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

Rules
Dworkin believes that Rules are all or nothing factual requirements. If the facts a rule states are given, then they must be accepted. In order to be recognized the rule must be made by a competent institution and accepted by the community. Rules are binding because they affirmatively support principles that courts cannot disregard. If a rule does not support principles in certain cases then the court can disregard it in that instance. Rules, though, are collectively more weighty than principles that push for change. If there is a case not covered by rule, it will be covered in principles.

Principles
Principles are all other standards that are not rules and are part of the law as much as rules. They may look like rules at times but this is not a problem. They are based on fundamental ideas of justice and fairness that support certain rights and duties and come from what we sense as right in society at that time. Principles applied in precedent illustrate our acceptance and not their validity. They encompass the process of judgment and reasoning.

Judges must follow principles which are binding and control discretion and rules. If applied correctly, the judges are not using discretion and will in turn come to the right conclusion. When rights are viewed through the contemporary principles, the meaning of those rights are changed.

Policy
Policies are social goals pursued by some of society. Deciding which policy objectives have priority should be left to legislature because they are in best position to know which group to favour. Arguments of policy justify political decisions by showing it advances or protects the goal of the community, or individual or group right.

Judges
Judges interpret the law directed by principles with policy priorities. Principles can provide counter-instances where they compel the judge to not permit a rule to affect the decision. Judges have a political responsibility that these decisions not be arbitrary, but rather consistent. They should interpret law as an unfolding narrative created by one author so that decisions form a coherent and consistent telling of justice.

Dworkin believes that our Law lives through the courts and unless Judges interpret it, it is sterile. He also believed that civil cases should be based on principle and not policy. Most objections to judicial originality is the charge that it is judicial policy making. Policy should be made by legislature.

Contrast to Natural Theory
Unlike Natural Law theory, which requires law to be directed at common good, have practical reason, made by valid lawmaker, and be written, Dworkin’s approach is simple: if the facts of the rule are given, then they must be accepted. They are further recognized because they are made by a competent body and accepted by society. Natural Law also posits a teleological standpoint, that once a law does serve it’s purpose of a rational pursuit of the common good, then it is no longer valid.

Dworkin does not require anything from the law in practice for it to be valid; however, if there are principles that go counter to the rule, the court can disregard the rule in making a decision with that particular case. Natural Law also holds that legislation is preferable over judicial decisions because the legislator possesses greater authority, are more likely to possess wisdom and are not moved by emotion. Dworkin believes that the law is sterile without arbitration. Judgments should be made based on principles, which are societal views on what is just and fair at the time, and guided by policy, which are priorities determined by the legislator.

Contrast to Positivism
Positivism purports that for a positive law to be valid it must be imposed by a political superior over an inferior and backed by threat of sanctions. Although this is not as burdensome as the Natural Law theory, it is not similar to Dworkin’s approach which only requires that the facts of the rule be given in order for it to be accepted. The validity of the law stems from the competent body in which creates it and the acceptance by society. Positivism requires two separate lines of inquiry. One looks to the validity of the law.

The second line of inquiry looks to the morality of the law. Morality does not play a part in determining the validity of a law. Dworkin does not include morality in the mix of law creation. He does, however, discuss ideas of fairness playing a part in principles. He states that rules are binding because they support principles. Principles are based on fundamental ideas of justice and fairness that support certain rights and duties and come from what we sense as right in society at that time.

Judges must follow principles which are binding. These principles control discretion and rules. Legal positivism has the position that judges are subordinates that are acting as ministers with restricted authority from the state. Dworkin believes judges are necessary in law because laws need to be interpreted. He claims that judgments should be made based on our binding principles, which are societal views on what is just and fair at the time, and guided by policy, which are priorities determined by the legislator.

Contrast to Separation Thesis
Hart’s separation thesis states that morality and law should be separate. Dworkin does not include morality in the determination of which laws are valid. He does say that rules are binding because they affirm principles and principles include a sense of morality in their determination. Principles are based on fundamental ideas of justice and fairness that support certain rights and duties and come from what we sense as right in society at that time. Judges must follow principles which are binding. These principles control discretion and rules. Hart does not believe judges apply moral rules in their judgments, unlike Dworkin’s view that judges must follow principles which include moral positions about justice and fairness. Hart believes judges are drawing from the rule governed practice to decide on the hard cases that fall outside the settled core: the cases in the penumbra. So judges are enforcing laws and not interpreting them by drawing on moral beliefs of the system itself and not their own which are fairness, justice and equality. Fuller disagrees with Hart. Fuller believes that judge’s using their interpretation abilities to reference the internal and external morality of the law, will make the law what it ought to be. In other words, morality applies in the decisions of judges.

