Difference between revisions of "Course:Law3020/2014WT1/Group L/Natural Law"
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However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /> | However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /> | ||
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Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it. | Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it. | ||
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| − | However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw. | + | However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.<br /> |
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| + | While the promulgation may be an issue to Aquinas in this case, positivist theorists, like John Austin, would assert that common law is no law at all regardless of being promulgated. Judges are mere actors of the state and should the sovereign disagree with judicial decisions, their decision will be dismissed. | ||
Latest revision as of 19:44, 27 March 2014
Traditional Natural Law
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.
St. Thomas Aquinas Theory on Natural Law
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.
Four Elements of Natural Law and Application to Geffen v Goodman Estates
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.
The Common Good
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all.
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts.
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.
Law Must Follow Practical Reason
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.
Must be Made by a Valid Lawmaker
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.
Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it.
Law Must be Promulgated
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are.
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in Geffen v. Goodman Estates is clear and established.
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.
While the promulgation may be an issue to Aquinas in this case, positivist theorists, like John Austin, would assert that common law is no law at all regardless of being promulgated. Judges are mere actors of the state and should the sovereign disagree with judicial decisions, their decision will be dismissed.