Course:Law3020/2014WT1/Group V

Treatments of Selected Theoretical Perspectives
{| class="infobox bordered" cellpadding="4" style="text-align: center; font-size: 90%;" ! ! ! ! ! ! ! ! ! ! ! ! !
 * ! colspan="2" style="background:#CCFF99;" | Legal Perspectives
 * ! colspan="3" style="background:#CCFF99;" | Philosophers
 * Natural Law
 * Thomas Aquinas
 * style="background:#CCCCFF;" | Legal Positivism
 * style="background:#CCCCFF;" | John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
 * Separation Theory
 * HLA Hart
 * style="background:#CCCCFF;" | System of Rights
 * style="background:#CCCCFF;" | Ronald Dworkin
 * Liberty and Paternalism
 * John Stuart Mill and Gerald Dworkin
 * style="background:#CCCCFF;" | Law as Efficiency
 * style="background:#CCCCFF;" | Susan Dimock
 * Feminist Jurisprudence
 * Patricia Smith and Catharine Mackinnon

Traditional Natural Law Theory: Law for the Common Good


According to Aquinas, natural law comes from God and exists independently in nature. The closer human-made laws align with natural law, the more correct they are. Humans were created by God as rational beings. This rationality allows humans to exercise reason, and when this reason is used correctly it will lead towards the natural law. According to Aquinas, it is the nature of mankind to seek after good, and this desire, too, was implanted by God. By using reason, humans can develop and implement the steps that will lead toward the common good. This is the heart of lawmaking. The objective of laws should be the common good. Aquinas holds that in order for a law to be valid, it must contain four elements: It must (1) be directed at the common good, (2) follow practical reason, (3) be made by a valid lawmaker, and (4) be promulgated. Each of these elements is present in R v A.D.H.

1.	The Common Good

The common good is a central issue in R v A.D.H. Aquinas believes the common good is the good of the community. Law imposes order on the community, and happiness is only possible within such order and stability. This was an overarching theme in the case. The court focused its approach on not punishing people who are not guilty. Aquinas would say that this is essential for maintaining order in society. The court found that A.D.H. did not make immoral choices and thus should not be punished. According to Aquinas, this is a way of ensuring people stay on the moral path towards the common good. The court found that she was not straying from the moral path, since she was unaware she was pregnant and thought the baby was dead. Her behavior was not a lapse in morality: while mothers are expected to provide for their children (as another part of the common good), her legitimate belief that the child was dead freed her from any moral obligation. If it had been a lapse in morality (i.e. if she thought the child was alive but momentarily neglected it for whatever reason), she would have been off the moral path and should be punished. But punishing the blameless would undermine the objective of the natural law.

The court also held that the law was in place in order to protect vulnerable people, particularly children. According to Aquinas, this is a valid objective as part of the common good. People would only abandon their children if they were off the moral path.

2.	Practical Reason

Aquinas sees law as teleological; it is directed at a purpose. In that sense, laws are practical reason directed at the common good. If a law does not have that as its goal, it is not a valid law and does not need to be followed. In order to be law, it must be in accord with reason. The court in R v A.D.H. held that the law in question was laid out reasonably. A central issue in the case was whether or not the provision required subjective or objective knowledge. It held that if the provision required objective knowledge, it would have been written differently. The use of subjective interpretation was to ensure that the morally innocent should not be punished. This is in line with practical reason and makes the law valid.

3.	Valid Lawmaker

According to Aquinas, the natural rulers know what is in the common good, and what will achieve universal happiness. They can threaten, coerce and punish the ruled to pursue the goal. But Aquinas does not believe in democracy. The law in A.D.H. was passed by an elected legislature. Though these are not natural rulers in the sense Aquinas would have in mind, the elected officials have been recognized by the public as having the necessary skills to rule. These skills would allow them to closely align with natural law, making the laws the pass valid.

In the case the court focused on legislative interpretation, based on the intent of parliament. This shows judicial trust in the ruling abilities of parliament. Aquinas also preferred legislation to judge-made laws. Legislation deals with broader laws, which Aquinas sees as more moral than case-by-case decision-making. Though the court held that the law in question was meant to be dealt with on a case-by-case basis, the fact that it was passed by a legislature instills it with wisdom and morality. Aquinas would also likely approve of the court’s decision to give a looser interpretation of the provision, as he holds that the spirit of the law is more important than the letter of the law.

