Course:Law3020/2014WT1/Group J/Positivism

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Positivists and Natural Law Conversation

Positivism does not believe that moral content is a necessary element of natural law, but rather that the law is separate from the idea of morality. Law itself is the “standard of justice”, and this takes precedent over morality. John Austin, like Thomas Aquinas, believes that there is a moral obligation to obey the law. In Aquinas's instance, this is because the law is moral, and obedience to the law is morality. However in Austin's case, there is a moral obligation to obey what is a valid law.

Directives Governing Humans

Austin proposes that there are three kinds of directives that govern humans: (1) God's law; (2) positive morality; and (3) law as command. Austin acknowledges natural law's idea of God’s law, but notes that this is the province of religion and is "revealed law". Further, he views positive morality as norms that govern the way people behave (for example, manners, customs, international law, and the English Constitution), but he notes that they do not possess the special force of law. For Austin, true law is a command that is issued by superiors to subordinates and are backed by sanctions. He also notes that positive law and positive morality may be immoral; however, it is more desirable for congruence between law and morality to exist.

John Austin

Requirements for a Valid Law

In the requirements of a valid law, Austin in his theory of legal positivism believes that It must be empirically provable Must be a command, issued by superiors to subordinates, and backed by sanctions In this step, it is noted that the superior may be an individual or aggregate body. The sovereign is a common superior to whom the bulk of society are typically in obedience of. Must be created in accordance with the rule of the law making jurisdiction regarding the creation of law (was the law put in according to the rules of the system)

In analyzing John Austin’s theory surrounding legal positivism, the notion of what the judges role’s are is further discussed. He believes that judicial decisions are specific commands, as opposed to the generalized rule that legislation may apply. A judge is acting as a minister, carrying out the authority that has been delegated to them. A further complication of the positivism theory is the identity of the sovereign. Austin states that the sovereign cannot be bound by law, as in determining a law’s validity it is required that a command is used by a sovereign to a subordinate. In Canada we can determine that Parliament should be the sovereign. Parliament is the superior, and delegates its power to the subordinates. In our legal system, unlike John Austin’s time, our sovereign created the notion of a “super sovereign” that binds it to everyone, a supreme law, which is the Constitution. All other laws are valid according to John Austin’s rules, but in Canada these laws must be valid in relation to the “supreme law”.

Other Theorists

Jeremy Bentham

Jeremy Bentham takes a utilitarian approach and does not consider morality. His perspective departs from religion and focuses on how to achieve maximum utility for the greater good of society.

Joseph Raz

Raz believes that law claims authority, and that authority is justified when the authority actually performs a service for its subjects, helping them really act better. This is in a way that furthers social, individual good, as through co-ordinating action.

HLA Hart

HLA Hart discussed that laws are human artifacts, and are not dependent on moral content for lawness. Disobedience of the law can be permitted if the laws are immoral. HLA Hart also discusses the notion that laws are not characterized as commands, there are different commands for different purposes. Two different types of rules are classified

  • Primary rules: These tell us what we can and cannot do. This is easy to analyze as you can see if it has been breached.
  • Secondary rules: These are ruled by which we can change rules, and the process of adjudicating disputes about rules, and determining what rules actually are in its form.

The notion of a rule of recognition is also discussed by HLA Hart. This is where laws must be recognized within the legal system, and the laws must be consistently applied. Laws must be more than a mere command, they must be believed to be applied and actually applied.


In this case, there are two different laws that need to be identified. The first, the Controlled Drugs and Substances Act, is legislation passed through Parliament. The second, a supreme law, is the Charter and in particular section 7 of the Charter. If there were a breach to the Charter by the CDSA, it would need to be saved under s.1 of the charter, having reasonable limits prescribed by law.

In analyzing the element of legislation and the greater constitution further elements arise. In Canada’s system, unlike in John Austin’s, our sovereign created the notion of a “super sovereign” that binds it and everyone, a supreme law. All other laws may be deemed valid according to John Austin’s criteria, but in order to be valid in the Canadian system it must also be valid in relation to the supreme law.

In order to further assess this, it must be determined if the impugned provision is deemed valid on it’s own, prior to assessing if it is valid to the supreme law.

When looking at the case of Insite v PHS in the context of a positivist perspective, we must first determine if the impugned provision would be deemed a valid law. To do this, an analysis will first be conducted on John Austin’s criteria for a law to be valid.

First, the law must be empirically proven. Next, it must be a command issued by superiors to subordinates, and backed by sanctions. This is clearly the case, as the “command” was legislation issued by Parliament of Canada, and has penal sanctions for non compliance. Third, the law was clearly created in accordance with the rule of the law making jurisdiction.

This would reach the conclusion that independently the law would be deemed valid by John Austin, however the conflict arises when determining if this law would be valid when put forth against the “supreme” law. So, why is it that the constitution is supreme in a positivist world view? It is a master law, an abstract sovereign that reigns over all. It can be analyzed in a utilitarian perspective, which the notion of the common good is raised. Insite is battling the common good, stating its for the best of society that drugs can be administered in a safe way; rather then left to the streets.

The court ruled in a way that the Minister must grant an exemption to Insite under s.56 of the CDSA, as by not allowing Insite to proceed there was a breach of Insite’s s.7 Charter right. This occurred as the valid law was put against the supreme law, and could not be justified under s.1.

In analyzing this through the perspective of Jeremy Bentham and the utilitarian perspective; an interesting notion is raised on the definition of the common good. The legislature was attempting to balance two competing interests, both public safety and public health. This is done through the CDSA and the fact that exemptions do exist in the bill, and thus was to be given to Insite in this case by the Minister.


John Austin and the positivist approach would likely deem the CDSA provisions valid. The notion of the supreme law is of the utmost importance in Canada; being that laws must abide by the Constitution or they will not be of force. The common good is viewed as society’s best interest, particularly in the health element. Closing down the clinic would have been unjust to society. The supreme law, being the constitution, protects this from happening.

Navigate to Other Legal Theories

Theory Philosopher
Natural Law Thomas Aquinas
Positivism John Austin
Separation Thesis Example
System of Rights Ronald Dworkin
Liberty & Paternalism Example
Law As Efficiency Adam Smith
Feminist Jurisprudence Example