Course:Law3020/2014WT1/Group U/Positivism

Legal positivism has been described and recognized for its opposition to “the central tenets of natural law” theory. As mentioned earlier, natural law theorists believe that valid laws must achieve a moral end. This is one essential difference between positivists and natural law theorists. Positivists are not concerned with whether the law achieves a morally good end, although congruency between morality and law is generally desirable. Austin alludes that Natural Law’s mischief was the mixing of morality and the law. Conversely, they believe that “unjust and immoral laws may be as valid as any other law with in a legal system”. Obeying immoral laws is another point of divergence between natural law theorists and Austin’s positivism. Austin would contend that “we have an obligation” to follow immoral laws so long as they satisfy the following three requirements (34). For Austin, a valid law must be a (1) command (2) issued by a political superior to political subordinates and (3) must be backed by a threat of sanctions. Austin believes that “all of the components in this explication are themselves empirically ascertainable facts”, which results in a normatively neutral definition of law. Austin believes that aside from the positive law described above, there are two other directives governing humans, however they fall short of being real laws. The first is “God’s law” which can be ascertained through religion. Austin believes that God’s law is inherently dealt with through religion and thus must be separated from civil/human law. Second, is what he refers to as positive morality. For Austin, positive morality rules, such as manners, customs, club rules, or even the constitution, apply to people and govern how they behave. However, they do not have the special force that makes them valid laws. Since these rules are often unwritten and lack sanction, they are not real laws at all. Before proceeding to the application part of the analysis, it is important to discuss what Austin believes the role of judges to be. For Austin, judges are seen to be delegated power via the legislature and the legislature’s decision to not interfere in this zone benignly is allowing judges to exercise this limited authority to create laws. Given this brief overview of Austin’s positivism, we can see how its core principles pertain to our case.

Trinity Western University "Community Standards" First we will scrutinize Trinity Western University’s Community Standards to see whether it can satisfy Austin’s test as valid law. Therefore, we need to analyze whether the community standards are commands, given by a political superior to political subordinates, which are backed by sanctions. The first requirement of being a command can be satisfied since the Community Standards specifically state that all students, faculty and staff must “refrain from practices that are biblically condemned. These include but are not limited to…homosexual behavior” (795). However, this supposed command would only be applicable to those within the TWU community, as it would have no bearing on those who do NOT sign the form. Additionally, it is important to note that a discussion can be had as to whether the word “refrain” can amount to a command or whether it is a mere request. However, given the fact that the entire case is about the community standards having a possible discriminatory effect, in these circumstances militate in favor of the provision being seen as command pertaining to individuals within the TWU community. Second we must consider whether the command was given by a political superior to political subordinates. This step also poses some difficulty since it is difficult to identify a political superior in the circumstances. If we restrict our scope to have the standards only pertain to the TWU community, then through analogy we can assume that the administrative staff, such as the dean, who drafted the community standards, fill a role similar to that of political superiors. The political subordinates would then be the students, faculty and other staff members. However, if we were to extend our scope to include those outside of the TWU community, the community standards, according to Austin, would have no force or effect, since they were not given by what society perceives to be political superiors (such as the legislature). Lastly, a valid law must be backed by sanctions. Again, this is difficult to establish for the TWU community standards. The community standards states that “individuals who are invited to become members of this community but cannot with integrity pledge to uphold the applications of these standards are advised not to accept the initiation and to seek instead a living-learning- situation more acceptable to them”. It seems that there is no explicit sanction for failure to comply to these rules. Although there may be internal discipline, we do not have enough facts within the case to make such an assumption. The community standards simply suggest that individuals seek alternative options if they cannot adhere to the community standards. Austin’s positivism asserts that whether a proposed law meets these requirements is ascertainable fact. As seen from the above analysis, it becomes very difficult to establish any of the three requirements set out by Austin. Therefore, the TWU community standards, would in Austin’s perspective, fail to be valid positive laws. On the other hand, Austin may place TWU community standards under the other two directives that guide human behavior: God’s laws or Positive morality. The TWU community standards seem directly related to the Christian faith refraining from actions that are “biblically condemned”. For Austin, since these rules are entirely religiously driven, they do not have a place in human/civil law. Additionally, the TWU community standards can be categorized under positive morality” as it is somewhat similar to that of club or community based rules that apply to individuals within those groups. As mentioned already these two fail to satisfy the requirements of being valid positive laws however, they do have an important role in society.

Teaching Professions Act The court established that “the Teaching Professions Act validly confers jurisdiction to the British Columbia College of Teachers to consider discriminatory practices in evaluating” any school’s application for accreditation. Austin would first consider whether the TPA is valid law and if it is determined to be valid then there is an obligation to follow it (776). Again, we must ascertain whether the TPA is a command, given by a political superior to political subordinates, which is backed by sanctions. We are not given enough facts to thoroughly be able to complete this analysis since we are not given the entire Act. As far as we know, section 4 simply confers powers to the BCCT to consider discriminatory practices when rejecting or approving applications. Similarly, we do not have enough facts to determine the nature of sanctions, if any, which exist if there is a failure to comply with the act. However, it is inarguable that the TPA was created by political superiors to political subordinates, and while this aspect may be easily satisfied, the other two are not. This analysis illustrates the difficulty associated with the rigidness of Austin’s Positivism and its inability to fit into our modern conception of legal political structure. HLA Hart addresses this rigidness and its implications in his respective perspective of Legal Positivism.

The Canadian Charter of Rights and Freedoms This case reiterated the fact that The Canadian Charter of Rights and Freedoms does not apply Universities. However, the Charter does apply to legislative instruments (such as the TPA) and therefore the legislation is applicable of going under Charter scrutiny. One of Austin’s principles is that the sovereign cannot bind itself and while the Charter clearly sets out commands through its various sections, and is backed by sanctions, it was created by the legislative branch but not to political subordinates. In essence, the Charter binds the sovereign. This is where we hit a wall with Austin’s legal positivism as again, we see its ridged requirements pose difficulty in deeming what we would easily see as valid laws as invalid. However, we must take into consideration the historical context in which Austin was a part of whilst developing his theory. He was a product of 19th century England and while his theory may very well fit within that historical time period it just does not seem to fit in our modern legal political structure.