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

Law as a System of Rights - Ronald Dworkin

Ronald Dworkin Ronald Dworkin was a distinguished legal scholar and philosopher and is considered by many to be the most influential figure in contemporary Anglo-American legal theory. He was the successor of H.L.A Hart as a professor of Jurisprudence at Oxford and a strong critique of legal positivism.

System of Rights

“The “rights” conception of the rule of law assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizen through courts or other judicial institutions of the familiar type, so far as this is practicable. The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.” Ronald Dworkin

Ronald Dworkin, “Political Judges and the Rule of LAw,” in A Matter of Principle (Cambridge, MA:Harvard University Press, 1985), 11-12

According to Dworkin, judges should “apply the law that other institutions have made; they should not make new law”. Dworkin argues that individual moral principles can often be wrong, and that the judge’s decision must be drawn from an interpretation that both fits and justifies what has gone on before, so far as that is possible. Dworkin draws an analogy to a judge being like a novelist in a chain novel, where each novelist aims to “make a single novel of the material he has been given, what he adds to it, and what his successors will want to add to it. Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Education Canada Inc., 2002) at 267.

Relate back to positivism

Dworkin’s Critique of Positivism

Dworkin’s basic strategy throughout the course of the disagreement with Positivism has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. In other words, the existence and content of positive law is governed by the existence and content of the moral law. This contention, therefore, directly challenges and threatens to undermine the positivist picture about the nature of law, in which legality is never determined by morality but rather by social practice.

Dworkin sets out three theses to which he believes legal positivists are committed: 1- “The law of a community can be identified and distinguished by specific criteria, by tests having to do not with their content but with their pedigree or the manner in which they were adopted or developed.” (Pedigree Thesis) 2- “The set of these valid legal rules is exhaustive of ‘the law,’ so that if someone’s case is not clearly covered by such a rule then that case cannot be decided by ‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his discretion.” (Discretion Thesis) 3- “To say that someone has a ‘legal obligation’ is to say that his case falls under a valid legal rule that requires him to do or to forbear from doing something.” (Obligation Thesis)

Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Education Canada Inc., 2002) at 267.

The Pedigree Thesis must be rejected for two reasons. First, legal principles are sometimes binding on judges simply because of their intrinsic moral properties and not because of their pedigree. Second, even when these principles are binding in virtue of their pedigree, it is not possible to formulate a stable rule that picks out a principle based on its degree of institutional support.

The Discretion thesis holds that the law consists solely of legal rules; no principles, in other words, are legal principles. Likewise, the Obligation Thesis states that legal obligations can be generated only by legal rules. Where legal rules are inapplicable, legal obligations do not exist, and judges by necessity must look beyond the law to decide the case.

Dworkin in analysing the above three rejects their objectives based on a belief that law contains not only rules, but also principles. He relies on the existence of principles in rejecting the positivists views as he claims the role of principles in the law undermines the positivist position. Dworkin in analysing the above three rejects their objectives based on a belief that law contains not only rules, but also principles. He relies on the existence of principles in rejecting the positivists views as he claims the role of principles in the law undermines the positivist position.

Principles, Policies, and Rules: Dworkin argues for the recognition of law as incorporating standards that are not rules, further claims that law includes principles and policies in addition to rules.

He defines them as: Policies: Social goals pursued on behalf of some segment of population, decisions about which policy objectives have priority best left to legislators. Principles: Based on the fundamental ideas of justice and fairness that support certain rights and duties; judges must take this into account when deciding hard cases. in other words, judges discover rights and duties based on principles, they dont create them.

Application to Little Sisters Book and Art Emporium v Canada

The Supreme Court of Canada decision held that the Customs Act violated Section 2 right of the Canadian Charter of Right and Freedoms, which gave broad powers to customs inspectors to exclude “obscene” material, but it was found justified under section 1 right.

The fact that the both laws collide is one of the point that Dworkin makes that if one rule goes against the rule of another, one must not be a rule and therefore need not be followed.

Resolving the issue in this case goes beyond rules, as they are defined by Ronald Dworkin, the court was required to rely on principles. to resolve the issue.

In this case it was further analyzed that the Customs Act in itself was justified, yet it was those who administered the legislation had discriminated against the bookstore, and it was the underlying principles that the judges relied upon in resolving the case.