Course:Law3020/2014WT1/Group P/Positivism

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. 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. On these issues, we will proceed using the HLA Hart, Benthem, and Raz.

HLA Hart 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.
 * 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.

Jeremy Bentham The question under Bentham we must ask is if there was a net positive in this ruling?
 * At the time, this ruling argued that it would provide a benefit for the gay community a the benefits provided to individuals was better than if they were classified as "married".
 * The utility of the ruling was to maintain the sanctity of marriage for the majority of society.

Raz The justification for state intervention by this ruling was that as individuals, they would benefit by being in a lower tax bracket. This intervention is meant to better the lives of those affected and without it, the individuals would be in an even worse state. We are not sure exactly how they could be worse off if they were recognized as married, so it Raz's argument does not readily apply in this case.