Analytical School of Jurisprudence – SIR JOHN AUSTIN
What is an analytical school?
Analytical school is based on the concept of positivism which talks about “law as it is” and ignores the past and future. it is not aware of the concept of “what law ought to be” It’s separated from law as it is;
The analytical school considers positive law as the perfect law and the subject matter of jurisprudence. This school defines positive law as juridical norms which have been established by the authority of the state and explain the law as a command of political authority this school is also called the imperative school of jurisprudence.
The positive law separates itself from the sociological, historical, moral or ethical aspects. And not consider itself from the prior method of law, it’s also known as a positive law.
View of John Austine-; according to him, the science of jurisprudence is concerned with positive laws or with laws strictly so called, it has nothing to do with the law being good or bad. As per Austine positive law is the proper subject matter of jurisprudence.
He said law in its most comprehensive and literal sense is a rule laid down for the guidance of an intelligent being by an intelligent having power over him, this law excludes the law by analogy or law by metaphor, which are described by Austin as law improperly so called. Laws which are recognized as a law of God or divine he considered as a law with ambiguous and misleading.
A law properly so called is the positive law; that is described by men to men. There are three types;
- Laws set by political superiors to their subjects,
- Laws set by men who are not politically superior, and
- Rules improperly but by analogy termed law, e.g., law of fashion, law of honour or rules of international law.
Here b) and c) are positive morality and a) where law set by the political superior is the law properly so-called
Hereafter the discussion, it is shown that the Austin, positive law is the proper subject matter of jurisprudence. As per his following words law is the command of the sovereign backed by sanction
Every positive law, or every law strictly so-called, is a direct command of a sovereign ( political superior) to a person
According to Austine law has three main characteristics:
It is a command ( E.g. Indian Penal Code which lays down the rules)
A sovereign authority lays it down ( IPC was passed by the parliament)
It has sanctions behind it ( Any violation of IPC meets the Sanction/Penalties
For example, our IPC laid down some commands and rules which are passed by the parliament and on the violation there is a punishment (sanction)
Command
Law is nothing but a command and it is compulsory to obey it. Commands are utterances of desire given by superiors to inferiors. citizens have no choice but to follow it. According to Austin, if there is a choice, such a law is not a law. Imperative law is therefore the law of the land.
According to this theory, all laws are like a command. A command differs from a ‘request’ in that a request is not mandatory nor does lead to sanction on non-fulfilment of law
Merely a command will not make a law that command must come through a sovereign.
As we can say here the command from a robber about to rob a bank is not a law or not even the command of a master to his servant is law because neither of them is sovereign.
Sovereign
As per Austin, a sovereign could be any person or group of persons to whom a large number of the political sociality habitually obeys. That obedience must be habitual which is the command of sovereigns, generally, it must be obeyed by the majority of the people if terrorists do not obey the laws of the land, even though that disobeyed law remains as a law.
It does not matter that this obedience is coming through fear, habit or laws of the order, the concern should be that it is obeyed. Here the perception of a superior-inferior relationship is established as long as the law is obeyed by the bulk of the people it does not matter if it is dictator law or the law formulated by the democratically elected legislature.
e.g. King, Sultan, dictator, or group of people like the legislature.
Sanction
As per the imperative theory, people are obliged to obey the law. The literal meaning of sanction is unable or punishment which is attached to the command.
E.g. fine, Imprisonment, for forfeiture, department. It is decided by the one who enforces the law, here the word sanction used by Austin concerns only legal sanction.