Analytical Analytical School of School of

JurisprudenceJurisprudenceAltaf Ahmed SheikhAltaf Ahmed Sheikh

LLB Part-ILLB Part-IQuaid-e-Azam Law Quaid-e-Azam Law

College, Lahore.College, Lahore.

By:

IntroductiIntroductionon

Jurisprudence was the first of the social sciences to Jurisprudence was the first of the social sciences to be born. It’s province has been determined and re-be born. It’s province has been determined and re-determined because the nature of the subject is that determined because the nature of the subject is that no delineation of its scope can be regarded as final. no delineation of its scope can be regarded as final. On torts or contracts, for example, a student may be On torts or contracts, for example, a student may be recommended to read any of the standard textbooks recommended to read any of the standard textbooks with the assurance that, whichever book he does with the assurance that, whichever book he does read, he will derive much the same idea as to what read, he will derive much the same idea as to what the subject is about. With jurisprudence this is not the subject is about. With jurisprudence this is not so. Books called ‘jurisprudence’ vary so widely in so. Books called ‘jurisprudence’ vary so widely in subject matter and treatment that the answer to the subject matter and treatment that the answer to the question, what is jurisprudence?, will vary in almost question, what is jurisprudence?, will vary in almost each and every book.each and every book.(Extracted from R.W.M. Dias’ book ‘Jurisprudence’)(Extracted from R.W.M. Dias’ book ‘Jurisprudence’)

JurisprudenceJurisprudence DerivationDerivation

From Latin word From Latin word ‘jūris prūdentia’‘jūris prūdentia’, first used in , first used in 1628.1628.

JURISJURIS PRUDENTIA PRUDENTIA

of Lawof Law Proficiency, Wisdom, Proficiency, Wisdom, KnowledgeKnowledge

Wisdom/Knowledge of LawWisdom/Knowledge of Law

JurisprudenceJurisprudence

MeaningMeaning Literal MeaningLiteral MeaningAccording to Oxford Advanced Learners’ DictionaryAccording to Oxford Advanced Learners’ Dictionary;;

““Jurisprudence is the scientific study of Jurisprudence is the scientific study of law.”law.”

Legal MeaningLegal Meaning

According to Black’s Law Dictionary (9According to Black’s Law Dictionary (9thth Edition) Edition);;1.“Jurisprudence is the study of the first

principles of the law of nature, the civil law, and the law of nations.”

2.“More modernly, the study of the general or fundamental elements of a particular legal

system, as opposed to its practical and concrete details.”

DefinitionDefinition Jurisprudence is a name given to certain type of Jurisprudence is a name given to certain type of

investigation into law and investigation of an investigation into law and investigation of an abstract, general or theoretical in nature which seeks abstract, general or theoretical in nature which seeks to lay the essential principles of law and legal system.to lay the essential principles of law and legal system.

(John Salmond 1862-1924)(John Salmond 1862-1924)

Jurisprudence is an opportunity for the lawyer to Jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns bring theory and life into focus, for it concerns human thought in relation to the social existence.human thought in relation to the social existence.

(Prof. R.W.M. Dias 1921-2009)(Prof. R.W.M. Dias 1921-2009)

Jurisprudence is a science of law in general. It does not Jurisprudence is a science of law in general. It does not confine itself to any particular system of law but applies confine itself to any particular system of law but applies to all the systems of law or to most of them. It gives the to all the systems of law or to most of them. It gives the general ideas, conception and fundamental principles on general ideas, conception and fundamental principles on which all or most of the systems of laws of the world are which all or most of the systems of laws of the world are based.based.

(Robert C. Clark 1944 -)(Robert C. Clark 1944 -)

Schools of JurisprudenceSchools of Jurisprudence

What is a School of thought?What is a School of thought?

““School of thought is a principle or School of thought is a principle or body of principles accepted as body of principles accepted as

authoritative and advocated by one or authoritative and advocated by one or more scholars belonging to a specific more scholars belonging to a specific

discipline.”discipline.”

ExampleExample: : Four Schools of thought in Islamic Four Schools of thought in Islamic Shariah (Hanfi, Shafi, Hanbali, Maliki), Darwin’s Shariah (Hanfi, Shafi, Hanbali, Maliki), Darwin’s School of Evolution, etc.School of Evolution, etc.

