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Published: Fri, 02 Feb 2018
Natural vs positive law
How Is The Theory Of Positive Law Represented In The Canadian Constitution?
Positive law theory states that law is a set of rules and regulations put together by the government, and that all the citizens are obligated to abide by the law for the overall good of the nation. Canadians have accepted the thought of government interference in their lives far more understandingly than Americans. The government authority in the royal colony of New France presuming an effective and overprotective role over the society, back in the days during the European settlement, is an example of this distinction. In 1867, John A. Macdonald, Canada’s first prime minister, sought a powerful federal government, however, other government heads stressed on establishing a provincial government level as well. They also approved on supporting the new central administration by offering it control over taxes, trade and commerce, transportation, criminal law and the selection of superior judges. The creators of the Canadian constitution also provided the federal government with the universal authority “to make laws for the peace, order, and good government of Canada” (Alexandrowicz et. al., 2004, p. 90) in s. 91 of the Constitution Act, 1867. The central government made use of this authority in times of war and riots. This summoned the “War Measures Act during World War I and World War II and also during the October Crisis in 1970” (Alexandrowicz et. al., 2004, p. 91). Even though, the government has implemented a less domineering standpoint during peacetime, there have been times when it claimed its general authority in response to an apparent emergency. In 1975, the Canadian economy was facing speedily increasing inflation rates as well as high unemployment levels. As a result, the government conceded the Anti-Inflation Act, under Prime Minister Pierre Trudeau, giving it the authority to fix wages and control prices. The provincial government accepted the plan and signed agreements with the federal government. This is how the theory of positive law has been represented in the Canadian Constitution.
How Is The Theory Of Natural Law Represented In The Canadian Charter Of Rights And Freedoms?
Natural law theory states that human laws are developed from everlasting and fixed beliefs and values controlling the natural world and that the use of reason can help the society become aware of these laws. In the early 1980s, when the Canadian legislators planned to revise the constitution and give enhanced protection to the human rights of common people and minorities, they ensured to defend the authority of the central and local governments. Many basic freedoms listed in the Canadian Charter of Rights and Freedoms exhibit a natural-law viewpoint. These consist of the “right to freedom of conscience and religion” and the “right to life, freedom and safety of the person” (Alexandrowicz et. al., 2004, p. 92). This shows that the rules and regulations established today originated from unchangeable principles and people choose to follow these laws because of their own natural values and morals. This led to the need of protecting these principles and therefore providing Canadian citizens with enough rights and freedoms which were recorded in the Canadian Charter of Rights and Freedoms. This enables them protect themselves and their beliefs asserting the general standpoint of the natural-law theory.
Alexandrowicz, G. et al. (2004). Dimensions of Law. Toronto: Emond Montgomery Publications Limited.
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