SALMOND IN ANALYTICAL SCHOOL



      Introduction
The law can be understood by many perspectives. Many factors are responsible for the various thoughts regarding law and in fact, it obvious that many people have viewpoints of their own regarding law. The time scale, societal structures, norms, values, customs, political situation etc are primarily responsible for this. At various time and places, jurists have made their approaches to the study of law from different angles. They have defined law, determined its source and nature and discussed their purpose and ends. So on the basis of the different viewpoints regarding law, jurists are differentiated into various schools so as to facilitate the identification of evolution of legal philosophy however, it should be noted that no school is exact or perfect.

The early jurists, interpreters of law were merely in the part of defining the positive law and were on the side of the vague and abstract norms of natural law. As the society kept changing, jurists and other philosophers started demarcating the proper bounds of law and analyzing and systematizing it. They advocated the reform of law in accordance with the changing society and laid more emphasis on the positive law, so they were started being called the ‘Positivists’. The scholars like Bentham, Austin. Salmond etc. strongly argued for the implementation of the law as it is not it ought to be, emphasized the importance of court in the interpretation, formulation and execution of legal rules, gave place to the sanction as per the degree of wrong deeds backed by more logical interpretation. So this completely unique concept regarding law was given a separate place in was called the ‘Analytical  School’.

Analytical School:
Introduction to Analytical School:
This school is also known as the English School, Formal School, Systematic School, Austinian School in the sense that John Austin was one of the main exponents of this school. However, the special contribution goes to Gremery Bentham (1742-1832).  Austin owed much to Bentham and on many points his prepositions were no more than a “Paraphrasing of Bentham’s theory.” The other exponents are Salmond, Gray, Hohfeld, Holland, Kelsen, H.L.A. Hart etc. These scholars advocated the reform of law in the light of changed social needs and conditions and not on extraneous considerations.

Julius Stone, “ Analytical jurisprudence as a study of logical relations within the law serves, therefore, a useful purpose. Its main task are to determine and define the terms actually employed, to state the axioms actually employed, to examine whether legal prepositions sensibly deduced from them to follow in logic and to inquire what definitions and axioms might yield a maximum of self consistency in the body of legal prepositions.”

Before the analytical  school came into forefront, most of the people had the concept that the natural law is the only law that was mostly accepted and even human-made law could not even overside it. Natural school was based on the nature, reason, supernatural  sources, justice, utility only. So analytical school came with the notion of analysis of positive law [1] and to demarcate the proper bound of law.

The natural law was based on the norms whose validity depends upon the subjective functions. So the analytical school adopted the empirical (from particular to general) approach in justice giving process and the natural law was rejected.

It has been experienced that the laws in the past were basically made for the protection and prosperity of minority feudal. Similarly, the natural law also made to serve and justify the power of monarchs, pope etc. There could be regular interference by those minority in the justice giving process. So there was felt a normative pronunciation by the state which could do away with the actions of the feudal and the popes. As a result the analytical school came so as to fill those lacunas.
  
What does analytical school say?
The analytical school believes that the legal system has been developed from early period and its main aim is to study the first principle of law without any historical backgrounds and ethical background.[2]

Some of the basic considerations of the school are listed in the following bullets:
·      Law is the command of the sovereign and is distinct from morals. Bentham seems likely have given law and moral the same course. But Austin totally rejected this notion though he believes that the morals do function in the creation of law. He argues that positive law carries its own standards.[3]

·      To gain an accurate and intimate understanding of the fundamental working concept of all legal reasoning.
·      The school always concerns with the pure fact of law.
·      It believes that law can only be studied with the help of logic and the laws with logic get the validity and it rejects the ethical elements, historical background.
·      Laws are generally made consciously by the law makers, whether the legislative or judiciary. The law is said law only if the authoritative stamp of the state approves it as law.
·      Statute law is the main concern of this school.
·      State is the main organ to implement law and it is not necessary to discover the origin of law but concerns only how the law gets the approval by the state.

Salmond in analytical school:
Sir John William Salmond (1862-1924) England, was one of the greatest scholars in the legal field and belonged to analytical school. Yet he differs from the entire exponents in this school by different ways.
For him, an imperative law is –“ a percept or rule of action imposed upon man by some authority with enforces obedience to it. In other words, imperative law is the command or a rule in the form of a command which is enforced by some superior power.”[4]
      Salmond agrees the notion that law in its abstract sense constitutes every rules regardless the mode of their origin; that can either be made by the legislation or evolved through common practice. But the main thing required is that they must be recognized by the courts by the administration of justice.[5]