4.	Promulgation

In order for a law to be valid, it must be written, known, and available. It is likely, then, that Aquinas would approve of the codification of Canada’s criminal laws. The law in question in the case was from the Criminal Code, which is available to the public. The purpose of the law is to compel obedience, and people cannot obey laws about which they are ignorant.

Legal Positivism
Positivism is a reaction to traditional Natural Law theory. Positivists are concerned with rules that are created by men in power, while Natural law is said to come from a high being that is beyond human creation. Positive Law divides morality from law and asks that these be assessed separately. Rules are law as long as a person or group of authority creates them. Morality is irrelevant to the functioning of a given law.

John Austin- Founder of Positivism



John Austin, an English philosopher of law in the early eighteen hundreds, believed that positive law is made up of commands. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 35) Superiors give these commands to subordinates and punishments or sanctions are put in place to ensure these commands are followed. These are his only requirements for a law to be valid.

Legal Positivists like John Austin, would agree that sovereign superiors must issue commands. They may be an individuals or aggregate bodies as long as they exert control and demand obedience over a given set of people. In our context the Legislature is our country’s governing body. They create law that we as citizens must follow or face penalties for our disobedience.

Austin’s critique of Natural law was that it had no distinction between matters of law, morality and religion. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36) As a positivist, he believed that the law and morality must be approached independently. He rejects the premise that for laws to be valid, they must be fair and apply equally to all people. “Positivists insist that a rule may be legally valid and yet morally objectionable. The existence of a law is separate from its moral acceptability is usually called the Separation Thesis” (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 34)

John Austin advanced three different types of directives that govern all human behaviour: (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36)

Laws set by God for human beings

This is law of religion. God, created this law for the greater good of all. He wishes to serve the greatest number of people with his actions. Although not all of God’s actions are visible to humans, we can use this belief to guide us when interpreting his commands.

Positive Morality

This is not official law created by a sovereign superior, such as the Legislature, although it still has some command over groups of people. Positive morality informs humans how to and not to act but does not have specific punishments in place for those who do not follow this guidance. These rules could be created by include governing bodies, clubs or organizations.

Positive Law

This is law that has been created for human beings, by human beings in a position of authority. They are directed at inferior individuals who do not have the power to create law. Individuals must abide by these or face reprimand. These would include government laws that have penalties attached to them.

Bentham and Hart- Modern Positivists

These philosophers take a more radical approach to legal positivism. The separation of legal rules from morality allows for skepticism by individuals. By separating law form morality, we can challenge, critique and change laws.

Application to R v. A.D.H.

In applying John Austin’s theory to the facts of this case, we observe that criminal law fits with his principles of how law should be formed. Sovereign superiors created the criminal code and citizens of Canada must follow this law. Specifically, S.218 states that it is a crime to abandon a child and the penalty for doing this can reach upwards of 5 years imprisonment. The woman in this case was clearly a subordinate to the sovereign, therefore this command applied to her the same as all citizens of Canada and is an application of Positive Law. (R v. A.N.H., 2013 SCC 28 at para 73)

Natural law would say that law is morality written down and if a law is not moral, it need not be followed. Legal positivism holds the opposite view. Positivism states that we must separate the two and even if a law is not moral, it can still be valid. In application to R v. A.D.H., even if S. 218 (Abandoning a Child) was an immoral law, the mother would still be bound by it.

In this case the appellant and respondent are debating the interpreting of the law as to whether guilt should be found through subjective or objective mens rea. The Judges in this case are trying to give effect to what parliament’s intentions were by implementing the law. Judges are delegated authority as lawmakers, however, parliament can come back and change the laws if they do not like the result. This is what Bentham was referring to when he said, separating laws essence from morality provides for critiquing, challenging and changing the law. This is what the judges in R v. A.D.H. were doing when they were deciding how the reading of S.218 should be applied. Austin would consider laws that could repeal laws something other than positive laws. He calls these revocations of command “permissive laws”. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 45)

Bentham gave us context to determine whether or not law is good, based on utilitarianism. He promoted the greatest good for greatest number of people. This parallels Aquinas’s Natural Law theory that law should promote the common good. However, Bentham wouldn’t say that a law that was not for the common good was invalid, he would simply say that it was not a very good law.

