https://kumu.tru.ca/api.php?action=feedcontributions&user=Marshs132&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-29T14:05:18ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N&diff=4912Course:Law3020/2014WT1/Group N2014-03-27T20:13:33Z<p>Marshs132: </p>
<hr />
<div>=== <big><big>'''''B(R) v Children’s Aid Society of Metropolitan Toronto'', [1995] 1 SCR 315<br />
'''</big></big> ===<br />
[[File:Supreme Court of Canada.jpg|thumb|Supreme Court of Canada]]<br />
<br />
<br />
'''Facts''':<br />
S.B. was born four weeks prematurely; she had several medical problems, which her parents consented to the treatments for. However, when it was suspected that S.B might have life-threatening congestive heart failure, the treatment of which would require a blood transfusion the parents did not consent as they are Jehovah’s Witnesses. The Provincial Court (family division) granted the respondent Children’s Aid Society a 72-hour wardship, which was extended to 21 days. During exploratory surgery S.B underwent a blood transfusion. A second Provincial Court order terminated the respondent’s wardship. <br />
Appellants appealed both orders to the District Court, dismissed the appeal and awarded costs to the Attorney General of Ontario. Court of Appeal dismissed the appellants appeal and cross-appeal from Attorney on the issue of costs. <br />
<br />
<br />
'''Issue''':<br />
Whether s.19(1)(b)(ix) of the Ontario Child Welfare Act which defines “ child in need of protection”, together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Charter, or infringe the appellants’ freedom of religion as guaranteed under s.2(a) of the Charter, and it so, whether the infringement is justifiable under s.1 of the Charter. <br />
<br />
Cross-appeal – whether the District Court erred in awarding costs against the Attorney General of Ontario. <br />
<br />
<br />
'''Decision''':<br />
Held, the appeal and cross-appeal should be dismissed.<br />
<br />
<br />
'''Legal Perspectives:'''<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence]]</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N&diff=4910Course:Law3020/2014WT1/Group N2014-03-27T20:12:38Z<p>Marshs132: </p>
<hr />
<div>=== <big><big>'''''B(R) v Children’s Aid Society of Metropolitan Toronto'', [1995] 1 SCR 315<br />
'''</big></big> ===<br />
[[File:Supreme Court of Canada.jpg|thumb|Supreme Court of Canada]]<br />
<br />
<br />
'''Facts''':<br />
S.B. was born four weeks prematurely; she had several medical problems, which her parents consented to the treatments for. However, when it was suspected that S.B might have life-threatening congestive heart failure, the treatment of which would require a blood transfusion the parents did not consent as they are Jehovah’s Witnesses. The Provincial Court (family division) granted the respondent Children’s Aid Society a 72-hour wardship, which was extended to 21 days. During exploratory surgery S.B underwent a blood transfusion. A second Provincial Court order terminated the respondent’s wardship. <br />
Appellants appealed both orders to the District Court, dismissed the appeal and awarded costs to the Attorney General of Ontario. Court of Appeal dismissed the appellants appeal and cross-appeal from Attorney on the issue of costs. <br />
<br />
<br />
'''Issue''':<br />
Whether s.19(1)(b)(ix) of the Ontario Child Welfare Act which defines “ child in need of protection”, together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Charter, or infringe the appellants’ freedom of religion as guaranteed under s.2(a) of the Charter, and it so, whether the infringement is justifiable under s.1 of the Charter. <br />
<br />
Cross-appeal – whether the District Court erred in awarding costs against the Attorney General of Ontario. <br />
<br />
<br />
'''Decision''':<br />
Held, the appeal and cross-appeal should be dismissed.<br />
<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence]]</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/System_Of_Rights&diff=4902Course:Law3020/2014WT1/Group N/System Of Rights2014-03-27T20:06:46Z<p>Marshs132: </p>
<hr />
<div>== <big><big><big>Legal Positivism as a System of Rights</big></big></big> ==<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumb|Ronald Dworkin]]<br />
<br />
'''The Theory: '''<br />
<br />
Dworkin rejects propositions of the positivist's position that law contains only rules. Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
[[File:Webmaschine in Tirolervolkskunstmuseum.JPG|thumb|left|A Loom]] Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/System_Of_Rights&diff=4893Course:Law3020/2014WT1/Group N/System Of Rights2014-03-27T20:00:34Z<p>Marshs132: </p>
<hr />
<div>== <big><big><big>Legal Positivism as a System of Rights</big></big></big> ==<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumb|Ronald Dworkin]]<br />
<br />
'''The Theory: '''<br />
<br />
Dworkin rejects propositions of the positivist's position that law contains only rules. Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
[[File:Webmaschine in Tirolervolkskunstmuseum.JPG|thumb|left]] Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Separation_Thesis&diff=4889Course:Law3020/2014WT1/Group N/Separation Thesis2014-03-27T19:49:37Z<p>Marshs132: </p>
<hr />
<div>==<big><big><big>Legal Separation Thesis and the Morality of Law</big></big></big>==<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart- Separation Thesis </big></big><br />
<br />
[[File:H.L. Hart.JPG|thumb||right]]<br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
[[File:Eclipse667.jpg|thumb|left| The penumbra is like an eclipse. The facts of the case are like the sun, and the law is the moon.]]<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.” (as opposed to John Austin who believes that judges are just the mere implementers of law and get their power only from legislatures)<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart- Morality of Law</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=4883Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-27T19:29:52Z<p>Marshs132: </p>
<hr />
<div>== <big><big><big>Law & Economy: Law as Efficiency</big></big></big> ==<br />
<br />
[[File:Singapore coins in a stack.jpg|thumb|Money Money Money]]<br />
<br />
<big><big>'''The Theory:'''</big></big><br />
<br />
Law as efficiency describes how legal rules work and why laws tend to develop as they do. Laws develop towards efficiency even when claimed that a law is adopted for subsequent reasons. Under this theory, in order to be a valid law the underlying point of it should be the maximization of social wealth. Law can be seen as a tool that human beings use to facilitate this outcome. Another role of law is to minimize distortions in the economy so that human beings can operate in an efficient manner. <br />
<br />
Good legal rules under this theory are measured by their efficiency, not morality. “Efficient” laws will maximize social wealth, and the result will be a net increase in this wealth. “Wealth” is a term that does not always mean money but all “measurable satisfactions” that are created by the law.<br />
<br />
This theory evolves from the model that human beings will be rational. They will always make decisions during transactions that are in their best interests as determined by net increases in wealth. <br />
<br />
The economic model of “Pareto” superiority states that in economic transactions there will be at least one winner and no losers. One party will not lose anything and will be left in the same position as before the interaction and the other party comes out better off. <br />
<br />
Application to Criminal law: When evaluating whether an issue should be criminal one can ask the threshold question of what is the harm/cost, and is it worth it? The criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the only ones that will be classified as “worth it.” In order to achieve a desired end, the investment in the public criminal law system should be less than the monetary “wealth” created by protection of valued interests/rights.<br />
<br />
<br />
'''The Application:'''<br />
<br />
According to the theory of Law as Efficiency, laws will only be acceptable in situations where there is “no loser,” or where the gains of one party outweighs the losses of the other enough to provide compensation to the “loser.” Justice La Forest states that “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather than vindicating the constitutional rights of children.” This is an example of a situation where a law would not be efficient as per pareto superiority. The gain the parents receive from having their right to choose what is best for their child is not large enough to compensate the child for their losses and still come out ahead. Therefore the right is inefficient and should not be recognized. <br />
<br />
The freedom to religion is protected by s. 2 of the Charter. This right allows for individuals to express their religion in the manner they choose. Through the Child Welfare Act the parents freedom of religion is infringed by allowing state interference with children whose protection falls below the acceptable threshold level. The court proceeds to conduct a section 1 analysis in order to justify the infringement of section 2, which is the equivalent to the criminal law application of the economic theory. Here the theory states that society must weigh the harm and the cost to determine whether or not it is worth it to recognize and enforce that right. Justice La Forest determines that the infringement of s. 2 is justified based on the pressing and substantial need to protect children. With respect to the economic theory, this is the court’s way of recognizing that the protection of children is sufficiently valuable in comparison to the cost of limiting the right of the parents (freedom of religion).<br />
<br />
By creating a new scenario where the “winner” is the child, and the “loser” is the parents, the gain by the child receiving proper medical treatment is large enough to compensate the loss the parents incur due to the limitation of their freedom of religion. This scenario is the most efficient way to apply the law, and creates a maximization of social wealth for the future of children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence&diff=4882Course:Law3020/2014WT1/Group N/Feminist Jurisprudence2014-03-27T19:29:12Z<p>Marshs132: </p>
<hr />
<div>== Feminism: Law as a Patriarchal Institution ==<br />
<br />
[[File:Woman-power emblem.svg|thumb|Woman-Power Emblem]]<br />
<br />
'''The Theory:''' <br />
<br />
Feminism rejects the abstract universal theories of the previous theorists. Legal theories of the neutrality of law, the rule of law, and the separation of law from morality are merely tools of oppression. Instead feminism focuses on the concrete experience of women within the patriarchal system. This patriarchal system is so extensive and engrained that men and women think of it as being natural, even though it is not. This system of patriarchy is pervasive and the current legal system only perpetuates this dominance of men over women. Patricia Smith has divided the feminist legal theory into five main components: <br />
<br />
* '''Liberal Feminism'''<br />
<br />
This is the mainstream version of feminism. It is believed that the law, where it recognizes genders, creates blocks which stop women from accessing the public sphere. It is only in the public sphere that labour is recognized. These blocks must be systematically identified and removed in order for women to escape the private sphere where their labour is free and under appreciated. Over time the system will even out once the blocks are removed. <br />
Modern Liberal Feminism, as a subsection, feels that removing these “formal” blocks is not enough. Informal discrimination still prevent women from accessing the public sphere and only when these informal blocks are removed that meaningful participation can happen. <br />
<br />
* '''Radical Feminism'''<br />
<br />
Thinks that liberalists are looking at fixing just the external details, when the problem is that the system has to be pulled out by the roots in order to fix the problems. <br />
Radical means “by the root”, patriarchy is deeply rooted in society and the fundamental ideas of “male” and “female” are introduced in the socializing of the young. <br />
<br />
* '''Marxist Feminism'''<br />
<br />
This theory believes that before capitalism there was no patriarchy. Once the class system came into being, the capitalists seized control of the means of production, everyone else was forced to sell their labour to them. The men were the ones selling their labour and the women had to stay home in the private sphere which meant that since women were not selling their labour they were then useless in the eyes of this capitalist system because they cannot make a profit.<br />
There is one root problem and the only way to solve this problem is to dismantle the system, once it is gone then the patriarchy will wither away.<br />
<br />
* '''Postmodernist Feminism'''<br />
<br />