Major Schools of Major Schools of JurisprudenceJurisprudence

Jurisprudence

Analytical SociologicalComparativeEthicalHistorical

Traditional

Modern

Analytical School of Analytical School of JurisprudenceJurisprudence

1. 1. Central IdeaCentral Idea:: Law as it exists i.e. Law as it is, regardless of good or bad, past or Law as it exists i.e. Law as it is, regardless of good or bad, past or

future.future.

““A law, which actually exists, is a law, though we A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, happen to dislike it, or though it vary from the text,

by which we regulate our approbation and by which we regulate our approbation and disapprobation.”disapprobation.”

(Austin 1832/1995: Lecture V, p. 157)(Austin 1832/1995: Lecture V, p. 157)

2. 2. Different NamesDifferent Names:: Positive SchoolPositive School, , because because it focused on ‘it focused on ‘positumpositum’ ’

(Latin) which means ‘as it is.’(Latin) which means ‘as it is.’ English SchoolEnglish School, , becausebecause this school was dominant this school was dominant

in England.in England. Austinian SchoolAustinian School,, becausebecause it was founded by John it was founded by John

Austin.Austin.

Origin:Origin: Imperative concept of law was first proposed Imperative concept of law was first proposed

by Bentham during his life time (1742-1832) by Bentham during his life time (1742-1832) but his work remained unpublished till 1945.but his work remained unpublished till 1945.

Prof. Dias points that until recently John Prof. Dias points that until recently John Austin used to be styled the “father of the Austin used to be styled the “father of the English Jurisprudence”, but it is now clear English Jurisprudence”, but it is now clear from a work of Bentham first published in from a work of Bentham first published in 1945 that it is he, if anyone, who deserved 1945 that it is he, if anyone, who deserved such a title.such a title.

However, John Austin is considered the However, John Austin is considered the de de factofacto originator of this school of originator of this school of jurisprudence.jurisprudence.

Chief Exponents of Chief Exponents of Analytical School of Analytical School of

JurisprudenceJurisprudence 1. Jeremy Bentham (1742-1832)1. Jeremy Bentham (1742-1832) 2. John Austin (1790-1859)2. John Austin (1790-1859) 3. Sir William Markby (1829-1914)3. Sir William Markby (1829-1914) 4. Sheldon Amos (1835–1886)4. Sheldon Amos (1835–1886) 5. Thomas Erskine Holland (1835–1926)5. Thomas Erskine Holland (1835–1926) 6. John Salmond (1862–1924) 6. John Salmond (1862–1924) 7. Herbert Lionel Adolphus7. Herbert Lionel Adolphus HartHart (1907- (1907-

1992)1992) 8. Horace Gray (1828-1902)8. Horace Gray (1828-1902) 9. Wesley Newcomb Hohfeld (1879-1918)9. Wesley Newcomb Hohfeld (1879-1918) 10. Hans Kelsen (1881-1973)10. Hans Kelsen (1881-1973) 11. Nikolai Mikhailovich Korkunov (1853-11. Nikolai Mikhailovich Korkunov (1853-

1904)1904)

Scope of Analytical Scope of Analytical SchoolSchool

Scope of analytical school of jurisprudence can be observed as follows;(i) Analysis of the legal system and legal concepts such as Right, Duty etc.(ii) Analysis of the relation between civil law and other forms of law.(iii) Analysis of the legal structure of a state and administration of justice.(iv) In depth investigation into the actual sources of law.(v) Investigation of the theory of legislation, precedents and customary law.(vi) An inquiry into the scientific arrangement of law into distinct departments along with an analysis of distinctions on which the division is based.(vii) An investigation of the theory of legal liability in civil and criminal cases.(viii) An examination of all other relevant legal concepts.(ix) Worldwide legal education today owes its basis to analytical school of jurisprudence.

Utility of Analytical SchoolUtility of Analytical School

Analytical school of jurisprudence explains in Analytical school of jurisprudence explains in detail the complex legal concepts such as ‘Law’ detail the complex legal concepts such as ‘Law’ itself, ‘State’, ‘possession’ etc.itself, ‘State’, ‘possession’ etc.

It provides analysis of the various legal It provides analysis of the various legal systems of the world.systems of the world.

It elaborates the structure of a legal system.It elaborates the structure of a legal system. It provides a logical basis and helps determine It provides a logical basis and helps determine

the purpose of law.the purpose of law. It provides answer to the question It provides answer to the question ‘Why is it ‘Why is it

so?’so?’ It separates law from morality.It separates law from morality. It enables lawyers and judges to interpret law It enables lawyers and judges to interpret law

with logic and efficacy for smooth functioning with logic and efficacy for smooth functioning of a legal system.of a legal system.

