John Austin may be regarded as the founder of the Analytical School, though he drew his inspiration from Hobbes, and Bentham, his teacher. To him law is a command given by a superior to an inferior and enforced by material sanctions.
Every positive law is a creation of the sovereign power, which either established it directly or authorised some subordinate person or body to establish it, and penalties are incurred for its disobedience.
The Analytical School, thus, emphasises that the sovereign is a determinate superior, what the sovereign commands is law, and disobedience of such commands is accompanied by punishment. Law is the expression of the absolute and unitary sovereignty of the State.
This conception of law has the attraction of simplicity and consistency. It also seems to accord with the citizen’s everyday experience. Let us illustrate it. Under the authority of the Constitution, Parliament of India makes the law of income-tax and provides that disobedience to its commands shall be punished by the fine or imprisonment, or both.
Under the authority given to it by the Municipal Act, the Municipal Committee, say, of Patiala, prohibits the parking of cars and other vehicles in certain congested areas and ascubes the punishment for violation of its bye-law. Both these cases answer the Austinian formula.
Austin’s doctrine has been subjected to unsparing attacks. His critics ask, times out of number, how customs can be reconciled with the theory of command, and where we can a supreme law-giver in primitive society. But both these objections do not affect the validity of Austin’s position.
Primitive society lies outside his domain. His sovereign is found in an independent political society, that is, the community which has achieved Statehood and which lives under a duly established and recognised government. To the pre-State custom, he gives the name of “positive morality.”
With respect to the common law of England, Austin contends that it is a judge-made law and that judges are agents of the sovereign power acting in its name and subject to any restraints it may impose. What the sovereign power does not forbid, Austin says, it accepts; what it accepts, it commands.
Sir Henry Maine characterised Austin’s method of assimilating the common law to a command as “a mere artifice of speech” and a “mere straining of language.” But it is a fact that judges in Britain acted for the King in Norman and Plantagenet times and that their decisions were effective only as he enforced them.
The Analytical Theory of law can best be appreciated once it is recognised that Austin was a lawyer and his theory is a legal theory. He discovers in the State a person or body of persons which, in the last resort, has the de jure right to issue commands and fixes punishment for violation of such commands.
“But he does not claim that legal right is tantamount to actual power, that form and substance are the same.” He is not oblivious that the electorate, when one exists, does impose limitations on the legal sovereign.
In fact, he points out that “in any State, even when the government is autocratic, the sovereign is restrained by the opinions of the people and must defer to ‘the principles and maxims’ held by the bulk of them or by the most influential portion.”
The main defect of Austin was, as Sait says, that “he erred in thinking of the influence of masses as negative rather than positive.” Law must be the expression of the will of the people, if it can adequately serve its purpose.
Moreover, the Analytical School makes law rigid. It is the letter of the law which must be followed and there is nothing to lubricate its application. It also breeds conservatism, as it does not cater to the needs of the people and the times. Nor does it run into the past to establish its natural evolution.
Gettell has correctly said that “Analytical jurists tend to regard the law as static rather than progressive, and they are not interested in its historical evolution. As a result, they have sometimes reached absolute conclusions without examining an adequate material.”
2. The Historical School:
The Historical School of jurisprudence found its origin in Germany at the beginning of the nineteenth century. Frederick Von Savigny was its most famous apostle, though not its founder. Sir Henry Maine was another eminent follower and supporter of this school.
The Historical School regards the people themselves as law-makers through the formation of habit and custom. Its sanction is not the coercive authority of the State, but a general sense of right of the society. People obey law as a matter of habit because, in their opinion, it conforms to their standard of right.
Acceptance has, therefore, always been the theory and fact of law. “No rule of law was ever successful or even endured,” says Zane, “unless it received practical general acceptance among the whole body of people, for the simple reason that universal human experience has demonstrated that a rule of law not accepted by any considerable portion of the people can never be enforced.
Whatever the means by which law is recognised, whether it is the legislative enactments by decisions of courts, by prescripts of rulers, law is in fact law only when it is cheerfully accepted and gladly obeyed by the great mass of the social body.
