Course:Law3020/2014WT1/Group F/Positivism

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Legal positivism is best known for its direct opposition to the core beliefs from natural law theory. Legal positivists hold that there is an established disconnect between law and morality, which it treats as two separate constructs. This is known as the "Separation Thesis" by legal positivists. Therefore, under the legal positivist theory, law can be immoral and still exist as valid law. Legal positivism also rejects the teleological foundation established by Thomas Aquinas and other natural law theorists. Positivists believe that there is no morally good end that law must serve, which reaffirms the separation between law and morality.

Positivists believe that morality is outside the jurisdiction of jurisprudence or the study of law. In believing that morality is separate from law and no connection between the two exists, positivists believe that unjust and immoral laws may be legally valid. However, positivists such as John Austin and H.L.A. Hart, have differing opinions on what obligations each individual faces to obey unjust or immoral laws.

John Austin

John Austin

John Austin begins by identifying three types of directives that govern human behaviour:

1. Laws set by God for humans
2. “Positive morality” is human-made rules governing human conduct that lack at least an essential condition of law
3. “Positive law” is human-made laws set for other humans

“Command Theory” occurs when political superiors set commands backed by sanctions to the subordinates within a community. When the sovereign issues a command, it must be obeyed, and coherency does not matter so long as it is a command. In this regard, Austin reaffirms the distinction between morality and law by saying that we can have immoral or unjust laws, and that so long as they are commands that should be followed.

Austin then elaborates on how failure to comply with law can result in the imposition of liability through sanctions. However, if there is an absence of liability or sanctions imposed for failure of compliance, then there is no command – Austin refers to these as wishes. Sanctions or liability is necessary as it implies a relationship where someone is bound or obliged by the command, and have a duty to obey it. Austin reiterates that it is only by the chance of incurring evil, that one is bound or obliged to comply with a command. Rewards do not have the same effect, as they do not reinforce commands.

Therefore, the terms "command," "duty" and "sanction" are inseparably connected to establish law under Austin’s perspective. The law or commands must also come from superiors.

Judicial commands are commonly occasional or particular (as they regard to this specific case), although the commands which they are calculated to enforce are commonly laws or rules.

Jeremy Bentham

Jeremy Bentham

Laws, as man-made creations, should not be constructed on the basis of morality, but should focus on utilitarianism. Jeremy Bentham states that these laws were enacted by Parliament and therefore are established as law, regardless of whether or not they are good or make people better off. Laws should specifically seek to discover how a rule maximizes utility, and that utility should replace morality.

Joseph Raz

According to Joseph Raz, law claims authority, which means that it has the right to tell its subjects what they must do. However, it goes on to say that law’s authority is only justified when its subjects, when left to their own devices, would have done worse. Then, where what the law commands its subjects to do is close enough to what they ought to do, it is justified. Raz called this a “Service Conception” of authority because the law was supposed to serve or guide its subjects, where otherwise they would have been morally wrong. The law’s authority is justified where it helps its subjects act better than they would have without the benefit of the authority’s intervention.

Application to A.C. v Manitoba

Applying Austin’s Command Theory, to this case, he would hold that regardless of the maturity of the specific individual, the law is established and should be followed. Whether this is immoral or unjust is not an issue to be dealt with, as law and morality are separate issues. He would therefore contend that regardless of the plaintiff’s age, the trial judge and Supreme Court of Canada were correct in holding that the age of 16 as a standard to measure against is good law and that it should be followed.

However, the Manitoba Child and Family Services Act would not be treated as a command by Austin. Although this legislation comes from a superior, it is a wish that does not have the threat of a sanction which obliges people or creates a duty to follow the law. Furthermore, there is no sanction which is imposed under the impugned sections of the Act. Austin would therefore hold that the impugned legislation is imperfect law, because the author of the law created no purpose of enforcing compliance with the desire of the law.

Joseph Raz

Austin would most likely hold that the impugned legislation fell under the “positive morality” directive as it lacks an essential condition of law. He considered this directive to include such laws and legislation as the Constitution, as it served to protect moral rights and obligations as opposed to legal ones. Under ss. 25(8) and 25(9), the Act allows the judge’s discretion to shape their decision, which draws heavily upon morality. This case is therefore fundamentally concerned with the constitutionality of the impugned legislation and how it morally affects the outcome of a specific child in the instance of the protection the legislation provides to a larger class.

In his support for an egalitarian doctrine, Bentham would likely agree with the judgment and the Manitoba Child and Family Services Act in this case. This legislation set a standard age of 16 as it found this to be an age where children typically had gathered a sufficient capacity to make their own decisions in regard to major medical decisions that affected their health, wellness, and life. Since society is also greatly concerned with legislation affecting children, and that society also wants to ensure that children are not taken advantage of, the imposition of this age standard would most likely maximize utility. By upholding the legislation as valid under s. 1 of the Charter, the SCC recognized that the purpose of the impugned legislation was to maximize utility regarding the well-being of children and their capacity to make serious medical decisions.

The Razian view would also most likely support the impugned legislation and the trial judge’s decision in this case. While not focusing exclusively on morality, Raz’s view incorporates a theme of morality which allows law’s authority to exist to serve its subjects. If the impugned legislation did not exist, children of all ages would be left to make their own decisions regarding serious, possibly life-threatening, medical treatments. Not all children have the requisite capacity to make such decisions and, even if they did, their parents’ thinking, which could undermine their own, may heavily influence some of them. Therefore the impugned legislation accomplishes the purpose it serves which is to provide a standard where subjects are better than they would have been without its existence. While there may be a few instances, or outlier cases, that the legislation imposes on, such as this case, the legislation still provides a general standard which benefits the general class of subjects. Raz would therefore agree with the SCC's decision.