Views of Prominent JuristsViews of Prominent Jurists 1.1. Jeremy Bentham (1742-1832)Jeremy Bentham (1742-1832) ““Law is an assemblage of signs, declarative of Law is an assemblage of signs, declarative of

volition, conceived or adopted by the sovereign volition, conceived or adopted by the sovereign in a state, concerning the conduct to be in a state, concerning the conduct to be observed in a certain case by a certain person observed in a certain case by a certain person or class of persons who in the case in question or class of persons who in the case in question are supposed to be the subject to his power.”are supposed to be the subject to his power.”

Bentham’s theory contains key concepts viz. Bentham’s theory contains key concepts viz. Sovereignty, Command and Sanctions.Sovereignty, Command and Sanctions.

Bentham believed that there was the possibility Bentham believed that there was the possibility of complete scientific codification of law.of complete scientific codification of law.

Bentham was against the judge-made law.Bentham was against the judge-made law. Bentham attributed the element of ‘utility’ to Bentham attributed the element of ‘utility’ to

law. He defined utility as, law. He defined utility as, “the property of a “the property of a thing to prevent some evil or to produce some thing to prevent some evil or to produce some good.”good.”

Views of Prominent Jurists Views of Prominent Jurists (continued…)(continued…)

2.2. John Austin (1790-18569)John Austin (1790-18569) Imperative theory of law states;Imperative theory of law states;

““Law is the Law is the generalgeneral commandcommand of of sovereignsovereign enforceableenforceable with with sanctionssanctions.”.”

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

Austin divided laws into two kinds;Austin divided laws into two kinds;A)A) ‘Laws Properly So Called’ or Positive Law. E.g. PPC, QSO, etc. ‘Laws Properly So Called’ or Positive Law. E.g. PPC, QSO, etc.B)B) ‘Laws Improperly So Called’ or Positive Morality. E.g. Religious ‘Laws Improperly So Called’ or Positive Morality. E.g. Religious Rules, Moral Rules, Customs etc.Rules, Moral Rules, Customs etc.

Austin attributed three elements with ‘positive law’ which are; Austin attributed three elements with ‘positive law’ which are; i)i) Command Commandii)ii) Sovereign Sovereigniii)iii) Sanction Sanction

Cont…Cont…

i) i) CommandCommand::““Commands are expression of desires given by Commands are expression of desires given by

superiors to inferiors.”superiors to inferiors.”ii)ii) Sovereign:Sovereign:

““A Sovereign is any person or body of persons A Sovereign is any person or body of persons whom the bulk of a political society habitually obeys but whom the bulk of a political society habitually obeys but who does not habitually obey any other (earthly) person or who does not habitually obey any other (earthly) person or institution. .”institution. .”

A sovereign may be an individual person, e.g. King, A sovereign may be an individual person, e.g. King, Queen, Sultan etc, or a group of persons, e.g. Parliament, Queen, Sultan etc, or a group of persons, e.g. Parliament, Congress, House of Lords etc.Congress, House of Lords etc.

Austin thought that all independent political societies, by Austin thought that all independent political societies, by their nature, have a sovereigntheir nature, have a sovereign..

iii)iii) Sanction:Sanction:““An evil or punishment attached to a command.” An evil or punishment attached to a command.”

E.g. Fine, Imprisonment, etc.E.g. Fine, Imprisonment, etc.

3. John Salmond (1862–1924)3. John Salmond (1862–1924) “ “ Jurisprudence is the science of civil law. Jurisprudence is the science of civil law.

By law he means the law of the land.”By law he means the law of the land.” Salmond makes a distinction between the use of term Salmond makes a distinction between the use of term

jurisprudence in the ‘jurisprudence in the ‘generic’generic’ and ‘ and ‘specific’specific’ sense. sense.A) A) Generic:Generic: deals with basic principles governing all deals with basic principles governing all legal systems of the world. E.g. ‘legal systems of the world. E.g. ‘Audi alteram palteram’Audi alteram palteram’B) B) Specific:Specific: deals with one particular legal system. E.g. deals with one particular legal system. E.g. EnglandEngland

Salmond believes in the consideration of concepts of Salmond believes in the consideration of concepts of justice and the relationship of law and justice.justice and the relationship of law and justice.

