https://kumu.tru.ca/api.php?action=feedcontributions&user=Fullbrooks13&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-29T08:09:47ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Category:Feminist_Jurisprudence&diff=5446Category:Feminist Jurisprudence2014-03-28T16:28:40Z<p>Fullbrooks13: </p>
<hr />
<div>== '''Feminism''' ==<br />
<big><br />
Learning about other philosophies and perspectives presents one with a broader understanding of issues not only in the legal realm, but in society as well. Feminist critiques of law are well founded, justified, and raise a number of important issues for discussion. By bringing new points of view to a discipline it raises critical questions previously unconsidered. People see the world as they are trained and conditioned to do so. Feminism offers a unique perspective and essential insight into areas such as law that have been traditionally male dominated. The idea of equity is important. Seeing the person before the gender, seeing individuals for who they are, and recognizing the profound differences between male/female, and man/woman is important. The concept of equity and not equality is tenacious, because it recognizes and accounts for differences between people.<br />
<br />
<br />
The feminist critique questions objectivity within disciplines such as law because it is done by people (lawyers and judges). The law is not value free, it is shaped by our society and patriarchy plays a pervasive role. Feminism strives to bring gender neutrality to the law and encourages critical critique of jurisprudence. Patricia Smith, contends “feminist jurisprudence is the analysis and critique of law as a patriarchal institution”.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 141.</ref> Feminist legal theory is comprised of a variety of perspectives, including: liberal, radical, marxist, and postmodern. <br />
<br />
<br />
<center><br />
'''Liberal Feminism:''' considers equality to be of the utmost importance.<br />
<br />
<br />
'''Post Modern Feminism:''' views woman as the “other” and outside the main category. The patriarchal system imposes law on the “other."<br />
<br />
<br />
'''Radical Feminism:''' argues society views women as sex objects which are exploited by the patriarchy. <br />
<br />
<br />
'''Marxist Feminism:''' They consider issues of class and oppression of the people by the capitalist system.<br />
<br><br />
<br><br />
<br />
</center><br />
One uniting principle is their universal rejection of the patriarchal organization of society, including patriarchy in the legal system and within the law itself. Moreover, throughout feminist legal theory’s external critiques of legal structures, are challenges to the neutrality of law, impartiality of judges, model of judicial reasoning, and the separation of politics and morality. <br />
<br><br />
<br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|left|Catharine Mackinnon]]<br />
<br><br />
<br />
The feminist legal scholar Catherine Mackinnon, sees two things unfold when the state incorporates patriarchy “the law becomes legitimate, and social dominance becomes invisible”.<ref>Ibid at 150.</ref> Further, she argues that through “legal mediation, male dominance is made to seem a feature of life”.<ref>Ibid at 150.</ref> Many feminist scholars believe patriarchy must be dissolved, which Patricia Smith argues would amount to a cultural revolution if patriarchy was indeed rejected.<ref>Ibid at 147.</ref> She asserts that “what changes in a cultural revolution is what people think, their basic assumptions about what is normal, when women and men actually think of themselves as equals, the world will have changed”.<ref>Ibid at 148.</ref><br />
<br />
<br><br />
<br><br />
<br><br />
<br><br />
<br><br />
== Application to the Case ==<br />
<br />
Karen Warren in a chapter titled “Surviving Patriarchy” writes that feminist ideals are extremely important in changing patriarchy and creating “healthier, life affirming, cooperative, care-based, non-violent, intentional communities, organized in non dominating ways to ensure that the basic needs of individual and group members are met”.<ref>Karen Warren, Ecofeminist Philosophy: A western perspective on what it is and why it matters. Oxford: Roman and Littlefield, 2000 at 212.</ref> Feminist ideas are applied broadly and generally in this case. The problem faced by the Supreme Court is access to medical care. This restriction is a classic form of patriarchal oppression on society. The creation of a two tiered system is a success to many feminists who would view it as protecting members of society by limiting death, while on the other hand creating an unbalanced two tiered system which flies in the face of equality for liberal feminists. <br />
<br />
<br />
Health care and access to services is of critical importance to women and is rife with patriarchal control historically. It is important to note differing realities for women because just because women are able to bear children does not mean that doing so is essential to their nature. That said, childbirth is a contentious issue with respect to feminism. Traditionally, women controlled health care with respect to pregnant women. Men were excluded from the practice of midwifery until the 18th century when they began to dominate the practice under the auspices of improving it. This led to the medicalization of childbirth, bringing women to lying hospitals and the development of obstetrics as a discipline. <br />
<br />
<br />
Women face unique circumstances with respect to men when it comes to health care. Delay of procedures can cause clear risk of damage to physical well being of a woman and this is a principle of fundamental justice. Marxist feminists could consider this judgement to have negative consequences with the creation of a two tiered system that caters to the capitalist system where those with the means have greater access than those without.<br />
<br />
<br />
Another issue for feminists is the concept of judicial impartiality, the objective of which is fairness and neutrality in the law. Feminists would view this as a misnomer as this concept at its core perpetuates the oppression of patriarchy. This is applied only to further the aims and goals of the white male dominated society. Feminists have a strong critique of the legal system and see it as deeply flawed. The law should give us nightmares… it is practiced by lawyers steeped in patriarchy and blind to prejudices that brings to the treatment of the “others”.<br />
<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Feminist_Jurisprudence&diff=4105Category:Feminist Jurisprudence2014-03-26T17:47:02Z<p>Fullbrooks13: </p>
<hr />
<div>Feminism:<br />
Learning about other philosophies and perspectives presents one with a broader understanding of issues not only in the legal realm, but in society as well. Feminist critiques of law are well founded, justified, and raise a number of important issues for discussion. By bringing new points of view to a discipline it raises critical questions previously unconsidered. People see the world as they are trained and conditioned to do so. Feminism offers a unique perspective and essential insight into areas such as law that have been traditionally male dominated. The idea of equity is important. Seeing the person before the gender, seeing individuals for who they are, and recognizing the profound differences between male/female, and man/woman is important. The concept of equity and not equality is tenacious, because it recognizes and accounts for differences between people.<br />
<br />
The feminist critique questions objectivity within disciplines such as law because it is done by people (lawyers and judges). The law is not value free, it is shaped by our society and patriarchy plays a pervasive role. Feminism strives to bring gender neutrality to the law and encourages critical critique of jurisprudence. Patricia Smith, contends “feminist jurisprudence is the analysis and critique of law as a patriarchal institution”.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 141.</ref> Feminist legal theory is comprised of a variety of perspectives, including: liberal, radical, marxist, and postmodern. <br />
Liberal Feminism: considers equality to be of the utmost importance.<br />
Post Modern Feminism: views woman as the “other” and outside the main category. The patriarchal system imposes law on the “other”. <br />
Radical Feminism: argues society views women as sex objects which are exploited by the patriarchy. <br />
Marxist Feminism: They consider issues of class and oppression of the people by the capitalist system.<br />
one uniting principle is their universal rejection of the patriarchal organization of society, including patriarchy in the legal system and within the law itself. Moreover, throughout feminist legal theory’s external critiques of legal structures, are challenges to the neutrality of law, impartiality of judges, model of judicial reasoning, and the separation of politics and morality. <br />
<br />
The feminist legal scholar Catherine Mackinnon, sees two things unfold when the state incorporates patriarchy “the law becomes legitimate, and social dominance becomes invisible”.<ref>Ibid at 150.</ref> Further, she argues that through “legal mediation, male dominance is made to seem a feature of life”.<ref>Ibid at 150.</ref> Many feminist scholars believe patriarchy must be dissolved, which Patricia Smith argues would amount to a cultural revolution if patriarchy was indeed rejected.<ref>Ibid at 147.</ref> She asserts that “what changes in a cultural revolution is what people think, their basic assumptions about what is normal, when women and men actually think of themselves as equals, the world will have changed”.<ref>Ibid at 148.</ref><br />
<br />
<br />
Applying the Case:<br />
Karen Warren in an article “Surviving Patriarchy” writes that feminist ideals are extremely important in changing patriarchy and creating “healthier, life affirming, cooperative, care-based, non-violent, intentional communities, organized in non dominating ways to ensure that the basic needs of individual and group members are met”.<ref>Ibid at 212.</ref> Feminist ideas are applied broadly and generally in this case. The problem faced by the Supreme Court is access to medical care. This restriction is a classic form of patriarchal oppression on society. The creation of a two tiered system is a success to many feminists who would view it as protecting members of society by limiting death, while on the other hand creating an unbalanced two tiered system which flies in the face of equality for liberal feminists. <br />
<br />
Health care and access to services is of critical importance to women and is rife with patriarchal control historically. It is important to note differing realities for women because just because women are able to bear children does not mean that doing so is essential to their nature. That said, childbirth is a contentious issue with respect to feminism. Traditionally, women controlled health care with respect to pregnant women. Men were excluded from the practice of midwifery until the 18th century when they began to dominate the practice under the auspices of improving it. This led to the medicalization of childbirth, bringing women to lying hospitals and the development of obstetrics as a discipline. <br />
<br />
Women face unique circumstances with respect to men when it comes to health care. Delay of procedures can cause clear risk of damage to physical well being of a woman and this is a principle of fundamental justice. Marxist feminists could consider this judgement to have negative consequences with the creation of a two tiered system that caters to the capitalist system where those with the means have greater access than those without.<br />
<br />
Another issue for feminists is the concept of judicial impartiality, the objective of which is fairness and neutrality in the law. Feminists would view this as a misnomer as this concept at its core perpetuates the oppression of patriarchy. This is applied only to further the aims and goals of the white male dominated society. Feminists have a strong critique of the legal system and see it as deeply flawed. The law should give us nightmares… it is practiced by lawyers steeped in patriarchy and blind to prejudices that brings to the treatment of the “others”.<br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Feminist_Jurisprudence&diff=4103Category:Feminist Jurisprudence2014-03-26T17:43:01Z<p>Fullbrooks13: </p>
<hr />
<div>Feminism:<br />
Learning about other philosophies and perspectives presents one with a broader understanding of issues not only in the legal realm, but in society as well. Feminist critiques of law are well founded, justified, and raise a number of important issues for discussion. By bringing new points of view to a discipline it raises critical questions previously unconsidered. People see the world as they are trained and conditioned to do so. Feminism offers a unique perspective and essential insight into areas such as law that have been traditionally male dominated. The idea of equity is important. Seeing the person before the gender, seeing individuals for who they are, and recognizing the profound differences between male/female, and man/woman is important. The concept of equity and not equality is tenacious, because it recognizes and accounts for differences between people.<br />
<br />
The feminist critique questions objectivity within disciplines such as law because it is done by people (lawyers and judges). The law is not value free, it is shaped by our society and patriarchy plays a pervasive role. Feminism strives to bring gender neutrality to the law and encourages critical critique of jurisprudence. Patricia Smith, contends “feminist jurisprudence is the analysis and critique of law as a patriarchal institution” (Dimock p 141). Feminist legal theory is comprised of a variety of perspectives, including: liberal, radical, marxist, and postmodern. <br />
Liberal Feminism: considers equality to be of the utmost importance.<br />
Post Modern Feminism: views woman as the “other” and outside the main category. The patriarchal system imposes law on the “other”. <br />
Radical Feminism: argues society views women as sex objects which are exploited by the patriarchy. <br />
Marxist Feminism: They consider issues of class and oppression of the people by the capitalist system.<br />
one uniting principle is their universal rejection of the patriarchal organization of society, including patriarchy in the legal system and within the law itself. Moreover, throughout feminist legal theory’s external critiques of legal structures, are challenges to the neutrality of law, impartiality of judges, model of judicial reasoning, and the separation of politics and morality. <br />
<br />
The feminist legal scholar Catherine Mackinnon, sees two things unfold when the state incorporates patriarchy “the law becomes legitimate, and social dominance becomes invisible” (Dimock, 2002, p.150). Further, she argues that through “legal mediation, male dominance is made to seem a feature of life” (Dimock, 2002, p.150). Many feminist scholars believe patriarchy must be dissolved, which Patricia Smith argues would amount to a cultural revolution if patriarchy was indeed rejected (Dimock, 2002, p.147). She asserts that “what changes in a cultural revolution is what people think, their basic assumptions about what is normal, when women and men actually think of themselves as equals, the world will have changed” (Dimock, 2002, p.148).<br />
<br />
<br />
Applying the Case:<br />
Karen Warren in an article “Surviving Patriarchy” writes that feminist ideals are extremely important in changing patriarchy and creating “healthier, life affirming, cooperative, care-based, non-violent, intentional communities, organized in non dominating ways to ensure that the basic needs of individual and group members are met” (pg 212). Feminist ideas are applied broadly and generally in this case. The problem faced by the Supreme Court is access to medical care. This restriction is a classic form of patriarchal oppression on society. The creation of a two tiered system is a success to many feminists who would view it as protecting members of society by limiting death, while on the other hand creating an unbalanced two tiered system which flies in the face of equality for liberal feminists. <br />
<br />
Health care and access to services is of critical importance to women and is rife with patriarchal control historically. It is important to note differing realities for women because just because women are able to bear children does not mean that doing so is essential to their nature. That said, childbirth is a contentious issue with respect to feminism. Traditionally, women controlled health care with respect to pregnant women. Men were excluded from the practice of midwifery until the 18th century when they began to dominate the practice under the auspices of improving it. This led to the medicalization of childbirth, bringing women to lying hospitals and the development of obstetrics as a discipline. <br />
<br />
Women face unique circumstances with respect to men when it comes to health care. Delay of procedures can cause clear risk of damage to physical well being of a woman and this is a principle of fundamental justice. Marxist feminists could consider this judgement to have negative consequences with the creation of a two tiered system that caters to the capitalist system where those with the means have greater access than those without.<br />
<br />
Another issue for feminists is the concept of judicial impartiality, the objective of which is fairness and neutrality in the law. Feminists would view this as a misnomer as this concept at its core perpetuates the oppression of patriarchy. This is applied only to further the aims and goals of the white male dominated society. Feminists have a strong critique of the legal system and see it as deeply flawed. The law should give us nightmares… it is practiced by lawyers steeped in patriarchy and blind to prejudices that brings to the treatment of the “others”.<br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Liberty/Paternalism&diff=3830Category:Liberty/Paternalism2014-03-25T23:23:50Z<p>Fullbrooks13: </p>
<hr />
<div><br />
== '''Liberty - Paternalism''' ==<br />
<br />
[[File:JohnStuartMill.jpg|thumbnail|right|John Stuart Mill]]<br />
<br />
=== '''Liberalism''' ===<br />
<big> <br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> <br />
<br />
<br />
In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children.<ref>Ibid at 306.</ref> As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty.<br />
</big><br />
<br />
== '''Application of Liberalism to the Case''' == <br />
<br />
==== Tyranny of the Majority ==== <br />
<big><br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system”.<ref>Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para 14.</ref> Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
</big><br />
<br />
=== Harm Principle ===<br />
<big><br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths.<ref>Ibid at para 37.</ref> This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
</big><br />
<br />
<br />
=='''Paternalism''' ==<br />
<br />
[[File:GeraldDworkin.jpeg|thumbnail|left|Professor Gerald Dworkin]]<br />
<br />
<big><br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
</big><br />
<br><br />
<br><br />
<br><br />
<br><br />
<br><br />
== Application of Paternalism to the Case ==<br />
<big><br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Liberty/Paternalism&diff=3828Category:Liberty/Paternalism2014-03-25T23:22:24Z<p>Fullbrooks13: </p>
<hr />
<div><br />
== '''Liberty - Paternalism''' ==<br />
<br />
[[File:JohnStuartMill.jpg|thumbnail|right|John Stuart Mill]]<br />
<br />
=== '''Liberalism''' ===<br />
<big> <br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> <br />
<br />
<br />
In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty.<br />
</big><br />
<br />
== '''Application of Liberalism to the Case''' == <br />
<br />
==== Tyranny of the Majority ==== <br />
<big><br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system”.<ref>Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para 14.</ref> Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
</big><br />
<br />
=== Harm Principle ===<br />
<big><br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths.<ref>Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para 37.</ref> This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
</big><br />
<br />
<br />
=='''Paternalism''' ==<br />
<br />
[[File:GeraldDworkin.jpeg|thumbnail|left|Professor Gerald Dworkin]]<br />
<br />
<big><br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
</big><br />
<br><br />
<br><br />
<br><br />
<br><br />
<br><br />
== Application of Paternalism to the Case ==<br />
<big><br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Liberty/Paternalism&diff=3820Category:Liberty/Paternalism2014-03-25T23:18:23Z<p>Fullbrooks13: </p>
<hr />
<div><br />
== '''Liberty - Paternalism''' ==<br />
<br />
[[File:JohnStuartMill.jpg|thumbnail|right|John Stuart Mill]]<br />
<br />
=== '''Liberalism''' ===<br />
<big> <br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> <br />
<br />
<br />
In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty.<br />
</big><br />
<br />
== '''Application of Liberalism to the Case''' == <br />
<br />
==== Tyranny of the Majority ==== <br />
<big><br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14). Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
</big><br />
<br />
=== Harm Principle ===<br />
<big><br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
</big><br />
<br />
<br />
=='''Paternalism''' ==<br />
<br />
[[File:GeraldDworkin.jpeg|thumbnail|left|Professor Gerald Dworkin]]<br />
<br />
<big><br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
</big><br />
<br><br />
<br><br />
<br><br />
<br><br />
<br><br />
== Application of Paternalism to the Case ==<br />
<big><br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G&diff=3812Course:Law3020/2014WT1/Group G2014-03-25T23:14:26Z<p>Fullbrooks13: </p>
<hr />
<div>[[Category:Natural Law]]<br />
[[Category:Positivism]]<br />
[[Category:Separation Thesis]]<br />
[[Category:System of Rights]]<br />
[[Category:Liberty/Paternalism]]<br />
[[Category:Law as Efficiency: Law and Economics]]<br />
[[Category:Feminist Jurisprudence]]<br />
<br />
<br />
== Case Overview: [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec (Attorney General),[2005<nowiki>]</nowiki> 1 S.C.R. 791, 2005 SCC 35] ==<br />
<br />
[[File:Dr.Chaoulli.jpg|10px|framed|right|Dr.Chaoulli who took action against Quebec for Charter infringements in relation to Health Care and Hospital wait times]]<br />
<br />
=== Facts ===<br />
<big><br />