Women are viewed as the ‘other’ in society. Different from the norm (men). This difference should be celebrated rather than condemned and in need of change. There is no single solution for the advancement of women in society as all women are different due to their different and unique experiences as a woman. <br />
<br />
* '''Relational Feminism'''<br />
<br />
Women’s socialization within society is very different from mens. Women are more defined by the relationships they have within society as they are more defined by their maintaining and nurturing relationships. This is not a problem that must be overcome, instead the structure of the male-value system should be changed to incorporate ethics of care. The system becomes more female-like rather than male like. <br />
<br />
'''The Application:'''<br />
<br />
In this case there is a system of oppression that goes beyond men oppressing women, which is an application of marxist feminism. There is a legal system where the law is trying to oppress the parent’s religious rights and also a system where parents are oppressing their children’s rights to proper medical treatment. Feminism establishes a system of oppression against females, however here we are not limited to gender. This is known as Kyriarchy, which encompasses sexism, racism, homophobia, economic injustice, and other forms of dominating hierarchies where the subordination of one person or group to another is internalized and institutionalized. <br />
<br />
Justice La Forest’s decision in the case resembles some of the principles of post modern feminism. In this case the “other” is no longer females, but rather the religion of Jehovah’s Witness, which should be celebrated and accepted by society. As we see with the right to freedom of religion the legal system is in fact accepting and celebrating the parents religion. However, the idea that there are multiple solutions to this problem based on the response to the actual lives of actual women, is synonymous with the courts decisions that are fact sensitive and circumstantial. Justice La Forest states “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold.” Therefore, the system is accepting of the “other,” until their conduct becomes so egregious as to totally oppose the system all together. <br />
<br />
In coming to their final decision the courts believed that the right to religious freedom was appropriately limited based on the systems belief that a child’s right to proper medical attention was of higher importance to society.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence&diff=4881Course:Law3020/2014WT1/Group N/Feminist Jurisprudence2014-03-27T19:28:40Z<p>Marshs132: </p>
<hr />
<div>== Feminism: Law as a Patriarchal Institution ==<br />
<br />
[[File:Woman-power emblem.svg|thumb|Woman-power emblem]]<br />
<br />
'''The Theory:''' <br />
<br />
Feminism rejects the abstract universal theories of the previous theorists. Legal theories of the neutrality of law, the rule of law, and the separation of law from morality are merely tools of oppression. Instead feminism focuses on the concrete experience of women within the patriarchal system. This patriarchal system is so extensive and engrained that men and women think of it as being natural, even though it is not. This system of patriarchy is pervasive and the current legal system only perpetuates this dominance of men over women. Patricia Smith has divided the feminist legal theory into five main components: <br />
<br />
* '''Liberal Feminism'''<br />
<br />
This is the mainstream version of feminism. It is believed that the law, where it recognizes genders, creates blocks which stop women from accessing the public sphere. It is only in the public sphere that labour is recognized. These blocks must be systematically identified and removed in order for women to escape the private sphere where their labour is free and under appreciated. Over time the system will even out once the blocks are removed. <br />
Modern Liberal Feminism, as a subsection, feels that removing these “formal” blocks is not enough. Informal discrimination still prevent women from accessing the public sphere and only when these informal blocks are removed that meaningful participation can happen. <br />
<br />
* '''Radical Feminism'''<br />
<br />
Thinks that liberalists are looking at fixing just the external details, when the problem is that the system has to be pulled out by the roots in order to fix the problems. <br />
Radical means “by the root”, patriarchy is deeply rooted in society and the fundamental ideas of “male” and “female” are introduced in the socializing of the young. <br />
<br />
* '''Marxist Feminism'''<br />
<br />
This theory believes that before capitalism there was no patriarchy. Once the class system came into being, the capitalists seized control of the means of production, everyone else was forced to sell their labour to them. The men were the ones selling their labour and the women had to stay home in the private sphere which meant that since women were not selling their labour they were then useless in the eyes of this capitalist system because they cannot make a profit.<br />
There is one root problem and the only way to solve this problem is to dismantle the system, once it is gone then the patriarchy will wither away.<br />
<br />
* '''Postmodernist Feminism'''<br />
<br />
Women are viewed as the ‘other’ in society. Different from the norm (men). This difference should be celebrated rather than condemned and in need of change. There is no single solution for the advancement of women in society as all women are different due to their different and unique experiences as a woman. <br />
<br />
* '''Relational Feminism'''<br />
<br />
Women’s socialization within society is very different from mens. Women are more defined by the relationships they have within society as they are more defined by their maintaining and nurturing relationships. This is not a problem that must be overcome, instead the structure of the male-value system should be changed to incorporate ethics of care. The system becomes more female-like rather than male like. <br />
<br />
'''The Application:'''<br />
<br />
In this case there is a system of oppression that goes beyond men oppressing women, which is an application of marxist feminism. There is a legal system where the law is trying to oppress the parent’s religious rights and also a system where parents are oppressing their children’s rights to proper medical treatment. Feminism establishes a system of oppression against females, however here we are not limited to gender. This is known as Kyriarchy, which encompasses sexism, racism, homophobia, economic injustice, and other forms of dominating hierarchies where the subordination of one person or group to another is internalized and institutionalized. <br />
<br />
Justice La Forest’s decision in the case resembles some of the principles of post modern feminism. In this case the “other” is no longer females, but rather the religion of Jehovah’s Witness, which should be celebrated and accepted by society. As we see with the right to freedom of religion the legal system is in fact accepting and celebrating the parents religion. However, the idea that there are multiple solutions to this problem based on the response to the actual lives of actual women, is synonymous with the courts decisions that are fact sensitive and circumstantial. Justice La Forest states “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold.” Therefore, the system is accepting of the “other,” until their conduct becomes so egregious as to totally oppose the system all together. <br />
<br />
In coming to their final decision the courts believed that the right to religious freedom was appropriately limited based on the systems belief that a child’s right to proper medical attention was of higher importance to society.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=4880Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-27T19:26:24Z<p>Marshs132: </p>
<hr />
<div>== <big><big><big>Law & Economy: Law as Efficiency</big></big></big> ==<br />
<br />
[[File:Singapore coins in a stack.jpg|thumb|]]<br />
<br />
<big><big>'''The Theory:'''</big></big><br />
<br />
Law as efficiency describes how legal rules work and why laws tend to develop as they do. Laws develop towards efficiency even when claimed that a law is adopted for subsequent reasons. Under this theory, in order to be a valid law the underlying point of it should be the maximization of social wealth. Law can be seen as a tool that human beings use to facilitate this outcome. Another role of law is to minimize distortions in the economy so that human beings can operate in an efficient manner. <br />
<br />
Good legal rules under this theory are measured by their efficiency, not morality. “Efficient” laws will maximize social wealth, and the result will be a net increase in this wealth. “Wealth” is a term that does not always mean money but all “measurable satisfactions” that are created by the law.<br />
<br />
This theory evolves from the model that human beings will be rational. They will always make decisions during transactions that are in their best interests as determined by net increases in wealth. <br />
<br />
The economic model of “Pareto” superiority states that in economic transactions there will be at least one winner and no losers. One party will not lose anything and will be left in the same position as before the interaction and the other party comes out better off. <br />
<br />
Application to Criminal law: When evaluating whether an issue should be criminal one can ask the threshold question of what is the harm/cost, and is it worth it? The criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the only ones that will be classified as “worth it.” In order to achieve a desired end, the investment in the public criminal law system should be less than the monetary “wealth” created by protection of valued interests/rights.<br />
<br />
<br />
'''The Application:'''<br />
<br />
According to the theory of Law as Efficiency, laws will only be acceptable in situations where there is “no loser,” or where the gains of one party outweighs the losses of the other enough to provide compensation to the “loser.” Justice La Forest states that “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather than vindicating the constitutional rights of children.” This is an example of a situation where a law would not be efficient as per pareto superiority. The gain the parents receive from having their right to choose what is best for their child is not large enough to compensate the child for their losses and still come out ahead. Therefore the right is inefficient and should not be recognized. <br />
<br />
The freedom to religion is protected by s. 2 of the Charter. This right allows for individuals to express their religion in the manner they choose. Through the Child Welfare Act the parents freedom of religion is infringed by allowing state interference with children whose protection falls below the acceptable threshold level. The court proceeds to conduct a section 1 analysis in order to justify the infringement of section 2, which is the equivalent to the criminal law application of the economic theory. Here the theory states that society must weigh the harm and the cost to determine whether or not it is worth it to recognize and enforce that right. Justice La Forest determines that the infringement of s. 2 is justified based on the pressing and substantial need to protect children. With respect to the economic theory, this is the court’s way of recognizing that the protection of children is sufficiently valuable in comparison to the cost of limiting the right of the parents (freedom of religion).<br />
<br />
By creating a new scenario where the “winner” is the child, and the “loser” is the parents, the gain by the child receiving proper medical treatment is large enough to compensate the loss the parents incur due to the limitation of their freedom of religion. This scenario is the most efficient way to apply the law, and creates a maximization of social wealth for the future of children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N&diff=4870Course:Law3020/2014WT1/Group N2014-03-27T19:06:08Z<p>Marshs132: </p>
<hr />
<div>=== <big><big>'''''B(R) v Children’s Aid Society of Metropolitan Toronto'', [1995] 1 SCR 315<br />
'''</big></big> ===<br />
[[File:Supreme Court of Canada.jpg|thumb|Supreme Court of Canada]]<br />
<br />
<br />
'''Facts''':<br />
S.B. was born four weeks prematurely; she had several medical problems, which her parents consented to the treatments for. However, when it was suspected that S.B might have life-threatening congestive heart failure, the treatment of which would require a blood transfusion the parents did not consent as they are Jehovah’s Witnesses. The Provincial Court (family division) granted the respondent Children’s Aid Society a 72-hour wardship, which was extended to 21 days. During exploratory surgery S.B underwent a blood transfusion. A second Provincial Court order terminated the respondent’s wardship. <br />