Salmond’s definition of law
Salmond defines law as the body of principles recognized and applied by the state in the administration of justice.[6]It means that to understand law, one should know its purpose and to ascertain its true nature one should go to the courts and not to the legislature. He is in the part of law as it is but emphasizes the law made from the courts only.
He also argues that there is no law that is universal because jurisprudence is the science of civil law and it applies within definite territory only. In this regard, seems quite compromising with the notion of Austin regarding the school. John Austin argued that the international law is not the law in fact.[7]
He also argues that the laws conduct only the external human conducts but cannot regulate inner beliefs of human.[8]
Firstly, the facts and the law are frequently contrasted. Even in his use there are several different shades of meaning. i.e., fact and law are some extent inextricable.
Salmond says that so long as the legislature and courts function in harmony it doesn’t matter whether they say a statute is law because the courts recognize it or the courts recognize and apply a statute because it is law. The practical issue will only arise when a statute passed by the legislature is declared void by the courts. In this regard, seems to have emphasized the judicial process to declare whether to determine a statute is law or not. The general doctrine is that the jury must determine facts and judge the law.


How he differs from Austin in defining law?
Though Salmond and John Austin[9] belong to the same school of thoughts, however, there are some regions where some of the thoughts among these two scholars contradict. Some of them are listed below:
a.     Salmond didn’t agree with Austin that the analysis of law can be done with the help of the logic alone. He points out that study of jurisprudence which ignores ethical and historical aspects will become a barren study. He also argues that the law and the morality are quite different disciplines but are interdependent with each other. Austin used to believe that morality must be excluded from law.
b.     Austin argues that Judges are the delegators legislative who when makes all decisions are commanding on behalf of the sovereign. He is also against the idea that judges merely find the legal rules and do not legislate. Contrary to him, Salmond expresses that this is the general jurisprudence which was not the legal system in general, but out of the fundamental elements in a particular system.[10]
c.     According to Austin, the concept of law existed soon after the origin of the state and no law existed in the world before the concept of state was evolved. But Salmond criticizes him saying that law existed before the evolution of state. The main difference is that law at that time were customary and were guided by religion, not the sovereign authority.


Salmond’s contributions to the analytical school:
Salmond’s definition brought about a great change in the analytical positivist view and also expanded the boundaries of the study of jurisprudence which was narrowed by Austin as he gave importance to the court.
The definition of salmond has considerable influence on later jurists and they took inspirations from him and also the seed of the realist school is traced. The realist school also emphasizes the law as it is but not law ought to be. And also it disregards the purpose of law and believes on final result of the law and give much importance ot the court and the judges. [11]
Law as the expression of the will of the state but sees it as made through the medium of courts. Law no doubt the command of the sovereign but the sovereign to the realists is not the parliament but the court.

Criticisms of Salmond’s thoughts:
Salmond’s thoughts are also criticized in so many grounds by many scholars. Vinogradoff criticizes his definition of law that the courts are only supposed to enforce and apply law, not to define it.
His definition of law is applicable only to the common which is judge-made law. His definition of law is imperfect in the sense that it has linked justice with the law as well as the implication of the definition that to know the true nature of law one should go to the court that is not sound. According to this definition, a great part of law which is not enforced by the courts such as conventions will not be covered by it. Thus the definition of Salmond is not perfect.
Salmond’s definition of the law raises the question about the meaning of the word ‘court’. He has not so cleared whether it includes administrative tribunals. In many cases the decision of an administrative tribunal or even that of an administrative officer is final. There are many decisions which are given by those administrative branches. If they can be taken as law or not. Legislature will take up questions of their own privilege and also of contempt against the house.
Though the definition may be appropriate for case law, it is not appropriate in respect of statute law. It is because the legislature often gives decisions and are approved by the executive. At that time as Salmond’s thought, they must wait a case to go to the court and then receive judicial recognition. In fact, statutes are recognized by courts because they are law. They are not law simply by the virtue of judicial recognition.
           And also his considerations about law may arise a disharmony between the courts and the legislature in the sense that political issues can also be categorized as law. For his defense, Salmond separates it as the marginal case which cannot violate his definition.

Analysis of Salmond’s thought:
Salmond’s thoughts keep great importance in the analytical school and the school of modern positivism. He is said to have followed the basic tenants of the school. However, he seems somewhat different from other exponents of the school as he gives place to the moralities, law of theologists, customs as law which were not given place by former exponents like Austin, Bentham etc.
Salmond every time emphasizes the court to enjoy the full power of defining and enforcing law which is not proper. The judge-made law can be one aspect of the law making process, but it is not completed in itself. There are also other organs like legislature and other judicial tribunals who are responsible for formulating rules the state. This can’t be ignored that according to him, if only judge-made laws are given more priority, the probability of tyranny and despotism may arise as the judges become the law-makers of the state. The Justice is not the only goal of law as its scope varies from place to place. According him, an unjust law cannot exist because it would amount to a fatal self-contradiction. And the law doesn’t cease to be law merely because it is law.[12]


