https://kumu.tru.ca/api.php?action=feedcontributions&user=Montyr13&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-28T12:04:17ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/Separation_Thesis&diff=5344Course:Law3020/2014WT1/Group P/Separation Thesis2014-03-28T06:06:32Z<p>Montyr13: </p>
<hr />
<div>'''Separation Thesis'''<br/><br/><br />
According to separation theorists, the law and morality are two distinct systems. They often run parallel to each other, but should not be confused as being synonymous. We can evaluate laws with morality, but if there is a conflict we, as a society, must decide which is more important. Positivists also believe that we are living in a rule-governed system where legal rules create “oughts” potentially without a defined a moral backing. The analogy provided by Dimock (2006) is based on the rules in sports or etiquette. Rules in a sporting event like hockey tell us that a goal is a goal because it ought to be as defined by the rules of the game, not the fact that morality tells us that is a goal. Morally this might be true or not, it doesn ot matter, as long as the legal rules of the game tell us that it “ought” to be then morality is irrelevant (Dimock 2006, Classic Readings and Cases in the Philosophy of Law. p. 138).<br/><br/><br />
'''The Justice System and Hart'''<br/><br/><br />
This leads us to the role of Judges according to HLA hart and legal positivists. Hart believes that laws are expressed in general terms or language. This means that sometimes these terms can fall outside of what we have defined already through other case law, which makes them unclear or indeterminate. This idea is called a “penumbra”, analogous to an eclipse where the defined cases fall inside the eclipse and judges need to decide what legal precedent to follow; and the hard cases, which are the cases that fall on the outside of the eclipse, which force the judges to make me new policy and to take on a more legislative role. Critics believe that when judges take the expanded role of essentially creating new laws they must do so with moral principles in mind, which would a direct contradiction to separation theorists beliefs. <br/><br/><br />
Hart answers some his critics when he says that separation theory must be descriptive characterization of the actual relationship between law and morality, but also as a normative tool for criticizing immoral or unjust legal systems. He also states that critics confuse a moral-law connection when judges make these hard case decisions, but as stated above, judges might create true claims about what they ought to do that just coincidentally coincide with moral claims, but the moral element is not essential to the process and should not be conflated with the legal system.<br/><br/><br />
The decisions in these hard cases are based in the rule-governed practices from within the defined core that came before them not personal morality. Morality is also a rule governed practice, which creates its of set of distinct “oughts” and obligations. Dimock, uses the example a legal system establishing laws against violence or murder. Although there is overlap between the moral and legal systems, which would simply create both a moral and legal duty to abide by these rules, but the rules a established in different rule-governed systems. <br />
Hart believes that is order to be effective, the legal system must be followed by at least a community of members for other reasons than fear or punishment. By having these members abide to the rules willingly, it gives authority to these rules based outside, at least in some part, of morality. Other reasons to willing follow legal rules could be self-interest, or habit. By separating the two we can evaluate laws much easier; if we tried to reconcile the two we might try to impose a moral standard, what we use to evaluate our own and others behavior, with that of the laws whose objective could be completely different.<br/><br/><br />
'''Hart versus Fuller'''<br/><br/><br />
A counter to HLA Hart is Lon Fuller. He criticizes the separation on four arguments: "First, that social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order; second. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story); third. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws; and fourth, criticises the “core” and “penumbra” theory of judicial interpretation- the judicial duty to the law, fidelity to the law, requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality" (Hall 2014, Legal Perspective slides)<br/><br/><br />
'''''Egan v Canada'' and the Penumbra'''<br/><br/><br />
[[File:Antoine Caron Astronomers Studying an Eclipse.jpg|thumbnail|right|Antoine Caron Astronomers Studying an Eclipse]]<br />
The case of ''Egan v Canada'' is a penumbra case from the perspective of Hart. From the Separatist perspective, the definition of marriage is a question that pertains more to the rules of legality and not morality. The ruling presented by the courts is one that acknowledges that it is not the prerogative to change the legal rules and Hart would have supported the courts decision to address the legal rule in question. What was on the books at the time, marriage was between a man and a woman. The law, as presented, gave the judges a clear and concise understanding of what marriage "ought to be" and they used past decisions to make their decision; marriage, in their eyes, was not far enough outside the penumbra to warrant them to a legislative role that would redefine the definition of marriage. As a result, the judges did not have to address the case from the penumbra and maintained the separation between law and morals.<br/><br/><br />
