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Legal Positivism and Australian Law
Nature and rule of law have generated more passionate debates in legal circles than anything else and the reason lies in the fact that law directly affects the lives of citizens of a country. National laws govern the lives of human beings and it is thus important to debate such things as their nature, their validity and applicability, their relevance to the case etc. Citizens of a country feel they are entitled to full explanation of why a certain law has been formulated and they also feel included to discuss its merits and demerits. Law has thus often been a subject of close scrutiny and this has given rise to numerous social, legal and philosophical debates. Many question the applicability and relevance of a certain law, while other are more concerned about its long and short-term effects. However there have been some important jurists and legal researchers who maintained that law must be accepted for what it is and that it should be based on social facts. In other words, this particular category of jurists felt that law and its merits/demerits must be kept separate and the two should not be discussed together to judge the effectiveness or validity of law. This theory was later called positivism theory.
Legal positivism is based on the premise that content of law is not the same thing as its merits and demerits so while we should be concerned about the latter, we must combine the two to check how effective a law has been. John Austin (1790-1859) was one of the most famous English jurists of his time and no one has been haunting the legal world more than him with his positivism theory that stated, "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry" (1832, p. 157) Positivistic approach to law can be best understood by delving deeper into the subject and by examining some laws of a particular country, in our case, Australia.
However before we start explaining why a certain law is positivistic in nature, we must be clear about the term and its meaning. In simpler words, legal positivism revolves around the thesis that validity of a law is not based on its merits or demerits but simply on the fact that it has been enforced by the government. It is a very interesting concept and which has often been criticized for its partial and ambiguous treatment of law. But the fact remains that in many countries especially in countries where monarchy still exist in some form, laws are developed and enforced and that is how a law exists. The validity of the law is thus not determined by factors such as justice, applicability or relevance but simply by the fact that a sovereign has ordered its enforcement.
Austin believed that is a law has been formulated and is backed by a sovereign power; it becomes valid whether or not it has any real significance or effectiveness. Austin added the element of threat to law to determine its validity as he felt that laws were usually backed by some kind of threat. This threat emerges from the fear of violation of law. In other words, in order to make people follow a law, there is certainly some threat of punishment involved. 'Break this law and you will have to pay' is the belief that works behind threat. It must also be remembered that Austin and other positivistic jurists did not discard the merits and demerits of law. They knew that for a law to be effective, it should be based on forces of justice, impartiality and truth. However, they made it clear that these forces couldn't determine the validity of law. Validity was simply a matter of how the law was enforced, whom it was enforced by and what is the threat supporting the law.
Robert P. George (1999) writes:
Positivity was first articulated, as a concept organizing reflection on law, legal right(s), and legal justice, in about 1130, among the theological humanists of Paris and Chartres early a thousand years after the term 'positive' was reported to be a tool for philosophical reflections on grammar.... Positive law is put forward as a properly distinct category and subject of study in its own right; even those parts of it which reproduce the requirements of morality are conceived of, and can be studied, as parts of a genuine whole which in its entirety and in each of its parts, most of which neither reproduce nor are deducible from morality's requirements, can be studied as the product of human deliberation and choice." (p. 195)
Austin was quite accurate in his positivistic assessment of law, however in modern societies, not all laws can be viewed in this manner. There are some countries where positivistic approach is still widely used such as Australia, but there are other countries where laws are based on its merits and demerits than on anything else. In this regard, we can cite the example of U.S. constitutional law, which is a good example of non-positivistic laws as the U.S. Supreme Court clearly stated, "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed." (Norton v. Shelby County, 118 U.S. 425 (1886))
Positivism is therefore developed as a conceptual theory that sought to examine the validity of law. It applies more to "some conventional laws and positivism -- the idea that it makes sense to distinguish between things as they are and things as they should be, between fact and value, between is and ought. While this distinction has a long tradition in Western thought, it has come under substantial attack in the twentieth century..." (Katz, 1996)
While it is true that most modern societies wouldn't be considered wise if they make use of positivistic approach to formulation and enforcement of law, the fact remains that many laws, even in some western countries, are largely based on social facts. The validity of law in these countries is certainly judged by the presence of a sovereign who ordered enforcement of law and not by its merits or demerits. Australia is one good example of positivistic law and it is believed that Australian constitutional law is a based on positivism.
The positivism of Australian law emerges from its resilience to change. In other words, the law is based on the concept of power and has been quite resistant to modification as is clear from the fact that only eight of 44 referendums for amendment have ever been approved. (Australian Public Law) it must also be made clear that in Australia the validity of law is simply based on the fact that it has been enforced by a sovereign power and there is often chance of debating its merits and demerits. "...legal positivist scholars have greatly influenced the development of Australian Constitutional Law. The central tenet of legal positivism is that the validity of any legal rule depends solely on questions about power: that is, on whether the authority issuing the rule has the legal power to do so. Since the grant of legal power must itself be conferred by a legal rule, the object is to show that the legal order is a self-contained universe of discourse, within which any legal question can be given a purely legal answer." (Australian Public Law) law must be resistant to change for that is the whole purpose of implementing laws. However they must also be flexible enough to allow modern interpretation, which is unfortunately not the case in Australia and this, is what makes Australian constitutional law positivist in nature. In other words, when a law is so rigid that it cannot allow modern interpretation and fails to keep pace with changing times, it is said to be positivistic in nature. In such laws, the interpretation is rigidly limited and the original law cannot be molded to suit modern conditions and circumstances. While then United States constitutional law is also highly resistant to change, it is nonetheless flexible enough to allow Supreme and High Courts to seek modern interpretation. However that is not the case in Australia where constitutional law is the final word of authority and to allow the law to keep pace with changing times is seen as a threat to the constitution. A very apt example of this kind of rigidity of law can be seen in Bulun case of 1999.
In this case, the copyright Law of Australia was under consideration and it was found that the rigid interpretation of the law was closely connected with legal positivism. The painter John Bulun sought Court's help in combining customary law with the Copyright Act. Mr. Bulun wanted one of his paintings "Magpie Geese and Water Lilies at the Waterhole," to…[continue]
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