Analytical Jurisprudence: Conceptual Framework

Mitrokhin Sergey Sergeevich Postgraduate, Department Theory and History of State and Law, St. Petersburg State University 7-9 Universitetskaya Embankment, St Petersburg, Russia, 199034 mitrokhs@yandex.ru

1. Problem statement

In legal science, analytical jurisprudence is understood and characterized ambiguously. In Russian jurisprudence, it is often defined as a kind of positivist theory of law in the analytical positivism/sociological positivism dichotomy ^{[9, p. 14]}. Geographic reference to English-speaking countries is often added to the identifying criteria. As a result, analytical jurisprudence appears as the normativism of English and American thinkers ^{[2, pp. 361-362]}. In this form, with critical remarks about the teachings of the founder of analytical jurisprudence, J. Austin ^{[26, p. 431-432]}, sometimes it is assigned the role of the preceding stage of the analytical philosophy of law, which in turn concentrates on the language of law ^{[18, pp. 83-107]}. Attempts are also being made to define analytical jurisprudence by identifying it with legal dogmatics ^{[11, p. 20]}.

In connection with such a research situation, the judgments of one of the most authoritative Russian legal theorists, S. S. Alekseev, may look indicative. He explicitly pointed out that "the formulas and definitions of "legal dogmatics", "legal positivism", "analytical jurisprudence" are basically equivalent in meaning and meaning" ^{[1, p. 12]}, while noting that the term "analytical jurisprudence" has a less negative connotation than the others given ^{[1, p. 12]}. p. 12].

At the same time, there is a stable view in Anglo-American legal thought that analytical jurisprudence has two stages of its development ^{[20, p. 251]}. The first stage of analytical jurisprudence includes the teachings of J. Austin and his followers; the new analysts whose ideas constitute the second stage are representatives of Anglo-American thought of the postwar period, the leading of which is G. L. A. Hart ^{[37, p. 862-863]}. At the same time, it is noted in the Anglo-American legal literature that Hart's revived and reoriented jurisprudence, as well as subsequent works written in this tradition, still largely live at the expense of Austin's legacy ^{[35, p. 872]}.

In this regard, the teachings of J. Austin and G. L. A. Hart can be elevated to "standard cases" of analytical jurisprudence of different stages. Based on their comparative analysis, it is possible to explicate characteristics that allow identifying analytical jurisprudence.

2. Projects of the jurisprudence of J. Austin and G. L. A. Hart

Today, Austin's views are associated primarily with the understanding of law as an order of the sovereign, however, the type of legal understanding in the meaning of the idea that there is law ^{[5, p. 7]} does not cover the entire teaching of the English lawyer. In this regard, J. Postema notes that it was not Austin's concept of law, the theory of sovereign commands, but his concept of jurisprudence that dominated thinking about law in analytical jurisprudence ^{[35, p. 873-874]}.

Austin began his epoch-making work with the statement that "the subject of jurisprudence is positive law: law, so called in a simple and strict way..." ^{[19, p. 83]}. However, he noted: "But positive law ... is often confused with objects with which it is in a relationship of similarity, and with objects with which it relates by analogy: with objects that are also designated, appropriately and inappropriately, using the broad and vague expression "law" ["law"]. In order to avoid the difficulties associated with this confusion, I begin my planned Course by defining the field of jurisprudence or by separating the subject of jurisprudence from these various, related objects, trying to determine the subject that I intend to consider before I begin to analyze its numerous and complex parts" (my italics. – SM) ^{[19, p. 83]}. Thus, the justification of the positivist type of legal understanding for Austin was not an end in itself. Such a position was necessary for the implementation of an attempt to construct jurisprudence as a science with a separate subject, i.e. separated from other objects, within which research had to continue. It was this that gave rise to the domestic lawyer V. D. Katkov to declare that the science of jurisprudence appeared when Austin separated it from morality ^{[12, p. 286]}.

