Course:Law3020/2014WT1/Group D/Positivism

Legal Positivism
Legal positivists view law as a science, with concrete elements which makes a law valid if the components are met. Positive law is not concerned with the content of the law, but rather it is concerned with the process of how the law was enacted. Specifically, John Austin states that a law is valid if it is a command issued by a superior to subordinates and backed by a threat of sanction. All of the components of a valid law are empirically provable. In addition, it must be created in accordance with the rule of law making jurisdiction regarding the creation of law. The effect of this approach leads to a separation of morality from the law. This is in contrast to Thomas Aquinas' natural law theory as there is no higher standard in which law strives to conform to. Therefore, this approach may lead to valid laws that are immoral. To illustrate this, legal positivists point to the fact that Nazi laws were valid.

Application to Case
In the present case, John Austin would agree that the Medical and Health Care Services Act and the Hospital Insurance Act were created in accordance with the rule of law making jurisdiction and so it is a valid law. 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 so the Commission is also a valid authority because it was created by a valid law-making process from the elected parties, whom the bulk of society are in a habit of obedience or submission to. 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. Although the Commission's choice infringes upon the rights of individuals who are deaf from fully benefitting from the health care system, the Commission, as a delegated sovereign, is not bound to ensure that the provision must aim towards a morally worthy end.

Issue arises when validly enacted laws are in conflict with one another. According to the court, when there is conflict between a law and the Charter, we must apply the Oakes Test to determine to determine if the limit is 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.

In the present case, John Austin would agree that the provision and s.15(1) of the Charter are both valid laws. To determine which law is superior over the other, John Austin would most likely agree that since the Canadian system is based on constitutional supremacy, the Constitution is the supreme law in Canada. According to the rule of law making jurisdiction, all laws must be in compliance with the Constitution. John Austin would probably support the use of the Oakes Test developed by the courts as the analytic framework for determining whether a law is a reasonable limit under the Charter. This approach is permissible by John Austin because judicial decisions are specific commands. Judges are considered as holding lawful authority because he views a judge as acting as a minister who carries out the limited authority which has been delegated to him or her by the state. In addition, this framework conforms with the positivists' aim to use a scientific method for determining the validity of a law.