In Quebec in 2005 the provincial government was prohibiting Quebec residents from taking out insurance to obtain private sector health care services through regulations in the Quebec Health Insurance Act and the Hospital Insurance Act. Seventy-three year old Quebec resident George Zeliotis was experiencing several health problems, including a hip replacement, that lead him to speak out against the waiting times he was experiencing due to Quebec's public health care system. A physician, Dr. Jacques Chaoulli, had also been attempting to have his home-delivered medical activities recognized, as well as to obtain a license to operate an independent hospital in his city, both of which were considered private medical care.<br />
<br />
Both Zeliotis and Chaoulli took issue with the validity of the prohibition on private health insurance: s.15 of the '' Health Insurance Act (HEIA)'' and s.11 of the '' Hospital Insurance Act (HOIA)'' . They claimed that these prohibitions deprived Quebec citizens of access to health care services that did not come with the extraneous waiting times that existed in the public system.<br />
</big><br />
<br />
<br />
[[File:George Zeliotis suffered from extraneous wait times in order to get the health care that he needed.jpg|thumb|George Zeliotis suffered from extraneous wait times in order to get the health care that he needed]]<br />
<br />
=== Issue(s) === <br />
<big><br />
The main question at hand in [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] was whether Quebec had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through specific prohibitions, and whether these prohibitions infringed a person's section 7 right from the ''[http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms]''?<br />
<br />
<br />
If so, was this deprivation of a person's section 7 Charter right in accordance with the principles of fundamental justice?<br />
</big><br />
<br />
== Provisions in question ==<br />
<br />
==== Section 15 of the '' [http://www.canlii.org/en/qc/laws/stat/cqlr-c-a-29/latest/cqlr-c-a-29.html Health Insurance Act] '' ====<br />
<big><br />
15. An insurer or a person administering an employee benefit plan may enter into or maintain an insurance contract, or establish or maintain an employee benefit plan, as the case may be, that includes coverage for the cost of an insured service furnished to a resident or temporary resident of Québec, only if<br />
<br />
:(1) the insurance contract or employee benefit plan does not cover any insured service other than the insured services required for a total hip or knee replacement, a cataract extraction and intraocular lens implantation or any other specialized medical treatment determined under section 15.1, and those required for the provision of the preoperative, postoperative, rehabilitation and home care support services described in section 333.6 of the Act respecting health services and social services (chapter S-4.2);<br />
<br />
:(2) the insurance contract or employee benefit plan includes coverage for the cost of all insured services and all preoperative, postoperative, rehabilitation and home care support services referred to in subparagraph 1, subject to any applicable deductible amount; and<br />
<br />
:(3) the coverage applies only to surgery performed or any other specialized medical treatment provided in a specialized medical centre described in subparagraph 2 of the first paragraph of section 333.3 of the Act respecting health services and social services.<br />
<br />
<br />
:An insurance contract or employee benefit plan inconsistent with subparagraph 1 of the first paragraph that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract or plan must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
<br />
:Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment from being entered into or established. Nor does anything in this section prevent an insurance contract or an employee benefit plan that covers the contribution payable by an insured person under the Act respecting prescription drug insurance (chapter A-29.01) from being entered into or established.<br />
<br />
<br />
:“Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
:“Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
:An insurer or a person administering an employee benefit plan that contravenes the first paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
<br />
==== Section 11 of the ''[http://www.canlii.org/en/qc/laws/stat/rsq-c-a-28/latest/rsq-c-a-28.html Hospital Insurance Act]'' ====<br />
<big><br />
11. No insurer may enter into or maintain an insurance contract that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
: No person may establish or maintain an employee benefit plan that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
<br />
: An insurance contract or employee benefit plan inconsistent with the first or the second paragraph, as the case may be, that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
<br />
: Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec from being entered into or established.<br />
<br />
<br />
: “Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
: “Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
: An insurer or a person administering an employee benefit plan that contravenes the first or second paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
<br />
=== Analysis ===<br />
<big>The court found that delays which are the necessary result of waiting lists increase a patient's risk of mortality or the possibility of their injury/condition becoming much worse. This waiting period is often filled with pain and a lack of enjoyment of patients life, due to their urgent need for medical treatment. The court found that this was a clear violation of an individual's section 7 ''Canadian Charter'' right[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do].<br />
<br />
<br />
After a ''Charter'' infringement is made out, the provision that infringes upon the right can sometimes be protected under s.1. as a justified infringement. The objective of the ''HOIA'' and the ''HEIA'' is to make high-quality health care available to the citizens of Quebec, even though they may lack adequate funds. Therefore, the purpose of the provisions being examined are to prohibit private insurance in order to preserve the integrity of the public health care system in Quebec. A s. 1 justified infringement test requires that there be a rational connection between the purpose and the measures adopted, but here there was no compelling evidence presented establishing a rational connection between the objective of preserving the public plan and the limitations on a two-tier health care system. <br />
<br />
The evidence presented to the courts showed that delays in public health care were widespread, and in some cases had serious consequences, such as death, as patients were forced to wait for proper medical attention. This evidence showed that the prohibition against private health care insurance/systems could lead to physical and psychological suffering.[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do]<br />
</big><br />
<br />
=== Conclusion/Holding === <br />
<big>According to the [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Supreme Court of Canada] the appeal should be allowed. The Court decided that section 15 of the ''HEIA'' and section 11 of the ''HOIA'' are inconsistent with the Quebec ''Charter''.<br />
<br />
<br />
In order to learn about about how each of these theories can be applied to the case at hand, click the categories below.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G&diff=3807Course:Law3020/2014WT1/Group G2014-03-25T23:12:27Z<p>Fullbrooks13: </p>
<hr />
<div>[[Category:Natural Law]]<br />
[[Category:Positivism]]<br />
[[Category:Separation Thesis]]<br />
[[Category:System of Rights]]<br />
[[Category:Liberty/Paternalism]]<br />
[[Category:Law as Efficiency: Law and Economics]]<br />
[[Category:Feminist Jurisprudence]]<br />
<br />
<br />
== Case Overview: [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec (Attorney General),[2005<nowiki>]</nowiki> 1 S.C.R. 791, 2005 SCC 35] ==<br />
<br />
[[File:Dr.Chaoulli.jpg|10px|framed|right|Dr.Chaoulli who took action against Quebec for Charter infringements in relation to Health Care and Hospital wait times]]<br />
<br />
=== Facts ===<br />
<big><br />
In Quebec in 2005 the provincial government was prohibiting Quebec residents from taking out insurance to obtain private sector health care services through regulations in the Quebec Health Insurance Act and the Hospital Insurance Act. Seventy-three year old Quebec resident George Zeliotis was experiencing several health problems, including a hip replacement, that lead him to speak out against the waiting times he was experiencing due to Quebec's public health care system. A physician, Dr. Jacques Chaoulli, had also been attempting to have his home-delivered medical activities recognized, as well as to obtain a license to operate an independent hospital in his city, both of which were considered private medical care.<br />
<br />
Both Zeliotis and Chaoulli took issue with the validity of the prohibition on private health insurance: s.15 of the '' Health Insurance Act (HEIA)'' and s.11 of the '' Hospital Insurance Act (HOIA)'' . They claimed that these prohibitions deprived Quebec citizens of access to health care services that did not come with the extraneous waiting times that existed in the public system.<br />
</big><br />
<br />
<br />
[[File:George Zeliotis suffered from extraneous wait times in order to get the health care that he needed.jpg|thumb|George Zeliotis suffered from extraneous wait times in order to get the health care that he needed]]<br />
<br />
=== Issue(s) === <br />
<big><br />
The main question at hand in [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] was whether Quebec had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through specific prohibitions, and whether these prohibitions infringed a person's section 7 right from the ''[http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms]''?<br />
<br />
<br />
If so, was this deprivation of a person's section 7 Charter right in accordance with the principles of fundamental justice?<br />
</big><br />
<br />
== Provisions in question ==<br />
<br />
==== Section 15 of the '' [http://www.canlii.org/en/qc/laws/stat/cqlr-c-a-29/latest/cqlr-c-a-29.html Health Insurance Act] '' ====<br />
<big><br />
15. An insurer or a person administering an employee benefit plan may enter into or maintain an insurance contract, or establish or maintain an employee benefit plan, as the case may be, that includes coverage for the cost of an insured service furnished to a resident or temporary resident of Québec, only if<br />
<br />
:(1) the insurance contract or employee benefit plan does not cover any insured service other than the insured services required for a total hip or knee replacement, a cataract extraction and intraocular lens implantation or any other specialized medical treatment determined under section 15.1, and those required for the provision of the preoperative, postoperative, rehabilitation and home care support services described in section 333.6 of the Act respecting health services and social services (chapter S-4.2);<br />
<br />
:(2) the insurance contract or employee benefit plan includes coverage for the cost of all insured services and all preoperative, postoperative, rehabilitation and home care support services referred to in subparagraph 1, subject to any applicable deductible amount; and<br />
<br />
:(3) the coverage applies only to surgery performed or any other specialized medical treatment provided in a specialized medical centre described in subparagraph 2 of the first paragraph of section 333.3 of the Act respecting health services and social services.<ref>Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para</ref><br />
<br />
<br />
:An insurance contract or employee benefit plan inconsistent with subparagraph 1 of the first paragraph that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract or plan must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
<br />
:Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment from being entered into or established. Nor does anything in this section prevent an insurance contract or an employee benefit plan that covers the contribution payable by an insured person under the Act respecting prescription drug insurance (chapter A-29.01) from being entered into or established.<br />
<br />
<br />
:“Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
:“Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
:An insurer or a person administering an employee benefit plan that contravenes the first paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
<br />
==== Section 11 of the ''[http://www.canlii.org/en/qc/laws/stat/rsq-c-a-28/latest/rsq-c-a-28.html Hospital Insurance Act]'' ====<br />
<big><br />
11. No insurer may enter into or maintain an insurance contract that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
: No person may establish or maintain an employee benefit plan that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
<br />
: An insurance contract or employee benefit plan inconsistent with the first or the second paragraph, as the case may be, that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
<br />
: Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec from being entered into or established.<br />
<br />
<br />
: “Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
: “Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
: An insurer or a person administering an employee benefit plan that contravenes the first or second paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
<br />
=== Analysis ===<br />
<big>The court found that delays which are the necessary result of waiting lists increase a patient's risk of mortality or the possibility of their injury/condition becoming much worse. This waiting period is often filled with pain and a lack of enjoyment of patients life, due to their urgent need for medical treatment. The court found that this was a clear violation of an individual's section 7 ''Canadian Charter'' right[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do].<br />
<br />
<br />
After a ''Charter'' infringement is made out, the provision that infringes upon the right can sometimes be protected under s.1. as a justified infringement. The objective of the ''HOIA'' and the ''HEIA'' is to make high-quality health care available to the citizens of Quebec, even though they may lack adequate funds. Therefore, the purpose of the provisions being examined are to prohibit private insurance in order to preserve the integrity of the public health care system in Quebec. A s. 1 justified infringement test requires that there be a rational connection between the purpose and the measures adopted, but here there was no compelling evidence presented establishing a rational connection between the objective of preserving the public plan and the limitations on a two-tier health care system. <br />
<br />
The evidence presented to the courts showed that delays in public health care were widespread, and in some cases had serious consequences, such as death, as patients were forced to wait for proper medical attention. This evidence showed that the prohibition against private health care insurance/systems could lead to physical and psychological suffering.[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do]<br />
</big><br />
<br />
=== Conclusion/Holding === <br />
<big>According to the [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Supreme Court of Canada] the appeal should be allowed. The Court decided that section 15 of the ''HEIA'' and section 11 of the ''HOIA'' are inconsistent with the Quebec ''Charter''.<br />
<br />
<br />
In order to learn about about how each of these theories can be applied to the case at hand, click the categories below.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Natural_Law&diff=3805Category:Natural Law2014-03-25T23:11:16Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=='''Natural Law'''==<br />
<br />
<br />
<big>Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.</big><br />
<br />
<br />
<br />
<br />
===Thomas Aquinas===<br />
<br />
[[File:St Thomas Aquinas.jpg|thumbnail|left|St Thomas Aquinas]]<br />
<br />
<big>For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.</big><br />
<br />
===Contemporary Renaissance === <br />
<br />
<big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of religion and expression.</big> <br />
<br />
<br />
<br />
<br />
<br />
<br />
<br><br />
<center><br />
<br />
<br><br />
=='''Four Elements of Valid Law'''==<br />
<br />
<big>For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:</big> <br />
<br />
====1. Must be directed to the common good ====<br />
<br />
:<big>When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.</big> <br />
<br />
====2. Must follow practical reason ==== <br />
<br />
:<big>A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.</big> <br />
<br />
====3. Must be made by a valid lawmaker ====<br />
<br />
:<big>For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.</big> <br />
<br />
====4. Must be promulgated ====<br />
<br />
:<big>For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.</big><br />
</center><br />
<br />
<br><br />
<br><br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
===Four Elements of Natural Law ===<br />
<br />
<big>In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.</big> <br />
<br />
===1. Directed at common good===<br />
<br />
:<big>The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life”.<ref>Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para 42.</ref> <br />
<br />
:The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
<br />
:The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.</big><br />
<br />
===2. Must follow practical reason===<br />
<br />
:<big>Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.</big> <br />
<br />
===3. Must be made by a valid lawmaker ===<br />
<br />
:<big>This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.</big> <br />
<br />
===4. Must be promulgated ===<br />
<br />
:<big>This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.</big> <br />
<br />
<br />
<br />
<big>Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law.</big><br />
<br />
<br />
===The Problem of Unjust law ===<br />
<br />
:<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules.<br />
<br />
:Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Natural_Law&diff=3803Category:Natural Law2014-03-25T23:10:41Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=='''Natural Law'''==<br />
<br />
<br />
<big>Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.</big><br />
<br />
<br />
<br />
<br />
===Thomas Aquinas===<br />
<br />
[[File:St Thomas Aquinas.jpg|thumbnail|left|St Thomas Aquinas]]<br />
<br />
<big>For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.</big><br />
<br />
===Contemporary Renaissance === <br />
<br />
<big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of religion and expression.</big> <br />
<br />
<br />
<br />
<br />
<br />
<br />
<br><br />
<center><br />
<br />
<br><br />
=='''Four Elements of Valid Law'''==<br />
<br />
<big>For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:</big> <br />
<br />
====1. Must be directed to the common good ====<br />
<br />
:<big>When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.</big> <br />
<br />
====2. Must follow practical reason ==== <br />
<br />
:<big>A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.</big> <br />
<br />
====3. Must be made by a valid lawmaker ====<br />
<br />
:<big>For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.</big> <br />
<br />
====4. Must be promulgated ====<br />
<br />
:<big>For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.</big><br />
</center><br />
<br />
<br><br />
<br><br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
===Four Elements of Natural Law ===<br />
<br />
<big>In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.</big> <br />
<br />
===1. Directed at common good===<br />
<br />
:<big>The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life”.<ref>Chaoulli v. Quebec (Attorney General)[2005] 1 SCR 791, 2005 SCC 35 at para 42.</ref> <br />
<br />
:The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
<br />
:The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.</big><br />
<br />
===2. Must follow practical reason===<br />
<br />
:<big>Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.</big> <br />
<br />
===3. Must be made by a valid lawmaker ===<br />
<br />
:<big>This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.</big> <br />
<br />
===4. Must be promulgated ===<br />
<br />
:<big>This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.</big> <br />
<br />
<br />
<br />
<big>Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law.</big><br />
<br />
<br />
===The Problem of Unjust law ===<br />
<br />
:<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules.<br />
<br />
:Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G&diff=3788Course:Law3020/2014WT1/Group G2014-03-25T23:06:06Z<p>Fullbrooks13: </p>
<hr />
<div>[[Category:Natural Law]]<br />
[[Category:Positivism]]<br />
[[Category:Separation Thesis]]<br />
[[Category:System of Rights]]<br />
[[Category:Liberty/Paternalism]]<br />
[[Category:Law as Efficiency: Law and Economics]]<br />
[[Category:Feminist Jurisprudence]]<br />
<br />
<br />
== Case Overview: [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec (Attorney General),[2005<nowiki>]</nowiki> 1 S.C.R. 791, 2005 SCC 35] ==<br />
<br />
[[File:Dr.Chaoulli.jpg|10px|framed|right|Dr.Chaoulli who took action against Quebec for Charter infringements in relation to Health Care and Hospital wait times]]<br />
<br />
=== Facts ===<br />
<big><br />
In Quebec in 2005 the provincial government was prohibiting Quebec residents from taking out insurance to obtain private sector health care services through regulations in the Quebec Health Insurance Act and the Hospital Insurance Act. Seventy-three year old Quebec resident George Zeliotis was experiencing several health problems, including a hip replacement, that lead him to speak out against the waiting times he was experiencing due to Quebec's public health care system. A physician, Dr. Jacques Chaoulli, had also been attempting to have his home-delivered medical activities recognized, as well as to obtain a license to operate an independent hospital in his city, both of which were considered private medical care.<br />
<br />
Both Zeliotis and Chaoulli took issue with the validity of the prohibition on private health insurance: s.15 of the '' Health Insurance Act (HEIA)'' and s.11 of the '' Hospital Insurance Act (HOIA)'' . They claimed that these prohibitions deprived Quebec citizens of access to health care services that did not come with the extraneous waiting times that existed in the public system.<br />
</big><br />
<br />
<br />
[[File:George Zeliotis suffered from extraneous wait times in order to get the health care that he needed.jpg|thumb|George Zeliotis suffered from extraneous wait times in order to get the health care that he needed]]<br />
<br />
=== Issue(s) === <br />
<big><br />
