Tag Archives: Positivism

Insight on Insite: Reflection on Legal Positivism and Judicial Activism

September 30 2014

The Supreme Court of Canada’s decision appears to follow the school of thought called legal positivism. This legal theory upholds that the law is compounded of rules legitimately imposed, and in its purest sense, disregarding of moral ideals in society. Simply put, the concern of legal validity for which the conditions are based entirely of social facts. Therefore, for the Insite case, it would follow the act of judge-made decision as a source of law deemed and in corroboration from a social fact. Because the Insite case featured the concern of the Supreme Court of Canada judges and there rational choice to uphold the treatment centers as well as defending section 7 of the Canada Charter of Rights and Freedoms.

Insite is the city of Vancouver’s response to drug addiction and systemic overpopulation of homeless individuals injecting themselves with drugs that which can be seen on city streets. Interviews and in-depth research in to this site is provided by the Drug Reporter HCLU where it is shown that the downtown east side on Hasting street safe injection site is not only for proper health care but it also for relieve pain from those addicted by teaching healing and proper techniques of injecting. This site, which is one of its kind around the world, has been discussed through-out the court system in British Columbia and the Supreme Court of Canada because it brings up the notion of harm and self-assisted harm with a goal and how judges who respond to the case handle the issue of judicial activism. The judges must also seep through politics and what policies are being represented through its statistical findings.

Makin mentions that this case decision has somehow formed a ripple effect as the released findings of how much the Insite is helping in regards to the number of lives it saves. In other words, the main argument being represented is effect of social sciences and the overarching ideology of with judges and society in a Canadian law context. Seeing as Insite has been in British Columbia and has provided drug addicts the ability to be overseen during safe injections, it is still the concern that the harm being down in the institution of Insite against unsafe practices is still considered harm. This harm in-turn damages section 7 of Canadian Charter of Rights and Freedoms which states that everyone is entitled to safety, security and the liberty of their person against cruel and unusual punishment. Makin suggests in his article that the harm still being done goes against such rights we are all inclined to receive. It is also observed that the judges whom agreed to the ruling of maintaining Insight, that their reasoning was because of ideology. This view that is mostly represented in this case is that of legal positivism. Without condoning or saying that what occurred was judicial activism on this blog, rather what was noticed is that the message of accepting social facts as a facet for the decision of upholding Insite and its safe injection works. In the case, it was mentioned that because this site saves lives and promotes safety if one where to inject and does not provide the injectable substance to eliminate any trafficking of drugs it can leave one to believe that these socially produced facts caused or at the very least influenced the judge’s decision. The evidence provided by social science concurs that it is the case judges at the moment of the decision where made aware of the facts prior to judgment.

McKay-Panos article relates to Makin by further developing judicial activism. This type of activism is the unacceptable method of judgment in relation to following a side that is heavily promoted for which makes a judge base their decisions on. Because this was the first-government sanction safe injection site and that it deals with the criminal possession of drugs, there are many things that need to look at such as what the charter should represent and how harm is being dealt with in the context of safety against the more dangerous way of injection on the streets. This case formed the rule that if we are to be concern with the level of harm, then should it be the case that it is okay to take down laws if there is social evidence showing that a regulation actually worsened the danger? It is also the hopes that in the future the Supreme Court of Canada makes more of a use of an interpretation of the law solely instead of worry about accusation of judgments being derived from judicial activism and decide to look at a broader scale of all sides of Insite and other programs. Whether or not judicial activism had occurred, this case follows the school of thought known as Legal Positivism because of the use of social facts, or at the very least, knowledge of social science facts in relation to the legal decision of the Supreme Court of Canada judiciary group.


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Fuller argues that law and morals are intertwined in the sense that law cannot negate the common moral belief of the society it is created by.  This is turn means that for a law to be law it may never go against the moral foundations of natural law.

