Course:Law3020/2014WT1/Group O/Natural Law

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Natural Law

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Thomas Aquinas

Thomas Aquinas' Approach to Natural Law Theory

The principle theorist for natural law is Thomas Aquinas, and the essential point is that true laws are derived from a higher non-human source, and they must be followed for reasons of justice, fairness and morality. For Thomas Aquinas law is derived from God, but natural law theory is not limited to this it can come from reason or nature. Natural law theory is based on morality, the idea is that because these laws come from outside the human realm these ideas are immutable and unchanging and therefore always retain their morality. This does not mean that man does not play a role in the shaping of this law. It takes the human reasoning process to interpret and implement the external law. While there is a potential to have these external laws corrupted by humans, Natural Law theorists feel that we are rational beings that always strive for the common good.

Therefore, when implementing these external laws we set out reasoned steps that will allow us to reach the common good, even if this involves threats of force or punishment. The common good according to Natural law theorists is happiness, this is not the happiness of each individual but the happiness of society[1]. Law must then direct us to achieve this common good by informing us of what we must do in order to achieve happiness. If a law does not lay out the correct steps it cannot achieve the common good, and it is no law at all and need not be followed. Another requirement is that the law be made by a valid law maker. Similarly how the law comes from the natural world, so too do relationships. Some naturally will rule and some are naturally ruled. Those who rule know what is in the interest of the common good and will therefore enact laws to pursue such things. Sometimes this calls for punishment and this is okay, because it creates obedience that will continue to lead people to the common good. The final condition is that the law be promulgated, without this people would not know of the practical steps needed to reach the common good. Therefore because Natural law theorist believe in role of the law maker and the requirement of promulgation they prefer legislation over judge made law.

Legislators are better situated to abide by these requirements. Judges still play an important role. If the written law does not strive for the common good, judges may adapt that law to ensure it creates the practical steps necessary. Otherwise, they are not to interfere with written law[2].

Application to Case

In this case the court is determining what causes of action may go forward. The plaintiffs are attempting to bring forth a claim for violation of a fiduciary duty, negligence, bad faith, section 15 violation and unjust enrichment[3]. They are attempting to bring these claims under the class action proceedings act which would allow a large group of citizens to sue the government[4]. Natural Law theorists would take great exception to this principle. The very possibility of citizens challenging governmental laws would go against the natural law order. According to natural law theorists external law creates relationships amongst us. Those who are the natural rulers and those who are ruled. The natural rulers are there because they are able to use their reasoning to create laws leading to the common good. Allowing the ruled to challenge these laws would force those who know the best practical ways to reach the common good to answer to those who do not.

Furthermore, this principle would go against natural law ideas on obedience. Natural law theorists understand that people are imperfect, and are often steered away from the path to the common good, they would see the ability to sue the government as such a divergence from the path. It would prevent the habit of obedience to laws. The more the ruled develop this habit, the closer we become to achieving the common good, because we are following the laws that lead us there. We see this thinking prevail in regards to the courts negligence decision. “Where a defendant is a public body, inferring a private duty of care from statutory duties may be difficult, and must respect the particular constitutional role of those institutions[5]”. We see the court recognize a relationship similar to those espoused by natural law theorists. While natural law theorists would disagree with the ruled challenging the rule makers, they do realize that law makers, at times make laws that do not strive to the common good. When this happens that law becomes contrary to the natural right, and in these situations judges may step in and refuse to apply the law. This is what is seen in the decisions regarding fiduciary duty and unjust enrichment. The court is weighing whether the laws contain the required elements to constitute a valid law.

Fiduciary Duty

To establish a fiduciary duty two of the required elements are; “an undertaking by the alleged fiduciary to act in the best interest of the alleged beneficiary or beneficiaries, and a defined person or class of person vulnerable to the fiduciary’s control[6]”. These two conditions would always be met according to natural law theorists. Law makers are always striving to achieve the common good for all society; and all of society are vulnerable to law makers control because of the natural order of relationships. The problem with this however, is that a fiduciary duty requires that the fiduciary represent ones groups interests over another[7]. This cannot be done because governments have to represent all of society. This is reflected in the judgment when the court states “imposing such a burden on the crown is inherently at odds with its duty to act in the best interests of society as a whole[8]”.

Natural law theorists would oppose any finding of a fiduciary duty, except if that duty could be classified as a law with practical steps to achieve the common good (such as the one towards aboriginal peoples). It is apparent however, that the rule makers did not feel creating a fiduciary duty towards elder members of society was in the best interests of the common good. The care and management of elders in society is controlled largely through funding granted through legislation[9]. As noted above, law makers are in the best position to know the practical steps needed to achieve the common good, had they felt a fiduciary duty was one of those steps they would have included that in their law. They did not, and the courts according to natural law theory, must stick to the written law; unless those laws go against natural law. In this case the court finds that it did not, due to the need to balance competing interests[10].

Unjust Enrichment

In the unjust enrichment claim we see the judges determining that the law does not have the required practical steps leading to the common good. The courts in previous cases have stated that where a law that is ultra vires is used to collect money from citizens, those citizens can be reimbursed[11]. Therefore, if a law is striving for the good of the law makers instead of the common good that law is not moral. Immoral laws (or laws against the common good), do not need to be followed according to natural law theorists. By allowing citizens to be reimbursed the court is stating that the laws originally forcing them to pay, no longer need to be followed. While they did not decide if the Alberta government’s acts were such immoral laws, they allowed this claim to go forward. This demonstrated, that should the evidence suggest it goes against the common good the court will rule it does not need to be followed. In conclusion, natural law theorist would disagree with the principle of the ruled challenging the laws created by the law makers, as it would be irreconcilable with the natural order. They would however, agree with the court’s ruling against the claim for a fiduciary duty. If the law makers felt this was a practical step to achieving the common good they would have included it when they promulgated the law in regards to care for elders. Finally Natural law theorists would also agree with the court’s decision in regards to unjust enrichment, where a law does not strive for the common good it does not need to be followed.


  1. Susan Dimock, Classic Readings and Canadian Cases in the philosophy of law, (Toronto: Pearson education Canada, 2002), p 5-6.
  2. Ibid pp 1-33, and from lecture delivered by Professor Margret Hall
  3. Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para 2 [2011] 2 SCR 261.
  4. Ibid, para 15
  5. Ibid, para 74
  6. Ibid, para 35
  7. Ibid, para 43
  8. Ibid, para 44
  9. Ibid, paras 8-10
  10. Ibid, para 62
  11. Ibid, para 89

Links to further treatments of the case:

Legal Perspectives Philosophers
Natural Law Thomas Aquinas
Legal Positivism John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
Separation Theory HLA Hart and Ron Fuller
System of Rights Ronald Dworkin
Liberty and Paternalism John Stuart Mill and Gerald Dworkin
Law and Economics Susan Dimock
Feminist Jurisprudence Patricia Smith and Catharine Mackinnon
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