In our case, when Judges were determining whether subjective or objective fault should apply, they should pick which ever is best for all citizens. Bentham and Austin would agree with the Courts decision in this case.

Dworkin and System Of Rights and Principles
Ronald Dworkin opposes the Positivist assumption that laws are only made up of rules. (Susan Dimock ed. Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, ON, Pearson Education Canada, 2002) at 236) He argues that principles and policies are important in shaping the law. (Ibid) According to Dworkin, principles are based on ideas of justice and fairness within society that support specific rights and duties (Dimock Supra at 243 and Lecture) Whereas, Policies are “social goals pursued on behalf of some segment of the population” (Dimock Supra at 243 and Lecture). For the purpose of this discussion principles will refer to both principles and policies. (Dimock Supra at 243)

Dworkin believes principles have an important role in judicial decision making, especially for “Hard Cases”. (Dimock supra at 260) Judicial interpretation involves looking at the history of the legislation and its purpose to analyze the underlying principles (Dimock Supra at 238). According to Dworkin, judges are not using their discretion they are balancing the weight of principles to determine which is the right answer. (Dimock Supra 254)

Judicial decision making for “Hard Cases” can be illustrated by a metaphor of a stream. The stream is the law, flowing from the past and picking up rocks and dirt, as principles, from the earth as it moves and carrying them towards the future. These principles become embedded in the stream as sediment. Judicial decisions for “Hard Cases” are like a cloud above the stream. The judges pick up the water with sediment to weigh the principles in the cloud. When they find the right answer they rain it down to the stream, as a binding precedent with the embedded principles. The precedent guides future judicial interpretation to avoid judicial activism. (Dimock Supra at 261 and 264) (The stream metaphor from lecture)

Dworkin’s theory, is applicable to the case of R. v. A.D.H.. (R v ADH, 2013 SCC 28) R v ADH required the Supreme Court to balance principles to determine the applicable level of mens rea for section 218 of the Criminal Code. (Criminal Code, RSC 1985 c. C-46 and R v ADH Supra) Section 218 had a legislative gap regarding whether a subjective or objective mens rea should be applied as the standard for assessing fault for the Abandonment of children under 10.(R v ADH)

To fill the gap, the judges were forced to look backwards at the intent of parliament and analyze the context and purpose of the legislation. (R v ADH Supra at para 19 and Dimock Supra at 264) The court adopted this contextual, textual, and purposive approach, because they were bound to follow precedent from Rizzo & Rizzo Shoes, as a guideline for judicial interpretation. (Dimock Supra at 254 and ADH Supra at para 19 and Rizzo & Rizzo Shoes Ltd. [1998] 1 SCR 27). Following precedent supports Dworkin’s theory, which sets out that; “statutes and common law rules are often vague and must be interpreted before they apply to novel cases”, but  to uphold  “Integrity of the law when creating new laws or using principles to decide a new case judges must be consistent with their principles”. (Dimock Supra at 238 and 259) In this case the statute was “vague”, because it did not expressly state which form of mens rea should be applied. Therefore, the judges were required to consider the intent of parliament with reference to the underlying principles of the law, in a way that was consistent with prior judicial principles and interpretation to uphold the integrity of the law. (Dimock Supra at 238 and 259 and ADH Supra)

Judicial interpretation in R v ADH involved balancing the principles behind subjective or objective fault in relation to section 218. Having an objective fault requirement, would potentially allow for greater protection of children from abandonment, but could allow for a morally innocent person to be criminally convicted. However, subjective fault still offered the protection of children while upholding the principle of not punishing the morally innocent (ADH Supra at para 27). Under Dworkin’s theory this means, the court balanced these principles in order to find the right answer that best upholds the principles of society from the past and moving forward.

For Dworkin in some hard cases the judges could grant much more weight some principles over others. (Dimock Supra at 260) However, for R. v. A.D.H., the principles of protecting vulnerable children from harm and the principle of not criminalizing the morally innocent are both strongly held in society, so the court was required to find a finer balance between the two. (ADH Supra at para 4, 27, and 46) Therefore, under this theory the Subjective fault was the correct decision, to offer balance between the similarly weighted principles. (Dimock Supra at 260)

The Supreme Court chose the standard of subjective fault as binding as precedent for future court decisions (Dimock Supra at 247 and 264). Establishing a precedent, according to Dworkin’s theory will prevent judicial activism for section 218, because the law regarding the fault requirement has now been established through common law. (Dimock Supra at 264 and Criminal Code Supra)

Liberty and Paternalism
Liberty and Paternalism This section takes on a different question from what has been asked in previous theories. We are no longer concerned with what law is. Here, we ask when the liberty of a person should be interfered by the law. Restriction of liberty may be justified when there is a risk to other or to enforce the moral code of society. The limits of intruding on a person’s liberty must be defined and John Stuart Mill establishes when such action is necessary.