Appellants appealed both orders to the District Court, dismissed the appeal and awarded costs to the Attorney General of Ontario. Court of Appeal dismissed the appellants appeal and cross-appeal from Attorney on the issue of costs. <br />
<br />
<br />
'''Issue''':<br />
Whether s.19(1)(b)(ix) of the Ontario Child Welfare Act which defines “ child in need of protection”, together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Charter, or infringe the appellants’ freedom of religion as guaranteed under s.2(a) of the Charter, and it so, whether the infringement is justifiable under s.1 of the Charter. <br />
<br />
Cross-appeal – whether the District Court erred in awarding costs against the Attorney General of Ontario. <br />
<br />
<br />
'''Decision''':<br />
Held, the appeal and cross-appeal should be dismissed.<br />
<br />
<br />
<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence]]</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N&diff=4869Course:Law3020/2014WT1/Group N2014-03-27T19:05:44Z<p>Marshs132: </p>
<hr />
<div>=== <big><big>'''''B(R) v Children’s Aid Society of Metropolitan Toronto'', [1995] 1 SCR 315<br />
'''</big></big> ===<br />
[[File:Supreme Court of Canada.jpg|thumb|Supreme Court of Canada]]<br />
<br />
'''Facts''':<br />
S.B. was born four weeks prematurely; she had several medical problems, which her parents consented to the treatments for. However, when it was suspected that S.B might have life-threatening congestive heart failure, the treatment of which would require a blood transfusion the parents did not consent as they are Jehovah’s Witnesses. The Provincial Court (family division) granted the respondent Children’s Aid Society a 72-hour wardship, which was extended to 21 days. During exploratory surgery S.B underwent a blood transfusion. A second Provincial Court order terminated the respondent’s wardship. <br />
Appellants appealed both orders to the District Court, dismissed the appeal and awarded costs to the Attorney General of Ontario. Court of Appeal dismissed the appellants appeal and cross-appeal from Attorney on the issue of costs. <br />
<br />
'''Issue''':<br />
Whether s.19(1)(b)(ix) of the Ontario Child Welfare Act which defines “ child in need of protection”, together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Charter, or infringe the appellants’ freedom of religion as guaranteed under s.2(a) of the Charter, and it so, whether the infringement is justifiable under s.1 of the Charter. <br />
<br />
Cross-appeal – whether the District Court erred in awarding costs against the Attorney General of Ontario. <br />
<br />
'''Decision''':<br />
Held, the appeal and cross-appeal should be dismissed.<br />
<br />
<br />
<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence]]</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N&diff=4867Course:Law3020/2014WT1/Group N2014-03-27T19:04:25Z<p>Marshs132: </p>
<hr />
<div>=== <big><big>'''''B(R) v Children’s Aid Society of Metropolitan Toronto'', [1995] 1 SCR 315<br />
'''</big></big> ===<br />
<br />
'''Facts''':<br />
S.B. was born four weeks prematurely; she had several medical problems, which her parents consented to the treatments for. However, when it was suspected that S.B might have life-threatening congestive heart failure, the treatment of which would require a blood transfusion the parents did not consent as they are Jehovah’s Witnesses. The Provincial Court (family division) granted the respondent Children’s Aid Society a 72-hour wardship, which was extended to 21 days. During exploratory surgery S.B underwent a blood transfusion. A second Provincial Court order terminated the respondent’s wardship. <br />
Appellants appealed both orders to the District Court, dismissed the appeal and awarded costs to the Attorney General of Ontario. Court of Appeal dismissed the appellants appeal and cross-appeal from Attorney on the issue of costs. <br />
<br />
'''Issue''':<br />
Whether s.19(1)(b)(ix) of the Ontario Child Welfare Act which defines “ child in need of protection”, together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Charter, or infringe the appellants’ freedom of religion as guaranteed under s.2(a) of the Charter, and it so, whether the infringement is justifiable under s.1 of the Charter. <br />
<br />
Cross-appeal – whether the District Court erred in awarding costs against the Attorney General of Ontario. <br />
<br />
'''Decision''':<br />
Held, the appeal and cross-appeal should be dismissed.<br />
<br />
<br />
<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence]]</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=4200Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-26T20:35:05Z<p>Marshs132: </p>
<hr />
<div>== <big><big>In Defence of Liberty and Paternalism</big></big> ==<br />
<br />
<br />
<br />
<big><big>The Theorist: John Stuart Mill - Liberty and the Harm Principle</big></big><br />
<br />
[[File:John Stuart Mill by John Watkins, 1865.jpg|thumb|John Stuart Mill, 1865]]<br />
'''The Theory '''<br />
<br />
Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.<br />
<br />
There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities. <br />
<br />
'''The Application:''' <br />
<br />
The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty. <br />
<br />
A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties. <br />
<br />
Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited. <br />
<br />
The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle. <br />
<br />
<br />
<br />
<big><big>The Theorist: Gerald Dworkin - Paternalism</big></big> <br />
<br />
'''The Theory:'''<br />
<br />
Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.<br />
<br />
In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?<br />
<br />
There is a limit on paternalistic interference; must have proportionality between deprivation and restraint. <br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.<br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour<br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.<br />
<br />
<br />
'''The Application:'''<br />
<br />
The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive. <br />
<br />
The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy. <br />
<br />
The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake. <br />
<br />
The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint. <br />
<br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid. <br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent. <br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a temporary custody agreement, which can be seen as the least restrictive approach</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/System_Of_Rights&diff=4195Course:Law3020/2014WT1/Group N/System Of Rights2014-03-26T20:29:57Z<p>Marshs132: </p>
<hr />
<div>== <big><big><big>Legal Positivism as a System of Rights</big></big></big> ==<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumb|Ronald Dworkin]]<br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Separation_Thesis&diff=4128Course:Law3020/2014WT1/Group N/Separation Thesis2014-03-26T18:15:20Z<p>Marshs132: </p>
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<div>==<big><big><big>Legal Separation Thesis and the Morality of Law</big></big></big>==<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart- Separation Thesis </big></big><br />
<br />
[[File:H.L. Hart.JPG|thumb||right]]<br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart- Morality of Law</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=4101Course:Law3020/2014WT1/Group N/Positivism2014-03-26T17:21:52Z<p>Marshs132: </p>
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<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
[[File:John Austin.jpg|John Austin|right]]<br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=4098Course:Law3020/2014WT1/Group N/Positivism2014-03-26T17:19:14Z<p>Marshs132: </p>
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<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
[[File:John Austin.jpg|John Austin|right]]<br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Natural_Law&diff=4095Course:Law3020/2014WT1/Group N/Natural Law2014-03-26T17:16:51Z<p>Marshs132: </p>
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<div><br />
== <big><big>'''Traditional Natural Law Theory: Law for the Common Good ==<br />
<br />
Theorist: Thomas Aquinas'''</big></big><br />
<br />
[[File:Aquinat.jpg|thumb|''Thomas Von Aquin'' Sandro Botticelli]]<br />
<br />
'''The Theory:'''<br />
<br />
Essential to true law; laws which must be obeyed for reasons of justice, fairness, and morality, in addition to “mere” threat of punishment. True law is ultimately derived from a higher, non-human source and is moral and immutable. <br />
<br />
Thomas Aquinas believes that law makers are able to see what the common good is and is able to recognize how to communicate what the steps are to take citizens to this common good. Thomas has outlined four elements that all laws must have in order to be valid and therefore be followed that we will be applying to the case above;<br />
# Must be directed to the common good: “Common good” is defined as the good of community, not the good of a specific individual. <br />
# Must follow practical reason: Reasonable steps that lead to the common good outlined <br />
# Must be made by valid lawmaker: Ruler within community, who hold this position by reason of the natural order <br />
# Must be promulgated: Law must be written <br />
<br />
<br />
<br />
'''Impugned Legislation:'''<br />
<br />
209 Section 30(1) of the Child Welfare Act provides that a court may order a child to be committed to or subject to the care and custody of the Children's Aid Society for a period of time not exceeding 12 months<br />
<br />
19.(1) In this part and Part IV, (b) "child in need of protection" means, (ix) a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
<br />
28(10) that a court may hold a hearing and dispense with notice to the parents in an appropriate case, and further under section 30(1) (ii) which provides that if a child is found to be in need of protection, then only those orders set out in section 30 may be made by the court, that the hearing and the order of the court is a pro forma matter legislated into existence at the instance of a medical practitioner.<br />
<br />
Note: During the course of adjudication the legislation was repealed. <br />
<br />
<br />
'''Thomas Aquinas(TA) Analysis of the Impugned Legislation:'''<br />
<br />
1. Must be Directed to Common Good<br />
<br />
* TA stated that preservation and procreation are essential ‘goods’ to all humans and children embody this. <br />
* The common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on itsparenspatriae jurisdiction. (para 88) <br />
* The protection of a child’s right to life and health is a basic tenant of our legal system, and legislation to that end accords with the principles of fundamental justice. <br />
* Still recognizes the value of the family unit as the child is not allowed to be away from the parent for more than 12 months. <br />
<br />
2. Practical Reason<br />
<br />
* The general procedure under the Act also accords with the principles of fundamental justice: 1.The parents must receive reasonable notice of the hearing in which their rights might be affected. 2. The wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The onus of proof is on the Children's Aid Society, and it has been recognized by the courts that it must present a strong case. Finally 3. The initial order granting wardship to the Children's Aid Society must be reviewed before its expiry.<br />
* The previous is the practical reason which leads to the objective of protecting the children. <br />
<br />
3. The ruled and the ruler (requirement of valid lawmaker)<br />
<br />
* Valid lawmaker is the government of Ontario. <br />
* Follows the wishes of the community by constantly being updated by the valid lawmaker. <br />
<br />
4. Promulgation<br />
<br />
* As it is primary legislation, it was written down. <br />
<br />
<br />
'''Thomas Aquinas Analysis of the Court Decision: (La Forest)<br />
'''<br />
<br />
1. Must be Directed to Common Good<br />
<br />
* In a natural law perspective, La-Forest is trying to protect our Charter rights, which represents Canadian common good. <br />
<br />
2. Practical Reason<br />
<br />
* The infringement by the Children’s Welfare Act, on the parent’s s. 7 liberty rights is a practical and necessary step in order to ensure the common good and liberty of our children. <br />
<br />
3. The ruled and the ruler (requirement of valid lawmaker)<br />
<br />
* The Charter is a source of law because of Canada’s Constitutional Supremacy system as people who were in the positions to make valid laws drafted it. <br />
<br />
4. Promulgation<br />
<br />
