Course:Law3020/2014WT1/Group I/Positivism

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Austin’s Theory of Legal Positivism

John Austin.jpg

The theory of Legal Positivism greatly differs from the Theory of Natural Law in that it identifies law and morality as separate from one another. Unlike Natural Law, Legal Positivism places focus not upon the morality of the law, but its source. Legal Positivists believe the validity of a law stems solely from it’s source and that a law is valid if it has been established through the appropriate avenues of it’s respective government. If the law has been passed through the appropriate avenues then it satisfies Austin's "Pedigree Test" and may be considered to be a valid law whether or not it is moral. Morality according to Legal Positivism has no place in the Law. Instead a law must satsify three criteria

It must be;

  1. a command
  2. issued by superiors to subordinates
  3. backed by a threat of sanction

Judges and Common Law within Legal Positivism

Within this paradigm judges are seen as possessing sovereign authority through the power dictated to them by the governing sovereignty. Because of this delegated power, common law holds the same power as legislative law, as it is law issued by superiors (judges) to subordinates. Common law however, frequently fails the final part of Austin’s test under positive law in that the court cannot create sanctions for a failure to obey a common law. According to Austin this failure to provide a sanction classifies the law as an imperfect law, a law that speaks to the desires of political superiors but which are not accompanied by sanctions. This was the case in E v. Eve.

Positivism Applied to E v. Eve

Within E v. Eve the court was determining whether or not guardians of mentally incompetent people were able to have non-therapeutic sterilizations imposed upon their wards. The courts looked at several statutes including the Mental Health Act and the Hospital Regulations Act and found that neither of these statutes applied to the case at bar as they did not deal directly with non-therapeutic sterilizations of wards by the request of their guardians. Had the court found that these statutes were applicable however, they would have been an excellent example of Austin’s theory of positivism at work.

Superiors issued both statutes to subordinates, through the appropriate enactment of legislation, satisfying Austin’s “pedigree test”. At least one of the acts also satisfied the requirement of sanctions, the Hospital Regulations Act imposed a fine as well as potential imprisonment under s. 16. The courts however, found that neither the Hospital Regulations Act nor the Mental Health Act were applicable in this case, instead common law was imposed catapulting this case into the grey area of Austin’s positivist approach to common law.

According to Austin and Legal Positivism the judges ruling against non-therapeutic sterilization of mentally incompetent people is an Imperfect Law as it does not contain a sanction.

Parens Patriae

Parens Patriae is a common law doctrine founded on the principles of protecting those who can not protect themselves. Though this has not been enacted by legislation through the appropriate avenues, and thus has not become real law according to Legal Positivism, it is a common law doctrine that is used to make legal decisions within courts. In the case of E v. Eve this doctrine was the deciding factor in the judges decision.

It is difficult to fit a common law doctrine within Austin’s framework of Legal Positivism as it does not satisfy Austin’s test for a law outlined above, but is still maintained as a legal guideline within the courts. It is also difficult to apply to Legal Positivism as this common law doctrine falls within the moral scope that Austin purports is to be separate from the law. As discussed above, Legal Positivism focuses on the separation of law and morality, common law doctrines such as Parens Patriae however, are often directly sourced from morality. The idea of defending the helpless is a moral concept though not always necessarily a legal one. It is therefore exceptionally difficult to apply the Parens Patriae doctrine within the Legal Positivism Perspective.


As outlined above common law according to Austin is true law as it satisfies his pedigree test and is issued by government appointed superiors, judges. After that however, it is much more difficult to apply his positivist theory to common law. In the case of E v. Eve there was no sanctions written out by the court but simply an acknowledgement that a guardian does not have the power to issue a non-therapeutic sterilization of their ward. This according to Austin forms an imperfect law, a difficult concept to grasp considering it is these imperfect laws, that govern much of the judicial system and therefore a large majority of the law within Canada. In addition the common law doctrine of Parens Patriae applied in the case of E v. Eve, also fails to fall within Legal Positivism as it is a moral concept and would fail Austin’s “Pedigree Test” as it was not enacted through appropriate legislation. E v. Eve is not an appropriate representation of Austin’s Legal Positivism, as it is difficult to fit within Austin’s framework and fails his tests.