Difference between revisions of "Course:Law3020/2014WT1/Group S/Positivism"
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Granovski - definite positive | Granovski - definite positive | ||
| − | + | == Austin == | |
[[File:John_Austin.jpg|thumb|700x350px|right|John "Stone Cold Steve" Austin]] | [[File:John_Austin.jpg|thumb|700x350px|right|John "Stone Cold Steve" Austin]] | ||
According to Austin, there are three kinds of directives governing humans: God's Law or "revealed" law; positive morality (more commonly referred to as norms); and positive law. The first two categories do not hold the same weight as the last, as Austin articulates that positive law is the main law, and has the most force. Contrarily, God's law and positive morality are more directive. | According to Austin, there are three kinds of directives governing humans: God's Law or "revealed" law; positive morality (more commonly referred to as norms); and positive law. The first two categories do not hold the same weight as the last, as Austin articulates that positive law is the main law, and has the most force. Contrarily, God's law and positive morality are more directive. | ||
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Within Austin's idea of positive law there are three essential elements of each law: a command; issued by superiors to subordinates; and backed by sanctions. In addition, the law must pass the "pedigree test" - that is it must have been created within the rules of creating a law for the given jurisdiction. | Within Austin's idea of positive law there are three essential elements of each law: a command; issued by superiors to subordinates; and backed by sanctions. In addition, the law must pass the "pedigree test" - that is it must have been created within the rules of creating a law for the given jurisdiction. | ||
| + | == Application == | ||
Applying Austin's sentiments to ''Granovsky'' it becomes clear that the CPP provision is a valid law. | Applying Austin's sentiments to ''Granovsky'' it becomes clear that the CPP provision is a valid law. | ||
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There are valid superior's issuing a law to subordinates as parliament is the recognized authority of Canada and the CPP as it is available for all Canadians. The general public can be said to be the subordinates, however, it is slightly obscure as people are not automatically required to abide by the CPP provisions. The program is a choice, thus people will opt in and out at their choosing. However, this does not change the fact that the public who choose to opt in are subordinates, they are giving money to be in the program and understand that they are expected to follow a certain set of rules in order to be able to benefit from the program. | There are valid superior's issuing a law to subordinates as parliament is the recognized authority of Canada and the CPP as it is available for all Canadians. The general public can be said to be the subordinates, however, it is slightly obscure as people are not automatically required to abide by the CPP provisions. The program is a choice, thus people will opt in and out at their choosing. However, this does not change the fact that the public who choose to opt in are subordinates, they are giving money to be in the program and understand that they are expected to follow a certain set of rules in order to be able to benefit from the program. | ||
| − | + | However, generally one issue arises when considering the sovereign. In the Canadian system, people adhere to federal government by electing their representatives. These representatives are those that legislated the CPP, therefore, in essence they obtain their authority from the subordinate. This directly contradicts Austin's theory on the subordinate and sovereign and is tough to reconcile. | |
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| − | The sanction component of Austin's valid law is satisfied in the threatened penalty. If one chooses to opt in to the CPP but then do not follow the rules you may be denied money. This acts as a sanction as then one does not get to benefit from the fruits of a regulatory regime. | + | The sanction component of Austin's valid law is satisfied in the threatened penalty. If one chooses to opt in to the CPP but then do not follow the rules you may be denied money. This acts as a sanction as then one does not get to benefit from the fruits of a regulatory regime. Granovsky illustrates the complexities that can arise from such an awkward opt-in/out system. There will always be those people that somewhat fit within the rules but not complete - Granovsky is one of such instances. |
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With final regard given to Austin's "pedigree test" it becomes clear that this law was made in the correct manner. Parliament has the authority to pass laws and it can be assumed it came into being correctly. | With final regard given to Austin's "pedigree test" it becomes clear that this law was made in the correct manner. Parliament has the authority to pass laws and it can be assumed it came into being correctly. | ||
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Another issue with Austin's view is the role of the judicial branch. According to Austin parliament, and thus legislation, always trump judicial decisions. However, in many cases (including Granovsky) the judge is interpreting legislation and thus gives practical effect to what is inherently superior to their role. Therefore, it could be argued that the judicial and not the legislative branch has the superior status, which is problematic for Granovsky's view. Through this interpretation, the whole decision in Granovsky is suspect as it could be said that the judge is acting outside of his role as subordinate by interpreting legislation. | Another issue with Austin's view is the role of the judicial branch. According to Austin parliament, and thus legislation, always trump judicial decisions. However, in many cases (including Granovsky) the judge is interpreting legislation and thus gives practical effect to what is inherently superior to their role. Therefore, it could be argued that the judicial and not the legislative branch has the superior status, which is problematic for Granovsky's view. Through this interpretation, the whole decision in Granovsky is suspect as it could be said that the judge is acting outside of his role as subordinate by interpreting legislation. | ||
