Legal Positivism as a response to Natural Law
Legal positivism is a direct response to St. Tomas Aquinas’ theory of Natural Law. Aquinas posits that True law is ultimately derived from a higher, non-human source. True law is morally right because if its natural origins and human law must have morally right aims in order to be consistent with natural law. According to Aquinas, immoral laws are not true laws and are contrary to natural law; therefore, illegitimate laws do not have to be followed.
Defining Legal Positivism
John Austin’s theory of legal positivism defines laws as commands, issued by superiors to subordinates, and backed by sanctions. According to Austin, a command, “obliges a person or persons, and obliges generally to acts or forbearances of a class.” (Dimock, Susan. Ed. Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto: Prentice Hall, 2002) 44.) That is, a command obliges a person or persons to a course of conduct, or a way to act. A superior or sovereign, for Austin, must be a determinate and common superior to whom the bulk of a given society is in the habit of obedience of submission. For Canada, the superior would be Parliament, as it is known, recognizable and the bulk of society is in the habit of obedience. In order to establish whether a law is a true law or not, Austin does not consider morality and says that validity of a law depends only on its content. Austin only asks if the law is a command, issued by superiors to subordinates, and backed by sanctions. If the law fits within this definition, the law is a true positive law. The separation of laws from morality is known as the separation thesis. Positive law does not have to have moral aims, although it can, it is not necessary for it to be a true law. HLA Hart, another legal positivist, considers the “pedigree” test in determining the validity of a law. The pedigree test asks if the law was made in accordance with the rule of the law making jurisdiction regarding the creation of law. If the law was made in accordance with these rules, it is a true positive law.
Application- Cuthbertson v Rasouli Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19.
A first glance at Cuthbertson may suggest a more appropriate connection with natural law. That is, it would appear that the court would consider the morality of the law at issue due to the sensitive nature of the circumstances. Because the case is deciding who has the final say when it comes to the life of a person, there are clearly moral issues at play. However, upon closer examination, it would appear that an analysis of Cuthbertson lends itself better to a positivism analysis.
The two issues in the case are as follows:
1. “The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board”. (Cuthbertson at para 15)
2. “Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent”. (Cuthbertson at para 16)
The legislation was enacted by a governmental body and would follow the definition of “a command, issued by superiors to subordinates, and backed by sanctions”. The Act commands people to act in a certain way and provides sanctions for disobedience. The HCCA is a true positivist law that must be followed regardless of its morality. The reasoning and decision itself would also fit the definition of legal positivism
The issues of this case do not consider what would be morally right, but look to the guiding legislation for the answer. “This case turns on statutory interpretation- what the HCCA provides. It is not a case about who, in the absence of a statue, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment” (Cuthbertson at para 4). That is, the case does not consider who has the morally right authority to decide about when to withdraw life support, but rather what the legislation provides for. The courts ultimate goal in this case is to find what the legislature intended.
Austin would approve of the way in which the courts have approached this case, because the sovereign is the ultimate law that needs to be followed. The judges are not attempting to write their own laws, but to give efficacy to the legislature. In legal positivism, judges act as ministers who carry out the will of the sovereign with the limited power that has been delegated to them. In Cuthbertson, the judges are appropriately fulfilling this role and adhering to the view that the legislature is better suited to modify existing laws. The holding in Cuthbertson is that the HCCA grants the substitute decision maker (SDM) power to decide whether or not life support should be withdrawn. The SDM must follow certain criteria outlined in the Act. Doctor’s can appeal to the board if they believe the decision is not the right one based on the criteria, and the board will have the final say on whether to overrule the SDM’s decision. The criteria that the SDM and doctors must follow are not aimed solely at the wishes of the patient, but what would be in the incapable patient’s best interests (Cuthbertson at para 78).
The dissenting opinion is that the common law should govern these types of decisions, as the HCCA does not apply to the withdrawal of treatment. The dissent would find that consent is not required to withdraw or withhold treatment that is medically ineffective (Cuthbertson at para 176). Although this is quite a different outcome from that of the majority, it still follows a legislative interpretation that would be approved by Austin as following true positivist law. The judges are still acting in a way that supports the sovereign as the superior legislative body and are only interpreting the legislation to give effect to what the sovereign intended.