Hart on the other hand sees moral as unrelated to a law’s formation.  He views that though morality should be considered it is not necessary for law to be law.  Hart argues that law is void of moral action; law is simply a command by sovereign that if disobeyed, results in punishment.  Though this distinction is made, Hart still makes the allowance that law should be moral but that just because a law is immoral does not negate the fact that it is still law.

To relate this debate to something that is more current than the Nazi-Germany argument that these two have argued extremely well, a recent appeal dismissal in the Supreme Court of Canada surrounding the use of drug “sniffer” dogs by police in public places has caught my attention(CBC, Random use of Police Sniffer Dogs Breaches Charter, 2013).  Civil liberties groups hold more of an appeal to Fuller’s arguments here where to be searched in public by a police “sniffer” dog is deemed to violate section 8 of the Charter of Rights and Freedoms which states “everyone has the right to be secure against unreasonable search or seizure” (Canadian Charter of Rights and Freedoms).  The idea to these groups that people may be stopped in public parks, bus terminals, high schools, and other areas to be subject to search at random is completely against their view of the meaning of section 8.  If these searches were truly conducted at random, I would agree with this argument.  However, the justification for these supposed “random” searches that these group claim, is actually based upon the “reasonable suspicion” standard that police use regularly in all interactions with the public.  In fact, we as civilians often employ this tactic ourselves.

“Reasonable suspicion” is a term that means an “officer has sufficient knowledge to believe that criminal activity is at hand” (Farlex Inc., The Legal Dictionary, 2013).  This small stipulation, once proven in any search or seizure by police negates any claim to section 8 of the Charter being infringed upon by police.   Another important note to make in this case is that the term “police officer” does not only constitute the human officer, this term also encompasses the dog to some degree.  However, you must also realize that in the subject of search, the police dog is not just an “officer” either; the dog is also considered an investigative tool available to the officer partaking in an interaction with a suspect.  Two cases were up for appeal citing the infringement on Section 8 of the Charter, both cases on Friday September 27, 2013 had their appeals dismissed as the judge cited “reasonable suspicion” prior to the use of the “sniffer” dog being deployed to search.

Fuller would argue that by stopping someone in a bus terminal, as officers did in R. vs. Kang-Brown (http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/4627/index.do), that section 8 of the Charter was violated.  This is an argument based on the moral principle of rights of the individual’s freedom and privacy are being shoved aside by authorities under the guise of lawful activity by the authority figure.  Hart on the other hand would assess the facts surrounding the stop to determine validity of the search.  The facts for this case to be considered in determining lawfulness would be: the officers were attending the bus station as part of a “special operation designed to detect drug couriers at bus stations” (R. vs. Kang-Brown), accused focused on officer for longer period than customary, accused walked into lobby and looked back at the officer, officer approached accused and asked if accused was carry narcotics, accused declines, officer asks to see accused’s bag, accused complies by opening the bag but then pulls the bag away when the officer moves to touch the bag to complete the search.  These facts illicit reasonable suspicion of criminal activity taking place because the accused’s behaviors are not consistent with those of an innocent party which results in the “sniffer” dog being called over to conduct a search of the accused.  The right to privacy would be argued by Fuller as the accused’s bag was personal property and sealed however, with the elements of a public space, public bus terminal, and the accused opening the bag himself, this right to privacy of the bag is significantly diminished and exposed.  The privacy of the accused is not more important in this instance that the safety and the right to safety of the public in the public area he is passing through.

The morality behind the public search of property and persons may embark into a feeling of “Big Brother” among some members of public but the question becomes more about who is feeling this pressure.  Is it the public who abide by the laws and do not partake in illegal narcotics?  Or is it the public who uses public spaces to conduct illegal narcotic transactions and movement of narcotic products?  Hart would argue that even if it is later determined that “sniffer” dogs performing public searches is unconstitutional and therefore unjust, during this time the law stands as it is and must be upheld regardless of public opinion because it is law.  The general public should have no concerns with the public search as so long as no narcotic is being smuggled by the public then the search is not needed and will not be executed.  Those who knowingly break law by possessing and/or carrying narcotics in public places, or anywhere for that matter, are subject to search by “sniffer” dog is a step in the process towards their consequence.  Personally, if I had to be searched I’d rather be searched by the dog than a human officer.  The search performed by a dog is much less invasive and significantly more efficient when used as a precursor to a full pat down search by an officer.

