Roots of Legal Positivism - John Austin
Legal Positivism grew as a reaction to the Natural Law Theory, as brought forward 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. God's law is governed by religion, whereas Positive morality is merely a collection of societal norms and standards, such as manners and customs. The legal entity that this discussion concerns with is Legal Positivism, which serves as the main, overarching body of rules that humans follow. Austin saw "law itself [as] the standard of justice" (Reference). Subsequently, from a positivist perspective, there is no end goal to law. The ultimate goal is the full obedience of subjects. The submission to the Sovereign and its laws subsequently results in an ordered and just society.
Validity of a Law - John Austin
In order to be valid, a law has to meet three requirements under legal positivist theory. It has 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. Valid laws must be passed by a superior, which can be anything ranging from Parliament to a king. However, it is essential that this Sovereign is common to all individuals and that its reign applies to the entire society.
In addition, a law must pass the "pedigree" test (Reference). This test ensures that a law is created correctly following the rules of the political and legal system itself (Reference). Following legal positivist theory, in conclusion, a law must be a command that is issued by superiors and backed by sanctions.
Modern Legal Positivism - HLA Hart
Legal Positivism developed into a more radical form with theorists, such as Bentham, Hart and Raz. Under this theory, the separation of law from morality provides a basis for examining the law with great scepticism. We can take it apart and rationally ananlyze its virtues rather than relying on morality to guide us through this process. Hart argues that a law may be disobeyed if members of society decide that it is an immoral legislation. In comparison, natural law theory would argue that this law is no longer a law due to its lack of morality.
Validity of a Law - HLA Hart
For modern legal positivists, such as Hart, a law is more than a mere command, as articulated by Austin. A valid law must be recognized as such by the officials of the Sovereign itself. This rule of recognition states that a law is credible when officials consistently apply it and believe that they are obligated to do so (Reference).
Application to B.M. v. British Columbia
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. Under common and statutory law, there is no private legal duty that a police officer owes to members of the public.
Furthermore, the court reaches a decision that is aligned with legal positivist theory. The outcome is legitimate since the sovereign (in this case the Parliament) did not enact a statute that would impose such a duty upon police officers. The absence of such a legislation signals the wishes of the Sovereign. In addition, the judges rightfully decided NOT to create a new test for establishing causation (Reference). The positivist perspective is very legislation-centric and judges merely act within their limited authority that the Sovereign assigned to them (Reference). It would be inappropriate for a subordinate judge to create new legislation under the common law.
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.
There are a number of legal issues that remain unresolved under this theory. According to Austin and positivism, the Sovereign may never be bound by the law. This is due to the fact that law is created to generate obedience amongs subordinates. The sovereign and its subordinates are separate entities and the law travels from one to the other. This can create a dictatorial and oppressive state that, nonetheless, is valid under this theory.
Furthermore, criticism flows from Hart and the 'rule of recognition', which appears to be very similar to morality. In instances where officials fail to recognize a law, they may be disobedient to it. This notion is very congruent to Aquinas' natural law theory, which essentially implies the same. However, Hart argues that there is another sphere to legal positivism. For example, the segragation laws in the US would be considered valid legislation under legal positivism, whereas natural law theory would disregard them as nothing more than expressions rather than true laws.
-> expanding on the idea of radicalism of positivist theory -> what needs to be changed within the law? -> critique