Command and John Austin in Positivism
The idea of the command in Positivism under John Austin is one that is less applicable in the situation in Egan v Canada. There is not an express command preventing the access to the pension of his partner based on the nature of the relationship. However, if we are to look at the relationship between the Sovereign – Parliament – and the subordinate, the courts, there is a clear demonstration of the subordinate carrying out the intentions of the sovereign. In the case of Egan, we see the courts maintaining the traditional definition of spouse in order to maintain the goals of Parliament - that being the protection of the heterosexual marriage aimed at procreation.
Despite the connection between the sovereign and the subordinate, the decision in this case appears to be moral on its face and creates a problem in using John Austin's belief that morality should be separate from the positive law. The statutory interpretation employed in 'Egan is one in which the courts have clearly used a Natural Law perspective. It is engrained with a moral belief that a spouse must maintain the heterosexual standard, even if marriage is not a component. One of the arguments that Austin and Thomas Aquinas could agree on however, is that the subordinate was fulfilling its moral obligation to follow the law of the Sovereign. As noted by Justice LaForest, it is not the role of the courts to be critiquing Parliaments objective (Egan v Canada, page 517). Section 2 of the Old Age Security Act is also a regulatory piece of legislation that is not backed by sanctions.
On these issues, we will proceed using the HLA Hart, Bentham, and Raz. These modern thinkers found that if we are to separate the moral from the law, we are given the opportunity to critique and challenge the law. This is often thought of as the “radical” approach of modern legal positivism. As Jeremy Bentham noted, “we should never confuse the fact that certain rules were duly enacted by Parliament and so constituted “law” with the question whether these laws were any good, whether they made most people better off, whether they should be respected or, instead, ridiculed and repealed” (Class Lecture, Hall, LAW3020, 2014).With this quotation in mind, the case of Egan presents this very opportunity to critique both Parliament and the Supreme Court on its moral basis for Section 2 of the Old Age Security Act.
While the legislation does not expressly state that a same sex couple cannot recover, the ruling in this case does create a primary regulation, clearly stating that a same sex couple cannot claim benefits. However, the ruling of Egan is one that could also be considered a secondary rule. This is because it is one that is slowly evolving. Parliament altered the definition so that common law heterosexual couples could obtain the benefit that Egan was fighting for. The ruling may be viewed now as a mistaken application of the law, one that Hart would consider a moral mistake but the Rule of Recognition would support the courts decision.
The Rule of Recognition in this case demonstrates that the officials in the system, particularly the courts, feel that this is a valid interpretation and enforcement of the legislation. It has been applied consistently and the courts felt that they ought to apply the law and so they did, despite any moral implications the ruling could create. This approach is acceptable to Hart since, according to Hart, laws are considered to be human objects that do not base their law-ness on any moral substance. For the Majority, it was this obligation that created the social fact that the definition was to reinforce the heterosexual nature of marriage.
This internal point of view for the Majority created a scenario that developed the law-ness of Section 2’s traditional understanding of spouse. Looking back at the decision, we may feel that Majority was incorrect in their decision, this mistake is seen only as a “moral mistake”. The decision was one they thought they ought to apply and as such, is open to disobedience. The disobedience is easily seen in more recent rulings, ones that have embraced same sex unions, despite objections from the traditionalist perspectives of the right wing. The concept of disobedience is not one that would fit with Austin or Aquinas. The subordinate defying the Sovereign or flying against the Natural Law is not an acceptable behavior under these two theorists but is encouraged under the Modern Positivists.
The question under Bentham we must ask is if there was a net positive in this ruling?
At the time, this ruling argued that the gay community would gain a net positive from being recognized as two single men than as a same sex union. This is because Parliament put forward a scenario where the economic benefit was one where the Egan and his partner would be in a lower tax bracket and gain greater support from the system because of this. The utility of the ruling was actually to maintain the sanctity of marriage for the majority of society.
If the courts were to allow for same-sex couples to be recognized as equal to heterosexual couples, the utility of the ruling would not be seen to support the objective behind the legislation. This would not support a net utility in either case as we would have contradicting definitions of marriage. In 1995, same sex marriages were not as widely accepted as they are now. The Dissenting opinion in Egan was one that the Benthem would not truly agree with. There had been no rulings in support of recognizing a different definition and to find differently would allow the critique but not respect the law that had been put forth by Parliament.
The justification for state intervention in Egan was to “support and protect” the heterosexual relationship. For Raz, it is the “service conception” under the legal authority that we must concern ourselves with. If reinforcing the traditional female/male relationship furthers the social good, then Raz would agree with the ruling. However, the challenge to Section 15 of the Charter on the basis of discrimination of sexual orientation is one that would benefit a great number of those individuals who do not fit the traditional paradigm. This point brings in an element of Natural Law in that the belief of equality is a moral common good. The question is whether this state intervention helps the subordinates co-ordinate their actions in manner that benefits a social or individual good.
Arguably, the theorists of the Positivist framework may split on the decision of Egan, mainly depending on the framing of the issue. The first framing is the enforcement of the decision of Parliament to exclude same-sex couples from the definition of spouse under Section 2 of the Old Age Security Act. The second would be the framing of equality, discrimination, and Section 15 of the Charter, as posed under Raz.