Difference between revisions of "Course:Law3020/2014WT1/Group J/Natural Law"
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| − | =Theory= | + | =Natural Law Theory= |
| − | + | Natural Law Theory states that true law ultimately derives from a higher, non human source, which could be God, nature, or reason. It proposes that laws must be obeyed for reasons of justice, fairness, and morality. Morality plays an inherent role in natural law; in order to be consistent with this theory, society must be targeting moral laws and policies. This creates complications in a globally diverse society where different groups of individuals consider different aspects of reality “moral”. This would indicate that this theory of natural law may not apply in the same fashion to every individual in society, for the idea of morality is perceived in a different fashion by every individual. However, the issue of diverse morality is of lesser concern to St. Thomas Aquinas and his view on traditional natural law. | |
| − | == | + | [[File:Thomas Aquinas by Fra Bartolommeo.jpg|thumbnail|Thomas Aquinas]] |
| − | There are four elements of a valid law in the context of | + | ==Components of a Valid Law== |
| − | To be valid, a law must | + | There are four elements of a valid law in the context of Natural Law Theory. |
| − | + | To be valid, a law must: (1) be directed to the common good; (2) follow practical reason; (3) be made by a valid lawmaker; and (4) be promulgated. | |
| + | ===Common Good=== | ||
| + | The first source of law in natural law considers the idea of the common good. The law sets out steps and reasons that would help society reach the desired objective. Further, the concerned common good is that of the community. The questions then are how do one determine what the common good is and who is to decide this? | ||
| − | + | ===Practical Reason=== | |
| − | + | This element of determining whether a law is valid refers to the reasonable steps leading to the common good. Laws direct us at what one must do and the steps one must take to reach the common good. Thomas Aquinas believes that God has given individuals the capacity to devise the steps needed to reach the common good. If the impugned law in question does not follow practical reason, then the law would not be a valid one. | |
| − | + | ===Valid Lawmaker=== | |
| + | According to Aquinas, law must be made by a valid lawmaker. The lawmaker does not carry out the will and wishes of the community. Rather, there must be some naturally ordered relationship where there are leaders and there are followers and this notion is not normally a democratic model. The individuals that are deemed to be "natural rulers" are the ones who should determine the common good; moreover, these are the individuals that may put force, threats, and punishment to those who do not obey the rules and attempt to sabotage the objective. | ||
| − | Must be | + | ===Must be promulgated=== |
| − | + | The idea of promulgation is a key component of valid law as people are naturally unable to obey laws they do not know about. The law must be codified, written, and the knowledge of its existence must be known to the individuals in society. Without the knowledge, people simply cannot obey the law as put forth. | |
| − | + | ==Legislature vs Judiciary== | |
| − | + | It is also important to note that Aquinas holds that legislation is preferable to common law methods of creating new law, as he believes that legislators may possess greater authority and wisdom and they remain unattached to the law and, thus, provide laws not based on emotion but rather on reason. This leads to a further analysis of the judiciary in the perspective of Natural Law theorists. The notion of a just judgement must be one that requires prudence, authority, and inclination of justice. If the written law contains anything contrary to the natural right, it should be deemed unjust and therefore should not be applied. However, if the written law is valid, the judge must enforce and apply the written law. | |
| − | + | *''Note'': The above information is based off of content from pages 1-33 of Dimock's ''Classic Readings and Canadian Cases in the Philosophy of Law'' (see "Bibliogrphy" for more details) | |
==Analysis== | ==Analysis== | ||
| − | + | By examining these four elements of valid law in the case, ''PHS'', the concepts put forth by natural law theorists, such as Aquinas, can be better understood. | |
| − | First, | + | First, the impugned provisions of the law will be considered, which are ss. 4(1) and 5(1) of ''CDSA'', which prohibit the possession and trafficking of illegal drugs. |
| − | According to the framework outlined above, the first step to establish | + | According to the framework outlined above, the first step is to establish whether the law is directed at a common good. In regards to the ''CDSA'' it is clearly evident that the law’s goal is to protect both the safety and health of members of society by preventing the distribution and use of illegal dangerous drugs. The question posed in this case is what is the common good? Is it the common good of the court, or the federal government, or the local community? The ruling followed is one of the common good of society, as there was a claimed ''Charter'' breach and an exemption was ordered for Insite to continue providing their services. |
| − | Second, the law must follow practical reason. | + | Second, the law must follow practical reason. Here, the law is an indictable offence for breaking both possession and trafficking components. With the schedule breakdown on punishment to drug type, typically the more “lethal” the drug, the higher the punishment. The objective of the legislation would be to limit the residual criminality in the drug industry as well to protect vulnerable members of society. As a result, it can be determined that this law would follow practical reason. |
