Course:Law3020/2014WT1/Group E/Positivism

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Legal Positivism

John Austin

Legal Positivism is an approach that arose as a reaction to the teleological nature of natural law. Rather than finding that law must be defined in normative terms, legal positivist seek to offer a normatively neutral definition or explanation of law. Legal positive see law as a societal fact, which is to be characterized using empirical and evaluative neutral terms. Accordingly legal positivist focus on what the law is, and not what it should be. While there are different Positivist theorists, each with their own characterizations and justifications of legal positivism, the basic tenet that links them together is the belief law is a human construct. While natural law theorists propose that all law derives from God or some higher power, legal positivists do not reject religion entirely as a source of law, but distinguish God’s law from other human sources of law.

John Austin a major advocate of the legal positivist theory determined that there are three kinds of directives governing humans; 1) god’s law (religion), 2) positive morality (norms, customs ect), and 3) positive law (a command, created by the sovereign, and backed by sanctions). While natural law believes that valid law must be moral, legal positivist find that both positive law and positive morality may be immoral (although congruence is desirable). Accordingly Positivist believe that law and morality remain separate. The separation however allows for morality to be used to gauge the validity of laws.

Austin found that in order for a law to be valid it must be; 1) empirically provable, 2) must be a command, made by the sovereign, backed by sanctions 3) must be made in accordance with the law making jurisdiction regarding the creation of law.

According to Austin the superior is the sovereign who is a determinate and common superior to whom the bulk of a given society are in a habit of obedience or submission. The sovereign can be either an individual or an aggregate body. With regards to sanctions, Austin believed that a sanction could either be a conditional good or a conditional evil.

Austin also contended that in order for a law to be valid it had to be created in accordance with the rule of the law-making jurisdiction regarding the creation of law. In order to meet this requirement a law must pass the so-called “Pedigree Test”. The main questions to be asked under the test are; What is the rule origins? And did it come into being correctly as a law according to the rules of the system? Austin defined judges as a “subordinate”, who act as a minister carrying out the limited authority which has been delegated to him or her by the state (and which may be over-ruled by the state). Further judge’s decisions were considered by Austin to be specific commands, as opposed to legislation, which are generalized rules.

Following John Austin, modern legal positivist such as Jeremy Bentham, HLA Hart, and Joseph Raz began to individually modify and expand aspects of the theory. HLA Hart one of the modern legal positivist determined contrary to Austin that laws are not commands, but in fact are different types of rules; primary rules and secondary rules. Primary rules inform people of what we can and cannot do, and secondary rules; are the rules that outline how rules can be changed, how to adjudicate disputes about the rules. Also contrary to Austin, Hart found that laws are not obeyed as a result of them being commands, but due to the Rule of Recognition. Hart found that in order for laws to be valid, officials within the legal system must recognize them as valid. Accordingly they must consistently apply them to guide their behaviour and believe that they ought to apply them, and engage in such behaviour. However, the belief that they should apply them does not mean that they are moral.

Application to KLB. v. BC

The court in KLB v BC had to analyze and apply the statutory Limitations Act, Protection of Children Act and the common law principle of Negligence. As noted, John Austin found that in order for law to be valid it had to be; 1) empirically provable, 2) a command, made by the sovereign, backed by sanctions, and 3) made in accordance with the law making jurisdiction regarding the creation of law. Accordingly, to determine whether Austin would find The Limitation’s Act and common law negligence valid, each must be assessed through the three noted requirements.

Limitation Act

Austin found that for a law to be empirically provable it had to posses the other two required characteristics of a valid law.

Command, made by sovereign, backed by sanction; On its face the Limitation Act does not seem to be a command, but more a guiding principle. However, it would appear that the Limitation Act is a command to the extent that it forces a person to either make a claim within a certain amount of time or face repercussions. A failure to comply with the Limitation Act results in an individual being barred from claiming an action entirely, which can be viewed as the Acts associated punishment.

The Limitation Act is a statute passed by Parliament, and therefore would be considered by Austin to be passed by the sovereign. Although there is no “Pedigree Test” in Parliament per se, the Statutory Instruments Act, and obligatory three readings process, appears to be analogous. The Limitations Act was passed through all noted requirements and therefore would be considered by Austin to have been made in accordance with the creation laws of the jurisdiction. As a result of The Limitations Act fulfilling the above two requirements, Austin would also find that it would be empirically provable. Accordingly Austin would determine The Limitations Act to be a valid law.

Protection of Children Act

The Protection of Children Act can also be classified as a command, to the extent that it demands government to act in a way that ensures the safety of children. The Act was created by Parliament, the sovereign and passed all necessary formation requirements prior to being enforced. It would appear however that the legislation is not backed by any sanctions per se. The punishment that may be incurred from violating the legislation results not from any stipulation in the Act, but from a breach of duty the legislation potentially establishes. It would appear that Austin may find that this technicality would render the Protection of Children Act invalid.


Empirically provable; as noted in order for a law to be empirically provable, it must meet Austin’s other other two characteristics of a valid law. The principle of negligence appears to be a command as it requires people to conduct themselves in a reasonable way to prevent harm to others. Failure to comply with neglience, results in wrongdoers having to pay for the damages they have caused. Accrodinly the payment of compensation would essentially be the principles associated punishment.

However, the requirement for the law to be created by the sovereign is where the common law principle of negligence would fail in validity according to Austin. Common law principles are created by judges, which Austin found to be ministers of the sovereign and not the sovereign itself. Accordingly it would appear that Austin would not find negligence to be a valid law.

HLA Hart did not agree with Austin that laws were commands backed by sanctions. Instead he found that laws were either Primary rules, which serve to inform people of what they can and cannot do, and secondary rules, which are the rules that outline how other rules can be changed. Based on these descriptions, Hart would likely find that both The Limitations Act and Principle of Negligence are primary rules informing people what they can and cannot do in certain circumstances. The Limitations Act states when a person can and cannot make a claim of action, and Principle of Negligence establishes conduct we can and cannot do to ensure the safety of our “neighbours”.

Decision of the Court

As noted the court ultimately decided that while there was a finding of negligence, the Limitation Act barred the claim. Austin, likely finding that the Limitations Act is valid law, would support the courts decision to enforce the Acts restrictions. Further the judges seemed to maintain their ministerial role as Austin titled it, by having their decision reflect the principles of the sovereign made Limitation Act.

In reference to the facts of this case the decision would appear to be harsh, immoral and wrong. However, Austin would likely find that although the ruling may be morally objectionable and unjust, it is still valid, as morality remains separate from law. Further it would be likely that Austin would support the decision of the court to allow the Limitations Act negate Negligence, as he believed that judge made law could always be overruled by the state, i.e. Parliament.

Hart would likely find that the court’s decision to apply the Protection of Children Act, Limitations Act and Negligence exemplified the Rule of Recognition. As noted Hart believed that a law was valid due to officials in the legal system believing that they are valid, and believing that they ought to apply them. In the present case it would appear that the court found that it was necessary to apply both pieces of law, and that they are both necessary to identify and guide lawful behaviour. Accordingly the validity all three laws, flowed from the judges recognition, and application of them.

While natural law and legal positivism would both find the judgment to be valid, their reasoning would be largely different. Hart would likely disagree with natural law and find that there was no necessity for the court in the present case to apply law, and establish decisions that promote the common good. In contrast, Hart would find that if the court had based their decision on principles associated with the common good, it would have a resulted in a morally based decision, rather than a legal one. Hart would however be fine with the idea that if the judges in fact based their decision on a legal premise (i.e. The Limitation Act) they were able use moral principles such as achieving the common good to gauge the validity of the results.