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Dorela Hafezi
Dorela Hafezi
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Be sober, be vigilant; because your adversary the devil walks about like a roaring lion, seeking whom he may devour (I Peter 5:8).
Malmo Levine
Malmo Levine
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Application of Natural Law Theory to Malmo-Levine case
Application of Natural Law Theory to Malmo-Levine case
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1. Must be directed toward the common good.
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1. Must be directed toward the common good.
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Thomas Aquinas may argue that the principle of not harming one’s self and others is an example of a universal and unchanging principle outside of human creation (Dimock, p 1). This higher law exhibits itself in different ways depending on the place and time in which it is situated (ibid, p2). In Canada this principle is manifested as a prohibition on marijuana. In agreement with the majority judges, Aquinas may consider that the human-made law is justified as the drug is able to alter the mental function of individuals and thus “raises issues of public health and safety for both users and for those in broader society” (R v Malmo-Levine). Additionally, the impairment and the alternation of mental functioning that is caused by marijuana use may inhibit individuals from exercising their spiritual and intellectual capacities to the fullest extent possible (Dimock, p 5-6). This is especially true of those who are chronic users. Lastly, many potential negative effects can result to the social order if marijuana was re-legalized. Specifically, legalization would result in a reduction of price and increase of social acceptance resulting in more individuals using the substance. This would only increase current findings of health risks and harm to third parties. It may also lead individuals to further vices, including experimenting with harder drugs.
Thomas Aquinas may argue that the principle of not harming one’s self and others is an example of a universal and unchanging principle outside of human creation (Dimock, p 1). This higher law exhibits itself in different ways depending on the place and time in which it is situated (ibid, p2). In Canada this principle is manifested as a prohibition on marijuana. In agreement with the majority judges, Aquinas may consider that the human-made law is justified as the drug is able to alter the mental function of individuals and thus “raises issues of public health and safety for both users and for those in broader society” (R v Malmo-Levine). Additionally, the impairment and the alternation of mental functioning that is caused by marijuana use may inhibit individuals from exercising their spiritual and intellectual capacities to the fullest extent possible (Dimock, p 5-6). This is especially true of those who are chronic users. Lastly, many potential negative effects can result to the social order if marijuana was re-legalized. Specifically, legalization would result in a reduction of price and increase of social acceptance resulting in more individuals using the substance. This would only increase current findings of health risks and harm to third parties. It may also lead individuals to further vices, including experimenting with harder drugs.
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2. Must follow practical reason.
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2. Must follow practical reason.
According to Aquinas, practical reason has to set out the reasonable steps necessary to lead us to the achievement of the common good (Dimock, p 5). Although most people strive to live their lives in a way that is compatible with the common good, Aquinas considers the threat of coercion (the availability of imprisonment in this case) to be an effective deterrent, inducing individuals to overcome their inclination to sin and develop the virtue of obedience (Ibid, p 19). Nevertheless, he may potentially question the law’s validity since many individuals in society are in active disobedience of it (which is in of itself a source of disorder), and courts rarely are willing to impose the imprisonment, the fullest extent of punishment, except in situations where aggravating circumstances are present (R. v Malmo-Levine). This would perhaps suggest that the law is not functioning as a genuine law and does not need to be followed (dull knife argument) (Dimock p. 3). While this may be a valid consideration, a limitation exists with consideration of the third requirement.
According to Aquinas, practical reason has to set out the reasonable steps necessary to lead us to the achievement of the common good (Dimock, p 5). Although most people strive to live their lives in a way that is compatible with the common good, Aquinas considers the threat of coercion (the availability of imprisonment in this case) to be an effective deterrent, inducing individuals to overcome their inclination to sin and develop the virtue of obedience (Ibid, p 19). Nevertheless, he may potentially question the law’s validity since many individuals in society are in active disobedience of it (which is in of itself a source of disorder), and courts rarely are willing to impose the imprisonment, the fullest extent of punishment, except in situations where aggravating circumstances are present (R. v Malmo-Levine). This would perhaps suggest that the law is not functioning as a genuine law and does not need to be followed (dull knife argument) (Dimock p. 3). While this may be a valid consideration, a limitation exists with consideration of the third requirement.
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3. Made by a valid lawmaker.
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3. Made by a valid lawmaker.
Due to the natural ordering relationship of the ruler(s) and the ruled (Dimock, p 7) there are limitations to disobedience of laws because the lawmaker, who is endowed with divine authorization (Ibid, p. 7) knows what is in the best interests of the society. Therefore, Aquinas may agree with the majority that since cannabis legalization fall’s within the legislative competence of Parliament, the natural ruler, it is “open to parliament to decriminalize or otherwise modify any aspects of the law it no longer considers being good public policy”(R v. Malmo Levine). He may agree that, Parliament’s role is not to appease public clamor, rather to create a set of laws that will untimely lead Canadian society to the common good. As a result of this third requirement, arguments that may arise due to the “ineffectiveness” of the prohibition of marijuana would likely not excuse refusal to obey the sovereign’s command (Ibid).
Due to the natural ordering relationship of the ruler(s) and the ruled (Dimock, p 7) there are limitations to disobedience of laws because the lawmaker, who is endowed with divine authorization (Ibid, p. 7) knows what is in the best interests of the society. Therefore, Aquinas may agree with the majority that since cannabis legalization fall’s within the legislative competence of Parliament, the natural ruler, it is “open to parliament to decriminalize or otherwise modify any aspects of the law it no longer considers being good public policy”(R v. Malmo Levine). He may agree that, Parliament’s role is not to appease public clamor, rather to create a set of laws that will untimely lead Canadian society to the common good. As a result of this third requirement, arguments that may arise due to the “ineffectiveness” of the prohibition of marijuana would likely not excuse refusal to obey the sovereign’s command (Ibid).
