“Positus, Law as it actually exists”
The word, Jurisprudence is derived from the Latin word jurisprudentia, which refers to the ‘knowledge of law’.
Jurisprudence, in its technical sense is divisible into 3 main branches and this division is based on the certain basic assumptions about ‘Law’ characterized by jurists belonging to each school which distinguishes them from those of other schools.
The schools of Jurisprudence are Philosophical school, Historical school, Realist school, Sociological school and Analytical school.
When we talk about ‘Law as it actually exists’, it is needless to say out loud that we are talking about Analytical School of Jurisprudence as it can be inferred from the very phrase.
When we hear about the term, Analytical school, perhaps the words which crops in our mind are ‘sovereign’, ‘command’, ‘Austin’? Why? Because these words are directly and indirectly related to this school of thought, they are somewhat like the central traits of this school which revolves around it.
The exponents of this school treat Law as a command emanating from the sovereign, namely the State. The advocates of this school of law, when we study about their views, find that they are neither concerned with the past of the law nor with the future of it, but they confine themselves to the study of law as it actually exists, i.e. positus and hence another name for this school of jurisprudence is ‘Positive school.’
The main exponents to be discussed here are John Austin, the father of Analytical school of Jurisprudence, Jeremy Bentham, John Austin, Hans Kelson and H.L.A. Hart. Bentham was the first one to lay foundation for this school. He divided Jurisprudence into ‘expositorial’ and ‘censorial juisprudence’.
The former is also known as analytical jurisprudence and is concerned with law without any regard to its moral or immoral character. Whereas, censorial jurisprudence, on the other hand, is concerned with ‘science of legislation’ which is ‘what the law ought to be’.
Bentham viewed that nature has placed mankind under two sovereign masters, namely; pain and pleasure, which alone decides what a man should do and should not do. He termed this as ‘Hedonic calculus’, which later came to be known as the principle of utility.
John Austin was the father of English Jurisprudence who divided law into Divine laws and Human laws. As per him, there exists command, sovereign, sanction and duty. He defined laws as, “a rule laid for the guidance of intelligent beings by an intelligent being having power over him.”
However, Austin’s theory was criticized for having no place for Judge-made law, for ignoring the relationship between law and morality, etc.
Hans Kelson was another advocate of this theory who asserted that Law is normative science, as distinguished from natural sciences which are based on cause and effect such as the law of gravitation.
He also says that Law is Hierarchy of Normative relations and that all inferior norms derive force from grundnorm which is the superior norm. The example of Grundnorm would be constitution.
H.L.A. Hart considers law to be the combination of primary rules and secondary rules. The former impose duties on a person, which are authoritative, binding and compulsive in nature and are irrelevant to the desires, wishes and emotions of a person are imposed and liable to be imposed on him irrespective of the mentioned factors.
E.g. law of crime, law of torts,etc. Hart asserted that secondary rules are made for the three organs of the State; the legislative body, executive body and the Judiciary. He also gave some concepts in secondary rules, such as: Rule of adjudication; in which the judiciary has power to make rules for itself.
Rule of change refers to those rules which can be changed as per desire of people or as per changing needs of society. E.g. Wills, property law. Lastly, the Rule of Recognition, in which people obey laws which are consistent and recognized such as the Fundamental rights, etc.
Hart also expressed his views on law and morality and stated that the two are supplementary as well as complementary to each other. He contends that it is necessary to law and morality to have certain element of natural law as a logical necessity.
As a member of society, individuals feel morally bound to abide by these rules both as a matter of duty and obligation. Thus, the exponents of the Analytical school of jurisprudence have been found to employ the scientific method to study and comprehend law and they were more concerned about ‘ law as it is’ that ‘law ought to be’.
MCQsWho categorized the subject of Jurisprudence as Expositorial Jurisprudence and Censorial Jursiprudence?
2.)About the positive approach of law, who said, “This is a confluence of command, sanction and sovereignty”?
3.) “Nature has placed man under two masters; pain and pleasure.” Who said this?
4.) What does the term, Grundnorm means:
a.) Basic norms
b.)set of norms
c.) Supreme law
5.) Austin has divided laws into-:
a.) primary rules and secondary rules
b.) Censorial and Expositorial
c.) Divine laws and Human laws
d.) Law as it is and law ought to be
This Article Is Contributed By: Nabiha Khwaja
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