The main question at hand in [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] was whether Quebec had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through specific prohibitions, and whether these prohibitions infringed a person's section 7 right from the ''[http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms]''?<br />
<br />
If so, was this deprivation of a person's section 7 Charter right in accordance with the principles of fundamental justice?<br />
</big><br />
<br />
== Provisions in question ==<br />
<br />
==== Section 15 of the '' [http://www.canlii.org/en/qc/laws/stat/cqlr-c-a-29/latest/cqlr-c-a-29.html Health Insurance Act] '' ====<br />
<big><br />
15. An insurer or a person administering an employee benefit plan may enter into or maintain an insurance contract, or establish or maintain an employee benefit plan, as the case may be, that includes coverage for the cost of an insured service furnished to a resident or temporary resident of Québec, only if<br />
<br />
:(1) the insurance contract or employee benefit plan does not cover any insured service other than the insured services required for a total hip or knee replacement, a cataract extraction and intraocular lens implantation or any other specialized medical treatment determined under section 15.1, and those required for the provision of the preoperative, postoperative, rehabilitation and home care support services described in section 333.6 of the Act respecting health services and social services (chapter S-4.2);<br />
<br />
:(2) the insurance contract or employee benefit plan includes coverage for the cost of all insured services and all preoperative, postoperative, rehabilitation and home care support services referred to in subparagraph 1, subject to any applicable deductible amount; and<br />
<br />
:(3) the coverage applies only to surgery performed or any other specialized medical treatment provided in a specialized medical centre described in subparagraph 2 of the first paragraph of section 333.3 of the Act respecting health services and social services.<br />
<br />
<br />
:An insurance contract or employee benefit plan inconsistent with subparagraph 1 of the first paragraph that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract or plan must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
<br />
:Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment from being entered into or established. Nor does anything in this section prevent an insurance contract or an employee benefit plan that covers the contribution payable by an insured person under the Act respecting prescription drug insurance (chapter A-29.01) from being entered into or established.<br />
<br />
<br />
:“Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
:“Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
:An insurer or a person administering an employee benefit plan that contravenes the first paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
<br />
==== Section 11 of the ''[http://www.canlii.org/en/qc/laws/stat/rsq-c-a-28/latest/rsq-c-a-28.html Hospital Insurance Act]'' ====<br />
<big><br />
11. No insurer may enter into or maintain an insurance contract that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
: No person may establish or maintain an employee benefit plan that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
<br />
: An insurance contract or employee benefit plan inconsistent with the first or the second paragraph, as the case may be, that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
<br />
: Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec from being entered into or established.<br />
<br />
<br />
: “Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
: “Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
: An insurer or a person administering an employee benefit plan that contravenes the first or second paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
<br />
=== Analysis ===<br />
<big>The court found that delays which are the necessary result of waiting lists increase a patient's risk of mortality or the possibility of their injury/condition becoming much worse. This waiting period is often filled with pain and a lack of enjoyment of patients life, due to their urgent need for medical treatment. The court found that this was a clear violation of an individual's section 7 ''Canadian Charter'' right[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do].<br />
<br />
<br />
After a ''Charter'' infringement is made out, the provision that infringes upon the right can sometimes be protected under s.1. as a justified infringement. The objective of the ''HOIA'' and the ''HEIA'' is to make high-quality health care available to the citizens of Quebec, even though they may lack adequate funds. Therefore, the purpose of the provisions being examined are to prohibit private insurance in order to preserve the integrity of the public health care system in Quebec. A s. 1 justified infringement test requires that there be a rational connection between the purpose and the measures adopted, but here there was no compelling evidence presented establishing a rational connection between the objective of preserving the public plan and the limitations on a two-tier health care system. <br />
<br />
The evidence presented to the courts showed that delays in public health care were widespread, and in some cases had serious consequences, such as death, as patients were forced to wait for proper medical attention. This evidence showed that the prohibition against private health care insurance/systems could lead to physical and psychological suffering.[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do]<br />
</big><br />
<br />
=== Conclusion/Holding === <br />
<big>According to the [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Supreme Court of Canada] the appeal should be allowed. The Court decided that section 15 of the ''HEIA'' and section 11 of the ''HOIA'' are inconsistent with the Quebec ''Charter''.<br />
<br />
<br />
In order to learn about about how each of these theories can be applied to the case at hand, click the categories below.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Natural_Law&diff=3745Category:Natural Law2014-03-25T22:38:12Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=='''Natural Law'''==<br />
<br />
<br />
<big>Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.</big><br />
<br />
<br />
<br />
<br />
===Thomas Aquinas===<br />
<br />
[[File:St Thomas Aquinas.jpg|thumbnail|left|St Thomas Aquinas]]<br />
<br />
<big>For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.</big><br />
<br />
===Contemporary Renaissance === <br />
<br />
<big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of religion and expression.</big> <br />
<br />
<br />
<br />
<br />
<br />
<br />
<br><br />
<center><br />
<br />
<br><br />
=='''Four Elements of Valid Law'''==<br />
<br />
<big>For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:</big> <br />
<br />
====1. Must be directed to the common good ====<br />
<br />
:<big>When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.</big> <br />
<br />
====2. Must follow practical reason ==== <br />
<br />
:<big>A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.</big> <br />
<br />
====3. Must be made by a valid lawmaker ====<br />
<br />
:<big>For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.</big> <br />
<br />
====4. Must be promulgated ====<br />
<br />
:<big>For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.</big><br />
</center><br />
<br />
<br><br />
<br><br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
===Four Elements of Natural Law ===<br />
<br />
<big>In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.</big> <br />
<br />
===1. Directed at common good===<br />
<br />
:<big>The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life”.<ref>R v. Chaoulli at para 42.</ref> <br />
<br />
:The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
<br />
:The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.</big><br />
<br />
===2. Must follow practical reason===<br />
<br />
:<big>Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.</big> <br />
<br />
===3. Must be made by a valid lawmaker ===<br />
<br />
:<big>This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.</big> <br />
<br />
===4. Must be promulgated ===<br />
<br />
:<big>This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.</big> <br />
<br />
<br />
<br />
<big>Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law.</big><br />
<br />
<br />
===The Problem of Unjust law ===<br />
<br />
:<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules.<br />
<br />
:Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Natural_Law&diff=3739Category:Natural Law2014-03-25T22:36:09Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=='''Natural Law'''==<br />
<br />
<br />
<big>Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.</big><br />
<br />
<br />
<br />
<br />
===Thomas Aquinas===<br />
<br />
[[File:St Thomas Aquinas.jpg|thumbnail|left|St Thomas Aquinas]]<br />
<br />
<big>For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.</big><br />
<br />
===Contemporary Renaissance === <br />
<br />
<big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of religion and expression.</big> <br />
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=='''Four Elements of Valid Law'''==<br />
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<big>For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:</big> <br />
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====1. Must be directed to the common good ====<br />
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:<big>When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.</big> <br />
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====2. Must follow practical reason ==== <br />
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:<big>A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.</big> <br />
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====3. Must be made by a valid lawmaker ====<br />
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:<big>For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.</big> <br />
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====4. Must be promulgated ====<br />
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:<big>For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.</big><br />
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=='''Applied to the Case'''==<br />
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===Four Elements of Natural Law ===<br />
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<big>In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.</big> <br />
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===1. Directed at common good===<br />
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:<big>The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
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:The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
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:The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.</big><br />
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===2. Must follow practical reason===<br />
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:<big>Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.</big> <br />
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===3. Must be made by a valid lawmaker ===<br />
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:<big>This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.</big> <br />
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===4. Must be promulgated ===<br />
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:<big>This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.</big> <br />
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<big>Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law.</big><br />
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===The Problem of Unjust law ===<br />
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:<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules.<br />
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:Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big><br />
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==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Law_as_Efficiency:_Law_and_Economics&diff=3403Category:Law as Efficiency: Law and Economics2014-03-25T17:43:11Z<p>Fullbrooks13: </p>
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<div>== Law as Efficiency: Law and Economics ==<br />
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Generally speaking, the study of economics concerns distribution outcomes involving scarce resources. Less generally, economic thought can be broken into positivist and normative accounts. Positivist economics concerns how and why people respond to changes in market conditions. Normative economics utilizes positivist findings and presents strategies for organizing market behaviour to achieve efficient allocations of resources. Law and economics is simply a normative economic approach to law.<br />
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Economics is fascinated by human behaviour surrounding the allocation of scarce resources. Before delving into normative economic theories, it is important to unpack some of the study’s primary concepts and elementary assumptions about human behaviour and what ideal allocation of resources looks like.<br />
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=== Rational Person Theory ===<br />
Most economic models assume that people are rational. This is known as the rational person theory. The theory assumes people make rational decisions about how they allocate resources and effort. Most economic models of human behaviour attempt to predict how people will respond given fixed amounts of supply and demand of resources. Assuming people are rational allows economists to generalize human behaviour in different scenarios where the supply and demand for resources changes. This assumption draws much criticism; however, many economists justify the assumption in that it allows their theories to make moderately accurate predictions about how people will act in differing scenarios.<br />
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==== Perfect Information ====<br />
A rational person makes decisions that are in their best interest. This is not to be confused with the assumption that people have perfect knowledge, however.<br />
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The assumption that people possess perfect knowledge is sometimes made in economic models. In these models, people react quickly to changes in supply and demand because they know the exact moment when their best interests have changed. This assumption is not always clearly stated, and while it draws much attention, assuming that people possess equal information enables economists to predict how people would act when changes occur. A criticism with the assumption of perfect information is that, in law and business, it is often the different amounts of information parties possess that determines their success or failure. Assuming that all people equally possess perfect information about the interests of other parties is a fiction that makes economic models unrealistic.<br />
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In contrast with the assumption of perfect information, economists sometimes deal with models where people possess different amounts of information. This is known as information asymmetry. Law and economics scholars often make the assumption of perfect information, and believe it will lead to more efficient distributions of resources of everyone actually had perfect information.<br />
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=== Efficiency ===<br />
Efficiency refers to the maximization of social welfare. Law and economics scholars think this is achieved when resources are allocated in a way that produces the greatest benefit. The greatest benefit means the total benefit of all the parties. Underlying the principle of efficiency is the premise that resources should be allocated to those who value them most. Economists assume people are rational and attain value from all of their purchases. Economists persist that efficiency results when everyone makes the most individually beneficial decisions in markets where competition exists.<br />
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The presence of competition is important to economists. Competition for market share between firms is necessary to lower prices. Economists think that efficient firms price their goods and services at the cost of production. When a firm prices goods and services higher than the cost of production, competing firms will take their market share. To enable competition, economists argue that barriers to enter markets should be eliminated. When barriers are eliminated, free-entry into markets allows competition to enter, and prices to correct to the cost of production.<br />
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It is assumed that people want goods and services, and that at each price point, either more or less people will be interested in them. When firms price goods and services at the cost of production, it allows the greatest number of people to purchase the good or service. This results in more collective benefit from the sale of the good or service. In this way, the collective utility of the greatest number of parties results in the most efficient outcome. If product prices fall below the cost of production this will cease to occur. When this happens producer receive negative utility for the production of their goods and services. So, economists say, firms should price their goods and services at the cost of product to compete with other firms, and provide the best value to society.<br />
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Richard Posner, a law and economics academic, holds efficiency to be synonymous with justice. He asserts that, where the study of law and economics is criticized for ignoring justice, "a second meaning of justice, perhaps the most common is -efficiency."<br />
Cole and Grossman, "Principles of Law and Economics" 2005 Pearson Prentice Hall (Upper Saddle River New Jersey) p. 51<br />
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==== Externalities ====<br />
Externalities are costs required to produce goods and services that are not accounted for in in the price of the good or service. This is a popular area in the study of law and economics because much of law is concerned with accounting for costs unjustly bore by other parties. It is on this point that law and economics scholars argue that the law should internalize costs bore by parties that are not reflected in the prices of goods and services. This assertion arises from the position that social welfare is not maximized when the costs of producing goods and services are paid by those who do not receive value from them.<br />
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Ideologically, law and economics scholars refer to the amelioration of externalities as 'internalizing' externalities. In application this means that externality bearer should be compensated by the firms that produce externalities, and that the value of compensation should be reflected in the price of those goods and services. Much like how a monopoly prices goods and services too high, when firms produce goods and services that are the subject of externalities, the prices for these goods and services are set too low. As a result, society will consume more of these goods than is efficient. For each unit of production, a part of the cost of amelioration is bore by a party that receives only negative utility.<br />
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A common example of an externality is smog produced by a power plant. If air pollution were spread evenly to all consumers of electricity, the consumers would benefit equally from reductions in air pollution. When this is not the case, those people living in area where the plant's air pollution gathers face an additional costs for their consumption. In effect, the consumers of electricity that reside outside of the air pollution area, benefit from the externality. Home owners surrounding the power plant will experience a decrease in utility equal to the cost of the air-pollution. What avenues for justice can be utilized to internalize the cost to these parties? Is is where law and economics scholars weigh in.<br />
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==== An Approach to Property Rights ====<br />
Law and economics scholars think property rights should be allocated to unburden the bearers of externalities. They think that rights themselves should be sold like property, and they justify this idea by the ability of firms to readily compensate those infringed by production activities. The goal is to enable firms to internalize externalities, and the means involve allowing firms to purchase rights held by others.<br />
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A source of resistance to this approach arises from the idea that nothing would be inalienable. This is not currently a position many people would take in the world. The thought that certain rights should not be for sale is a popular one. Some people criticize law and economics scholars on this approach to property by saying that society holding certain rights and freedoms inalienable creates value in itself. Regardless, law and economics scholars say that if rights were treated as sellable property the world would be a more efficient place. <br />
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Law and economics scholars believe that the costs of intruding on the rights of others should exist without barriers. The law and economics scholars argue that in making all rights alienable, society has the best chance of maximizing social welfare. In other words, society has the greatest ability to produce the goods and services people are willing to buy at prices that represent the true costs of production when everyone can be compensated without restriction.<br />
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==== Transaction Costs: Coase Theorem ====<br />
In his first publication on economics, “the Nature of the Firm,” Ronald Coase defines firms as utility deriving mechanisms that reduce transactions costs. In subsequent writings his idea took hold as a concept for law and economics. His position, that individuals face all kinds of costs when they try to do business on their own, was reformulated in subsequent writings. The principle of firms reducing transaction costs illustrates how it is less expensive for people to share resources, like telephones, offices, and employees.<br />