However, the counterpoints presented by Lon Fuller on the Hart's Separation would find the courts ruling ineffective. For Fuller, the legal and the moral are too intertwined, particularly in that the law should uphold an inner morality. The definition of marriage, particularly at the time of the case, was fairly contested. However, Fuller would most likely have agreed the judgement, in that they assessed a contested issue that involved both legal and moral rules. In their assessment, however, Fuller would not have supported the justification of tax purposes for the ruling.</div>Montyr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/Separation_Thesis&diff=5341Course:Law3020/2014WT1/Group P/Separation Thesis2014-03-28T06:00:14Z<p>Montyr13: </p>
<hr />
<div>'''Separation Thesis'''<br/><br/><br />
According to separation theorists, the law and morality are two distinct systems. They often run parallel to each other, but should not be confused as being synonymous. We can evaluate laws with morality, but if there is a conflict we, as a society, must decide which is more important. Positivists also believe that we are living in a rule-governed system where legal rules create “oughts” potentially without a defined a moral backing. The analogy provided by Dimock (2006) is based on the rules in sports or etiquette. Rules in a sporting event like hockey tell us that a goal is a goal because it ought to be as defined by the rules of the game, not the fact that morality tells us that is a goal. Morally this might be true or not, it doesn ot matter, as long as the legal rules of the game tell us that it “ought” to be then morality is irrelevant (Dimock 2006, Classic Readings and Cases in the Philosophy of Law. p. 138).<br/><br/><br />
'''The Justice System and Hart'''<br/><br/><br />
This leads us to the role of Judges according to HLA hart and legal positivists. Hart believes that laws are expressed in general terms or language. This means that sometimes theses terms can fall outside of what we have defined already through other case law, which makes them unclear or indeterminate. This idea is called a “penumbra”, analogous to an eclipse where the defined cases fall inside the eclipse and judges need to decide what legal precedent to follow; on the other hand we have the hard cases, which are the cases that fall on the outside of the eclipse, forcing the judges to make me new policy or to take on a more legislative role. Critics believe that when judges take the expanded role of essentially creating new laws they must do so with moral principles in mind, which would a direct contradiction to separation theorists beliefs. <br/><br/><br />
Hart answers some his critics when he says that separation theory must be descriptive characterization of the actual relationship between law and morality, but also as a normative tool for criticizing immoral or unjust legal systems. He also states that critics confuse a moral-law connection when judges make these hard case decisions, but as stated above, judges might create true claims about what they ought to do that just coincidentally coincide with moral claims, but the moral element is not essential to the process and should not be conflated with the legal system.<br/><br/><br />
The decisions in these hard cases are based in the rule-governed practices from within the defined core that came before them not personal morality. Morality is also a rule governed practice, which creates its of set of distinct “oughts” and obligations. Dimock, uses the example a legal system establishing laws against violence or murder. Although there is overlap between the moral and legal systems, which would simply create both a moral and legal duty to abide by these rules, but the rules a established in different rule-governed systems. <br />
Hart believes that is order to be effective, the legal system must be followed by at least a community of members for other reasons than fear or punishment. By having these members abide to the rules willingly, it gives authority to these rules based outside, at least in some part, of morality. Other reasons to willing follow legal rules could be self-interest, or habit. By separating the two we can evaluate laws much easier; if we tried to reconcile the two we might try to impose a moral standard, what we use to evaluate our own and others behavior, with that of the laws who’s objective could be completely different.<br/><br/><br />
'''Hart versus Fuller'''<br/><br/><br />
A counter HLA Hart is Lon Fuller. He criticizes the separation on four arguments: 1. That social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order; 2. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story); 3. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws; 4. Criticises the “core” and “penumbra” theory of judicial interpretation- the judicial duty to the law, fidelity to the law, requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality (Hall 2014, Legal Perspective slides)<br/><br/><br />
'''''Egan v Canada'' and the Penumbra'''<br/><br/><br />
[[File:Antoine Caron Astronomers Studying an Eclipse.jpg|thumbnail|right|Antoine Caron Astronomers Studying an Eclipse]]<br />
