Course:Law3020/2014WT1/Group I/System Of Rights

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Natural Law Positivism Separation Thesis System of Rights Liberty-Paternalism Law as Efficiency Feminist Jurisprudence Home (E. (Mrs.) v. Eve)

Background & Theory


Ronald Dworkin has been the most prolific and influential writer since H.L.A. Hart on issues in the philosophy of law. He is currently the dominant figure in jurisprudence in Canada, and is a strong critic of legal positivist theory.

Law as a System of Rights

Ronald Dworkin rejects the model of law as a system of rules. According to Dworkin, law is not merely a system of rules but also of principles, primarily of justice and fairness. Since these principles are a part of the law, Dworkin denies that there are gaps in the law and rejects Hart's suggestion that judges should have to use discretion when deciding hard cases. Dworkin further rejects the positivist's claim that neither parties have a legal right to win, since principles always create a right answer to every legal question. Dworkin develops a theory of adjudication in which principles have their right place. He calls this theory "law as integrity".

Rejection of Positivism

Dworkin distills the positivists position to three central theses:

  1. Law is a set of rules identified as such with reference to a master rule
  2. Where no legal rule applies, judges exercise discretion
  3. Legal rights and obligations are the products of legal rules. If no legal rule applies to a case, prior to being decided at the judges discretion neither parties have a legal right to win or a legal obligation.

Dworkin rejects all three of these propositions, resting his case upon the claim that law contains not only rules, but principles. The widespread importance placed on principles as part of the law undermines all three of the positivist's commitments.

If law contains principles as well as rules, judges do not have strong discretion, since any case not covered by existing law can turn to relevant and legally binding principles which run throughout the legal system. Thus, it is also true that there will always be an existing right to win since it can always be predicted with relative precision as to the outcome.

Principles, Policies, and Rules

Dworkin argues that law should incorporate two standards in addition to "rules": policies and principles. The distinction between these two, while having many similarities, is important in addressing critiques of Dworkin's law as integrity.


Policies are a standard that set out a goal to be reached, generally through an improvement in some economical, political, or social feature of the community. Decisions about policy have priority best left to the legislature. This is in line with parliamentary supremacy and democracy.


Principles are based on fundamental ideas of justice and fairness that support legal rights and duties. Judges must take principles into account when deciding hard cases (being cases where the issue cannot be resolved using only rules).

Sometimes relative interests of society can inform principles, helping to give them content. This can change over time.Consider these principles to be a stream which flows underground through the course of time. This stream moves underneath all established law, always present yet not always obvious. In a hard case, a judge will reach down and draw up the principle to determine how the case will be decided. He then adds his decision to that stream of principle, and the stream continues on until the next hard case.


Rules are all or nothing factual requirements. "If the facts a rule stipulates are given, then either a rule is valid and the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision" (p.245). There may be counter-instances where the rule does not compel the outcome, though these should not be considered as exceptions to the rule, and instead should be thought of as an instance where the relevant principle provides a compelling legal reason for deciding in a certain way in a certain case contra the rule.

Application to E. (Mrs.) v. Eve

At the appeal court level, Eve was made a ward of the Court pursuant to the Medical Health Act solely to permit the exercise of the parens patriae jurisdiction to authorize sterilization, and that the method of sterilization be determined by the Court following further submissions.

Seeing as resolving the issue at hand goes beyond Ronald Dworkin's definition of "rules", the Court was required to rely on principles to resolve the issue.

Parens Patriae

The parens patriae jurisdiction for the care to the mentally incompetent is founded on necessity, that being the need to act for those who cannot care for themselves. This is a broad jurisdiction with an undefined scope. The jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation. Upon first glance, the parens patriae jurisdiction seems to fall under the second positivist theses, giving significant discretion to the courts. However, the Supreme Court of Canada in E. (Mrs.) v. Eve delineates the scope of this jurisdiction, limiting any discretion given by the courts to being exercised in accordance with its underlying principle. This Aligns with Dworkin's theory of law as a system of rights.

La Forest (writing for a unanimous court), recognizing that there is no rule to govern the outcome, concludes that the parens patriae jurisdiction is to be exercised for the benefit of the person in need and not for the benefit of others. It must be exercised with great caution, a caution that must increase with the seriousness of the matter. This is a clear example of the Supreme Court of Canada "reaching down" into the stream of principle, applying justice and fairness to the facts in order to limit his or her own discretion. The use of this underlying principle provides predictability to the legal system, furthering Dworkin's theory that there will always be an existing right to win.

La Forest further addresses the issue of discretion in his closing paragraph of the judgement. He recognizes that the courts undoubtedly have a right and duty to protect those who are unable to take care of themselves, and that this results in a "wide discretion". Nevertheless, La Forest reaffirms that this discretion must be guided by underlying principles, in this case a consideration of what would be in the best interests of the individual. He further states that this discretion certainly does not allow the courts to make a choice between two alleged constitutional rights.

The Court also aligns with Dworkin's theory in it's distinguishes between policies and principles. La Forest, in describing the seriousness of the procedure, notes that no matter how well presented the case may be, the Court can only be partially informed. Therefore, if sterilization of the mentally incompetent is to be adopted as desirable for general social purposes, the legislature is the appropriate body to do so. The legislature is in a position to inform itself and become attuned to the feelings of the public in making policy in a sensitive area. No doubt Dworkin would approve of this application of the difference between policies and principles.

Applying these principles to the facts, it is concluded that it can never be safely determined that sterilization is for the benefit of the person in the absence of the affected person's consent. The intrusion on a person's rights and ensuing physical damage outweigh the advantages that can result from it. The court, therefore, lacks jurisdiction in such a case.