AUSTIN AS THE FOUNDER OF ANALYTICAL SCHOOL

The analytical school of jurisprudence is known by different names. It is called the Positivist School because the exponents of this school are concerned neither with the past nor with the future of law but with law as it exists i.e., with law `as it is` (positum). The purpose of analytical jurisprudence is to analyze, without reference either to their historical origin or development or their ethical significance or validity, the first principle of law.

In the words of Prof. Dias, the positivist movement started at the beginning of the 19th century. It represents a reaction against the a priori methods of thinking which turned away from the realities of actual law in order to discover in nature or reason the principles of universal validity. Actual laws were explained or condemned according to those principles.

Austin is called the father of English Jurisprudence and the founder of Analytical school. However, the title of analytical school is misleading as it suggests that analysis is the exclusive property of this school instead of being the universal method of jurisprudence. Allen refers to call Austin`s school as the imperative school.

His most important contribution to legal theory was his substitution to the command of the sovereign for any idea of justice in the definitions of law.  He defined law, “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. Law is strictly divorced from justice. Instead of being based on ideas of good or bad, it is based on the power of the superior. The first division of law is that into laws set by god to men (law of god) and laws set by men to men (human laws). In Austin’s positivist system, the law of god seems to fulfill no other function than that of serving as a receptacle for Austin`s utilitarian beliefs. The principle of utility is the law of god.

According to Austin, human laws are divisible into laws so properly called (positive law) and laws improperly so called. The former are either laws set by political superiors to political subordinates or laws set by subjects as private persons in pursuance of legal rights granted to them. Laws improperly so called are those laws which are not set directly or indirectly, by a political superior, e.g. rules of clubs, laws of fashion, the rules of so called international law etc. To all these Austin gives the name of ” Positive Morality”, Laws improperly so called also include a final category called ` laws by metaphor` which connect expression of the uniformities of nature.

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