Course:Law3020/2014WT1/Group M/System Of Rights
Dworkin – Law as a System of Rights
Ronald Dworkin's concept of a system of rights is based on the idea that law extends beyond mere written rules, and draws upon underlying principles. In this way Dworkin's theory is more complex and nuanced than positivist theories, in that it takes into account higher-order principles which lie outside the law itself. Dworkin's conception of a system of rights might properly be described as falling somewhere between the positivist idea (that law and morality are entirely separate) and the natural law theory (that law depends upon some unchanging external morality).
Law, in Dworkin's view, draws upon foundational principles of fairness and justice. A law which runs contrary to these principles might properly be narrowed or eliminated by the courts, while a law which fails to fully give effect to these principles might be construed broadly and expanded by the courts.
Meanwhile, the principles which govern and inform the law are in turn shaped and modified over time by the experience of the common law. In this way, principles are not external to the law as a natural law theorist such as Saint Thomas Acquinas would contend, but are instead interconnected with the law in such a way as to ensure consistency and integrity in a society's legal structure.
Dworkin's theory is well demonstrated by the case of Bazley v. Curry, in which the concept of vicarious liability was extended for reasons of underlying public policy and legal principle:
A focus on policy is not to diminish the importance of legal principle. It is vital that the courts attempt to articulate general legal principles to lend certainty to the law and guide future applications. However, in areas of jurisprudence where changes have been occurring in response to policy considerations, the best route to enduring principle may well lie through policy. The law of vicarious liability is just such a domain.
The policy reason for the extension of vicarious liability in Bazley v. Curry was the principle that vulnerable people (in that case children) should be protected by the law:
- Fairness and the need for deterrence in this critical area of human conduct __ the care of vulnerable children __ suggest that as between the Foundation that created and managed the risk and the innocent victim, the Foundation should bear the loss.
Similarly in Hodgkinson v. Simms, the Supreme Court found it necessary to expand the law of fiduciary responsibility so as to protect investors who are vulnerable to the improper motives of a self-interested financial adviser:
- From a conceptual standpoint, the fiduciary duty may properly be understood as but one of a species of a more generalized duty by which the law seeks to protect vulnerable people in transactions with others. I wish to emphasize from the outset, then, that the concept of vulnerability is not the hallmark of fiduciary relationship though it is an important indicium of its existence. Vulnerability is common to many relationships in which the law will intervene to protect one of the parties. It is, in fact, the "golden thread" that unites such related causes of action as breach of fiduciary duty, undue influence, unconscionability and negligent misrepresentation.
The underlying principle that the vulnerable should be protected is therefore the conceptual basis for both Bazley v. Curry and Hodgkinson v. Simms. Upon reviewing the circumstances of these cases and the existing law's failure to protect the vulnerable, the Supreme Court extended the legal concepts of vicarious liability and fiduciary duty, respectively. Both cases are strong examples of the Supreme Court's willingness to infuse foundational principles into the common law, so as to protect the consistency and integrity of the system of rights and obligations upon which our legal system is based.
- Bazley v. Curry at para 27
- Bazley v. Curry at para 58