Difference between revisions of "Category:Natural Law"
Jump to navigation
Jump to search
Freemank13 (talk | contribs) |
Fullbrooks13 (talk | contribs) |
||
| (24 intermediate revisions by 2 users not shown) | |||
| Line 1: | Line 1: | ||
| − | + | ||
=='''Natural Law'''== | =='''Natural Law'''== | ||
| − | Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power. | + | |
| + | <big>Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.</big> | ||
| + | |||
| + | |||
| + | |||
===Thomas Aquinas=== | ===Thomas Aquinas=== | ||
| − | + | [[File:St Thomas Aquinas.jpg|thumbnail|left|St Thomas Aquinas]] | |
| + | <big>For [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas], a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.</big> | ||
===Contemporary Renaissance === | ===Contemporary Renaissance === | ||
| − | <big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of | + | <big>While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the [http://laws-lois.justice.gc.ca/eng/const/page-15.html Canadian Charter of Rights and Freedoms] through the existence of fundamental freedoms such as freedom of religion and expression.</big> |
| + | |||
| + | |||
| + | |||
| + | <br> | ||
| + | <center> | ||
| + | |||
| + | <br> | ||
=='''Four Elements of Valid Law'''== | =='''Four Elements of Valid Law'''== | ||
| − | For a law to be considered valid under natural legal theory it follow four elements: | + | <big>For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:</big> |
====1. Must be directed to the common good ==== | ====1. Must be directed to the common good ==== | ||
| − | :When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good. | + | :<big>When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.</big> |
====2. Must follow practical reason ==== | ====2. Must follow practical reason ==== | ||
| − | :A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law. | + | :<big>A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.</big> |
====3. Must be made by a valid lawmaker ==== | ====3. Must be made by a valid lawmaker ==== | ||
| − | :For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate. | + | :<big>For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.</big> |
====4. Must be promulgated ==== | ====4. Must be promulgated ==== | ||
| − | :For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists. | + | :<big>For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.</big> |
| + | </center> | ||
| + | |||
| + | <br> | ||
| + | <br> | ||
=='''Applied to the Case'''== | =='''Applied to the Case'''== | ||
| Line 40: | Line 56: | ||
===Four Elements of Natural Law === | ===Four Elements of Natural Law === | ||
| − | In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law. | + | <big>In [http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2237/index.do Chaoulli v. Quebec] the laws in question were s. 15 of Quebec's [http://www.canlii.org/en/qc/laws/stat/rsq-c-a-29/latest/rsq-c-a-29.html Health Insurance Act] and s. 11 of the province's [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/A_28/A28_A.html Hospital Insurance Act] forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.</big> |
===1. Directed at common good=== | ===1. Directed at common good=== | ||
| − | :The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life” (para 42 | + | :<big>The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life”.<ref>Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para 42.</ref> |
:The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. | :The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good. | ||
| − | :The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test. | + | :The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.</big> |
===2. Must follow practical reason=== | ===2. Must follow practical reason=== | ||
| − | :Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death. | + | :<big>Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.</big> |
===3. Must be made by a valid lawmaker === | ===3. Must be made by a valid lawmaker === | ||
| − | :This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body. | + | :<big>This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.</big> |
===4. Must be promulgated === | ===4. Must be promulgated === | ||
| − | :This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document. | + | :<big>This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.</big> |
| Line 69: | Line 85: | ||
===The Problem of Unjust law === | ===The Problem of Unjust law === | ||
| − | :<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. | + | :<big>One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules. |
| + | |||
:Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big> | :Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.</big> | ||
| + | |||
| + | ==References== | ||
| + | {{Reflist}} | ||
Latest revision as of 15:11, 25 March 2014
Natural Law
Natural law is based on a legal theory wherein true law is derived from a higher, non-human source such as God, nature or reason. Natural law is primarily concerned with morality and the common good, and as such all valid natural laws are moral and are directed to advancing the common good—anything that fails to follow these requirements is considered invalid law under natural law theory. For natural law all true laws are universally applicable and don’t change over time; very different from legal realism which sees law judge-made decisions which exist purely a means to achieve social goals, not a morally right rule passed on to humans by a higher power.
