Analytical Jurisprudence Essay
Analytical jurisprudence is a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and the modes of its operation. It draws on the resources of modern analytical philosophy to try to understand the nature of law. It is not concerned with the past stages of its evolution or its goodness or badness. Law exist as it is, regardless of good or bad, past or future. “a law, which actually exist, is a law, though we happen to dislike it, or though it vary from the text, by which we appropriate our approbation and disapprobation” Analytical jurisprudence is a legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process). 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. David Hume famously argued in A Treatise of Human Nature 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? Analytical School has got different names:
* Positive School – because it focused on “positivism” (latin) which means “as it is”. * English School – because this school was dominant in England. * Austinian School – because it was de facto founded by John Austin. Jeremy Bentham- Originator of Analytical School
One of the earliest legal positivists was Jeremy Bentham. Bentham was anearly and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham’s views about law and jurisprudence were popularized by his student, John Austin
In 18th century England law was not organised , but it was present in a very haphazard way as a result of customs and morals or thoughts, there was no absolute guiding principle behind law. It was said that law had grown in England rather than being made. Justice is nothing but social happiness guaranteed by social order and protecting certain interests which are socially recognised and worthy of being protected. This idea led to the foundation of analytical school.
Jeremy Bentham is the real founder father of the English School of Jurisprudence but the real and full credit has never been paid to this Jurist because of his indolence in not getting his works published in spite of his whole life has been devoted to legal writing.
Bentham was really a realist in temper and in his approach to Jurisprudence are two important aspects namely 1. The Analytical tool of law; and 2. The Utility tool of law
John Austin took from Jeremy Bentham the analytical tool but rejected the utility tool as a one that beyond the realm of Jurisprudence proper. Austin’s utilitarian answer to “what is law?” was that law is “commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience. The major premise of analytical school is to deal with law as it exists in the present form. It seeks to analyse the first principle of law as they exist in the given legal system.
The exponents of analytical school of jurisprudence consider that the most important aspect of law is its relation to the state. They treat law as a command emanating from the sovereign, namely, the State. This school is, therefore, also called the imperative school. The advocates of this school are neither concerned with the past of law nor with the future of it, but they continue themselves to the study of law as it actually exists i.e. positus. Characteristics of Analytical School of Jurisprudence:
As stated earlier, Bentham’s concept of law is imperative one i.e. law is an assemble of signs, declaration of volition conceived or adopted by sovereign in a state. He believed that every law may be considered in the light of eight different aspects.
1) Sources – law as the will of sovereign.
2) Subject – may be person or thing.
3) Objects – act, forbearance or situations.
4) Extent – law covers a portion of land on which acts have been done.
5) Aspects – may be directive or sanctional.
Customs ignored – analytical school regard only the command of sovereign and ignores the history of the evolution of law thus ignoring the important role of custom. It only takes customs as to me mere source of law. No place for judge made law –judge made law is the important factors of law in the modern world but the analytical school completely ignores the value of precedents. Command over-emphasised –the modern progressive law is nothing but the general will of people whereas the analytical school over emphasise the command of sovereign giving a dictator viewpoint. International law is mere morality –one more point is, that analytical school thinks that international law is mere morality due to the lack of sanction and enforcing capacity. No legal system exist in vacuum and hence can not be fully understood by focusing on law itself. Modern trends also suggest that bending of socio economic factors is also a part of jurisprudence. The school whereas, does not take into account the legal change. It takes for granted the perfection of legal system and proceeds to explain its fundamentals, however change in the important factor in all aspects of life.
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 3 October 2016
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