Austin, like Bentham ^{[3, p. 338]}, divided legal science into private and general. And if the first was devoted to the study of positive laws and rules of a certain community ^{[19, p. 441]}, the second was characterized as follows: "So, by general jurisprudence, I mean the science dealing with the presentation of principles, concepts and distinctions common to legal systems, understanding by legal systems more developed and more mature systems" ^{[19, p. 443]}. It is obvious that general jurisprudence, which received its further spread as analytical jurisprudence ^{[14, p. 60]} in Austin's presentation, was not aimed at studying the specific content of individual positive legal norms. As can be seen from the above judgment, it implied an understanding of theoretical phenomena in the form of a certain set of general principles, concepts and distinctions.

Austin also determined the nature of the study of this subject. Developing the idea of I. Bentham ^{[3, p. 387]}, he noted that "the existence of law is one thing, and its dignity or disadvantage is another" ^{[19, p. 265]}. As a result, "the science of jurisprudence (or, simply and briefly, jurisprudence) deals with positive laws, or laws clearly so-called, considered without taking into account their positive or negative features" ^{[19, pp. 206-207]}. In this sense, legal science, according to Austin's ideas, should be aimed at descriptive research.

However, Austin's idea did not receive proper methodological elaboration. On the one hand, Austin noted that the theoretical phenomena that make up the subject of general jurisprudence act as abstractions from positive legal systems ^{[19, pp. 442-444]}, and therefore, to identify them, it is necessary to refer to specific empirical material. Austin referred to such material as the writings of Roman lawyers, contemporary decisions of English courts and some provisions of the French and Prussian codes ^{[19, p. 448]}. In this regard, indeed, there are grounds to state that Austin's task was empirical in the sense that he wanted to present or describe in theoretical terms actually existing legal systems, identify common elements for them and organize them into a body of scientific knowledge ^{[27, p. 85]}. However, on the other hand, Austin argued that based on the study of such material, assumptions can be made for all legal systems ^{[19, p. 448]}. At the same time, he also noted that each system of law implies general concepts and distinctions, along with many conclusions that are assumed by these concepts and distinctions and which are extracted from them by the creators of the corresponding system through almost inevitable conclusions ^{[19, p. 444]}. In this sense, we are no longer talking about empirical, but about conceptual research, where the relevant concepts come to the fore not the actual data that need to be described and systematized ^{[27, p. 85-86]}. Thus, there is a mixture of conceptual and empirical reasoning. In this regard, B. Bix, demonstrating the forms of legal theories, including descriptive (based on empirical data) and conceptual, rightly notes that there is a difficulty with the classification of Austin's theory ^{[4, pp. 189-190]}.

The unresolved methodological issues in the Austin project are also evident in the description of the process of defining legal terms. As Austin argued, the explanation of general concepts, principles and distinctions should begin with the definition of the meaning of the basic terms that are inevitably present in the process of legal research. As an example, he referred to such terms as objective law, subjective right, obligation, harm, sanction, person, thing, action, abstinence from action ^{[19, p. 444]}. However, having outlined this task, Austin did not offer a detailed methodological teaching for its implementation. In this regard, the following arguments of his are indicative. On the one hand, the English thinker pointed out the inadmissibility of formulating definitions in a formal or conventional way ^{[19, p. 446]}. On the other hand, the succinctly stated concept of analyzing such concepts was as follows: "First show the similarities between them, and then their specific differences; next, indicate why they are summed up in a general expression, and then explain the signs by which they are distinguished" ^{[19, p. 447]}. At least, this does not imply a rejection of the generic method of definition (per genus et differentiam). In addition, E. Halpin reasonably states that Austin was consistently committed to the principle of per genus et differentiam, which is expressed in his allocation of various classes of laws and rules, in a way of separating law from morality and giving the student the opportunity to deal with differences and divisions related exclusively to law ^{[31, p. 27]}.

Thus, Austin constructed a project of jurisprudence with a general character, which later became known as analytical jurisprudence, in which positive law was the subject of research at the conceptual (abstract) level and in a descriptive way. However, Austin has not developed a methodology to facilitate the consistent implementation of such a study.

