2.4 Analytical / Positivist School of Law

Core claim: jurisprudence is the value-free analysis of law as it is — the structure, concepts and logic of positive law; morality is another subject. Exponents: Jeremy Bentham — the school's grandfather (though his heart was reformist): law analyzed as the sovereign's expression; the great codifier's utilitarian test — the greatest happiness of the greatest number — "nature has placed mankind under the governance of two sovereign masters, pain and pleasure." John Austin (The Province of Jurisprudence Determined, 1832) — the classic: law = command of a determinate sovereign, backed by sanction, habitually obeyed. Three elements — command, duty, sanction; the sovereign above the law (illimitable, indivisible). International law and custom are "positive morality," not law — the theory's famous costs. T. E. Holland & Salmond — systematisers: jurisprudence as the formal science of positive law; the analysis of rights/duties/persons/things (legal concepts as a grammar). Hans Kelsen (Pure Theory of Law) — analysis pushed to its limit: law as a hierarchy of norms, each validated by a higher norm, the chain ending in the postulated Grundnorm (basic norm); morality and sociology purged; a statute is valid because it was created per the constitution's norm — not because it is just or useful. Kelsen helped frame the postwar Austrian constitutional court — pure theory meeting real constitutions. H. L. A. Hart…