The Analytical School Imperative Positive Teleological English Austinian John Austin

Alternate names Imperative, positive, teleological, English or Austinian School

The analytical school considers most important aspect of law to be its relation to state. It takes the law as given by the state, whose authority is unquestionable. As such it is known as Imperative school.

The jurists of this school are concerned with analysis of first principles of the law as they exist in the legal system. For this reason, this school is called the positive school. The school is in England and is referred to as English school. As the school was founded by Austin it is also called Austinian School.

The analytical school is positive in its approach to the legal problems of society. Its purpose is to analyse law without being concerned either with their historical origin or their ethical significance – the first principles of law. The emphasis on the systematic analysis of legal concept has resulted in the school termed as analytical.

The analytical school has made a strict distinction between positive law and ideal law; has analysed the concept of civil law and established its relationship with other forms of law. Positive law is a general rule of conduct laid down by a political superior to political inferior.

The school has taken into account the legal sources like, legislation, judicial precedent and customary law, and has investigated the claim of each of these sources from which law flows. The school also analyses the concept of legal rights and legal liability both civil and criminal. Other allied problems such as property, possession, contracts, trust, personality, intention, motive and negligence are also studied and analysed by the exponents of this school. The school favours codification of law.

Bentham and Austin are considered to be the founders of the analytical or positive school.

Though generally Austin is said to be ‘father of analytical school’.

Jeremy Bentham’s treaties “The limits of jurisprudence defined” were written in 1782, but reached the public only in 1945. His approach to sovereignty was similar to that of Austin. His definition of law was wide enough to cover subordinate legislation and administrative regulation. His analysis of rights and duty put forward, in an embryo, what was once thought to be the discovery of the 20^th century. He was bitterly opposed to the pretentions of natural law and natural right. Rights are not natural but are created by the law of state.

“The end of the State is maximum happiness and the maximum liberty”. He applied the test of utility and he wished to test every law to see, if it had led to the greatest happiness of the greatest number. Bentham attaches three conditions to his principles of utility.

It must be clear and precise

It must be the single and sufficient amount of motivation.
It must be applicable by means of moral calculus.

He was attempting to examine keenly the structure, conceptions and functioning of the legal system in order that outworn abuses may be swept away – that every privilege should be justified by utility. He analyses legal terms such as power, right prohibition, obligation and attempts to show what infact, they mean in the world practice.

According to Bentham – “a law may be defined as an assemblage, of signs, declarative of a violation conceived and adopted by the sovereign in a state concerning the conduct to be observed in certain cases by a certain persons or class of persons who in the case in question are supposed to be subject to his power”.

Bentham further says that the individual should be liberated from his bondage and restraints on his freedom. Once that is done the individual would be able to take care of himself. He emphasized on the theory ‘pain and pleasure’ and believed that the main function of law was to bring pleasure and avoid pain. He firmly believed in the introduction of a civil code as he had a hatred for judge made law. His desire for reform was based on the doctrine of utility.

The two sides of Bentham’s work each created a separate school – The pure analyst interested in the law as such, and the teleological writer interested in the ends which law should pursue.

Criticism: Overestimates the powers of the legislator (the sovereign).

John Austin (1790-1859) – “law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

Austin made distinction between “law properly so called”. And “Law improperly so called”. According to him, ‘law is the general command of the sovereign backed by sanction’

Types of law as per Austin:

Law set by God or Divine law and
Positive law set by men to men acting as political superior or in pursuance of rights conferred by political superior.
“Laws improperly so called” are those laws which are not set by political superiors, but which are laws by analogy.

Example: –

A law set and enforced by mere opinion
1. Laws of fashion
1. International Laws

Austin’s “Province of Jurisprudence Defined”

The central feature of Austin’s theory is of course, the notion of law as command of the sovereign. Anything that is not command is not law. Only general commands are law. And only commands emanating from sovereign are positive law.

