Positivism is thought to be a reaction to teleological nature of nature law. There is not a need or morality in the elements contained within natural law.
John Austin, one of the proponents for positivism, believed that there is three kinds of directives governing humans:
- God’s Law: Also called revealed law and is part of religion which should be separate from human law.
- Positive Morality: Includes manners, customs, club rules, international law, law that does not have that special quality of law
- Positive Law: Commands that are issued by superiors to subordinates and backed by sanctions.
There is no need for positive law or positive morality to be moral, they just have to meet the requirements and it can still be valid law. For laws to be valid, they must be empirically provable. They must be a command from superiors to subordinates. These commands must be backed by sanctions. As long as the law came about in the correct way according to the rules of the system it will be valid. Law need not have any other characteristics as long as meets the requirements.
The superior must be a determinate and common superior. Obedience or submission is needed by the majority of society to identify the superior who hands out commands. The superior does not have to be a single person; it can also be an aggregate body.
Austin’s theory does create several complications. Positivism is legislation based and purposes that the role of judges is to act as a minister of the superior. The judge can be overruled by the state. When the common law is applied by the judge, legislation reserves the right to step in and apply the law. Other complications arise when a law is not backed by a sanction. The question is whether these descriptive or regulatory legal rules that lack sanctions are really commands. In Austin’s positivism, the superior or sovereign cannot be bound by law. In Canada, the governments are bound to the constitution. Federalism was also not part of Austin’s positivism. Canada contains many entities that could have fallen into Austin’s meaning of superior.
There are several modern positivists, these include: Bentham, Hart and Raz. These theorists see positivism as legal radicalism. The ability to separate morality from law, allows critiquing, challenging, scepticism and changing law.
Application to Case
Links to further treatments of the case:
|Natural Law||Thomas Aquinas|
|Legal Positivism||John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz|
|Separation Theory||HLA Hart and Ron Fuller|
|System of Rights||Ronald Dworkin|
|Liberty and Paternalism||John Stuart Mill and Gerald Dworkin|
|Law and Economics||Susan Dimock|
|Feminist Jurisprudence||Patricia Smith and Catharine Mackinnon|