Legal positivism is a theory of law that was born in reaction to the natural law concept. Legal positivism focuses on law as a social fact, rather than coming from a source external to humans. In this way, the positivist response rejects the teleological idea of moral good and considers law as a matter of social convention. Under this model, morality is kept as separate and distinct from determining if a law is valid. Thus laws created by human beings are not necessarily fair laws, or rules that “ought” to be followed, they are simply valid because they are laws as issued by parliament (Brian Leiter, The Radicalism of Legal Positivism, pg. 3).
The main proponents of Legal Positivism are classical legal positivist John Austin and modern legal positivists, Jeremy Bentham, Joseph Raz and H.L.A. Hart.
Unlike Aquinas, who believes that society obeys the law because law is moral and obedience to law is morality, John Austin believes that there is a moral obligation to obey all valid law, whether or not those laws are themselves moral. Law is the standard of justice and law is separate from morality. This separation is termed the “separation thesis (discussed thoroughly in the next topic).
For Austin, valid law is a command, issued by superiors to subordinates, and backed by sanctions. As long as a law has these requirements and passes the “pedigree” test (being a law adopted in accordance with the system or rules in that legal jurisdiction), it is a positive, valid law. Thus, society needs to follow this law because it is valid and not because it is for the common good of humanity. In this way rules such as manners, customs or social norms not backed by the requirements of valid positive law are considered positive morality. Positive morality and positive law can be determined by empirical means, and both can direct human behavior in a way that is morally wrong or right. However positive morality is not properly law because they are rules not either set by political superiors to inferiors or not backed by sanctions.
In light of Austin’s “legislation-centric” (Lecture, Margaret Hall) viewpoint, the role of judges is limited. Judges are apart of the subordinate group and have been delegated power by the sovereign legislature to carry out the role prescribed to them. This role to Austin is limited and only for the purpose of interpreting and applying the commands issued by the sovereign. Further this delegation of power is justified because the Legislature retains the right to step in and overrule or minimize judicial power.
Bedford: John Austin
While Aquinas would first ask what greater good the provisions at issue in Bedford, are serving, Austin would respond that the search for this good is unnecessary because it does not add to make a law valid. Instead Austin would find that ss. 210, 212 (1)(j), and 213(1)(c) are all valid laws because they are commands issued by Parliament (Sovereign) to the citizens of Canada (Subordinates) and backed by the threat of imprisonment (legal sanctions).
When analyzing the laws the Supreme Court judges did not stop at finding that the laws were valid because they met the pedigree test. Instead they further analyzed the provisions based on their constitutionality and on the arbitrary, overbroad or disproportionate effects. Austin would find this constitutional analysis as a use of positive morality. In Austin’s view constitutional principles are not real law, mainly because in England the Constitution is not a set of written principles, and thus are just rules that have an effect on how people behave. However in Canada the Constitution is a written document of principles, which is held to be the supreme law of Canada (s. 52(1) Constitution Act 1982). Thus, in Bedford the principles of the Constitution (s.7 and s.1 of the Charter and Rights of Freedoms) are not used merely as rules that govern social norms, instead they are being used to make sure that the laws issued by Parliament are valid and legitimate laws. Austin would disagree with this use of the Constitution, because Parliament, who is the main issuer of commands, is now being held as a subordinate to Constitutional Supremacy. According to Austin, the sovereign power issuing the command cannot be bound by law which also makes them a subordinate. Austin may be able to reconcile this idea of Parliament being bound by the Constitution by looking to s.33 of the Charter, which allows Parliament to hold a law valid notwithstanding the finding of its violation of the principles of the Constitution and thus allowing Parliament to retain their superior position within the legal system.
Role of the Judiciary
In Bedford the ruling by the Supreme Court to find that the laws were invalid because they violated s.7 of the Canadian Charter of Rights and Freedoms and were not justified under s.1 of the Charter, would be seen by Austin as the judges interpreting commands issued by the Sovereign. This interpretation is within the power delegated to the judiciary by the Sovereign. The ultimate decision of the court to send the provisions back to parliament (Bedford para 165) to reissue is the ideal role of Judges in Austin’s view. This is mainly because the Judges did not apply the common law and read in new commands, and so they acted in accordance with Austin’s view that the ultimate power of law making is vested with Parliament.
Modern Legal Positivist: Jeremy Bentham & Joseph Raz
Jeremy Bentham similarly to Austin, views law as a man-made artifact separate from morality. However as he debases law from morality, he believes that law should be based on utilitarianism. And so the validity of law depends upon whether or not it maximizes utility. The question asked is whether a law results in the greatest good for the greatest number of people. Bentham’s idea of utility is not very different from Thomas Aquinas’ idea of common good. Both theorists are interested in good for the majority even if it departs from good for the individual. However where Aquinas and Bentham differ is that Aquinas still believes that the common good is in the best interests of everyone even if the individual does not see it as such. Bentham’s view of utilitarianism differs in respect that a law may not serve the best interest of an individual, however it does not matter as long as the majority is happy.
Bedford: Jeremy Bentham
Bentham would argue that the provisions at issue would pass the social utilitarian aim because parliaments purpose in enacting them was to decrease negative aspects of prostitution for the greater good of societies norms and values. The Attorneys General of Canada and Ontario say that purpose of s. 210 and s. 213(1)(c) is to decrease public nuisance (Bedford para 130, 146) while the purpose of s. 212(1)(j) is to decrease the commercialization of prostitution in order to maintain the values of dignity and equality in society (Bedford para 138). While the Supreme Court reasons that all three provisions infringe on the life, liberty and security of prostitutes, Bentham would argue that these reasons should not justify holding the provisions as invalid. Prostitutes make up “the few”, and so the laws need not maximize happiness for them as long as the rules maximize happiness for the majority.
Joseph Raz views the validity of law through a “service conception” model. Raz believes that law claims authority and tells subjects what they must do. This claim is not a discussion about whether the reasons underlying the law are reasonable or just. Instead Raz purports that law tells citizens what must be done. However, these claims of authority are only justified if the law commands its citizens to do what is morally right to do. Further, if these commands were not followed it must be true that citizens would be worse off. This idea is essentially the “Service Conception” of Authority, where a law is morally justified when the authority performs a service for its citizens, and that service is a law which helps citizens act better than they would without authority’s intervention (Brian Leiter, The Radicalism of Legal Positivism, pg. 6). When these laws do not serve its subjects, that's when disobedience of the law are justified. This theory is similar to Bentham’s theory because both consider effects on the subjects. It is also similar to Aquinas’ theory that seeks to enable people to behave better so as to achieve the common good. However, unlike Aquinas’ and Austin’s theory, the validity of law is not dependent on the lawmaker who issued it.
Bedford: Joseph Raz
If the provisions in Bedford were not in place it would allow for prostitution to take place more frequently and consequently allow for vulnerable women to fall into the profession easily. This would leave women worse off then if the provisions were in place. However, the Supreme Court reasons that women would be worse off if the provisions are left in place. The court uses a Razian “Service Conception” of Authority reasoning, where they argue that “laws run afoul of our basic values” when the means by which the state uses to attain its goal is arbitrary, overbroad or has effects that are disproportionate to the goals of the provision (Bedford para 105). The court finds that the provisions actually perpetuate danger and violence against prostitutes; contrary to the “service” the provisions were set out to do (Bedford para 162). Thus, the laws are not justified and are not to be followed since they do not leave citizens in the profession of prostitution better off.