Course:Law3020/2014WT1/Group C/Natural Law
- 1 Traditional Natural Law Theory: Law for the Common Good
- 2 Treatments of Selected Theoretical Perspectives
Traditional Natural Law Theory: Law for the Common Good
Natural Law theorists believe that there is a source of law that exists separate from human creation and can be accessed by use of reason. Natural Law theory purports that human beings can use their rationality to discover what the natural law is through divine revelation, studying the order of the natural word, or by studying human nature. The source from which Natural Law emerges is thought to be unchanging and universal, therefore it follows that Natural Law itself is always the same for all people in all places at all times. Natural Law theory views law as being inherently and necessarily intertwined with morality. A law which is not objectively, morally good will not be considered a valid law by Natural Law theorists. The Natural Law position demands that law must intend to achieve an end that is objectively good and rationally defensible. In order for Natural Law theorists to accept a law as valid, it must be aimed at a moral objective. Therefore, Natural Law theorists have adopted the maxim: "an unjust law is no law at all". The Natural Law view is that if a law is unjust, then it is not genuine, and so we do not have a general moral obligation to obey it. St. Thomas Aquinas explores Natural Law theory and describes law as "nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated". According to Aquinas, in order to be valid a law must:
- 1) pertain to reason;
- 2) be directed to the common good;
- 3) be made by a valid lawmaker; and
- 4) be promulgated.
Application to Moore v. British Columbia (Education)
In Moore, the law that we will evaluate in terms of Natural Law is Section 8 of the British Columbia Human Rights Code which states:
- Discrimination in accommodation, service and facility
- 8 (1) A person must not, without a bona fide and reasonable justification,
- (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
- (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
- because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
- (2) A person does not contravene this section by discriminating
- (a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
- (b) on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
- 8 (1) A person must not, without a bona fide and reasonable justification,
Does the law follow practical reason?
For Thomas Aquinas, practical reason in regards to the law is concerned with how we ought to achieve the common good. Natural Law proposes that law itself provides the practical reason by which we can achieve universal happiness. Therefore, it follows that because Section 8 directs us to action and establishes what is considered reasonable, it provides the necessary steps towards satisfying the common good. Section 8 conveys that discrimination without reasonable justification is not tolerated and provides the practical methods for coming to the conclusion that discrimination exists in any specific case. In order "to demonstrate prima facie discrimination [under Section 8], complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under the human rights statutes. If it cannot be justified, discrimination will be found to occur (paragraph 33)". Section 8 provides the process that is required to establish a finding of discrimination and eliminating discrimination from our society will in effect promote the common good. This methodology conforms to the practical reason that is necessary to satisfy the first condition in order to be considered valid law under the Natural Law theory perspective.
Is the law directed toward a common good?
The purpose of Section 8 in the context of Moore is to protect individuals in society from being discriminated against. Where it can be proven that an individual has been denied a service due to their disability, and that service is customarily available to the public, it is deemed contrary to Section 8 of the Human Rights Code. A law that serves to protect human rights is undoubtedly embodied with the promotion of the common good because it aims at enforcing equality. Natural Law theorists like Thomas Aquinas submit that happiness is the common goal of all humans. Discrimination by definition has the effect of treating humans unequally; those who are made to feel unequal may see themselves as inferior, which could reasonably manifest significant degrees of unhappiness for those who are discriminated against. Attaining the common good is not concerned with determining what is good for certain people, but rather that which is good for the entire community. The happiness of the whole can be attained by adhering to the common good, which serves the best interest of all members of a community. Since the aim of Section 8 is to promote and enforce equal opportunity and fair treatment for all, Section 8 serves to secure that which promotes happiness for the whole community. The School Act which was in effect in the case of Moore stated that "the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy. This declaration of purpose is an acknowledgement by the government that the reason all children are entitles to an education, is because a healthy democracy and economy require their educated contribution" (paragraph 5) . The intention of this provision is indisputably directed at the common good because it aims at creating a healthy democracy and economy, it follows that any law which serves to protect and maintain that intention is itself a proponent of the common good. In Moore, Section 8 provides protection and remedy from being discriminated against on the grounds of being denied special education. Education is a vital tool in the pursuit of the common good and societal happiness. Indeed, "special education shares the basic purpose of all education: the optimal development of individuals as skillful, free, and purposeful persons, able to plan and manage life and to realize highest potential as individuals and as members of society" (paragraph 39). The goal of improving society through education is in itself directed towards the common good. Discrimination is unjust; therefore, a law which serves to eliminate discrimination would be directed towards rectifying that injustice by virtue of adhering to the common good.
Is the law made by a valid lawmaker?
Natural Law theory sees the valid lawmaker as the representative source which governs the whole community. The ruler of a community holds their position by reason of the natural order and therefore is naturally fit to rule. In British Columbia, the law is created by the legislature, which is comprised of members who are elected by the community. In as much as Thomas Aquinas was not an advocate of the democratic government, he would likely concede to the fact that the legislature is the most appropriate lawmaker we have available in the case at hand. As the legislature is chosen by the community to represent the best interest of the whole, it would satisfy the Natural Law condition that law be made by a valid lawmaker.
Is the law promulgated?
Promulgation of the law is concerned with making the law written and known to the public. According to Thomas Aquinas, a law which is unknown to the community cannot be expected to be obeyed. Viewed through the lens of Natural Law, it is an essential component of justice that a valid law be promulgated because it is a necessary condition for the law to obtain its force. As Section 8 is embodied within the Human Rights Code of British Columbia, it is written and available to the public. The entire community can come to know and access this law which protects against discrimination, and as such, it satisfies the promulgation condition which is required to be considered valid law in light of the Natural Law theorists position.
Thomas Aquinas would likely agree with the decision in Moore because Section 8 satisfies all of the necessary Natural Law conditions to be considered valid law and its purpose is to eliminate situations of societal discrimination which in effect, promotes overall happiness within the community. Additionally, Thomas Aquinas would likely contend that as the law against discrimination is aimed at an objectively moral goal of creating fairness and equality, it adheres to the desire of Natural Law theorists to achieve the common good. Therefore, as Section 8 is valid law, Thomas Aquinas would submit that we are compelled to obey to it. A Legal Positivist would likely agree with this decision in Moore as well because utilitarianism is concerned with maximizing pleasure and happiness for the greatest number of people and so it can be thought of as attaining towards the common good of the community. That is, the common good can be achieved by maximizing pleasure and happiness for the greatest number of individuals.
Treatments of Selected Theoretical Perspectives
|Natural Law||Thomas Aquinas|
|Legal Positivism||John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz|
|Separation Theory||HLA Hart|
|System of Rights||Ronald Dworkin|
|Liberty and Paternalism||John Stuart Mill and Gerald Dworkin|
|Law as Efficiency||Susan Dimock|
|Feminist Jurisprudence||Patricia Smith and Catharine Mackinnon|