https://kumu.tru.ca/api.php?action=feedcontributions&user=Catchison&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-29T13:59:52ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=5530Course:Law3020/2014WT1/Group A2014-03-28T21:11:20Z<p>Catchison: </p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
[[File:A-team-the-a-team-34061408-1024-768.jpg|thumbnail|left]]<br />
Created by; <br />
<br />
Ramez Alam, <br />
<br />
Ravneet Arora, <br />
<br />
Geea Atanase, and <br />
<br />
Coral Atchison<br />
<br />
<br />
<br />
<br />
<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
This case is about an Ontario man who fell into a coma resulting from complications with minor brain surgery. The doctors treating Mr. Rasouli determined that he was in a persistent vegetative state, and recovery was not possible. Therefore, they wanted him to be withdrawn from life support. His wife, disagreeing with the physicians, sought an injunction to prevent the physicians from taking Mr. Rasouli off life support. <br />
<br />
The Ontario Courts held that physicians require consent, either from the patient or the substitute decision makers, before they can take the patient off life support. If consent is not received, the physician’s option under the current law is to continue the treatment and go to the consent and capacity board for a ruling. The board must hear from both sides and factor in the patients religious background and wishes. The family want Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity board. The hearing was held at the SCC on December 10, 2012. <br />
<br />
=== Issues ===<br />
:1. The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board.<br />
<br />
:2. Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent.<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Catharine MacKinnon<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=5529Course:Law3020/2014WT1/Group A2014-03-28T21:10:16Z<p>Catchison: </p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
[[File:A-team-the-a-team-34061408-1024-768.jpg|thumbnail|left]]<br />
Created by; Ramez Alam, Ravneet Arora, Geea Atanase, and Coral Atchison<br />
<br />
<br />
<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
This case is about an Ontario man who fell into a coma resulting from complications with minor brain surgery. The doctors treating Mr. Rasouli determined that he was in a persistent vegetative state, and recovery was not possible. Therefore, they wanted him to be withdrawn from life support. His wife, disagreeing with the physicians, sought an injunction to prevent the physicians from taking Mr. Rasouli off life support. <br />
<br />
The Ontario Courts held that physicians require consent, either from the patient or the substitute decision makers, before they can take the patient off life support. If consent is not received, the physician’s option under the current law is to continue the treatment and go to the consent and capacity board for a ruling. The board must hear from both sides and factor in the patients religious background and wishes. The family want Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity board. The hearing was held at the SCC on December 10, 2012. <br />
<br />
=== Issues ===<br />
:1. The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board.<br />
<br />
:2. Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent.<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Catharine MacKinnon<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=5528Course:Law3020/2014WT1/Group A2014-03-28T21:08:16Z<p>Catchison: </p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
[[File:A-team-the-a-team-34061408-1024-768.jpg|thumbnail|left]]<br />
Created by; Ramez Alam, Ravneet Arora, Geea Atanase, and Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
This case is about an Ontario man who fell into a coma resulting from complications with minor brain surgery. The doctors treating Mr. Rasouli determined that he was in a persistent vegetative state, and recovery was not possible. Therefore, they wanted him to be withdrawn from life support. His wife, disagreeing with the physicians, sought an injunction to prevent the physicians from taking Mr. Rasouli off life support. <br />
<br />
The Ontario Courts held that physicians require consent, either from the patient or the substitute decision makers, before they can take the patient off life support. If consent is not received, the physician’s option under the current law is to continue the treatment and go to the consent and capacity board for a ruling. The board must hear from both sides and factor in the patients religious background and wishes. The family want Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity board. The hearing was held at the SCC on December 10, 2012. <br />
<br />
=== Issues ===<br />
:1. The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board.<br />
<br />
:2. Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent.<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Catharine MacKinnon<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=File:A-team-the-a-team-34061408-1024-768.jpg&diff=5527File:A-team-the-a-team-34061408-1024-768.jpg2014-03-28T21:07:23Z<p>Catchison: User created page with UploadWizard</p>
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{{Information<br />
|description={{en|1=a-team}}<br />
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{{subst:uwl}}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5303Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:28:23Z<p>Catchison: /* The Lawmaker */</p>
<hr />
<div>== '''Reason''' == <br />
[[File:Altan.jpg|thumbnail|left]]<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
[[File:7348f2ba433b2c46933527e2f92309a9.jpg|250px|thumbnail|right|St. Thomas Aquinas]]<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5302Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:27:53Z<p>Catchison: /* The Lawmaker */</p>
