Course:Law3020/2014WT1/Group A

Reason

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Humans are bound by reason. Reason acts as a barometer that measures human acts, and since the law binds people to act, the law is a concept that pertains to reason. As Aquinas notes in Summa Theologica, “since the law is a kind of rule and measure, it may be something in two ways. First, as in that which measures and rules; and since this is proper to reason, it follows that […] law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are included to something by reason of some law, so that any inclination arising from a law may be called a law, not essentially but by participation as it were” (Dimock 4).

As such, in order for an act to have the nature of law, it must follow some rule of reason. Aquinas further distinguishes between practical reason and speculative reason. Practical reason refers to reason that implies rules for behavior based on how one ought to act, while speculative reason refers to a more general knowledge governing a state of affairs (that is, the way things actually are). Aquinas also puts forth the idea of the common good as the end result of our actions. It is through reason itself that we achieve actions that culminate in the common good, and the law plays a pivotal role in directing these actions.

In Cuthbertson v Rasouli, the Health Care Consent Act (HCCA) provides a statutory framework for governing cases involving consent to medical treatment. Under the Act, the Substitute Decision Maker (SDM) must act in the best interests of the patient (s. 21(2)), and if the SDM fails to do so, the Consent and Capacity Board can overrule her decision (102). In this case, the idea of practical reason dictates that the end result must be achieved through a series of reasonable steps in accordance with the law. The HCCA exists to perpetuate practical reason by governing the process of objective decision making when patients are unable to consent to treatment. It sets out a number of criteria that the SDM must consider in making her decision, such as the patient’s medical condition, well being, values, and wishes (s. 21(2)). By considering each of these issues, the SDM follows a pattern of behavior that dictates how one ought to make decisions based on a patient’s treatment or withdrawal of treatment.

Although the parties are in dispute over the definition of ‘treatment’ under the act and whether this refers to withdrawal of life support, the decision of the court ultimately makes use of the doctrine of practical reason by vesting the final in the authority of the Board. If the SDM does not follow an objective standard in acting in the best interests of the patient, the Board can intervene to ensure that this standard is consistently adhered to.

The Common Good

Reason ultimately leads to happiness, and the law must aim at the happiness of the whole community as opposed to that of the individual. Aquinas rejects the Roman ideal that the law must reflect the will of the sovereign, and that the will of the sovereign is enough to give a maxim the force of law, and instead argues that in making laws, the sovereign must consider what benefits the common good.

The common good refers to interests that are shared at a societal level by ideal communities, not necessarily to any individual interests. Aquinas believes that humans require the collective efforts of communities to survive, and each person in each community has a role that must be fulfilled in the drive toward the common good. Further, the political structure of society is necessary in order to perpetuate culture, knowledge, procreation, self-preservation, religious enlightenment, and economic activity. As Aquinas puts it, “since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of law, save in so far as it regards the common good. Therefore, every law is ordained to the common good” (Dimock 5).

At first glance, the order imposed by the statutory framework of the HCCA in Cuthbertson v Rasouli appears only to apply to individual affairs, as the primary purpose of the statute is to regulate matters of medical consent between individuals. However, the Act has wider implications for the collective common good; it is part of a larger framework of rules in a political climate designed to perpetuate self-preservation. When an individual is no longer able to make decisions regarding his own bodily integrity, he must rely on his SDM to make such decisions in his place. In Cuthbertson, the parties are in dispute over who has the authority to make life-altering decisions, and ultimately, the court refers both parties to the Board, which is given this authority by the HCCA. Since law is ordained to the common good, as Aquinas notes, the HCCA by definition is well equipped to govern matters regarding medical consent.

The Lawmaker

St. Thomas Aquinas

Aquinas believes that a valid lawmaker is authorized to make laws because of a natural order. The power of a valid lawmaker comes from divine authorization, and originates in those who are most virtuous and therefore most fit to rule. Rulers inherently know what is part of the common good and how to direct others toward it, and Aquinas believes that a valid lawmaker has the right to threaten or coerce her subjects in order to achieve this end. Conversely, he also believes that these natural lawmakers are not obligated to rule according to the wishes of their communities; they exist simply to direct their subjects toward ‘true good,’ which operates based on an objective standard (Dimock 7).

