Course:Law3020/2014WT1/Group R/Positivism

Roots of Legal Positivism

Legal Positivism is a reaction to the Natural Law Theory, as discussed by Thomas Aquinas. Positivists, such as John Austin, argue that moral content is not an essential element of the law; it is rather a separate entity.

Austin believed that society was governed by three legal entities: (1) God's law, (2) Positive morality, and (3) Positive law. God's law is governed by religion, whereas Positive morality is merely a collection of societal norms and standards, such as manners and customs. The legal entity that this discussion concerns with is Legal Positivism, which serves as the main, overarching body of rules that humans follow. Austin saw "law itself [as] the standard of justice" (Reference). In that sense there is no real end goal to positivist law other than obedience to it. The submission to the Sovereign and its laws subsequently results in an ordered and just society.

Validity of a Law

In order to be valid, a law has to meet three requirements. It had to be a (1) command, (2) issued by superiors, (3) and backed by sanctions. Legal Positivism, therefore, dictates that law is man made and that morality is not an essential part of it. This stands in contrast to Natural Law theory, in which morality is very dominant.

In addition, a law must pass the "pedigree" test (Reference). This test simply ensures that a law is created correctly following the rules of the political and legal system itself (Reference).

Application to B.M. v. British Columbia

The Sovereign in B.M. v. British Columbia is the Crown. In this case, Peggy Mooney was shafted by the police. Her concerns and fears were not taken seriously, which ultimately resulted in her friend's death and other injuries to her family. The Crown argues that it did not owe Mooney a private duty of care. When applying the principles of Legal Positivism to the facts it becomes apparent that they are correct in their argument. The law, as it currently stands, does not

This case raises great controversy in the relationship between law and morality. While morality prescribes that we ought to care for our neighbours (Donogue v. Stevenson), the courts in B.M.decide that we don't have to. If there is a lack of causation between an officer's duty of care and a victim's harm, not caring is legally acceptable (Reference). Positivists argue that law is created by the Sovereign and that its subjects ought to obey it regardless of its congruency to morality.

Unresolved Issues

- Hart's rule of recognition -> expanding on the idea of radicalism of positivist theory -> what needs to be changed within the law? -> critique