Roots of Legal Positivism
Legal Positivism is a reaction to the Natural Law Theory, as discussed by Thomas Aquinas. Positivists, such as John Austin, argue that moral content is not an essential element of the law; it is rather a separate entity.
Austin believed that society was governed by three legal entities: (1) God's law, (2) Positive morality, and (3) Positive law.
Validity of a Law
In order to be valid, a law has to meet three requirements. It had to be a (1) command, (2) issued by superiors, (3) and backed by sanctions. Legal Positivism, therefore, dictates that law is man made and that morality is not an essential part of it. This stands in contrast to Natural Law theory, in which morality is very dominant.
The Sovereign in B.M. v. British Columbia is the Crown. In this case, Peggy Mooney was shafted by the police. Her concerns and fears were not taken seriously, which ultimately resulted in her friend's death and other injuries to her family. The Crown argues that it did not owe Mooney a private duty of care. When applying the principles of Legal Positivism to the facts it becomes apparent that they are correct in their argument. The law, as it currently stands, does not
This case raises great controversy in the relationship between law and morality. While morality prescribes that we ought to care for our neighbours (Donogue v. Stevenson), the courts in B.M.decide that we don't have to. If there is a lack of causation between an officer's duty of care and a victim's harm, not caring is legally acceptable (Reference). Positivists argue that law is created by the Sovereign and that its subjects ought to obey it regardless of its congruency to morality.
Modern Legal Positivism
- Hart's rule of recognition -> expanding on the idea of radicalism of positivist theory -> what needs to be changed within the law? -> critique