The type of hierarchical fiduciary relationship between lawmakers and communities that is advocated by Aquinas is present in Cuthbertson, although the decisions of regulating bodies become less objective and more subjective as they filter through the levels of government. The valid lawmaker in Canada is the federal Parliament, which grants power to provincial authorities according to the principles of federalism and division of power. Provincial statutes, such as the HCCA in Ontario rely on the interpretation of judges when certain provisions are in dispute with respect to consent to treatment. Because these interpretations are made on a case-by-case basis, the Board has a great deal of discretion when it comes to interpreting the law. This subjective interpretation of what is presumably an objective standard enacted by a valid lawmaker (federal Parliament) departs from Aquinas’ view that one person rules a community in accord with a natural order. In reality, as evidenced by Cuthbertson, communities are made up of a number of regulatory bodies, lawmakers, and governments that interpret the law to the best of their ability. In cases that involve decisions about medical issues and which carry heavy moral implications, the law can only act as a guide for ‘true good.’

Promulgation

Aquinas believes that in order for laws to be adequately followed, they must be codified and made available to the public. Since obedience to the law results in the common good and it is impossible to obey a law that is not known, if the law is not known, it is impossible for that law to perpetuate the common good.

The HCCA is widely known and available in Ontario, and in Cuthbertson, neither party disputes the existence of the statute. However, the appellants argue that the definition of the word ‘treatment’ does not extend to withdrawal of life support, and requiring consent for this procedure places doctors in a compromising ethical position [71]. Ultimately, the Supreme Court rules that withdrawal of treatment indeed constitutes treatment proper, and the existence of ethical dilemmas are part of the medical field and do not alter this conclusion. A natural law theorist such as Aquinas would agree that given these facts, the Board is adequately equipped to handle complex issues and has the authority to override the wishes of the SDM, given that the HCCA is promulgated and perpetuates what is in the common good.

Legal Positivism as a response to Natural Law

Legal positivism is a direct response to St. Tomas Aquinas’ theory of Natural Law. Aquinas posits that True law is ultimately derived from a higher, non-human source. True law is morally right because if its natural origins and human law must have morally right aims in order to be consistent with natural law. According to Aquinas, immoral laws are not true laws and are contrary to natural law; therefore, illegitimate laws do not have to be followed.

Defining Legal Positivism

John Austin

John Austin’s theory of legal positivism defines laws as commands, issued by superiors to subordinates, and backed by sanctions. According to Austin, a command, “obliges a person or persons, and obliges generally to acts or forbearances of a class.” (Dimock, Susan. Ed. Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto: Prentice Hall, 2002) 44.) That is, a command obliges a person or persons to a course of conduct, or a way to act. A superior or sovereign, for Austin, must be a determinate and common superior to whom the bulk of a given society is in the habit of obedience of submission. For Canada, the superior would be Parliament, as it is known, recognizable and the bulk of society is in the habit of obedience. In order to establish whether a law is a true law or not, Austin does not consider morality and says that validity of a law depends only on its content. Austin only asks if the law is a command, issued by superiors to subordinates, and backed by sanctions. If the law fits within this definition, the law is a true positive law. The separation of laws from morality is known as the separation thesis. Positive law does not have to have moral aims, although it can, it is not necessary for it to be a true law. HLA Hart, another legal positivist, considers the “pedigree” test in determining the validity of a law. The pedigree test asks if the law was made in accordance with the rule of the law making jurisdiction regarding the creation of law. If the law was made in accordance with these rules, it is a true positive law.

Application- Cuthbertson v Rasouli

Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19.

A first glance at Cuthbertson may suggest a more appropriate connection with natural law. That is, it would appear that the court would consider the morality of the law at issue due to the sensitive nature of the circumstances. Because the case is deciding who has the final say when it comes to the life of a person, there are clearly moral issues at play. However, upon closer examination, it would appear that an analysis of Cuthbertson lends itself better to a positivism analysis.

The two issues in the case are as follows:

1. “The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board”. (Cuthbertson at para 15)

2. “Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent”. (Cuthbertson at para 16)

Majority

The legislation was enacted by a governmental body and would follow the definition of “a command, issued by superiors to subordinates, and backed by sanctions”. The Act commands people to act in a certain way and provides sanctions for disobedience. The HCCA is a true positivist law that must be followed regardless of its morality. The reasoning and decision itself would also fit the definition of legal positivism

The issues of this case do not consider what would be morally right, but look to the guiding legislation for the answer. “This case turns on statutory interpretation- what the HCCA provides. It is not a case about who, in the absence of a statue, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment” (Cuthbertson at para 4). That is, the case does not consider who has the morally right authority to decide about when to withdraw life support, but rather what the legislation provides for. The courts ultimate goal in this case is to find what the legislature intended.

