Course:Law3020/2014WT1/Group S/System Of Rights
Ronald Dworkin’s theory of law as a system of rights is a direct challenge to the concepts laid out by legal positivists. Broadly speaking, Dworkin challenged the notion that law is simply a collection of human made rules. Instead of viewing law as such, he envisioned law as drawing upon principles, which in turn are derived from the well of a society’s history and morality.
Distillation of the Positivist Position
Dworkin distills the positivist theory of law by describing it in terms of three positions. The first is that the positivist theory of law sees law as a collection of rules that get their legitimacy from one overarching master rule, namely, the rule of recognition. Further, this master rule is completely disconnected from the content of the law itself. Thus the positivist position endorses the separation thesis, which posits that law derives its "lawness" not from morals, but from formal trappings.
Second, the positivist position holds that in hard cases, where no legal rule applies, judges are governed by their own discretion. This discretion is tempered, however, by judge’s reference to the “rule governed practice”, as HLA Hart would believe. Thirdly, Dworkin’s conception of the positivist position holds that the legal rights and obligations bestowed on people are the products of a collection of legal rules, and have no independent basis for existence.
The basis for Dworkin’s rejection of the positivist categorization of laws as strictly rules is his recognition of the role that principles play. In Dworkin’s conceptualization, hard cases where the issue cannot be solved with the application of a rule will be solved by reference to principles. Principles are legally binding because, to Dworkin, principles have just as much “lawness” as do legal rules. Principles are fundamental ideas of justice and fairness that judges draw on in hard cases to make decisions.
Policies are also a part of law, as opposed to what Dworkin’s conception of the positivist position would hold. Dworkin defines policy as social goals that benefit a portion of the citizenry that the legislature has decided are important enough to take on the character of laws.
The Distinction Between Rules and Principles
The essence of a rule is that it is an all or nothing factual truth. Contrarily, the essence of a principle is that it is more amorphous and broad. Dworkin explains exceptions to rules found in many bodies of the common law as instances where the principle demands that the rule does not apply because its application in the situation would be contrary to the principle. In hard cases, when there is no black letter rule available to apply, judges draw from the well of principle and fashion a new “rule” from this principle. It is in this way that rules are created from principles. Principle is crystallized into a new “rule” that is to be applied in cases that have similar factual situations as the one in which the “rule” was created.
Principles are Binding
To the question of judges discretion, Dworkin asserts that principles, although perhaps not codified and documented with the extensiveness that “rules” are, are nonetheless binding. Consequently, judges do not have unfettered discretion when making decisions. There is but one right decision that adherence to principle would produce. Principles, in short, are just as binding as rules. Moreover, the binding quality of rules is derived from the binding quality of principle.
Principles and a “Master Rule” for Binding Law
The origin of principles lie in society’s sense of appropriateness that has developed over history. The continued propagation of principle lies in the sustenance of society’s sense of appropriateness over time. Principles as a source of law shift and change a lot over time, as does society. An illustrative example of Dworkin’s theory of principles as law is envisaged by thinking of principles as an underground stream. Like a stream, principles are unified and flowing, rather than static. The political and social context that enter into the formation and shaping of principles can be likened to sediment and earthen materials that naturally embed themselves within a stream. The dynamic nature of a flowing stream is like the ever changing nature of societal principles that inform and shape the law.
Principles are not "super rules" that overrule "regular rules". They are not impossible to define and airy. Rather they are concrete and foundational. They prop up the legal rule and reinforce it. They are draw upon in spite of the legal rule in hard cases. That principles are not applied in the same formalistic fashion that rules are does not in any way take away from their status as being a part of the law.
The Rule of Recognition
Dworkin posits that the rule of recognition applies to his thesis of law as principles. Principles are derived from society at large, and as such, society respects and decides to follow the law when it properly reflects these principles. The decision to follow the law is not merely based on fear of punishment, but on the recognition that the laws are appropriate. For example, in the American south before the civil rights movement of the mid-20th century, society would have recognized discriminatory laws as legitimate given the fact that they reflected the social mores of the territory and time. The same laws might not be recognized by society as legitimate in 2014 given the shift of social mores society has undergone.
The Rights Thesis
To Dworkin, the primary purpose of judicial decisions is to recognize and affirm the rights of people. While judges make decisions about how and in what circumstances to recognize these rights, the rights owe their content to political culture. Political decisions of the past and present are what give content to rights. Judges and the courts are concerned with principle. Politicians and the legislature are concerned with policy (bestowing rights to a certain segment of the population for the goal of society as a whole) in addition to principle. Objections often levied against the courts for “activism” are actually objections to the court making policy. The court should thus stay within the bounds of deciding cases based on principle. The principles must be applied consistently by judges in order to retain their status as law. Moreover, the interpretation of rights by judges who use principle affects society’s understanding of those rights. Rights are thus a product of the government in their formation, and the judiciary in their interpretation and enforcement.
Law and Integrity: Law’s Fabric
Law is a narrative. It is both retrospective and prospective. The application and promulgation of the law can be seen as a single narrative written by a single author-society. The process of political actors making decisions about policy and rights, and the judges interpreting and applying policy and rights can be likened to a piece of woven fabric that binds society. There must be some predictability to the law in order for it to retain integrity. Society’s trust and recognition of the law depends on this.
