Course:Law3020/2014WT1/Group K/Positivism

1. Must be directed to the common good - CC 83.01 Terrorism - Directed at the common good for the people of the country - Terrorism kills innocent people, clearly prohibited for the common good of the people - P 55  the objective of the law - The parties agree that the objective of the terrorism provisions is to prosecute and prevent terrorism. The need to prosecute acts that support or assist terrorist activity that may never materialize into acts of terrorism flows from the great harm resulting from terrorism offences, the Crown contends. - S. 1 Oakes would allow infringement of s. 2 freedom of expression because it is for the common - Para 62  Court’s response to argument that the definitions are broad - Objective of preventing devastating harm resulting from terrorist activity - Justified it without using Oakes -

2. Must follow practical reason (reasonable steps leading to the common good - CC 83.01 definition; prohibited act - Para 82  Accused’s argument for s. 2 (freedom of expression) - Problem with definitions of terrorism and terrorist activity  vague - Definition in CC 83.01 Para 57 & 58  preliminary to the commission of the inchoate offence

3. Must be made by valid lawmaker (ruler within community, who holds this position by reason of the natural order) - In the CC, part of legislation which Aquinas liked - Judge interpreted it in the way it was intended to be interpreted (in our opinions) - Appealed all the way up to the SCC

4. Must be promulgated - Was promulgated, it’s in the CC - Well known to the public, 9/11 2001 had just happened

Conclusion - Aquinas would support this law - Passes all of the requirements for good law according to Aquinas

Positivism - A reaction to the teleological nature of natural law - Teleological = All things have a proper end or function that can only be understood with that in mind - Law’s end or function is the rational pursuit of the common good (morality) - Separation between the law and morality; wants to separate the 2 concepts

John Austin Theory - Different between positive morality and positive law; separation - Can have a positive law that doesn’t have to be moral - Idea that law makers are divinely placed by God and have righteous authority - Positive morality (norms)- manners, customs, club rules, international law, (English) constitutional law  positive morality is not valid law - Legal positivists are reacting against the idea of moral content required for law - Positive law-3 essential components  1. Command, 2. Issued by superiors to subordinates, and 3. backed by sanctions - Command  order or direction - Superiors to subordinates  sovereign (superior) is a governing individual or aggregate body (eg. Parliament or monarch) - Subordinate  the public/ masses under the control of the sovereign - Sanctions  repercussions/ punishment for disobeying the sovereign’s command

John Austin application to R v Khwaja - Charged under CC 83.01 (1)(b)(i)(A) - (b) an act or omission, in or outside Canada, (i) that is committed (A) in whole or in part for a political, religious or ideological purpose, objective or cause - 83(1)(a), 81(1)(d), 83.2, 83.18, 83.21(1), 83.03(a), 83.19 - Command  all provisions under the main section 83.01 (terrorism) are commands - To not conduct an act or omission related to terrorist activates - All provisions of CC are commands

- Sovereign/Superior to Subordinate Sovereign the parliament who passes the legislation - Constitution could be considered positive morality under Austin’s view, whereas in Canada the Constitution is positive law (which does have sanctions if you include the Charter) - Constitution as the sovereign but cannot pass legislature on its own; parliament does this for the sovereign and in that can be treated like the sovereign - - Sanctions There are sanctions included in the provision - They were applied improperly, and the SCC judge reapplied them correctly by upping the sentence - Interpreted it differently; went with a deterrence effect

HLA Hart theory & application - Laws have to be recognized in order to be valid - Recognized by officials within the legal system - Must be consistently applied and they have to believe that there are obligations to apply them - disobedience may be warranted where laws immoral (ex. Marijuana) - needs to be supported by recognition