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

Introduction
When approached by a natural law theorist, the decision in Granovsky v Canada almost seems like a foregone conclusion. By examining the four main concerns of the natural law perspective, the case unfolds in a way that directly falls into the expectations and presumptions that someone like Thomas Aquinas would have had during the time when the natural law theory was being developed.

Source of Law to Objective of Law
Thomas Aquinas firmly believes that all law had its origins in God. "Eternal Law" is that which stems from God and is unalterable, such as gravity or the rotation of the planets. "Natural Law" comes as a result of the usage of reason that God bestowed upon man in order for him to seek out the good that may exist for all human beings. Subsequently, our reason allows us to understand which laws to follow, and which laws to disobey. Ultimately, all humans strive towards a supposedly immutable "common good" that exists at the edge of where our reason will take us. Of course, an immutable common good seems antiquated given the depth and breadth of human experience and culture in our current era, but as a product of a much simpler time seems quaint and plausible.

Over the course of time, our societies became more advanced and more in need of concrete social organization. It should come as no surprise that the rulers and monarchs strove towards a notion of the "common good" so that they might give their populace something to strive towards other than bitter resentment of their rulers. By way of reason and protocol, the body of law built up over time and attained certain formal elements that allowed the populace to understand how the law worked and how it affected them. Threats and punishment were used as bolstering mechanisms to drive the populace towards obedience. By creating law that served the "common good," the common good would be achieved and would pay homage to the source of law (God); with further plumbing of the source of law, we would develop additional objectives that the law would serve.

In an ancient time, this simple feedback loop was not as difficult to achieve. The case at hand has far more moving parts and as such has much more trouble adapting to a natural law prospective.

The Components of a Valid Law
Thomas Aquinas' theory revolves around four elements that are necessary for any law to be valid. They are:

1) The law must serve the common good

2) The law must use logical steps to reach that goal

3) The law must be created by a valid law maker (deigned authority figure)

4) The law must be promulgated

By using these criteria, we may apply the natural law theory to the case at hand and determine how a natural law theorist would decided the outcome

Pursuing the Common Good
When first examining any law, we must determine whether or not that law is aimed towards satisfying the common good. All laws must satisfy this requirement; failure to do so will render a law immoral and will not compel obedience to those on whom it is foisted. The most relevant laws to deal with in this case are Section 15(1) of the Charter, the CPP act itself, and the drop out provisions contained therein.

Section 15(1) of the Charter
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Canadian Pension Plan (CPP)
The CPP is a self-funded contributory plan. In what circumstances can the Charter alleviate against the contribution requirements imposed by Parliament? CPP retirement benefits are universal but disability benefits are conditional. They are designed to assist persons with disabilities who were recently in the work force by replacing employment income with a disability pension.

The Drop-Out Provision
The impugned legislative measure was created for two classes of persons: the permanently disabled and family allowance recipients (CPP, s. 44(2)(b)(iii) and (iv)). The drop-out provision permits certain months to be excluded from the contributory period. If a person is permanently disabled in the course of a calendar year, the months during which that person is permanently disabled are not counted against him or her in determining whether recency of CPP contribution requirements are satisfied (Granovsky v Canada at para 12).

Application to the Common Good
--- Section 15(1) ---

Does section 15(1) strive towards the common good? If analysed from the perspective of a loving god, the same loving god that supposedly pulls the strings of the natural law itself, this provision of the charter seems very much in keeping with his dictates. While not all men are equal (some are rulers, some are ruled) all deserve to be treated with the same respect and dignity as they are all creatures of god. Section 15(1) also serves an additional common good, which is that through its implementation, it will help to make sure that the members of our society who are in some way, shape or form different than other members will not be marginalized by their “condition”. In keeping with natural law, all members of society desire happiness and furthering social harmony can only aid in this pursuit.

--- The CPP ---

The CPP itself is designed for the good of the people underneath its provisions. CPP members pay money to the CPP and if they follow its edicts they are allowed to benefit from the program by getting a small pension. The CPP is a program that must be opted into. As such, it is not a social welfare program that is designed to help a vast majority of the populace. While the CPP does give its members a small pension, the program has the ability to help people if they become disabled, especially during commencement of their employment. As per Thomas Aquinas, if a law allows for people to benefit from its provisions in a fair manner, and they choose to be under the law itself, it would prima facie seem to serve the public good of the public underneath the statute.

