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.