* It’s written and has been written since 1982. It is there to be followed by the citizens of Canada.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence&diff=3743Course:Law3020/2014WT1/Group N/Feminist Jurisprudence2014-03-25T22:37:58Z<p>Marshs132: </p>
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<div>== Feminism: Law as a Patriarchal Institution ==<br />
'''The Theory:''' <br />
<br />
Feminism rejects the abstract universal theories of the previous theorists. Legal theories of the neutrality of law, the rule of law, and the separation of law from morality are merely tools of oppression. Instead feminism focuses on the concrete experience of women within the patriarchal system. This patriarchal system is so extensive and engrained that men and women think of it as being natural, even though it is not. This system of patriarchy is pervasive and the current legal system only perpetuates this dominance of men over women. Patricia Smith has divided the feminist legal theory into five main components: <br />
<br />
* '''Liberal Feminism'''<br />
<br />
This is the mainstream version of feminism. It is believed that the law, where it recognizes genders, creates blocks which stop women from accessing the public sphere. It is only in the public sphere that labour is recognized. These blocks must be systematically identified and removed in order for women to escape the private sphere where their labour is free and under appreciated. Over time the system will even out once the blocks are removed. <br />
Modern Liberal Feminism, as a subsection, feels that removing these “formal” blocks is not enough. Informal discrimination still prevent women from accessing the public sphere and only when these informal blocks are removed that meaningful participation can happen. <br />
<br />
* '''Radical Feminism'''<br />
<br />
Thinks that liberalists are looking at fixing just the external details, when the problem is that the system has to be pulled out by the roots in order to fix the problems. <br />
Radical means “by the root”, patriarchy is deeply rooted in society and the fundamental ideas of “male” and “female” are introduced in the socializing of the young. <br />
<br />
* '''Marxist Feminism'''<br />
<br />
This theory believes that before capitalism there was no patriarchy. Once the class system came into being, the capitalists seized control of the means of production, everyone else was forced to sell their labour to them. The men were the ones selling their labour and the women had to stay home in the private sphere which meant that since women were not selling their labour they were then useless in the eyes of this capitalist system because they cannot make a profit.<br />
There is one root problem and the only way to solve this problem is to dismantle the system, once it is gone then the patriarchy will wither away.<br />
<br />
* '''Postmodernist Feminism'''<br />
<br />
Women are viewed as the ‘other’ in society. Different from the norm (men). This difference should be celebrated rather than condemned and in need of change. There is no single solution for the advancement of women in society as all women are different due to their different and unique experiences as a woman. <br />
<br />
* '''Relational Feminism'''<br />
<br />
Women’s socialization within society is very different from mens. Women are more defined by the relationships they have within society as they are more defined by their maintaining and nurturing relationships. This is not a problem that must be overcome, instead the structure of the male-value system should be changed to incorporate ethics of care. The system becomes more female-like rather than male like. <br />
<br />
'''The Application:'''<br />
<br />
In this case there is a system of oppression that goes beyond men oppressing women, which is an application of marxist feminism. There is a legal system where the law is trying to oppress the parent’s religious rights and also a system where parents are oppressing their children’s rights to proper medical treatment. Feminism establishes a system of oppression against females, however here we are not limited to gender. This is known as Kyriarchy, which encompasses sexism, racism, homophobia, economic injustice, and other forms of dominating hierarchies where the subordination of one person or group to another is internalized and institutionalized. <br />
<br />
Justice La Forest’s decision in the case resembles some of the principles of post modern feminism. In this case the “other” is no longer females, but rather the religion of Jehovah’s Witness, which should be celebrated and accepted by society. As we see with the right to freedom of religion the legal system is in fact accepting and celebrating the parents religion. However, the idea that there are multiple solutions to this problem based on the response to the actual lives of actual women, is synonymous with the courts decisions that are fact sensitive and circumstantial. Justice La Forest states “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold.” Therefore, the system is accepting of the “other,” until their conduct becomes so egregious as to totally oppose the system all together. <br />
<br />
In coming to their final decision the courts believed that the right to religious freedom was appropriately limited based on the systems belief that a child’s right to proper medical attention was of higher importance to society.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=3646Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-25T20:41:56Z<p>Marshs132: </p>
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<div>== <big><big><big>Law & Efficiency: Law as Efficiency</big></big></big> ==<br />
<br />
<big><big>'''The Theory:'''</big></big><br />
<br />
Law as efficiency describes how legal rules work and why laws tend to develop as they do. Laws develop towards efficiency even when claimed that a law is adopted for subsequent reasons. Under this theory, in order to be a valid law the underlying point of it should be the maximization of social wealth. Law can be seen as a tool that human beings use to facilitate this outcome. Another role of law is to minimize distortions in the economy so that human beings can operate in an efficient manner. <br />
<br />
Good legal rules under this theory are measured by their efficiency, not morality. “Efficient” laws will maximize social wealth, and the result will be a net increase in this wealth. “Wealth” is a term that does not always mean money but all “measurable satisfactions” that are created by the law.<br />
<br />
This theory evolves from the model that human beings will be rational. They will always make decisions during transactions that are in their best interests as determined by net increases in wealth. <br />
<br />
The economic model of “Pareto” superiority states that in economic transactions there will be at least one winner and no losers. One party will not lose anything and will be left in the same position as before the interaction and the other party comes out better off. <br />
<br />
Application to Criminal law: When evaluating whether an issue should be criminal one can ask the threshold question of what is the harm/cost, and is it worth it? The criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the only ones that will be classified as “worth it.” In order to achieve a desired end, the investment in the public criminal law system should be less than the monetary “wealth” created by protection of valued interests/rights.<br />
<br />
<br />
'''The Application:'''<br />
<br />
According to the theory of Law as Efficiency, laws will only be acceptable in situations where there is “no loser,” or where the gains of one party outweighs the losses of the other enough to provide compensation to the “loser.” Justice La Forest states that “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather than vindicating the constitutional rights of children.” This is an example of a situation where a law would not be efficient as per pareto superiority. The gain the parents receive from having their right to choose what is best for their child is not large enough to compensate the child for their losses and still come out ahead. Therefore the right is inefficient and should not be recognized. <br />
<br />
The freedom to religion is protected by s. 2 of the Charter. This right allows for individuals to express their religion in the manner they choose. Through the Child Welfare Act the parents freedom of religion is infringed by allowing state interference with children whose protection falls below the acceptable threshold level. The court proceeds to conduct a section 1 analysis in order to justify the infringement of section 2, which is the equivalent to the criminal law application of the economic theory. Here the theory states that society must weigh the harm and the cost to determine whether or not it is worth it to recognize and enforce that right. Justice La Forest determines that the infringement of s. 2 is justified based on the pressing and substantial need to protect children. With respect to the economic theory, this is the court’s way of recognizing that the protection of children is sufficiently valuable in comparison to the cost of limiting the right of the parents (freedom of religion).<br />
<br />
By creating a new scenario where the “winner” is the child, and the “loser” is the parents, the gain by the child receiving proper medical treatment is large enough to compensate the loss the parents incur due to the limitation of their freedom of religion. This scenario is the most efficient way to apply the law, and creates a maximization of social wealth for the future of children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=3645Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-25T20:40:40Z<p>Marshs132: </p>
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<div>== <big><big><big>Law & Efficiency: Law as Efficiency</big></big></big> ==<br />
<br />
<big><big>'''The Theory:'''</big></big><br />
<br />
Law as efficiency describes how legal rules work and why laws tend to develop as they do. Laws develop towards efficiency even when claimed that a law is adopted for subsequent reasons. Under this theory, in order to be a valid law the underlying point of it should be the maximization of social wealth. Law can be seen as a tool that human beings use to facilitate this outcome. Another role of law is to minimize distortions in the economy so that human beings can operate in an efficient manner. <br />
<br />
Good legal rules under this theory are measured by their efficiency, not morality. “Efficient” laws will maximize social wealth, and the result will be a net increase in this wealth. “Wealth” is a term that does not always mean money but all “measurable satisfactions” that are created by the law.<br />
<br />
This theory evolves from the model that human beings will be rational. They will always make decisions during transactions that are in their best interests as determined by net increases in wealth. <br />
<br />
The economic model of “Pareto” superiority states that in economic transactions there will be at least one winner and no losers. One party will not lose anything and will be left in the same position as before the interaction and the other party comes out better off. <br />
<br />
Application to Criminal law: When evaluating whether an issue should be criminal one can ask the threshold question of what is the harm/cost, and is it worth it? The criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the only ones that will be classified as “worth it.” In order to achieve a desired end, the investment in the public criminal law system should be less than the monetary “wealth” created by protection of valued interests/rights.<br />
<br />
<br />
<big><big>'''The Application:'''</big></big><br />
<br />
According to the theory of Law as Efficiency, laws will only be acceptable in situations where there is “no loser,” or where the gains of one party outweighs the losses of the other enough to provide compensation to the “loser.” Justice La Forest states that “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather than vindicating the constitutional rights of children.” This is an example of a situation where a law would not be efficient as per pareto superiority. The gain the parents receive from having their right to choose what is best for their child is not large enough to compensate the child for their losses and still come out ahead. Therefore the right is inefficient and should not be recognized. <br />
<br />
The freedom to religion is protected by s. 2 of the Charter. This right allows for individuals to express their religion in the manner they choose. Through the Child Welfare Act the parents freedom of religion is infringed by allowing state interference with children whose protection falls below the acceptable threshold level. The court proceeds to conduct a section 1 analysis in order to justify the infringement of section 2, which is the equivalent to the criminal law application of the economic theory. Here the theory states that society must weigh the harm and the cost to determine whether or not it is worth it to recognize and enforce that right. Justice La Forest determines that the infringement of s. 2 is justified based on the pressing and substantial need to protect children. With respect to the economic theory, this is the court’s way of recognizing that the protection of children is sufficiently valuable in comparison to the cost of limiting the right of the parents (freedom of religion).<br />
