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

Distillation of the positivist position Dworkin’s concept of principles in the law Principles, policies and rules (distinctions) Principles and the concept of law (principles in judicial process) Principles and the role of discretion Are principles “master” or “super” rules The rights thesis (Relationship between rights and principles - principles concerned to give effect to individual right, themselves the product of history Law’s integrity: the fabric of law

Principles of human rights - charter Better good for everyone is a principle - used to buttress equality They have pulled out principles - charter informs rules, rules buttress charter.

Identify correct principles and assign correct values - if you do it correctly you are controlled, like a vessel If you are a bad judge - you have used discretion incorrectly.

Principles are unwritten, need to be so so that they can be infused by outside sources, replenished by outside sources and decisions within law. Wouldn’t work to frame them like the Civil Code.

Charter is encapsulation of policy/principle at that point in time - court always reinterpreting with principles as they are now. Stream of principle has flowed on since 1982, especially as it pertains to S.15 - DIGNITY part of stream, dignity is a principle, imbued S.15

Rules - CPP provision - not compelling outcome - not invalidated by principles of act or the provision itself. Rules derive from principles, sometimes need to be interpreted when occasions come up where 	interpreting them in a certain way would get principles.

Do we need to reinfuse the rule?

Charter both a policy and principle - applies to principles to legislation. So many different principles, everything in the charter - amalgamation of rules effectively becomes super rules, contradicts Dworkins opinion about master rules. Charter is a special set of rules, but principles still underlie them. Dworkin would say it can never 	be written down.

S.15 - elucidated principle. Helps symbiotic principle. What about the fact that S.15 hasn’t been recognized? Expansion of the idea - equality has always been a value, policy considerations and changing times 	have been depositing more equality into the stream of law until the seminal moment of the charter.

Judges not applying discretion - judges pull out relevant principles - disabled people should be treated fairly, utilitarian principle of good for people who need it most. Seemingly related to utilitarianism. Natural conclusion is that the legislation is valid and when principles are honored this is the main 	concern. Natural Law: seems analogous, principles to be discovered, god probably put them there. However, laws change over time. Similar in the way that overarching principles govern rules, discretion etc.	Dworkin is like a modern Aquinas - he is living in a changing world, Aquinas wasn’t Natural law believes in ordaining of power, our modern principles don’t agree

Rules: Rules of act are clear and straightforward, validly instituted. Acceptance of rules self propogates and peoples acceptance of the underlying principles is bolstered.

Discretion: Judges don’t really have discretion, because they are objective. Judges can use discretion when choosing between principles Feminist approach - ignorant to divorce judges and their history from the discretion they use in 	choosing which principles to focus on.

Natural Law: God Granted - Principles have become more inclusive of rights, in the old days the rights were said to be helping the common good but ended up helping church power structure. Inevitably Society becoming more modern and inclusive is against natural law.

Law Fabric - judge set precedent by not contravening cpp provisions, upholding principles of equality. By denying him they aren’t actually violating principles that caused the law to come into effect. Judges are working together to strengthen fabric of the law.

Chain Novel: Prior to this the law didn’t exist, this is a brand new chapter needs to be as good as it can be, not perfect but competently formed. Similar to vicarious liability. Fair to draw on principles where we can, helps to create narrative as good and fair and just.

Policy Considerations are so intertwined nowadays that policy consideration is essentially inseperable from analysis of law.

Introduction to Dworkin’s theory of “Law as a 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. Second, the positivist position holds that in hard cases, where no legal rule applies, judges are governed by their own discretion, albeit this discretion is tempered 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. Principles The basis for Dworkin’s rejection of the positivist categorization of laws as rules is his recognition of the role that principles play. In Dworkin’s conception, 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 piece 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 into 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 society does. A helpful illustrative example of Dworkin’s theory of principles as law is envisaged by thinking of principles as in a stream. Contrary to what positivists believe about anything not real, promulgated “rules”, principles are not “super rules” that are non definitive and airy. Rather, they are concrete and foundational. They prop up the legal rule and reinforce it. They also are draw upon despite the legal rule in hard cases. That principles are not applied as 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 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…UNDERGROUND STREAM. 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. Policy 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 also an accurate reflection of principle. 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 its 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 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 as it relates to disabled persons. 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 problematic state response to these conditions. Looked at broadly, it is the principle of democracy. The exalting of the individual over the ones in power. The idea of the government as servants of the people finds expression in the courts characterization of what a section1 15 disability analysis entails. When Granovsky is looked at through Dworkin’s theoretical lens, one can see in the courts interpretation of section 15 that numerous principles are at play.