There are five elements of his definition of positive law expressed as (1) wish, (2) sanctions,

(3) expression of wish, (4) generality and (5) a sovereign.

L = W + S + E + G + S. This insistence on law as commands has been a major focus of attention of attack on Austinian theory. Not only does it require the exclusion of customary, constitutional and international law from the fields of jurisprudence but it drives Austin to somewhat artificial conception of tacit commands, circuitous commands (when a sovereign’s desire to require obedience to the commands of his predecessors is affected by his refraining from repealing them) and of nullity of, say, a contract as constitutional sanction.

Bentham on the other hand, argues that commands are merely one of five methods by which the sovereign enacts law. In developing his (far more sophisticated) theory of structure of law, he distinguishes between law which command or prohibit certain conduct (imperative law) and those which permit certain conduct. Of laws in general Bentham is concerned with distinction between penal and civil laws. Every law has penal and a civil par; thus even in the case of title to property there is a penal element as Bentham puts: “let the proprietary subject then be a certain piece of land, a field, the offence of which consists in the wrongful occupation of this property will be any act in virtue of which the agent may be said to meddle with this field –

— the offence then being the act of meddling with the field, the act which is the object of the law the act commanded is the negative act of not meddling with the field.

In other words, the owner’s title is derived from general (penal) prohibition against meddling with the field. The owners himself, of course, is exempted from this prohibition. What Bentham seeks to show is that laws which impose no obligation or sanction are not complete law but merely parts of laws.

The chief work of Austin was to give a definiteness and precision to Bentham. Austin

therefore represents a combination of utilitarianism and juristic positivism.

Austin’s view may be discussed under three heads.

Basis of jurisprudence
Method of jurisprudence
Law and ethics
Basis of jurisprudence: Command of sovereign: the imperative definition of law. In the broadest sense in which the term law can be used, it signifies a command which obliges a person to a course of conduct. Being a command, it must issue from determinate person with the threat of displeasure if the rule is not obeyed. But every command does not create a law.
The method of jurisprudence: distinguishes the species which is of interest to the jurists’ Positive law – Positive law is laid down by the sovereign either mediately or immediately. It is a rule laid down by political superior for a political inferior. Austin’s theory of sovereignty: If a determinate human superior not in the habit of obedience to like superior receives habitual

obedience from bulk of a given society, that determinate superior is a sovereign in that society and the society is political and independent.

Austin believed that chief tool of jurisprudence was analysis.

Law and Ethics: Austin distinguished jurisprudence, the science of law that is (without reference to goodness or badness), from the science of legislation, which he based on the principle of utility. Unconsciously, the analysis laid down as supreme end of law an ideal of logical harmony. Law was treated as a coherent system based on certain fundamental principle from which the particular rules may be deduced. But any rule that could not be fitted into the analyst’s framework was dubbed an historical accident or a logical anomaly which would soon disappear.

· Types of commands as per Austin:

General – Generally to members of a class.
- Occasional/Particular – A specific act or forbearance.
- All laws are not commands. Laws which are not commands are:
  - Declaratory laws – Laws that explains existing laws.
  - Repealing laws (called permissive laws).
  - Imperfect laws – Moral obligation (Directive Principles of State Policy).
  - Laws that give only rights (and no duties).
  - Customary laws – from people and not sovereign.

Criticisms:

The main points of criticism against Austin’s theory are as follows:-

Customs ignored – ‘Law is the command of sovereign’, as Austin says, is not warranted by historical facts. In the early times, not the command of any superior, but customs regulated the conduct of the people. Even after coming of state into existence customs continued to regulate the conduct. Therefore, customs should also be included in the study of jurisprudence, but Austin ignored them.

The supporters of Austin’s theory say that his theory takes into consideration law as it exists in a developed society. The rules which existed prior to the existence of state might be the historical sources from which law was derived but when state comes into existence they continue only by the sanction of the sovereign and are given imperative force by him and in this way they are also commands.