Despite the long discussions that directly affected the problems of Austin's teaching ^{[34, p. 3-42]}, it is rightly considered in the legal literature that the most developed updated draft of analytical jurisprudence arose only in the middle of the XX century in the writings of Hart ^{[13, pp. 41-43]}. At the same time, it is noted in the English-language legal discourse that "no serious author writing on the topics that Professor Hart dealt with can afford to neglect his work, and the key concepts that he dealt with will be discussed for a long time within the parameters laid down by him" ^{[30, p. 1]}. In this regard, using Hart's terminology, it can be concluded that his project of analytical jurisprudence is the "core" of the second stage.

Like many of Austin's predecessors ^{[15, pp. 106-122]}, Hart criticized his ideas of law as the command of the sovereign ^{[22, pp. 26-84]}. At the same time, Hart criticized the concept of positivism for ambiguity ^{[24, p. 179]}. However, his understanding of law in the differentiation of uspositivism/usnaturalism remained in a positivist vein ^{[22, 85-127]}.

Hart, like the founder of analytical jurisprudence, insisted on the general nature of his theory. He noted that his theory is general in the sense that it is not tied to any particular legal system or legal culture, it seeks to explain and clarify law as a complex social and political institution ^{[31, p. 239]}. The English lawyer also insisted on the descriptive nature of his theory. He pointed out that his presentation is descriptive in nature, since it is morally neutral and does not pursue the goal of moral justification of law ^{[31, p. 240]}.

Hart's involvement in jurisprudence of the ideas of analytical philosophers ^{[35, p. 215-218]} led to the formation of a new methodology for the analysis of legal concepts. Noting the excessive importance for analytical jurisprudence of issues of analysis and definition of concepts ^{[23, p. 200]}, Hart, as is known, criticized the previously existing scheme of concept analysis, expressed in questions like "What is objective law?" ^{[21, p. 8-12]}. Instead, "he proposed a concept that, on the contrary, starts from existing discursive practices, aims to cover their multiplicity, heterogeneity, uncertainty, etc., to explicate the semantic connections and distinctions contained in them, to perceive the latter as a kind of starting point and criterion for verifying theoretical statements" ^{[10, p. 49]}. In this sense, Hart's descriptive jurisprudence has acquired a conceptual character.

However, Hart's jurisprudence, like Austin's law science project, still has a general and descriptive character, suggesting a positivist understanding of law.

3. Attempts to construct new boundaries

In the theory of law, attempts have been repeatedly made and continue to be made to expand the outlined framework of analytical jurisprudence.

One of these attempts was made by R. Summers when conceptualizing two stages of analytical jurisprudence. He rightly pointed out that analytical jurisprudence as a whole appears as a scientific discipline in which many problems are investigated ^{[37, p. 888]}. At the same time, he naturally focused on the distinctive features of the respective stages, while noting that such differences are very large ^{[37, p. 862-863]}. Regarding the unifying element of the respective stages, R. Summers pointed out that their constituent works were performed in an analytical manner ^{[37, p. 862-863]}. This key, according to the American lawyer, is provided by conceptual analysis ^{[37, p. 865-866]}.

R. Summers, ignoring the general nature of analytical jurisprudence, attacked the positivist legal understanding as its necessary component. According to him, a scientist can engage in analytical work without adhering to the theses of legal positivism ^{[37, p. 890]}.

The shift in emphasis to the methodological component in the form of conceptual analysis for the identification of analysts is quite widespread in the Anglo-American legal literature. In this regard, M. Giudice believes that analytical jurisprudence and conceptual analysis of law are often identified as the same project, as interchangeable descriptions of the same activity ^{[29, p. 18-19]}. This allows us to expand the scope of the analytical tradition to include some natural law theories. As A. B. Didikin notes, "the existing analytical concepts of natural law can be attributed to the analytical tradition, where the key postulates are justified not by breaking the principles of natural law with a positive legal system, but on the contrary, by the desire to "fit" into the legal context moral concepts and principles of justice, which inevitably affect the process of making judicial and administrative decisions" ^{[8, p. 22]}.

