Course:Law3020/2014WT1/Group N/Positivism

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== 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.