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What’s wrong with legal positivism?

Simply put, legal positivism is a theory of law that holds that law and morality are entirely separate domains. HLA Hart, a pre-eminent legal positivist, argues that a modern, positivist legal system is characterized by the presence of both primary and secondary rules and by the existence of a legal elite that alone can know how to engage the legal system. The recognition, adjudication, and reform of the law are simply too technical and complex for the public to grasp. Indeed, law is a technical matter best left to its technicians.

These few but powerful ideas go a long way to inhibiting PLE from facilitating a much needed public discussion of the idea of justice (procedural justice) that is embedded in that conceptualization and of the idea of justice (like substantive, restorative, or social justice) we might want instead. PLE is further confined to making a selection of common place laws (primary rules) better known to the public; of explaining, promoting, and justifying the basics of the legal system; and of steering the public to legal experts for help.

There is little room in this conceptualization of law for any deeper understanding of the role of law in society, the values it sustains, or its use in maintaining power and privilege. That is not to say that we in PLE do not make an important contribution to the achievement of social justice in Canada, only to say that perhaps we could do more if we were grounded in other understandings of law.

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