On the one hand, the inclusion of philosophical methodology in legal science fits perfectly into the logic of the prospects of jurisprudence, outlined by the leader of the second stage of analytical jurisprudence, Hart. "I think that patronizing the restoration of friendly relations between jurisprudence and philosophy would be very useful. After all, modern philosophy not only deals with the problems of everyday language, but also speaks it; and now there is no longer a barrier between these two sciences from the metaphysical jargon of technical terms" (Hart 2015: 205). Moreover, there is an opinion in the English-language theory of law, according to which "for Hart, jurisprudence was primarily a branch of philosophy, involving the application of philosophical ideas and methods both to the criticism of law and to the conceptual analysis of law, legal systems and legal concepts" ^{[33, p. 17]}.

However, on the other hand, such an identification cannot be without significant criticisms.

Firstly, the identification of conceptual analysis and analytical jurisprudence does not necessarily make it possible to explicate the continuity between Austin's analytical jurisprudence and new analysts. As has been demonstrated earlier, it is impossible to say with full confidence that Austin's jurisprudence is based on conceptual analysis.

Secondly, the elimination of legal positivism from the identifying characteristics of analytical jurisprudence leads to the extrapolation of philosophical knowledge into the field of jurisprudence without taking into account this fundamental problem of the type of legal understanding. This trend can be demonstrated by the following judgment of A. B. Didikin: "Due to the influence of the discussion of G. Hart and L. Fuller and the shift of analytical methodology to the field of jurisprudence, the division of types of legal understanding into legalistic and natural law is losing its relevance. Since the 50s of the XX century, a new integrative concept has appeared in the philosophy of law, uniting all existing philosophical and legal concepts into one whole - into the analytical philosophy of law" ^{[7, p. 65]}. In this regard, analytical jurisprudence risks becoming nothing more than a ground for the application of a certain philosophical methodology. Such trends in their final form can contribute to the complete absorption of analytical jurisprudence by philosophical discourse, i.e., its loss of the status of a project of legal science and transformation into a separate field of philosophical knowledge – analytical philosophy of law ^{[16, pp. 46-52]}, which has its own specific problems.

Thirdly, in general, in philosophy, conceptual analysis acts as "the definition of individually necessary and jointly sufficient conditions for the application of the concept under consideration" ^{[20, p. 161]}. However, as researchers in the field of the history of philosophical thought show, in fact, even within the framework of one tradition, there is no single understanding of analysis. "Unfortunately, even in the context of the analytical tradition, "analysis" means not just different, but often incompatible procedures. None of these forms of analysis are accepted by all analytical philosophers, and some of them can also be found outside analytical philosophy" ^{[6, p. 222]}. The same problem exists with the conceptual analysis used in legal research. Attempts to apply it in the field of law represent various techniques ^{[17, pp. 107-108]}. In this regard, the isolation of an entire scientific field in the study of law on the basis of a single conceptual analysis looks rather speculative.

Fourthly, even assuming a unified understanding of conceptual analysis as analytical jurisprudence, expressed in the fact that analytical jurisprudence is engaged in explaining the nature of law, trying to identify and explain those features that turn law into what it is ^{[28, p. 17]}, does not contribute to the formation of a separate direction of law research. In essence, in a similar way, this direction is replaced by analytical activity in the philosophical dimension. In this regard, it seems logical to conclude that any study of law in which it is postulated that law has essential properties, and in which the goal is to identify them, belongs to analytical jurisprudence ^{[28, p. 21]}. However, it is obvious that in this way analytical jurisprudence is identified with the philosophy of law.

So, the condition for the possibility of distinguishing analytical jurisprudence as an independent, continuously developing field of legal research is the preservation of those characteristics that were constructed by Austin and developed in the Hart jurisprudence project: its general and descriptive character combined with a positivist legal understanding.