It investigates the real value of existing legal institutions It investigates the real value of existing legal institutions and an exposition of desirable of changes in the law.and an exposition of desirable of changes in the law.

Views of Prominent Jurists Views of Prominent Jurists (continued…)(continued…)

4. Thomas Erskine Holland (1835–1926)4. Thomas Erskine Holland (1835–1926) ““Jurisprudence is the formal science of positive Jurisprudence is the formal science of positive

law.”law.” Holland follows the definition given by Austin Holland follows the definition given by Austin

with addition of just one word i.e. ‘Formal’.with addition of just one word i.e. ‘Formal’. Formal means concerned with form and Formal means concerned with form and

structure of a legal system.structure of a legal system. Holland believes that jurisprudence does not Holland believes that jurisprudence does not

deal with the actual material contents of law but deal with the actual material contents of law but with its fundamental conceptions.with its fundamental conceptions.

E.g. Concept of ownership, not its legal E.g. Concept of ownership, not its legal procedure. procedure.

Views of Prominent Jurists Views of Prominent Jurists (continued…)(continued…)

Comparison of Analytical Comparison of Analytical School with Other Schools of School with Other Schools of

JurisprudenceJurisprudence 1. 1. Analytical vs. Historical SchoolAnalytical vs. Historical School Historical school in its ideal condition would Historical school in its ideal condition would

require an accurate record of the history of require an accurate record of the history of all legal systems as its material whereas all legal systems as its material whereas analytical school requires only the existing analytical school requires only the existing legal systems. legal systems.

Its aim is to show how a given rule came to Its aim is to show how a given rule came to be what it is whereas analytical school be what it is whereas analytical school answers ‘why it is what it is?’answers ‘why it is what it is?’

It uses evolutionary history and hundreds of It uses evolutionary history and hundreds of legal systems to as its subject-matter whereas legal systems to as its subject-matter whereas analytical school examines the available analytical school examines the available subject-matter, its structure, and rules in subject-matter, its structure, and rules in order to reach its principles and theories by order to reach its principles and theories by analysis.analysis.

2. 2. Analytical vs. Ethical SchoolAnalytical vs. Ethical School Ethical jurisprudence deals with the law as it Ethical jurisprudence deals with the law as it

ought to be in an ideal state whereas ought to be in an ideal state whereas Analytical jurisprudence deals with law as it is.Analytical jurisprudence deals with law as it is.

It investigates the role of morality in law It investigates the role of morality in law whereas the analytical schools separates law whereas the analytical schools separates law from morality. from morality.

It concerns itself with the relation of law to It concerns itself with the relation of law to certain ideals which law is meant to achieve certain ideals which law is meant to achieve whereas analytical school adheres to the whereas analytical school adheres to the analysis of existing system.analysis of existing system.

Comparison of Analytical School with Comparison of Analytical School with Other Schools of JurisprudenceOther Schools of Jurisprudence (Cont…) (Cont…)

CriticismCriticism No legal system exists in a vacuum; hence cannot be fully No legal system exists in a vacuum; hence cannot be fully

understood by focusing only on the law itself. Modern trends understood by focusing only on the law itself. Modern trends suggest the blending of socio-economic factors in the study suggest the blending of socio-economic factors in the study of jurisprudence.of jurisprudence.

Analytical School conflicts with the usage of the term ‘law’ as Analytical School conflicts with the usage of the term ‘law’ as it does not include customary law, international law and it does not include customary law, international law and constitutional law in its domain. constitutional law in its domain.

Bentham was enemy of the judge-made law (Judicial Bentham was enemy of the judge-made law (Judicial Precedents). Today, precedents serve as an important tool in Precedents). Today, precedents serve as an important tool in entire legal system.entire legal system.

All laws are not necessarily commands. Some laws prescribe All laws are not necessarily commands. Some laws prescribe action but without are sanctions such as ‘repealing’, action but without are sanctions such as ‘repealing’, ‘declaratory’ laws.‘declaratory’ laws.E.g. A law that gives a citizen right to vote, etc.E.g. A law that gives a citizen right to vote, etc.

The analytical school disregards the moral element in law The analytical school disregards the moral element in law which implies that even unjust law is a law.which implies that even unjust law is a law.

