Course:Law3020/2014WT1/Group M/Positivism
Legal positivism can largely be seen as a reaction to the central tenants of the natural law theory. This week the case of Hodgkinson v. Simms will be looked at through this legal legal positivism lens. To make things more intuitive the the case will be broken down into how John Austin and H.L.A Hart, two eminent legal positivists, would likely perceive this case.
For John Austin a law is valid when it is empirically provable and is a command, issued by superiors to subordinates, and backed by sanctions. The superior, or sovereign, may be an individual (such as a monarch) or an aggregate body (such as parliament). In order to be a sovereign the individual or body must command obedience from the bulk of the given society. A judicial decision maker, although not the sovereign, derives its authority from the sovereign. Under Austin's positivist legal theory judicial decision makers may interpret and apply law and even create law so long as it does contradict positive law as expressed by the sovereign. Although the decision in Hodgkinsons v. Simms is based on the common law as opposed to written legislation there is nothing impermissible with this according to Austin. However, the fiduciary duty described in Hodkinsons v. Simms may not be as a command followed by sanctions. Instead it is a civil regulation of commercial relationships between private actors. The law is expressed by the Supreme Court is an awkward fit with Austin's format of a positive law as it regulatory in descriptive in nature as opposed to a command followed by sanction. The law from this case may actually be a better fit with Austin's "positive morality" as it appears to be an example of what the judicial decisions makers believe people in commercial relationships should act.
For H.L.A. Hart the rule of recognition requires that it must be recognized by officials, its must be consistently applied, and those that apply the law must believe in it. As opposed to Austin, Hart sees laws as more than just commands, he believes that those applying the laws must also believe in them. With regards to the instant case there has been much jurisprudence upholding the law from it suggesting those who apply it also believe in it. Furthermore, fiduciary duties are a well established principle of many professional organizations and governing bodies, again suggesting that they...
Hart breaks down laws into primary rules (tell us what we can and cannot do) and secondary rules (rules by which we can change the rules, adjudicate disputes about the rules, and figure out what the rules are). The law that stems from the instant describes fiduciary liability and thereby is a primary rule as it tells us what we can and cannot do.