John Austin: Legal Positivism
Legal Positivism separates itself from moral obligation, differentiating it from the theory of Natural law. This separation allows us to step back and question the effect of the law itself. Legal positivism allows for disobedience where the law is immoral.
In E.B. v. Order of the Oblates, we apply the directives of John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz to determine whether the outcome be seen as valid in the eyes of each theorist.
Austin would likely believe that a common law-created law would be allowed to remain in effect, as it has not been disapproved of by the sovereign.
The common law requirement outlined in the Bazley case was determined by the judge, who would be acting as a minister with authority given to him by the sovereign. In Canada, we may consider the sovereign to be the Constitution, in that the Ministers who create legislation are subordinate to it. In this way, this common law is issued by a superior to subordinates. This is also backed by sanctions, in that those who are found to be vicariously liable under the Bazley test would be punished.
Under the pedigree test, the rule must be in harmony with the rule of the law-making jurisdiction. The common law authority that created the Bazley test would be considered to be in accordance with the law-making jurisdiction. The common law is given passive legitimacy, because it is valid until the legislative authority strikes it down.
According to Hart, the common law rule of vicarious liability would be a primary rule. This means that the rule tells us what we can and cannot do.
The Bazley test for vicarious liability outlines the requirements in which an employer may be found to be liable for the tortious actions of an employee, and what an employer must not do to be found guilty of this. Under Hart’s rule of recognition, valid laws must be recognized by officials within the legal system, and it must be consistently applied by these officials, with the belief that they are obligated to engage in that behavior. The vicarious liability test in Bazley is recognized by officials in the legal systems because of the common law authority behind it.
Jeremy Bentham’s conception of legal positivism involved the principle of utilitarianism. Utilitarianism requires that a law should maximize its utility, meaning its ability to make the majority of its subjects happy, and maximize their happiness.
The Bazley test is concerned with providing victims with compensation for wrongs done to them, if they cannot claim damages from the individual who was directly responsible for the wrong. It’s requirements also form a threshold to prevent liability from being connected to an employer if the employer does not have a strong enough connection to the wrongful conduct and the ability of the employee to do this wrong. The test is both concerned with compensating victims for suffering wrongful acts, as well as protecting employers from a dangerous policy of merely creating an opportunity for the act that harmed the victim.
According to Raz, a law must preform a service for the people it presides over, in that it helps them to act toward a common social and individual good. The Bazley test of vicarious liability provides an incentive for employers to work towards the common social and individual good of decreasing the likelihood of an employee causing harm.
The majority opinion in E.B. v. Order of the Oblates, according to Austin’s conception of legal positivism, would be valid because they are judicial decisions, who act with authority delegated to them by the state. These decisions are recognized by Austin as specific commands.
The majority opinion would be valid under Hart’s analysis because they are commands that are created as primary rules. Their judicial opinion tells us what we can and cannot do. The majority opinion would also be valid under Hart’s rule of recognition, because it is recognized as valid to officials in the legal system. The judicial decisions that follow would believe that they should apply.
Under Bentham’s evaluation of law, a strong utilitarian purpose must form the basis of rules. The majority opinion determined that because the Order of the Oblates prohibited intimacy between their employees and the children, and his conduct had nothing to do with furthering the employer’s aims, they should conclude against finding vicarious liability.
Raz requires that a law must help its subjects act better in order to be justified. According to this, the majority will likely have a valid claim of authority because of the service it deterring employers from encouraging employees to commit harmful acts. However, it may also be said that the fact that the Order of the Oblates was not found guilty allowed employers to create an environment employees may take advantage of to harm others. Depending on how much weight is put onto this finding, Raz may also claim that the majority’s authority is unjustified.
The minority opinion in this case claims that the Order of the Oblates should be found guilty of vicarious liability for providing authority to Saxey through the inherent power structure of the residential school.
Austin would likely not consider this opinion to be a specific command, as it was not the majority opinion of the court and does not carry the same authority. The sovereign does not delegate enough authority to the majority opinion for it to be considered a command.
Hart’s analysis of legal positivism would likely not consider the minority opinion to be a primary rule, since it does not tell us what we can and cannot do. Nor would it be considered a secondary rule, as it does not allow us to change the rule. The minority opinion is not a rule of recognition either, because it is not recognized by legal officials as necessarily applicable. There is no obligation here to follow the minority opinion either.
The utilitarianism of the minority opinion may be stronger than that of the majority opinion. The minority opinion found vicarious liability on the part of the Order of the Oblates. They did so because they believed that the school created and enforced the vulnerability of the students. Although utilitarianism ignores morality, it does believe in the importance of furthering the happiness of the majority. The majority of people would likely feel unhappiness at the harmful acts that were done to this student and would want compensation to be provided to him. However, there would also be great unhappiness at the potential implications on policy. Simply creating a dangerous opportunity may make employers liable for the acts of the employee. The result of the minority opinion, should it be enforced, may decreased the happiness of people in the long run.
Similarly, Raz’s belief in the law’s need to help its subjects preform a social good would likely be furthered in the minority opinion. It would help its subjects through the prevention of employers creating material risks to potential victims. On the other hand, the enforcement of the minority opinion may also assign liability to employers who do not desire for their employees to be involved in wrongful conduct and hold employers responsible simply for hiring a harmful person unknown to them.
Legal positivism allows for the critique of law through the separation of law from morality. When we examine this case through the lens of positivism, we will likely find that the outcome as well as the authority that enforces it will be considered valid, and the effect on the majority of people to be mostly positive.