Course:Law3020/2014WT1/Group J/Positivism

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Positivists and Natural Law Conversation

Legal Positivism is a response to Thomas Aquanis’ Natural Law Theory in which the Positivists react to the teleological nature of natural law and propose that law is a social fact. In essence, Positivists reject the contention that law is morality through the “separation thesis” which advances that law is separate from morality. Positivism does not believe that moral content is a necessary element of natural law. Law itself is the “standard of justice” and this takes precedent over morality. A further distinction between a Natural Law theorist and a Legal Positivism theorist is as follows: the former believes that individuals have a moral obligation to obey law and no such obligation if a law is not a law as they define it; the latter proposes that a law that is immoral may still be a valid law which must be followed. Thus, 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

According to John Austin, in order to be a valid law, three requirements must be satisfied. First, the law must be empirically provable. Second, the law must be a command, issued by superiors to subordinates, and backed by sanctions. Finally, the law must be created in accordance with the rule of the law making jurisdiction regarding the creation of law. This is called the pedigree test. The basis of this test is to determine if the law came into effect according to the rules of the system.

Command of the Sovereign

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 one 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”.

Role of the Judiciary

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.

Other Theorists

Jeremy Bentham

Jeremy Bentham proposes that law is a man made artifact that should be informed by utilitarianism and not morality. His perspective departs from religion and focuses on how to achieve maximum utility for the greater good of society.

Joseph Raz

Joseph Raz believes that law claims authority and that authority is justified when it actually performs a service for its subjects, such as furthering social and individual good as through co-ordinating action. Law should be aimed at helping individuals act better than they would in the absence of the authority's intervention.

HLA Hart

HLA Hart proposes that laws are human artifacts and are not dependent on moral content. Further, disobedience of the law can be permitted if the laws are immoral. Hart does not characterize laws as commands and notes that there are different commands for different purposes. According to Hart, there are different types of rules:

  • Primary rules - These tell us what one can and cannot do and are akin to Austin's commands.
  • Secondary rules - These are rules that enable individuals to change the rules, that inform the process of adjudicating disputes about rules, and that assist in determining what rules actually are.
  • The rule of recognition - Laws must be supported by the rule of recognition and this will be achieved when laws are recognized within the legal system by officials, are applied consistently by officials, and are believed in by officials.

  • Note: The above information is based off of content from pages 33-48 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law (see "Bibliogrphy" for more details)


In PHS, there are two different laws that are of central concern. The first, the CDSA, is legislation passed by Parliament. The second, s. 7 of the Charter, is a supreme law. Further, the court explains that if the CDSA violates the Charter, the infringement would need to be justified under s.1 by proving reasonable limits prescribed by law.

In analyzing the legislation and the Charter further issues arise. In Canada’s system, unlike that of John Austin’s, our sovereign created the notion of a “super sovereign” that binds it and everyone and essentially functions as a supreme law. All laws may be deemed valid according to 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 its own prior to assessing if it is valid to the supreme law.

When looking at PHS in the context of a positivist perspective, one must first determine if the impugned provision would be deemed a valid law according to Austin's criteria.

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 the Parliament of Canada and has penal sanctions for non compliance. Further, the law was clearly created in accordance with the rule of the law making jurisdiction.

This would lead to the conclusion that independently the law would be deemed valid by 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.

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.

Jeremy Bentham

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. With the verdict the court ruled on, public health and safety was determined to be the common good. This was the safety and health of those that would be using the clinic, for without it they would be in greater danger.

Joseph Raz

The Supreme Court of Canada finds it important to consider the Section 7 rights within the context of the supreme law, the Constitution. It is created to benefit all members of the Canadian society. In PHS, there is also another side to this debate as there is what can be considered a "safe haven" for the use of drugs via injection, which is a criminal offence. Law claims authority, which is justified when the authority performs a service for its subjects. Raz would agree with the verdict of the Supreme Court of Canada, as by ordering the Minister to grant an exemption to Insite the authority has performed a service for its subjects, which would provide a safe zone to inject drugs, where there would be more danger without the intervention.

HLA Hart

When analyzing primary and secondary rules that HLA Hart uses to analyzes positivism, it can be determined that in this instance the Charter was used to adjudicate the dispute over the CDSA rule. When looking at the rule of recognition, officials must consistently apply the criteria. In this instance, the Minister did so by not offering an exemption to PHS. However, with the Supreme Court of Canada's ruling, an exemption was to be granted to Insite. This is because the supreme law was breached by the Minister not offering an exemption to PHS.

Navigate to Other Legal Theories

Theory Philosopher
Natural Law Thomas Aquinas
Positivism John Austin
Separation Thesis Hart Fuller
System of Rights Ronald Dworkin
Liberty & Paternalism John Stuart Mill Gerald Dworkin
Law As Efficiency Adam Smith
Feminist Jurisprudence Catharine MacKinnon