Difference between revisions of "Course:Law3020/2014WT1/Group N/Positivism"

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Theorist: John Austin'''</big></big>
 
Theorist: John Austin'''</big></big>
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[[File:John Austin.jpg|John Austin|right]]
  
 
'''The Theory:'''
 
'''The Theory:'''
  
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Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories:   
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Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws (similar to Thomas Aquinas's divine law). God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories:   
 
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.
 
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.
 
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.
 
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.
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* Determining the identity of the sovereign.
 
* Determining the identity of the sovereign.
  
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'''Theorist H.L.A. Hart:'''
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'''Building on the Theory:'''
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Hart brings Austin’s theory into a modern society.
 
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Not dependent upon moral content. 
 
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o Brings in laws that are not characterized as commands. 
 
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o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules).   
 
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o Acknowledged the rule of recognition.  Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. 
 
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• Raz and Bentham
 
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o Focus is on utility.  Laws should be for the good of the people.  Laws are justified by the services they provide to the people.
 
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<big><big>The Theorist: Ronald Dworkin</big></big>
 
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'''The Theory: '''
 
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Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances.
 
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Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time.
 
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When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. 
 
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Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making.
 
  
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Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way
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'''H.L.A. Hart'''
  
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Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future.  
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* Hart brings Austin’s theory into a modern society.
 +
* Law is not dependent upon moral content, and he adds laws that are not characterized only by commands.
 +
* Law is a mixture of primary rules (akin to John Austin's rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules).   
 +
* Acknowledged the rule of recognition.  Positive morality should be followed because officials believe in the integrity of the laws and are obligated to be bound by them.
  
 +
'''Raz and Bentham'''
  
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'''Dworkin’s Analysis of the Judgement on this Case'''
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* Focus is on utility.  Laws should be for the good of the people.  Laws are justified by the services they provide to the people.
  
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Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles.
 
  
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The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation.
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'''John Austin's Analysis of the Case:'''
  
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Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed.  
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# '''Is the legislation a command?'''  The State has a right to intervene in a parent/child relationship when the person who is in charge of that child acts in a manner that is below the socially acceptable threshold. A person's actions will fall below the acceptable threshold when they neglect or refuse to provide or obtain proper medical, surgical or other recognized remedial care or treatment, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.
 +
# '''Is the legislation created by a superior and issued to subordinates?'''    Yes, the provincial legislature is a sovereign for the Province of Ontario.  The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign.
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# '''Is the legislation backed by sanctions?'''  As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court ordered penalties.  
  
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'''La Forest:'''
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'''John Austin Analysis of the Impugned Legislation: Complications?'''
  
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Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles.
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'''What is the role of the judge?'''  Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was written in the eyes of parliament.  
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Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children.
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 +
'''Can the sovereign be identified?'''  Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to.  These are:
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# Constitution, Parliament, Provincial Legislatures.
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# In this case the Ontario government falls under a Provincial legislature.
 +
 +
'''HLA Hart Analysis of the Impugned Legislation:'''
  
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'''Lamer C.J.C:'''
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* We are able to classify this legislation as a primary rule as it dictates what we can and cannot do with respect to children.
 +
* The state officials who created the legislation followed it as they enforced it.  They continue to enforce it in a consistent manner when the appropriate circumstances arise.
 +
 +
'''Raz and Bentham Analysis of the Impugned Legislation:'''
  
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Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. 
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* This legislation is justified because it serves the high social utility of saving children.
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At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.
 

Latest revision as of 12:59, 27 March 2014

== Legal Positivism Law Theory ==


Theorist: John Austin

John Austin

The Theory:

Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws (similar to Thomas Aquinas's divine law). God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories:

  1. Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.
  2. Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.

Three Requirements for a Valid Law:

  1. Command: Direction to do or not to do something.
  2. Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission.
  3. Sanctions: The threat of “evil” which ensures compliance.

Complications with Austin’s Positivist Analysis:

  • What is the role of the judge?
  • Determining the identity of the sovereign.

Building on the Theory:

H.L.A. Hart

  • Hart brings Austin’s theory into a modern society.
  • Law is not dependent upon moral content, and he adds laws that are not characterized only by commands.
  • Law is a mixture of primary rules (akin to John Austin's rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules).
  • Acknowledged the rule of recognition. Positive morality should be followed because officials believe in the integrity of the laws and are obligated to be bound by them.

Raz and Bentham

  • Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.


John Austin's Analysis of the Case:

  1. Is the legislation a command? The State has a right to intervene in a parent/child relationship when the person who is in charge of that child acts in a manner that is below the socially acceptable threshold. A person's actions will fall below the acceptable threshold when they neglect or refuse to provide or obtain proper medical, surgical or other recognized remedial care or treatment, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.
  2. Is the legislation created by a superior and issued to subordinates? Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign.
  3. Is the legislation backed by sanctions? As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court ordered penalties.

John Austin Analysis of the Impugned Legislation: Complications?

What is the role of the judge? Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was written in the eyes of parliament.

Can the sovereign be identified? Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:

  1. Constitution, Parliament, Provincial Legislatures.
  2. In this case the Ontario government falls under a Provincial legislature.

HLA Hart Analysis of the Impugned Legislation:

  • We are able to classify this legislation as a primary rule as it dictates what we can and cannot do with respect to children.
  • The state officials who created the legislation followed it as they enforced it. They continue to enforce it in a consistent manner when the appropriate circumstances arise.

Raz and Bentham Analysis of the Impugned Legislation:

  • This legislation is justified because it serves the high social utility of saving children.
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