Acceptance by the community is needed to breathe life into the edict of the harshest despot. Government may superficially appear to make law as Hobbes and Austin mistakenly supposed, but it is the acceptance of the rules by society that makes laws and government.”
The advocates of the Historical School go to the primitive society in order to explain the nature and source of law. The conduct of the people in the primitive society, they assert, was governed by customary rules, which were rigidly obeyed by them notwithstanding the absence of any command of the sovereign.
The customs so observed and followed scrupulously by the succeeding generations became the social habit and a pattern of social behaviour. What governed the conduct of men in primitive times has continued, and will continue, they say, to govern it at all times and under all conditions.
“Human nature is not likely to undergo a radical change, and, therefore, that to which we give the name of law has been and still is and forever continue to be custom.” No legally constituted law-making authority, however absolute its power, can disregard the weight of customs and the pre-existing customs are the standard of laws.
Thus, law, according to the Historical School, is self-created and self-executed. It is not the deliberate creation of the law-maker, but the result of the slow development of society through centuries.
The function of the State is not to create law, but to realise and enforce it. Legislation can be effective only when it is reinforced by customs supplementing and clarifying it and the punishments which it prescribes in case of disobedience are in conformity with the established habits of the people. No legislative authority, whatever be the extent of its legal power, can make or abrogate customary law.
As Laski has said, “In law there was no part of the field of social fact he (Sultan of Turkey) could not alter: in practice he survived only by willing not to will those changes which might have proved him the sovereign of Austinian Jurisprudence.”
But the Historical School errs in reducing the element of command to a “metaphor.” They insist that the rulers adjust their wills to the wills of the ruled and command only in name.
Moreover, the adherents of this School tend to be conservative when they view law less as a matter of deliberate legislation than as an evolution within the social body. Their reverence for the past stresses legal history rather than the content of law and what law should really aim at.’
3. The Philosophical School:
The Philosophical School is not concerned with what the actual law of the past and the present is. Their effort is to develop the idea of justice as an ethical principle and consequently to create an ideal system of law.
In the eighteenth century they put their faith in the law of nature which could be discovered by human reason. In the nineteenth century they engaged themselves in the metaphysical discussions of the existing law and in attempts to create a perfect system of law in codes and legislation.
In the twentieth century they devoted themselves to social interests and ideals and to the formulation of theories of social justice.
The jurists of the Philosophical School have always considered law as an abstraction and based it upon abstract ethical principles of justice. A law, as such, is removed from objectivity whereas it ought to be definite and precise, capable of universal application. Idealism must be blended with realism.
4. The Comparative School:
Another school of jurisprudence, known as the Comparative School, is of modern origin. Its exponents adopt the method of examining and comparing the legal systems of the past and the present, and arrive at generalisations.
They also draw upon other Social Sciences for their material for proper authentication and reliability. Although the programme of this school is ambitious and sufficient headway has been made in our knowledge of law, much still remains to be done.
Comparisons are, no doubt, valuable aids and they bring us nearer to the truth. But if law is really to be the manifestation of the will of the people, it must be in conformity with the genius of the people concerned. No wholesale importation from outside can serve the desired purpose and fulfil the needs.
5. The Sociological School:
The Sociological School, the most prominent representative of which are Duguit, Krabbe and Laski, describes the “orthodox” conception of law as a futile truth. They argue that law is not really made by an organised body of men.
They admit that there are definite agencies in a society issuing commands or making decisions which are normally obeyed by the bulk of the community. But all such commands or decisions do not deserve to be regarded as laws. Some other quality is essential to give these rules the character of law.
Law, according to Duguit, is the name for the rules of conduct which men observe while living in society. They obey these rules of conduct not because they are commands and are accompanied by punishment, but because they are the conditions of social living. Without obedience to these rules life would not be worth living. All of us are conscious of these rules of life which enable society to survive.