Austin would approve of the way in which the courts have approached this case, because the sovereign is the ultimate law that needs to be followed. The judges are not attempting to write their own laws, but to give efficacy to the legislature. In legal positivism, judges act as ministers who carry out the will of the sovereign with the limited power that has been delegated to them. In Cuthbertson, the judges are appropriately fulfilling this role and adhering to the view that the legislature is better suited to modify existing laws. The holding in Cuthbertson is that the HCCA grants the substitute decision maker (SDM) power to decide whether or not life support should be withdrawn. The SDM must follow certain criteria outlined in the Act. Doctor’s can appeal to the board if they believe the decision is not the right one based on the criteria, and the board will have the final say on whether to overrule the SDM’s decision. The criteria that the SDM and doctors must follow are not aimed solely at the wishes of the patient, but what would be in the incapable patient’s best interests (Cuthbertson at para 78).

Dissent

The dissenting opinion is that the common law should govern these types of decisions, as the HCCA does not apply to the withdrawal of treatment. The dissent would find that consent is not required to withdraw or withhold treatment that is medically ineffective (Cuthbertson at para 176). Although this is quite a different outcome from that of the majority, it still follows a legislative interpretation that would be approved by Austin as following true positivist law. The judges are still acting in a way that supports the sovereign as the superior legislative body and are only interpreting the legislation to give effect to what the sovereign intended.

Hart's Position

HLA Hart built upon on Austin’s theory of legal positivism and responded to some of the common criticisms directed at legal positivism. Hart proposes two basic premises for positivism: 1) Law and Morality are different things. Hart asserts that in practice these two concepts will not conflict because most laws are moral but it is not necessary i.e. conflict between law and morality is possible. In case of a conflict, the individual has to choose between either following the law or morals. 2) Hart explains that laws have authority because they are made by a process that is well accepted by society and therefore the citizens feel compelled to obey it. Hart calls this established process of making laws the ‘rule of recognition’; if a law is made through that process, it forms part of the legal system and is authoritative. The ‘rule of recognition’ in any society is a product of two things: the acceptance of the rule of recognition by public officials and the public and a moral compulsion to accept that rule. However, Hart says that a rule of recognition is not always the correct choice; it could be wrong.

Hart then goes on to explain the role of judges in a legal system. Hart differentiates between easy and hard cases. The easy cases, by definition, are easily resolved because they fall within the plain meaning and scope of a law. However, there are hard cases that do not fall within the ‘core’ of the law and might be in the ‘penumbra’ of the meaning of law. Hart claims that even in the hard cases the judges do not draw simply on morality and decide the hard cases. Judges in deciding the hard cases turn again to set rules that have been established and followed by judges because they feel compelled to; almost like a rule of recognition again.

Fuller's Position

Lon Fuller takes issue with the Hart’s and positivism’s, generally, separation of law and morality. First, Fuller argues that the ‘rule of recognition’ is based in morality i.e. people only obey and feel compelled to obey laws that conform to the rule of recognition because they believe that the people involved in the process are guided by morality and therefore the laws produced by this process are moral. Secondly, Fuller argues that even apart from the process, law has an inner morality as well because a law has to be made in accordance with certain requirements which ensure that all laws are moral. Thirdly, Fuller argues that positivist’s claim that law and morality are separate fails to explain why people choose to obey immoral laws. He questions their motivation to obey unjust laws if the separation between morality and law is so apparent.

The Canadian Context

In the world around us, there is more evidence for the truth of Hart’s position rather than Fuller’s position. We live in a constitutional democracy. Firstly, in a multi-cultural society it is dangerous to combine law and morality because morality can be subjective and therefore different for different people. Hence, it is necessary for law to separate itself from morality and focus on maintaining peace and stability. Secondly, it is apparent from our law making process that it is possible to pass immoral laws because the law making requirements are only procedural and not substantial. Also, even with the Charter in place, governments can choose to override rights of citizens by invoking the ‘notwithstanding clause’ provided in the Charter itself. Thirdly, people sometimes follow immoral and unjust laws, like the judges in Nazi Germany, because they do not simply realize that the laws are immoral at that point in time and history. It is the same logic behind patriotism: people who believe that killing another human being is the greatest sin would nevertheless kill strangers in a war zone because they do not feel any conflict with their morals. There are real forces such as propaganda and the instilling the feeling of patriotism as a supreme feeling in children from an early age can be used to compel people to do things that would otherwise be morally abhorrent.