The Canadian Charter of Rights and Freedoms represents the moral principles and guiding rules that Canadian society is based on.  Our proposed laws and legislations must not violate the Charter in any way if they are to become law in Canada.  On this basis, Fuller’s argument of morality being fundamentally incorporated with the law is founded.  However, it is in the interpretation of the Charter when legislation and law is executed that we see Hart’s perspective.

In terms of who is right and wrong, Fuller has some key points but his views are more focused on how things should be in society for everyone to be equal and live in harmony whereas Hart’s focus is not of what is moral or ethical it is on what is.  Law is law regardless of what foundations it is based upon.  So long as law is accepted by mass then the law is law and should be upheld.  In the case described it is somewhat more difficult to see the argument for Hart and Fuller than the Nazi debate but I have found that when you look into the fundamentals of cases like R. vs. Kang-Brown, the debate between Hart and Fuller is still there and their views can still be applied.  The debate actually puts the entire legal system at stake depending on which viewpoint you side with.  Those who agree with Fuller can go through the world’s history and find that law’s accepted all around the world are not law because they are immoral.  Those who agree with Hart accept the entirety of the legal systems and the laws made during each era as law even if they may have been immoral to us now, at the time they were enacted they remained law.   To disagree with Hart in this instance would be to agree with Fuller and eliminate all law that created today’s Charter because one cannot establish a Charter of Rights and Freedoms without understanding what happens when law is not applied in immoral and unconstitutional ways.  Freedoms and rights under Fuller in this case would not exist which would turn the foundation of law into disrepute.  The potential fallout from this would mean no law at all.  Hart’s view allows for all forms of law to be considered law which is not fully employable as for all law to be law we may end up never changing law resulting in a fearful society even though his view brings forth more order and structure to society and its functions.  It is through a mixture of these two views of law that we find a stable and just legal system formation.


Canadian Charter of Rights and Freedoms. Retrieved on September 27, 2013 from: http://laws-lois.justice.gc.ca/eng/const/page-15.html

Canwest News Service, (2013).  Supreme Court Muzzles Sniffer Dogs.  Retrieved on September 27, 2013 from: http://www.canada.com/story_print.html?id=7cef5f97-7bfa-48bb-97db-05e8754897eb&sponsor=

CBC News, (2013).  Random Use of Police Sniffer Dogs Breaches Charter Top Court.  Retrieved September 27, 2013 from : http://www.cbc.ca/news/canada/random-use-of-police-sniffer-dogs-breaches-charter-top-court-1.745010

Farlex Inc., (2013). The Legal Dictionary.  Retrieved on September 27, 2013 from: http://legal-dictionary.thefreedictionary.com/Probable+Cause+and+Reasonable+Suspicion

Nadler, J. (2008).  Hart, Fuller and the Connection between Law and Justice,  Law and Philosophy , Vol. 27(1), Springer, pp. 1-34. Retrieved on September 27, 2013 from: http://www.jstor.org.ezproxy.kwantlen.ca:2080/stable/27652636

Pavlich, G. (2011). Law and society redefined . (pp. 30-36). Toronto : Oxford University Press.

R. vs. Kang-Brown.  Supreme Court of Canada Ruling.  Retrieved September 27, 2013 from: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/4627/index.do


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Food for Thought: The Hart-Fuller Debate Revisited

This week’s class included a discussion based on the famous debate between HLA Hart and Lon Fuller about the validity of Nazi-era laws. Hart defended the positivist approach, while Fuller’s position was informed by natural legal theory.

