Analytical School of

Law
Questions
• What is Jurisprudence? (Include definitions of jurisprudence provided
by various proponents from each school) [5 marks ]
• Describe kinds of jurisprudence. [5]
• What is law according to natural school of law? Describe it on the
basis of historical development of natural school. (Include Nepalese
laws) [10 marks]
• What is law according to analytical school of law ? Describe it on the
basis of major proponents of analytical school of law. (include
Nepalese laws) [10 marks]
• • Holland - jurisprudence is the formal science of positive law;
• • Allen – jurisprudence is the scientific synthesis of essential
principles of law;
• • Salmond- jurisprudence is the science of civil law;
• • Ulpian: “The knowledge of things divine and human, the knowledge
of the just and unjust.”
• Imperative School-law as a command emanating from the sovereign
• Positive School-neither concerned with the past of the law nor with
the future of the law, but they confine themselves to the study of law
as it actually exists i.e. positus
• The purpose of analytical jurisprudence is to analyse the first
principles of law without reference either to their historical origin or
development or their validity. Another purpose is to gain an accurate
and intimate understanding of the fundamental working concepts of
all legal reasoning. –Analytical school
• Basic features
• Distinction between is and ought between law and moral
• Concentration of positive law
• Law in terms of and a product of State
• Logic is the main instrument
• Typical law is Statute
• The school considers law as a closed system of pure facts from which all
norms and values are excluded.
• Bentham
• True goal of society ought to be the achievement of the greatest happiness of
the greatest number of people
• Principle of utility, doctrine of hedonism or theory of pain and pleasure
• Utility as the property or tendency of an object to produce benefits, good or
happiness or to prevent mischief pain or evil
• Pleasure is to be equated with good, pain with evil
• Classified two types of jurisprudence: Expository Jurisprudence(law as it is)
and Censorial jurisprudence (law ought to be)
• Law as an assemblage of signs declarative of volition conceived or
adopted by the sovereign in a state
• Legislators task is to study the law so as to recognize and realize the
good
• Legislation should have the following goals:
• To provide subsistence
• To produce abundance
• To provide security
• To diminish inequalities or to favor equality
• Austin
• Father of English jurisprudence
• Jurisprudence was concerned solely with positive laws and not with their goodness or
badness
• Positive law-a command of sovereign backed by sanction
• Law is essentially, a command issued by a political superior to who the majority of
members of society are in the habit of obedience, and which is enforced by a
threatened sanction
• Sanctions are based on motivation by the fear of evil which will probably be incurred
in case a command is disobeyed
• Command, sovereign, duty and sanction are the four essential elements of positive
law
• Classification of laws
• Laws improperly so called
• Laws by analogy
• Laws by Metaphor
• these are laws such as observed by lower animals or laws determining the movements of
inanimate bodies.
• Laws properly so called
• Law of god
• Law set by men to men
• Laws not strictly so called
• Following are the laws though not commands
• Declaratory laws or Explanatory laws
• Laws of repeal
• Laws of imperfect obligations
• Holland
• Jurisprudence as the formal science of positive law which are having legal
consequences
• Juriprudence is not a science of legal relation a priori but it is a posterirori
• Jurisprudence can never be characterised as particular
• Salmond
• Jurisprudence is the first principle of civil law
• The civil law denotes the law of a state as administered by courts and includes
statutes, customs and judicial precedents
• Study of general principles of a particular legal system
• CK Allen
• Jurisprudence is the scientific synthesis of the essential principles of law
• H.L.A. Hart
• A society requires a system of rules in order to protect persons,
property and promises
• Social rules are of much greater significance in an analysis of what is
meant by law –existence of social rules testifies to their acceptance by
a social group as a whole
• Awareness of a social rule and support for its significance and
acceptance within the group, constitute what Hart terms ‘the internal
aspects’ of the rule
• Two types of legal rules:
• Primary Rules
• Duty imposing rules
• Union of primary rules and secondary rules is the essence of law
• Defects: uncertainty, static, ineffective
• Secondary Rules
• It confers power
• Supplement of primary rules
• Three kinds: Rules of recognition, Rules of changes, Rules of Adjudication
• Four attributes of morality
• Importance
• Immunity from deliberate change
• Voluntary character of moral offenses
• Forms of moral pressure which it separate from etiquette, custom and other
social rules
• Hans Kelsen
• Pure theory of law is also known as theory of interpretation-it must be
free from ethics, politics, history, sociology
• The basic norm is the grund norm- the presupposed starting point of
the procedure of positive law creation, such a basic norm exists in any
kind of legal order. No system of law can be established on the basis of
conflicting basic norms
• Normative science
• Grundnorm
• Imputation