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.
Saw law as human artifacts that were not dependant on moral content for law-ness. Hart thought disobedience was warranted when law were immoral (opposite of TA). Hart split laws into three types of rules. Primary rules tell us what we can and cannot do. Secondary rules are rules that allow us to change the rules. This includes adjudicating disputes about the rules and allows one to figure out what the rules are. The rule of recognition is jurisdictions requirements for valid laws. These laws are recognised by officials within the legal system. These officials are required to consistently apply the criteria and feel that the application is more than mere command. The officials can mistakenly apply the criteria based on whether they ought to apply them; this is called a moral mistake. The laws that are mistakenly applied are still part of the legal system. Even though they are valid laws, disobedience is allowed.
Laws are human artifacts that are crafted on the basis of utilitarianism. Rules must maximize utility. Bentham leaves morality out of law.
Included law’s claim to authority, the authority has a justified claim when they perform a positive service for society. This service must help society in a way that could have not happened without the intervention of the authority.
Application to Case
Applying Austin’s Vision of Positivism
Austin’s theory does not let the superior or sovereign to be bound by any law itself. There would be a problem in the sovereign also being a subordinate. There cannot be a command from a subordinate, judges in this case, to the superior. Judges have their authority through delegated powers and they cannot have more power than what is delegated. Austin would say that the delegated powers of the Judges, does not extend far enough to impose a command upon the sovereign. The law is backed by a sanction however. The law here doesn’t fulfill the needed requirements under Austin’s theory. Overall, Positivism’s requirement of the law containing a command from the sovereign to the subordinate is where this case deviates. The Nursing Homes Act follows the requirements of valid law and therefore under Austin, the law is valid no matter the morality involved. There would not be a need to question the law and therefore this case would never have been heard. This is mirrored by the courts decision to side with the Province on most the issues.
Applying Hart's Theory of Positivism
Hart’s “rule of recognition” places the judges as officials. As officials who consistently apply the law the court went and sided with the Province on all issues except s.15 and unjust enrichment. There could be an argument that this is all bad law and that the court made a moral mistake. This moral mistake doesn’t matter and the law is still valid but can be criticised. Again, the fact that it is the sovereign who is being commanded, the theory doesn’t completely fit. The judges would have no power to bind the sovereign. Judges cannot enforce anything on the sovereign under Positivism. They may however disobey the law as they see fit under Hart’s theory of Positivism. This could be analogous to the courts deciding to invoke s.15 rights and letting the unjust enrichment claim through to trial.
Applying Bentham and Utilitarianism
While the decisions in the case may not follow the traditional positivism theory, there are elements of Bentham’s utilitarianism within the rulings. The decision to uphold the s.15(1) rights of the senior citizens is an action that is for the benefit of society. The overall decision to up hold the Provinces ability to regulate care in the LTCF, but upholding the rights and compensating the inflated charges can be seen to benefit society. The Province still is able to receive funds that keep the LTCF’s running, while society understands that the Province cannot overstep the Charter and if they do, society will be compensated.
Raz and his Application of Positivism
The court decides to not impose a fiduciary duty on the Province. Raz’s thoughts on Positivism agree and add to the decision of the court. The law stands as it was because it allows the Province to better all of society and not just one group of minorities. Raz`s theory could also be applied to s.15, upholding equality betters society and without the Province/Federal government to regulate, equality may not effectively upheld.
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|