| − | + | == HLA Hart: == | |
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[[File:HLA_Hart.jpg|thumb|500x300px|right|HLA "Barricuda" Hart]] | [[File:HLA_Hart.jpg|thumb|500x300px|right|HLA "Barricuda" Hart]] | ||
Hart organizes law into a primary and secondary category. Primary rules are those that tell the public what they can and cannot do. Secondary rules are regulatory in nature and one can choose whether or not you follow them. Opposing Austin's theory, Hart states that laws do not have to be commands, all it needs to be valid is to be recognized by officials within the system. Officials need to believe that they are obligated to engage in the behaviour and apply the law. | Hart organizes law into a primary and secondary category. Primary rules are those that tell the public what they can and cannot do. Secondary rules are regulatory in nature and one can choose whether or not you follow them. Opposing Austin's theory, Hart states that laws do not have to be commands, all it needs to be valid is to be recognized by officials within the system. Officials need to believe that they are obligated to engage in the behaviour and apply the law. | ||
| + | == Hart Application == | ||
Applying these characteristics to Granovsky it becomes clear that the CPP and the drop-out provision is a secondary law as one can opt into it. Granovsky points out that the CPP is not consistently applied throughout those who choose to opt in, in this sense one could argue that applying these dropout provisions violates too many rights and is therefore invalid. However, as is evident in Granovsky, officials have been engaging in the drop-out provision and are clearly enforcing it. Therefore the CPP satisfies Hart's rule of recognition requirement. | Applying these characteristics to Granovsky it becomes clear that the CPP and the drop-out provision is a secondary law as one can opt into it. Granovsky points out that the CPP is not consistently applied throughout those who choose to opt in, in this sense one could argue that applying these dropout provisions violates too many rights and is therefore invalid. However, as is evident in Granovsky, officials have been engaging in the drop-out provision and are clearly enforcing it. Therefore the CPP satisfies Hart's rule of recognition requirement. | ||
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| − | + | == Bentham == | |
[[File:Jeremy_Bentham_Auto-Icon.jpg|thumb||thumb|700x350px|right|Jeremy Bentham - Still alive in our hearts]] | [[File:Jeremy_Bentham_Auto-Icon.jpg|thumb||thumb|700x350px|right|Jeremy Bentham - Still alive in our hearts]] | ||
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According to Bentham, the common good doesn’t matter, maximizing utility matters. In essence, Bentham separates morality and law as he states that laws need only help the most amount of people. Applying this to Granovsky it can be argued that the CPP legislation is in place to effectively help the most amount of people. Although there is the contested drop-out provision, this is to ensure that the limited funds are allocated to those individuals who are in the most vulnerable position. | According to Bentham, the common good doesn’t matter, maximizing utility matters. In essence, Bentham separates morality and law as he states that laws need only help the most amount of people. Applying this to Granovsky it can be argued that the CPP legislation is in place to effectively help the most amount of people. Although there is the contested drop-out provision, this is to ensure that the limited funds are allocated to those individuals who are in the most vulnerable position. | ||
| − | + | If parliament enacts poor legislation, the Supreme Court of Canada can override it. Additionally, common law is binding on parliament. These two features of the legal and legislative system help to create feedback loop that is useful in maximize utility and moral good. | |
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| − | + | == Raz == | |
[[File:Joseph_Raz_-_20090224.jpg|thumb|700x350px|right|Joseph Raz - Much more alive than Jeremy Bentham]] | [[File:Joseph_Raz_-_20090224.jpg|thumb|700x350px|right|Joseph Raz - Much more alive than Jeremy Bentham]] | ||
According to Raz law claims authority, and is justified when that authority is performing a service for their subjects. In Granovsky the CPP provision is a legitimate benefit to society as it organizes and allocates funds to individuals, who were at one point a benefit to society, but now cannot perform their required work. | According to Raz law claims authority, and is justified when that authority is performing a service for their subjects. In Granovsky the CPP provision is a legitimate benefit to society as it organizes and allocates funds to individuals, who were at one point a benefit to society, but now cannot perform their required work. | ||
Revision as of 08:49, 24 March 2014
Granovski - definite positive
Austin
According to Austin, there are three kinds of directives governing humans: God's Law or "revealed" law; positive morality (more commonly referred to as norms); and positive law. The first two categories do not hold the same weight as the last, as Austin articulates that positive law is the main law, and has the most force. Contrarily, God's law and positive morality are more directive.