--- The Drop-Out Provision ---

However, Granovsky has issue with Section 44(2)(b)(iii) and (iv) of the CPP which allows people who do not meet the criteria of the CPP to still benefits from its provisions. Under normal circumstances, one would have to make contributions within 5 of the last 10 years or 2 of the last 3 years in order to be able to benefit from the opt-out program specifically designed for people who are injured. Granovsky was still able to participate in intermittent work but not enough that he could pay the necessary amounts. As a result even though he would have been able to benefit from it in the past, when he applied he had gone too long without contributions. Granovsky feels that Section 44(2)(b)(iii) and (iv) actually violates his Section 15 charter right to equality under the law as his dignity has been made to suffer as a result of the discriminatory provisions within the CPP. It must be pointed out however that Granovsky was actually deemed ready to work (and he himself seemed eager to find work that could accommodate his back ache. This would seem to vitiate the drop out provision from applying to him.

Holistic Analysis of the Common Good
Section 15 of the charter is undoubtedly aimed towards the common good. It is designed to ensure that no one is discriminated against as a result of age, race, physical/mental disability etc. But how do Sections 44(2)(b)(iii) and (iv) work for the common good? It seems that the CPP and Section 44 have multiple ways in which they protect the common good. By stipulating certain provisions such as the necessity of contributions over long periods of time, the CPP actually prevents unscrupulous people from attempting to abuse the system and leech funds off those who may need it more. Sections 44(2)(b)(iii) and (iv) allows for people who are injured to still receive some benefits that they might otherwise be denied, and prima facie its rules do not seem unreasonable. The drop out provision is designed to allow for the opportunity for people to not be stripped of the chance of receiving CPP benefits and provide funds for people who will inevitably need it more than those who have been able to work for longer periods of time. By providing this financial support, it furthers the goals of Section 15 of the Charter in regards to making sure that people who are injured and unable to work are not further marginalized by becoming part of societies poor and needy.

Granovsky seeks to point out that Sections 44(2)(b)(iii) and (iv) actually have an additional, unintended result. His claim is that the provisions of the CPP and the drop out provisions end up discriminating against people in his situation; people still able to work intermittently but not able to make full contributions. It also labels him as a "non-contributor" even though he had made a significant amount of contributions during the time when he was not rendered so unable to work that he couldn't keep up with the payments. He claims that the government is discriminating against him with this provision, yet we must ask, is this for the common good? It is worth pointing out that if we adapt Thomas Aquinas to a modern day locale, he would agree that discriminating against people cannot serve the common good as putting people in a disadvantageous position would serve to stunt their physical and spiritual well being. That being said, Thomas Aquinas was also a person who recognized that certain elements of society were essentially inferior to others. Putting that aside for now though, if we rightly assume that Thomas Aquinas would want people to flourish spiritually and physically, do sections 44(2)(b)(iii) and (iv) prevent this? Ultimately, there must be a line in the sand drawn somewhere and the provisions of Section 44 do not seem to be horrendously unreasonable or demeaning to people that fall outside of them. Those people who do not fall within the provisions don't need the money as much as those who do. Section 15 is trying to broaden the place of people in society and the opt out provision helps to facilitate this. Just because the drop out provision does not help people in Granovsky's case does not mean the law isn't for the common good, it just means that one person has fallen outside of what might have been needed.

Logical Steps Toward Reaching the Goal
Thomas Aquinas was keenly interested in making sure that the steps that are taken towards making a good law are logically taken. A law that requires multiple, unconnected steps, is not harmonious, and harmony and goodness go together hand in hand. The steps that one must follow in order to satisfy the CPP, as well as the drop out provisions, are very clear and do not seem entirely onerous. By paying for 5 out of the last 10 years, you've contributed half of what you normally would have been required to do. If the requirement had been that you needed to pay 8 years that may seem too draconian, especially because serious injuries can have lingering effects that reoccur and interrupt work several years after they have happened. Also some injuries take multiple years to rehab from as well. Subsequently, only requiring 2 out of 10 years to have been paid would leave the system open to being exploited and may not serve the common good that Aquinas yearns for.