| − | Here, the law is an indictable offence for breaking both possession and trafficking components. With the schedule breakdown on punishment to drug type, typically the more “lethal” the drug, the higher the punishment. | ||
| − | + | Third, the law must be made by a valid lawmaker. In this case, as it is a piece of legislation, it was passed through the Parliament of Canada and approved by the Senate. It received Royal Assent and is a piece of official legislation. Ideally in a democratic government, the laws put forth are the wishes of the community. | |
| − | + | Finally, the law must be promulgated. In this case, this element is clearly identified; it is written in the ''CDSA'', which is a federal statute. | |
| − | + | By analyzing the impugned provision through the perspective of Aquinas and what he determines to be a valid law it is clear that in this instance the objective is met and the specified provisions of the ''CDSA'' are indeed valid. | |
| − | + | It is also important to note that Aquinas advances that legislation is preferable to common law methods of creating new law, as he believes that legislators may possess greater authority and wisdom and they remain unattached to the law. This leads to a further analysis of the judiciary with respect to Natural Law Theory. The notion of a just judgment must be one that requires prudence, authority, and inclination of justice. If the written law contains anything contrary to the natural right, it should be deemed unjust and therefore should not be applied. However, if the written law is valid, the judge must enforce and apply the written law. | |
| − | + | As the ''CDSA'' is legislation and valid law, Aquinas would find it preferable to common law methods of creating new law. The ''CDSA'' was passed by the legislature, which in Aquinas’ opinion possess greater authority and wisdom. | |
| − | |||
| − | + | In ''PHS'', the court adopted an approach that Aquinas would determine to be a "just judgment". A just judgment according to Thomas Aquinas is one that requires prudence, authority, and an inclination of justice. If the written impugned law contains anything contrary to the natural right, then it should and must be deemed unjust. However, if the law were valid, the judiciary must enforce and apply the written law as it is. | |
| − | In | + | In the ''PHS'' judgment delivered by the Supreme Court of Canada, the impugned law being the provisions of the CDSA were deemed valid, however were considered a breach of section 7 of the ''Charter''. It was deemed that the greater "supreme" law being the ''Constitution'' needed to be enforced in this instance. The court achieved the common good objective by ordering the Minister to grant an exemption for Insite to continue their operations. The ''Constitution'', which is the binding and supreme law, is the one the Supreme Court upheld in this ruling. This will refer back to morality, which Thomas Aquinas believes is inherent in law, where the goal of society is to target moral laws and policies. The court upheld this notion of morality, noting that it would be of great detriment to the health and well being of members of society if Insite were forced to close it's doors. |
| + | |||
| + | |||
| + | |||
| + | =Navigate to Other Legal Theories= | ||
| + | {| class="wikitable" | ||
| + | |- | ||
| + | ! Theory !! Philosopher | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/Natural_Law|Natural Law]]|| [http://en.wikipedia.org/wiki/Thomas_Aquinas Thomas Aquinas] | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/Positivism|Positivism]] || [http://en.wikipedia.org/wiki/John_Austin_(legal_philosopher) John Austin] | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/Separation_Thesis|Separation Thesis]] || [http://en.wikipedia.org/wiki/HLA_Hart Hart] [http://en.wikipedia.org/wiki/Lon_Fuller Fuller] | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/System_Of_Rights|System of Rights]] || [http://en.wikipedia.org/wiki/Ronald_Dworkin Ronald Dworkin] | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/Liberty-Paternalism|Liberty & Paternalism]] || [http://en.wikipedia.org/wiki/John_Stuart_Mill John Stuart Mill] [http://en.wikipedia.org/wiki/Gerald_Dworkin Gerald Dworkin] | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/Law_As_Efficiency|Law As Efficiency]] || [http://en.wikipedia.org/wiki/Adam_smith Adam Smith] | ||
| + | |- | ||
| + | | [[Course:Law3020/2014WT1/Group_J/Feminist_Jurisprudence|Feminist Jurisprudence]] || [http://en.wikipedia.org/wiki/Catharine_MacKinnon Catharine MacKinnon] | ||
| + | |||
| + | |- | ||
| + | |||
| + | |} | ||
Latest revision as of 23:22, 26 March 2014
Natural Law Theory
Natural Law Theory states that true law ultimately derives from a higher, non human source, which could be God, nature, or reason. It proposes that laws must be obeyed for reasons of justice, fairness, and morality. Morality plays an inherent role in natural law; in order to be consistent with this theory, society must be targeting moral laws and policies. This creates complications in a globally diverse society where different groups of individuals consider different aspects of reality “moral”. This would indicate that this theory of natural law may not apply in the same fashion to every individual in society, for the idea of morality is perceived in a different fashion by every individual. However, the issue of diverse morality is of lesser concern to St. Thomas Aquinas and his view on traditional natural law.
Components of a Valid Law
There are four elements of a valid law in the context of Natural Law Theory. To be valid, a law must: (1) be directed to the common good; (2) follow practical reason; (3) be made by a valid lawmaker; and (4) be promulgated.
Common Good
The first source of law in natural law considers the idea of the common good. The law sets out steps and reasons that would help society reach the desired objective. Further, the concerned common good is that of the community. The questions then are how do one determine what the common good is and who is to decide this?