Law conferring privileges – The law which is purely of a permissive character and confers only privileges, as the ‘Wills Act’, which lays down the method of drawing a testamentary document so that it may have legal effect, is not covered by Austin’s definition of law.

A modern advocate of Austin, Buckland, has tried to defend Austin’s theory by arguing that the statute as such and not a particular provision is a command. But, really speaking, such laws do not fit in Austin’s theory and it is a serious defect of it. Procedural law, in the same way, is not covered by Austin’s definition.

Judge-made Law – In Austin’s theory there is no place for judge-made law. In the course of their duty judges (in applying precedents and in interpreting the law) make law. Though an Austinian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the commands of the sovereign, nobody, in modern times, will deny that judges perform a creative function and Austin’s definition of law does not include it.
Conventions – Conventions of the constitution, which operate imperatively, though not enforceable by Court, shall not be called law, according to Austin’s definition, although they are law and are a subject-matter of a study in jurisprudence.
Rules set by private persons – Austin’s view that ‘positive law’ includes within itself rules set by private persons in pursuance of legal rights is an undue extension because their nature is very vague and indefinite.

International law – Austin put International Law under positive morality along with the law of honour and the law of fashion. “The so called law of nations consists of opinions or sentiments current among nations generally. It, therefore, is not law properly so called.” The main ingredient of law lacking in International Law is sanction but this alone will not deprive it from being called law. Now nobody will accept that International Law is not law. Therefore, according to Austin’s definition, a very important branch of law shall be excluded from the study.
Command theory untenable – A modern theorist, Prof. Olivercona from Sweden has denied the applicability of the idea of command to law. He says that a command is not identical with a declaration of will. There is a difference between a command and the statement or declaration of a will. A command is always an act through which one person seeks to influence the will of another. Secondly, the idea of command (for law) in the present systems of governments is completely untenable. Command presupposes some determinate person who commands and another to whom the command is addressed. In modern times, the machinery of state remains always changing and it is run by a multitude of persons. Therefore, the idea of command does not apply in such systems.
It is artificial – The view that law is ‘command of the sovereign’ suggests as if the sovereign is standing just above and apart from the community giving his arbitrary commands. This view treats law as artificial and ignores its character of spontaneous growth. The sovereign is an integral part of the community or state and his commands are the commands of the organised community. Most of the theories regarding state, in modern times, say that the sovereignty does not remain in the shape in which it was conceived by the writers of past ages. They say that state itself is sovereign and law is nothing but the general will of the people. Therefore, the law cannot be said to be a command.
Sanction is not the only means to induce obedience – According to Austin’s view, it is the sanction alone which induces the man to obey law. It is submitted that it is not a correct view. Lord Bryce has summed up the motives as indolence, deference, sympathy, fear, and reason that induce a man to obey law. The power of the state is ration ultima – the force which is the last resort to secure obedience.
Relation to law and morals overlooked – According to Austin, ‘The science of jurisprudence is concerned with positive law, or with laws strictly so called, as considered without regard to their goodness or badness.’ In other words, law is not concerned with morals. But this is not a correct proposition. Law is not an arbitrary command as conceived by Austin but it is a growth of an organic nature. Dr. J. Brown correctly says that even the most despotic of legislators cannot think or act without availing himself of the spirit of his race and time.” Moreover, law has not grown as a result of blind forces but it has been developed consciously and has been directed towards a definite end. Thus, it is not completely devoid of ethical and moral elements. The words used for law in Latin and in many other continental languages support this view. The origin of the words ‘right’, ‘wrong’, and ‘duty’ etc. owe their origin to certain ethical notions. Austin overlooked this aspect of the law.

Criticism against command theory

Association of duty with command – Prof. Olivecrona points out that duties are ‘ought’ propositions which are phrased imperatively. (‘You must’ or ‘You shall’), and it is a non sequitur to suppose that such phraseology of itself implies command.
Idea of command inapplicable in modern society – Command presupposes some determinate person who commands. In modern times, the machinery of State remains always changing and it is run by a number of persons. Therefore, law cannot be treated as the command of anyone in particular.

