Schools of Law: Theories and Criticisms of the Analytical and Historical School (in brief :)
In this article, we will take a look into the various schools of law in detail. We will delve into the underlying thought process and definitions adopted by different jurists that provided for the said schools of legal thought. With this, a law student shall be able to understand why the law is the way it is.
It is crucial for everyone in the legal profession to understand how schools of law shaped modern legislation and systems.
Enough said, let’s dive into what you are here for :)
The Historical School
Founded by: Friedrich Carl von Savigny [1774-1861]
Key contributors: Savigny, GG. Lee, Michael Dias
The Concept
This School of law argues that Law was found and not made i.e. it was made from and for the people according to their changing needs. The core belief was that law is an outcome of the development of the society throughout time as, it originates from customs, religious principles, economic needs, etc.
The basic source of law, according to this School, is CUSTOMS
# a custom is a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or era.
The Historical School was a reaction against the priori notion of the natural philosophy of law. Natural Law thinkers had thought of a law that was to be the same and suitable for all times i.e. it was unchangeable. They had failed to see that the law had grown and developed from the gone by eras.
Thus, a need was felt for a chain of legal thought and subsequent jurisprudence which would integrate history, traditions, habits, and religious texts as the foundational elements.
This School emerged because-
It was seen as a valid reaction to the contentions made by Natural Law thinkers.
It opposed the ideologies provided by the Analytical School.
G.G. Lee said-
“Historical jurisprudence deals with law as it appears in its various forms at its several stages of development. It holds firm the thread which binds together the primitive and modern conception of law and seeks to trace it through all the tangled mazes between them and, the line of connection between them”
As per Michael Dias [Professor Dias]-
The historical school arose more or less contemporarily with the Analytical School (i.e. around the 19th century) as the manifestation/ reaction against Natural Law theories.
Now, let us discuss the chief ideas introduced by Savigny under this School of Law:
Friedrich Carl von Savigny
Savigny was of the opinion that the law was a matter of unconscious and organic growth. Therefore, he contended that law was found and not made as there was no universality to it i.e. it varied with the people it governed and the era/ time it operated in.
Here are some of his major contentions:
Customs not only precede legislation but are in fact, superior to it. Legislation is the last stage of law-making but it cannot supersede the impact of the requirement of lawyers and jurists (who represent/ integrate customs and the law).
---Laws should always conform to popular consciousness. Law is artificial and complex because it has a two-fold aspect to it:
As a part of the aggregate existence of a community that does not cease to be.
As a branch of knowledge exclusively in the hands of the Jurists.
He was against the ideals of the Natural Law School and, saw the state as a living organism that is born then matures and dies.
According to him, the nature of any particular system of law was a clear reflection of the people who evolved it/through it (also called the concept of Volksgeist). He added that the broad principles of the system are to be found in the spirit of the people and, they manifest themselves in the customary rules.
Savigny, in his later work, stated that as the law grows into further complexity, the common consciousness is represented by lawyers, who formulate and interpret legal principles i.e. they work as the mouthpiece to the common consciousness.
Merits of Savigny’s theory:
This theory is heavily influenced by the culture and character of the people.
This theory traced the course of the evolution of law in various societies.
It laid the seeds for the development of the Sociological School.
It puts lawyers and jurists on a higher pedestal than lawmakers (rather legislators).
It concedes that the law changes according to the changing societies or their complexities.
His theory challenges the Analytical School of law at its foundations.
Demerits of Savigny’s theory:
There is an inconsistency of opinion as to Savigny’s theory when he states that there is no universality to the Law. But, it is very well known about the universal existence of Roman Laws i.e. it is still represented under common law and some modern legislations.
Subsequent jurists opposed the contention that law is not always a result or consequence of ‘common consciousness.
This theory put too much emphasis on customs as a source of law.
This theory represents juristic pessimism as it negates the other factors that result in law-making and public policy. It also ignores judge-made law.
Analytical Legal Positivism
Key contributors: Jeremy Bentham, John Austin, Sir William Markby, H.L.A Hart, Thomas Erskine Holland, Sir John William Salmond.
The concept
This school is also called the “Austinian School” since the methodology was first set forth by John Austin. In some legal texts, it is also mentioned as the “Imperative School” as it implies that law is just the command of a sovereign.
The term ‘positivism’ has many meanings-
First, it means that laws are commands of the sovereign.
