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

Ronald Dworkin: Law as a System of Rights

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Background:

Dworkin’s theories strongly reject legal positivism’s propositions that law is strictly a set of rules and absent these rules judges exercise discretion. He also opposes the idea that legal rights and obligations are born strictly out of legal rules and have no existence apart from those rules.

Theory:

Dworkin argues that law is a compilation of rules, principles and policies. He believes that “law” is not empirically provable and cannot be defined by a set of rules. Principles are legally binding fundamental ideas of justice and fairness that support certain rights and duties. In the absence of a rule, judges will draw on principles of justice and fairness to discover rights and duties. Policies are a representation of the social goals pursued on behalf of a segment of people. Policy decisions are best left to the legislators. Policies are made by the legislators in consideration of principles. Policy communicates the goals of a specific or overall community and principles communicate rights. Rights are individualized while goals are collective. Judges are mainly concerned with the application of principles to rules and Dworkin argues that they serve the protection of rights better than legislators.

Although rules of the law and principles are separate entities that evolve over time, they are interconnected and influence each other. This can be analogized by the following:

Imagine you have an underground river of “principles”. Surrounding the river is “policy” sediment that leaks into the stream. Above ground are the “rules”. When the courts are faced with a hard case they draw up the “principles” river to interpret the rules. Once the case is decided, the “principles” river flows back underground informing the river of the decisions made by the case and thereby influencing the existing principles. Basically, when judges make new rules in a hard case they are informed by society’s principles that can be applied to that situation at that point in time. The principles that are relevant can be assessed by the current rules in place, how courts discuss the principles when creating new rules, and examining how the system of rules have been evolving. Principles that hold more weight at the time a rule is being made will be most influential in the judicial decision. Dworkin stands by the idea that if all the principles that apply to the situation are properly applied will result in the one and only “right” decision. If the decision made is not the right one then the judge has failed at applying the principles correctly. Future decisions on a particular situation may arrive at a different outcome than if it were made in the past due to the different weights of the applicable principles. Rules can be altered when they no longer reflect the principles that are prominent in society at the time.

Summary:

Dworkin’s theory visualizes principles as concepts of fundamental justice. Over time these principles carry different weights in different circumstances. These are not parallel with Hart’s envision of “super rules”. Hart’s “super rules” are idle and influence how rules are created the same way every time.

Application to Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.):

A criticism of Dworkin’s theory is that it assumes that if the right principles are applied, the right decision will be made. This fails to envision the possibility of conflicting principles, as is seen in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.). The courts grapple with the competing principles of individual rights and autonomy with the principle of parens patrie and the protection of those who cannot protect themselves. It would seem unlikely that there would be a way to reconcile the outcome such that both principles are adhered to in the creation of a rule for this situation.

Dworkin asserts that different weights are applied to different principles and the more weighty principle will lead to the correct outcome. The principle of individual rights is embedded in the law through both statute and common law. The issue here is what happens when individual rights conflict? As it stands, the majority found that the self-autonomy of a mother holds more weight than the rights of an unborn fetus. This is because the current law does not recognize an unborn child as a legal person. Dworkin would question whether this current rule is relevant to the principles relevant today. The court does recognize, however, that there is a resounding issue in not addressing the unborn child’s rights at all. The court is not overlooking the principle protecting unborn fetuses but suggests that the legislators should make laws that balance out these principles.

In dissent, the judge argued that the weight of parens patrie was heavier than the autonomy of a mother experiencing addiction. They state that this principle doesn’t completely override the rights of self-autonomy in a mother. Rather, by placing a responsibility on the mother to ensure the well being of a child that she has decided to carry to term, it is no different than the principle that parents owe a duty of care to born children. Dworkin would argue that this was the more appropriate application as it properly weighs the principles in a way that they can both be represented in the law.