Course:Law3020/2014WT1/Group V

Traditional Natural Law Theory: Law for the Common Good

Natural Law

Brooklyn Museum - San Thomas Aquino - overall

According to Aquinas, natural law comes from God and exists independently in nature. The closer human-made laws align with natural law, the more correct they are. Humans were created by God as rational beings. This rationality allows humans to exercise reason, and when this reason is used correctly it will lead towards the natural law. According to Aquinas, it is the nature of mankind to seek after good, and this desire, too, was implanted by God. By using reason, humans can develop and implement the steps that will lead toward the common good. This is the heart of lawmaking. The objective of laws should be the common good. Aquinas holds that in order for a law to be valid, it must contain four elements: It must (1) be directed at the common good, (2) follow practical reason, (3) be made by a valid lawmaker, and (4) be promulgated. Each of these elements is present in R v A.D.H.

1. The Common Good

The common good is a central issue in R v A.D.H. Aquinas believes the common good is the good of the community. Law imposes order on the community, and happiness is only possible within such order and stability. This was an overarching theme in the case. The court focused its approach on not punishing people who are not guilty. Aquinas would say that this is essential for maintaining order in society. The court found that A.D.H. did not make immoral choices and thus should not be punished. According to Aquinas, this is a way of ensuring people stay on the moral path towards the common good. The court found that she was not straying from the moral path, since she was unaware she was pregnant and thought the baby was dead. Her behavior was not a lapse in morality: while mothers are expected to provide for their children (as another part of the common good), her legitimate belief that the child was dead freed her from any moral obligation. If it had been a lapse in morality (i.e. if she thought the child was alive but momentarily neglected it for whatever reason), she would have been off the moral path and should be punished. But punishing the blameless would undermine the objective of the natural law.

The court also held that the law was in place in order to protect vulnerable people, particularly children. According to Aquinas, this is a valid objective as part of the common good. People would only abandon their children if they were off the moral path.

2. Practical Reason

Aquinas sees law as teleological; it is directed at a purpose. In that sense, laws are practical reason directed at the common good. If a law does not have that as its goal, it is not a valid law and does not need to be followed. In order to be law, it must be in accord with reason. The court in R v A.D.H. held that the law in question was laid out reasonably. A central issue in the case was whether or not the provision required subjective or objective knowledge. It held that if the provision required objective knowledge, it would have been written differently. The use of subjective interpretation was to ensure that the morally innocent should not be punished. This is in line with practical reason and makes the law valid.

3. Valid Lawmaker

According to Aquinas, the natural rulers know what is in the common good, and what will achieve universal happiness. They can threaten, coerce and punish the ruled to pursue the goal. But Aquinas does not believe in democracy. The law in A.D.H. was passed by an elected legislature. Though these are not natural rulers in the sense Aquinas would have in mind, the elected officials have been recognized by the public as having the necessary skills to rule. These skills would allow them to closely align with natural law, making the laws the pass valid.

In the case the court focused on legislative interpretation, based on the intent of parliament. This shows judicial trust in the ruling abilities of parliament. Aquinas also preferred legislation to judge-made laws. Legislation deals with broader laws, which Aquinas sees as more moral than case-by-case decision-making. Though the court held that the law in question was meant to be dealt with on a case-by-case basis, the fact that it was passed by a legislature instills it with wisdom and morality. Aquinas would also likely approve of the court’s decision to give a looser interpretation of the provision, as he holds that the spirit of the law is more important than the letter of the law.

4. Promulgation

In order for a law to be valid, it must be written, known, and available. It is likely, then, that Aquinas would approve of the codification of Canada’s criminal laws. The law in question in the case was from the Criminal Code, which is available to the public. The purpose of the law is to compel obedience, and people cannot obey laws about which they are ignorant.

Legal Positivism

Positivism is a reaction to traditional Natural Law theory. Positivists are concerned with rules that are created by men in power, while Natural law is said to come from a high being that is beyond human creation. Positive Law divides morality from law and asks that these be assessed separately. Rules are law as long as a person or group of authority creates them. Morality is irrelevant to the functioning of a given law.

