ASSIGNMENT ON

“ANALYTICAL SCHOOL OF
JURISPRUDENCE”

SUBMITED TO SUBMITED BY

S.M. MASUM BILLAH MD. BORHAN UDDIN

Professor, Faculty of law 5th batch, Faculty of law

Jagannath University. Jagannath University.

INTRODUCTION
The word jurisprudence was first used in 1628. It derived from the latin word ‘juris prudentia’, here
‘juris’ means ‘of law’ and ‘prudentia’ means wisdom, knowledge. So the word jurisprudence means
knowledge of law.

According to the oxford advanced learners dictionary, “jurisprudence is the scientific study of law”

According to the BLACK’S law dictionary, ”jurisprudence is the study of the first principles of the law of
nature, the civil law, and the law of nations.”

“more modernly, the study of the general or fundamental elements of a particular legal system, as
opposed to its practical and concrete details.”

Jurisprudence was the first of the social sciences to be 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 matter and treatment that the answer to the question, what is jurisprudence?, will
vary in almost each and every book.

Schools of jurisprudence:

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.

Major schools of jurisprudence are analytical school, historical school, philosophical school, sociological
school, realist school, natural law theory, ethical school, comparative school etc.

In this note, I’ll discuss about the analytical school of jurisprudence.

ANALYTICAL SCHOOL OF JURISPRUDENCE

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.”
 2. Different names:

Positive school:
Because it focused on “positum” (latin), which means ‘as it is.’

English school:
Because this school was dominant in england.

Austinian school:
Because it was founded by John Austin.

analytical jurisprudence is a legal theory that draws on the resources of

modern analytical philosophy to try to understand the nature of law. Since the boundaries of analytical
philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the
most influential writer in the modern school of analytical jurisprudence, though its history goes back at
least to Jeremy Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism. Indeed, it was the analytical jurists
who first pointed out that legal formalism is fundamentally mistaken as a theory of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when
referring to the aspects of legal systems. This was a philosophical development that rejected natural
law's fusing of what law is and what it ought to be.[15] David Hume famously argued in A Treatise of
Human Nature[1][16] that people invariably slip between describing that the world is a certain way to
saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic,
one cannot conclude that we ought to do something merely because something is the case. So analysing
and clarifying the way the world is must be treated as a strictly separate question to normative and
evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?";
"What is the relationship between law and power/sociology?"; and, "What is the relationship between
law and morality?" Legal positivism is the dominant theory, although there are a growing number of
critics, who offer their own interpretations.

Origin
Imperative concept of law was first proposed by Bentham during his life time (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 Bentam
2. John Austin
3. William Markby
4. Holland
5. Salmond
6. HLA Hart.

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.”

John Austin (1790-1859):

Imperative theory of law states;

“Law is the general command of sovereign enforceable with sanctions.”

John Austin is best known for his work developing the theory of legal positivism. He attempted to clearly
separate moral rules from “positive law”

Austin divided laws into two kinds:

1. “laws properly so called” or positive law. E.g. PPC, QSO etc.

2. “laws improperly so called” or positive morality. E.g. religious rules, moral rules, customs etc.
Austin attributed three elements with ‘positive law’ which are:

1. Command:
“Commands are expression of desires given by superior to inferiors.”

2. 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 any other person or institution.”

A sovereign may be an individual person, 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 societies, by their nature, have a sovereign.

3. Sanction:
“an evil or punishment attached to a command” e.g. fine, imprisonment etc.

John Salmond (1862-1924):

“ 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 jurisprudence in the generic and specific sense.