The fact that you must be disabled to the point that you cannot work also seems to be a logical step as those who cannot work need much more than those who can. In the case of Granovsky there is a disconnect as he is able to work but still not generate large sums of money. However, with a health care system such as Canada's, Granovsky would no doubt be able to be much more suitable to making ends meet if he could work a few days a week. It is not a perfect solution, but at least it is a workable one. One of Granovsky's major contentions is that the program provisions invariably deny him dignity. However, it strains belief to think that where seemingly sensical methods have been implemented and allow for people to reinforce their dignity by getting access to the system that Granovsky would by default have his dignity impugned by not accessing the system. The system is not designed to deny anyone their dignity; It is designed to maintain it for those who have it and restore it to those who might be in jeopardy of losing it.

Thomas Aquinas is clearly a man who wants the common good that is logically arrived at. Yet his version of the state of human affairs is unfortunately at odds with helping Granovsky. To Aquinas it would seem perfectly logical that by subjecting yourself to the CPP which is an optional program, you are subjecting yourself to the rules and whims of the administrators of that program. By following the rules of a system you become subservient to it; by breaking the rules of the system you naturally will not be able to benefit from it. Considering that Granovsky did not follow the rules of the system and he was able to work at all, he should know that he wouldn't be able to benefit from the CPP. It does not make any sense to Aquinas that one would knowingly break a valid rule and seek rewards as a result. Of course, this would not be something Granovsky would agree with, but when we consider that Aquinas was a member of the religious body politic, one known for using ritualised indoctrination techniques to subdue the masses, it would seem unlikely that he would applaud someone for trying to fight against the power structure. The CPP itself can be seen as a form of social engineering, and trying to break the edicts that came from its creators is the antithesis of what Thomas Aquinas would advocate for. You cannot logically arrive at the common good if the common good can be jeopardized by people attempting to destroy the system from within.

Law as an Instrument from on High


This brings us to the next point that Thomas Aquinas kens to, which is the unchallenged authority of the law maker. Since the law maker is the law maker seemingly by virtue of god, their rules must be followed by virtue of them being able to make rules at all. Law makers are considered all knowing, and while they may err on occasion, their rules by and large will be something that must be followed. In Thomas Aquinas' era, the rule making power would have been vested in the sovereign (A King or Pope), whereas in Granvosky's time it would be vested within the parliament and subsequently any regulatory body that enacted programs like the CPP. By participating in the program, Granovsky is undoubtedly acknowledging the wisdom of the law maker, and as such should have no recourse to challenge its decisions according to Aquinas.

Seeing as the all knowing law makers would no doubt want their subjects to be happy and peaceful, they will create laws that are moral and ergo lead to happiness. They do this in 3 key ways:

1) By delineating between which groups will be affected by their laws

2) By using and creating concrete terms so that the populace can understand what is expected of them, and

3) By establishing the dignity of all involved by creating these clear rules.

The CPP clearly delineates between who falls within its provisions and who doesn't. It also gives very concrete terms and guidelines so that it can be followed. Finally it creates not only clear rules for people without injuries, but it creates clear rules for people that have injuries so as to recognize that the two groups need not be treated equally.

There can be no doubt that Granovsky's injury is serious. It has prevented him from working and he clearly needs the assistance of the CPP. That being said, his injury was not guaranteed to get worse. Section 15 of the Charter deals mostly with immutable characteristics of people such as their race, ethnicity or age. Mental and Physical disability are much more malleable and less rigid, but even they too eventually have to be slotted into certain molds so that we can deal with them effectively. Aquinas would point out that we want to treat people as fairly as possible, but separating people into groups isn't necessarily discriminatory, it is simply the way of the world. Granovsky has essentially been separated from the group against his will, but in doing so the law makers are doing their best to create as equal a society as possible. In some ways, Granovsky's exclusion actually serves the greater good as it is an example of which groups are benefiting and which groups are not. This delineation ties in a sense into promulgation as people in society need to know which group they might fit into if they were to enter into this program. The fact that Granovsky is not receiving any benefits must be the wise and valid decision of the law maker who put the plan together; Nothing is an accident in the world of Aquinas.

