Course:Law3020/2014WT1/Group D/Positivism

Legal Positivism
Legal positivists holds the view that moral content is not a necessary element of law. Instead, legal positivists views law as a science, with concrete elements which can be analyzed to determine if a law is valid.

John Austin
John Austin is a legal positivist who believes that there are three directives which governs human beings. First, God's Law is a religious concept which is separate from human law. Second, Positive Morality are rules that fall short of actual laws. They include societal norms such as manners, customs, club rules, international law and English constitutional law. Third, Positive Law sets out the requirements needed for a law to be valid. For Austin, a law is valid if the following criteria is satisfied:

(1) Law must be empirically provable;

(2) It must be a command, issued by superiors to subordinates, and backed by the threat of sanctions; and

(3) It must be created in accordance with the rule of the law making jurisdiction.

Application to Case
In the present case, John Austin would agree that the Medical and Health Care Services Act and the Hospital Insurance Act are valid laws because they were enacted by the legislature, whom the bulk of society is in the habit of obedience or submission to. However, Austin would not agree with the court's decision in applying the Charter to analyze the validity of theses Acts because in the eyes of Austin, the Charter is not a valid law because its purpose is to bind the sovereign.

Medical and Health Care Services Act

According to the provision in the Medical and Health Care Services Act, the discretion to determine which services would be covered under the Medical Services Plan was delegated to the Medical Services Commission. John Austin would reason that delegated authority is a valid exercise of the legislators' power and that the Commission is also a valid authority because it was created by a valid law-making process from the elected parties. In exercising its authority, John Austin would reason that the Commission's choice not to cover sign language interpreters is a "command of the sovereign" and is therefore within its law making jurisdiction.

The Charter of Rights and Freedom

According to the court in Eldridge, when a provision is in violation of the Charter, the court has the duty to ensure that the infringement can be demonstrably justified in a free and democratic society. The Oakes framework is as follows:

First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justified in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the violation of the right must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) the deleterious effects on the individual whose rights are limited must be proportional to the objective and to the salutary effects of the measures.

Although the Medical Services Commission's choice to not cover sign language interpreters infringes upon the rights of individuals who are deaf from fully benefiting from the health care system, John Austin would not give effect to the Charter because it purports to bind the sovereign.