Practical Reason
This element of determining whether a law is valid refers to the reasonable steps leading to the common good. Laws direct us at what one must do and the steps one must take to reach the common good. Thomas Aquinas believes that God has given individuals the capacity to devise the steps needed to reach the common good. If the impugned law in question does not follow practical reason, then the law would not be a valid one.
Valid Lawmaker
According to Aquinas, law must be made by a valid lawmaker. The lawmaker does not carry out the will and wishes of the community. Rather, there must be some naturally ordered relationship where there are leaders and there are followers and this notion is not normally a democratic model. The individuals that are deemed to be "natural rulers" are the ones who should determine the common good; moreover, these are the individuals that may put force, threats, and punishment to those who do not obey the rules and attempt to sabotage the objective.
Must be promulgated
The idea of promulgation is a key component of valid law as people are naturally unable to obey laws they do not know about. The law must be codified, written, and the knowledge of its existence must be known to the individuals in society. Without the knowledge, people simply cannot obey the law as put forth.
Legislature vs Judiciary
It is also important to note that Aquinas holds that legislation is preferable to common law methods of creating new law, as he believes that legislators may possess greater authority and wisdom and they remain unattached to the law and, thus, provide laws not based on emotion but rather on reason. This leads to a further analysis of the judiciary in the perspective of Natural Law theorists. The notion of a just judgement must be one that requires prudence, authority, and inclination of justice. If the written law contains anything contrary to the natural right, it should be deemed unjust and therefore should not be applied. However, if the written law is valid, the judge must enforce and apply the written law.
- Note: The above information is based off of content from pages 1-33 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law (see "Bibliogrphy" for more details)
Analysis
By examining these four elements of valid law in the case, PHS, the concepts put forth by natural law theorists, such as Aquinas, can be better understood.
First, the impugned provisions of the law will be considered, which are ss. 4(1) and 5(1) of CDSA, which prohibit the possession and trafficking of illegal drugs.
According to the framework outlined above, the first step is to establish whether the law is directed at a common good. In regards to the CDSA it is clearly evident that the law’s goal is to protect both the safety and health of members of society by preventing the distribution and use of illegal dangerous drugs. The question posed in this case is what is the common good? Is it the common good of the court, or the federal government, or the local community? The ruling followed is one of the common good of society, as there was a claimed Charter breach and an exemption was ordered for Insite to continue providing their services.
Second, the law must follow practical reason. Here, the law is an indictable offence for breaking both possession and trafficking components. With the schedule breakdown on punishment to drug type, typically the more “lethal” the drug, the higher the punishment. The objective of the legislation would be to limit the residual criminality in the drug industry as well to protect vulnerable members of society. As a result, it can be determined that this law would follow practical reason.
Third, the law must be made by a valid lawmaker. In this case, as it is a piece of legislation, it was passed through the Parliament of Canada and approved by the Senate. It received Royal Assent and is a piece of official legislation. Ideally in a democratic government, the laws put forth are the wishes of the community.
Finally, the law must be promulgated. In this case, this element is clearly identified; it is written in the CDSA, which is a federal statute.
By analyzing the impugned provision through the perspective of Aquinas and what he determines to be a valid law it is clear that in this instance the objective is met and the specified provisions of the CDSA are indeed valid.
It is also important to note that Aquinas advances that legislation is preferable to common law methods of creating new law, as he believes that legislators may possess greater authority and wisdom and they remain unattached to the law. This leads to a further analysis of the judiciary with respect to Natural Law Theory. The notion of a just judgment must be one that requires prudence, authority, and inclination of justice. If the written law contains anything contrary to the natural right, it should be deemed unjust and therefore should not be applied. However, if the written law is valid, the judge must enforce and apply the written law.
As the CDSA is legislation and valid law, Aquinas would find it preferable to common law methods of creating new law. The CDSA was passed by the legislature, which in Aquinas’ opinion possess greater authority and wisdom.
In PHS, the court adopted an approach that Aquinas would determine to be a "just judgment". A just judgment according to Thomas Aquinas is one that requires prudence, authority, and an inclination of justice. If the written impugned law contains anything contrary to the natural right, then it should and must be deemed unjust. However, if the law were valid, the judiciary must enforce and apply the written law as it is.
In the PHS judgment delivered by the Supreme Court of Canada, the impugned law being the provisions of the CDSA were deemed valid, however were considered a breach of section 7 of the Charter. It was deemed that the greater "supreme" law being the Constitution needed to be enforced in this instance. The court achieved the common good objective by ordering the Minister to grant an exemption for Insite to continue their operations. The Constitution, which is the binding and supreme law, is the one the Supreme Court upheld in this ruling. This will refer back to morality, which Thomas Aquinas believes is inherent in law, where the goal of society is to target moral laws and policies. The court upheld this notion of morality, noting that it would be of great detriment to the health and well being of members of society if Insite were forced to close it's doors.