Application to the Case

The law in question in this case is the Ontario Health Care Consent Act. The doctors challenged the applicability of the law to situations of withdrawal of life support. The first concern for Hart and Fuller would be to determine whether the law is legitimate or not. The law in question was passed by the Ontario legislature according to all the requirements of the Ontario and Canadian legislative processes. The legislature is regarded as the legitimate authority by everyone in Canada and therefore the law satisfies the ‘rule of recognition’ requirements and is a legitimate law according to Hart. According to Fuller, for the law to have legitimate authority it has to be grounded in morality. The particular law in question relates to the matters of consent regarding the treatment of patients who are unable to give consent themselves. Making decisions in the best interest of the incapable person is fully consistent with morality. Since that is what the law in question is meant to do, Fuller would approve of the law as legitimate. The HCCA is not a law that is inconsistent with morality; Hart stated that in most cases they would be consistent but it is possible for them to be in conflict. This is a “hard” case, in the words of Hart, because it does not fall in the settled core of meaning of the law. The HCCA had been in effect for about seventeen years when the case was decided but there hadn’t been a case that raised the question of withdrawal of life support. Hence, this case falls in the penumbra of cases that Hart theorized about when the judges have to interpret the legislation and apply it to the situation at hand. According to Hart, there are rules in a legal system about how to interpret legislation when it does not apparently fit the situation at hand. He argues that this approach is not completely formalistic with the judges merely applying the words of the law but they have some discretion while working within the rules while interpreting laws. In our legal system, judges have adopted the ‘words in context’ approach where they interpret the specific words used in a law in the context of the purpose that the law was meant to serve. Interpretation of statutes in Canada is also guided by the Interpretations Acts at the federal and provincial level. The interpretation of the HCCA by the SCC is in accordance with the interpretive doctrines that have been widely accepted by courts all over Canada which allows jurisprudence to be somewhat consistent in terms of their interpretation of statutes.

Fuller asserts that the so called “hard” cases in the penumbra are where the judges uses their subjective morality to aid in the interpretation of laws. Fuller asserts that there is no such thing as the penumbra and that law is always being interpreted by judges according to what they think is morally right. It is from this interpretation and gap filling by the judges that the law derives its moral legitimacy because the law is actually giving effect to morally grounded intentions of the judges.

Fuller has a good argument but it does not successfully challenge Hart’s position at least in the Canadian context because the courts in Canada are bound by rules of interpretation and they do not have unfettered discretion. The courts have to take into account the purpose, context, words use in the statute, and the intention of the Parliament while interpreting statutes. The SCC has explicitly stated that it is not the job of the courts to review the substantive content of the legislations; even if the law is clearly a bad law but as long as the intention of the Parliament is clear the courts have to give effect to that intention. This process of interpretation was also applied in Cuthbertson v Rasouli by both the majority and the dissent, however they arrived that different results. This case was only about the applicability of the law rather than its substantive content and therefore does not completely conform to either Hart’s or Fuller’s view. However, it does lean more towards Hart’s position by showing that judges have some discretion within the broader framework of statutory interpretation.

Ronald Dworkin: System of Rights

Ronald Dworkin

Theory

Dworkin’s theory is founded on the idea that law contains not only rules, but principles also. If a case is not decided by a rule, it will be covered by principles, legally binding because they form part of the law. Law itself is premised on the process of adjudication, and judges apply principles of justice and fairness throughout the process, thus law is founded on these principles just as it is on legal rules. Dworkin argues that law encompasses more than legal rules, it further encompasses principles and policies. Policies are social goals furthered for a certain segment of the population, and principles are based on fundamental ideas of justice and fairness that support certain rights and duties. Metaphorically, a stream can be thought of as a unified body of principles. This stream changes as it flows with time. Similar to a stream these principles come to us from somewhere else, they come to us from the past. As the stream moves through time it moves through a landscape, composed of various sediments. As it flows through the world like sediment, principles enter into the stream, and contrarily sometimes sediment will leach out and go back into the dirt and new sediment will be picked up. Principles are characterized as having a quality of weight, and importance that rules do not. Judicially, judges may have the onus of weighing principles pointing in opposite directions against each other in the formulation of their decision. The distinction between rules and principles is not always clear. Dworkin states however that there is always a right answer, because principles are part of the law judges have to apply principles and there is a right way and a wrong way to apply them. Principles are most important in hard cases, after which they come to stand for a new rule, which was inexistent prior to the case. Principles such as these become binding, and judges are required to follow them where they are important. Principles dictate both discretion and rules. Rules are binding in the sense that the court cannot just disregard them. The origin of principles draws from a sense of appropriateness developed in both profession and public through time. Further, it lies in appropriateness being sustained. Principles are controversial, important, and they are constantly changing as society develops with time. Arguments of policy tend to justify political decisions by showing how the decision contributes to protecting the community, and arguments of principle justify a political decision by portraying how it protects individual or group rights. Judges tend to be guided by principle, whereas legislatures are directed by policy coupled with principles. Judicial reasoning is constantly interpretive in the sense that it draws on the past and the future, interpreting law as unfolding portraying a concept of justice and fairness.

