Analytical School PDF

66 Now the natural law has become the substantive lawwhich social organisation must contain. In England Chief Justice Coke vigorously asserted the supremacy of common law over the Acts of Parliament....

66 Now the natural law has become the substantive lawwhich social organisation must contain. In England Chief Justice Coke vigorously asserted the supremacy of common law over the Acts of Parliament. Reasonableness and the principle of justice, equity and good conscience are examples of natural law which are applied by the law courts and the administrative tribunals. The declaration of independence refers to mains inalienable right ollile, liberty and pursuit of happiness. In U.S.A "due process· is example of natural law. Power to impose taxes is restricted to public purposes. In India, justice equity and good conscience are applied by law courts. Just fair & reasonableness are well developed by our supreme court in the way of natural law. Principle of natural justice is incorporated in Article 311 (2). Fundamental rights are protected from H.C. & S.C. in the case of violation of Principle of natural justice & against arbitraryness Article 14, 16, 21 emphasis for fairness in actim which are the part of natural justice. [2} ANALYTICAL SCHOOL Analytical School, though foreshaded by thomos Hobbs, it is chiefly associated with Jermy Benthan and John Austin. It has been extensively developed in the coutenant by Hans Kelsen and in U.S.A. by John Chipman, gray oliver Wendell, Houses etc. This school is against the natural law. Ii) Jermy Bewham 1 (1978-1832) As to the definition of law he observed that a law may be defined as an assemblage of sings, declarative of 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 supported to be his power. He made a Sharp distinction between the law as it is and the law that ought to be. He established the principles of utility, the hedonistic calcutus of pleasure and pain to measure every law like other measurable things. (1) Dr. Dhyani, S.N. : Fundamental of Jurisprudence 1992 Central Law Agency Allahabad  67 Friedman 1 Criticised the legal philosophy of Barlham on two grounds - firstly he oven estimated the power of legislatures and underestimated, the need of individual discretion and flexibility in the application of law, secondly he failed to develop a balance between the individual and community interest. As to it his contribution, it may be said that he was the founder of analytical school of Jurispendence upon which the latter thinkers built their theories: He was the originator of command theory of sovereign. (ii) Hobbs defined Law 2 - As the commands of him or them that have coercive power. (iii) John Austin 3 (1970-1859) John Austin Stood his English School of jurisprudence on the foundation leg by Benthan in the way of positivism. His main work is "The provice of jurisprudence determined. Austin Defined Law as a rule laid down for the guidance of an intelligent being by an intelligent being having the power over him". He determines and characterises the notion of law, i.e. law properly so called which is distinct from morals and other law that are described as laws improperly so calleld. His model of law is positive lawwhich he distinguishes from positive morality or other kinds of law the latter lacking force, sanction and coersion of the state. Positive law rather other hands he describes as the aggregate of rules set by men as political superior to men as political interior. Austin Says that "A Law is a rule of conduct imposed and enforced by the sovereign"4 (iv) Hart 6 describes Justin's definition of law as triology of command, sanction and sovereign. His theory has been criticized that his command theory produces a gun man situation: law is obeyed due to motive, indolence, fear and reason also. The term soverign has not been defined. Is and ought i.e. law & morality can not be separated to tally: There must exist minimum content of natural law in the enacted law. 6 1 W. Friedmann: Legal Theory, 5"' Edn P.275-2n, Quoted by Tondon M.P. in Jurisprudence P-52, 2 Tondon, M.P. Jurisprudence Edn. 1992 P.30, Allahabad Law Agency. 3 Dr. Dhyani, S.N. : Fundamental of Jurisprudence 1992 P.110, C.L.A. Aooahabad. 4 Mahajan, V.D., Juns prudence and legaltheoryV Edn. P.514-515 Easterm Book Co. Lal Bagh, Luckhnno. Austin P-86. Quoted by DIS: In Jurisprudence P 344 5 Hart: Separation of Law & Morals H.L.R P. 593 Quoted by Dr. Dhyami in Fundamental of Jurisprudent at P. 112 End 1992 (L.A. Allahabad. 6 Hart: Separation of Law & Morals H.L.R P. 593 Quoted by Dr. Dhyamlln Fundamental of Jurisprudent at P. 112 End 1992 (L.A. Allahabad.