Course:Law3020/2014WT1/Group S/Positivism

Granovski - definite positive

According to Austin, there are three kinds of directives governing humans: God's Law or "revealed" law; positive morality (more commonly referred to as norms); and positive law. The first two categories do not hold the same weight as the last, as Austin articulates that positive law is the main law, and has the most force. Contrarily, God's law and positive morality are more directive.

Within Austin's idea of positive law there are three essential elements of each law: a command; issued by superiors to subordinates; and backed by sanctions. In addition, the law must pass the "pedigree test" - that is it must have been created within the rules of creating a law for the given jurisdiction.

Applying Austin's sentiments to Granovsky it becomes clear that the CPP provision is a valid law.

There is a command: the CPP itself, and more specifically the in question drop-out provision. These commands act to order people to make contributions and act in a certain way otherwise the plan will be of no benefit.

There are valid superior's issuing a law to subordinates as parliament is the recognized authority of Canada and the CPP as it is available for all Canadians. The general public can be said to be the subordinates, however, it is slightly obscure as people are not automatically required to abide by the CPP provisions. The program is a choice, thus people will opt in and out at their choosing. However, this does not change the fact that the public who choose to opt in are subordinates, they are giving money to be in the program and understand that they are expected to follow a certain set of rules in order to be able to benefit from the program.

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

The sanction component of Austin's valid law is satisfied in the threatened penalty. If one chooses to opt in to the CPP but then do not follow the rules you may be denied money. This acts as a sanction as then one does not get to benefit from the fruits of a regulatory regime. *** Does it work in a modern complex society? - awkward application

With final regard given to Austin's "pedigree test" it becomes clear that this law was made in the correct manner. Parliament has the authority to pass laws and it can be assumed it came into being correctly.

Applying these rules to the Charter is slightly problematic. Most notably Austin's view on the superior and subordinate classes becomes problematic as in Canada the Charter is seen as a superior law governing all others. Austin does not agree with this as by his view as long as a law is valid it holds the same force as all other laws. In addition, the idea of a superior and subordinate indicates that the superior is not bound by law, only the subordinate. Therefore, the fact that the Charter applies to all levels of government is also problematic for Austin's view.

Another issue with Austin's view is the role of the judicial branch. According to Austin parliament, and thus legislation, always trump judicial decisions. However, in many cases (including Granovsky) the judge is interpreting legislation and thus gives practical effect to what is inherently superior to their role. Therefore, it could be argued that the judicial and not the legislative branch has the superior status, which is problematic for Granovsky's view. Through this interpretation, the whole decision in Granovsky is suspect as it could be said that the judge is acting outside of his role as subordinate by interpreting legislation.

'HLA Hart: ' Hart organizes law into a primary and secondary category. Primary rules are those that tell the public what they can and cannot do. Secondary rules are regulatory in nature and one can choose whether or not you follow them. Opposing Austin's theory, Hart states that laws do not have to be commands, all it needs to be valid is to be recognized by officials within the system. Officials need to believe that they are obligated to engage in the behaviour and apply the law.

Applying these characteristics to Granovsky it becomes clear that the CPP and the drop-out provision is a secondary law as one can opt into it. Granovsky points out that the CPP is not consistently applied throughout those who choose to opt in, in this sense one could argue that applying these dropout provisions violates too many rights and is therefore invalid. However, as is evident in Granovsky, officials have been engaging in the drop-out provision and are clearly enforcing it. Therefore the CPP satisfies Hart's rule of recognition requirement.

What about s.15 of the Charter? The Charter is the ultimate remedy; it has the ability to change the law, and strike them down. Therefore, it can be classified as a primary rule as in effect, it states what one can and cannot do. Additionally, officials believe they are bound by Charter provisions and thus it satisfies the rule of recognition.

Bentham

According to Bentham, the common good doesn’t matter, maximizing utility matters. In essence, Bentham separates morality and law as he states that laws need only help the most amount of people. Applying this to Granovsky it can be argued that the CPP legislation is in place to effectively help the most amount of people. Although there is the contested drop-out provision, this is to ensure that the limited funds are allocated to those individuals who are in the most vulnerable position.

• • • 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.

Raz According to Raz law claims authority, and is justified when that authority is performing a service for their subjects. In Granovsky the CPP provision is a legitimate benefit to society as it organizes and allocates funds to individuals, who were at one point a benefit to society, but now cannot perform their required work.