Ronald Dworkin

Application

In the case at hand Mr. Rasouli was on life support. The physicians treating him thought it would be in his best interest to be taken off life support, as they thought he was beyond recovery and was merely a soul less body. The wife and family of Mr. Rasouli on the contrary wanted to keep him alive. Applying the theory at hand, Dworkin is a strong believer of applying principles of justice and fairness. Dworkin argues that this concept of justice and fairness is how society progresses, and further forms the basis of judicial decisions at large. Applying the concept of principles, prior to the enactment of a law mandating the requirement that either the patient or the decision-maker was the only one allowed to pull the life support, physicians have a say. However, society at large would likely be appalled by this decision. How can someone so far removed from the family unit, the religious beliefs, and the moral principles of the patient have the ultimate say in the termination of their lives. It seems that it had become a hardwired principle that if the patient did not ultimately dictate their wishes then the decision maker was the next in line. A physician cannot take into account the religious principles believed by members of faiths they are not members of. Mr. Rasouli is a member of the Shia Muslim faith which believes life should be prolonged as long as possible, and in the case at hand the physicians wished to end his life prior to that point. The origin of principles stems from appropriateness. In this case, the physicians making the ultimate decision as to whether Mr. Rasouli would live or not does not seem to be appropriate. Over time a principle becomes a part of the stream, and becomes accepted more and more. In the case at hand, it became a rule that either the patient or the decision maker would ultimately make the decision as to whether the plug would be pulled. On the opposing side are critics who felt that it would be best to free up beds and save other lives. The patient was in a vegetative state with no chance of recovery, thus why waste bed space. This is an opposing principle. Ultimately, the judiciary takes into account the various principles and decides upon which outweighs the other. The principle here leans towards a favor in the patients and decision maker’s direction. Dworkin pushed for principles of justice and fairness, and in the case at hand it is only just and fair to allow the patient and decision maker to have the ultimate says.

Conclusion

In conclusion, principles form a large portion of Dworkin's framework. Dworkin believed that principles were ever changing, and the judiciary adapted to incorporate these principles. The stream will continue to pick up new sediments as the stream continues to flow, just as society picks up new principles as society continues to evolve.

Ronald Dworkin

Liberalism

Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks when and why the law should interfere with private choices. That is, when are restrictions on individual liberty justified? Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (Dimock 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (Dimock 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws.

Liberalism identifies four justifications for restricting the liberty of individuals by law:

1. The harm principle states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (Dimock 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.

2. Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (Dimock 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.

3. Legal Moralism allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (Dimock 303).

4. The Offence Principle allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.

JS Mill

John Stuart Mill by London Stereoscopic Company, c1870

JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (Dimock 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.

Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury.

The Harm Principle; Application to Cuthbertson v Rasouli

Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19.

Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.

Mature Faculties

Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.

Harm to Others

A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.

Paternalism: Application to Cuthbertson

From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (Dimock 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.

The Decision in Cuthbertson would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.

Overview

Law and economics theorists believe that the greater the social wealth of a society the better. Accordingly, they argue that the purpose of law should be to maximize social wealth. Interestingly, wealth is not measured in terms of money alone. Social wealth includes anything and everything that has “value” which is measurable in some way. Unfortunately, there is no absolute way of measuring value; money does not apply to every situation. However, value can be measured quite efficiently in relation to other things of value. For example, Canadians value their right to liberty. However, they value the punishment of wrongdoing in the form of a crime more than the right to liberty and therefore we, as a society, allow the imprisonment of criminals. The maximization of wealth, understood in this sense, should be the goal and purpose of the law. Law as efficiency theory has both descriptive and prescriptive components. Some laws that we currently have can be shown to conform to the efficiency theory and their existence can be explained on the basis of efficiency. Prescriptively, efficiency theorists argue that all laws should be aimed at efficiency because they believe in the normativity of wealth maximization. Indeed, some laws exist for the sole purpose of increasing efficiency.

Efficient Allocation of Resources

The maximization of social wealth starts with efficient allocation of resources. Efficient allocation means that a resource should be given to the party that values it the most. Since everyone values their resource more than anyone would, we have the greatest social wealth. From that point onwards, social wealth can be increased by facilitating transactions between different parties that lead to a net increase in social wealth. There are two types of theoretical transactions that can lead to an increase in social wealth. It is worth noting that the law and economics theory has two basic assumptions.