Law and command – The function of a law is to regulate future conduct indefinitely and to serve as a standard by which to judge deviance: a command is more usually directed to a specified individual or individuals with reference to a particular act or forbearance and does not serve as a general standard of judgment.

Further, there are many laws which are not commands e.g. rule that no action to succeed when the limitation period has expired, or that merely defines what constitutes contract or murder, or power – (or privilege) conferring rules (e.g. power to make a will under the Wills Act, Article 32 of the Constitution, etc.). The term ‘command’ implies coercive character while these laws are of permissive character. Procedural laws, in the same way do not fit into the Austin’s definition of law. (However, Buckland has tried to defend Austin’s theory by arguing that the statute as such and not a particular provision to a command. Further, declaratory statutes could have been treated as repealing earlier commands, while repealing statutes may be said to create fresh claims and duties by their cancellation of earlier ones and so be said to command. Thus, Austin wrongly concluded that such laws were exceptions).

Inapplicability to modern social legislations – Duguit asserted that the notion of

command is inapplicable to modern social legislations, which do not command people but confer benefits, and which binds the State itself rather than the individual.

Conventions of the Constitution – These operate imperatively, though not enforceable by court, shall not be called law, according to Austin’s definition, although they are law and are a subject-matter of a study in jurisprudence.
Judge-made law – In Austin’s theory, there is no place for judge-made law. Although he emphasised that the judges act under the power delegated to them by sovereign. Therefore, they are commands (tacit) of the sovereign and judgments made by them are thus rules of positive law.

According to Salmond, judges are not administers or delegates of the crown, but they do create rules of positive law.

When Austin developed his theory of command, he took into account that legislature is supreme; he could not imagined about the judicial review. Under the present day context, judicial interpretation of laws has become an inevitable feature. Further, judicial precedents are binding laws while no body has commanded these.

Commands of a sovereign – It has been pointed out that even actual commands of a

sovereign only acquire the character of laws when certain procedures (parliamentary) have been followed. If these procedures are laws, it is difficult to square them with command. If they are not laws, they are not different from the dictates of etiquette and morals. While they must be different.

Sanction is not the only means to induce obedience – According to Austin, it is the sanction alone which induces the man to obey law. It is submitted that it is not a correct view. Various motives such as sympathy, fear, indolence, and reason induce a man to obey law. The power of the State is ratio ultima – the force which is the last resort to secure obedience.
Relation of law and morals over-looked – According to Austin, “the science of jurisprudence is concerned with positive law, or with laws strictly so called, as considered without regard to their goodness or badness.” The basis of law is the power of superior and not the ethics or the principles of natural justice.”

This is not a correct proposition. Ethical and moral elements cannot be excluded from law. Morals have taken important place in the sphere of law in the name of justice, equity, good faith, etc. Morals play important role in restraining powers, of legislature because it cannot enact a law against the morals of the society.

Criticism against Austinian Sovereignty

According to Dias, sovereignty cannot be defined in terms of obedience. It cannot be said that sovereignty of the Crown in Parliament was established by the “habitual obedience” of the judges that established the sovereignty of the Crown in Parliament.
The negative mark of sovereignty is not so much the concern of municipal lawyers as of international lawyers makes no difference to municipal lawyers that the law-constituting body obeys some other body in the international sphere if in fact in municipal sphere it makes laws.
The attribute of continuity of the sovereign may be questioned by asking “where sovereignty resides during a dissolution of Parliament.” In one place, Austin said correctly that the sovereign body is the Crown, the Lords and the Commons; but elsewhere he asserted that it is the Crown, the Lords and the Electorate. The latter interpretation renders the whole of his conception meaningless. Who, in that case, is the commander and who the commanded?
The attribute of indivisibility has also created difficulty. The question is whether sovereign authority can be vested in more than one body, not whether it may be exercised by more than one. Austin said that its exercise may be delegated to several.