The case of ''Egan v Canada'' is a penumbra case from the perspective of Hart. From the Separatist perspective, the definition of marriage is a question that pertains more to the rules of legality and not morality. The ruling presented by the courts is one that acknowledges that it is not the prerogative to change the legal rules and Hart would have supported the courts decision to address the legal rule in question. What was on the books at the time, marriage was between a man and a woman. The law, as presented, gave the judges a clear and concise understanding of what marriage "ought to be" and they used past decisions to make their decision; marriage, in their eyes, was not far enough outside the penumbra to warrant them to a legislative role that would redefine the definition of marriage. As a result, the judges did not have to address the case from the penumbra and maintained the separation between law and morals.<br/><br/><br />
However, the counterpoints presented by Lon Fuller on the Hart's Separation would find the courts ruling ineffective. For Fuller, the legal and the moral are too intertwined, particularly in that the law should uphold an inner morality. The definition of marriage, particularly at the time of the case, was fairly contested. However, Fuller would most likely have agreed the judgement, in that they assessed a contested issue that involved both legal and moral rules. In their assessment, however, Fuller would not have supported the justification of tax purposes for the ruling.</div>Montyr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/Separation_Thesis&diff=5338Course:Law3020/2014WT1/Group P/Separation Thesis2014-03-28T05:58:01Z<p>Montyr13: </p>
<hr />
<div>'''Separation Thesis'''<br/><br/><br />
According to separation theorists, the law and morality are two distinct systems. They often run parallel to each other, but should not be confused as being synonymous. We can evaluate laws with morality, but if there is a conflict we, as a society, must decide which is more important. Positivists also believe that we are living in a rule-governed system where legal rules create “oughts” potentially without a defined a moral backing. The analogy provided by Dimock (2006) is based on the rules in sports or etiquette. Rules in a sporting event like hockey tell us that a goal is a goal because it ought to be as defined by the rules of the game, not the fact that morality tells us that is a goal. Morally this might be true or not, it doesn ot matter, as long as the legal rules of the game tell us that it “ought” to be then morality is irrelevant (Dimock 2006, Classic Readings and Cases in the Philosophy of Law. p. 138).<br/><br/><br />
'''The Justice System and Hart'''<br/><br/><br />
This leads us to the role of Judges according to HLA hart and legal positivists. Hart believes that laws are expressed in general terms or language. This means that sometimes theses terms can fall outside of what we have defined already through other case law, which makes them unclear or indeterminate. This idea is called a “penumbra”, analogous to an eclipse where the defined cases fall inside the eclipse and judges need to decide what legal precedent to follow; on the other hand we have the hard cases, which are the cases that fall on the outside of the eclipse, forcing the judges to make me new policy or to take on a more legislative role. Critics believe that when judges take the expanded role of essentially creating new laws they must do so with moral principles in mind, which would a direct contradiction to separation theorists beliefs. <br/><br/><br />
Hart answers some his critics when he says that separation theory must be descriptive characterization of the actual relationship between law and morality, but also as a normative tool for criticizing immoral or unjust legal systems. He also states that critics confuse a moral-law connection when judges make these hard case decisions, but as stated above, judges might create true claims about what they ought to do that just coincidentally coincide with moral claims, but the moral element is not essential to the process and should not be conflated with the legal system.<br/><br/><br />
The decisions in these hard cases are based in the rule-governed practices from within the defined core that came before them not personal morality. Morality is also a rule governed practice, which creates its of set of distinct “oughts” and obligations. Dimock, uses the example a legal system establishing laws against violence or murder. Although there is overlap between the moral and legal systems, which would simply create both a moral and legal duty to abide by these rules, but the rules a established in different rule-governed systems. <br />
Hart believes that is order to be effective, the legal system must be followed by at least a community of members for other reasons than fear or punishment. By having these members abide to the rules willingly, it gives authority to these rules based outside, at least in some part, of morality. Other reasons to willing follow legal rules could be self-interest, or habit. By separating the two we can evaluate laws much easier; if we tried to reconcile the two we might try to impose a moral standard, what we use to evaluate our own and others behavior, with that of the laws who’s objective could be completely different.<br/><br/><br />
'''Hart versus Fuller'''<br/><br/><br />