Food for thought:

This is a two-part question.

1. Write a post that takes a stand on the Hart-Fuller debate. You will need to explain which position (Hart’s or Fuller’s) is more persuasive and why. Remember: This is a public-facing blog, so your post should also provide enough descriptive and explanatory content for it to be understandable to a public audience.

2. Explain what is at stake in the Hart-Fuller debate. Why does this debate matter? What are the implications of accepting one stance vs. the other? You can approach this question in relation to the specific case that Hart and Fuller were discussing, but remember that this case was an opportunity for them to have a broader discussion about positivist and natural legal perspectives.

Feel free to refer to excerpts from the Hart-Fuller poster distributed in class.

Posts prepared in response to this question should be submitted before 19:00 on October 2.

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Morality Within Law: Its Positively Natural!

For my second blog, or “musing,” I have decided to address the Hart-Fuller debate regarding positivism and natural law. Although I had originally intended on directly pursuing the “food for thought” topic for this week, our class discussion regarding the Hart-Fuller debate has proven far to enticing to not address. Moreover, I feel that a discussion regarding the Hart-Fuller debate, maintains the spirit of discussion as laid out in this week’s “Food For Thought.”

Before we begin the crux of this musing, we should first identify both Hart and Fuller, while defining their positions on law and legality. For the purposes of this blog, I will attempt a short and concise summary of each scholar’s contributions regarding the debate of morality within law(s).

Herbert Hart can be identified as a legal scholar/theologian who’s basic principles essentially suggest that even though certain laws may be seen as immoral, as we will see with the forthcoming Nazi example, they are still valid, binding laws as they have been both legitimately enacted and legitimately followed/enforced/maintained; as the issue of legitimacy is not in question, one cannot disrupt the validity of said laws by claiming they were never legitimate to begin with as the possessed zero moral grounds (Pavlich, 2011).

Lon Fuller, also a legal scholar/theologian, suggested law in itself contains morality to some degree, that this morality is what can be seen to justify and validate a laws legal authority (Pavlich, 2011). Furthermore, Fuller incorporated this concept of legal morality in his understanding of law making, by describing law making as the “craft of law making” (Pavlich, 2011). Fuller’s description of law making as a “craft” can be seen his prime indication that there is something more occurring within law than just simply legality. Much like any tradesman/tradeswoman, there are elements of intangible talent that one possesses in order to be considered “good” (Pavlich, 2011). This point is reflected by Pavlich (2011) when he continues to describe Fuller’s position by stating “the craft of lawmaking has what he calls a unique ‘internal morality’ that allows us to identify it, legitimately, as law” (p. 30).

The swell of the Naturalist/Positivist standoff came to a head during a post World War Two German court case where the legitimacy/validity of previous laws (laws enacted by the Nazi regime) were tested to determined whether or not those that had acted in accordance with specific Nazi laws had acted rightfully (legally) or not (Pavlich, 2011). For the purposes of this blog I will not go into great detail regarding the specific case at hand. However, so that everyone reading this is on par, I will continue with a summarized version of the proceedings:

A woman (living in Germany, under the Nazi regime), reported her soldier husband to authorities as he had mentioned to her that he was disappointed that a recent assignation attempt on Adolf Hitler had been unsuccessful; this was a crime at the time as the Nazi party had enacted laws to prevent and punish such communications. After the wife of the German soldier reported this to Nazi officials, the German soldier was arrested and sentenced to death. Although the death sentence was not carried out, he was sent to the front lines of the war; a technical death sentence at the time. After the war ended, and her husband surviving, she was charged and convicted under new regulations which declared the previous regulation(s) imposed by the Nazi regime to be invalid and as such, of no legal authority. (Pavlich, 2011).

