Legal Positivism: Austin and beyond
“Legal Positivism” is a theory about the nature of law developed over last 200 years by, among others, John Austin, Jeremy Bentham, HLA Hart, and Joseph Raz. Generally, legal positivists see law as a social fact, which is to be characterized using only empirical and evaluatively neutral terms. Focusing on John Austin, he believed there was three main types of directives governing humans: God’s law, positive morality, and positive law. The main two that will be focused on are positive morality and positive law. Positive Morality is essentially manner, custims, club rules, international law, etc., or more generally social norms that members of society adhere to. Positive Law is considered to be a command, issued by superiors to subordinates, and backed by sanctions. Its important to note that both positive morality and positive law may be immoral, but it is ideal to have moral laws.
Using the theory of Legal Positivism to evaluate Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.),  3 SCR 925 [Winnipeg Child and Family Services] results in an interesting contrast between the majority and dissenting opinions. Looking at the majority first, Legal Positivism can be used to explain the way their decision was crafted. The essence of the majority decision not to allow the respondent to be placed in custody of the Director of Child and Family Services and detained in a health centre until the birth of her child rested upon the fact that in their opinion, there was no law giving them the power to do so. Two different potential avenues of the law were looked at, the common law, and the legislation. Looking at the legislation, the Majority decided that it did not authorize the Court to extend any power over the respondent. The principle reason for that conclusion was because the Law of Canada did not recognize an unborn fetus as a legal person, therefore there is no person on whose behalf the Court could act. Further, the Court declared that this was an issue for the legislature to preside over, and the Court should respect the legislature’s prerogative. From a legal positivist’s perspective, the reason the Court could not extend the state’s power over the defendant was that there was no valid law that gave them the right. According to John Austin, the requirements of a valid law are that it must be a command, which is issued by superiors, and it must be backed by sanctions. Further, it must be created in accordance with the rule of the law making jurisdiction regarding the creation of law. In other words, did it come into being correctly as a law according to the rules of the systems? In this instance, the Court was stating that there was no command issued by superiors to subordinates. The legislature had not created legislation to give the state the power to place the respondent in a medical centre, which meant that there was no valid law governing that situation. As a result, the Court should not back the plaintiff’s request with sanctions, because it was not a valid law. This decision also fits with a legal positivist’s perspective because the law and morality are not necessarily the same thing. It is preferable that they coincide, but a law does not have to be moral. In this situation, it appears law and morality (from a certain point of view) do not concur, as protecting the unborn fetus from a potential lifelong disability would appear to have been the morally correct choice. Or at the least it is open to debate, which is in keeping with the critical view of law a legal positivist would encourage. The other avenue of law that the majority of the court refused to extend in favour of the appellant was the Parens Patriae jurisdiction of the court. Parens patriae arose out of the Court’s common law power, and at the point in time Winnipeg Child and Family Services took place, had not ever been extended to protect an unborn fetus. The common law is a difficult thing to evaluate through the lens of a legal positivist, because it fits awkwardly into the scheme of what is a valid law. Presuming in this case that the legislature has formally given the judiciary the power to apply common law and that this is a valid law ( a command, issued by superiors, backed by sanctions), the Court does have the power to interpret and apply the common law by using sanctions. In this situation, the majority decided that it would be more than an incremental change to allow the jurisdiction of parens patriae to be used on behalf of an unborn fetus. Again, the decision is open for debate in terms of the morality of not extending the common law power, but the Court makes a decision that a legal positivist would view as valid law (on the assumption stated earlier). To summarize the majority’s decision, it fits very nicely with John Austin’s theoritcal view of legal positivism. From his perspective, even if we do not like a law, until it is changed we must still abide by it. The court applies this principle with respect to both the legislation, and the parens patriae jurisdiction, by ruling the law did not allow the state to intervene on the behalf of an unborn fetus, whether it wished to or not.
Looking at the dissent’s ruling in Winnipeg Child and Family Services, the view expressed can be viewed as either agreeing or conflicting with a legal positivists point of view. Presuming a valid command from the legislature has given the Court’s the ability to exercise the common law on their behalf, the dissent argues that the Court has the power to extend the jurisdiction of parens patriae to protect unborn fetus’. Under John Austin’s theoretical perspective, the ideal law is one that is concurrant with morality. In this situation the dissent is suggesting the Court has the power to make a valid law that is moral in nature by using parens patriae jurisdiction to protect unborn fetus’s. It would be a valid law, as it came from a command, (through the superior, i.e. legislature’s approval) that the Court would be willing to back by sanctions (confinement in a medical centre). The dissent even supplied a test that would help to ensure the valid law the Court would be backing with sanctions was moral, and would even provide a scientific (empirical) method of decision. In keeping with Austin’s perspective, the dissent also pointed out that the state (superior) may issue another statute later that overrules the Court’s decision, as is there prerogative. On the other hand, if Austin’s theory is interpreted a little more literally, his idea that judicial decisions are specific commands, as opposed to generalized rules applying to a class of people, would provide a little more difficulty with the dissent’s proposition. The command the dissent proposed would apply to an entire class of people in the future as a generalized rule, because it gives the state the power to step in when the criteria he proposed has been met. From that perspective the Court’s ruling would not be a valid law, because it would potentially fall outside the power given to the court by the legislature (superior) and therefore not originate from the proper ruling body to form a valid law. However, this is the weaker argument, and its more in keeping with Austin’s theory that the law and morality intersect, which is possible through the Court’s use of the parens patriae doctrine.
HLA Hart’s view of legal positivism sees laws as human artifacts, that are not dependent on moral content for their validity, and they may be disobeyed when warranted if the law is immoral. Looking at the majority decision in Winnipeg Child and Family Services, Hart’s perspective would fit with the decision on the basis that law does not have to be moral. Again, it is debatable what the most moral outcome is in the situation, but Hart allows for that divergence between law and morality. The Court was applying a recognized set of criteria, which they believed they ought to apply, helping them to arrive at the decision that they did not have the power to step in on the unborn fetus’s behalf. By following the “criteria” which they believed they were obliged to, the majority demonstrated Hart’s rule of recognition. After applying the law, it is then debatable whether the law merits being followed based on its morality/immorality. Looking at the dissent, the proposition clashes a little with Hart’s rule of recognition, because the dissent suggests progressing away from the established boundaries the Court had previously felt bound by, and extending the parens patriae jurisdiction to cover the unborn fetus. The reason being that medical technology has progressed to such a degree it is time to shift the application of the common law in this area. That postulation parallels Hart’s theory in another way though by suggesting the Court “disobey” the law (because there is no law giving the state the power requested) on moral grounds. That conclusion flows from the dissent’s opinion that it is immoral to not intervene in the case of an unborn fetus who will likely be born with a permanent disability is the state does not intervene.
Acording to Joseph Raz, a claim of authority is justified if the authority actually performs a service for its subjects, helping them really act better than they would without the benefit of the authorities intervention. In this scenario, the dissent’s opinion fits best with this theory. The dissent suggests that the state has an obligation to step in on the unborn fetus’ behalf. Further, it is in the state’s best interest to intervene because of the cost to the state if the child is subsequently born with a permanent disability, and the intervention may enable the respondent to break their addiction. Therefore, the claim of authority would be justified, because the intervention would benefit them personally, and it would help to decrease the costs to the rest of society. The majority decision would not fit as well with the theory of a justified claim of authority, unless it could be argued that a lack of state intervention in that scenario would help them act better. If that was so, then the claim of authority by the state that no intervention should occur could be a justified claim.