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For example, imagine you are a lawyer with your own one-person firm. Should you answer the phone when you could instead be advising a client? If you could be advising a client, answering the phone presents an opportunity cost. If not answering the phone results in getting your next client, you might think it a good idea to make your current client wait. If hiring an employee to answer the phone is more expensive than making your current client wait, then you have no choice but to make your client wait. However, perhaps you should get together with another lawyer and share the cost of the employee so that you both benefit from their service. If you chose to do this, you would reduce your transaction costs. Coase explores how firms bundle all kinds of costs, and reduce cost of production for all kinds of goods and services in society.<br />
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For Coase, transaction costs can represent many kinds of expenses. When two parties get together to bargain, the costs of their doing so are transaction costs. When parties are in a conflict, a bargain may also include exchanging property rights, like in a tort or contract dispute. Transaction costs will include lawyer fees, and even the costs like driving a vehicle to a market place or court house. Transactions costs emerge between two parties each time they seek to make an exchange of any kind. Sometimes transaction costs are referred to in contracts as being the responsibility of a particular party, and other times they are simply absorbed as a cost of doing business.<br />
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In a later publication, "the Problem of Social Cost," the Coase theorem emerges. The theorem holds that, when transaction costs are low, conflicted parties will find efficient solutions by themselves. This theory has been used to support many kinds of non-government approaches to dispute resolution, and many lawyers consider the idea as support for solving legal problems through settlements. The theory is a feature of law and economics that enables solutions to be found, often by simplifying resolution processes.<br />
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=== Pareto Efficiency ===<br />
Pareto efficiency is more of a rule about how parties should continue to make trades until it is no longer in their best interest to continue trading. Pareto efficient may involve many parties and transactions. Its outcome says that parties should stop trading when all beneficial trades have been exhausted. A simple example might involve a property owner, and a coal miner who holds a licence to mine on the owner’s land. Assuming the two parties have a contract that entitles the land owner to $1 per 100lbs. of coal that is mined from her land, and that she possess the right to stop the miner from mining, the land owner should stop the mining at the point when she no longer is willing to receive $1 for each 100lbs. of coal that is extracted. The Pareto optimal trade is the last trade in a series of trades where both parties still receive some benefit from the exchange. The concept, when simplified, suggests that parties conduct business where it is in their best interest. <br />
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In a scenario involving externalities, three parties or more may be involved in a transaction. In the example above, a woman named Abby sells a licence to extract coal from her land to a miner named Bob. Meanwhile, Don represents a home owners association whose members all own homes along the road from Abby’s land to Bob’s final destination, a dock located at Port Thompson, 10 miles away. While Bob is mining coal, he loads trucks that carry 100lbs of the coal at a time to the port. The home owner’s represented by Don feel that the mining activity is impacting their property rights, and seek to be compensated $1 per 100lbs as a result. It is with fact such as these that the Pareto efficiency rule applies. The rule suggests that the exchange between the parties should continue so long as Bob receives enough value from the coal he mines to compensate the parties. Bob should continue mining so long as he still receives benefit from doing so; alternatively, Abby should permit Bob to mine so long as she receives benefit in doing so.<br />
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This might sound sufficient in theory, but what powers do the home owners have in reality? Law and economics scholars have realized that Pareto efficiency is a bit of a fiction in reality. While the Pareto efficiency theory might provide a nice way of looking at things in the abstract, those whose property rights have been impacted do not often possess the power to accept limited amounts of compensation, nor do they have the sufficient negotiating power to stop industrial activities in actual scenarios. For this reason, many law and economics scholars turn to the Kaldor-Hicks criterion. <br />
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=== Kaldor-Hicks Efficiency ===<br />
Compared to Pareto efficiency, the Kaldor-Hicks criterion is considered to be a more realistic version of how conflicts are resolved in the world. The Kaldor-Hicks criterion is often used to as a way to test whether a Pareto optimal exchange has occurred in the process of internalizing transactions. <br />
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The Kaldor-Hicks criterion seeks to internalize externalities so that markets can run efficiently. The criterion seeks to address over-consumption that results from the existence of externalities in markets. A primary assumption of the Kaldor-Hicks criterion is that all property rights are for sale. Once this assumption is established, the Kaldor-Hicks criterion requires an authority to determine the value of compensation required to internalize externalities; next, the authority will collect an internalization fee from producers. At this point, firms can produce goods and services at supposedly fair prices. But this is not the entire story. The formerly externality bearing parties should, under the efficiency principle, be compensated for externalities. The value of the compensation is set by the authority, not by parties themselves. This is difficult for some economists to support because externality bearing parties do not express the degree to which they value their rights by the amount of compensation they receive. Finally, parties affected by externalities will have a right to refuse to sell their rights by paying producers to stop production. The way in which the Kaldor-Hicks criterion involves objectively assessed compensation enables it to resemble conflict resolution in the world. The same parties in Pareto efficiency that were able to value their rights subjectively do so differently in the criterion. In the Kaldor-Hicks criterion, the right to refuse to sell your rights is only made possible by paying producers of the externality to stop production. In other words, the price the externality bearing parties have to pay to refuse the sale of their rights is the amount of producer's total benefit of production.<br />
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In the example used earlier, where miner Bob mines coal on Abby’s land and pays her for a licence to do so, and pays an amount equal to the compensation for the Road Homes Association (RHA), the application is as follows. An authority collects what it determines is fair compensation to the RHA. The mining activity should continue until the RHA is willing to pay Bob to stop. The RHA may receive $1 for each 100lbs of coal shipped, at the discretion the authority; however, mining will continue until Bob is paid by the RHA to stop mining, or until he no longer benefits from mining. So, if Bob sells his coal for $10/100lbs, and he pays $5/100lbs in costs, his benefit is $5/100lbs. The amount of benefit received by Bob for mining is now a cost the RHA is required to pay if they want bob to stop mining. This may seem terribly unfair, but some economists think this is actually how many problems in the world are resolved.<br />
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The Kaldor-Hicks criterion can be broken down into steps. First, rights have to be completely alienable, or for sale. Second, an authority has to enter into the conflict and determine the value of the externality. Third the externality bearing party must be compensated. And finally, the option for the third party to buy out the producer is possible.<br />
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The Kaldor-Hicks criterion is often used by policy analysts that work on compensation schemes such as carbon credits. One of the strange features of the criterion is that it does not actually require that compensation is paid to externality bearing parties. Whether compensation is paid is a matter for the policy authority to decide. Surprisingly, the criterion's emphasis is the injustice of transactions where the value of externalities artificially reduces prices of goods and services. This is because externalities, when not internalized, have the effect of lowering prices of goods and services, which leads to over-consumption at the expense of externality bearing parties. For Kaldor-Hicks, only when product prices reflect their complete cost of production will markets be efficient.<br />
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Where the ability of externality bearing parties to sell their rights for subjectively determined values would normally be a good way of assessing what their rights are worth to them, the Kaldor-Hicks principle is thought to be more realistic. One of its aims is to reduce the ability of hold-outs to create inefficiencies. A hold-out is a party that does not want to sell their rights at the expense of all parties receiving a greater benefit by them doing so. In actual fact, the value that externality bearing parties place on their rights is realized in the Kaldor-Hicks criterion if they decide to pay producers to stop producing. The problem is externality bearing parties hold an onus in the Kaldor-Hicks criterion. One criticism that comes to mind here is that the bargaining power of externality bearing parties can easily be manipulated when these parties simply cannot afford to pay producers to stop production. Injustice occurs when the compensation for rights is less than the amount a party values their right and the buy out price is greater than the value they place on the right.<br />
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Ultimately, the Kaldor-Hicks criterion compromises the short-run interests of parties in an effort to balance the value received by winners with the losses suffered from losers. At the expense of allowing winners to win more, the criterion makes property right holders responsible for the costs of industry. This prevents the problem of hold-outs. Many economists think that while the criterion might be a good way test whether Pareto efficiency has been achieved, restricting parties from expressing the amount they value resources has dire consequences.<br />
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=== Looking Closer: Reducing Unwanted Behaviour ===<br />
Ultimately, for law and economics scholars efficiency requires that there will always be some criminal offences and avoidable accidents in society. Eliminating all unwanted activity would cost society more than the unwanted activity itself. Underpinning this idea is the concept of diminishing marginal returns. <br />
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An analogy for diminishing marginal returns can be made from picking blueberries. A person can pick blueberries from a bush with great success if the bush has not already been picked that season. At first, the berries will be easy to pick, but as the picker continues, eventually a point is reached where each basket takes longer to fill than the last. This concept is known to economists as diminishing marginal returns. The notion that eliminating all risk of injury is out of the question for most economists; however, for some activities the threshold of elimination and acceptance is higher than others.<br />
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Economists think society’s interest in the reduction of avoidable accidents and criminal offences is limited by what society is willing to pay for reduction. In other words, for economists, reductions in crime and avoidable accidents are considered in terms of units of reduction. A reduction in criminal activity, for instance, is viewed as a purchase. Economists hold the view that, at some point, the purchase of each unit of crime or accident prevention will steadily increase until it exceeds what society is willing to pay.<br />
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====An overview of Law and Economics in Tort====<br />
Dimock’s survey tort law as examined by law and economics scholars focuses on efficient avoidable accident reduction, and the consequences of applying liability structures under various conditions. The thrust of her writing holds that economists seek to make parties liable, depending on the cost of their alternatives, in order to achieve an efficient distribution of compensation.<br />
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In tort law, law and economics scholars focus on liability assignments for intentional and non-intentional torts. In Dimock, these include negligence, absolute victim liability, and absolute injurer liability. In negligence, parties that possess a duty are found to be responsible for taking care to prevent accidents. Economists note how the duty requirement in negligence enables parties to act solely in their best interests where no duty to do otherwise exists. This allows society to creates incentives for duty holders to act cautiously. Contributory negligence, creates incentives on potentially injured parties to prevent accidents in negligence also. <br />
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Absolute victim liability and absolute injurer liability have the effect of create incentives to opposite parties. Law and economic theorists think that these assignments of liability should be considerately made. Absolute victim liability will place the duty to prevent injury on the victim. This will be used when the cost to prevent accidents from being caused is lower for the potential victim than for the potentially injuring party. Situations where this may be useful arise when a party knows that they have thin-skull attributes, or when the activity presents a known and easily avoidable potential of injury. An example of an absolute victim liability measure arises in insurance plans where injured parties in car accidents forfeit their claims when not wearing seat-belts. <br />
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The final liability assignment presented by Dimock is absolute injurer liability. Absolute injurer liability exists when injuring parties are held responsible for all damage, regardless of their taking precautionary measures. The effect is simply the opposite of victim liability. It is important to note that in addition to these liability structures analyzed by Dimock, no fault liability exists also, where both parties are responsible to share the costs of compensation. This final form is used by the province of Ontario for vehicle insurance, and in establishing fault for vehicle accidents in parking lots throughout Canada.<br />
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Law and economics scholars think that these assignments should be cautiously made for the purpose of reducing avoidable accidents to an efficient level. They make assignments when they determine which party pays the least cost to best prevent accidents. This party is called the least cost avoider. In pursuit of efficiency, economists try to make the least cost avoider hold liability. In other words, law and economics scholars think parties who can most easily prevent accidents should. The think that the best way of doing this is creating incentives on the least cost avoiders to make it in their best interests to take precautions. Sometimes imposing liabilities on innocent parties appears strange; however, economists will always seek to prevent damage at the lowest cost. Despite how unjust this might otherwise appear, law and economic scholars ultimately justify liability assignments by reducing accidents at the lowest cost to society.<br />
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====An overview of Law and Economics in Criminal Law====<br />
Dimock’s examines criminal law from a law and economics perspective. She presents law and economic scholar’s concerns with when it is best to use sanctions verses incentives, an efficient level of crime reduction, and how to reduce crime through the correct use of penalties and enforcement. <br />
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The question economists often ask is, when should society use criminal law? Most of the time the question actually points to when people should be penalized, and economists are often quick to say that the loss of freedoms is best achieved by fines. When the person whose behaviour you wish to control is unable to pay, their behaviour will likely not be altered by fines, and therefore, prison must be considered. <br />
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Another question economists are concerned with is how much should society spend on crime reductions. Having addressed the efficient amount of crime reduction earlier, this might be a good place to talk about the best way to reduce crime. Economists talk about curtailing criminal behaviour by looking at penalties and the cost of enforcing them. By setting penalties high, for instance, people will be incentivized not to commit crimes; however, what if they thought they would never get caught. The balance between enforcement of penalties and the cost of getting caught creates a matrix that economists think criminals consider. Economists think people weigh penalties against the probability of their being penalized before deciding whether to commit an offence. <br />
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This enables policy makers to consider how best to set penalties, and allocate police funding. The most important factor in determining how to set a penalty is the cost of the behaviour to others. If the offence is car theft, the cost will be the value of the car being stolen and any additional transaction costs involved with having a car stolen. Since perfect enforcement is never possible, the penalties should always outweigh the possible gains of committing offences. This means that the punishment should never allow anyone to think that it is in their best interest to commit car theft. However, considering how high the penalty should be set involves an acknowledgment of the probability of the offender’s getting caught. Another consideration should be made by considering the cost of increasing the likelihood of capturing criminals against the societal cost of increasing the penalty. <br />
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criminal offences as though they occur against property. Law and economics scholars take the view that people’s personal rights, including those such as intrusion of their physical bodies, can be viewed as an intrusion upon a person’s property.<br />
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====An overview of Law and Economics in Contract Law====<br />
Dimock looks at contract law from a law and economics perspective by focusing on the maintenance of incentives to efficient exchange. Contract law is found by law and economics scholars, like Posner, to be flexible about agreements, with the object of preserving efficient exchanges.<br />
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Dimock finds the requirement of consideration to be an area of contract law that embraces economic theories of efficiency. In effect, consideration excludes contractual obligations from gift giving activities, which means that gift givers do not need to be as careful under the law as those engaging in consideration supported agreements. In Dimock, the position of law and economics scholars is that more utility results from contract law’s dismissal of enforcing gratuitous agreements.<br />
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Remedies for contractual breach are regarded as efficient by law and economics scholars, also. The idea that a contractually bound party may breach a contract as a matter of efficiency is at the heart of law and economics. Law and economics scholars support this idea, and find that it is not in the best interests of society for contract law to penalize parties for acting in their best interests. For instance consider a firm that enters into a contract to sell a good, only to later learn that they can sell the same good to another party at a higher price. In these cases, where they can sell to the other party for so much more that they can afford to pay damages for their breach and still receive more benefit, contract law allows them to do so. In effect, law and economic scholars think people should only be obligated to make good on their promises when it is in their best interest.<br />
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=== Application of Law and Economics to the Case:===<br />
Chaoulli v. Quebec (Attorney General), is a case about Quebec health and insurance legislation that prevents the creation of a two tier health care system in Quebec. In the case, the court found that the right to security of the person (s.7) was violated by the existence of the legislation. The facts involve a suffering patient, Mr. Zeliots, and physician, Chaoulli, who is seeking to establish private health-care services. The case turns on the evidence of Mr. Zeliots, who suffers as a result of long lineups and waiting periods preventing him from receiving reasonably prompt health care treatments.<br />
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Legal issues used to decide the case relate to how ''the Charter of Rights and Freedoms'' can be applied to strike provincial health care laws. The application analysis will focus on principles of law and economist scholars who will support the use of ''the Charter of Rights and Freedoms'' under the facts presented in this case. Sometimes, ''the Charter of Rights and Freedoms'' will not be a popular vehicle for law and economics scholars. Concerns law and economic scholars have with ''the Charter'' will be very similar to those of utilitarians. The concern is that, when section 1 is not applied to support their view of utility maximization or efficiency, ''the Charter'' creates a standard of inalienable rights. This is precisely what utilitarians, law and economics scholars, and consequentialist moral theorists do not want to see.<br />
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However, section 1 of ''the Charter'' does allow for the utilitarian principle to prevent a standard of rights from becoming inalienable. In this way, 'the greatest good for the greatest number' is an underlying principle in ''the Charter of Rights and Freedoms''. When the application of ''the Charter'' makes it possible for an individual to chose to pay for a service, and the costs of their actions can be internalized, law and economics scholars will be pleased. If ''the Charter'' is utilized to protect a right that could otherwise be sold to a firm for the purpose of internalizing production costs, law and economics scholars will disapprove. In other words, ''the Charter of Rights and Freedoms'' will be unpopular with law and economics scholars when it is used to prevent the sale of rights.<br />
