Course:Law3020/2014WT1/Group S/Positivism

Granovski - definite positive

Austin: Command : CPP and the Drop out provision Ordering people to act in a certain way, make contributions otherwise it doesn’t work Superior / Subordinates - parliament is recognized authority - CPP CPP is not social policy program - the program is a choice People are choosing to obey, choosing to follow it People are subordinate, they are giving money to be in program. Sanction: Sanction is threatened penalty - you are sanctioned by not following their rules (denied money) Don’t get to benefit from fruits of regulatory regime. Does it work in a modern complex society? - awkward application

Pedigree test - What is the rules origins? - parliamentary action Did it come into being correctly as a law according to the rules of the system? - yes

Law must be “command of the sovereign” Who is the sovereign - federal government enacted CPP People adhere to federal government rules through electing their representatives Once again, people who buy into CPP are subordinating themselves by choice. This is an old case, choice of CPP, nowadays it is taken automatically (for the most part) Either way, still subordinating yourself to the rule - authority of superior

S.15 - RULE OF LAW - complete sovereign, breaks down classification of sovereignty Why is one law better than all the other laws, all the other laws have to comply Super sovereignty

Fact judge has discretion is provided by legislature What about dealing with the constitution, big issue when the SCC deals with interpreting constitution as constitution is overriding Superior/Inferior breaks down as constitution is being interpreted by people who are subordinate to the constitution and to parliament. Judicial independence, deals with constitutional validity of laws and common law - affects parliament until they make a change Is the SCC a subordinate when it can override? HLA Hart: Primary rules: Can and cannot do Secondary rules: regulatory in nature (this is not a direct command, you can choose whether or not you follow it, only sanction is you don’t get money) CPP is not the problem, if they just followed letter of the law, it would not be a debate, debate comes from

Doesn’t have to be a command - does need to have validity from core members.

What about s.15 Ultimate remedy - change the law, strike it down.

Empiraclly observable - yes Rule of Recgonition - Officials within legal system believe in it because they are obligated to do so. Not being consistently applied, rights were violated but it was justifiable under section 1 Not supporting HLA Hart - everyone is buying into the program, and trying to approach it in the same way but are reaching different results, threatens legitimacy or rulers as well. Believe they are bound by it - Section 15

Bentham - common good doesn’t matter, maximizing utility matters. Separates morality and law - need to be valid and maximize utility (might be moral) If parliament enacts shitty legislation, SCC can override it, Common law as well is binding on parliament - helps to create feedback loop that will hopefully maximize utility and moral good.

HLA Hart:

Judges do identify reasons as to why the law may have been created but do worry about morality What is the morality element of section 15 of the charter? What is sanction of not following section 15? - sanction of government

Raz - A claim of authority is justified when the authority actually performs a service for its subjects, helping them really act better (not necessarily but in a way that furthers social, individual good, as through coordinating action) than they would without the benefit of the authorities intervention

Benefit of the society - organizing social action

They perform a service for the handicaps - people for buy in Can be distinguished between utilitarian stuff