Course:Law3020/2014WT1/Group D/Positivism

Legal Positivism

Legal positivism is best understood as a reaction to natural law theory. Legal positivists rejects the idea that law is teleological and that there is a morally good end that the law is striving to achieve. Legal positivists believe that morality is not a necessary component of a valid law, and that it is possible for immoral laws to be valid laws. To illustrate this point, we can look to the apartheid systems in Nazi Germany or South Africa as examples of legal systems that had immoral, yet valid, laws. Although both natural law theorists and legal positivists believe that there is a moral obligation to obey 'valid laws', the latter believes that the obligation to obey is based on the the fact that the law itself was validly enacted.

John Austin

John Austin

John Austin is one of the founding legal positivists. According to Austin, human behaviour is governed by three distinct directives. First, God's Law is a religious concept which is separate from human law. Some of God's laws are revealed, while the rest must be discovered through the index of utility to determine as best they can what God's commands are. Second, positive morality are rules that fall short of actual laws in that they are missing one or more of essential elements which makes a law valid. They include societal norms such as manners, customs, club rules, international law and English constitutional law. Third, positive law is a command, issued by superiors to subordinates, and backed by the threat of sanctions.

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.