<hr />
<div>== '''Reason''' == <br />
[[File:Altan.jpg|thumbnail|left]]<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
[[File:7348f2ba433b2c46933527e2f92309a9.jpg|200px|thumbnail|right]]<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5301Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:27:40Z<p>Catchison: /* The Lawmaker */</p>
<hr />
<div>== '''Reason''' == <br />
[[File:Altan.jpg|thumbnail|left]]<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
[[File:7348f2ba433b2c46933527e2f92309a9.jpg|300px|thumbnail|right]]<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5300Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:27:25Z<p>Catchison: /* The Lawmaker */</p>
<hr />
<div>== '''Reason''' == <br />
[[File:Altan.jpg|thumbnail|left]]<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
[[File:7348f2ba433b2c46933527e2f92309a9.jpg|400px|thumbnail|right]]<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5298Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:26:56Z<p>Catchison: /* The Lawmaker */</p>
<hr />
<div>== '''Reason''' == <br />
[[File:Altan.jpg|thumbnail|left]]<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
[[File:7348f2ba433b2c46933527e2f92309a9.jpg|thumbnail|right]]<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=File:7348f2ba433b2c46933527e2f92309a9.jpg&diff=5297File:7348f2ba433b2c46933527e2f92309a9.jpg2014-03-28T05:25:59Z<p>Catchison: User created page with UploadWizard</p>
<hr />
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{{subst:uwl}}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5295Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:24:07Z<p>Catchison: /* Reason */</p>
<hr />
<div>== '''Reason''' == <br />
[[File:Altan.jpg|thumbnail|left]]<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5292Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:21:12Z<p>Catchison: /* 4. Promulgation */</p>
<hr />
<div>== '''Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5290Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:21:02Z<p>Catchison: /* 3. The Lawmaker */</p>
<hr />
<div>== '''Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (''Dimock'' 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in ''Cuthbertson'', although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by ''Cuthbertson'', communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’<br />
<br />
== '''4. Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5288Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:20:40Z<p>Catchison: /* 2. The Common Good */</p>
<hr />
<div>== '''Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (''Dimock'' 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in ''Cuthbertson v Rasouli'' appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.<br />
<br />
== '''3. The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (Dimock 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in Cuthbertson, although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by Cuthbertson, communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’ <br />
<br />
<br />
== '''4. Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5287Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:20:17Z<p>Catchison: /* Reason */</p>
<hr />
<div>== '''Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (''Dimock'' 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''2. The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (Dimock 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in Cuthbertson v Rasouli appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent. <br />
<br />
<br />
== '''3. The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (Dimock 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in Cuthbertson, although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by Cuthbertson, communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’ <br />
<br />
<br />
== '''4. Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5286Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:19:32Z<p>Catchison: /* 1. Reason */</p>
<hr />
<div>== '''Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (Dimock 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In ''Cuthbertson v Rasouli'', the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.<br />
<br />
== '''2. The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (Dimock 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in Cuthbertson v Rasouli appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent. <br />
<br />
<br />
== '''3. The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (Dimock 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in Cuthbertson, although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by Cuthbertson, communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’ <br />
<br />
<br />
== '''4. Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5283Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:19:06Z<p>Catchison: /* 4. Promulgation */</p>
<hr />
<div>== '''1. Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (Dimock 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In Cuthbertson v Rasouli, the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to. <br />
<br />
<br />
== '''2. The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (Dimock 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in Cuthbertson v Rasouli appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent. <br />
<br />
<br />
== '''3. The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (Dimock 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in Cuthbertson, although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by Cuthbertson, communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’ <br />
<br />
<br />