<br />
By creating a new scenario where the “winner” is the child, and the “loser” is the parents, the gain by the child receiving proper medical treatment is large enough to compensate the loss the parents incur due to the limitation of their freedom of religion. This scenario is the most efficient way to apply the law, and creates a maximization of social wealth for the future of children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=3642Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-25T20:39:36Z<p>Marshs132: </p>
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<div>== <big><big><big>Law & Efficiency: Law as Efficiency</big></big></big> ==<br />
<br />
<big><big>'''The Theory:'''</big></big><br />
<br />
Law as efficiency describes how legal rules work and why laws tend to develop as they do. Laws develop towards efficiency even when claimed that a law is adopted for subsequent reasons. Under this theory, in order to be a valid law the underlying point of it should be the maximization of social wealth. Law can be seen as a tool that human beings use to facilitate this outcome. Another role of law is to minimize distortions in the economy so that human beings can operate in an efficient manner. <br />
<br />
Good legal rules under this theory are measured by their efficiency, not morality. “Efficient” laws will maximize social wealth, and the result will be a net increase in this wealth. “Wealth” is a term that does not always mean money but all “measurable satisfactions” that are created by the law.<br />
<br />
This theory evolves from the model that human beings will be rational. They will always make decisions during transactions that are in their best interests as determined by net increases in wealth. <br />
<br />
The economic model of “Pareto” superiority states that in economic transactions there will be at least one winner and no losers. One party will not lose anything and will be left in the same position as before the interaction and the other party comes out better off. <br />
<br />
Application to Criminal law: When evaluating whether an issue should be criminal one can ask the threshold question of what is the harm/cost, and is it worth it? The criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the only ones that will be classified as “worth it.” In order to achieve a desired end, the investment in the public criminal law system should be less than the monetary “wealth” created by protection of valued interests/rights.<br />
<br />
<br />
<big><big>'''The Application:'''</big></big><br />
<br />
<br />
According to the theory of Law as Efficiency, laws will only be acceptable in situations where there is “no loser,” or where the gains of one party outweighs the losses of the other enough to provide compensation to the “loser.” Justice La Forest states that “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather than vindicating the constitutional rights of children.” This is an example of a situation where a law would not be efficient as per pareto superiority. The gain the parents receive from having their right to choose what is best for their child is not large enough to compensate the child for their losses and still come out ahead. Therefore the right is inefficient and should not be recognized. <br />
The freedom to religion is protected by s. 2 of the Charter. This right allows for individuals to express their religion in the manner they choose. Through the Child Welfare Act the parents freedom of religion is infringed by allowing state interference with children whose protection falls below the acceptable threshold level. The court proceeds to conduct a section 1 analysis in order to justify the infringement of section 2, which is the equivalent to the criminal law application of the economic theory. Here the theory states that society must weigh the harm and the cost to determine whether or not it is worth it to recognize and enforce that right. Justice La Forest determines that the infringement of s. 2 is justified based on the pressing and substantial need to protect children. With respect to the economic theory, this is the court’s way of recognizing that the protection of children is sufficiently valuable in comparison to the cost of limiting the right of the parents (freedom of religion).<br />
By creating a new scenario where the “winner” is the child, and the “loser” is the parents, the gain by the child receiving proper medical treatment is large enough to compensate the loss the parents incur due to the limitation of their freedom of religion. This scenario is the most efficient way to apply the law, and creates a maximization of social wealth for the future of children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Feminist_Jurisprudence&diff=3629Course:Law3020/2014WT1/Group N/Feminist Jurisprudence2014-03-25T20:17:02Z<p>Marshs132: Created page with "== Feminism: Law as a Patriarchal Institution == '''The Theory:''' Feminism rejects the abstract universal theories of the previous theorists. Legal theories of the neutra..."</p>
<hr />
<div>== Feminism: Law as a Patriarchal Institution ==<br />
'''The Theory:''' <br />
<br />
Feminism rejects the abstract universal theories of the previous theorists. Legal theories of the neutrality of law, the rule of law, and the separation of law from morality are merely tools of oppression. Instead feminism focuses on the concrete experience of women within the patriarchal system. This patriarchal system is so extensive and engrained that men and women think of it as being natural, even though it is not. This system of patriarchy is pervasive and the current legal system only perpetuates this dominance of men over women. Patricia Smith has divided the feminist legal theory into five main components: <br />
<br />
* '''Liberal Feminism'''<br />
<br />
This is the mainstream version of feminism. It is believed that the law, where it recognizes genders, creates blocks which stop women from accessing the public sphere. It is only in the public sphere that labour is recognized. These blocks must be systematically identified and removed in order for women to escape the private sphere where their labour is free and under appreciated. Over time the system will even out once the blocks are removed. <br />
Modern Liberal Feminism, as a subsection, feels that removing these “formal” blocks is not enough. Informal discrimination still prevent women from accessing the public sphere and only when these informal blocks are removed that meaningful participation can happen. <br />
<br />
* '''Radical Feminism'''<br />
<br />
Thinks that liberalists are looking at fixing just the external details, when the problem is that the system has to be pulled out by the roots in order to fix the problems. <br />
Radical means “by the root”, patriarchy is deeply rooted in society and the fundamental ideas of “male” and “female” are introduced in the socializing of the young. <br />
<br />
* '''Marxist Feminism'''<br />
<br />
This theory believes that before capitalism there was no patriarchy. Once the class system came into being, the capitalists seized control of the means of production, everyone else was forced to sell their labour to them. The men were the ones selling their labour and the women had to stay home in the private sphere which meant that since women were not selling their labour they were then useless in the eyes of this capitalist system because they cannot make a profit.<br />
There is one root problem and the only way to solve this problem is to dismantle the system, once it is gone then the patriarchy will wither away.<br />
<br />
* '''Postmodernist Feminism'''<br />
<br />
Women are viewed as the ‘other’ in society. Different from the norm (men). This difference should be celebrated rather than condemned and in need of change. There is no single solution for the advancement of women in society as all women are different due to their different and unique experiences as a woman. <br />
<br />
* '''Relational Feminism'''<br />
<br />
Women’s socialization within society is very different from mens. Women are more defined by the relationships they have within society as they are more defined by their maintaining and nurturing relationships. This is not a problem that must be overcome, instead the structure of the male-value system should be changed to incorporate ethics of care. The system becomes more female-like rather than male like. <br />
<br />
'''The Application:'''<br />
<br />
In this case there is a system of oppression that goes beyond men oppressing women, which is an application of marxist feminism. There is a legal system where the law is trying to oppress the parent’s religious rights and also a system where parents are oppressing their children’s rights to proper medical treatment. Feminism establishes a system of oppression against females, however here we are not limited to gender. This is known as Kyriarchy, which encompasses sexism, racism, homophobia, economic injustice, and other forms of dominating hierarchies where the subordination of one person or group to another is internalized and institutionalized. <br />
<br />
Justice La Forest’s decision in the case resembles some of the principles of post modern feminism. In this case the “other” is no longer females, but rather the religion of Jehovah’s Witness, which should be celebrated and accepted by society. As we see with the right to freedom of religion the legal system is in fact accepting and celebrating the parents religion. However, the idea that there are multiple solutions to this problem based on the response to the actual lives of actual women, is synonymous with the courts decisions that are fact sensitive and circumstantial. Justice La Forest states “the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold.” Therefore, the system is accepting of the “other,” until their conduct becomes so egregious as to totally oppose the system all together. <br />
<br />
In coming to their final decision the courts believed that the right to religious freedom was appropriately limited based on the systems belief that a child’s right to proper medical attention was of higher importance to soci</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Separation_Thesis&diff=2031Course:Law3020/2014WT1/Group N/Separation Thesis2014-03-14T18:22:42Z<p>Marshs132: </p>
<hr />
<div>==<big><big><big>Legal Separation Thesis and the Morality of Law</big></big></big>==<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart- Separation Thesis </big></big><br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart- Morality of Law</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Separation_Thesis&diff=2030Course:Law3020/2014WT1/Group N/Separation Thesis2014-03-14T18:21:55Z<p>Marshs132: Created page with "==<big><big><big>Legal Separation Thesis and the Morality of Law</big></big></big>== <big><big>Theorist: H.L.A. Hart </big></big> '''The Theory:''' * Law and morality are ..."</p>
<hr />
<div>==<big><big><big>Legal Separation Thesis and the Morality of Law</big></big></big>==<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart </big></big><br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=2027Course:Law3020/2014WT1/Group N/Positivism2014-03-14T18:20:16Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/System_Of_Rights&diff=2023Course:Law3020/2014WT1/Group N/System Of Rights2014-03-14T18:18:45Z<p>Marshs132: Created page with "== <big><big><big>Legal Positivism as a System of Rights</big></big></big> == <big><big>The Theorist: Ronald Dworkin</big></big> '''The Theory: ''' Rules are empirical and..."</p>
<hr />
<div>== <big><big><big>Legal Positivism as a System of Rights</big></big></big> ==<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=2021Course:Law3020/2014WT1/Group N/Positivism2014-03-14T18:17:25Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart </big></big><br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=2015Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-14T18:12:22Z<p>Marshs132: </p>
<hr />
<div>== <big><big><big>Law & Efficiency: Law as Efficiency</big></big></big> ==<br />
<br />
<big><big>'''The Theory:'''</big></big><br />
<br />
Law as efficiency describes how legal rules work and why laws tend to develop as they do. Laws develop towards efficiency even when claimed that a law is adopted for subsequent reasons. Under this theory, in order to be a valid law the underlying point of it should be the maximization of social wealth. Law can be seen as a tool that human beings use to facilitate this outcome. Another role of law is to minimize distortions in the economy so that human beings can operate in an efficient manner. <br />