With this case at hand, Hart and Fuller found themselves disagreeing upon the legitimacy/validity of the Nazi law the woman had “followed.” Although this debate can be seen as a battle between two men, in reality it is the collision of the two very differently minded legal positions, positivism and natural law.

Positivism would suggest that the woman, regardless of motivation, acted appropriately and in accordance with a justifiable law. Furthermore, positivism would suggest that if immoral, ulterior motives knowingly did exist within her decisions to report her husband, it would not matter as that is not the issue of debate. Positivism, through its perspective, sees no room for morality within in law. Moreover, one could suggest that positivism outright pushes away the sense of law entangled with morality. However, Fuller and natural law theorists would have us believe otherwise.

Natural law theorists would suggest that any law based on injustice or immorality loses its credibility and validity, ultimately striking away its power, disregarding the law altogether. Essentially, this removes any perceived legal responsibility on the part of those the law would normally regulate. Furthermore, natural law theory can be seen to suggest that an outside source of justice must exist for anyone to make this claim. For if we are able to suggest that a law, even one legitimately enacted, retains no power due to its immorality, a separate barometer of right and wrong must exist outside the spectrum of law.

When all is said and done, I find myself leaning toward, and ultimately siding with, Fuller’s position. Although Hart’s position is quite logical and understandable, especially when looking at his scathing critique of the naturalist position, I cannot but help remember the quote by great legal scholar/theologian St. Augustine, “an unjust law is no law at” (Pavlich, 2011, p. 22). Furthermore, one could suggest the post World War Two courts agreed and sided with the Naturalist position, as the woman charged in the case study, was eventually convicted on the ground that the Nazi enacted law retained no legal authority, regardless of its legitimate creation.

Ultimately the validity of law remains within its inherent morality, as no single individual would agree to be ruled by laws and regulations that were not at least based on some moral underpinning; at the very least ones own personal moral underpinning. Suggesting legal rules and regulations are exempt from moral reasoning and rationale is absurd and should be extinguished. Law is not intended to be arbitrarily created, enacted or altered, as though it is a child’s playground where rules are made at whim in order to satisfy those in charge. Laws are intended to be basic, fundamental rules and regulations that we as a society agree upon, social, guiding principles that remain true yesterday, today and tomorrow. As far I’m personally concerned, positivism, although well-intentioned in its focus, neglected to give weight to the intangible elements of law and society, giving way to cold, calculated machine-like perspective on legality; not surprisingly embraced by the cold, calculated Nazi regime. Ultimately, it is my view that positivism failed in its attempt to dehumanize regulations intended to govern humans, and that appears ironically irrational.


Below is a link to an interesting article discussing the compatibility of law and morality. Additionally, I have included a video that attempts to break down and explain the debate between Natural Law and Positivism, enjoy.


Video: http://www.youtube.com/watch?v=ge7UowL0d3U


Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford.

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Legitimacy of Laws: Democrats vs Tyrants

The question for us this week was to discuss whether the laws of a tyrant were less legitimate than those of a democratic ruler, and what the differences between the two were. I think it is appropriate to begin with the basics.

Tyrant: A sovereign or other ruler who uses power oppressively or unjustly.
Democracy: Government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

At first glance it seems an easy decision. Laws enacted by a government that was elected by the people that those laws govern would be more legitimate than those of a tyrant, who wields power in their own interests, often at the expense of their citizens. However, the positions taken by some of the theorists we are studying in this course complicate the picture a little bit.

From a positivist perspective, law is separate from morals. The “proper description of law is a worthy objective and a task that needs to be kept separate from moral judgments… a descriptive, or at least morally neutral, theory of law is both possible and valuable (Bix, as cited in Pavlich, 2011, p. 40). Natural law, on the other hand, is concerned with a “higher, moral authority” that is said to be the foundation of law (Pavlich, 2011, p. 27).