<br />
As it concerns the Quebec health and insurance legislation, law and economics scholars will inquire about the logic of the penalties for disobeying the legislation. The penalties are clearly measures seeking to disincentize physicians and insurance providers from adopting or supporting privatized heal care services. The aim of law and economics scholars will be argue that penalties should represent the cost that society pays for disobedience with the law. The position of law and economics scholars on penalty setting will include consideration of the chances of being caught for the offence, also. As it pertains to the Quebec health and insurance legislation, the costs to society must be clear, and the evidence presented in this case is that society may actually be damaged by the provisions of the health and insurance legislation. This will be the case where citizens want to pay for a service, for a price that includes any negative effects it has on society, and are made unable to do so.<br />
<br />
About the general issue of the privatization of health care services, law and economics scholars have a reputation for supporting privatization, and when considering their assumptions about efficiency the reasons are obvious. Economists support competition in markets because they believe the force of competition creates efficient markets. Economists think people are rational utility maximizers. They think that firms will set prices as high as they reasonably can, and that the only thing that stops them from setting their prices above the cost of production is the force of competition. Only when firms can freely enter into markets will competing firms have an incentive to lower their prices to the cost of production. When prices rise above the cost of production, firms make profit. Many economists believe this sends a signal to investors and business people that competition is needed in that market.<br />
<br />
In this case, it is difficult to conceptualize how adding a new tier to a public health care system will make the entire industry more efficient. The costs of health care are quite high in Canada (highest marginal health care service costs in the world, next to America). The effect that a second tier may have on the public health care system is unknown. Economists may have models that they would use to rationalize how this case should be decided and organized, and they will be presented below, but first it is important to consider the complications that can arise from implementing a two tier system are empirically unknowable. Many speculate that a two tier system will destroy public health care in Canada.<br />
<br />
====Ratio====<br />
The essential ratio that results from a law and economics analysis of a case like this, involves two steps. The first step is to reduce transactions costs by finding a party who values the right at issue the most, and making it possible for them to purchase the right. The second step is to consider all the parties negatively impacted by externalities created by the first step, and compensate them by internalizing the purchase of the right.<br />
<br />
====Application====<br />
Applying the ratio stated above, law and economics scholars will seeks to do two things. First, they will seek to reduce transaction costs by empowering Mr.Zeliots, the patient suffering as a result of the health care and insurance legislation. They will make it possible for him to choose whether he wants to purchase private health care services or not. Second, law and economics scholars will seeks to compensate parties affected by the negative impacts of letting Mr. Zeliots purchase private health care. The value of the compensation will be included in the price of private health care services. These externalities will include costs required to stabilize the public medical system so that the current benefactors of that system are not negatively impacted by Mr.Zeliots' ability to choose.<br />
<br />
Another strategy might be to allow Mr.Zeliots to go to the front of the line for a fee. If the fee represents an amount of money the other parties in the line are willing to accept, then this would be a Pareto efficient transaction. If all of the parties in health care system line-ups in Quebec were able to pay for a spot in the line, law and economics theorists would think that people would rationally pay to be in priority based on the severity of their need for care.<br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:System_of_Rights&diff=3401Category:System of Rights2014-03-25T17:42:34Z<p>Fullbrooks13: </p>
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<div>=='''Law, Principles, and Rights''' ==<br />
<br />
[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|right|Ronald Dworkin at the Brooklyn Book Festival]]<br />
<br />
===Ronald Dworkin ===<br />
<br />
<big>Currently one of the most dominant figures in jurisprudence and a great influential legal philosopher, Ronald Dworkin has contested almost every aspect of legal positivist theory rejecting much of H.L.A. Hart’s work in the area. Dworkin begins his criticism of legal positivism by outlining three foundation propositions that he contests. The first proposition Dworkin disagrees with concerns the positivist belief that law can be understood as a system of rules(Dimock, 2002,p.235). Dworkin doesn't believe that positivism can explain the normativity of law(Dimock, 2002,p.235.)The third proposition that he contests is that which Hart believes judges exercise discretion when there is no legal rule to apply(Dimock, 2002,p.235). For Dworkin the law contains more than rules, hence his theory of the role of principles in the law. The role of principles in law undermines what Dworkin believes to be the positivist position. Although positivists don’t completely deny the existence of principles, they dismiss their importance in relation to the hard cases in which they feel judges should exercise their discretion. <br />
<br />
When case law is irrelevant to the case at hand, H.L.A. Hart believes that this is where judges encounter hard cases where the judges step in to fill in the gaps by creating new laws to apply to the case. For H.L.A. Hart, judicial interpretation at this stage is guided by morality. Dworkin rejects this view instead believing that principles have a quality of wight and importance when there is no rule to address the reasoning one should take in relation to the case. When these hard cases come to light, principles are extremely important in aiding to create the new rules. The process that the judges encounter when considering and weighing principles through their legal reasoning are what produce the new rules according to Dworkin. Principles help regulate judges discretion when deciding these cases that do not currently have any rules that are applicable. For Dworkin, these principles that create the rules judges use in rulings are the law, hence they are binding.</big><br />
<br />
Add something about policies?<br />
<br />
=='''Application to the Case''' ==<br />
<big><br />
In [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec], in order to determine if section 11 of the ''Health Insurance Act'' and section 11 of the ''Hospital Insurance Act'' had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through these specific prohibitions infringed Zeliotis and Chaoulli's section 7 right from the Canadian Charter of Rights and Freedoms the judges ________. <br />
<br />
This clear violation was then analysed to determine if this deprivation of Zeliotis and Chaoulli's section 7 Charter right was in accordance with the principles of fundamental justice. Dworkin would support that the Charter has to be successful at using the values of fundamental justice to resolve conflicts between the laws, hence, for Dworkin the Charter would have been created with principles in order to produce what we now apply as the law. If the Charter is unable to carry the principles of justice, it would fail in Dworkin's eyes. If the judges were not satisfied that the section 1 application was not adequate at addressing the issue at hand, under Dworkin's theory of principles the judges would have to guide their decision by principles in order to create a rule in which they felt was applicable to the issue. When the case is determined by a judges discretion<br />
<br />
Reference<br />
Dimock, S. (2002). Classic Readings and Canadian Cases in the Philosophy of Law. Toronto, Ontario: Pearson Education Canada.<br />
<br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Separation_Thesis&diff=3400Category:Separation Thesis2014-03-25T17:41:51Z<p>Fullbrooks13: </p>
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<div>== The Separation Thesis ==<br />
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<br />
=== HLA Hart ===<br />
[[File:Hart2-bmp.jpg|framed|right|H.L.A. Hart]]<br />
<br />
HLA Hart was a proponent of legal positivism with his Separation thesis. Hart, sees morality as “an independent normative standard for regulating and criticizing our own and others’ behaviour,” he finds that law and morality are not connected. It is possible, and rather likely, that the law and morality will run parallel to one another. There is, however, no presumption that the law embodies morality. According to Hart, if these two ideas do run contrary to each other we have a decision to make—do we follow morality or the law? The law as a system of rules is incomplete and terms can have a “penumbra” meaning their definition is unclear. Hart concluded that when one is confronted by a morally bad law, to let the conscience decide, unhampered by a connection between law and morality. He thought that certain laws might be too evil to be obeyed. Examining penumbral cases, they should be decided with regards to social aims. This decision becomes more difficult in the event that they become starkly contrasted.<br />
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For Hart, the legal system hinges on a rule governed practice. A law must have an “ought to” claim—one should follow the law because they “ought to”. We follow laws because they are universally recognized, not because we are morally compelled to. Judges are critical in Hart’s view of the legal system. Judges take the peculiarities of a case into account because both legislation and the law are expressed in general terms. Rules must apply generally in order to be practical. There is a “settled core of meaning” in which most factual situations fit. Under these circumstances the law and the facts correlate and are well settled. Outside of this, is a penumbra case where the judge’s role becomes evident. A judge decides where the case lies and how the law applies. This concept is highly contested by Fuller.<br />
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<br><br />
<br><br />
<br />
== Application to the Case ==<br />
<br />
The case before the Supreme court in Chaoulli v. Quebec is clearly a penumbra case. In this case the Supreme Court found the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms. The Supreme Court rendered three separate written decisions. <br />
<br />
Deschamps identifies the issue in this case as whether the prohibition is “justified by the need to preserve the integrity of the public system” but did not question the single-tier system itself. She warns against politicizing the issue and rejects the appeal court’s characterization of an infringement of an economic right. Deschamps comments that long wait times at hospitals can result in the death of patients and that the prohibited private health care could save lives. She sees wait lists as a form of rationing and it is this policy that is being challenged as a violation of the Canadian Charter right to security of person and the quebec charter right of personal inviolability. Deschamps finds this is a violation of section 7 of the charter and section 1 of the Quebec charter. <br />
<br />
In the second decision, both McLachlin and Major agree with Deschamp’s reasons and reach the same outcome, however, they rely more on section 1 and section 7 of the Canadian Charter to do so. They observe the “Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.” Hart would view this case through his positivist lens and would want to follow the rules. Language is critical in understanding his perspective because a law is not good or bad, it is valid, invalid, true, or false. Framing the law in this way poses a huge dilemma for your everyday citizen. If the law cannot address society’s concerns in these terms (good and bad) and does not consider moral implications, it falls short of meeting the needs of the citizenry. Society makes value judgements on the law and the services received from the government using a moral lens which makes assessing it difficult if morality is separate. This becomes a concern about the integrity of government and the legal system.<br />
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Binnie and LeBel consider whether Quebec has the constitutional authority to establish a comprehensive single-tier plan, but further to discourage a private sector tier by prohibiting the purchase and sale of private health insurance. They see the problem in this case as centred on public policy and social values which are beyond the mandate of the courts to decide. Hart would disagree with this approach as he believes the court is purposed with upholding public policy and social values. He would argue that they should weigh the interests of both sides and reach a just conclusion.<br />
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=== Morality of Law ===<br />
<br />
<br />
Lon L Fuller drafted a response to the separation thesis Positivism and Fidelity to Law—A Reply to Professor Hart where he assembled an argument linking law and morality.<br />
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== Application to the Case ==<br />
<br />
Fuller rejects Hart’s proposition of a core and penumbra. Fuller sees judges as interpreting the law to match it to the wider purposes of law and the legal system. Fuller argues that “acceptance of certain fundamental rules with respect to law making authority must be grounded in morality,” Fuller supports his position with three notions:<br />
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1. Social acceptance of legal rules: law is grounded in morality and the rules must follow the moral code of the community. In Chaoulli v. Quebec Deschamps considers saving lives as important which is a critical component of society’s current morals. Letting people die unnecessarily is unacceptable.<br />
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2. Law itself has an inner morality: the legal system serves to produce order. Law must be coherent, rational, consistent, known, and capable of explanation. Fuller would appreciate the court attempting to balance the good of society. “law must serve morally good ends in order to be law at all” <br />
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3. Obligations to obey the law: laws are moral because of our obligation to obey them. Fuller suggests that “a mere respect for constituted authority must not be confused with fidelity to the law” The challenge with this is the predicament between obeying the law and the moral duty to disregard immoral laws. Fuller contends we must obey the law because it is moral. With competing purposes, judges must balance them. In Chaoulli v. Quebec the justices had to balance saving lives with the benefits of a single tiered egalitarian system which was no easy task. Fuller contends that “judges must view their duty of fidelity to law in a context which embraces their responsibility for making law what it ought to be.” By upholding the aversion of the law to punish the morally innocent, i.e. a Dr. seeking to assist a patient, and a patient seeking treatment when the system in place was not working for him, the court was exercising their mandate to “make the law what it ought to be.” At the same time, this decision poses challenges around administrative efficiency and order which would be a challenge to Fuller’s outlook. <br />
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Chaoulli v. Quebec seems to be more in line with Fuller’s position, based on the moral conundrum of saving lives where the current system is failing, although one although one should be careful not to necessarily equate morality and fairness. Further the court is part of a coherent system and avoids the eight routes to disaster posited by Fuller: <br />
1. The lack of rules or law, which leads to ad hoc and inconsistent adjudication.<br />
2. Failure to publicize or make known the rules of law.<br />
3. Unclear or obscure legislation that is impossible to understand.<br />
4. Retroactive legislation.<br />
5. Contradictions in the law.<br />
6. Demands that are beyond the power of the subjects and the ruled.<br />
7. Unstable legislation (frequent revisions of laws).<br />
8. Failure of congruence between adjudication/administration and legislation.<br />
Fuller sees bad law as bad because it abandoned the legal process. In this case, the court makes a sound decision based on good reasons and looks at similar issues in other countries to inform itself, thus maintaining the morality of the law and its connection to society.<br />
<br />
=== Conclusion ===<br />
<br />
The main problem with Hart’s position is that he never really articulates what morality is. Fuller looks at deciding hard cases as following interpretation looking at external morality and the law’s internal morality. The law has intrinsic rationality and consistency in the system which is what is seen in the judgement of this case. It is about creating order in society. By this tenet The Supreme Court made an astute decision that provides for expediency in the system, protects social interests with regards to people adopting and maintaining a high standard of care.<br />
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==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Positivism&diff=3396Category:Positivism2014-03-25T17:41:10Z<p>Fullbrooks13: </p>
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<div><br />
== '''Legal Positivism''' ==<br />
Legal positivism is a position founded on the view that law and morality are two separate and distinct systems of thought. This position arises in opposition to the theory of natural law, which treats law as a regulatory system of moral principles. Legal positivism holds that law and morality serve different purposes. In other words, legal rules and moral principles are things unto themselves. Legal positivism holds that a law can be either moral or immoral; put differently, moral principles can correspond and contradict legal rules. In opposition to natural law theorists, this means that laws are not justified by moral criteria.<br />
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=== John Austin ===<br />
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[[File:John Austin.jpg|framed|left|John Austin]]<br />
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Austin is credited as the first legal positivist. Holding a fondness for Bentham and the principle of utility, Austin discerns between law and morality, and for establishing the criteria for laws that distinguishes them from moral principles. For Austin, a law is a command issued by a political superior to a political subordinate under the condition that disobedience warrants sanctions. Unpacking this criteria, laws may be either valid or invalid on the basis of their possessing these elements, and where a person has acted in accordance with the law can either be true or false.<br />
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Austin’s project was described as the development or autonomous analytic jurisprudence. In simpler terms, Austin undertook to study legal language and classify logical connections present in the most fundamental of its concepts. From this, Austin was able to infer the limits of the domain of law. Conclusively, Austin found, this domain is limited to the law itself. <br />
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Austin considered three kinds of directives human beings use and interact with. These include utility directives, positive morality, and positive law. Positive law may the simplest of these concepts to understand because it simply means valid law. Positive morality is similar to law, but lacks at least one element that makes law valid. Positive morality concerns social conventions and other forms of rules that people follow voluntarily. Perhaps insubordination to positive morality can create consequences that resemble sanction; distinctively, positive morality is not treated with the same level of seriousness or consequence as is positive law. Finally, utility directives are those that produce the greatest happiness for the greatest number. When Austin uses this principle he does so in every way that Jeremy Bentham did with one major exception. For Austin, the principle of utility can be understood as depicting the will of God. The principle of utility may replace morality in many practical ways for Austin. Austin thinks that it is okay to evaluate positive law based on the principle of utility. However, for Austin, positive law is not made invalid for its not conforming to the principle of utility.<br />
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Austin’s position requires looking at law and morality as two distinct subjects. His description of law removes all metaphysical hypotheses instilled by natural law theorists.<br />
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=== The Pedigree Test ===<br />
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For Austin, law can be either valid or invalid. This largely depends on whether statements of law are issued by a political superior to a political subordinate, and whether the statements are backed by sanctions. Hart, a legal positivist subsequent to Austin, looks the law making process, and specifically whether laws are adopted in accordance with law making procedures and legal jurisdiction. The pedigree test is often referred to as a combination of these ideas. It is applied to a retrospective view of law to establish whether current laws a arise from valid authority. This means that the pedigree test is a historical examination into the adoption of laws that examines continuity to establish validity.<br />
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=== H.L.A. Hart ===<br />
[[File:Hart2-bmp.jpg|thumb|Herbert Hart]]<br />