<br />
Good legal rules under this theory are measured by their efficiency, not morality. “Efficient” laws will maximize social wealth, and the result will be a net increase in this wealth. “Wealth” is a term that does not always mean money but all “measurable satisfactions” that are created by the law.<br />
<br />
This theory evolves from the model that human beings will be rational. They will always make decisions during transactions that are in their best interests as determined by net increases in wealth. <br />
<br />
The economic model of “Pareto” superiority states that in economic transactions there will be at least one winner and no losers. One party will not lose anything and will be left in the same position as before the interaction and the other party comes out better off. <br />
<br />
Application to Criminal law: When evaluating whether an issue should be criminal one can ask the threshold question of what is the harm/cost, and is it worth it? The criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the only ones that will be classified as “worth it.” In order to achieve a desired end, the investment in the public criminal law system should be less than the monetary “wealth” created by protection of valued interests/rights.<br />
<br />
<br />
<big><big>'''The Application:'''</big></big></div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Law_As_Efficiency&diff=2014Course:Law3020/2014WT1/Group N/Law As Efficiency2014-03-14T18:11:03Z<p>Marshs132: Created page with "== <big><big><big>Law & Efficiency: Law as Efficiency</big></big></big> == <big><big>'''The Theory:'''</big></big>"</p>
<hr />
<div>== <big><big><big>Law & Efficiency: Law as Efficiency</big></big></big> ==<br />
<br />
<big><big>'''The Theory:'''</big></big></div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=2004Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-14T17:56:38Z<p>Marshs132: </p>
<hr />
<div>== <big><big>In Defence of Liberty and Paternalism</big></big> ==<br />
<br />
<br />
<br />
<big><big>The Theorist: John Stuart Mill - Liberty and the Harm Principle</big></big><br />
<br />
'''The Theory '''<br />
<br />
Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.<br />
<br />
There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities. <br />
<br />
'''The Application:''' <br />
<br />
The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty. <br />
<br />
A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties. <br />
<br />
Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited. <br />
<br />
The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle. <br />
<br />
<br />
<br />
<big><big>The Theorist: Gerald Dworkin - Paternalism</big></big> <br />
<br />
'''The Theory:'''<br />
<br />
Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.<br />
<br />
In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?<br />
<br />
There is a limit on paternalistic interference; must have proportionality between deprivation and restraint. <br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.<br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour<br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.<br />
<br />
<br />
'''The Application:'''<br />
<br />
The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive. <br />
<br />
The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy. <br />
<br />
The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake. <br />
<br />
The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint. <br />
<br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid. <br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent. <br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a temporary custody agreement, which can be seen as the least restrictive approach</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=2003Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-14T17:55:56Z<p>Marshs132: </p>
<hr />
<div>== <big><big>In Defence of Liberty and Paternalism</big></big> ==<br />
<br />
<br />
<br />
<big><big>The Theorist: John Stuart Mill - Harm Principle</big></big><br />
<br />
'''The Theory '''<br />
<br />
Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.<br />
<br />
There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities. <br />
<br />
'''The Application:''' <br />
<br />
The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty. <br />
<br />
A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties. <br />
<br />
Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited. <br />
<br />
The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle. <br />
<br />
<br />
<br />
<big><big>The Theorist: Gerald Dworkin - Paternalism</big></big> <br />
<br />
'''The Theory:'''<br />
<br />
Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.<br />
<br />
In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?<br />
<br />
There is a limit on paternalistic interference; must have proportionality between deprivation and restraint. <br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.<br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour<br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.<br />
<br />
<br />
'''The Application:'''<br />
<br />
The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive. <br />
<br />
The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy. <br />
<br />
The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake. <br />
<br />
The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint. <br />
<br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid. <br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent. <br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a temporary custody agreement, which can be seen as the least restrictive approach</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=2002Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-14T17:55:01Z<p>Marshs132: </p>
<hr />
<div>== <big><big>In Defence of Liberty and Paternalism</big></big> ==<br />
<br />
<br />
<br />
<big><big>The Theorist: John Stuart Mill - Harm Principle</big></big><br />
<br />
'''The Theory '''<br />
<br />
Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.<br />
<br />
There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities. <br />
<br />
'''The Application:''' <br />
<br />
The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty. <br />
<br />
A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties. <br />
<br />
Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited. <br />
<br />
The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle. <br />
<br />
<big>'''The Theorist: Gerald Dworkin - Paternalism'''</big> <br />
<br />
'''The Theory:'''<br />
<br />
Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.<br />
<br />
In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?<br />
<br />
There is a limit on paternalistic interference; must have proportionality between deprivation and restraint. <br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.<br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour<br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.<br />
<br />
<br />
'''The Application:'''<br />
<br />
The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive. <br />
<br />
The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy. <br />
<br />
The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake. <br />
<br />
The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint. <br />
<br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid. <br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent. <br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a temporary custody agreement, which can be seen as the least restrictive approach</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=2001Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-14T17:54:42Z<p>Marshs132: </p>
<hr />
<div>== <big><big>In Defence of Liberty and Paternalism</big></big> ==<br />
<br />
<br />
<big><big>The Theorist: John Stuart Mill - Harm Principle</big></big><br />
<br />
'''The Theory '''<br />
<br />
Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.<br />
<br />
There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities. <br />
<br />
'''The Application:''' <br />
<br />
The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty. <br />
<br />
A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties. <br />
<br />
Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited. <br />
<br />
The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle. <br />
<br />
<big>'''The Theorist: Gerald Dworkin - Paternalism'''</big> <br />
<br />
'''The Theory:'''<br />
<br />
Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.<br />
<br />
In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?<br />
<br />
There is a limit on paternalistic interference; must have proportionality between deprivation and restraint. <br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.<br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour<br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.<br />
<br />
<br />
'''The Application:'''<br />
<br />
The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive. <br />
<br />
The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy. <br />
<br />
The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake. <br />
<br />
The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint. <br />
<br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid. <br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent. <br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a temporary custody agreement, which can be seen as the least restrictive approach</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=1999Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-14T17:53:39Z<p>Marshs132: </p>
<hr />
<div>== <big><big>In Defence of Liberty and Paternalism</big></big> ==<br />
<br />
<br />
<big>The Theorist: John Stuart Mill - Harm Principle</big><br />
<br />
'''The Theory '''<br />
<br />
Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.<br />
<br />
There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities. <br />
<br />
'''The Application:''' <br />
<br />
The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty. <br />
<br />
A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties. <br />
<br />
Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited. <br />
<br />
The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle. <br />
<br />
<big>'''The Theorist: Gerald Dworkin - Paternalism'''</big> <br />
<br />
'''The Theory:'''<br />
<br />
Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.<br />
<br />
In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?<br />
<br />
There is a limit on paternalistic interference; must have proportionality between deprivation and restraint. <br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.<br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour<br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.<br />
<br />
<br />
'''The Application:'''<br />
<br />
The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive. <br />
<br />
The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy. <br />
<br />
The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake. <br />
<br />
The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint. <br />
<br />
# Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid. <br />
# Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent. <br />
# Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a temporary custody agreement, which can be seen as the least restrictive approach</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=1845Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-07T19:01:52Z<p>Marshs132: </p>
<hr />
<div>== <big><big>Liberty and Paternalism</big></big> ==</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Liberty-Paternalism&diff=1844Course:Law3020/2014WT1/Group N/Liberty-Paternalism2014-03-07T19:00:19Z<p>Marshs132: Created page with "== <big><big><big>Liberty and Paternalism</big></big></big> =="</p>
<hr />
<div>== <big><big><big>Liberty and Paternalism</big></big></big> ==</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1843Course:Law3020/2014WT1/Group N/Positivism2014-03-07T18:58:19Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart </big></big><br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller. <br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1842Course:Law3020/2014WT1/Group N/Positivism2014-03-07T18:57:16Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart </big></big><br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
'''What Judges Do:'''<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
* External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
* Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
** Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller. <br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1839Course:Law3020/2014WT1/Group N/Positivism2014-03-07T18:54:22Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.<br />
<br />
