Course:Law3020/2014WT1/Group E/Natural Law
Natural law argues that there is a true law, which is distinguishable from human law. The source of this higher law is a non-human source such as divine command, human nature or the order of nature. Laws that derive from these sources are considered to be legitimate law. Further, due to natural law’s natural origins it is believed to be morally right. In order for human law to be consistent with natural law, it must have morally right aims.
Natural law states true law is obeyed for various reasons, not just simply due to the threat of punishment. True law is also obeyed because of reasons relating to justice, fairness and morality. Additionally, natural law is immutable and does not change over time.
According to Thomas Aquinas, the source of natural law is god. In order for human law to be valid it should derive from natural law. The objective of human law must be the common good. Thus, natural law is teleological. Aquinas argues that human beings are rational beings because god creates them. God has given human beings natural reason and if their natural reason is exercised properly, human beings will be able to distinguish right and wrong. Aquinas further argues, good is what all things seek. For law that good is the common good. Therefore, using their natural reason to ascertain the good and naturally seek it, human beings will reach the common good in the context of making laws. Thus according to Aquinas, human beings are not blindly led to the proper end rather, human beings self direct themselves to that end.
According to Aquinas, law is defined as “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (pg. 4). Aquinas has 4 requirements for valid law:
- The law must be directed to the common good
- The law must follow practical reason
- The law must be created by a valid lawmaker
- The law must be promulgated
Aquinas defines the common good as the good of the community, rather than good for a specific individual. Practical reason is derived from the proper exercise of natural reason and will provide the practical steps needed to achieve the end; the end of human law is the common good. A valid lawmaker, according to Aquinas, is one who is naturally in the position to know and recognize what the common good is and the one who can provide the practical steps to achieve that end. Aquinas requires laws to be promulgated, which ensures that everyone is able to know the law and therefore is able to obey the law.
According to Aquinas, law that does not pursue the common good is unjust law and therefore loses its binding force and can be disobeyed. Furthermore, if human law is contrary to natural law then human law is unjust and has no force. Judges make judgements, which Aquinas defines as a “statement or decision of the just or right” (pg. 30). A judgement is just when it follows the rectitude of justice, comes from those in authority, and the reason is based on certainty. The judiciary should interpret the letter of the law however, when the letter of the law is unjust, judges must render judgements based on the spirit of the law, which is the common good.
Application to KLB v BC
Protection of Children Act
Aquinas would find the Protection of Children Act, to be valid law. The legislation is directed at the common good, providing for and protecting children when they are placed in homes. Providing for and protecting children is good for everyone rather than good for a specific individual, since it is good for the community to have children grow up to be good citizens. Also, the legislation provides reasoned steps to the Minister and social workers when placing children in homes, as well as reasoned steps after the placement to ensure it is in the best needs of the child. The legislation was created by the BC legislature. The BC legislature is a valid lawmaker due to their position as elected officials, who have the specific ability of creating laws good for the community. Further, the BC legislature has the the time and funding to conduct research on social problems and provide practical resources to solve these problems in a manner that achieves the common good. The Protection of Children Act is published upon creation, thus it is written law. Further, it is available on the Internet, which further ensures that people are aware of it.
Aquinas would also find the Limitations Act to be valid law. The purpose of the Limitations Act is to make the criminal justice system efficient, protect potential defendants and preserving the presumption of innocence. These objectives go towards the common good. Accordingly Aquinas would find the act to fulfill the common good requirement of a valid law. The act provides practical reason to achieve the common good by detailing the time limitations on actions and when these time limitations begin and end. The act was created by a valid lawmaker, the BC legislature. Lastly, the act is written and available on the Internet.
On the other hand, Aquinas would not consider the common law of negligence to be valid law. Although negligence law is directed at the common good by deterring harmful behaviour and providing relief for victims. However, it does not meet any of the other requirements of valid law. Negligence law provides individuals with very vague steps to avoid or prevent harmful behaviour, i.e. to act as the reasonable man. Also, negligence law is only involved once an individual has been harmed and brings an action against the wrongdoer. It is then that negligence law does an assessment of the wrongdoer’s conduct and assesses what could have been done instead. Negligence law is judge made law, and accordingly would not be considered valid. Aquinas does not consider judges to be valid lawmakers. Judges make decisions on a case by case basis and are mainly considering the circumstances of that case and the application of the law to that particular case. This is inconsistent with Aquinas argument to centralize the law. Lastly, negligence law is not promulgated. Although, judgements are written on a case by case basis however, the law of negligence itself is not written anywhere outside of cases. Thus, this creates problems for individuals to know the law and obey the law. Additionally, negligence law has evolved and will continue to evolve, which further creates difficulties for individuals to know the law.
Judgement of the SCC
Aquinas would find the decisions of Chief Justice McLachlin and Justice Arbour to be just judgements. Negligence law is not valid law and so Aquinas would not require the justices to apply it, the Protection of Children Act and the Limitation Act is valid law and was applied. The judgements are based on certainty, come from those in authority, and follow the rectitude of justice. In the case, the justices interpreted the letter of the laws, the Protection of Children Act, the Limitations Act and the negligence law, and found wrongful conduct on the part of the Minister. However, liability was not imposed because of the expiration of the time limit imposed by the Limitations Act. It may appear that not imposing liability when the Minister has been found guilty would not follow the rectitude of justice. Aquinas would argue the judgement does in fact follow the rectitude of justice, because the Limitations Act is valid law and judges are required to apply valid law. Furthermore, Aquinas would point out the Limitations Act promotes the common good. Requiring the judges to ignore the Limitations Act in this case would not promote the common good, rather it would only promote the good of these specific individuals. Additionally, the children were provided with ample time to bring this action and even spoke with a Ministry representative regarding counselling and a settlement from the government and choice at this time not to commence their action.
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