John Austin- Founder of Positivism

John Austin

John Austin, an English philosopher of law in the early eighteen hundreds, believed that positive law is made up of commands. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 35) Superiors give these commands to subordinates and punishments or sanctions are put in place to ensure these commands are followed. These are his only requirements for a law to be valid.

Legal Positivists like John Austin, would agree that sovereign superiors must issue commands. They may be an individuals or aggregate bodies as long as they exert control and demand obedience over a given set of people. In our context the Legislature is our country’s governing body. They create law that we as citizens must follow or face penalties for our disobedience.

Austin’s critique of Natural law was that it had no distinction between matters of law, morality and religion. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36) As a positivist, he believed that the law and morality must be approached independently. He rejects the premise that for laws to be valid, they must be fair and apply equally to all people. “Positivists insist that a rule may be legally valid and yet morally objectionable. The existence of a law is separate from its moral acceptability is usually called the Separation Thesis” (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 34)

John Austin advanced three different types of directives that govern all human behaviour: (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36)

Laws set by God for human beings

This is law of religion. God, created this law for the greater good of all. He wishes to serve the greatest number of people with his actions. Although not all of God’s actions are visible to humans, we can use this belief to guide us when interpreting his commands.

Positive Morality

This is not official law created by a sovereign superior, such as the Legislature, although it still has some command over groups of people. Positive morality informs humans how to and not to act but does not have specific punishments in place for those who do not follow this guidance. These rules could be created by include governing bodies, clubs or organizations.

Positive Law

This is law that has been created for human beings, by human beings in a position of authority. They are directed at inferior individuals who do not have the power to create law. Individuals must abide by these or face reprimand. These would include government laws that have penalties attached to them.

Bentham and Hart- Modern Positivists

These philosophers take a more radical approach to legal positivism. The separation of legal rules from morality allows for skepticism by individuals. By separating law form morality, we can challenge, critique and change laws.

Application to R v. A.D.H.

In applying John Austin’s theory to the facts of this case, we observe that criminal law fits with his principles of how law should be formed. Sovereign superiors created the criminal code and citizens of Canada must follow this law. Specifically, S.218 states that it is a crime to abandon a child and the penalty for doing this can reach upwards of 5 years imprisonment. The woman in this case was clearly a subordinate to the sovereign, therefore this command applied to her the same as all citizens of Canada and is an application of Positive Law. (R v. A.N.H., 2013 SCC 28 at para 73)

Natural law would say that law is morality written down and if a law is not moral, it need not be followed. Legal positivism holds the opposite view. Positivism states that we must separate the two and even if a law is not moral, it can still be valid. In application to R v. A.D.H., even if S. 218 (Abandoning a Child) was an immoral law, the mother would still be bound by it.

In this case the appellant and respondent are debating the interpreting of the law as to whether guilt should be found through subjective or objective mens rea. The Judges in this case are trying to give effect to what parliament’s intentions were by implementing the law. Judges are delegated authority as lawmakers, however, parliament can come back and change the laws if they do not like the result. This is what Bentham was referring to when he said, separating laws essence from morality provides for critiquing, challenging and changing the law. This is what the judges in R v. A.D.H. were doing when they were deciding how the reading of S.218 should be applied. Austin would consider laws that could repeal laws something other than positive laws. He calls these revocations of command “permissive laws”. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 45)

Bentham gave us context to determine whether or not law is good, based on utilitarianism. He promoted the greatest good for greatest number of people. This parallels Aquinas’s Natural Law theory that law should promote the common good. However, Bentham wouldn’t say that a law that was not for the common good was invalid, he would simply say that it was not a very good law.

In our case, when Judges were determining whether subjective or objective fault should apply, they should pick which ever is best for all citizens. Bentham and Austin would agree with the Courts decision in this case.

Feminist Jurisprudence

Legal Perspectives		Philosophers
	Natural Law	Thomas Aquinas
	Legal Positivism	John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
	Separation Theory	HLA Hart
	System of Rights	Ronald Dworkin
	Liberty and Paternalism	John Stuart Mill and Gerald Dworkin
	Law as Efficiency	Susan Dimock
	Feminist Jurisprudence	Patricia Smith and Catharine Mackinnon