== '''4. Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in ''Cuthbertson'', neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Natural_Law&diff=5282Course:Law3020/2014WT1/Group A/Natural Law2014-03-28T05:18:36Z<p>Catchison: </p>
<hr />
<div>== '''1. Reason''' == <br />
<br />
Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in ''S''umma Theologica''', “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (Dimock 4). <br />
<br />
As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions. <br />
<br />
In Cuthbertson v Rasouli, the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment. <br />
<br />
Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to. <br />
<br />
<br />
== '''2. The Common Good''' == <br />
<br />
Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good. <br />
<br />
The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (Dimock 5). <br />
<br />
At first glance, the order imposed by the statutory framework of the HCCA in Cuthbertson v Rasouli appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent. <br />
<br />
<br />
== '''3. The Lawmaker''' ==<br />
<br />
Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (Dimock 7). <br />
<br />
The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in Cuthbertson, although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by Cuthbertson, communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’ <br />
<br />
<br />
== '''4. Promulgation''' == <br />
<br />
Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good. <br />
<br />
The HCCA is widely known and available in Ontario, and in Cuthbertson, neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=5281Course:Law3020/2014WT1/Group A2014-03-28T05:17:29Z<p>Catchison: /* Cuthbertson v Rasouli */</p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
Created by; Ramez Alam, Ravneet Arora, Geea Atanase, and Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
This case is about an Ontario man who fell into a coma resulting from complications with minor brain surgery. The doctors treating Mr. Rasouli determined that he was in a persistent vegetative state, and recovery was not possible. Therefore, they wanted him to be withdrawn from life support. His wife, disagreeing with the physicians, sought an injunction to prevent the physicians from taking Mr. Rasouli off life support. <br />
<br />
The Ontario Courts held that physicians require consent, either from the patient or the substitute decision makers, before they can take the patient off life support. If consent is not received, the physician’s option under the current law is to continue the treatment and go to the consent and capacity board for a ruling. The board must hear from both sides and factor in the patients religious background and wishes. The family want Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity board. The hearing was held at the SCC on December 10, 2012. <br />
<br />
=== Issues ===<br />
:1. The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board.<br />
<br />
:2. Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent.<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Catharine MacKinnon<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=5280Course:Law3020/2014WT1/Group A2014-03-28T05:17:07Z<p>Catchison: /* Cuthbertson v Rasouli */</p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
Created by; Ramez Alam, Ravneet Arora, Geea Atanase, and Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
This case is about an Ontario man who fell into a coma resulting from complications with minor brain surgery. The doctors treating Mr. Rasouli determined that he was in a persistent vegetative state, and recovery was not possible. Therefore, they wanted him to be withdrawn from life support. His wife, disagreeing with the physicians, sought an injunction to prevent the physicians from taking Mr. Rasouli off life support. The Ontario Courts held that physicians require consent, either from the patient or the substitute decision makers, before they can take the patient off life support. If consent is not received, the physician’s option under the current law is to continue the treatment and go to the consent and capacity board for a ruling. The board must hear from both sides and factor in the patients religious background and wishes. The family want Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity board. The hearing was held at the SCC on December 10, 2012. <br />
<br />
=== Issues ===<br />
:1. The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board.<br />
<br />
:2. Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent.<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Catharine MacKinnon<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=5209Course:Law3020/2014WT1/Group A2014-03-28T04:32:44Z<p>Catchison: /* Considered Legal Perspectives */</p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
Created by; Ramez Alam, Ravneet Arora, Geea Atanase, and Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Catharine MacKinnon<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=4664Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-27T05:16:30Z<p>Catchison: </p>
<hr />
<div>== Liberalism ==<br />
[[File:OFPLA Landing Page.jpg|600px|thumbnail|right]]<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
[[File:John Stuart Mill by London Stereoscopic Company, c1870.jpg|thumb|John Stuart Mill by London Stereoscopic Company, c1870]]<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
=== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ===<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=4661Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-27T05:16:06Z<p>Catchison: </p>
<hr />
<div>== Liberalism ==<br />
[[File:OFPLA Landing Page.jpg|600px|thumbnail|right]]<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