First, the efficiency theorists believe that all parties involved in a transaction are rational parties that are acting in their self-interest in maximizing the value of their resources. Second, the efficiency theorists believe that people have all the information they need to make a transaction i.e. they do not take into account fraud, deceit or ignorance in their theory.

Two Types of Transactions

Nicholas Kaldor

A transaction is Pareto-Superior if both parties are benefitting from the transaction. For example, if X has a laptop that’s worth $100 and Y offers her $101 and they make the deal, X has a $101 cash and Y has a laptop that she values at $101. The total social wealth in this transaction increased from $201 to $202 and both parties benefitted. A transaction in which one party loses can still be Pareto- Superior if the winning party gains enough to offset the losing party’s loss and actually offsets it. However, Pareto-Superior transactions are rare in the real world.

A Pareto-Optimal state is achieved when there can be no Pareto-Superior moves made without making someone worse off. A Pareto-Optimal state is not necessarily the most ideal and desirable state of affairs. Although a Pareto-Optimal state achieved through Pareto-Superior moves only would be a desirable state of affairs. However, due to the virtual non-existence of Pareto-Superior moves, it is unlikely to happen.

Kaldor-Hicks test proposes a different measure of efficiency to remedy the defects of Pareto-Superiority. Kaldor-Hicks allows transactions in which a party loses as long as the winning party’s gains are sufficient to fully compensate the losers. However, the losers are not actually compensated but there is still an increase in the overall wealth.

Markets and the Law

Voluntary transactions tend to be Pareto-Superior because a rational person would not make a bad deal. Hence, the purpose of law is to facilitate markets where voluntary transactions take place as that would lead to a maximization of total wealth. However, even when a transaction is beneficial to both parties involved, it might have negative impacts on or costs to third parties (externalities). A very common example of such costs if environmental pollution. If a third party is being made worse off, then the appropriate standard to use is the Kaldor-Hicks standard to determine whether overall wealth is being maximized. At times, the law will be asked to allocate the costs of the externalities and it is expected to do that in the most economically efficient way possible. Another hurdle in the function of free markets is transaction costs. These are the costs that are incurred up to the point of making a transaction such as locating a potential buyer, taxes, etc. Transaction costs are seen as a hurdle to wealth maximization and therefore it should be the purpose of the law to minimize these costs.

Efficiency as Descriptive of Current Law

There are certain branches of law that can be explained on the basis of efficiency theory:

Tort Law: Tort law is compensatory by nature. It uses economic sanctions to command a reasonable behaviour from the citizens. A significant portion of the insurance industry is based on tort law principles; for example professional insurance for different professions such as doctors, lawyers, tradesmen, etc., automobile insurance, etc. It is arguable that professional insurance facilitates wealth maximization by allowing professionals to provide services without worrying about liability and allowing customers to purchase services with the assurance of compensation in cases of negligence. A fault based insurance system, one that is most popular, gives actors incentive to be careful while giving them liability protection.

Contract Law: Contract law deals primarily with commercial transactions by providing a fixed set of rules that will be applied in those transactions. It facilitates the market by encouraging reliance on strangers knowing that a breach of a promise will be actionable at law. Also, it reduces transaction costs by providing fixed rules that can be determinative of the outcome of a dispute if one was to arise.

Property Law: Property law allows people or parties to make transactions that are in their self-interest and increase the value of their assets by assuring people that their property will be protected by law. Individuals only like to do business in countries that have well established laws protecting private property because that is their motive behind participating in the market.

Criminal Law: Criminal law regulates the behaviour of citizens through the threat of loss of liberty. Even though the right to liberty is one of the most valued rights, society has determined that the cost of upholding the right to liberty absolutely is too high and that it can be taken away if certain behaviour is engaged in. Other aspects of criminal law are also based on economic efficiency, such as collective policing as opposed to private security, caps on spending in the criminal justice system, etc. Even though some aspects of the law can be explained on the basis of economic efficiency, there are others that cannot. For example, protection of minority rights enshrined in the Constitution. It costs the state a significant amount of money to uphold those rights from which only a small number of people benefit. They are in place because we have established that they are important for a fair and just society regardless of whether they make economic sense or not.

Should Efficiency be the Guiding Principle of Law?

Arguably, there are areas of law where adopting the efficiency principles makes sense. It is true that wealthier nations tend to have better citizens’ rights protections, standard of living, etc. However, it is naïve to believe that that is the sole result of principles of economic efficiency. An average American citizen has better standard of living because they can afford materials with the amount of money they make. That is only possible because those materials are produced in developing or third world countries by workers who have almost no rights for an amount of money that is often times not sufficient for the minimum standard of living that can be classified as decent. Current economic system does not function on the assumptions of honesty and good faith; the real world is plagued with evil and corruption. Economic efficiency can be a guiding principle of law if it genuinely maximizes social wealth for the globe and not just one country. The current model is very short of that and therefore safeguards are needed in the law to protect basic human dignities even if they don’t make economic sense.

