Course:Law3020/2014WT1/Group J/Natural Law
Natural Law Theory
The 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 global 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 a lesser issue to St. Thomas Aquinas and his view on traditional natural law.
What Makes a Valid Law
There are four elements of a valid law in the context of Traditional 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 objective. This is aimed to help demonstrate how to reach the common good desired by the objective. This notion relates to the common good of the community. The questions then are how do we determine what the common good is and who is to decide this?
Practical Reason
Must follow practical reason (reasonable steps leading to the common good)
In this element of determining whether a law is valid, we must look at the steps that must be taken to reach the end of the common good, which are the steps required to achieve the objective in mind. Natural Law theorists believe that god gave individuals the capacity to devise these steps, and if these steps do not follow practical reason then the law cannot be valid.
Valid Lawmaker
Must be made by a valid lawmaker In Thomas Aquinas’s perspective, 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. This is not normally a democratic model. The individuals that are deemed to be “natural rulers are the ones who should determine the common good, and 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 element, 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.
Legislation vs Judiciary
It is also important to note that Thomas 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 legislators remain unattached to the law, and thus provide laws not based on emotion but rather 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.
Analysis
After analyzing these four elements, one can determine if a law would be deemed “valid” by Natural Law theorists such as Thomas Aquinas. We will next analyze the case of Canada v PHS Community Services Society in the context of the Natural Law theory.
First, we will look at the impugned law. The impugned law in question is Section 4(1) and 5(1) of the Controlled Drugs and Substances Act (CDSA) Prohibiting possession and trafficking of illegal drugs.
According to the framework outlined above, the first step to establish is if the law is directed at a common good. Here it is clearly seen that the law’s goal is to protect both the safety and health of members of society, but 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 their safe drug clinics.
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. It is once again 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 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.
Lastly, the law must be promulgated. In this case this is clearly identified, as it is written in federal statutes, in the Controlled Drugs and Substances Act.
As you analyze the impugned provision through the perspective of Thomas Aquinas and what he determines to be a valid law; you can clearly see in this instance the objective is met and the specified provisions of the CDSA are indeed valid.
“It is also important to note that Thomas 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 legislators remain unattached to the law, and thus provide laws not based on emotion but rather 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. “
As the CDSA is legislation; Thomas Aquinas would find it preferable to common law methods of creating new law. The CDSA was passed through legislature; which in Aquinas’s opinion possess greater authority and wisdom.
Conclusion
In this case, it must be analyzed if the court adopted an approach that Thomas Aquinas would determine a “just judgement”. As articulated, in order to be a just judgment it 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. If the written law were valid, the judge must enforce and apply the written law. We can see that in the Supreme Court of Canada’s judgement, the law was deemed valid. However, as this was a constitutional challenge, it was deemed that the greater supreme law needed to be enforced. The court did this, ordering an exemption to allow Insite to continue their work. The Constitution, the binding law, the supreme law was the one that the court ruled to be applied. This will refer back to the notion of morality in natural law; where it is inherent in law; where societies would be targeting moral laws and policies.
| Theory | Philosopher |
|---|---|
| Natural Law | Thomas Aquinas |
| Positivism | John Austin |
| Separation Thesis | Example |
| System of Rights | Ronald Dworkin |
| Liberty & Paternalism | Example |
| Law As Efficiency | Adam Smith |
| Feminist Jurisprudence | Example |