Introduction and Bentham

ANALYTICAL SCHOOL
1. Introduction:
The natural law school predominated of the juristic thought up to the

beginning of 18th century. Principles of natural law were considered supreme
and could override the man made law. Natural law was deemed to be derived
from nature, reason, supernatural source, justice etc. The analytical school was a
reaction against the airy assumptions of the natural law.
The analytical school gained prominence in the 19 th century. As the distinctive

feature of 18th century (Natural law school) juristic thought was reason.
Individualism became the manifestation of the cult of the reason. Bentham
breaks away from the spirit of the 18th century, rejects natural law and
emphasized utility and propounded the concept of expository jurisprudence,
which deals with the law as it is. Austin takes over this concept of expository
jurisprudence and subjects it to a far more detailed.
2. Different Names for the School:
This school is known as the Analytical School because it seeks to analyze the
first principles of law as they actually exist in the given legal system. This
school deals with law as it exists in the present form.
This school is also known as Imperative School because it treats law as the
command of the sovereign, namely, the State.
This school is also known as Positive School because this school are neither
concerned with the past of the law nor with the future of it, but it is only
confined with the law as it actually exist, i.e. positive law.
This school is also known as Austinian School of jurisprudence since its

approach is established by the John Austin. He is considered the father of
analytical school.
Exponents of Analytical School:
Jeremy Bentham, John Austin, H.L.A. Hart, Kelson etc.

3. Jeremy Bentham (1748-1832):-
Jeremy Bentham heralded a new era in the history of legal

thought in England. He is considered to be the founder of the positivism in the
modern sense of the term. Truly speaking, he should be considered the father of
analytical positivism and not the John Austin as it is commonly believed
because of Austin owes much to the Bentham and on many points his
propositions are merely ‘para-phasing’ of Bentham’s theory.
He wrote the book titled, “The Limits of Jurisprudence Defined” written in

1782 and published in 1945.
4. Advocated the reform in English law:
English law as it existed at the end of 18th century, when Bentham

was still in his young age, had developed almost in haphazard way as a result of
customs or modes of thought which prevailed at different period. The laws
which were then in existence were not enacted with any definite guiding
principles behind them. It had grown out of occasion and emergency. It is for
this reason it is often said that in England law had infact grown rather than been
made.
Bentham wanted reform of English law. He defined law “as an assemblage of

signs declarative of a volition conceived or adopted by the Sovereign in a
State, concerning the conduct to be observed in a certain case by a certain
person or class of persons, who in the case in question are or are supposed to
be subject to his power.”
However, he said the prior to reform there has to be a thoroughgoing

classification of law as it is. He advocated that there could be no reform in
substantive law without reforming its structure through a process of analysis.
Therefore, he divided jurisprudence into expositorial jurisprudence (i.e. what
the law is) and censorial jurisprudence (i.e. what the law ought to be.).
The contribution of the Jeremy Bentham to the English law reforms can be
summarised as:-
(a) He determined, in the first place, the principles of which reforms should
be based.
(b) He determined the method i.e., the mode of legislation, by which reforms
should be carried out in England.
5. Bentham’s Individualism, Utilitarianism:
Bentham was utilitarian to the core, advocated the

codification of law and rejected judge made law. His legal philosophy is
called ‘utilitarian individualism’.
He was an individualist and believed that the function of the law is to

emancipate individual from the bondage and restraint upon his freedom. He
supported the economic principle of ‘laissez-faire’ which means minimum
interference of the State in the economic activities of individuals. For him, if
a man is free, can look his welfare himself.
6. Theory of Pain and Pleasure (theory of utilitarianism)
He propounded the theory of utilitarianism. According to this theory, the

purpose of the law is the carrying out of the principle of utility. In other
words, the proper end of every law is the promotion of the greatest happiness
of the greatest number. Bentham defined ‘utility’ as ‘the property or
tendency of a thing to prevent some evil or procure some good”. According
to him, the consequence of good is pleasure and consequence of evil is
pain. So, it can be said that purpose of law is to bring pleasure and avoid
pain.
Bentham desired to ensure happiness of the community by attaining four

major goals, namely, (a) subsistence, (b) abundance, (c) equality and (d)
security for the citizens. Therefore, the function of law must be to meet these
ends, i.e., to provide subsistence, to produce abundance, to favour equality
and to maintain security. Out of these four ends, security was the foremost
importance to him as it was related to protection of honour, property and
status of person.
7. Criticism against Bentham:-
(1) Friedman criticised the Bentham on the ground that he underestimates

the need for individual discretion and flexibility in application of law and
over-estimating the powers of the legislators. He further said that his
theory fails to balance individual interests with the interests of the
community.
(2) Bentham also criticised against his theory of utilitarianism because the
pleasure and pain can’t be the final test of adequacy of law.
(3) He said that the purpose of law should be to remove the bondage or
restraint on individual’s freedom and provide him opportunities for
development of the self. But in later times it was found that legislation
was used to restrict individual’s freedom in economic matters.
8. Bentham’s Contribution or Influence:

Despite the shortcomings of Bentham’s theory of
utilitarianism, his legal reforms started a new era in the history of
legislation in England. He promoted legislation and today it has become
an important method of law making. Bentham was infact the intellectual
God father of John Austin from whom the latter borrowed, developed and
perfected his theory of analytical positivism.

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ANALYTICAL SCHOOL

The natural law school predominated of the juristic thought up to the

The analytical school gained prominence in the 19 th century. As the distinctive

2. Different Names for the School:

This school is also known as Austinian School of jurisprudence since its

Exponents of Analytical School:

Jeremy Bentham, John Austin, H.L.A. Hart, Kelson etc.

Jeremy Bentham heralded a new era in the history of legal

He wrote the book titled, “The Limits of Jurisprudence Defined” written in

4. Advocated the reform in English law:

English law as it existed at the end of 18th century, when Bentham

Bentham wanted reform of English law. He defined law “as an assemblage of

However, he said the prior to reform there has to be a thoroughgoing

5. Bentham’s Individualism, Utilitarianism:

Bentham was utilitarian to the core, advocated the

He was an individualist and believed that the function of the law is to

6. Theory of Pain and Pleasure (theory of utilitarianism)

He propounded the theory of utilitarianism. According to this theory, the

Bentham desired to ensure happiness of the community by attaining four

(1) Friedman criticised the Bentham on the ground that he underestimates

8. Bentham’s Contribution or Influence:

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