[[File:John Stuart Mill by London Stereoscopic Company, c1870.jpg|thumb|John Stuart Mill by London Stereoscopic Company, c1870]]<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
=== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ===<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=4656Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-27T05:13:42Z<p>Catchison: </p>
<hr />
<div>[[File:OFPLA Landing Page.jpg|thumbnail]]<br />
== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
[[File:John Stuart Mill by London Stereoscopic Company, c1870.jpg|thumb|John Stuart Mill by London Stereoscopic Company, c1870]]<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
=== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ===<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4653Course:Law3020/2014WT1/Group A2014-03-27T05:11:29Z<p>Catchison: </p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
Created by; Ramez Alam, Ravneet Arora, Geea Atanase, and Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4651Course:Law3020/2014WT1/Group A2014-03-27T05:10:52Z<p>Catchison: /* LP Group A */</p>
<hr />
<div><br />
{| style="float: right; border: 1px solid #BBB; margin: .46em 0 0 .2em;"<br />
|- style="font-size: 86%;"<br />
| valign="top" |[[File:LegalDivision.jpg|500px]]<!--<br />
--><br /><br />
|}<br />
Ramez Alam<br />
<br />
Ravneet Arora<br />
<br />
Geea Atanase<br />
<br />
Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4643Course:Law3020/2014WT1/Group A2014-03-27T05:03:50Z<p>Catchison: /* Heading text */</p>
<hr />
<div>== LP Group A ==<br />
<gallery><br />
File:LegalDivision.jpg<br />
</gallery><br />
Ramez Alam, Ravneet Arora, Geea Atanase, Coral Atchison<br />
<br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4642Course:Law3020/2014WT1/Group A2014-03-27T05:02:57Z<p>Catchison: </p>
<hr />
<div>== Heading text ==<br />
<gallery><br />
File:LegalDivision.jpg<br />
</gallery><br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=File:LegalDivision.jpg&diff=4639File:LegalDivision.jpg2014-03-27T05:01:16Z<p>Catchison: User created page with UploadWizard</p>
<hr />
<div>=={{int:filedesc}}==<br />
{{Information<br />
|description={{en|1=gavel}}<br />
|date=2014-03-26 22:00:42<br />
|source=http://www.nasmhpd.org/About/DCLegal.aspx<br />
|author=n/a<br />
|permission=<br />
|other_versions=<br />
|other_fields=<br />
}}<br />
<br />
=={{int:license-header}}==<br />
{{subst:uwl}}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4636Course:Law3020/2014WT1/Group A2014-03-27T04:59:28Z<p>Catchison: </p>
<hr />
<div><br />
<gallery><br />
File:OFPLA Landing Page.jpg<br />
<br />
<br />
</gallery><br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4634Course:Law3020/2014WT1/Group A2014-03-27T04:58:10Z<p>Catchison: </p>
<hr />
<div><br />
<gallery><br />
[[File:OFPLA Landing Page.jpg|thumb|legal]]<br />
<br />
</gallery><br />
== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=File:OFPLA_Landing_Page.jpg&diff=4628File:OFPLA Landing Page.jpg2014-03-27T04:54:11Z<p>Catchison: User created page with UploadWizard</p>
<hr />
<div>=={{int:filedesc}}==<br />
{{Information<br />
|description={{en|1=legal}}<br />
|date=2011-06-23 12:33:34<br />
|source=http://umanitoba.ca/legal_counsel/<br />
|author=n/a<br />
|permission=<br />
|other_versions=<br />
|other_fields=<br />
}}<br />
<br />
=={{int:license-header}}==<br />
{{subst:uwl}}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4626Course:Law3020/2014WT1/Group A2014-03-27T04:47:55Z<p>Catchison: /* Considered Legal Perspectives */</p>
<hr />
<div>== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable" style="margin: 1em auto 1em auto;"<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4624Course:Law3020/2014WT1/Group A2014-03-27T04:46:02Z<p>Catchison: /* Legal Perspectives */</p>
<hr />
<div>== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Considered Legal Perspectives ==<br />
{| class="wikitable"<br />
|-<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4621Course:Law3020/2014WT1/Group A2014-03-27T04:44:07Z<p>Catchison: /* Heading text */</p>
<hr />
<div>== ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
== Legal Perspectives ==<br />
{| class="wikitable"<br />
|-<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4619Course:Law3020/2014WT1/Group A2014-03-27T04:43:37Z<p>Catchison: </p>
<hr />
<div>== Heading text ==<br />
Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19<br />
<br />
<br />
== Legal Perspectives ==<br />
{| class="wikitable"<br />
|-<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4614Course:Law3020/2014WT1/Group A2014-03-27T04:41:55Z<p>Catchison: </p>
<hr />
<div><br />
<br />
{| class="wikitable"<br />
|-<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4611Course:Law3020/2014WT1/Group A2014-03-27T04:41:24Z<p>Catchison: </p>
<hr />
<div><br />
{{Course:Law3020/2014WT1/Group_A/Natural_Law}} [[Course:Law3020/2014WT1/Group_A/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Critical_Legal_Studies_Critical_Race_Theory]]<br />
<br />
{| class="wikitable"<br />
|-<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Natural_Law|Natural Law]]<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Positivism|Legal Positivism]]<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Separation_Thesis|Separation Thesis]]<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/System_Of_Rights|System of Rights]]<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism|Liberty and Paternalism]]<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency|Law as Efficiency]]<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| [[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence|Feminist Jurisprudence]]<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A&diff=4607Course:Law3020/2014WT1/Group A2014-03-27T04:37:50Z<p>Catchison: </p>
<hr />
<div><br />