Thomas Aquinas
For Thomas Aquinas, a 13th century friar, priest, and prominent natural law theorist, the law’s higher non-human source was God himself. However, as the law must filter through impure vessels (humans), Aquinas saw a distinction between the eternal law of God and natural law. Eternal law comes directly from God and is limpervious to changes, while natural law is what becomes of eternal law after filtering through the human mind.
Contemporary Renaissance
While natural law theory may appear to have little relation to the current legal system, there has been a renaissance of natural law due to the importance it places on nature and reason, and it has come into favour among Western liberals. This can be seen in the Canadian Charter of Rights and Freedoms through the existence of fundamental freedoms such as freedom of religion and expression.
Four Elements of Valid Law
For a law to be considered valid under natural legal theory it must follow four elements according to St Thomas Aquinas:
1. Must be directed to the common good
- When discussing the common good, natural law theory is referring to the good of the community, not the good of individuals within the community. There are some common goods that are essential to all humans, such as procreation and self-preservation, and a law aimed at protecting these things would certainly qualify as directed towards the common good.
2. Must follow practical reason
- A law must propose reasonable steps to be taken in pursuit of the common good. A law that doesn’t do this is invalid under natural law.
3. Must be made by a valid lawmaker
- For Thomas Aquinas, the valid lawmaker would have been a monarch whos powers came directly from God, while the current concept of valid lawmaker would be someone who has gained the support of the electorate.
4. Must be promulgated
- For natural law it is essential that laws be written down and disseminated among the people, as it is impossible to expect people to follow a law they don’t know exists.
Applied to the Case
Four Elements of Natural Law
In Chaoulli v. Quebec the laws in question were s. 15 of Quebec's Health Insurance Act and s. 11 of the province's Hospital Insurance Act forbidding any privatized medical care in Quebec, allowing only a public medical system. To determine if this law would qualify as a valid natural law, it must be examined through the four elements of valid law.
1. Directed at common good
- The argument of Chaoulli was that the government’s health care regulations through the HEIA were not in the interests of the common good. It was argued that by closing off the availability of private medical care, wait times were increased and people were suffering and even dying due to these unnecessarily long wait times: “a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non urgent waiting lists for orthopaedic surgery are in pain and cannot walk or enjoy any real quality of life”.[1]
- The basis for Chaoulli’s argument for allowing private health care to co-exist with public health care is that it would speed up wait times for everyone, there in increasing the common good. By this logic, any law that increases weight times or eliminates a possibility which would allow wait times to be minimized would be counter to the public good.
- The government claims that the HEIA and HIA is directed towards the common good, in that by refusing to allow the formation of a privatized system they are ensuring that everyone in Quebec has equal access to health care. If equality is a common good, this law would satisfy the common good test. However, based on the theory of natural law self-preservation is a much stronger common good objective than equality, so the HEIA laws prohibiting private medical practice fail the common good test.
2. Must follow practical reason
- Even if a law purports to be directed towards advancing the common good, it must do so in practical steps. In this case, the government claims that they are working towards the common good of a high-functioning medical system equally available to all residents. If this is the common good goal they are working towards, outlawing the addition of a private medical practice may qualify as a practical step towards achieving the common good. However, as set out above, this step is contrary to the common good objective of creating a health care system reduces wait times, pain and death.
3. Must be made by a valid lawmaker
- This element of natural law would be satisfied by the HEIA regulations, as they were created by an elected governmental body.
4. Must be promulgated
- This requirement would also be satisfied, as the regulation disallowing privatized medical care was part of the written HEIA document.
Due to its failure to advance the public good, a natural law theorist would not see the HEIA mandate against privatized health care as a valid natural law.
The Problem of Unjust law
- One theory found in natural law is that of teleology, which means that all things have a proper end of function and they cannot be understood without considering this end function. According to teleology, something can only be considered a knife if it fulfills its end function of cutting—if it fails to cut, it is no longer a knife. In this case, the medical system’s end function is to increase health and lower death rates. Because it is failing to fulfill this objective, it could be argued by a natural law theorist that the medical care system is no longer functioning as such under the HEIA rules.
- Natural law theory also stipulates that only valid laws should be followed. Therefore, a law that is invalid should not be followed. As it applies to this case, it’s possible to see Chaoulli as a natural law theorist in that he refused to follow a law he thought was invalid by ignoring the HEIA rules and attempting to set up and use a private medical practice.
References
- ↑ Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 at para 42.
Pages in category "Natural Law"
This category contains only the following page.