Course:Law3020/2014WT1/Group C/Positivism

From Kumu Wiki - TRU
Jump to navigation Jump to search
The printable version is no longer supported and may have rendering errors. Please update your browser bookmarks and please use the default browser print function instead.

Legal Positivism


Legal Positivists believe that laws may have moral content, however morality is neither innate nor necessary to law. The positivist response rejects the concept of moral good and considers law more as a matter of social convention. The law tells us what we can and cannot do. This section will analyze and apply the views of John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz.


John Austin

John Austin

John Austin viewed a valid law as a law that "must be a command issued by superiors to subordinates and backed by sanctions". Austin holds that only valid law enforces a moral obligation on citizens to follow the law. Austin labeled "the sovereign" to be a creator of the law and common superior. Overall, Austin categorized laws into three categories: Gods law, positive morality and positive law. In applying John Austin’s variation of legal positivist theory to the modern Supreme Court of Canada case of Moore v. British Columbia, the first thing that must be considered is whether the benefit being claimed in the case would be positive law or positive morality. The Court specifically said in Moore that the education and the accommodation the plaintiff was seeking to achieve a public education was a benefit that was specifically guaranteed by the law. The Supreme Court of Canada made the distinction between general and special education, stating that, “the answer, to me, is that the ‘service’ is education generally. Defining the service only as ‘special education’ would relieve the Province and District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability” (Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, para 29). It was clear that it is not an extra or special service that was at issue, but the general education measures that must be adequate to ensure meaningful access for all students. In the eyes of Austin then, the benefit being claimed by the plaintiffs, if there was a benefit to be found, would fall into the category of positive law, not positive morality. Austin would have agreed with the decision that the British Columbia Educational system denied Jeffrey access to the general education available to the public in British Columbia based on his disability. Austin would support that to meet society’s changing and special needs, the law must protect the individuals that are allocated public needs. Positivists believe that the separation of law and morality is a major aspect of law. The fact of the matter here is that the right of a general education to all children in BC is specifically provided by law. It is not a moral argument that children with disabilities be accommodated to receive this benefit.

HLA Hart

In Hart’s legal positivism, authority is derived from custom. Hart states, “the law is only valid when it is actually enforced by officials and practice and recognized by society”. Hart categorizes laws into primary and secondary rules. Primary rules delegate what people can and cannot do. Secondary rules are rules that govern the political system. Additionally, they provide an outline through which laws are determined and can be changed. The Charter of Rights and Freedoms and the Criminal Code give us primary rules, where as judicial decisions give rise to secondary rules that can provide flexibility in the law. In the case of Moore, we are dealing with the Human Rights Code, which is a source of primary rules.

Jeremy Bentham

Jeremy Bentham Auto-Icon

Jeremy Bentham believed that the Law should be founded on the principle of utilitarianism and not on the foundation of morality. Utilitarianism operates under the belief that law is right if it is useful and of benefit to the majority of society, in other words, if it achieves the greatest amount of good for the greatest number of people. Bentham would examine a law by looking at whether it maximizes utility.

Bentham would argue that the decision requiring service providers to make their services accessible to persons with disabilities falls under the social utilitarian aim in its goal to provide equal education for all public students in British Columbia. As a result of the case all school districts must proactively budget to provide programs that ensure the rights of students with disabilities and that accommodations are included. By requiring the level of accountability to provide an equal benefit for all students to the education system, Bentham would likely argue that this furthers social utility because students with disabilities are getting adequate school education and this is a greater good for all of society. According to Bentham’s perspective, there would be a high utility in ensuring that all students with disabilities across Canada face the same services in the public education system. As the Supreme Court of Canada stated, “risks perpetuating the very disadvantage and exclusion from mainstream society the Code is intended to remedy” (Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, para 31). Bentham would again say that the definition of the general education is another step towards a utilitarian approach. Attention to education would be something that Bentham would consider an adequate utilitarian aim.

On the other hand, Bentham may look at this case and see an individual seeking special treatment and using up public resources. It could be debated whether using public education resources in this way would further the greater good for the greatest number of people, since the common majority only has regular educational needs. The programs that the school had refused to cut could potentially have served more people, and resources may have been divided more evenly to produce greater happiness for the common good.

Joseph Raz

Raz views Law as the ultimate authority. The Law holds the right to command subjects, determining what they can and cannot do (Although Raz viewed Law as the ultimate authority, he still believed a question must be asked: “is the law justified and does this law confer a benefit on society?”). The School Act ensures that BC children are granted the right to a public education. The School Act does not directly handle the behavior of people, however it ensures the right of an education to all individuals.


Positive law theorists would suggest that law is valid when a superior issues a command to an inferior that is backed by a sanction. In Moore, the superior that issued the command would be the legislature, which codified the command in the Human Rights Code. In this case, the sanctions specifically laid out in the Administrative Tribunals Act would apply to the services that without reasonable justification discriminate against a person regarding any accommodation, service or facility customarily available to the public. The school district’s impugned policies then, would potentially meet the positivists’ test of a valid law.

Treatments of Selected Theoretical Perspectives

Legal Perspectives Philosophers
Natural Law Thomas Aquinas
Legal Positivism John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
Separation Theory HLA Hart
System of Rights Ronald Dworkin
Liberty and Paternalism John Stuart Mill and Gerald Dworkin
Law as Efficiency Susan Dimock
Feminist Jurisprudence Patricia Smith and Catharine Mackinnon