Second, it means that legal concepts are distinct from every other subject.
Third, it means that legal decisions can be deduced logically without integrating social aims and policy
However, the current and generally adopted definition of ‘positivism’ is that it is/was a chain of legal thought that focuses on “law as it is and, not what it ought to be”.
Positivism has been opined to be suited to stable societies. It is described as a natural reaction against naturalism (Natural school of law) and a love for order and precision. Essentially, the positive school focuses on neither the past nor the future of the law but, the law that exists at the moment. The word “positivism” was given by August Comte.
This school is geared towards deconstructing law into irreducible elements (called “positum”) for the greater good of society.
This school takes for granted the developed legal system and proceeds to analyse its basic concepts and, classifies them further to ascertain a relation between them. The purpose of the analytical school is to gain an accurate and intimate understanding of the fundamental working concepts of all legal reasoning.
Now, let us discuss two of the chief theories under the analytical school:
1. John Austin:
According to Austin, “law is a command of the sovereign backed by sanction”.
This means that law is whatever the law-maker (sovereign authority) deems it to be and, it supersedes judgments and legal precedents.
He distinguished law from morality and divided them into two parts:
Divine Law i.e. laws set by God for man.
Human Law i.e. laws made by man for man.
By a plain reading of his theories, it is clear that Austin did not recognize the following three kinds of laws:
Declaratory or Explanatory Laws: They are not commands but, laws that were passed only to explain the general law that is in place.
Law of Repeal: Austin did not consider this a command but, a mere revocation of a command.
Law of imperfect obligation: These are not commands as they are not backed by sanctions.
We will no try to understand why Austin’s theory was not widely accepted by discussing its merits and demerits as recognized by subsequent jurists in this School.
Merits:
Austin made a credible attempt at a simple and clear definition of law.
He gave the exact boundary for jurisprudence to work within.
He provided for demarcation in each concept of law and what they can relate to.
He dismissed the empirical and futuristic approach when it came to law-making.
Demerits:
Customs, as a source of law, were completely overlooked by Austin.
The permissive character of laws was ignored and the focus was purely set on what they were preventing people from doing or not doing.
His theory had no space for Judge-made laws as it dismissed legal precedents and, emphasized solely the command of the sovereign.
Lord Bryce pointed out another material fault in Austin’s theory- He said that sanction was not the only reason for obedience to laws and further added that people will obey laws out of indolence, fear, sympathy, respect, etc.
Austin’s theory could not be viewed as relevant in modern democracies.
His theory also ignored the deep relationship between the law and morality of man.
2. Jeremy Bentham:
He is famously known as the founder of the principle of Utilitarianism. His legal theory is called “Utilitarian Individualism”. According to this theory, the right aim of the legislation is to carry out the sole principle of utility.
‘Utility’ was defined by him to mean- “the tendency of a thing to prevent some evil or procure some good”
According to him, “the utility of law will depend upon the unity of the species to which it is objected to”.
He was convinced that a proper code would suffice the justice system and remained against the idea of judge-made laws. He criticized the presence of corruption, method of law-making, inefficiency in the administration of justice, and restraints on individual liberty.
Bentham was of the opinion that the function of law was to emancipate the individual from bondage and restraints on freedom. He believed that once an individual was free, only then he could look out for his own welfare. In this aspect, he was in the favour of the “laissez-faire principle”.
Now, let us look at this theory’s merits and demerits to understand its brilliance and, well, limitations.
Merits:
Bentham’s theory represents constructive thinking and zeal for legal reforms.
It propounds new directions for law-making and research.
Emphasis was given to an individualistic approach to legal thought. It also provided for various criticisms on the pressing matters of his era (to be fair, that situation has not improved in the modern world :)
His theory provided a valid solution involving the very nature of positive law.
Demerits:
Friedman said that Bentham’s theory suffers from two weaknesses-
It blended the concepts of materialism and idealism, which were otherwise thought to be distinctly important aspects of Bentham’s world.
It failed to strike a balance between individual interests and community interests.
This theory was too abstract to follow and build upon.
It failed to recognize basic human nature and its complexity.
Pleasure and Pain cannot be the only two markers of making and propagating laws.
In the next article under this topic, we shall discuss the Natural Law School and trace its evolution through the eras.
Till the, thank you for reading!