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
[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
[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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