Case Study: Eldridge v B.C.
When looking at the Eldridge case through Dwokin’s lens, one can see where the rule, principles and policy play in. In analyzing whether the Health Care Act infringes on individual’s s. 15 (equality) rights, the court uses principles to determine what rights are protected, as well as what infringement looks like (para 22). The framework the court develops for determining if there is an infringement of s.15 of the Charter is what Dworkin would classify as the rule.

The court first looks at the Charter to see the plain meaning of “equality.” Through such analysis, the court determined what the underlying purpose of the section was, and what principles should guide their interpretation. Further, the court also refers to Andrew v Law Society, Turpin, Knodel v. British Columbia to understand how s.15 and equality have been previously understood (para 53). Court uses the underlying principles to determine if this case is one of “adverse effect discrimination”(para 63).

The court stated that equality as per McIntrye in Andrews: “entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”. Based on the principles the court believes reflect fairness, the court found that disabled persons have not been afforded “equal concern, respect and consideration that s.15(1) of the Charter demands (para 56). The creation of the Charter, specifically s.15, by Parliament is a reflection of policy priority to protect minority and disadvantaged groups.

How Dworkin would decide the case
Using Dworkin’s thesis to decide the case, one would examine the legislation to determine its validity. As mentioned, Dworkin believes that if the facts of a rule are stated then they must be accepted. For a law to be recognized it must be created by a competent body and accepted by the community. Further, because s.15 of the Charter and the definition of benefits in the Medicare Protection Act incorporates the principles of what we see as fair and just, Dworkin would find that those rules are binding. The validity of s.15 of the Charter is presumed by the court, thus the court does not undertake any discussion on validity.

However, if there was a question of validity, Dworkin would find s.15 of the Charter valid. He would also conclude that the Medical Services Commission’s determination of what is included as benefits under the Medicare Protection Act was, on its face, valid because it encompassed the principle of fairness and contained the necessary requirements to be a rule. Although the included benefits are not necessarily written, the Medical Services Act states that the Commission has the authority to the extent of benefits. Thus, there is no issue of invalidity since Dworkin’s rule is still stipulated.

A supplementary examination of the Medicare Protection Act in the context of the hearing impaired, would raise the concern of discrimination. This discrimination goes against the principle in which Dworkin would justify its acceptance and is also against the reason for which there is coverage in the Medicare Services Act. Although the definition of benefits in the Medical Services Act appears to be prima facie valid because it stipulates the facts of the rule, principles can provide counter-instances in which they compel the court to not follow the rule in this instance but it does not necessarily invalidate the rule. For this rule to comprise the principle necessary to affect the decision and not be disregarded, it would require the inclusion of benefits coverage for sign language interpreters for the hearing impaired seeing as sign language is equivalent to oral communication for the hearing impaired(para 89).

A judge, using Dworkin’s thesis, would consider principles, which, as stated above, are based on fundamental ideas of justice and fairness that support certain rights and duties and come from what we sense as right in society at that time. The court would consider principles because as Dworkin had stated, civil cases should be based on principle and not policy. The answer to this case is not in legislation and therefore, according to Dworkin, should be decided through principle; principles guide the judge’s discretion.

Even if policy was a consideration in the analysis undertaken by the judges, the Medical and Health Services Act implements a governmental policy, which ensures that all citizens receive medically required services without charge. The failure of the Commission and hospitals to provide sign language interpretation denies people with hearing impairment the equal benefit of the law.

In considering whether the definition of benefits under the Medicare Services Act should include coverage for sign language interpreters, a judge would determine what finding would be consistent with legislation so as to avoid arbitrary decisions. Since one of the principles taken to mind when drafting the Medicare Services Act was certainly equality, it would only follow the unfolding narrative if sign language interpreters were included so as to alleviate a concern of discrimination against the hearing impaired.

Although this case considered whether the definition of benefits under the Medicare Services Act violated s.15 of the Charter, the court through Dworkin’s lens would only need to examine the Medicare Services Act to determine that there was an inconsistency with principle. In conclusion, Dworkin would find that in order to form a coherent and consistent telling of justice; to affirmatively support principles through rules that courts cannot disregard; and in order for the legislation to contain the ideas of justice and fairness that support certain rights, the definition of benefits in the Medicare Services Act violates the principle in which it was created for and therefore requires that coverage for sign language interpreters be included.