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Hart is a legal positivist following Austin. His ideas take much from Austin’s position but contain a few subtle nuances. He characterizes laws in two ways. First, he talks about primary laws, which broadly deal with how law attempts to regulate citizen conduct. Primary laws effectively deal with people, and when broken result in the issuing of punishment. Next, Hart deals with secondary laws that regulate how laws are made. Secondary laws are administrative, and when broken have the result of invalidating primary laws. <br />
<br />
Hart’s philosophy of law elaborates on traditional legal positivism. One example of such an elaboration is the rule of recognition. The rule refers to how a legal system justifies laws. Hart asserts that a healthy legal system requires law to be examined by duty bound officials. This is referred to as the rule of recognition. The rule simply refers to the enforcement of analysis of law with secondary laws and jurisdictional considerations necessary to validate their legal authority. Hart believes it essential that a legal system contain dutiful officials whose job it is to challenge invalid law. When this process is actively performed, laws are elevated above a status of mere-commands. For Hart, the utilization of the rule of recognition brings integrity to law. Failing to execute this duty results in moral mistake for officials of a legal system. <br />
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=== Bentham and Raz ===<br />
[[File:Jeremy Bentham by Henry William Pickersgill detail.jpg|thumbnail|right|Jeremy Bentham ]]<br />
<br />
Jeremy Bentham is credited for terming the idea of utilitarianism. The idea holds that policy makers should seeks to create the greatest good for the greatest number. The idea creates a stark contrast to traditionally moralist thinkers like Thomas Aquinas, who would contend that the application of utilitarianism leads to moral pluralism. In other words, Aquinas would contend that moral concessions arise when performing utilitarian analysis of law and public policy. Rule focused moralists, like Aquinas, have generally been referred to as deontologists, and have been categorically placed in opposition to utilitarian thinkers historically. Features of the divide between these two ideologies is present between legal positivism and natural law theorists.<br />
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Bentham views law as man-made. He considers utilitarianism as a tool for analyzing law. Law should strive to bring the greatest good to the greatest number for Bentham. He thinks that morality is a unmanageable system for creating law. <br />
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On the other hand, Raz is a utilitarian. He holds utilitarian principles, and applies them to justifying law. Raz says laws are justified when they serve the public. He provides a modified utilitarian test to analyze whether a law serves the public. Raz asks whether in the absence of a law social betterment would result. If it is found that society is better served by the absence of a particular law, Raz argues it should be abolished. Subtly, Raz presents a position that places value on citizen's right to be free from government. H believes that the government should not interfere into the lives of citizens unless it can improve them. Raz presents law as a coordination of society that enables it to better attain its interests. His position exists within the broader and general aims of utilitarianism and eloquently adds to the positivist project started by Austin.<br />
<br />
=== Constitutionalism ===<br />
Controversy arises for Austin and Hart when applying their ideas to modern constitutionalism, both in England and Canada. The English approach to constitutionalism results in the use of convention as an authority. Convention presents difficulties for these legal positivists. Austin’s characterization of positive morality appears to be meant to include conventions. What he means by convention is the voluntary acceptance of rules, rather than the forced acceptance motivated by the existence of punishment. Perhaps, when unpacking the use of convention applied by the British Parliament, the word holds only semantic value. If so, the question must be asked as to whether failure to follow a constitution of conventions carries sanctions? If the failure to follow the constitution is enforced by the threat of sanctions, than the requirement is met; however, it is more likely that the punishment requirement is not met, and that constitutional conventions are more likely viewed by law makers as goals to be strived for by government rather than commands whose disobedience evokes punishment.<br />
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The problem with the English constitution will suffer similar problems as the Canadian Charter of Rights and Freedoms. The processes familiar to Austin obviously did not include democracy. The idea of the highest political superior being the results of a democratic process likely challenge Austin's political view. The complication in interpreting a strict interpretation of Austin, is determining whether he would frame the democratic approval of the constitution as his greatest concern, or the way it is applied to strike laws. Constitutions, when used to strike law, do not always resemble commands issued by a political superior as much as commands that limit a political superior. This is another form of how the democratic model challenge the basic assertions Austin holds on legal validity.<br />
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For Hart, apart from the problem that he does not contradict Austin on the validity of law, the focus on the Constitution will be historical. Hart's project involves more legal archeology than Austin, and his view of constitutionalism would seek to establish whether the government of the day possessed legitimate authority to enact a constitution. In Canada, this may have been an issue in terms of the pre-existent models that establish political authority.<br />
<br />
== Application to the Case ==<br />
<br />
Chaoulli v. Quebec (Attorney General), concerns the provision of medical care for residents of Quebec. The government argued that a single tier health care plan include an essential feature to government provided medical insurance schemes - that a two tier plan would diminish the quality of health services irreparably. Logical positivists, presented above, would have different views on the insurance legislation seeking to prevent a second tier of insurance being made available. Essentially, the issues for positivists will concern the validity of the two pieces of legislation. Utilitarian thinkers will consider the affects of the legislation.<br />
<br />
===Austin's View ===<br />
Austin's logical positivism is concerned with the political superiority and inferiority of the parties that interact with the legislation. Austin would appreciate how Quebec's health care insurance legislation involves clear penalties. Austin's analysis of the Charter, as discussed above, presents obvious problems with the democratic model, under which both the insurance legislation and Charter were passed. Regardless of these staggering difficulties to appreciate modern democratic processes, a strict application of Austin's principles would hold that the Charter is not a valid law. Austin's application of the pedigree test would find problems with all the laws in this case; however, the Charter's intangible sanctions are likely the greatest hurdle to finding the law valid. <br />
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Austin may appreciate the moral and utilitarian interpretations of both the Charter, and the Quebec Health and Insurance legislation. In matters not directly concerned with legal validity, Austin might think differently about his version of legal positivism given these progressions in politics and law.<br />
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===Hart's View ===<br />
Hart's impression of the issues in this case would involve a similar reflection to that offered by Austin. Hart would be concerned with researching the historical validity and enactment processes involved with each article of legislation. Hart might find that the necessary validity of political processes were lacking in the approval of the Canadian Charter. Despite the acceptance of the Charter by the provinces of Canada, the legal validity of the document can only be confirmed where it is demonstrably justified as valid law. This process would involve the application of secondary laws, and much research.<br />
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Hart may think that the effect of the Quebec health and insurance legislation justify disobedience. Hart is certain to discuss the opinion of law as separate from whether the laws are valid or invalid. This means that his analysis will simply support the law as it is found to be valid by a historical pedigree test.<br />
<br />
===Bentham's View ===<br />
Bentham's concern with the legal issue would differ greatly from Austin and Hart. This is because Bentham's position on legal validity is normative. Unlike natural law theorists, Bentham thinks law should conform to moral outcomes rather than moral actions. Bentham's position on law examines the effects of legislation, and posits that law ought to result in the greatest good for the greatest number.<br />
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Bentham would analyze the Quebec insurance and health care legislation to establish where it results in the greatest good to society. A philosophical tension exists for Bentham and the Charter of Rights and Freedoms in this case. The Charter seeks to protect standards rather than the ability to compromise standards to achieve the greatest good for the greatest number. This feature of the Charter makes it difficult for true utilitarians, like Bentham, to support. This is because Bentham would have less problems with the inhumane treatment of a person, or class of persons, when such treatment can be justified by its resulting in the greatest good for the greatest number. While features in the Charter enable government action that violates these standards, Bentham's focus on outcomes do not include upholding standards.<br />
<br />
Where Austin and Hart treat legislation as a separate system of rules disconnected from social considerations, Bentham asserts that the effect of the law is determinative in its justification. Bentham offers the idea that enjoyment should be calculated and that law should be justified on the basis of whether it achieves the greatest good for the greatest number. Unfortunately, the process is clear and the result is not. The question of whether the Quebec health and insurance legislation achieves the greatest good is anyone's guess. The clear fact that the legislation's preventing a two tier system from being established resulted in the pain and suffering of the appellant, Chaoulli, is presented against an uncertain belief that a two tier system would be more harmful than good. The defence of the legislation is weak in this case. If evidence could show that the greatest good resulted from the legislation, the court's section 1 analysis would have found a rational connection to minimal impairment, and the Quebec legislation would have been saved. Thus, Bentham's principle is echoed by the application of the Charter, and has been adopted as a dynamic Charter value.<br />
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===Raz's View ===<br />
Raz is very similar to Bentham, but provides a utilitarian view from a different angle. Raz asks law markers to measure the value of their laws by considering what would happen if they were removed. His focus is on social outcomes, and he is interested in whether a law is necessary to achieve positive social results. Essentially, Raz's view of the legal issues in this case are the same as Bentham's. The primary distinction between these two theorists is that Raz has a different starting point in this approach.<br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Natural_Law&diff=3393Category:Natural Law2014-03-25T17:40:22Z<p>Fullbrooks13: </p>
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<div><br />
=='''Natural Law'''==<br />
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<br />
<big>Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.</big><br />
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<br />
===Thomas Aquinas===<br />
<br />
[[File:St Thomas Aquinas.jpg|thumbnail|left|St Thomas Aquinas]]<br />
<br />
<big>For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.</big><br />
<br />
===Contemporary Renaissance === <br />
<br />
<big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief.</big> <br />
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<center><br />
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<br><br />
=='''Four Elements of Valid Law'''==<br />
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<big>For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:</big> <br />
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====1. Must be directed to the common good ====<br />
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:<big>When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.</big> <br />
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====2. Must follow practical reason ==== <br />
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:<big>A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.</big> <br />
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====3. Must be made by a valid lawmaker ====<br />
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:<big>For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.</big> <br />
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====4. Must be promulgated ====<br />
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:<big>For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.</big><br />
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=='''Applied to the Case'''==<br />
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===Four Elements of Natural Law ===<br />
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<big>In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.</big> <br />
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===1. Directed at common good===<br />
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:<big>The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
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:The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
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:The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.</big><br />
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===2. Must follow practical reason===<br />
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:<big>Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.</big> <br />
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===3. Must be made by a valid lawmaker ===<br />
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:<big>This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.</big> <br />
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===4. Must be promulgated ===<br />
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:<big>This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.</big> <br />
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<big>Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law.</big><br />
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===The Problem of Unjust law ===<br />
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:<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules.<br />
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:Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big><br />
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==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G&diff=3391Course:Law3020/2014WT1/Group G2014-03-25T17:39:56Z<p>Fullbrooks13: </p>
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<div>[[Category:Natural Law]]<br />
[[Category:Positivism]]<br />
[[Category:Separation Thesis]]<br />
[[Category:System of Rights]]<br />
[[Category:Liberty/Paternalism]]<br />
[[Category:Law as Efficiency: Law and Economics]]<br />
[[Category:Feminist Jurisprudence]]<br />
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<br />
== Case Overview: [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec (Attorney General),[2005<nowiki>]</nowiki> 1 S.C.R. 791, 2005 SCC 35] ==<br />
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[[File:Dr.Chaoulli.jpg|10px|framed|right|Dr.Chaoulli who took action against Quebec for Charter infringements in relation to Health Care and Hospital wait times]]<br />
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=== Facts ===<br />
<big><br />
In Quebec in 2005 the provincial government was prohibiting Quebec residents from taking out insurance to obtain private sector health care services through regulations in the Quebec Health Insurance Act and the Hospital Insurance Act. Zeliotis [explain who he is] was experiencing a number of health problems that lead him to speak out against the waiting times he was experiencing in the public health care system in Quebec. A physician, Chaoulli, had also been attempting to have his home-delivered medical activities recognized, as well as to obtain a license to operate an independent hospital in his city, both of which were considered private medical care.<br />
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Both Zeliotis and Chaoulli took issue with the validity of the prohibition on private health insurance: s.15 of the '' Health Insurance Act (HEIA)'' and s.11 of the '' Hospital Insurance Act (HOIA)'' . They claimed that these prohibitions deprived Quebec citizens of access to health care services that did not come with the extraneous waiting times that existed in the public system.<br />
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[[File:George Zeliotis suffered from extraneous wait times in order to get the health care that he needed.jpg|thumb|George Zeliotis suffered from extraneous wait times in order to get the health care that he needed]]<br />
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=== Issue(s) === <br />
<big><br />
The main question at hand in [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] was whether Quebec had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through specific prohibitions, and whether these prohibitions infringed a person's section 7 right from the ''[http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms]''?<br />
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If so, was this deprivation of a person's section 7 Charter right in accordance with the principles of fundamental justice?<br />
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== Provisions in question ==<br />
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==== Section 15 of the '' [http://www.canlii.org/en/qc/laws/stat/cqlr-c-a-29/latest/cqlr-c-a-29.html Health Insurance Act] '' ====<br />
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15. An insurer or a person administering an employee benefit plan may enter into or maintain an insurance contract, or establish or maintain an employee benefit plan, as the case may be, that includes coverage for the cost of an insured service furnished to a resident or temporary resident of Québec, only if<br />
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:(1) the insurance contract or employee benefit plan does not cover any insured service other than the insured services required for a total hip or knee replacement, a cataract extraction and intraocular lens implantation or any other specialized medical treatment determined under section 15.1, and those required for the provision of the preoperative, postoperative, rehabilitation and home care support services described in section 333.6 of the Act respecting health services and social services (chapter S-4.2);<br />
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:(2) the insurance contract or employee benefit plan includes coverage for the cost of all insured services and all preoperative, postoperative, rehabilitation and home care support services referred to in subparagraph 1, subject to any applicable deductible amount; and<br />
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:(3) the coverage applies only to surgery performed or any other specialized medical treatment provided in a specialized medical centre described in subparagraph 2 of the first paragraph of section 333.3 of the Act respecting health services and social services.<br />
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:An insurance contract or employee benefit plan inconsistent with subparagraph 1 of the first paragraph that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract or plan must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
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:Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment from being entered into or established. Nor does anything in this section prevent an insurance contract or an employee benefit plan that covers the contribution payable by an insured person under the Act respecting prescription drug insurance (chapter A-29.01) from being entered into or established.<br />
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:“Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
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:“Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
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:An insurer or a person administering an employee benefit plan that contravenes the first paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
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==== Section 11 of the ''[http://www.canlii.org/en/qc/laws/stat/rsq-c-a-28/latest/rsq-c-a-28.html Hospital Insurance Act]'' ====<br />
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11. No insurer may enter into or maintain an insurance contract that includes coverage for the cost of an insured service furnished to a resident.<br />
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: No person may establish or maintain an employee benefit plan that includes coverage for the cost of an insured service furnished to a resident.<br />
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: An insurance contract or employee benefit plan inconsistent with the first or the second paragraph, as the case may be, that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
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: Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec from being entered into or established.<br />
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: “Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
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: “Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
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: An insurer or a person administering an employee benefit plan that contravenes the first or second paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