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4. Must be promulgated.
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4. Must be promulgated.
The last condition of a valid law is that it requires promulgation (Dimock, p 8), hence be codified and known to citizenry. In Canada, the availability of imprisonment with respect to the charge of possession of marijuana is codified in the Narcotic Control Act and the prohibition of marijuana is known to all individuals of our society, thus this requirement would not be a contentious issue.
The last condition of a valid law is that it requires promulgation (Dimock, p 8), hence be codified and known to citizenry. In Canada, the availability of imprisonment with respect to the charge of possession of marijuana is codified in the Narcotic Control Act and the prohibition of marijuana is known to all individuals of our society, thus this requirement would not be a contentious issue.
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To conclude it is likely that Thomas Aquinas would be in favour of this judgment.
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To conclude it is likely that Thomas Aquinas would be in favour of this judgment.
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Be sober
,
be vigilant;
because
your adversary
the
devil walks about like
a
roaring lion
,
seeking
whom
he
may
devour
(
I Peter 5
:
8
).
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Legal Positivism
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Introduction
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In stark contrast to the natural law theorists
,
legal positivists separate law and morality (p. 34, Dimock). Just
because
a rule is immoral does not exempt it from being a law and just because a rule is moral does not make it a law (p. 188, Dimock). Legal positivists think of law as a social construct created by humans and not as Thomas Aquinas asserts, sourced from a higher being outside of human society (p. 33, Dimock). Unlike natural law theory, legal positivism does not consider law normatively; instead law is distinguished from what it actually is and what it should be (p. 33, Dimock). Within
the
legal positivist field there are some theoretical variations as evidenced by John Austin, Jeremy Bentham, Joseph Raz, and H.L.A. Hart.
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John Austin: Theory
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According to John Austin, in order for
a
law to be valid it must be in the form of a command handed down by a superior intellectual being (whom the majority is in the habit of obeying) to inferior subordinates and backed by the threat of punishment (p. 37
,
Dimock).
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John Austin: Application
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Malmo-Levine challenged the validity of the criminalization of marijuana by the Narcotic Control Act (NCA). This legislation was a directive to be obeyed, made by Parliament, the political superior
whom
Canadians are in the habit of obeying. It was made to all Canadian residents who are subordinate to Parliament in legislative power. The prohibition against acts associated with marijuana was accompanied by the threat of punishment under section 3(2) ranging from fines to incarceration (para.12, Malmo-Levine). The NCA would be valid law under John Austin’s criteria.
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Jeremy Bentham: Theory
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Like John Austin, Jeremy Bentham argued for a separation of law and morality and thought of law as a command (p. 189, Dimock). According to Bentham, the validity of a law depends on whether or not it maximises utility. Essentially, one asks whether a law brings about the greatest amount of utility or happiness for the greatest amount of people. This approach to determining the validity of the law can be contrasted to Aquinas’ and Austin’ approaches, which (were not conditional) did not have to depend on the interests of the majority of populace, just the will of the valid ruler.
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Jeremy Bentham: Application
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Malmo-Levine attempted to put forward a utilitarian argument that Parliament should not criminalise conduct that brings pleasure to a majority of people on the basis of the vulnerability of a small group of people (para.101, Malmo-Levine). The court refused to consider this line of reasoning under a violation of s. 7 analysis and deferred it to the justification analysis under section 1 of the Charter (p. 31, Ibid). However, since the law was not found to violate a Charter right, the courts did not go on (continue) to the section 1 analysis.
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If one were to consider whether the law is valid based upon its utility maximisation one can put forward the argument to support this law saying that although the individual harm
may
be negligible, if marijuana is legalized, society’s collective utility may decrease as increased use by the population could result in more harm to the vulnerable groups and third parties
(
such as work accidents and accidents caused by driving while under influence of marijuana). Moreover, legalization of marijuana may adversely affect the healthcare and welfare systems by increasing costs (para. 49, Malmo-Levine).
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On the other hand it can be argued that this law creates problems that decrease utility maximisation. Disagreement over the law breeds disobedience, supporters may distrust health and education providers who are believed to have disseminated false information on marijuana use, children and elders are not able to openly talk about marijuana with each other, it forces users to place themselves at risk when they interact with chronic drug users and criminals, government is not able to regulate the quality of marijuana, it creates “a lawless sub-culture”, creates policing costs associated with enforcement of this law, and prevents people from conducting “meaningful research into the properties, effects and dangers of the drug, because possession of the drug is unlawful” (para. 28, quoted at para. 180, Malmo-Levine).
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Joseph Raz Theory
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Joseph Raz has a “service conception” of law, where the authority claimed by the law is justified only when it achieves a service for subordinates enabling them to behave better, where this behaviour would not be possible without this law (Professor Hall). This theory is similar to Bentham’s theory because both consider effects on the subjects. It is also similar to Aquinas’ theory that seeks to enable people to behave better so as to achieve the common good. However, unlike Aquina’s and Austin’s theory, the validity of law is not dependent on the lawmaker who issued it.
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Joseph Raz
:
Application
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If this law were to be abolished and marijuana were to be legalized, there is a high probability that the usage rates would increase along with “the absolute number of chronic users” (para. 48, Malmo-Levine
)
. One can, therefore, argue that this law does enable people to behave better and choose not use drugs.
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Conversely, if there is widespread use of marijuana and therefore, disobedience is increasingly common (para. 22, Malmo-Levine), one could assert that this law does not actually help people to act better. Instead it “encourages disrespect for the law” (p. 22, Malmo-Levine).
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However, this law would be accepted as valid law by Raz because on a balance it does provide a service for the population by giving people a reason and incentive to refrain from using marijuana
.