{{Course:Law3020/2014WT1/Group_A/Natural_Law}} [[Course:Law3020/2014WT1/Group_A/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Feminist_Jurisprudence]]<br />
<br />
[[Course:Law3020/2014WT1/Group_A/Critical_Legal_Studies_Critical_Race_Theory]]<br />
<br />
{| class="wikitable"<br />
|-<br />
! Legal Perspective<br />
! Leading Legal Philosopher<br />
|-<br />
|- align="center"<br />
| Natural Law<br />
| Thomas Aquinas<br />
|-<br />
|- align="center"<br />
| Legal Positivism<br />
| John Austin<br />
|-<br />
|- align="center"<br />
| Separation Thesis<br />
| HLA Hart<br />
|-<br />
|- align="center"<br />
| System of Rights<br />
| Ronald Dworkin<br />
|-<br />
|- align="center"<br />
| Liberty and Paternalism<br />
| JS Mill<br />
|-<br />
|- align="center"<br />
| Law as Efficiency<br />
| Susan Dimock<br />
|-<br />
|- align="center"<br />
| Feminist Jurisprudence<br />
| Patricia Smith<br />
|}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=4109Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T17:51:04Z<p>Catchison: /* JS Mill */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
[[File:John Stuart Mill by London Stereoscopic Company, c1870.jpg|thumb|John Stuart Mill by London Stereoscopic Company, c1870]]<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
=== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ===<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Positivism&diff=4107Course:Law3020/2014WT1/Group A/Positivism2014-03-26T17:49:37Z<p>Catchison: /* Defining Legal Positivism */</p>
<hr />
<div>== '''Legal Positivism as a response to Natural Law''' ==<br />
<br />
Legal positivism is a direct response to St. Tomas Aquinas’ theory of Natural Law. Aquinas posits that True law is ultimately derived from a higher, non-human source. True law is morally right because if its natural origins and human law must have morally right aims in order to be consistent with natural law. According to Aquinas, immoral laws are not true laws and are contrary to natural law; therefore, illegitimate laws do not have to be followed.<br />
<br />
== '''Defining Legal Positivism''' ==<br />
[[File:John-Austin.jpg|thumb|John Austin]]<br />
John Austin’s theory of legal positivism defines laws as commands, issued by superiors to subordinates, and backed by sanctions. According to Austin, a command, “obliges a person or persons, and obliges generally to acts or forbearances of a class.” (''Dimock'', Susan. Ed. Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto: Prentice Hall, 2002) 44.) That is, a command obliges a person or persons to a course of conduct, or a way to act. A superior or sovereign, for Austin, must be a determinate and common superior to whom the bulk of a given society is in the habit of obedience of submission. For Canada, the superior would be Parliament, as it is known, recognizable and the bulk of society is in the habit of obedience. <br />
In order to establish whether a law is a true law or not, Austin does not consider morality and says that validity of a law depends only on its content. Austin only asks if the law is a command, issued by superiors to subordinates, and backed by sanctions. If the law fits within this definition, the law is a true positive law. The separation of laws from morality is known as the separation thesis. Positive law does not have to have moral aims, although it can, it is not necessary for it to be a true law. HLA Hart, another legal positivist, considers the “pedigree” test in determining the validity of a law. The pedigree test asks if the law was made in accordance with the rule of the law making jurisdiction regarding the creation of law. If the law was made in accordance with these rules, it is a true positive law.<br />
<br />
== '''Application- ''Cuthbertson v Rasouli''' ==<br />
''<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
A first glance at ''Cuthbertson'' may suggest a more appropriate connection with natural law. That is, it would appear that the court would consider the morality of the law at issue due to the sensitive nature of the circumstances. Because the case is deciding who has the final say when it comes to the life of a person, there are clearly moral issues at play. However, upon closer examination, it would appear that an analysis of ''Cuthbertson'' lends itself better to a positivism analysis. <br />
<br />
'''The two issues in the case are as follows:'''<br />
<br />
:1. “The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board”. (''Cuthbertson'' at para 15)<br />
<br />
:2. “Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent”. (''Cuthbertson'' at para 16)<br />
<br />
=== '''Majority''' ===<br />
<br />
The legislation was enacted by a governmental body and would follow the definition of “a command, issued by superiors to subordinates, and backed by sanctions”. The Act commands people to act in a certain way and provides sanctions for disobedience. The HCCA is a true positivist law that must be followed regardless of its morality. The reasoning and decision itself would also fit the definition of legal positivism<br />
<br />
The issues of this case do not consider what would be morally right, but look to the guiding legislation for the answer. “This case turns on statutory interpretation- what the HCCA provides. It is not a case about who, in the absence of a statue, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment” (''Cuthbertson'' at para 4). That is, the case does not consider who has the morally right authority to decide about when to withdraw life support, but rather what the legislation provides for. The courts ultimate goal in this case is to find what the legislature intended.<br />
<br />
