The basis for legal positivism is the separation of morality and law; in this sense, it distinguishes itself from natural law theory as the moral content of law is considered completely separate. However, more modern legal positivists would argue that law is inherently moral.
One of the founding theorists for legal positivism was John Austin, who establishes a general framework over the origins of law. He claims that laws are commands issued by the “uncommanded commander”, i.e. the sovereign. These commands are issued by superiors to subordinates, and are enforced by sanctions. The sovereign can be viewed as someone that is obeyed by the majority, and can either be an individual or group (e.g. Parliament).
When new laws are introduced, they must be consistent with the rule of law making jurisdiction. This is determined based on the “pedigree” test – based on what the origins of the rule being introduced is, and if it is consistent with the rules of the system. Austin argues that judges are subordinates, imposing limited authority delegated to him/her by the state authority (Parliament).
Another subsequent legal positivist that refined this theory was HLA Hart and his theory of the rule of recognition. He rejected the theory that laws are simply “commands” and separated laws into two categories: primary rules and secondary rules. Primary rules are based around telling citizens what they can and cannot do. Secondary rules are used to change and modify rules, helping to establish and clarify what the rules are.
Hart’s rule of recognition states that valid laws need to be recognized by officials within the legal system, and these officials (judges) need to consistently apply these criteria (e.g. the common law and the Constitution) and believe they ought to apply them (obligation). Hart states that laws do not have to be moral to be considered valid, but that disobedience of the governed people is warranted if a law is immoral.
The case of R. v. O’Connor deals with issues that revolve around competing Charter interests. Since Canadian society and our legal system is a constitutional democracy, the Constitution Act, 1982 reigns supreme and thus the common law must reflect and be consistent with it. Since there are competing interests between the parties, both involving valid, protected rights under the Charter (s.7 applying to both parties).
This case would establish what Hart claims is a secondary rule, as we are slightly modifying the rules and clarifying how the Charter rights should apply for the duty to disclose, yet also respecting victim’s privacy rights. It could also be argued that the duty to disclose, in certain circumstances (such at the case at bar), imposes primary rules on the Crown to follow.