<br />
<big><big>Theorist: H.L.A. Hart </big></big><br />
<br />
'''The Theory:'''<br />
<br />
* Law and morality are separate systems. <br />
* A valid law depends upon not only on the buy in of the public it governs but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc. <br />
** If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, these laws begin to lose what makes them laws, and instead become rules.<br />
<br />
'''What Judges Do:'''<br />
<br />
Laws are general in nature and have a “settled core meaning” that will cover the majority of facts that arise in different cases. It is the case where the law does not fully cover the facts of the case is where judges play an active role. This is what it known as the ''penumbra''. <br />
<br />
For the cases found in the ''penumbra'', judges do not apply their own moral standard and instead use “terms of the rule governed practice.”<br />
* These terms are a consistent set of principles and values of the legal system.<br />
* In Canadian law, judges understand the ''Charter'' as embodying the terms of our rule governed practice. <br />
<br />
'''Hart’s Analysis to the Judicial Decisions of the case:'''<br />
Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the ''Charter''? <br />
<br />
'''Lamer & La Forest:'''<br />
This case presents itself as a penumbra, with the parent’s bringing the action that the ''Child Welfare Act'' infringes upon their ''Charter'' rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon ''Charter'' rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act is moon. The parents claim that the Act does not completely cover the facts and justify the State from taking temporary custody of their child because of the infringements to their ''Charter'' rights, therefore blocking the Act from covering the facts and creating the ''penumbra''. The court holds that the Act does not infringe upon the parent’s ''Charter'' rights, therefore releasing the Act to cover the facts and allowing the Act to stand. <br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
What judges do<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
o External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
o Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
§ Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the ''Child Welfare Act'' does not contradict ''Charter'' rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the ''Child Welfare Act'' does not contravene a parent’s section 7 ''Charter'' right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the ''Child Welfare Act'' does contradict the parent’s Section 7 ''Charter'' rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller. <br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The ''Child Welfare Act'' is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another ''Charter'' right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1831Course:Law3020/2014WT1/Group N/Positivism2014-03-07T18:43:22Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
* Not dependent upon moral content. Brings in laws that are not characterized as commands. <br />
* Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
* Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.<br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
What judges do<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
o External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
o Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
§ Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the Child Welfare Act does not contradict Charter rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the Child Welfare Act does not contravene a parent’s section 7 Charter right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the Child Welfare Act does contradict the parent’s Section 7 Charter rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller. <br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1829Course:Law3020/2014WT1/Group N/Positivism2014-03-07T18:42:08Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Building on the Theory:'''<br />
<br />
'''H.L.A. Hart'''<br />
<br />
* Hart brings Austin’s theory into a modern society. <br />
Not dependent upon moral content. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
<br />
'''Raz and Bentham'''<br />
<br />
* Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
'''John Austin's Analysis of the Case:'''<br />
<br />
# '''Is the legislation a command?''' The State has a right to intervene when a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
# '''Is the legislation created by a superior and issued to subordinates?''' Yes, the provincial legislature is a sovereign for the Province of Ontario. The legislation is issued to the citizens of Ontario which recognize the Ontario legislature as their sovereign. <br />
# '''Is the legislation back by sanctions?''' As the legislation has been repealed, we are unsure of the original sanctions, but we assume that failure to comply with the provincial order would lead to court order penalties. <br />
<br />
'''John Austin Analysis of the Impugned Legislation: Complications?'''<br />
<br />
'''What is the role of the judge?''' Judges are delegated the power to apply the law. In this case, there are not any complications as per Austin’s analysis because they applied the legislation as it was created.<br />
<br />
'''Can the sovereign be identified?''' Recognizes three sovereigns that the bulk of the population is in the habit of obeying and submitting to. These are:<br />
# Constitution, Parliament, Provincial Legislatures.<br />
# In this case the Ontario government falls under a Provincial legislature. <br />
<br />
'''HLA Hart Analysis of the Impugned Legislation:'''<br />
<br />
* Can be classified this legislation as a primary rule because it dictates what we can and cannot do with respect to children. <br />
* The state officials who created the legislation followed it as they enforced it. They continue to enforce it when they are required to in the appropriate circumstance. <br />
<br />
'''Raz and Bentham Analysis of the Impugned Legislation:'''<br />
<br />
* This legislation is justified because it serves a high social utility of saving children.<br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
What judges do<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
o External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
o Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
§ Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the Child Welfare Act does not contradict Charter rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the Child Welfare Act does not contravene a parent’s section 7 Charter right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the Child Welfare Act does contradict the parent’s Section 7 Charter rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller. <br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1730Course:Law3020/2014WT1/Group N/Positivism2014-02-28T19:55:24Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
<big><big>Theorist: H.L.A. Hart</big></big><br />
<br />
Hart brings Austin’s theory into a modern society. <br />
<br />
Not dependent upon moral content. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
• Raz and Bentham<br />
o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
<br />
<big><big>Theorist: Lon Fuller</big></big><br />
<br />
<big>A Response to Hart</big><br />
<br />
'''The Theory:'''<br />
<br />
Law and morality are not separate entities. They are connected but they disconnected from the divine.<br />
<br />
What judges do<br />
In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality. <br />
o External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.<br />
o Internal morality is the morality that comes from the law. Laws that are capable of being explained, judicial decisions that are capable of being explained to the public that is coherent, and reasoned, are valid moral laws and decisions. <br />
§ Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality. <br />
<br />
'''Fuller’s Analysis to the Judicial Decisions of the case:'''<br />
<br />
'''Lamer:'''<br />
<br />
Lamer decides that the Child Welfare Act does not contradict Charter rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s belief in what they religiously believe is best for that child. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the Child Welfare Act does not contravene a parent’s section 7 Charter right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case. <br />
<br />
'''La Forest:'''<br />
<br />
La Forest decides that the Child Welfare Act does contradict the parent’s Section 7 Charter rights to Liberty but is saved by the section 1 right of reasonable limits on the infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide and if parents fall below that standard, the state may step in and provide for the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller. <br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1729Course:Law3020/2014WT1/Group N/Positivism2014-02-28T19:49:55Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
<big><big>Theorist: H.L.A. Hart</big></big><br />
<br />
Hart brings Austin’s theory into a modern society. <br />
<br />
Not dependent upon moral content. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
• Raz and Bentham<br />
o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1728Course:Law3020/2014WT1/Group N/Positivism2014-02-28T19:48:48Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Theorist H.L.A. Hart:'''<br />
<br />
Hart brings Austin’s theory into a modern society. <br />
<br />
Not dependent upon moral content. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
• Raz and Bentham<br />
o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory: '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1726Course:Law3020/2014WT1/Group N/Positivism2014-02-28T19:47:32Z<p>Marshs132: </p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Theorist H.L.A. Hart:<br />
'''<br />
Hart brings Austin’s theory into a modern society. <br />
<br />
Not dependent upon moral content. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
• Raz and Bentham<br />
o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.<br />
<br />
<br />
<br />
<big><big>The Theorist: Ronald Dworkin</big></big><br />
<br />
'''The Theory '''<br />
<br />
Rules are empirical and created by legislators but are shaped by general principles of justice and fairness. In judicial reasoning Judges call on these principles to interpret and reshape the rules. Although Dworkin does not believe principles to be empirical, they are binding and judges are obliged to follow them in relevant circumstances. <br />
<br />
Principles can be broken down into principles and policies. Policies are social goals pursued for specific interests of one segment of the population. Whereas principles are based on the ideas of justice and fairness that support certain rights and duties. They are shaped by social and political changes that occur over time. <br />
<br />
When judges go against the rule, Dworkin explains this as the judges finding a contradiction between the rule and principles. This is known as a hard case. Judges look towards the principles to re-interpret the rule and realign it with modern principles of justice and fairness. These hard cases then reshape the principles which will be applied in the future. <br />
<br />
Rights for Dworkin come from these principles unlike former positivists where they are created by rules. Rights must be universally applied and the principles that shape them must be consistently applied in judicial decision making. <br />
<br />
Dworkin is most controversial for his idea that there is a right answer in judicial decision making. This is because rules are objective and the principles that apply must be applied in a certain way <br />
<br />
Judges are the “weavers” in the creation of the “fabric of law.” Where the law is considered the “strands” and the relevant principles direct Judges to “weave” these strands in the creation of a consistent pattern from the past and in shaping the pattern of the future. <br />
<br />
<br />
'''Dworkin’s Analysis of the Judgement on this Case'''<br />
<br />
Dworkin would define this case as a “hard case.” He believes that a hard case is one in which the rule does not correspond with the relevant underlying principles. This will require the judges to engage in legal reasoning, and the use of the these principles to shape the rule, reconciling it with said principles. <br />
<br />
The Child Welfare Act is a “bare husk” until the judges interpret it. Judicial interpretation should involve legal reasoning where the principles will shape the “bare husk” of legislation. <br />
<br />
Any rights the parents have are embedded in underlying principles of protecting vulnerable groups (i.e. children). Principles are based on justice and fairness, therefore allowing a parent to exercise a right (right to freedom of religion) that goes against the principle of justice (protecting children) would not be allowed. <br />