Austin would approve of the way in which the courts have approached this case, because the sovereign is the ultimate law that needs to be followed. The judges are not attempting to write their own laws, but to give efficacy to the legislature. In legal positivism, judges act as ministers who carry out the will of the sovereign with the limited power that has been delegated to them. In ''Cuthbertson'', the judges are appropriately fulfilling this role and adhering to the view that the legislature is better suited to modify existing laws.<br />
The holding in ''Cuthbertson'' is that the HCCA grants the substitute decision maker (SDM) power to decide whether or not life support should be withdrawn. The SDM must follow certain criteria outlined in the Act. Doctor’s can appeal to the board if they believe the decision is not the right one based on the criteria, and the board will have the final say on whether to overrule the SDM’s decision. The criteria that the SDM and doctors must follow are not aimed solely at the wishes of the patient, but what would be in the incapable patient’s best interests (''Cuthbertson'' at para 78).<br />
<br />
=== '''Dissent''' ===<br />
<br />
The dissenting opinion is that the common law should govern these types of decisions, as the HCCA does not apply to the withdrawal of treatment. The dissent would find that consent is not required to withdraw or withhold treatment that is medically ineffective (''Cuthbertson'' at para 176). Although this is quite a different outcome from that of the majority, it still follows a legislative interpretation that would be approved by Austin as following true positivist law. The judges are still acting in a way that supports the sovereign as the superior legislative body and are only interpreting the legislation to give effect to what the sovereign intended.</div>Catchisonhttps://kumu.tru.ca/index.php?title=File:John-Austin.jpg&diff=4106File:John-Austin.jpg2014-03-26T17:47:59Z<p>Catchison: User created page with UploadWizard</p>
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{{subst:uwl}}</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3983Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:29:40Z<p>Catchison: /* The Harm Principle; Application to Cuthbertson v Rasouli */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
=== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ===<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3982Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:29:07Z<p>Catchison: /* Paternalism: Application to Cuthbertson */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3981Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:28:45Z<p>Catchison: /* The Harm Principle; Application to Cuthbertson v Rasouli */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.<br />
<br />
== Paternalism: Application to ''Cuthbertson'' ==<br />
<br />
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.<br />
The Decision in ''Cuthbertson'' would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3970Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:16:39Z<p>Catchison: /* Liberalism; Application to Cuthbertson v Rasouli */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== The Harm Principle; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3964Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:12:28Z<p>Catchison: /* Liberalism; Application to Cuthbertson v Rasouli */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== Liberalism; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3959Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:06:08Z<p>Catchison: /* Liberalism; Application to Cuthbertson v Rasouli */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== Liberalism; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
'''Mature Faculties'''<br />
<br />
If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
'''Harm to Others'''<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3958Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T04:05:47Z<p>Catchison: /* Liberalism; Application to Cuthbertson v Rasouli */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== Liberalism; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.<br />
<br />
Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.<br />
<br />
‘”Mature Faculties”’<br />
<br />
If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.<br />
<br />
“’Harm to Others”’<br />
<br />
A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people.</div>Catchisonhttps://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_A/Liberty-Paternalism&diff=3942Course:Law3020/2014WT1/Group A/Liberty-Paternalism2014-03-26T03:42:38Z<p>Catchison: /* JS Mill */</p>
<hr />
<div>== Liberalism ==<br />
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks ''when'' and ''why'' the law should interfere with private choices. That is, when are restrictions on individual liberty justified?<br />
Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (''Dimock'' 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (''Dimock'' 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws. <br />
<br />
'''Liberalism identifies four justifications for restricting the liberty of individuals by law:'''<br />
:1. '''The harm principle''' states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (''Dimock'' 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.<br />
:2. '''Paternalism''' suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (''Dimock'' 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.<br />
:3. '''Legal Moralism''' allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (''Dimock'' 303).<br />
:4. T'''he Offence Principle''' allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.<br />
<br />
== JS Mill ==<br />
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (''Dimock'' 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.<br />
<br />
Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury. <br />
<br />
== Liberalism; Application to ''Cuthbertson v Rasouli'' ==<br />
''Cuthbertson v Rasouli'', 2013 SCC 53 (CanLII) 310 OAC 19.</div>Catchison