John Stuart Mill- Liberty Advocate

John Stuart Mill was a philosopher in the mid eighteen hundreds who wrote about societies individualism and protection of liberties. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 303) He proposed that an individual within a society needs a significant degree of independence. Their freedom allows them to live a happy life. This autonomy protects a society from revolt by individuals. Mill put fourth four possible justifications for restricting the liberty of individuals by law: (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 303)

The Harm Principle

The harm principle states that it is acceptable and necessary for a society to restrict ones liberty when their action may put others in harms way. If a situation arises where members of the society could be damaged by another’s actions, the law needs to step in and restrict the harmful action. In return for this protection, all members of a society have a responsibility to defend the society from harm and to use their liberty in a manner that does not endanger others.

Paternalism

This justification states that when a person puts himself at risk, society has the right to restrict this person’s liberty so that they do not hurt themselves. This justification can be used when long term and irreversible damage may be done to the individual. An example of when a society could restrict liberty is if an individual was attempting to commit suicide.

Legal Moralism

Here a society may restrict ones actions if these actions are likely to undermine the values of the society. Whenever a person uses their liberty in an immoral manner that would upset others in the society, this action must be stopped.

The Offence Principle

This principle suggests that liberty may be infringed when a person’s actions will offend others in the society. These actions are not harmful to others, however, they are unacceptable behaviors for the common good of all people. An example of a type of behavior that would not be accepted is public nudity.

Dworkin’s Paternalism theory

Dworkin puts forth the argument that paternalism is necessary to stop individuals from harming themselves. He says that, “we may be justified in restricting the freedom of individuals to make decisions, the consequences of which are far reaching, potentially dangerous and irreversible.” (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 321)

Application to R v. A.D.H.

Mill’s justifications for restricting liberty apply to this case in several ways. His harm principle can be observed where the state has criminalized the abandonment of a child. If a person was totally autonomous, they could abandon a child if they wanted, however the harm principle states that conduct that may be of harm to others must be stopped. Allowing abandonment would undermine the social values in a society, therefore it is justifiable to charge people criminally for this behaviour. This is a justifiable limit on a person’s liberty.

S. 215 of the Criminal Code is the Duty of persons to provide necessities of life. This section goes beyond restricting liberty, it actually imposes a duty on a parent to provide for their child. This can also be justified under the harm principle because if children don’t have the necessities of life, they will be harmed. This is because children are incapable of providing for themselves. John Stuart Mill would say that since you have autonomy over yourself, you have an obligation to protect society from harm. He would also agree that abandoning the child is not the part society has an interest in stopping, it is the effect the action has on the child which must be avoided.

Tyranny of the Majority is a theory proposed by John Mill. He says that a balance must be obtained between the power a society has over a person and a person’s right to freedom from authority. This related to R v. A.D.H. because in this case, children can be scene as a minority. Without measures in place to protect their interest, we would be entering a tyranny situation. If societies are all about the majority, then these minority groups can be neglected.

Today, Canada has proceeded down a path away from tyranny. This is evident by decriminalizing abortions, making it easier to adopt a child and establishing social programs to assist mothers. It remains important that our society does not marginalize these minority groups.

By establishing that an individual must have subjective mens rea to commit S. 218 Child Abandonment, the courts are keeping innocent people from going to jail. Jail would prevent long term and irreversible damage. This is an example of society protecting the accused. However, Dworkin may disagree with this because he draws a difference between reversible and irreversible damage. He stated that society should not muddle with an individual’s liberty in cases other than suicide.

After the police charged the accused, they continued to interfere with her liberty. They took the child away from the mother and restricted the terms in which she was allowed to see her baby. Here, society was balancing the mother’s liberty with the protection of the child. Mill says that children cannot make decisions because they do not have mature faculties. The result is that children are unable to recognize their own self interest so the state’s interference is required.