</big><br />
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=== Analysis ===<br />
<big>The court found that delays which are the necessary result of waiting lists increase a patient's risk of mortality or the possibility of their injury/condition becoming much worse. This waiting period is often filled with pain and a lack of enjoyment of patients life, due to their urgent need for medical treatment. These waiting times causing pain and lack of enjoyment of life affect the right to life and to personal inviolability [?]. The court found that this was a clear violation of an individual's section 7 ''Canadian Charter'' right[http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do].<br />
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When a ''Charter'' right is infringed upon, the provision that infringes upon the right can sometimes be protected under s.1. [can you lay out the steps of the Oakes test?] The objective of the ''HOIA'' and the ''HEIA'' is to promote health care in Quebec that is of high quality even if the citizen lacks the adequate funds. Therefore, the purpose of the provisions being examined are to prohibit private insurance in order to preserve the integrity of the public health care system in Quebec. There is no proportionality between the measure adopted to attain the objective and the objective itself.<br />
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In order to be justified under s.1 of the ''Charter'' there must be a rational connection and minimal impairment [these are two separate steps of the Oakes test], but there is no rational connection with the objective or preserving the public plan, as well Quebec was not able to prove that there was minimal impairment by the provisions being examined.<br />
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Hence, the evidence presented to the courts showed that delays in public health care were widespread, and in some cases had serious consequences, such as death, as patients wait for proper medical attention. This evidence showed that the prohibition against private health care insurance/systems could lead to physical and psychological suffering, which meets the threshold test of seriousness.[what threshold test?][http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do]<br />
</big><br />
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=== Conclusion/Holding === <br />
<big>According to the [http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do Supreme Court of Canada] the appeal should be allowed. The Court decided that section 15 of the ''HEIA'' and section 11 of the ''HOIA'' are inconsistent with the Quebec ''Charter''.<br />
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In order to learn about about how each of these theories can be applied to the case at hand, click the categories below.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Liberty/Paternalism&diff=3384Category:Liberty/Paternalism2014-03-25T17:35:10Z<p>Fullbrooks13: </p>
<hr />
<div><br />
== '''Liberty - Paternalism''' ==<br />
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[[File:JohnStuartMill.jpg|thumbnail|right|John Stuart Mill]]<br />
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=== '''Liberalism''' ===<br />
<big> <br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings).<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> <br />
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In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
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Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty.<br />
</big><br />
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== '''Application of Liberalism to the Case''' == <br />
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==== Tyranny of the Majority ==== <br />
<big><br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14). Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
</big><br />
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=== Harm Principle ===<br />
<big><br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
</big><br />
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=='''Paternalism''' ==<br />
<br />
[[File:GeraldDworkin.jpeg|thumbnail|left|Professor Gerald Dworkin]]<br />
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<big><br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
</big><br />
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<br><br />
== Application of Paternalism to the Case ==<br />
<big><br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Category:Liberty/Paternalism&diff=3382Category:Liberty/Paternalism2014-03-25T17:33:12Z<p>Fullbrooks13: </p>
<hr />
<div><br />
== '''Liberty - Paternalism''' ==<br />
<br />
[[File:JohnStuartMill.jpg|thumbnail|right|John Stuart Mill]]<br />
<br />
=== '''Liberalism''' ===<br />
<big> <br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings). <br />
<br />
<br />
In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty.<br />
</big><br />
<br />
== '''Application of Liberalism to the Case''' == <br />
<br />
==== Tyranny of the Majority ==== <br />
<big><br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14). Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
</big><br />
<br />
=== Harm Principle ===<br />
<big><br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
</big><br />
<br />
<br />
=='''Paternalism''' ==<br />
<br />
[[File:GeraldDworkin.jpeg|thumbnail|left|Professor Gerald Dworkin]]<br />
<br />
<big><br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
</big><br />
<br><br />
<br><br />
<br><br />
<br><br />
<br><br />
== Application of Paternalism to the Case ==<br />
<big><br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.<br />
</big><br />
<br />
==References==<br />
{{Reflist}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G&diff=2712Course:Law3020/2014WT1/Group G2014-03-24T01:09:59Z<p>Fullbrooks13: </p>
<hr />
<div>[[Category:Natural Law]]<br />
[[Category:Positivism]]<br />
[[Category:Separation Thesis]]<br />
[[Category:System of Rights]]<br />
[[Category:Liberty/Paternalism]]<br />
[[Category:Law as Efficiency: Law and Economics]]<br />
[[Category:Feminist Jurisprudence]]<br />
<br />
<br />
== Case Overview: Chaoulli v. Quebec (Attorney General),[2005] 1 S.C.R. 791, 2005 SCC 35 ==<br />
<br />
[[File:Dr.Chaoulli.jpg|10px|framed|right|Dr.Chaoulli who took action against Quebec for Charter infringements in relation to Health Care and Hospital wait times]]<br />
<br />
=== Facts ===<br />
<code><br />
In Quebec in 2005 the provincial government was prohibiting Quebec residents from taking out insurance to obtain private sector health care services through regulations in the Quebec Health Insurance Act and the Hospital Insurance Act. Zeliotis [explain who he is] was experiencing a number of health problems that lead him to speak out against the waiting times he was experiencing in the public health care system in Quebec. A physician, Chaoulli, had also been attempting to have his home-delivered medical activities recognized, as well as to obtain a license to operate an independent hospital in his city, both of which were considered private medical care.<br />
<br />
Both Zeliotis and Chaoulli took issue with the validity of the prohibition on private health insurance: s.15 of the '' Health Insurance Act (HEIA)'' and s.11 of the '' Hospital Insurance Act (HOIA)'' . They claimed that these prohibitions deprived Quebec citizens of access to health care services that did not come with the extraneous waiting times that existed in the public system.<br />
<br />
<br />
<br />
[[File:George Zeliotis suffered from extraneous wait times in order to get the health care that he needed.jpg|thumb|George Zeliotis suffered from extraneous wait times in order to get the health care that he needed]]<br />
<br />
<br />
=== Issue(s) === <br />
The main question at hand in this case was whether Quebec had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through specific prohibitions, and whether these prohibitions infringed a person's section 7 right from the Canadian Charter of Rights and Freedoms?<br />
<br />
If so, was this deprivation of a person's section 7 Charter right in accordance with the principles of fundamental justice?<br />
<br />
From the case*** cite<br />
<br />
<br />
<br />
=== Provisions in question ===<br />
<br />
==== s.15 of the '' Health Insurance Act '' ====<br />
<br />
15. An insurer or a person administering an employee benefit plan may enter into or maintain an insurance contract, or establish or maintain an employee benefit plan, as the case may be, that includes coverage for the cost of an insured service furnished to a resident or temporary resident of Québec, only if<br />
<br />
:(1) the insurance contract or employee benefit plan does not cover any insured service other than the insured services required for a total hip or knee replacement, a cataract extraction and intraocular lens implantation or any other specialized medical treatment determined under section 15.1, and those required for the provision of the preoperative, postoperative, rehabilitation and home care support services described in section 333.6 of the Act respecting health services and social services (chapter S-4.2);<br />
<br />
:(2) the insurance contract or employee benefit plan includes coverage for the cost of all insured services and all preoperative, postoperative, rehabilitation and home care support services referred to in subparagraph 1, subject to any applicable deductible amount; and<br />
<br />
:(3) the coverage applies only to surgery performed or any other specialized medical treatment provided in a specialized medical centre described in subparagraph 2 of the first paragraph of section 333.3 of the Act respecting health services and social services.<br />
<br />
<br />
:An insurance contract or employee benefit plan inconsistent with subparagraph 1 of the first paragraph that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract or plan must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
:Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment from being entered into or established. Nor does anything in this section prevent an insurance contract or an employee benefit plan that covers the contribution payable by an insured person under the Act respecting prescription drug insurance (chapter A-29.01) from being entered into or established.<br />
<br />
:“Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
:“Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
<br />
:An insurer or a person administering an employee benefit plan that contravenes the first paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
<br />
Source: http://www.canlii.org/en/qc/laws/stat/cqlr-c-a-29/latest/cqlr-c-a-29.html<br />
<br />
<br />
<br />
==== Section 11 of the Hospital Insurance Act ====<br />
<br />
11. No insurer may enter into or maintain an insurance contract that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
: No person may establish or maintain an employee benefit plan that includes coverage for the cost of an insured service furnished to a resident.<br />
<br />
: An insurance contract or employee benefit plan inconsistent with the first or the second paragraph, as the case may be, that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.<br />
<br />
: Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec from being entered into or established.<br />
<br />
<br />
: “Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.<br />
<br />
<br />
: “Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.<br />
<br />
: An insurer or a person administering an employee benefit plan that contravenes the first or second paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.<br />
<br />
Source: http://www.canlii.org/en/qc/laws/stat/rsq-c-a-28/latest/rsq-c-a-28.html<br />
<br />
<br />
<br />
=== Analysis ===<br />
The court found that delays which are the necessary result of waiting lists increase a patient's risk of mortality or the possibility of their injury/condition becoming much worse. This waiting period is often filled with pain and a lack of enjoyment of patients life, due to their urgent need for medical treatment. These waiting times causing pain and lack of enjoyment of life affect the right to life and to personal inviolability [?]. The court found that this was a clear violation of an individual's section 7 Canadian Charter right.<br />
<br />
[38-43]<br />
<br />
When a Charter right is infringed upon, the provision that infringes upon the right can sometimes be protected under s.1. [can you lay out the steps of the Oakes test?] The objective of the HOIA and the HEIA is to promote health care in Quebec that is of high quality even if the citizen lacks the adequate funds. Therefore, the purpose of the provisions being examined are to prohibit private insurance in order to preserve the integrity of the public health care system in Quebec. There is no proportionality between the measure adopted to attain the objective and the objective itself.<br />
<br />
In order to be justified under s.1 of the Charter there must be a rational connection and minimal impairment [these are two separate steps of the Oakes test], but there is no rational connection with the objective or preserving the public plan, as well Quebec was not able to prove that there was minimal impairment by the provisions being examined.<br />
<br />
Hence, the evidence presented to the courts showed that delays in public health care were widespread, and in some cases had serious consequences, such as death, as patients wait for proper medical attention. This evidence showed that the prohibition against private health care insurance/systems could lead to physical and psychological suffering, which meets the threshold test of seriousness.[what threshold test?] [112][123]<br />
<br />
<br />
<br />
=== Conclusion/Holding === <br />
According to the Supreme Court of Canada the appeal should be allowed. The Court decided that s.15 of the HEIA and s.11 of the HOIA are inconsistent with the Quebec Charter.<br />
<br />
<br />
In order to learn about about how each of these theories can be applied to the case at hand, click the categories below.<br />
</code></div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=2282Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-19T18:14:39Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=== Liberalism ===<br />
<br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings). In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
=== Application of Liberalism to the Case === <br />
<br />
==== Tyranny of the Majority ==== <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14). Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
=== Harm Principle ===<br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
=== Paternalism === <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
==== Application of Paternalism to the Case ====<br />
<br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=2281Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-19T18:13:06Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=== Liberalism ===<br />
<br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings). In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306)<ref>Classic Readings and Canadian Cases in Philosophy of Law</ref>. As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
=== Application of Liberalism to the Case === <br />
<br />
==== Tyranny of the Majority ==== <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14). Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
=== Harm Principle ===<br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
=== Paternalism === <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
==== Application of Paternalism to the Case ====<br />
<br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=2280Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-19T18:12:10Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=== Liberalism ===<br />
<br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings). In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
=== Application of Liberalism to the Case === <br />
<br />
==== Tyranny of the Majority ==== <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. [http://en.wikipedia.org/wiki/Marie_Deschamps Justice Deschamps] states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14). Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
=== Harm Principle ===<br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
=== Paternalism === <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
==== Application of Paternalism to the Case ====<br />
<br />
In Chaoulli v. Quebec the court didn’t find convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism, solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=2278Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-19T18:07:54Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=== Liberalism ===<br />
<br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings). In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty ''On Liberty''], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
=== Application of Liberalism to the Case === <br />
<br />
==== Tyranny of the Majority ==== <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. Justice Deschamps states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system” (R v. Chaoulli para 14) Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. ''On Liberty'' discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
=== Harm Principle ===<br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
=== Paternalism === <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
==== Application of Paternalism to the Case ====<br />
<br />
In Chaoulli v. Quebec the court didn’t see absolutely convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=2277Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-19T18:06:01Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=== Liberalism ===<br />
<br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg 306 Classic Readings). In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty On Liberty], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg 306). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
=== Application of Liberalism to the Case === <br />
<br />
==== Tyranny of the Majority ==== <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. Justice Deschamps states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system.” Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. On Liberty discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
=== Harm Principle ===<br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (R v. Chaoulli para 37). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
=== Paternalism === <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
==== Application of Paternalism to the Case ====<br />
<br />
In Chaoulli v. Quebec the court didn’t see absolutely convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=2274Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-19T17:49:10Z<p>Fullbrooks13: </p>
<hr />
<div><br />
=== Liberalism ===<br />
<br />
Unlike natural law and positive law, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill], a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg #). In his now famous book, [http://en.wikipedia.org/wiki/On_Liberty On Liberty], Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg#). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
=== Application of Liberalism to the Case === <br />
<br />
==== Tyranny of the Majority ==== <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. Justice Deschamps states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system.” Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. On Liberty discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
=== Harm Principle ===<br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (citation). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
=== Paternalism === <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin’s] theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
==== Application of Paternalism to the Case ====<br />
<br />
In Chaoulli v. Quebec the court didn’t see absolutely convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=1937Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-11T18:55:09Z<p>Fullbrooks13: </p>
<hr />
<div><br />
Liberalism<br />
<br />
Unlike natural law, positive law and TK, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. John Stuart Mill, a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg #). In his now famous book, On Liberty, Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg#). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
<br />
Application of Liberalism to the Case <br />
<br />
Tyranny of the Majority <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. Justice Deschamps states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system.” Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. On Liberty discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
<br />
Harm Principle <br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (citation). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
<br />
Paternalism <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). Dworkin’s theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
<br />
Application of Paternalism to the Case <br />
<br />
In Chaoulli v. Quebec the court didn’t see absolutely convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=1936Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-11T18:54:43Z<p>Fullbrooks13: </p>
<hr />
<div><br />
Liberalism<br />
<br />
Unlike natural law, positive law and TK, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. John Stuart Mill, a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg #). In his now famous book, On Liberty, Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg#). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
Application of Liberalism to the Case <br />
<br />
Tyranny of the Majority <br />
<br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. Justice Deschamps states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system.” Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. On Liberty discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
Harm Principle <br />
<br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (citation). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
Paternalism <br />
<br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). Dworkin’s theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
Application of Paternalism to the Case <br />
<br />
In Chaoulli v. Quebec the court didn’t see absolutely convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Liberty-Paternalism&diff=1935Course:Law3020/2014WT1/Group G/Liberty-Paternalism2014-03-11T18:53:40Z<p>Fullbrooks13: </p>
<hr />
<div><br />
Liberalism <br />