Austinian theory could be applied to the British Parliament which is supreme (there is no division of power in England into different organs of State i.e. legislature, executive and judiciary). However, Austin’s notion that sovereignty is indivisible is falsified by federal Constitutions e.g. India; USA; old Roman law, communist power of colonial legislature and West Minister Parliament (a “colony” has power to make law within its territorial limits, but the West Minister Parliament can also legislate for it, thus sovereignty is divided).

The ultimate authority may be vested as to different matters in various bodies. The indivisibility of sovereignty has now been judicially rejected.

Illimitability – The question whether the sovereignty can limit or bind itself is an extremely debatable one.

Sir Mathew Hale had challenged Hobbe’s conception of absolute sovereignty by arguing that sovereign powers accrue to sovereign by certain laws of the kingdom and that there are therefore certain qualifications of these powers.

According to Austin, a sovereign cannot be under a duty, since he cannot command himself. To be under a duty implies that there is another sovereign, above the first who commands the duty and imposes a sanction. In such a case, the first sovereign is not a sovereign.

It must be admitted that the whole notion of the sovereign being unable to command itself is a wholly unrealistic one, in the ambit of the complex web of modern public law. This unreality is underlined, for instance, by Austin’s treatment of Constitutional law as not being positive law (since it is either mere question of fact as to who is habitually obeyed, or it consists of commands to the sovereign by itself.)

In modern conditions, the exercise of sovereign power may be limited by special procedure. Sovereignty may be divided in such a way that each component has a limited power to prescribe for the other this creates self bindingness on a sovereign. Unlimited

sovereignty, therefore, can properly only refer to a body being without a superior in the structure of the State, but this implies nothing either logically or legally as to the degree of its freedom of action.

Law as the command of a sovereign – This notion of Austin is criticised by the Dias: no one can command at least the rule which entitled him to command. As Olivecrona pointed out the bulk of the law existed before the individuals, who comprise the legal sovereign in law existed before the individuals, who comprise the legal sovereign in England, attained their positions, and they did so by virtue of rules of law.

There is no sense in saying that the rules which brought them to these positions are their own commands.

Further, why should the commands of a former sovereign continue to be “laws” under his successor? Austin reconciled this with the command theory by saying that what the

sovereign permits he commands “tacit commands”. Hart objected to this by saying that a decision not to interfere with previous commands can not impart a fresh “law-quality” to something already “law”. It is “law” though it has not been commanded by this sovereign, even tacitly. Continuance of majority of previous sovereign’s laws is due to non-repeal by default which is in no sense an “expression of wish”.

In modern times, law is nothing but the general will of the people, therefore, law cannot be said to be a mere command of the sovereign. The sovereign cannot stand above and apart from the community giving arbitrary commands, as State itself is a sovereign. The view that ‘law is the command of sovereign’, treats law as artificial and ignores its character of spontaneous growth.

International law – According to Austin, international law lacks sanctions because there is no sovereign, hence no command which is to be obeyed by the States in mutual dealings.

But in the present day context, no body will accept that international law is not law (even if it lacks sanctions). The States who violates international law does not deny the existence of international law, rather tries to defend their action within the rules of such law.

Bryce: “Fear and reasons induce to obey law.”

Gray: “If Austin went too far in considering law as always proceeding from state, he conferred great benefit on jurisprudence by bringing out clearly that law is at mercy of the state.”

Allen: “In Law in Making”: “for systematic exposition of the method of jurisprudence we will have to turn Austin.”

Holland accepted command theory with variation. He says – “‘law’ in proper genre of the

term is therefore, a general rule of human action, taking cognizance only of external acts, enforced by determinate authority.”

Salmond: “Law consists of rules recognised and acted on by the courts’ practice.”

Gray: “Law is what has been laid down as a rule of conduct by the person sitting as judicial organ of state.”