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

=  Law as a System of Rights  =

As a basis for his system of law as rights, Dworkin rejects the three following (positivist) propositions:


 * Law is a set of rules identified as such (legal rules) with reference to a master rule (the “rule of recognition” eg) apart from content (master rule disconnected from content- the separation thesis)
 * Where no legal rule applies, judges exercise discretion
 * Legal rights and obligations are the product of legal rules, with no a priori or independent existence apart from those rules

Dworkin's assertion is that law contains principles in addition to rules, and that these principles subvert the positivist approach.

=  Application to K.L.B. v. B.C.  =

Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:


 * 1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”.
 * 2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.  Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.  Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence.  Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.
 * 3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered.  These may vary with the nature of the case.  When related to intentional torts, the relevant factors may include, but are not limited to, the following:
 * (a) The opportunity that the enterprise afforded the employee to abuse his or her power;
 * (b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
 * (c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
 * (d) The extent of power conferred on the employee in relation to the victim
 * (e) The vulnerability of potential victims to wrongful exercise of the employee’s power.