Conclusion:
Thus we can say that Salmond’s thoughts have contributed in the modern law making process as he has classified the law in two parts: Common law and Civil law. The Civil law is only applicable to a particular state. This is true in the sense that most of the country codes differ from state to state.[13] This concept still prevails in present world including Nepal. The emphasis that he gives to the courts for the law making process is also rational to an extent and the judicial precedents are also considered as the major sources of law nowadays. talking about the Civil law practice in the world, the International Law is also an example. And also customary laws are practiced in the countries like Nepal. He has told that law and morality are two completely different factors but he says that both of these disciplines are firmly interdependent from each other. However there are some loopholes in his thoughts that he couldn’t specify the limit of the courts in the law making process. And also he seems to have undermined the legislature in making law.  But in overall he seems to be much obliged with the modern positivism which is the basic notion of analytical school. And it can’t be denied that justice is the ultimate goal of law. All legal principles are not the command enforced by sanction.


Selected Readings 
1.     Finch John D, Introduction to Legal Theory 2nd edition, Universal Law Publishing Co. Pvt.
2.     Christie George C., Jurisprudence Text Readings on the Philosophy of Law, West Publishing Co.
3.     Ojha Pawan K., Kanoon tatha Nyayaka Adharbhut Siddhanta, Prajatantra Niwas Tatha Kanoon.
4.     Khanal Rewatiraman, Muluki Ain Kehi Bibechana Sajha Prakashan,
5.     Dhyani S.N., Jurisprudence and Indian Legal Theory, Central Law Agency.
6.     Aggrawal Nomita, Jurisprudence Legal Theory, Central Law Publication.
7.     Lamsal Narayan Prasad, Jurisprudence, Pairabi Prakashan
8.     Mahajan V.D., Jurisprudence and Legal Theory, Eastern Book Company.
9.     Friedmann W., Legal Theory, Universal Law Publishing Co. Pvt. Ltd.
10.  Patonb G.W., A Textbook of Jurisprudence, Oxford, 4th Edition.
11.  Sarkar A.K., Summary of Salmond’s Jurisprudence, 3rd edition, A.M. Tripathy Pvt.Ltd
12.  Singh Avtar, Introduction to Jurisprudence, 2nd Edition, Wadna and Co. Nagpur.
13.  SangroulaYubaraj, Jurisprudence and Legal Theory, Pairabi Publication
14.  M.D.A Freeman, LLOyd’s Introduction to Jurisprudence, 7th edition, Sweet and Maxwell.
15.  Doherty,Michael Jurisprudence: The philosophy of law, 2nd edition, Bailey Press.
16.  Pradhananga Ranajit Bhakta, Silwal Kishor, A General Outline of Jurisprudence, , Ratna Pustak Bhandar.




[1] Prof. Nomita Aggrawal, Jurisprudence and Legal Theory, Central Law Publicationsp294, positive law itself argues in the part of law as it is and believes in data and experiences. It rejects the dogmatic and speculative assertions in philosophy. For Bentham, positivism refers to the laws as commands, making decisions from predetermined rules, no place for morality, social aims, policies.

[2] Narayan Prasad Lamsal, Jurisprudence, Pairabi Prakashan,p41
[3] Prof. Nomita Aggrawal, Jurisprudence and Legal Theory, Central Law Publicationsp294
[4] Narayan Prasad Lamsal, Jurisprudence, Pairabi Prakashan,p89
[5] Dr. Avtar Singh, Introduction to Jurisprudence, 2nd Edition, Wadna and Co. Nagpur p 89

[6] Ranajit Bhakta Pradhananga Kishor Silwal, A General Outline of Jurisprudence, , Ratna Pustak Bhandar, p29
[7] Michael Doherty, Jurisprudence: The philosophy of law, 2nd edition, Bailey Press p 76
[8] Dr. Avtar Singh, Introduction to Jurisprudence, 2nd Edition, Wadna and Co. Nagpur p 89
[9] Austin here represents the whole Analytical School except Salmond as the unique thoughts of Salmond is being reflected here.
[10] M.D.A Freeman, LLOyd’s Introduction to Jurisprudence, 7th edition, Sweet and Maxwell, p16
[11] Narayan Prasad Lamsal, Jurisprudence, Pairabi Prakashan,p51

[12] V.D. Mahajan, Jurisprudence and Legal Theory, Eastern Book Company p504

[13] Rewatiraman Khanal, Muluki Ain Kehi Bibechana Sajha Prakashan, p 26. We can take example of the Muluki Ain of Nepal 2020, which is applicable only within the premises of Nepal only. The peculiarity and complexity of any law in the country code leads to the formulation of specific  laws, for eg: ufnL a]OHhtL sf] sfg"g d'n'sL P]g cGt{ut ;fdfGo sfg"g lyof]. t/ To;df /x]sf] sdhf]/L x6fpg ufnL a]OHhtL sf] P]g @)!^ ljlzi6 sfg"g aGof]. 


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