R Vs Sparrow Summary

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This paper analyzes the case, R. v. Sparrow [1990] 1 S. C. R. 1075 from the perspective of the legal positivism theory. As it shall be revealed later in this paper, the case is highly important in the history of Canadian law because it was in it that the Supreme Court of Canada made an important decision concerning the application of the rights of aboriginals, which, for a long time had been and is still controversial. Specifically, the court held that aboriginal rights, for example, fishing, that were in existence before s 35 of the Constitution Act, 1982 and that existed before the provincial legislation that regulated aboriginal fishing were protected by the Canadian Constitution and couldn't be infringed unless the government justified …show more content…
Here, the legal positivists believe that law operates as a result of a bureaucratically sophisticated state in which property is respected, criminals are punished, and contracts are enforced. This statement means that the advocates of this theoretical perspective believe that the law is there to facilitate the state in ensuring that property is respected, contracts are enforced in the proper manner as stipulated by the state, and that those who do not respect property in the eyes of the state and goes against enforcements of contracts as put forward by the state are punished (Campbell, 2016). In R. v. Sparrow, this aspect of the theoretical perspective is not observed. Case proceedings in both the first trial and the subsequent appeals were interested in establishing whether the provincial legislation violated the aboriginals existing rights to fish. For the advocates of legal positivism, such considerations could not be there because they believe that the law is the law of the state and that the state is what determines what is right and what is not right (Wacks, 2017). According to the legal positivism theoretical perspective, the state determines what is legal and what is not. Therefore, if the state, through its legislation, determined that fishing with a net longer than the licensed length is wrong, then the consideration for whether the state's legislation violated the aboriginals' existing rights would not exist. In the case in question here, there could not be any issue concerning the state violating any right because the state has the authority to determine what is legal or not and because the law belongs to the state to do with it what it deems right. In other words, the Aboriginal's right to fishing, which is a normative order could either be consistent or

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