A counter HLA Hart is Lon Fuller. He criticizes the separation on four arguments: 1. That social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order; 2. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story); 3. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws; 4. Criticises the “core” and “penumbra” theory of judicial interpretation- the judicial duty to the law, fidelity to the law, requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality.<br/><br/><br />
'''''Egan v Canada'' and the Penumbra'''<br/><br/><br />
[[File:Antoine Caron Astronomers Studying an Eclipse.jpg|thumbnail|right|Antoine Caron Astronomers Studying an Eclipse]]<br />
The case of ''Egan v Canada'' is a penumbra case from the perspective of Hart. From the Separatist perspective, the definition of marriage is a question that pertains more to the rules of legality and not morality. The ruling presented by the courts is one that acknowledges that it is not the prerogative to change the legal rules and Hart would have supported the courts decision to address the legal rule in question. What was on the books at the time, marriage was between a man and a woman. The law, as presented, gave the judges a clear and concise understanding of what marriage "ought to be" and they used past decisions to make their decision; marriage, in their eyes, was not far enough outside the penumbra to warrant them to a legislative role that would redefine the definition of marriage. As a result, the judges did not have to address the case from the penumbra and maintained the separation between law and morals.<br/><br/><br />
However, the counterpoints presented by Lon Fuller on the Hart's Separation would find the courts ruling ineffective. For Fuller, the legal and the moral are too intertwined, particularly in that the law should uphold an inner morality. The definition of marriage, particularly at the time of the case, was fairly contested. However, Fuller would most likely have agreed the judgement, in that they assessed a contested issue that involved both legal and moral rules. In their assessment, however, Fuller would not have supported the justification of tax purposes for the ruling.</div>Montyr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/Separation_Thesis&diff=5337Course:Law3020/2014WT1/Group P/Separation Thesis2014-03-28T05:57:20Z<p>Montyr13: </p>
<hr />
<div>'''Separation Thesis'''<br/><br/><br />
According to separation theorists, the law and morality are two distinct systems. They often run parallel to each other, but should not be confused as being synonymous. We can evaluate laws with morality, but if there is a conflict we, as a society, must decide which is more important. Positivists also believe that we are living in a rule-governed system where legal rules create “oughts” potentially without a defined a moral backing. The analogy provided by Dimock (2006) is based on the rules in sports or etiquette. Rules in a sporting event like hockey tell us that a goal is a goal because it ought to be as defined by the rules of the game, not the fact that morality tells us that is a goal. Morally this might be true or not, it doesn ot matter, as long as the legal rules of the game tell us that it “ought” to be then morality is irrelevant (Dimock 2006, Classic Readings and Cases in the Philosophy of Law. p. 138).<br/><br/><br />
'''The Justice System and Hart'''<br/><br/><br />
This leads us to the role of Judges according to HLA hart and legal positivists. Hart believes that laws are expressed in general terms or language. This means that sometimes theses terms can fall outside of what we have defined already through other case law, which makes them unclear or indeterminate. This idea is called a “penumbra”, analogous to an eclipse where the defined cases fall inside the eclipse and judges need to decide what legal precedent to follow; on the other hand we have the hard cases, which are the cases that fall on the outside of the eclipse, forcing the judges to make me new policy or to take on a more legislative role. Critics believe that when judges take the expanded role of essentially creating new laws they must do so with moral principles in mind, which would a direct contradiction to separation theorists beliefs. <br/><br/><br />
Hart answers some his critics when he says that separation theory must be descriptive characterization of the actual relationship between law and morality, but also as a normative tool for criticizing immoral or unjust legal systems. He also states that critics confuse a moral-law connection when judges make these hard case decisions, but as stated above, judges might create true claims about what they ought to do that just coincidentally coincide with moral claims, but the moral element is not essential to the process and should not be conflated with the legal system.<br/><br/><br />
The decisions in these hard cases are based in the rule-governed practices from within the defined core that came before them not personal morality. Morality is also a rule governed practice, which creates its of set of distinct “oughts” and obligations. Dimock, uses the example a legal system establishing laws against violence or murder. Although there is overlap between the moral and legal systems, which would simply create both a moral and legal duty to abide by these rules, but the rules a established in different rule-governed systems. <br />