Application to the Case

The issue before the court in this case was to allocate the decision making power on the withdrawal/continuation of life support of an incapable patient. The court had to decide whether to give the power to the Substitute Decision Maker (SDM) which is usually a family member or the doctors that are responsible for the patient’s care.

An efficiency theorist would make a decision on this case based on the most efficient outcome. What would make maximize social wealth? In a private setting, as long as the Mr. Rasouli’s family was paying for his treatment, the doctors would not seek to take him off life support because the next patient would be paying as much as Mr. Rasouli’s family and therefore the wealth would remain the same. However, the healthcare system in Ontario is publicly funded, which means that Mr. Rasouli’s family is not paying for it; neither would be the next patient. We are not dealing with efficiency in terms of money in this case then.

As noted above, money is not the only measure of social wealth. A person’s life has value as well and contributes to social wealth. The death of Mr. Rasouli would subtract from the total social wealth. However, that has to be juxtaposed against the potential lives that could be saved if Mr. Rasouli’s bed was available to other patients as the province only has a limited number of beds available. The court in this case did not make a decision based on Mr. Rasouli’s prognosis; it merely decided whether the consent of a SDM is required if a patient’s life support is to be withdrawn.

Economic efficiency theorists would not approve of a publicly funded healthcare system to begin with because it is not very efficient. However, Canada has made the decision that it values its citizens’ health more than the money it costs to provide for the system. This approach has its benefits as well as its drawbacks. The wait times for treatment are increasing as the state’s resources are being stretched to the maximum and that is affecting Canadians’ health and even leading to death in some cases.

The majority decision ruled that the Health Care Consent Act applied in end of life situations and that the SDM’s consent was required. In reaching this conclusion, the majority refers to the fact that “the HCCA has applied for the past 17 years and therefore should not be lightly discarded”. By concluding that a well established set of rules applies in this case, the court is introducing some certainty in the decision making process. Certainty of rules logically leads to reduced transaction costs because certainty produces predictability. Even though the SDM’s consent is required, the doctors have the option of appealing the SDM’s decision to the Consent and Capacity Board that can review the consent decision based on the guidelines set out in the act. Hence, even in situations of dispute, an efficient avenue for resolution is provided because quasi-judicial boards tend to be swifter than courts. Ultimately, the board’s decision is judicially reviewable as well but these reviews are normally restricted to procedural aspects only.

The dissent in this case, concluded that the HCCA did not apply and that the doctors had the unilateral power to decide whether to continue life support or not. The dissent also concluded that if the SDM disagreed with the doctors’ decision then it could apply to the court for a substantive review of their decision.

From an efficiency perspective, the majority’s decision seems efficient by reducing transaction costs in two ways: 1. giving the Board the power of substantive review because its generally faster and cheaper than going to court, and 2. introducing certainty by making well established rules applicable. That is the most efficient outcome that could come out of this situation. In the dissent’s decision, the power would be placed unilaterally in the doctor’s hand with the option for the SDM to challenge that decision in court. In general, boards are faster and quicker in resolving disputes due to their expertise in the area as compared to courts, a process that tends to take longer and is more expensive. Also, a substantive review of a doctor’s decision by a lower court also opens it up to review by the appellate court which is further time and money consuming. On the other hand, if the substantive review of a decision is reviewed by a board then typically a court can only review it for procedural fairness which makes the system faster and more efficient.

Taking the present case at hand, the patient has not improved significantly in three years and three different doctors are of the opinion that the chances of improvement are next to nothing and that treatment in fact might cause harm. It is a reasonable decision in the best interest of the patient and the public at large to withdraw the life support of Mr. Rasouli. From an economic efficiency point of view, the majority decision is preferable because it rests the substantive review power with the board that is likely to be more efficient and has limited scope of review by the courts. It thus improves efficiency by reducing the transaction costs to a minimum. In addition to that the external costs have to be taken into account as well. The external cost in this case is the denial of opportunity to other patients to get treatment with the resources that are being spent on Mr. Rasouli. In calculating the total cost of the treatment, an efficiency theorist would factor in all variables such as the prospects of Mr. Rasouli’s recovery, external cost that is being borne by society at large, the demand for the resources that are tied up with Mr. Rasouli to find out the best outcome according to an efficiency perspective.