Where there is no precedent in a given case, the court’s reliance on the policy of the legislature is justified in that policy is an accurate reflection of principle, just as rule based law is. Judicial and political principle are intertwined and are mirror images of society’s values. It is for this reason that it is appropriate for judges to make reference to legislative policy when deciding cases.
Comparison With Thomas Aquinas Natural Law Theory
Like natural law theory, Dworkin’s theory of principles in law looks to something beyond the written word to further define law. In Aquinas’ theory, God is the force behind the legitimacy of the law. According to Dworkin, principles are the force behind the legitimacy of law. Taken further, principles are the products of human history and morality. Both of these theories are contrary to the theory of strict positivism. Natural law theory, however, has the constant, unchanging concept of god as its guarantor, whereas Dworkin relies on ever changing, flowing history and morality as laws guideposts.
Application of Dworkin’s Theory to Granovsky v. Canada
In Granovsky v. Canada, one can see Dworkin’s theory of principles and rights at work. In deciding whether or not to find that Granovsky’s section 15 equality rights had been infringed, the court needed to draw on principle. At issue was whether the CPP’s refusal to award Granovsky with unemployment benefits was unconstitutional for reasons of inequality.
Applying Dworkin’s theory, one can see that the Charter itself is an encapsulation of legislative policy and judicial principle at a particular point in time. Dignity as a concept of law is also a principle. Referring back to the illustration of principles as an underground stream, "dignity" was a part of the stream involved in the Granovsky case. The values that underlie the Charter, to Dworkin, would undoubtedly be characterized as principles. The Charter itself though, is a collection of codified rules. Thus the judgement in Granovsky reaches beyond the rules laid out in the Charter and, in order to interpret them, refer to the principles below the rules.
In Granovsky, it is section 15 that is elucidated on and interpreted. Section 15 codifies the socio-historical idea of equality as it existed in 1982. Section 15 is a rule. The judges in Granovsky reach out to the principle of equality in order to discover and apply the principle to that rule as it relates to disabled persons. To utilize once more the illustration of principles as an underground stream, we can imagine Justice Binnie as the person charged with wading through the stream and discovering which pieces of sediment and earth are applicable with the situation he needs to solve. Though he has as an explicit map the text of section 15 of the charter, he must for himself discover which principles are responsible for that text and use those principles to help him read the map properly.
Justice Binnie's search for what principles should be applied to the Granovsky case cannot be likened to discretion as positivists understand the word. According to Dworkin, Justice Binnie did not have an array of principles to choose from in deciding the case. Contrarily, he had but a few-the correct ones. In Dworkin's conception of principled based law then, judges do not act based on their personalized understanding of the law. Rather, judges act as explorers and find the appropriate principles to apply.
Granovsky further demonstrates Dworkin's principled theory of law at work because of the fact that a new rule about section 15 interpretation was fashioned by the court. As mentioned, according to Dworkin, judges reach down into principle to fashion "rules" and it is in this way that rules and principles interact.
A number of other principles can be seen in the way the judges decide Granovsky. By interpreting section 15 consideration is given to the principle of utilitarianism. By not finding discrimination in the CPP’s decision not to grant Granovsky damages, the court took into consideration the fact that the CPP and the legislature, representing society as a whole, is charged with allocating funds and making sure that those funds are spread out efficiently. Utilitarianism, as Bentham theorised, is the principle that the goal of a society should be maximum happiness spread out amongst its members. By requiring workers to contribute to the disability fund for a certain period of time before they can claim benefits, the continued existence and health of the scheme is assured. By not requiring a claimant to have contributed would damage the efficacy of the CPP scheme. It is thus in this way that the principles of utilitarianism and efficiency are taken into account by the court.
Another principle drawn on by the judges in Granovsky was the principle of restraining actions of the state viz a viz the individual. In deciding that section 15 is not, ultimately, concerned with biomedical conditions but on the potentially problematic state response to people with these conditions, the court affirmed the principle of restraining the state from enacting discriminatory measures. Looked at broadly, it is the principle of democracy. It is about the exalting of the individual over the state. The idea of the government as servants of the people finds expression in the courts characterization of what a section1 15 disability analysis entails.
- Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Education Canada, 2002) at 240.
- Ibid at 243.
- Ibid at 244.
- Ibid at 246.
- Ibid at 250.
- Ibid at 257.
- Ibid at 260.
- Ibid at 261.
- Ibid at 267.
Table of Contents
|Created by Cole Rodocker,Tajinder Rathor,Nick Rogic,Toby Davis|
|Legal Perspectives||Legal Philosophers|
|1||Natural Law||Thomas Aquinas|
|2||Legal Positivism||[John Austin,HLA Hart, Jeremy Bentham,Joseph Raz]|
|3||Separation Theory||[HLA Hart & Lon Fuller]|
|4||System of Rights||Ronald Dworkin|
|5||Liberty and Paternalism||[John Stuart Mill & Gerald Dworkin]|
|6||Law as Efficiency||Susan Dimock|
|7||Feminist Jurisprudence||Patricia Smith & Catharine A. Mackinnon|
|[Professor Margaret Hall]|