Friday July 11, 2003

The Competing Social and Political Philosophies Regarding Same-Sex Unions

Natural Law vs Positivism

by Nicole Scheidl

There are two competing visions of social and political philosophy at play within the controversy surrounding same-sex marriages. The classical/medieval vision espoused by philosophers such as Socrates, Plato, Aristotle and St. Thomas Aquinas is in conflict with the modern philosophical vision espoused by Thomas Hobbes, John Locke and Jean Jacques Rousseau.

The classical vision sets forth the view that the state is natural part of human reality. The human person is a social and political animal and it is natural, therefore for human beings to come together in a group and govern themselves through politics. Political activity is, therefore both necessary and good. The classical view sees a natural unity between ethics and politics and that the state is a moral community that has as its end the moral good of its members – their happiness and fulfilment as human persons. Since reason is an essential element of political organization, the democratic process of full public debate on issues of the day is a necessary component of the formation of the laws that govern us.

St. Thomas Aquinas developed this thesis more fully in his work on natural law. Natural law is law that is not necessarily written down in a code but is discoverable by reason alone. Natural law means moral reason and is based on the presumption that we have the capacity to use reason to arrive at certain ethical conclusions that ought to be binding upon us. All human law should be coherent with natural law and thus will have an appropriate moral component, depending on the type of law.

Contrasted with this tradition is that espoused by John Locke and other social contract theorists. In essence philosophers of this tradition believe that the state is purely conventional – a creation of humanity, not a natural or essential aspect of who we are as human beings. This theory of the state is based on the idea that human beings consent to be governed by the state in the form of a contract. Thus the contract between the individual and the state set out the mutual obligations of each – the citizen is obligated to obey the legitimate laws and the state is obligated to respect the rights of the citizens.

Woven through the social contract tradition in North American legal scholarship is the view of law called positivism. Positivism is the opposite of a natural law view of the law. The legal positivist believes that a law is valid if it is properly passed by a legitimate authority. In essence the law can be whatever we say it is – without any recourse to a moral framework. Thus the legitimate laws that the citizen is obligated to obey are the laws duly passed by Parliament or in the case of same-sex marriages – the laws as interpreted by the courts.

This view of the law underpins the reasoning in the recent Ontario Court of Appeal decision regarding same-sex marriages. The courts have taken the view that in 1866 in the case of Hyde v. Hyde and Woodmansee, they defined marriage and therefore they (the courts) have the right to change the definition of marriage to reflect changing social realities. This view of the law gives the courts great power to re-engineer society with their own personal social vision while circumventing the democratic process.

Nicole Scheidl received a law degree from Queen’s University and a Masters in Law from Osgoode Law School in Toronto. She has been a practising lawyer but a few years ago switched careers to teach philosophy and other subjects at Hawthorn School for Girls.

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