Analytical Positivism in Current Phenomenon

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The term consists of two basic words which need to be defined before understanding the concept of it.

ANALYTICAL: In general terms, analytical means of or relating to analysis of a concept. In simplifying it, it means dividing it into simpler elemental parts of basic principles.

POSITIVISM: Meaning of Positivism. The term ‘positivism’ has 5 meanings:
1. Law commands.
2. The analysis of the legal concepts is distinct from the sociological and historical inquiries and critical evaluation.
3. Pre-determined rules can deduce decisions.
4. Moral judgments cannot be accepted or defended by rational arguments.
5. Law, as it is (actually), has to be kept separate from the law that ought to be.
6. The fifth meaning is correctly associated with positivism.

Legal positivism is the most powerful school of thought in . The positivist movement began at the beginning of the 19th century. The analytical school is positive in its approach. The jurists of the school consider that the most important aspect of the law is its relation to the state. Law is treated as command emanating from the state. Due to this reason, this school is also known as the imperative school.

Analytical Positivism in Current Phenomenon

has defined law as the command of sovereign backed by sanctions.

defines law as:
1. Legal Laws are commands,
2. The analysis of legal concept is worth pursuing distinct from sociological and historical inquires.
3. Decisions can be deduced logically from pre-determined rules without recourse to social aims, Policies and Morality.
4. Moral judgments cannot be established or defended by rationale, arguments, evidence or proof
5. The law as it is actually laid down has to keep separate from the law that ought to be.

Analytical Positivism was the philosophy propounded by the French thinker, (1798-1875) who rejected theological and metaphysical approaches to the study of social phenomena and insisted on the scientific method of careful observation and logical inferences. In the field of jurisprudence, classical positivism is largely associated with the names of English jurists Bentham (1748-1832) and Austin (1790-1859). The Austianian analytical Positivism school is widely regarded as the classical positivist theory. After Austin, positivism was sought to be developed by ’s pure theory, neo-4 Rakesh Goyal, Democracy in Ancient India, assessed on 5 November 2017. Positivism is also known as logical positivism and the Hart concept.

Analytical Positivism in Current Phenomenon

Dynamic positivism sees law not only as it is, but also as it is likely to be examines the origin of the law, its trend and direction and possibly of guiding its progress smoothly. Positivism suggests that the study of law must be confined to the written rules and regulations, which are officially declared by the government. For all positivists, officially declared rules and principles constitute the most appropriate sources of the law.

Hence, statute enacted by the legislature, precedents made by the authorized courts and constitutions are the laws in proper sense. Such rules and principles may be properly considered as law because individuals may be held liable for disobeying them.
HLA Hart primarily deals with
1. Law and Coercion
2. Law and Morality
3. Nature of Rules ( Primary and Secondary)

Hart criticizes Austin’s theory of Command as people not only obey law because of sanctions and commands given by the sovereign but they accept it as being binding in nature and naturally followed by them. Rules are followed because of the acceptance in the society.

The idea of rule implies an obligation. He considers rules which generate pressure but short fall of physical sanctions as moral obligations but they exert physical pressure they can be considered primitive or rudimentary kind of law which have legal sanctions.

In his analysis Hart makes a distinction between two types of rules (primary and secondary). The separation of rules into these two different categories allows him to establish a method to determine the validity of a law, which is what determines whether it creates an obligation among citizens in a society or not. For the most part, Hart is able to create a very neat and consistent model to describe the legal system, but one inconsistency that I saw, and which I will address, is with the way that Hart incorporates judicial decisions into his system of rules.

RELEVANCE IN INDIAN LEGAL SYSTEM

The Supreme Court declared in Kesavananda Bharati v. State of Kerala that Article 368 did not enable Parliament to alter the basic structure or framework of the . This decision is not just a landmark in the evolution of Constitutional law, but a turning point in Constitutional history. Later on so many cases are decided by the Supreme Court in support of Fundamental rights.

In the case of Mumbai Kamgar Sabha, Bombay vs. Abdulbhai 23 AIR 1975 SC 2299 also Analytical Positivism was used by the Courts.
In Bandhua Mukti Motcha vs. Union of India Oxford English Dictionary defines PIL as “the common well being…..also public welfare”.

The landmark judgement by Justice Bhagwati in S.P. Gupta v. Union of India held that the new era of PIL movement by holding that any member of the public or social action group can maintain an application in the High Court or the Supreme Court on behalf of the people who because of poverty or any other disability are unable to safeguard their constitutional or legal rights.

The subsequent decisions of the Supreme Court in Fertilizer Corporation Kamgar Union (Regd.) Sindri v.Union of India, Free Legal Aid Committee, Jamshedpur v. State of Bihar, Rural Litigation and Entitlement Kendsra, Dehradun v. State of UP

M.C.Mehta v. Union of India , show the conception of the concept of PIL in India. Prof John Rawls says that human rights do not depend on any particular comprehensive moral doctrine, they express a minimum standard of well ordered political institutions for all people, who belong, as members in good standing, to a just political society of people. The emergence of the Indian supreme court as a custodian of peoples rights and a democratic, functional institution is the most significant and important development in the judicial history of independent India. The court in number of cases has expounded the scope of Art. 21 so as to safeguard the rights of prisoner.

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