<br />
'''La Forest:'''<br />
<br />
Dworkin would not likely side with La Forest due to the fact that La Forest places the parents’ rights before the general principles of protecting vulnerable groups. In particular the fact that La Forest limits section 2(a) rights through the use of another Charter right, section 1. Dworkin says that rights should rather be shaped by underlying principles. <br />
Dworkin however, would agree with La Forest when he says that parents may interfere with their children’s rights as long as they do not exceed the limits established by public policy. (at para 86) This policy is in place for the social good of safety, directed towards the segment of the population, children. <br />
<br />
'''Lamer C.J.C:'''<br />
<br />
Dworkin would agree with Lamer C.J.C because his judgment suggests that the the section 7 right of the parents comes from underlying principles and that those principles don’t include the ability of parents to choose or refuse medical treatment for their child. <br />
At para 22 Lamer says that “nature of the rights guaranteed by s. 7” are closely connected to and limited by the principles of fundamental justice.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1349Course:Law3020/2014WT1/Group N/Positivism2014-02-14T19:34:46Z<p>Marshs132: /* Legal Positivism Law Theory */</p>
<hr />
<div><big><big>'''<br />
<big><big>== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
<br />
'''Complications with Austin’s Positivist Analysis:<br />
'''<br />
* What is the role of the judge?<br />
* Determining the identity of the sovereign.<br />
<br />
'''Theorist H.L.A. Hart:<br />
'''<br />
Hart brings Austin’s theory into a modern society. <br />
<br />
Not dependent upon moral content. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
• Raz and Bentham<br />
o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Positivism&diff=1341Course:Law3020/2014WT1/Group N/Positivism2014-02-14T19:28:42Z<p>Marshs132: Created page with "<big><big>''' == Legal Positivism Law Theory == Theorist: John Austin'''</big></big> '''The Theory:''' Legal Positivism was a response to natural law theory which separat..."</p>
<hr />
<div><big><big>'''<br />
== Legal Positivism Law Theory ==<br />
<br />
<br />
Theorist: John Austin'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories: <br />
# Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.<br />
# Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.<br />
<br />
'''Three Requirements for a Valid Law:<br />
'''<br />
# Command: Direction to do or not to do something.<br />
# Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission. <br />
# Sanctions: The threat of “evil” which ensures compliance. <br />
• Complications with Austin’s Positivist Analysis:<br />
o What is the role of the judge?<br />
o Determining the identity of the sovereign.<br />
• Hart:<br />
o Not dependent upon moral content. <br />
o Brings Austin’s theory into a modern society. <br />
o Brings in laws that are not characterized as commands. <br />
o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). <br />
o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. <br />
• Raz and Bentham<br />
o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Natural_Law&diff=1330Course:Law3020/2014WT1/Group N/Natural Law2014-02-14T19:09:53Z<p>Marshs132: /* Traditional Natural Law Theory: Law for the Common Good */</p>
<hr />
<div>== <big><big>'''Traditional Natural Law Theory: Law for the Common Good ==<br />
<br />
Theorist: Thomas Aquinas'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Essential to true law; laws which must be obeyed for reasons of justice, fairness, and morality, in addition to “mere” threat of punishment. True law is ultimately derived from a higher, non-human source and is moral and immutable. <br />
<br />
Thomas Aquinas believes that law makers are able to see what the common good is and is able to recognize how to communicate what the steps are to take citizens to this common good. Thomas has outlined four elements that all laws must have in order to be valid and therefore be followed that we will be applying to the case above;<br />
# Must be directed to the common good: “Common good” is defined as the good of community, not the good of a specific individual. <br />
# Must follow practical reason: Reasonable steps that lead to the common good outlined <br />
# Must be made by valid lawmaker: Ruler within community, who hold this position by reason of the natural order <br />
# Must be promulgated: Law must be written <br />
<br />
<br />
<br />
'''Impugned Legislation:'''<br />
<br />
209 Section 30(1) of the Child Welfare Act provides that a court may order a child to be committed to or subject to the care and custody of the Children's Aid Society for a period of time not exceeding 12 months<br />
<br />
19.(1) In this part and Part IV, (b) "child in need of protection" means, (ix) a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
<br />
28(10) that a court may hold a hearing and dispense with notice to the parents in an appropriate case, and further under section 30(1) (ii) which provides that if a child is found to be in need of protection, then only those orders set out in section 30 may be made by the court, that the hearing and the order of the court is a pro forma matter legislated into existence at the instance of a medical practitioner.<br />
<br />
Note: During the course of adjudication the legislation was repealed. <br />
<br />
<br />
'''Thomas Aquinas(TA) Analysis of the Impugned Legislation:'''<br />
<br />
1. Must be Directed to Common Good<br />
<br />
* TA stated that preservation and procreation are essential ‘goods’ to all humans and children embody this. <br />
* The common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on itsparenspatriae jurisdiction. (para 88) <br />
* The protection of a child’s right to life and health is a basic tenant of our legal system, and legislation to that end accords with the principles of fundamental justice. <br />
* Still recognizes the value of the family unit as the child is not allowed to be away from the parent for more than 12 months. <br />
<br />
2. Practical Reason<br />
<br />
* The general procedure under the Act also accords with the principles of fundamental justice: 1.The parents must receive reasonable notice of the hearing in which their rights might be affected. 2. The wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The onus of proof is on the Children's Aid Society, and it has been recognized by the courts that it must present a strong case. Finally 3. The initial order granting wardship to the Children's Aid Society must be reviewed before its expiry.<br />
* The previous is the practical reason which leads to the objective of protecting the children. <br />
<br />
3. The ruled and the ruler (requirement of valid lawmaker)<br />
<br />
* Valid lawmaker is the government of Ontario. <br />
* Follows the wishes of the community by constantly being updated by the valid lawmaker. <br />
<br />
4. Promulgation<br />
<br />
* As it is primary legislation, it was written down. <br />
<br />
<br />
'''Thomas Aquinas Analysis of the Court Decision: (La Forest)<br />
'''<br />
<br />
1. Must be Directed to Common Good<br />
<br />
* In a natural law perspective, La-Forest is trying to protect our Charter rights, which represents Canadian common good. <br />
<br />
2. Practical Reason<br />
<br />
* The infringement by the Children’s Welfare Act, on the parent’s s. 7 liberty rights is a practical and necessary step in order to ensure the common good and liberty of our children. <br />
<br />
3. The ruled and the ruler (requirement of valid lawmaker)<br />
<br />
* The Charter is a source of law because of Canada’s Constitutional Supremacy system as people who were in the positions to make valid laws drafted it. <br />
<br />
4. Promulgation<br />
<br />
* It’s written and has been written since 1982. It is there to be followed by the citizens of Canada.</div>Marshs132https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_N/Natural_Law&diff=1329Course:Law3020/2014WT1/Group N/Natural Law2014-02-14T19:08:48Z<p>Marshs132: /* Traditional Natural Law Theory: Law for the Common Good */</p>
<hr />
<div>== <big><big>'''Traditional Natural Law Theory: Law for the Common Good ==<br />
<br />
Theorist: Thomas Aquinas'''</big></big><br />
<br />
'''The Theory:'''<br />
<br />
Essential to true law; laws which must be obeyed for reasons of justice, fairness, and morality, in addition to “mere” threat of punishment. True law is ultimately derived from a higher, non-human source and is moral and immutable. <br />
<br />
Thomas Aquinas believes that law makers are able to see what the common good is and is able to recognize how to communicate what the steps are to take citizens to this common good. Thomas has outlined four elements that all laws must have in order to be valid and therefore be followed that we will be applying to the case above;<br />
# Must be directed to the common good: “Common good” is defined as the good of community, not the good of a specific individual. <br />
# Must follow practical reason: Reasonable steps that lead to the common good outlined <br />
# Must be made by valid lawmaker: Ruler within community, who hold this position by reason of the natural order <br />
# Must be promulgated: Law must be written <br />
<br />
<br />
<br />
'''Impugned Legislation:'''<br />
<br />
209 Section 30(1) of the Child Welfare Act provides that a court may order a child to be committed to or subject to the care and custody of the Children's Aid Society for a period of time not exceeding 12 months<br />
<br />
19.(1) In this part and Part IV, (b) "child in need of protection" means, (ix) a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or wellbeing, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately.<br />
<br />
28(10) that a court may hold a hearing and dispense with notice to the parents in an appropriate case, and further under section 30(1) (ii) which provides that if a child is found to be in need of protection, then only those orders set out in section 30 may be made by the court, that the hearing and the order of the court is a pro forma matter legislated into existence at the instance of a medical practitioner.<br />
<br />
Note: During the course of adjudication the legislation was repealed. <br />
<br />
<br />
'''Thomas Aquinas(TA) Analysis of the Impugned Legislation:'''<br />
<br />
1. Must be Directed to Common Good<br />
<br />
* TA stated that preservation and procreation are essential ‘goods’ to all humans and children embody this. <br />
* The common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on itsparenspatriae jurisdiction. (para 88) <br />
* The protection of a child’s right to life and health is a basic tenant of our legal system, and legislation to that end accords with the principles of fundamental justice. <br />
* Still recognizes the value of the family unit as the child is not allowed to be away from the parent for more than 12 months. <br />
<br />
2. Practical Reason<br />
<br />
* The general procedure under the Act also accords with the principles of fundamental justice: 1.The parents must receive reasonable notice of the hearing in which their rights might be affected. 2. The wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The onus of proof is on the Children's Aid Society, and it has been recognized by the courts that it must present a strong case. Finally 3. The initial order granting wardship to the Children's Aid Society must be reviewed before its expiry.<br />
* The previous is the practical reason which leads to the objective of protecting the children. <br />
<br />
3. The ruled and the ruler (requirement of valid lawmaker)<br />
<br />
* Valid lawmaker is the government of Ontario. <br />
* Follows the wishes of the community by constantly being updated by the valid lawmaker. <br />
<br />
4. Promulgation<br />
<br />
* As it is primary legislation, it was written down. <br />
<br />
<br />
<br />
<br />
<br />
'''Thomas Aquinas Analysis of the Court Decision: (La Forest)<br />
'''<br />
<br />
1. Must be Directed to Common Good<br />
<br />
* In a natural law perspective, La-Forest is trying to protect our Charter rights, which represents Canadian common good. <br />
<br />
2. Practical Reason<br />
<br />
* The infringement by the Children’s Welfare Act, on the parent’s s. 7 liberty rights is a practical and necessary step in order to ensure the common good and liberty of our children. <br />
<br />
3. The ruled and the ruler (requirement of valid lawmaker)<br />
<br />
* The Charter is a source of law because of Canada’s Constitutional Supremacy system as people who were in the positions to make valid laws drafted it. <br />
<br />
4. Promulgation<br />
<br />
* It’s written and has been written since 1982. It is there to be followed by the citizens of Canada.</div>Marshs132