Promulgation
Thomas Aquinas' last mandate is that any rule of law being promulgated. In this case, there is no issue with the CPP or charter being written down and available to those who need it. This ties into our desire for social justice and equality as we want everyone who needs information to be able to access it. Ironically, this provision would have actually done a disservice to the people of Aquinas' time as the literacy rate was microscopic in scale to what it is in the current age. This actually serves to illuminate the fact that Aquinas' view of what the social good constitutes is actually tied to a social good that protects the status quo and serves the upper class more so than the lower class. To further add insult to injury, by showing the machinations underlying his ability to perpetuate a power structure that best serves him and his cohorts, he would most likely be more than willing to throw Granovsky under the bus under a sanctimonious guise of helping the public at large in the current era.

Morality of Law
Until this point there has been no explicit discussion of the inherently moral nature of the law. It seems that the aforementioned laws and provisions have a type of morality weaved through them, but for more fulsome analysis it is now prudent to deal with morality out in the open.

While there are many competing views as to what sources the law stems from and what the law hopes to achieve. Thomas Aquinas would have no qualms in asserting that the law is an inherently moral creation. In contrast to a legal positivist who would claim that morality and law are not necessarily intertwined, or a scholar who adopts the Law and Economics theory that morality ultimately is superseded by demands for efficiency, Natural Law as a product of god cannot escape its necessarily intertwined nature. The connection between natural law and eternal law, between the god that gives man reason and guides him towards the "common good", is always reflective of the ultimate origin of God himself. Having "morally right" aims is an unavoidable result and according to Thomas Aquinas, not an undesirable one. Granovsky might make the argument that the legislation does not serve a moral end as it removes his dignity and differentiates him from the other members of society. As was already pointed out though, it is likely that this differentiation in the Natural Law construct is both intentional and preferred.

Limits of Natural Law Theory
This begs the question, how would Thomas Aquinas deal with the age we live in currently? Our society consists of a myriad of people that hold many different beliefs, some of which are internally inconsistent and some of which are inconsistent with those around them. Thomas Aquinas homogeneous life ultimately predisposes his theory to criticism as he could not have possibly foreseen the interconnected way of life we currently lead. Ironically enough, Aquinas most likely would not have even been able to envision a program like the CPP, considering peasants in the 12th and 13th century would be unlikely to have any additional funds they could contribute to such a program. Based on the four factors alone, Natural Law theory can do an adequate job of placing a case in a religious and historical context. However, as society becomes more interconnected and more secular, Natural Law may fall further and further out of favor.

The Charter as "Super Sovereign"
One final point worth mentioning is the nature of the sovereign in Thomas Aquinas' time period as it compares to our current configuration. Prior to the bifurcation of Christianity, the King who made the laws would only theoretically be influenced by the pope or god himself. As it currently stands, the parliament is the highest power in the land, yet they have willingly subjected themselves to the edicts of the The Charter of Human Rights and Freedoms, an instrument which restricts their powers and discretion heavily. Without being too curt, it becomes plainly obvious that the monarchic model does not suit itself well to the current structure of sovereignty. Our elected officials create law that the majority of the voting populace believes are for the common good, yet whether it is actually serving the common good is up for debate. With voter apathy at all time highs in Canada, an argument might be made that the CPP itself as an instrument does not serve the common good as many people might not believe in its merits. In the natural law model, this would mean the King who drafted the legislation is fallible, which seemed next to impossible back in the day. Now however we acknowledge that our superiors make mistakes, and what is the common good can change from one moment to the next if enough people get together to remove the current sovereigns.

Conclusion
Based solely on the four factors of what constitutes a valid law, not only would a natural law theorist believe on its face that the laws that have denied Granovsky his ability to receive compensation from the CPP are valid, they would also understand why denying their validity could serve to deteriorate the amount of power they hold over the populace. Upon expanding the theory to try and deal with something as complex as the CPP, issues of human dignity and constitutional laws that have even more power than the sovereign parliament, Natural Law Theory unfortunately becomes unhelpful in furthering Granovsky's cause.