Course:Law3020/2014WT1/Group D/Natural Law

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Nicole, Mario, Sabah, Lorraine

Traditional Natural Law Theory: Law for the Common Good

Thomas Aquinas is a natural law theorist who believes that the source of law is independent of human creation, and that it can be discovered by human beings through the exercise of their reason. As rational creatures, humans have access to the natural law. According to Thomas Aquinas, natural law is a subset of God's pure, eternal law which has passed through the correct exercise of a person's reasoning process. In order for a law to be valid, the law must be satisfy the following criteria: (1) it must be derived from reason; (2) it must be issued by the person or group who holds lawmaking authority within the community; (3) it must be directed toward the common good; and (4) it must be promulgated.

In the present case, the court held that the omission to provide medical coverage for sign language interpreters infringes on s.15(1) of the Charter, which aims to protect disadvantaged groups from discrimination. The omission was not reasonably justified under s.1 of the Charter because the government's total denial of medical interpretation services for the deaf was not a minimal impairment of their rights. Thomas Aquinas would most likely decide the case differently based on the importance of striving towards the common good. He believes that the common good is associated with creating universal happiness for the community. He notes that the lawmaker is tasked with this duty. In carrying out his duty, the lawmaker is not bound to carry out the will and wishes of the community because his task is to aim for the common good. In addition, the lawmaker is in the best position to create laws because in a naturally ordered relationship, some people naturally rule while others are naturally ruled. This objective is so important that the use of threats, force, and punishment is permissible in order to regulate behaviour towards a stable community.

In the Eldridge case, the court held that by treating everyone the same, the deaf population is exposed to adverse effects discrimination. On its face value, there is no discriminatory purpose of intention in the provision, but it nonetheless has the effect of denying the deaf population from access to equal benefit of the provision. In contrast, Thomas Aquinas would reason that the Medical Services Commission's omission to provide interpreters for the deaf population is permitted because it is not contrary to the common good. Common good focus on human prospering in both moral and spiritual values. In this sense, all are equal in the eyes of God, and equal treatment should be given to individuals. The differences between individuals are part of the natural state created by God, and human reasoning should not interfere with this unique characteristic given by the divine.

In addition, Thomas Aquinas' definition of equality for the common good does not take into account equality against discrimination. Natural law is the human interpretation of God's eternal law. Under this approach, physically disabled individuals are created by God naturally as deaf, and so it would be unequal to work against the natural workings of God through human interference. Thomas Aquinas is more concerned with the objective of ensuring order and stability within the community. Similarly, compensating for individuals who are deaf would not be for the benefit of equality since society would have to provide for the minority group. This would create great instability, and be contrary to the intentions of the lawmaker to invoke rules to lead individuals toward a common good.

Legal Positivism: Law as Command

Legal positivists view law as a science, with concrete elements which makes a law valid if the components are met. Positive law is not concerned with the content of the law, but rather it is concerned with the process of how the law was enacted. Specifically, John Austin states that a law is valid if it is a command issued by a superior to subordinates and backed by a threat of sanction. All of the components of a valid law are empirically provable. In addition, it must be created in accordance with the rule of law making jurisdiction regarding the creation of law. The effect of this approach leads to a separation of morality from the law. This is in contrast to Thomas Aquinas' natural law theory as there is no higher standard in which law strives to conform to. Therefore, this approach may lead to valid laws that are immoral. To illustrate this, legal positivists point to the fact that Nazi laws were valid.

In the present case, John Austin would agree that the Medical and Health Care Services Act and the Hospital Insurance Act were created in accordance with the rule of law making jurisdiction and so it is a valid law. According to the provision in the Medical and Health Care Services Act, the discretion to determine which services would be covered under the Medical Services Plan was delegated to the Medical Services Commission. John Austin would reason that delegated authority is a valid exercise of the legislators' power and so the Commission is also a valid authority because it was created by a valid law-making process from the elected parties, whom the bulk of society are in a habit of obedience or submission to. In exercising its authority, John Austin would reason that the Commission's choice not to cover sign language interpreters is a "command of the sovereign" and is therefore within its law making jurisdiction. Although the Commission's choice infringes upon the rights of individuals who are deaf from fully benefitting from the health care system, the Commission, as a delegated sovereign, is not bound to ensure that the provision must aim towards a morally worthy end.

Issue arises when validly enacted laws are in conflict with one another. According to the court, when there is conflict between a law and the Charter, we must apply the Oakes Test to determine to determine if the limit is demonstrably justified in a free and democratic society. The Oakes framework is as follows:

First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justified in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the violation of the right must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) the deleterious effects on the individual whose rights are limited must be proportional to the objective and to the salutary effects of the measures.

In the present case, John Austin would agree that the provision and s.15(1) of the Charter are both valid laws. To determine which law is superior over the other, John Austin would most likely agree that since the Canadian system is based on constitutional supremacy, the Constitution is the supreme law in Canada. According to the rule of law making jurisdiction, all laws must be in compliance with the Constitution. John Austin would probably support the use of the Oakes Test developed by the courts as the analytic framework for determining whether a law is a reasonable limit under the Charter. This approach is permissible by John Austin because judicial decisions are specific commands. Judges are considered as holding lawful authority because he views a judge as acting as a minister who carries out the limited authority which has been delegated to him or her by the state. In addition, this framework conforms with the positivists' aim to use a scientific method for determining the validity of a law.

In Defense of Liberty/Paternalism

The effects of the Medical and Health Care Services Act appear to be a double edged sword when understood in the perspective of Mill’s harm principle. On the one hand, it does not limit autonomy in the manner that it does not make interpreters more ‘financially accessible’ for deaf individuals. On the contrary, the decision to not compensate individuals who use interpreters may discourage individuals who want or need to use it, but is limited in their ability to use it due to financial barriers. However, the method in which the decision was made to not compensate interpreters in the Medical Services Plan illustrates how Miller’s harm principle comes into play.