Analytical school does not take into account legal change. It Analytical school does not take into account legal change. It takes for granted the perfection of a legal system and takes for granted the perfection of a legal system and proceeds to explain its fundamentals. However, change is proceeds to explain its fundamentals. However, change is undoubtedly a permanent factor in all walks of life.undoubtedly a permanent factor in all walks of life.

My Point of ViewMy Point of View Jurisprudence, as a discipline of Jurisprudence, as a discipline of

research, has a vast scope and it shall research, has a vast scope and it shall not be limited by any attempt at fixing not be limited by any attempt at fixing its external boundaries. Any theory its external boundaries. Any theory which confines the jurisdiction of which confines the jurisdiction of jurisprudence reflects narrow vision and jurisprudence reflects narrow vision and conservative approach. Thus, a synthesis conservative approach. Thus, a synthesis of more than one schools of thoughts in of more than one schools of thoughts in jurisprudence is necessitated which shall jurisprudence is necessitated which shall embrace all emerging trends and tackle embrace all emerging trends and tackle the existing challenges resolutely.the existing challenges resolutely.

ConclusionConclusion Jurisprudence, in its existence as a discrete discipline Jurisprudence, in its existence as a discrete discipline

of social science owes its birth largely to the of social science owes its birth largely to the analytical school. It has succeeded in resolving much analytical school. It has succeeded in resolving much of the complexities faced by the jurists, lawyers and of the complexities faced by the jurists, lawyers and judges in the early stages of its development. judges in the early stages of its development. However, it’s strict adherence to the limited domain However, it’s strict adherence to the limited domain of law ‘as it is’ restricts it from evolving into an all-of law ‘as it is’ restricts it from evolving into an all-inclusive school of thought. The age of information inclusive school of thought. The age of information technology and globalization where cyberspace laws technology and globalization where cyberspace laws and international laws are growing prominent and international laws are growing prominent everyday, requires analytical school to review its everyday, requires analytical school to review its doctrine and extend its spectrum in order to doctrine and extend its spectrum in order to accommodate the missing factors which presently accommodate the missing factors which presently earn itself strongest criticism from the jurists of the earn itself strongest criticism from the jurists of the other schools of thought.other schools of thought.

BibliographyBibliography R.W.M. Dais (2011), R.W.M. Dais (2011), JurisprudenceJurisprudence, Irfan Law , Irfan Law

Books Publishers, Lahore. Books Publishers, Lahore. Austin, John (1832/1995), Austin, John (1832/1995), The Province of The Province of

Jurisprudence DeterminedJurisprudence Determined, W. Rumble (ed.), , W. Rumble (ed.), Cambridge University Press.Cambridge University Press.

Bentham, Jeremy (1970), Bentham, Jeremy (1970), Of Laws in GeneralOf Laws in General, , (H.L.A. Hart, ed., London).(H.L.A. Hart, ed., London).

Llyod (1979), Llyod (1979), ‘Introduction of Jurisprudence’‘Introduction of Jurisprudence’, , London Stevens & Sons.London Stevens & Sons.

Cotterrell, Roger (2003), Cotterrell, Roger (2003), The Politics of The Politics of Jurisprudence: A Critical Introduction to Legal Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edPhilosophy, 2nd ed. (London: LexisNexis).. (London: LexisNexis).

Bryan A. Garner, (2009), ‘Bryan A. Garner, (2009), ‘Black’s Law Black’s Law Dictionary’, Dictionary’, Ninth Edition.Ninth Edition.

Web ResourcesWeb Resources http://www.plato.stanford.edu/entries/austin-johnhttp://www.plato.stanford.edu/entries/austin-john

// http://www.en.wikipedia.org/wiki/John_Austin_(lehttp://www.en.wikipedia.org/wiki/John_Austin_(le

gal_philosopher)gal_philosopher) http://www.lsolum.typepad.com/legal_theory_lexihttp://www.lsolum.typepad.com/legal_theory_lexi

con/2004/05/legal_theory_le_4.htmlcon/2004/05/legal_theory_le_4.html http://www.austlii.edu.au/au/journals/MurUEJL/2http://www.austlii.edu.au/au/journals/MurUEJL/2

005/9.html005/9.html http://www.ebooksread.com/authors-eng/n-m-nikhttp://www.ebooksread.com/authors-eng/n-m-nik

olai-mikhailovich-korkunov/general-theory-of-law-olai-mikhailovich-korkunov/general-theory-of-law-goo/page-37-general-theory-of-law-goo.shtmlgoo/page-37-general-theory-of-law-goo.shtml

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