Within Austin's idea of positive law there are three essential elements of each law: a command; issued by superiors to subordinates; and backed by sanctions. In addition, the law must pass the "pedigree test" - that is it must have been created within the rules of creating a law for the given jurisdiction.
Application
Applying Austin's sentiments to Granovsky it becomes clear that the CPP provision is a valid law.
There is a command: the CPP itself, and more specifically the in question drop-out provision. These commands act to order people to make contributions and act in a certain way otherwise the plan will be of no benefit.
There are valid superior's issuing a law to subordinates as parliament is the recognized authority of Canada and the CPP as it is available for all Canadians. The general public can be said to be the subordinates, however, it is slightly obscure as people are not automatically required to abide by the CPP provisions. The program is a choice, thus people will opt in and out at their choosing. However, this does not change the fact that the public who choose to opt in are subordinates, they are giving money to be in the program and understand that they are expected to follow a certain set of rules in order to be able to benefit from the program.
However, generally one issue arises when considering the sovereign. In the Canadian system, people adhere to federal government by electing their representatives. These representatives are those that legislated the CPP, therefore, in essence they obtain their authority from the subordinate. This directly contradicts Austin's theory on the subordinate and sovereign and is tough to reconcile.
The sanction component of Austin's valid law is satisfied in the threatened penalty. If one chooses to opt in to the CPP but then do not follow the rules you may be denied money. This acts as a sanction as then one does not get to benefit from the fruits of a regulatory regime. Granovsky illustrates the complexities that can arise from such an awkward opt-in/out system. There will always be those people that somewhat fit within the rules but not complete - Granovsky is one of such instances.
With final regard given to Austin's "pedigree test" it becomes clear that this law was made in the correct manner. Parliament has the authority to pass laws and it can be assumed it came into being correctly.
Applying these rules to the Charter is slightly problematic. Most notably Austin's view on the superior and subordinate classes becomes problematic as in Canada the Charter is seen as a superior law governing all others. Austin does not agree with this as by his view as long as a law is valid it holds the same force as all other laws. In addition, the idea of a superior and subordinate indicates that the superior is not bound by law, only the subordinate. Therefore, the fact that the Charter applies to all levels of government is also problematic for Austin's view.
Another issue with Austin's view is the role of the judicial branch. According to Austin parliament, and thus legislation, always trump judicial decisions. However, in many cases (including Granovsky) the judge is interpreting legislation and thus gives practical effect to what is inherently superior to their role. Therefore, it could be argued that the judicial and not the legislative branch has the superior status, which is problematic for Granovsky's view. Through this interpretation, the whole decision in Granovsky is suspect as it could be said that the judge is acting outside of his role as subordinate by interpreting legislation.
HLA Hart:
Hart organizes law into a primary and secondary category. Primary rules are those that tell the public what they can and cannot do. Secondary rules are regulatory in nature and one can choose whether or not you follow them. Opposing Austin's theory, Hart states that laws do not have to be commands, all it needs to be valid is to be recognized by officials within the system. Officials need to believe that they are obligated to engage in the behaviour and apply the law.
Hart Application
Applying these characteristics to Granovsky it becomes clear that the CPP and the drop-out provision is a secondary law as one can opt into it. Granovsky points out that the CPP is not consistently applied throughout those who choose to opt in, in this sense one could argue that applying these dropout provisions violates too many rights and is therefore invalid. However, as is evident in Granovsky, officials have been engaging in the drop-out provision and are clearly enforcing it. Therefore the CPP satisfies Hart's rule of recognition requirement.
What about s.15 of the Charter? The Charter is the ultimate remedy; it has the ability to change the law, and strike them down. Therefore, it can be classified as a primary rule as in effect, it states what one can and cannot do. Additionally, officials believe they are bound by Charter provisions and thus it satisfies the rule of recognition.
Bentham
According to Bentham, the common good doesn’t matter, maximizing utility matters. In essence, Bentham separates morality and law as he states that laws need only help the most amount of people. Applying this to Granovsky it can be argued that the CPP legislation is in place to effectively help the most amount of people. Although there is the contested drop-out provision, this is to ensure that the limited funds are allocated to those individuals who are in the most vulnerable position.
If parliament enacts poor legislation, the Supreme Court of Canada can override it. Additionally, common law is binding on parliament. These two features of the legal and legislative system help to create feedback loop that is useful in maximize utility and moral good.
Raz
According to Raz law claims authority, and is justified when that authority is performing a service for their subjects. In Granovsky the CPP provision is a legitimate benefit to society as it organizes and allocates funds to individuals, who were at one point a benefit to society, but now cannot perform their required work.