Every man is, thus, impelled by self-interest to obey them. He knows instinctively or learns from experience what living together means. Consciousness of this fact accounts for social solidarity and it is the duty of the State to sustain such rules.
Likewise, it is the duty of every individual to observe all such rules as help to realize social solidarity and abstain from all such acts as are detrimental to its growth.
Laws, in brief “in the fundamental sense, are the rules of conduct which normal men know they must observe in order to preserve and promote the benefits derived from life in society.”
The sanction of law, Duguit asserts, is primarily psychological, “resting in each individual’s awareness of the social approval or reprobation of his conduct according to its conformity or non-conformity to the fundamental social rules.”
Krabbe explains law according to the source from which it springs. It is the sum total of all those rules, general or particular, written or unwritten, “which spring from men’s feeling or sense of right.”
He holds that law is above and, in origin, independent of the State. He rejects the idea of State sovereignty and the only theory which he is willing to recognize is the sovereignty of law.
Krabbe defines law as “the expression of one of the many judgments of value which we human beings make, by virtue of our disposition and nature.” Law is, therefore, what is just and good from our standard of value and judgment. It is not a matter of external legal authority, but an internal human matter.
It is obeyed, because it is just and good and not because of fear of punishment which its disobedience involves. The source of law, according to Laski, is the individual consenting mind. People obey it as it satisfies their desires.
A good law, in his opinion, “is a law which has, as its results, the maximum possible satisfaction of desire; and no law save a good law is, except in a formal sense, entitled to obedience as such.” He, thus, puts the source of law where it most truly belongs—in the individual consenting mind.
Jurists of the Sociological School hold divergent views on many points, but all believe that law is the product of social forces and should serve social needs. They do not concern themselves with the abstract theories, but judge the law by its results and find its sanction in the social needs that it serves.
“The legal imperatives of any state”, says Laski, “must always be conceived if they are to be capable of justification, in terms of the end it seeks to serve; they are, so to say, a permanent essay in the conditional mood.”
Without any reservation, the Sociologists attack the idea of a sovereign State as the creator of law. It is possible, they point out, to conceive of a State in which there is law and no State, but it is not possible to conceive of a State in which there is no form of law.
The purpose of law is to serve society and the purpose of the State is to enact and promulgate laws in order to achieve the socially desirable ends. Gettel has cogently summed up what the different Schools of Jurisprudence claim and explain.
He says, “In contrast to the analytical jurist, who found the sanction of law in the command of the State, to the philosophical jurists, who found its sanction in its inherent justice, and to the historical jurist, who found its sanction in established habits and custom, the sociological jurist finds the sanction of law in the social needs and interests that it serves.”
6. Marxian Concept of Law:
The Marxian concept of law is entirely opposed to the Schools of Jurisprudence hitherto considered. Law, according to Marx, is intimately associated with the nature of the State. He does not accept the view that law is the expression of the will of the people or reflection of the principles of social justice or the result of habits and customs or the social needs it serves.
It is, on the contrary, merely an expression of the will of the State, the expression of the material form of life in that State, and in a class society it is the will of the ruling class. According to Vyshinsky, “Marxism-Leninism gives a clear definition (the only scientific definition) of the essence of law.
It teaches that class relationship (and, consequently, law itself) is rooted in the material conditions of life, and that law is merely the will of the dominant class elevated into stature.”
In a Capitalist State, the law is only the tool of the State to maintain and safeguard the interests of the capitalist class, a dominant group in society. In a Socialist State the workers are the ruling class and, thus, law must be the safeguard of the proletarian State against the enemies of Socialism, and a tool for the construction of a Socialist Society.
There is an element of truth in what Marx says, but it is not the whole truth. The Marxian view of law does not accept other refinements connected with the State and law. Moreover, law for Marx is a vehicle for destroying Capitalism and constructing Socialism.
As soon as it achieves its purpose the State “withers away.” We do not accept this conclusion. For us, the State is the life-breath of human existence and whatever shape a government may take, the State shall ever endure. Its laws hold society together for the promotion and achievement of the all-round happiness of man.