Unlike natural law, positive law and TK, Liberalism is not concerned with whether or not morality is required for a law to be valid. Instead, it examines laws that work to enforce morality by limiting individual liberty. Liberalism looks at four theories which outline the circumstances under which liberty can be restricted: the harm principle, paternalism, legal moralism and the offence principle. John Stuart Mill, a prominent legal theorist and advocate for liberalism, puts a great deal of importance on individual liberty, and believes it should only be restricted when absolutely necessary. He believes in the harm principle which states that society can restrict liberty only if it is required to prevent harm against other members of society (pg #). In his now famous book, On Liberty, Mill outlines why he believes this to be the case. Because Mill believes that liberty is of the upmost importance, he states that it should never be restricted without just cause. The harm theory is based on the idea that liberty can only be restricted if it is necessary to prevent people from harming other members of society. To Mill, this is the only way liberty can be validly limited. Alternatively, paternalism prevents individuals from causing harm to themselves. To Mill this is a wholly invalid infringement on liberty, and should not be allowed in a free and democratic society. <br />
<br />
Mill, however, does not believe in equal liberty for all. Children are exempted from this, and Mill believes that society should exercise complete control of children (pg#). As they are not capable of full-formed opinions, they must be guided by strict societal rules. It is during childhood, says Mill, that society has the opportunity to form its members and instill moral and social values in them. After childhood, this opportunity no longer exists because forcing moralities on adults in unjustified an infringement of their liberty. <br />
<br />
Application of Liberalism to the Case <br />
Chaoulli v. Quebec deals directly with the question of when and how individual liberty should be limited—something that Liberalism is directly concerned with. <br />
<br />
Tyranny of the Majority <br />
The central question that the Supreme Court looks at in this case is whether or not society’s interest are served by the HEIA prohibitions on private health care in Quebec. Justice Deschamps states that the court must look at whether or not the prohibitions set out in the HEIA are “justified by the need to preserve the integrity of the public system.” Mill would be wary of this question immediately; the only thing he would be concerned about whether or not people are harmed by the HEIA, not whether or not it preserves the public health care system. On Liberty discusses the power of the tyranny of the majority, and how it can work to infringe individual choice and put the good of the majority above personal liberty. To Mill this is should not be allowed, as individual liberty must come before all else (unless that liberty would result in direct harm to others). Under the harm principle, simply stating that the HEIA regulations serve society best would not be a valid reason to limit the freedom of private health care. <br />
<br />
Harm Principle <br />
The impugned HEIA regulations that the court is addressing would clearly be of concern to Mill as they are a prima facie infringement on personal liberty. This would immediately raise red flags for Mill, and in order to sustain these rules Mill would require that they be necessary in order to prevent harm to others. The evidence that they did in fact directly prevent harm to others was very thin, and in fact Justice Deschamps found that they actually caused harm. Deschamps found that restricting Quebec to a one-tier health care system resulted in longer wait times which in some cases caused unnecessary deaths (citation). This finding would make it immediately clear that, based on the harm principle, the HEIA prohibitions cannot be sustained—not only do they fail the harm principle test, but they actually create more harm than would come from having no regulations at all. As Mill is always in favour of less governmental power and restrictions on liberty, he would agree with the court’s decision to strike down the impugned HEIA regulations. <br />
<br />
Paternalism <br />
Paternalism takes a very different approach than the harm principle does in examining when liberty is validly infringed. A paternalist would find that infringement is valid if is required to prevent citizens from doing harm to themselves. This is a much greater infringement than would be allowed under Mill’s iteration of the harm principle. For example, prohibitions on dangerous drugs would be allowed under a paternalistic approach, while the harm theory would only allow such prohibitions if dangerous drug use could be proven to cause harm to others (not just harm to the user). Dworkin’s theory of paternalism puts much more emphasis on potential incidental affects that come from negative actions, and thinks that where these exist it may be reasonable to limit liberty. <br />
<br />
Application to the Case <br />
In Chaoulli v. Quebec the court didn’t see absolutely convincing evidence that limiting the medical system to one-tier and eliminating private health care prevents harm to the citizens of Quebec. Under liberalism solid evidence would be required to limit liberty in this way, while paternalism is much more flexible and puts less weight on individual liberty than liberalism does. Under a paternalistic approach, the Supreme Court could have found that inferences which suggest the HEIA regulations prevent harm to Quebec citizens would be enough to sustain them. The court, however, did not come to this finding and looked at the case in a way that is more akin to how Mill would examine it than the way Dworkin would.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1158Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T19:27:39Z<p>Fullbrooks13: </p>
<hr />
<div>[[File:St Thomas Aquinas.jpg|thumb|St Thomas Aquinas]]<br />
=='''Natural Law'''==<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
=='''Thomas Aquinas'''==<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
=='''Contemporary Renaissance'''== <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
<br />
=='''Four Elements of Valid Law'''==<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
<br />
===1. Must be directed to the common good===<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
===2. Must follow practical reason=== <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
===3. Must be made by a valid lawmaker ===<br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
===4. Must be promulgated===<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
=='''Four Elements of Natural Law'''==<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
===1. Directed at common good===<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
===2. Must follow practical reason===<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
===3. Must be made by a valid lawmaker===<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
===4. Must be promulgated===<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
=='''The Problem of Unjust law'''==<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1156Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T19:27:04Z<p>Fullbrooks13: </p>
<hr />
<div>[[File:St Thomas Aquinas.jpg|thumb|St Thomas Aquinas]]<br />
=='''Natural Law'''==<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
=='''Thomas Aquinas'''==<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
=='''Contemporary Renaissance'''== <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
[[File:Http://kumu.tru.ca/images/8/80/Charter image.jpg|thumbnail|Canadian Charter of Rights and Freedoms]]<br />
<br />
<br />
<br />
=='''Four Elements of Valid Law'''==<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
<br />
===1. Must be directed to the common good===<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
===2. Must follow practical reason=== <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
===3. Must be made by a valid lawmaker ===<br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
===4. Must be promulgated===<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
=='''Four Elements of Natural Law'''==<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
===1. Directed at common good===<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
===2. Must follow practical reason===<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
===3. Must be made by a valid lawmaker===<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
===4. Must be promulgated===<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
=='''The Problem of Unjust law'''==<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1146Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T19:19:03Z<p>Fullbrooks13: </p>
<hr />
<div>[[File:St Thomas Aquinas.jpg|thumb|St Thomas Aquinas]]<br />
=='''Natural Law'''==<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
=='''Thomas Aquinas'''==<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
=='''Contemporary Renaissance'''== <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
=='''Four Elements of Valid Law'''==<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
<br />
===1. Must be directed to the common good===<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
===2. Must follow practical reason=== <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
===3. Must be made by a valid lawmaker ===<br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
===4. Must be promulgated===<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
=='''Four Elements of Natural Law'''==<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
===1. Directed at common good===<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
===2. Must follow practical reason===<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
===3. Must be made by a valid lawmaker===<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
===4. Must be promulgated===<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
=='''The Problem of Unjust law'''==<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1144Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T19:18:30Z<p>Fullbrooks13: </p>
<hr />
<div>[[File:St Thomas Aquinas.jpg|thumb|St Thomas Aquinas]]<br />
=='''Natural Law'''==<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
=='''Thomas Aquinas'''==<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
=='''Contemporary Renaissance'''== <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
=='''Four Elements of Valid Law'''==<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
<br />
===1. Must be directed to the common good===<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
===2. Must follow practical reason=== <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
===. Must be made by a valid lawmaker ===<br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
===4. Must be promulgated===<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
=='''Four Elements of Natural Law'''==<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
===1. Directed at common good===<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
===2. Must follow practical reason===<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
===3. Must be made by a valid lawmaker===<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
===4. Must be promulgated===<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
=='''The Problem of Unjust law'''==<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1142Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T19:17:46Z<p>Fullbrooks13: </p>
<hr />
<div>[[File:St Thomas Aquinas.jpg|thumb|St Thomas Aquinas]]<br />
=='''Natural Law'''==<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
=='''Thomas Aquinas'''==<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
=='''Contemporary Renaissance'''== <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
[[File:Http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A 28/A28 A.html|thumbnail|Canadian Charter of Rights and Freedoms]]<br />
<br />
=='''Four Elements of Valid Law'''==<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
<br />
===1. Must be directed to the common good===<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
===2. Must follow practical reason=== <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
===. Must be made by a valid lawmaker ===<br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
===4. Must be promulgated===<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
=='''Applied to the Case'''==<br />
<br />
<br />
=='''Four Elements of Natural Law'''==<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
===1. Directed at common good===<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
===2. Must follow practical reason===<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
===3. Must be made by a valid lawmaker===<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
===4. Must be promulgated===<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
=='''The Problem of Unjust law'''==<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=File:Charter_image.jpg&diff=1139File:Charter image.jpg2014-02-07T19:16:22Z<p>Fullbrooks13: User created page with UploadWizard</p>
<hr />
<div>=={{int:filedesc}}==<br />
{{Information<br />
|description={{en|1=Canadian Charter of Rights and Freedoms}}<br />
|date=2014-02-07 11:14:45<br />
|source=Government of Canada<br />
|author=Government of Canada<br />
|permission=<br />
|other_versions=<br />
|other_fields=<br />
}}<br />
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=={{int:license-header}}==<br />
{{subst:uwl}}</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1114Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:45:55Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
'''Thomas Aquinas'''<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
<br />
1. Must be directed to the common good<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
2. Must follow practical reason <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
3. Must be made by a valid lawmaker <br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
4. Must be promulgated<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
'''Applied to the Case'''<br />
<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
1. Directed at common good<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
2. Must follow practical reason<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
3. Must be made by a valid lawmaker<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
4. Must be promulgated<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1112Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:44:49Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
'''Thomas Aquinas'''<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
2. Must follow practical reason <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
3. Must be made by a valid lawmaker <br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
4. Must be promulgated<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
'''Applied to the Case'''<br />
<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
1. Directed at common good<br />
<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
2. Must follow practical reason<br />
<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
3. Must be made by a valid lawmaker<br />
<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
4. Must be promulgated<br />
<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1110Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:44:13Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
'''Thomas Aquinas'''<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
<br />
2. Must follow practical reason <br />
<br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
<br />
3. Must be made by a valid lawmaker <br />
<br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
<br />
4. Must be promulgated<br />
<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
'''Applied to the Case'''<br />
<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
1. Directed at common good<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
2. Must follow practical reason<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
3. Must be made by a valid lawmaker<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
4. Must be promulgated<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1109Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:42:38Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
'''Thomas Aquinas'''<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
2. Must follow practical reason <br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
3. Must be made by a valid lawmaker <br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
4. Must be promulgated<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
'''Applied to the Case'''<br />
<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
<br />
1. Directed at common good<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
<br />
2. Must follow practical reason<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
<br />
3. Must be made by a valid lawmaker<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
<br />
4. Must be promulgated<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1103Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:37:11Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
'''Thomas Aquinas'''<br />
<br />
For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
2. Must follow practical reason <br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
3. Must be made by a valid lawmaker <br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
4. Must be promulgated<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
'''Applied to the Case'''<br />
<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
1. Directed at common good<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
2. Must follow practical reason<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
3. Must be made by a valid lawmaker<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
4. Must be promulgated<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1101Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:27:35Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
<br />
'''Thomas Aquinas'''<br />
<br />
For Thomas Aquinas, a TK century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the Canadian Charter of Rights and Freedoms through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
2. Must follow practical reason <br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
3. Must be made by a valid lawmaker <br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
4. Must be promulgated<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
<br />
'''Applied to the Case'''<br />
<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In Chaoulli v. Quebec the law in question was one forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
1. Directed at common good<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
2. Must follow practical reason<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
3. Must be made by a valid lawmaker<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
4. Must be promulgated<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1100Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:26:56Z<p>Fullbrooks13: </p>
<hr />
<div>'''Natural Law'''<br />
<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
'''Thomas Aquinas'''<br />
<br />
For Thomas Aquinas, a TK century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
'''Contemporary Renaissance''' <br />
<br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the Canadian Charter of Rights and Freedoms through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
'''Four Elements of Valid Law'''<br />
<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
2. Must follow practical reason <br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
3. Must be made by a valid lawmaker <br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
4. Must be promulgated<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
'''Applied to the Case'''<br />
<br />
'''Four Elements of Natural Law'''<br />
<br />
In Chaoulli v. Quebec the law in question was one forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
1. Directed at common good<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
2. Must follow practical reason<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
3. Must be made by a valid lawmaker<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
4. Must be promulgated<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
'''The Problem of Unjust law'''<br />
<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_G/Natural_Law&diff=1099Course:Law3020/2014WT1/Group G/Natural Law2014-02-07T18:25:52Z<p>Fullbrooks13: Created page with "'''Natural Law''' Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily co..."</p>
<hr />
<div>'''Natural Law'''<br />
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. <br />
<br />
'''Thomas Aquinas'''<br />
For Thomas Aquinas, a TK century friar and priest and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is impervious to changes, while natural law is what becomes of eternal law after filtering through the human mind. <br />
<br />
'''Contemporary Renaissance''' <br />
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the Canadian Charter of Rights and Freedoms through the existence of fundamental freedoms such as freedom of thought and belief. <br />
<br />
'''Four Elements of Valid Law'''<br />
For a law to be considered valid under natural legal theory it follow four elements: <br />
1. Must be directed to the common good<br />
When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. <br />
2. Must follow practical reason <br />
A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. <br />
3. Must be made by a valid lawmaker <br />
For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. <br />
4. Must be promulgated<br />
For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. <br />
<br />
'''Applied to the Case'''<br />
<br />
'''Four Elements of Natural Law'''<br />
In Chaoulli v. Quebec the law in question was one forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. <br />
1. Directed at common good<br />
The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42). <br />
The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. <br />
The government claims that the HEIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. <br />
2. Must follow practical reason<br />
Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. <br />
3. Must be made by a valid lawmaker<br />
This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. <br />
4. Must be promulgated<br />
This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. <br />
<br />
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law. <br />
<br />
'''The Problem of Unjust law'''<br />
One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. <br />
Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</div>Fullbrooks13