In conclusion, the majority’s decision is the most efficient one and on a substantive level, taking into account all the factors, it is in the interest of maximizing social wealth that Mr. Rasouli’s life support should be withdrawn.

Feminist Jurisprudence

Feminist Suffrage Parade in New York City, 6 May 1912

The root of feminist theory is the idea of systemic patriarchy that infiltrates every level and area of society. Despite theoretical differences in various branches of the subject, feminists agree that patriarchy is unnatural, avoidable, and ultimately at the core of structural inequalities between men and women. The study of feminist jurisprudence is the critical examination and deconstruction of the legal system and its actors in order to surpass hegemonic sex inequalities and create a legal system without a patriarchal bias. This is a particularly challenging undertaking given the subtlety of patriarchal discourse and the reliance of the legal system on judgments of the past; while women are not as marginalized in Western society as they once were, feminist jurisprudence seeks to current even the most inconspicuous inequalities (Dimock 149).

As Catharine MacKinnon notes in Toward a Feminist Theory of State, the objective standard as it is applied to law and jurisprudence is a vessel for male domination over women in all areas of society. As MacKinnon puts it, “law becomes legitimate and social dominance becomes invisible. Liberal legalism is thus a medium for making male dominance both invisible and legitimate by adopting the male point of view in law at the same time as it enforces that view on society” (Dimock 150). This does not mean that explicit laws exist that perpetuate the male domination of women; rather patriarchy exists at the core of the legal system because traditional law makers were men (the powerful) who created systems without the lived experiences of women.

In order to create true equality in law, MacKinnon proposes two steps. First, we must acknowledge the fact that the law is currently not understood substantively from women’s perspective, and it is impossible to change that which is purported to not exist. The reality that women face with respect to inequality (for example, domestic violence, salary discrepancies, rape, denial or reproductive freedom, and sexual harassment to name a few) must be faced head on as systematic and ingrained in our political and legal institutions. Second, we must acknowledge that individual rights in law mask patriarchal norms (for example, domestic violence is perpetuated under the guise of privacy rights). As MacKinnon puts it, “the legitimacy of existing law is based on force at women’s expense. Women have never consented to its rule – suggesting that the system’s legitimacy needs repair that women are in a position to provide” (Dimock 157). Once these issues are acknowledged and fleshed out, the abstract nature of the law can shift toward a substantive view that incorporates authority without dominance.

Catharine MacKinnon

Application

On the surface, Cuthbertson v Rasouli involves a dispute over the definition of ‘treatment’ and withdrawal of life support in the HCCA, and whether life support can be removed without the consent of the SDM if expert medical opinion deems it to be without benefit. However, a feminist theorist would recognize the patriarchal underpinnings of the statutory scheme that governs consent to treatment.

As the SDM and wife of Mr. Rasouli, Ms. Salasel is in the best position to make decisions regarding his treatment (and the potential removal of the treatment). The HCCA mandates that the SDM cannot give consent or refuse consent to medical treatment without taking into account certain considerations, such as the medical condition, well being, values, and wishes of the patient (s. 21(2)). For Ms. Salasel, a major consideration involved the religious inclinations of her husband; as a devout Shia Muslim, Mr. Rasouli values life and would want to be kept on life support without the interference of doctors. Further, Ms. Salasel sought the professional opinion of a neurologist who detected increased levels of consciousness in the brain of Mr. Rasouli. Doctors can only discontinue treatment notwithstanding the wishes of the patient or family if they have fully considered other options and find no acceptable alternatives.

Karl Marx

However, believing that treatment is futile, the Appellants wish to override the autonomy of Ms. Salasel as the SDM and remove Mr. Rasouli’s life support without her consent by claiming that treatment as governed by the HCCA does not include withdrawal of treatment, thus removing the statutory barrier to withdrawal of life support. MacKinnon would agree that the existing statutes are already mired in systemic patriarchal norms, thus the governing force that legitimizes these laws already does so by excluding the female perspective from the very statute that is supposed to apply to each citizen equally. The challenge of the Appellants to the authority of someone who is clearly best suited to making a sensitive and life-altering decision by subverting the statute and manipulating the common law system further illustrates that the patriarchal-ingrained law allows for the more powerful to override the decisions of those without power. MacKinnon would argue that in order to create true equality in law, the reality of hegemonic power structures in the legal system must be acknowledged and challenged. However, with respect to MacKinnon’s second step, the autonomy and rights of individuals must be respected in order to lend legitimacy to the decisions of substitute decision makers. At the same time, MacKinnon would agree that it is important to acknowledge that on some level, all individual rights mask patriarchal norms simply by virtue of being rooted in a patriarchal climate.