Mill’s harm principle states that limitation on individual liberty is justified when the limitation is to prevent harm to individuals. Harm is defined as broadly as any act that will harm others. Underlying this principle is that law is there to protect members of the society, and that limits on liberty is justified in order to protect all members of society.

However, the decision of who decides what type of legal rule to enact for the purpose of ‘protection against harm’ is controlled by a specific group. Also known as “the tyranny of the majority,” Mill’s principle illustrates the limitation is created by the majority who defines what type of harm requires limitation on individual liberty.

In Eldridge, the controlling figure is the Commissioner, who decides what type of medical services will be compensated in the Medical Services Plan. The Commissioner in essence, decides what types of services are “necessary” for individual, while other services can be limited (not compensated). The limitation on the other services are justified since the funds are allocated to prevent the harm to individuals who require the “necessary” services but cannot receive it due to financial constraints. In other words, the Plan validates that the harm of not having “necessary” services require protection through legislation, while the harm done to deaf individuals are not sufficient to warrant legislation providing financial assistance.

The tyranny of the majority illustrates the problematic nature of the principle; the assessment of which type of harm deserves protecting against, and the type of harm that do not, are measured by what the majority considers important – the majority require the “necessary” services, while only a minority require interpreters.

In the Mill’s framework, the Plan is justified, since legislation has chosen to protect individuals against the harm of not having the necessary services. Neglecting the possible harm to the deaf individuals was a choice made by the majority, and is justified since inevitably, not all harm can be protected against, but legislation has chosen which type of harm they must guard against. Viewed as such, the deaf individuals are at a disadvantage and perhaps a s.15 violation, but, as noted in the court, an under-inclusive plan does not necessarily equate to discrimination. Such illustrates how the conscious choice to persuade toward one object that neglects another object can have a negative effect on minority groups.

Mill’s harm principle is premised upon a prohibition on positive actions, while the Plaintiffs are arguing that the legislation’s lack of action is a violation. Viewed as such, the legislation does not violate Mill’s harm principle since there is no prohibition of a positive action that limits the liberty of the Plaintiffs.

On the contrary, in the lens of paternalism, the Plan will not be justified. Paternalism is centered on the notion that limitation on the liberty of the individual is justified to prevent harm to the individual whose liberty is being restricted. Medical Services Plan limits the liberty of deaf individuals by not mitigating the financial barriers they face in obtaining an interpreter when requiring medical treatment. However, such limitation is not justified. The limitation itself creates harm to the deaf individuals, through the failure to mitigate the communication difficulties that deaf individuals face when they seek medical treatment. This result is contrary to paternalism, since the Plan indirectly limits the medical services being compensated to deaf individuals, while failing to protect the harm deaf individuals suffer from the medical system as a result of their disability.

Economic Efficiency

Economic efficiency uses “efficiency” as the justification toward legal rules. The purpose is to maximize the total wealth of all individuals. Contrary to theories such as paternalism or the harm principle, economic efficiency does not justify law using morality, but rather, justifies that if a law is efficient, then such is sufficient for the law to be in place. Efficiency is measured as the social wealth of all, rather than the efficiency of an individual. Thus, it is possible for an individual to have a decrease in wealth, while society increases in wealth. Such is still considered “efficient” since the total social wealth increased, despite an individual losing wealth.

If the theory was to be applied to Eldridge, the outcome would be consistent with that of the Supreme Court of British Columbia – no violation of s.15(1): Equality. Medical and Health Care Services Act creates an overall increase in social wealth that outweighs potential decrease of wealth suffered by the individual plaintiffs.

Medical and Health Care Services Act creates an increase in social wealth through distributing limited resources in the most efficient method possible. The Medical Services Plan pays for the provision of medical services by medical and health care practitioners on a fee for service basis. Not all medical services are covered. The allocation of funding is based on two factors: the annual budget dedicated to the Plan, and the allocation of such funds toward certain medical services.

The plaintiffs argue that the allocation is discriminatory since interpreters are not covered under the plan. Weighing the lost and gains of the plan though, economic efficiency is better served in the allocation of the funds toward more essential services. Note that there is a limited amount of money each year dedicated to compensate medical services used by individuals. If money is to be allocated to fund interpreters, then money will have to be taken away from other medical service to compensate. Weighing which two services to fund, the Commissioner has made the decision to fund services that are necessarily to the majority of society. Services that benefit a smaller group of society, such as clinical psychologists or occupational therapists, are not covered, and services that benefit many but not the majority of society are only partially covered. In effect, the plan maximizes the efficiency of the limited budget by using it in a manner that will benefit most members of society. As such, this plan is consistent with the theory of economic theory.

Even if the budgetary allocation is discriminatory, the plaintiffs do not “lose” or are at a “disadvantage” as a result. Translators are not provided to the plaintiffs, but neither are they provided to other members of society. The analogy can be made in that the plaintiffs greatly valued and wanted to buy apples, but the seller cannot come to an agreement to give the apples to plaintiffs. The plaintiffs and the seller are at the same position they are if the attempt to exchange had not taken place. Viewed as such, the plan does not decrease the wealth of the plaintiffs.

It can be argued that the plaintiffs had a “loss of opportunity” or a “real loss” since instead of providing the plaintiffs with a gain, other individuals benefit more from the Plan. However, despite such, there is still an overall increase of social wealth, therefore, the Plan is consistent with the core values of economic efficiency.