2. Content
Introduction to Analytical Legal Positivism
Meaning of Positivism
Features of the Theory
Chief Exponents of the Theory
Jeremy Bentham, John Austin and the Theory
3. Analytical Legal Positivism
Legal positivism is the most influential school of thought in jurisprudence. The
positivist movement started at the beginning of the 19th century.
The analytical school is positive in its approach. The jurists of the school consider
that the most important aspect of law is its relation to the state. Law is treated as
command emanating from the state. For this reason, this school is also known as
the imperative school.
4. Theme of the Theory
Positivism is also known as empiricism.
Auguste Comte (1798 -1857) is regarded as the first true positivist.
Main themes of the analytical legal positivism:
a. law is the creation of human agents.
b. law is a social fact. It is found as rules declared by authorities.
5. Meaning of Positivism
The term ‘positivism’ has five meanings:
1 Laws are commands.
2. The analysis of the legal concepts are distinct from the sociological and
historical inquires and critical evaluation.
3. Decisions can be deduced logically from pre-determined rules.
4. moral judgments cannot be established or defended by rational arguments.
5. law as it is (actually) has to be kept separate from the law that ought to be.
The fifth meaning is correctly associated with positivism.
6. Features of the Theory
The purpose of analytical school of jurisprudence is to analyze the first principles of law.
The main task of the analytical school is the lucid and systematic exposition of the legal
ideas.
One purpose of the analytical school is to gain an accurate and intimate understanding
of the fundamental working concepts of all legal reasoning.
The analytical school takes law as the command of the sovereign.
It puts emphasis on legislation as the source of law. The whole system is based on its
concept of law.
7. Features
The school regards law as a closed system of pure facts from which all norms and
values are excluded.
The analytical lawyer is not concerned with the ideals. He/she takes the law as
given matter created by the state.
The importance of analytical jurisprudence lies in the fact that it brought about
precision in legal thinking.
8. Chief Exponents of the Theory
Bentham;
Austin;
Sir William Markby;
Sheldon Amos;
Holland
Salmond;
Professor HLA Hart
9. Jeremy Bentham & Analytical Legal
Positivism
He is considered as the founder of the
positivism. Austin owes much to
Bentham and on many points his
prepositions are merely the ‘para-
phrasing of Bentham’s Theory’.
Bentham believed that every law may be
considered in the light of different aspects:
1. Source
2. Subjects
3. Objects
4. Extent
5. Aspect
6. Force
7. Remedial appendages
8. Expression
10. Criticism of Bentham’s Theory
There are two shortcoming of Bentham’s theory.
1. Bentham’s abstract and doctrinaire rationalism
2. Bentham’s weakness to develop clearly his own conception of the balance
between individual and community interests.
11. John Austin and Analytical Legal Positivism
John Austin is the founder of the
analytical school. He is considered
the ‘father of English Jurisprudence’.
Austin was greatly influenced by the
scientific treatment of the Roman
Law. For that reason, he started the
scientific arrangement of the English
law.
Like Bentham, Austin believed that
‘law’ is only an aggregate of
individual laws.
In his lecture book titled ‘The
Province of Jurisprudence
Determined’, Austin dealt with the
nature of law, sources of law and
presented an analysis of the English
legal system.
Major thrust in Austinian positive law
was on separation of law from
morals.
Salmond has criticized Austin’s
theory of law which completely
divests law from morality.
12. Difference between Philosophy of Austin and
Bentham
Bentham is a conscious innovator of new forms of enquiry into the structure of
law.
He made explicit his method and general logic of enquiry.
Bentham thinks that command is only one of four aspects which the will of the
legislator may bear to the act concerning which he is legislating.
Suggested writing:
Write note on ‘Analytical Legal Positivism’. Briefly discuss the contribution of Austin
and Bentham to the theory.