Hart believes that is order to be effective, the legal system must be followed by at least a community of members for other reasons than fear or punishment. By having these members abide to the rules willingly, it gives authority to these rules based outside, at least in some part, of morality. Other reasons to willing follow legal rules could be self-interest, or habit. BY separating the two we can evaluate laws much easier; if we tried to reconcile the two we might try to impose a moral standard, what we use to evaluate our own and others behavior, with that of the laws who’s objective could be completely different.<br/><br/><br />
'''Hart versus Fuller'''<br/><br/><br />
A counter HLA Hart is Lon Fuller. He criticizes the separation on four arguments: 1. That social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order; 2. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story); 3. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws; 4. Criticises the “core” and “penumbra” theory of judicial interpretation- the judicial duty to the law, fidelity to the law, requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality.<br/><br/><br />
'''''Egan v Canada'' and the Penumbra'''<br/><br/><br />
[[File:Antoine Caron Astronomers Studying an Eclipse.jpg|thumbnail|right|Antoine Caron Astronomers Studying an Eclipse]]<br />
The case of ''Egan v Canada'' is a penumbra case from the perspective of Hart. From the Separatist perspective, the definition of marriage is a question that pertains more to the rules of legality and not morality. The ruling presented by the courts is one that acknowledges that it is not the prerogative to change the legal rules and Hart would have supported the courts decision to address the legal rule in question. What was on the books at the time, marriage was between a man and a woman. The law, as presented, gave the judges a clear and concise understanding of what marriage "ought to be" and they used past decisions to make their decision; marriage, in their eyes, was not far enough outside the penumbra to warrant them to a legislative role that would redefine the definition of marriage. As a result, the judges did not have to address the case from the penumbra and maintained the separation between law and morals.<br/><br/><br />
However, the counterpoints presented by Lon Fuller on the Hart's Separation would find the courts ruling ineffective. For Fuller, the legal and the moral are too intertwined, particularly in that the law should uphold an inner morality. The definition of marriage, particularly at the time of the case, was fairly contested. However, Fuller would most likely have agreed the judgement, in that they assessed a contested issue that involved both legal and moral rules. In their assessment, however, Fuller would not have supported the justification of tax purposes for the ruling.</div>Montyr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/System_Of_Rights&diff=5317Course:Law3020/2014WT1/Group P/System Of Rights2014-03-28T05:50:08Z<p>Montyr13: </p>
<hr />
<div>'''System of Rights'''<br/><br/><br />
Writer Richard Dworkin developed the system of rights theory. A main aspect of his work is spent criticizing the positivist theories of HLA Hart. He takes aim at positivist staples of a definitive central rule-system, their explanation of normative law, and their approach to adjudication. Dworkin believes that laws are not solely developed by a system of rules, but also by principles. These principles can be defined as being governed by both justice and fairness. Where Hart believes that judges fill in gaps of inconsistent or failed laws by using their discretion in hard cases, Dworkin believes these gaps are filled by these principles.<br/><br/><br />
Dworkin rejects the separation theory and positivism in its entirety, he counters with his theory of “Law as integrity”. Within this theory there are both principles and rules. There are a few ways in which principles differ from rules: first, a judges discretion is limited when there are both principles and rules in play; if there are no attached rules then binding principles will take legal authority. Second, there are no hard cases where a judge’s discretion is used, rather rights will decide the cases that lie outside of binding law based on obligations established by these principles. Finally, principles fall outside the idea of a rule of recognition as defined by Hart because they are within the system of rules (Dimock 2006, Classic Readings and Cases in the Philosophy of Law, p. 160). DImock (2006) opined that these principles “are not officially adopted so much as recognized as relevant based upon their widespread acceptance within the community or among officials of the legal system” (Dimock 2006, p. 162).<br/><br/><br />
Dworkin breaks down the decisions in hard cases further into principles and policies. Policies are social goals that a portion of the population is striving for; legislation is the power behind which social goals to aim for and how much benefit should be provided. On the other hand, principles are establish by justice and fairness, which supports specific rights; it is these principles that Judges’ use to make decisions in hard cases.<br/><br/><br />
By establishing a difference between principles and policies Dworkin is able to answer some of his critics. He states that people say because judges are not elected they should not have a say in legal rights, which he says are policy; they do however have a say on decisions based on principle. He also says that it is the duty of Judges to find rights that people have, not to make them up. This is his reaction to critics saying that his theory will affect laws retroactively by coming up with new ones making past actions wrong even though the person at the time had every right to act as they did. When deciding hard cases, Judges simply discover these new rights, which were always part of the system just not articulated properly.<br/><br/><br />
