Course:Law3020/2014WT1/Group N/Positivism

''' == Legal Positivism Law Theory ==

Theorist: John Austin'''

The Theory:

Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories:
 * 1) Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.
 * 2) Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.

'''Three Requirements for a Valid Law: '''
 * 1) Command: Direction to do or not to do something.
 * 2) Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission.
 * 3) Sanctions: The threat of “evil” which ensures compliance.

'''Complications with Austin’s Positivist Analysis: '''
 * What is the role of the judge?
 * Determining the identity of the sovereign.

Building on the Theory:

H.L.A. Hart


 * Hart brings Austin’s theory into a modern society.
 * Not dependent upon moral content. Brings in laws that are not characterized as commands.
 * Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules).
 * Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them.

Raz and Bentham


 * Focus is on utility. Laws should be for the good of the people.  Laws are justified by the services they provide to the people.

John Austin's Analysis of the Case:


 * 1) Is the legislation a command?   The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.
 * 2) Is the legislation created by a superior and issued to subordinates?    Yes, the provincial legislature is a sovereign for the Province of Ontario.  The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign.
 * 3) Is the legislation back by sanctions?   As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties.

John Austin Analysis of the Impugned Legislation: Complications?

What is the role of the judge?  Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created. Can the sovereign be identified?  Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are: HLA Hart Analysis of the Impugned Legislation:
 * 1) Constitution, Parliament, Provincial Legislatures.
 * 2) In this case the Ontario government falls under a Provincial legislature.

Raz and Bentham Analysis of the Impugned Legislation:
 * Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children.
 * The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance.


 * This legislation is justified because it serves a high social utility of saving children.

Theorist: H.L.A. Hart

The Theory:

What Judges Do:
 * Law and morality are separate systems.
 * A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc.
 * If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.

Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the penumbra.

For the cases found in the penumbra, judges do not apply their own moral standard and instead use “terms of the rule governed practice.” Hart’s Analysis to the Judicial Decisions of the case: Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the Charter?
 * These terms are a consistent set of principles and values of the legal system.
 * In Canadian law, judges understand the Charter as embodying the terms of our rule governed practice.

Lamer & La Forest: This case presents itself as a penumbra, with the parent’s bringing the action that the Child Welfare Act infringes upon their Charter rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon Charter rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their Charter rights, therefore blocking the Act from covering the facts and creating the penumbra. The court holds that the Act does not infringe upon the parent’s Charter rights, therefore releasing the Act to cover the facts and allowing the Act to stand.

Theorist: Lon Fuller

A Response to Hart

The Theory:

Law and morality are not separate entities. They are connected but they disconnected from the divine. What Judges Do:

 In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality.
 * External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.
 * Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions.
 * Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality.

Fuller’s Analysis to the Judicial Decisions of the case:

Lamer:

Lamer decides that the Child Welfare Act does not contradict Charter rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the Child Welfare Act does not contravene a parent’s section 7 Charter right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case.

La Forest:

La Forest decides that the Child Welfare Act does contradict the parent’s Section 7 Charter rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.

The Theorist: Ronald Dworkin

The Theory: 

Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances.

Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time.

When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future.

Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making.

Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way

Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future.

Dworkin’s Analysis of the Judgement on this Case

Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles.

The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation.

Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed.

La Forest:

Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children.

Lamer C.J.C:

Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.