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.
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.’
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 . 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. Course:Law3020/2014WT1/Group_A/Natural_Law
|Legal Perspective||Leading Legal Philosopher|
|Natural Law||Thomas Aquinas|
|Legal Positivism||John Austin|
|Separation Thesis||HLA Hart|
|System of Rights||Ronald Dworkin|
|Liberty and Paternalism||JS Mill|
|Law as Efficiency||Susan Dimock|
|Feminist Jurisprudence||Patricia Smith|