIC JURISPRUDENCE – SALMOND.SYSTEMATIC JURISPRUDENCE – SALMOND.
The Analytical school was perhaps, the reaction The Analytical school was perhaps, the reaction against the Natural Law Theory, which was against the Natural Law Theory, which was based on morality and ethics. based on morality and ethics.
During the 19During the 19thth century Natural Law Theory was century Natural Law Theory was no more considered to be significant.no more considered to be significant.
The main reason for this was:The main reason for this was:
Influence of scientific methods upon social Influence of scientific methods upon social sciences including Jurisprudence.sciences including Jurisprudence.
It was Sir Henry Maine who coined It was Sir Henry Maine who coined this School as Analytical School.this School as Analytical School.
JOHN AUSTIN [1790-1859]JOHN AUSTIN [1790-1859]
John Austin – wrongly titled as the – Father of John Austin – wrongly titled as the – Father of English Jurisprudence.English Jurisprudence.
Born in 1790.Born in 1790. Early age entered in army – served for 5 years.Early age entered in army – served for 5 years. He was called to the Bar in 1818 – began He was called to the Bar in 1818 – began
practiced.practiced. In1826 he was appointed to the chair of In1826 he was appointed to the chair of
Jurisprudence in the University of London.Jurisprudence in the University of London. Immediately he left for Heidelberg and proceeded Immediately he left for Heidelberg and proceeded
to Germany to have first hand knowledge of to Germany to have first hand knowledge of German Law.German Law.
In 1829 he returned to England and In 1829 he returned to England and delivered series of lectures on delivered series of lectures on jurisprudence .jurisprudence .
In 1832 he published the volume entitled In 1832 he published the volume entitled “The Province of Jurisprudence “The Province of Jurisprudence Determined”.Determined”.
He died in 1859.He died in 1859.
Like his master Bentham, he reacted Like his master Bentham, he reacted mainly to the reform of English law.mainly to the reform of English law.
Starting point of Austin theory is his definition of Starting point of Austin theory is his definition of independent and politically organized independent and politically organized society and sovereign.society and sovereign.
He said , He said , ‘If a determinate human superior, not in a habit of obedience to a like superior, commands habitual obedience from a bulk of a society, such a society is politically organised and independent.’
Austin never said that all societies Austin never said that all societies are of this kind or description or that are of this kind or description or that all societies should be so organized all societies should be so organized or that such a society is better than or that such a society is better than others he only said that he is others he only said that he is interested in the laws of such interested in the laws of such societies.societies.
He defined Law as:He defined Law as:
““A rule laid down for the intelligent being A rule laid down for the intelligent being by an intelligent being having power over by an intelligent being having power over him”.him”.
If we analyze the content of the positive law we If we analyze the content of the positive law we find the following characteristics:find the following characteristics:
1.1. Law is a commandLaw is a command
2.2. Only general law is commandOnly general law is command
3.3. Sovereign is the main source of lawSovereign is the main source of law
4.4. There is sanction to enforce the lawThere is sanction to enforce the law
5.5. There is clear cut separation of law and morals.There is clear cut separation of law and morals.
Law as commandLaw as command
The notion law in command was advanced The notion law in command was advanced by Bodin and Hobbs. by Bodin and Hobbs.
It is said that Austin theory is based on It is said that Austin theory is based on this idea.this idea.
Command – different from request and Command – different from request and wishes.wishes.
It has a element of Fear.It has a element of Fear. Penalty for disobedience.Penalty for disobedience.
Two kinds of Commands:Two kinds of Commands:1.1. General Command – are issued for the General Command – are issued for the
guidance of a whole community.guidance of a whole community.
2.2. Particular command are issued for the Particular command are issued for the guidance of a particular community/ guidance of a particular community/ individual.individual.
• Only general commands are law .Only general commands are law .• General commands must also be General commands must also be
continuous and lawful. continuous and lawful.
Sanction for EnforcementSanction for Enforcement
Sanction is absolutely necessary to Sanction is absolutely necessary to enforce law.enforce law.
Sanction is the sole crux of Positive law.Sanction is the sole crux of Positive law. It denotes the fear of punishment in case It denotes the fear of punishment in case
of disobedience of the laws.of disobedience of the laws. There is no sanction behind the There is no sanction behind the
International law therefore Austin called it International law therefore Austin called it as a positive morality.as a positive morality.
CRITICISMCRITICISM
Sovereign is not only the source of law.Sovereign is not only the source of law.
Theory ignores custom.Theory ignores custom.
No Place for Judge made laws.No Place for Judge made laws.
It cannot be applied in the area of civil It cannot be applied in the area of civil law. law.
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