Natural Law & Progressive Jurisprudence
The word jurisprudence derives from the Latin term juris prudentia which literally translates to the science of law. In other words, it means the philosophy of law (Wex). Legal philosophy has many aspects, but three of them are most important in the Canadian legal system which are: natural law, legal positivism and legal realism. By analyzing the three main areas of legal philosophies, and the cases discussed in class, we can see that natural law claims to derive moral and legal principles from a set of universal truths about people and justice (Wex). This is important because the judges have set a more humane precedence using natural law than other areas of jurisprudence which have been important for many crucial, and progressive human rights that we enjoy in Canada to this day, and it would be vital for this new era, and the ones to come.
Before we talk about the cases, it is important to understand the major differences between judgements using these three theories of legal philosophy. Proponents of legal positivism believe that law and morality are separate, and the only sources of law are rules that have been expressly enacted by a governmental entity or court of law while natural law proponents believe the exact opposite to that of legal positivism (Wex). Meanwhile, the proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute i.e. involving the society’s morals, values and interests while making a decision (Wex). Legal positivism and realism have fundamental differences with natural law while making decisions as natural law uses more factual, and universal set of truths about people, and justice.
In the case of Cunningham v. Tomey Homma,  A.C. 151, based on legal positivism the Judicial Committee of the Privy Council (JCPC) in London, England, ruled in favor of the province of British Columbia by upholding the Provincial Elections Act, and declared that the British North America (BNA) Act of 1867 granted the provinces exclusive jurisdiction over civil rights, including the right to vote (Parks Canada). While using natural law theory both the county court and the supreme court of British Columbia ruled in favor of Homma to grant him the right to vote as a Japanese Canadian although the victory was short lived and destructed by the use of legal positivism. In another case Bradwell v. The State, 83 U.S. 16 Wall. 130 130 (1872), the supreme court of the United States of America ruled that the state of Illinois did not violate the fourteenth amendment by denying Bradwell a license to practice law as Bradwell was a woman. The fourteenth amendment to the U.S. Constitution granted citizenship to all persons born or naturalized in the United States—including former slaves—and guaranteed all citizens with equal protection of the laws (National Archives). Here the supreme court used legal positivism where they basically treated law like math and science and ruled that the rights of fourteenth amendment did not extend to the law licensure. If natural law were to be used to make this decision it would have been ruled in her favor as natural law theory does not restrict the rights of women based on a written scripture (Finnis). In the case of Westendorp v. The Queen,  1 S.C.R. 43, the supreme court judges have used natural law to make the decision against legal realism as they concluded that the municipal by-law ultra vires the province because it infringed on the federal government's legislative authority over matters falling within criminal law, and the by-law itself was an unconstitutional attempt to create a criminal offence as it was made to punish prostitution rather than to prevent public nuisance (BADARI).
Use of natural law philosophy could have ensured the basic human rights of Homma and Bradwell, as well as prevented municipal by-laws used against Westendrop’s victimless crime to plead her guilty in the first place. Progressive changes in the Canadian legal system, and around the world have been possible because of sensible usage of natural law whenever the written legal documents did not make sense. Use of natural law theory in decision making ensures rights and freedoms to individuals that have been systematically or mistakenly excluded from the original legal systems. Therefore, judges should use natural law theory in Canada in 2020 in their decision making as it is more progressive, and versatile than other theories.
Bradwell v. The State, 83 U.S. 16 Wall. 130 130 (1872)
Cunningham v. Tomey Homma,  A.C. 151
Westendorp v. The Queen,  1 S.C.R. 43
BADARI, ADAM. "Westendorp v. The Queen – Can a City Prohibit Street Prostitution?" THE CHARTER, LEGAL RIGHTS (SECTIONS 7-14), FEDERALISM (1983).
Finnis, John. "Natural Law Theories." The Stanford Encyclopedia of Philosophy. Ed. Edward N. Zalta. Metaphysics Research Lab, Stanford University, 2007.
National Archives. The Constitution of the United States. n.d. 06 11 2020. <https://www.archives.gov/founding-docs/constitution>.
Parks Canada. "Cunningham v. Tomey Homma." n.d.
Wex. Legal Information Institute, Cornell Law School. n.d. 02 10 2020. <law.cornell.edu/wex/precedent>.