So are the laws of a tyrant legitimate? Are they less legitimate than those of a democratic ruler? It depends on the situation. From a natural perspective of law, it is more unlikely that the laws would be as legitimate as those from a democratic ruler. For example, the perspective of John Finnis would not provide legitimacy to the laws of Nazi Germany (specifically, the example used in the chapter, and Nazi Germany is also commonly referred to when speaking of a dictatorship). Finnis’ perspective revolves around the “seven basic forms of human flourishing” (Pavlich, 2011, p. 35). They include:

1. The valuing and transmission of life
2. Knowledge for its own self
3. Play
4. Aesthetic experience
5. Sociability and especially friendship
6. Practical reasonableness
7. Religion or the value of spiritual experience

Finnis also declares that a ruler must pursue the interests of a common good (p.35). If we take the example from Nazi Germany (The woman reporting her husband for speaking ill of Hitler and his government), it is quite clear that this law would be invalid under Finnis’ definition. Punishment for speaking out against Hitler is death. At the very least this is a severe violation of Finnis’ first basic form of human flourishing, and only advances the interest of Hitler and his government, not the “common good” required by  Finnis.

Fuller would come to a similar conclusion as he states in his famous debate with Hart: “To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system” (Fuller, as cited in Pavlich 2011, p. 41). Pavlich describes Fuller’s view as being that “the authority and legitimacy of law is, For Fuller, founded on morally guided practices of lawmaking that involve the consent of those whom it governs” (p. 32). One could say that the people of Nazi Germany did “consent” to Nazi laws, as they did after all elect Hitler into power. However, the counter-argument is that consent is not true consent if it is achieved by fear, terror, and threat of death.

Positivist theory, on the other hand, is a bit more difficult to use in tackling this issue. Since the main idea of positivist theory is to separate the “is” from the “ought to be” of law, morality is detached from the argument, and opens up potentially unjust land immoral aws to being legitimate. By this perspective, whether the laws of Hitler were moral or immoral, just or unjust, is an argument for someone else. In regards to the case discussed in the debate, Hart argues that “whatever the morality of the laws at hand, they were in force at the time and should be considered valid” (Pavlich, 2011, p. 43). Hart is not arguing that the laws are right are wrong, he is merely stating that the woman was obeying (albeit for selfish reasons) the law that was in force at the time, and the court was incorrect to apply a previous law based on the unjust nature of the current law.

Another point that Hart makes has to do with the legitimacy of social rules. Hart explains his “internal aspect of rules” by saying that “legitimate social rules are accompanied by a basic, if implicit, sense that they set a general standard to be followed by the group as a whole” (p. 46). This logic also gives credibility to the “immoral” Nazi law that nobody was to speak out against Hitler or the Reich. It is well known that the Nazis ruled by fear, and this type of law, enforced by fear, would have been a general standard to be followed by the German people, who would have feared retribution by Hitler’s soldiers. It does, however, show that not all Nazi laws may have been legitimate under positivist legal theory. If a general standard to be followed by the group (German citizens) then there are many laws that discriminated against Jews and other minorities that would possibly be declared invalid by Hart. This threat to legitimacy would be why (as we learned in class) every Jew going into a concentration camp was coerced into signing away their citizenship.

So to answer the question of whether the laws of a dictator are legitimate, I say yes, they can potentially be legitimate.  Law is law, and the morality of those laws is a different discussion from the legitimacy and justice attached to those laws. These laws were created by a dictator who was elected by his own people, and despite the atrocities committed with them, they were “legitimate” laws. They are clearly immoral and do nothing for Finnis’ “common good”, and so certainly cannot be labelled as “good” or “effective” laws, but they are legitimate.

Finally, the primary difference between a dictator’s laws and a democracy’s laws, in my opinion, is the level of fear and oppression involved. In a democracy, yes, we have punishments for violating laws, however violating a dictator’s laws would be punished much more severely. As an example, what would be the punishment for speaking negatively about Stephen Harper? Probably nothing, yet speaking negatively against Adolph Hitler was punishable by death.


Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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