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

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Overview of Natural Law:

St Thomas Aquinas

Natural law is a theory based on the notion that law is not man-made, but comes from a higher or divine source. This source might be, for Aquinas, God himself, but it can also arise from such superior sources as nature itself, or logic and reasoning. For our purposes, God will be our source.

Legitimacy of Laws:

Legitimate laws must, in order to be valid, be derived from this superior source. The laws themselves are immutable and constant, only their interpretation by humans is subject to change. Further, these laws, according to Aquinas, must be obeyed because of their higher nature despite the fallibility of man, and we have the reason to ascertain these laws exist; we can incorporate them into our society. Aquinas himself defines the essence of law as being “…nothing else than ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[1]

Source of the Law:

As opposed to the unadulterated eternal laws of God and/or nature, natural law in this sense is that law as interpreted by human rationality and is the product of the rational, correct reasoning of man. Man is not merely a receiver of law, but an actor and interpreter in finding the truths to implement natural law from the higher source into the world of man with the aim of enacting these laws.


The laws applied in this way are not man-made artifacts despite human interpretation. Man’s nature and will is inclined towards a common good that benefits everyone (and God). The common good in the mind of Aquinas is not necessarily the aggregated good of the individual, but rather the society as a whole with a mind towards the end goal intended—happiness for all.[2]


Aquinas proposed four factors that were required for a law to be considered valid under this theory:

i) the law must be set towards the common good.
ii) it must follow practical reason and promote steps towards the common good.
iii) must be made by a valid lawmaker in the community who has this position because of the natural law, and.
iv) the law must be promulgated and declared, as unknown laws cannot promote obedience and humility.

Reasoning behind the Order of the Common Good:

Good is sought after by all, and this is the will of God according to Aquinas. Laws set out the steps that we must follow to get to the common good, and this is the objective of laws. However, so long as the laws remain devoted to the common good and does not exceed the power of the lawgiver.[3] Similarly, laws are unjust and lose their binding force when they no longer advance the common good, or go beyond the power of the lawgiver to allow.[4] The limit to not obeying the law, however, is the chaos that can result—the stability of the social order should not be overturned for injustice if the resulting chaos and disorder will be a worse option, as this runs contrary to the public good.[5] In an emergency, it may be justified to ignore the laws, provided a greater evil averted by doing so in extreme circumstances.

For the common good, the prevailing view is that humans are one group, and the individual is in all ways and means a part of the community. To enforce the common good among all, threats and punishment can be used to push society along the path to the end goal of happiness and allow the community to avoid temptations that would cause diversion from the path to happiness. For Aquinas, obedience to the law, except in very limited circumstances (such as above), helps to develop the constant drive for the common good of all.

The Common Good and Disproportionate Burden

Aquinas in no way advocated an egalitarian society or equal distribution of responsibilities. On the contrary, the statement above about community and all people being part of it is merely that—all people are part of the community.[6] He argues that, for the greater good and greater morality, the burden of achieving the common good can be disproportionately assigned, provided it is towards the common good and advances that goal.[7] To explain: slavery and a class structure can be justified provided that these aim towards the benefit of society overall.[8] The burden of society can be unequally applied provided the benefit necessitates that.

Application to the Case: B.M. v British Columbia[9]

The higher order in this case is the Crown—representing society as a whole and embodying what we as humans interpret to be the laws within our community. In a more abstract sense, the source of the power here is the will of the people through our view of social nature and interactions. While religion has fallen out of favor as the primary source of morality, a moral component is still present in the detestation of murder. So, from a human view of higher ideals, opposed to a religious ideal, we see morality present. The lawmakers here are the judges, as representing the Crown and the higher ideals involved.

Aquinas, in this case, would disagree with the Court of Appeal. Despite two judges finding no duty of care to B.M., Aquinas would have sided with the minority and found one. The main point of contention is the social order and stability to be preserved.

The argument put forward at trial that there is no such thing as immunity from risk or danger, or put another way, that the police are “guardians, not guarantors, of public well-being”[10] is outrageous. The police, for Aquinas, would be guarantors of safety. Carrying on our morality and religion version on natural law, how can society be expected to proceed to the common good of happiness and praise of God if order and stability cannot be maintained? Advancing oneself and finding happiness, while obeying the law, requires a set of rules that punishes severe deviation harming others. In this case, the police should have a duty put on them to protect the public because this is the only way to achieve the common good of happiness and ordered society.

The Court, in this decision, came to a decision that runs contrary to natural law. Everyone deserves to be protected and this is the reason for the societal interest in peace and security. The argument of the disproportionate burden applies here—the police might have a disproportionate burden so long as it promotes societal goals. Also, in modern view, that’s what they’re paid to do and what they’re paid for.

The dissent in this case found B.M. to be an individual in need of protection, and this deserved a finding of duty of care.[11]All people should be protected, as it is immoral to do otherwise when protection is required.

The police even had a policy regarding a timely response to domestic violence which emphasizes the importance and consideration of safety for the victim.[12]Highlighted was the intention to conduct arrests and charge the perpetrators.[13]

With regards to B.M.’s spouse who went on a murderous rampage, a natural law society would have stepped in sooner to quell the violence and prevent social instability. The concerns involved here were not, by Aquinas’ standard, dealt with in an appropriate manner.

The majority decision in this case ignores the plight of a battered woman in fear for her safety. The immorality and callousness of this act is unforgiveable. Lawmakers must make decisions in accordance with morality and the common good, neither of which is met here. No burden on the police to do their jobs and maintain stability and order is an incorrect decision—police need not owe a duty to everyone at the same time, but when a situation such as this occurs, a duty must be found until the situation is resolved. The police owe a general duty to the public at all times, but they should owe a specific duty when the situation demands it. It’s only right to do this.

Final Thoughts

While Aquinas’ views on this problem might be out of sync with today, they are a product of a medieval, homogenous, Christian society. Despite this, the principles, when converted to a secular nature, still hold true. Morality and religion might go together, but they are not required to. The immorality in this case, of not protecting someone who needed help, resulting in suffering as a result of not receiving it, goes beyond religious ideas. Aquinas’ society might have advocated unequal burdens and overly strong order and control, but the order provided would have allowed for safety, security, and peace in pursuit of happiness and self-development in that time. I hardly think that B.M. would have objected to that order and strong community feeling, even a form reduced in subsuming the individual to the whole community and Christian-ideal, from what Aquinas believed since she would have received the help she desperately needed. Instead, she died for her faith in the system that failed her without attempt to provide aid.

References

  1. Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 2002) at 4.
  2. Ibid at 6.
  3. Ibid at 20-11.
  4. Ibid.
  5. Ibid
  6. Ibid.
  7. Ibid.
  8. Ibid.
  9. B.M. v British Columbia, [2004] B.C.J. No. 1506, 2004 BCCA 402, [B.M.]
  10. Ibid at para 64
  11. Hall, Margaret Isabel. "Duty, Causation, and Third-Party Perpetrators: The Bonnie Mooney Case" (2005) 50 McGill LJ 604, at 602-603.
  12. B.M. v British Columbia, at para 50-51.
  13. Ibid at 51