Legal Positivism and Australian Constitutional Law

Introduction to Legal Positivism

The nature and rule of law have generated more passionate debates in legal circles than almost any other subject, and the reason lies in the fact that law directly affects the lives of citizens. National laws govern human beings, so it is important to debate such things as their nature, validity, applicability, and relevance to particular cases. Citizens feel entitled to a full explanation of why a certain law has been formulated, and they also feel moved to discuss its merits and demerits. Law has thus often been the subject of close scrutiny, giving rise to numerous social, legal, and philosophical debates. Many question the applicability and relevance of a given law, while others are more concerned about its long- and short-term effects.

Some important jurists and legal researchers, however, maintained that law must be accepted for what it is and that it should be based on social facts. This particular group of jurists held that law and its merits or demerits must be kept separate, and that the two should not be combined when judging the effectiveness or validity of a law. This theory came to be known as legal positivism.

Legal positivism is based on the premise that the content of law is not the same thing as its merits and demerits. While we should certainly be concerned about the latter, we must not conflate the two when assessing how effective a law has been. John Austin (1790–1859) was one of the most famous English jurists of his time, and no figure has haunted the legal world more persistently with his positivism theory. Austin 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). The positivistic approach to law can best be understood by examining some laws of a particular country — in this case, Australia.

Before explaining why a certain law is positivistic in nature, however, we must be clear about the term and its meaning. In simpler terms, legal positivism revolves around the thesis that the 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 an interesting concept, one that has often been criticized for its partial and ambiguous treatment of law. Yet the fact remains that in many countries — especially those where monarchy still exists 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.

Core Tenets of Austin's Positivism

Austin believed that if a law has been formulated and is backed by a sovereign power, it becomes valid whether or not it has any real significance or practical effectiveness. Austin added the element of threat to his account of law's validity, arguing that laws are typically backed by some kind of sanction. This threat emerges from the fear of violating the law — in other words, in order to make people follow a law, there is necessarily some threat of punishment involved. "Break this law and you will face consequences" is the underlying belief that threat operates upon.

It must also be noted that Austin and other positivist jurists did not discard considerations of a law's merits and demerits entirely. They recognized that for a law to be effective, it ought to be grounded in justice, impartiality, and truth. However, they made clear that these forces could not determine the validity of a law. Validity was simply a matter of how the law was enforced, by whom it was enforced, and what sanction supported it.

Historical Development of Positive Law

Robert P. George (1999) offers a useful historical account of the concept:

"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 the positivistic approach is still widely used — such as Australia — but there are others where laws are evaluated primarily on their merits and demerits. In this regard, we can cite the example of U.S. constitutional law, which provides a good example of a non-positivistic legal tradition. 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 a conceptual theory that seeks to examine the validity of law. It applies more readily 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).

Positivism in Australian Constitutional Law

While most modern societies would not be considered wise to rely solely on a positivistic approach to the 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 judged by the presence of a sovereign who ordered its enforcement, not by its merits or demerits. Australia is one clear example of a positivistic legal system, and it is widely held that Australian constitutional law is grounded in 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 evident from the fact that only eight of forty-four referendums for constitutional amendment have ever been approved (Australian Public Law). It must also be noted that in Australia the validity of law is simply based on the fact that it has been enforced by a sovereign power, leaving little room for 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 — that is part of the very purpose of implementing laws. However, laws must also be flexible enough to allow modern interpretation, which is unfortunately not consistently the case in Australia, and this is what makes Australian constitutional law positivist in nature. When a law is so rigid that it cannot accommodate modern interpretation and fails to keep pace with changing times, it is said to be positivistic in nature. In such systems, interpretation is rigidly limited and the original law cannot be adapted to suit modern conditions and circumstances.

While United States constitutional law is also highly resistant to change, it is nonetheless flexible enough to allow the Supreme Court to seek modern interpretation. That is not the case in Australia, where constitutional law is treated as the final word of authority, and allowing the law to keep pace with changing times is often seen as a threat to the constitution itself. A clear example of this kind of legal rigidity can be seen in the Bulun case of 1999.

Conclusion: Australian Law as a Positivist System

Australian law is thus very closely linked with legal positivism since it revolves around the concept of power. The sovereign order is treated as the final word, which cannot be altered or amended. While a similar dynamic exists in the United States, there is nevertheless a degree of judicial flexibility in the American system when it comes to modern interpretations of law. The United States gives its judiciary sufficient freedom to interpret law according to the circumstances of the time. That same latitude is largely absent from the Australian legal system, where modern interpretations are often met with disapproval. This is the essential difference between the legal systems of the two countries — a difference that has made Australian law a more rigid and paradigmatically positivistic form of law.