Balancing the principles and the rights already established by previous cases when deciding hard cases is where “law of integrity” comes into play. A judge’s role must be interpretive and must match the pattern of decisions before them. By reconciling where a community is attempting to be with the past decisions of courts the Judges, can attempt to make the best possible law and a central aspect of this theory.<br/><br/><br />
[[File:Grand Canyon North.jpg|thumbnail|left|An aerial view of the Little Colorado River Gorge near East Rim of Grand Canyon]]<br />
'''Dworkin and the stream analogy'''<br/><br/><br />
According to the Rights thesis put forward by Dworkin, the underlying principles of the law should run like an underground stream, being fed by the social and political policy as it develops over time. The hard cases that come up pull from this stream but also feeds these new rules back into the stream to influence future hard cases.<br/><br/><br />
'''''Egan v Canada'''''<br/><br/><br />
In the case of ''Egan v Canada'', it would appear that the policies regarding same sex marriage had not found their way down to the stream at the time of the case. The social environment within which the stream flowed was not receptive to gay rights.<br/><br/><br />
For the majority of the justices, the issue of "spouse" including same sex couples was an issue, that on the face of it, had not quite reached the stream. The social turmoil regarding this decision was not one that had been fully folded into the fabric law or society.<br />
However, Dworkin may find that this topic was one that the justices could easily have foreseen would have found its way into the stream in the near future. Therefore, it would appear that the dissent is more in line with the thesis proposed by Dworkin.<br/><br/><br />
Cory J found that the majority using the definition of "spouse" as a grounds for dispute rather than section 2 of the ''Old Age Security Act'' was "quite simply, not facially neutral", P.587. The integrity of the law must be in conformity with other social and political policies and underlying principles. The dissent appears to agree with this Dworkin sentiment.<br/><br/><br />
The dissent follows the Dworkin line of thought that it is the judiciary's duty to facilitate a historical flow between the past policy considerations and guide future courts.</div>Montyr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/System_Of_Rights&diff=5314Course:Law3020/2014WT1/Group P/System Of Rights2014-03-28T05:47:17Z<p>Montyr13: </p>
<hr />
<div>'''System of Rights'''<br/><br/><br />
Writer Richard Dworkin developed the system of rights theory. A main aspect of his work is spent criticizing the positivist theories of HLA Hart. He takes aim at positivist staples of a definitive central rule-system, their explanation of normative law, and their approach to adjudication. Dworkin believes that laws are not solely developed by a system of rules, but also by principles. These principles can be defined as being governed by both justice and fairness. Where Hart believes that judges fill in gaps of inconsistent or failed laws by using their discretion in hard cases, Dworkin believes these gaps are filled by these principles.<br/><br/><br />
Dworkin rejects the separation theory and positivism in its entirety, he counters with his theory of “Law as integrity”. Within this theory there are both principles and rules. There are a few ways in which principles differ from rules: first, a judges discretion is limited when there are both principles and rules in play; if there are no attached rules then binding principles will take legal authority. Second, there are no hard cases where a judge’s discretion is used, rather rights will decide the cases that lie outside of binding law based on obligations established by these principles. Finally, principles fall outside the idea of a rule of recognition as defined by Hart because they are within the system of rules. DImock opined that these principles “are not officially adopted so much as recognized as relevant based upon their widespread acceptance within the community or among officials of the legal system” (Dimock 2009, Classic Readings and Cases in the Philosophy of Law, p. 160).<br/><br/><br />
Dworkin breaks down the decisions in hard cases further into principles and policies. Policies are social goals that a portion of the population is striving for; legislation is the power behind which social goals to aim for and how much benefit should be provided. On the other hand, principles are establish by justice and fairness, which supports specific rights; it is these principles that Judges’ use to make decisions in hard cases.<br/><br/><br />
By establishing a difference between principles and policies Dworkin is able to answer some of his critics. He states that people say because judges are not elected they should not have a say in legal rights, which he says are policy; they do however have a say on decisions based on principle. He also says that it is the duty of Judges to find rights that people have, not to make them up. This is his reaction to critics saying that his theory will affect laws retroactively by coming up with new ones making past actions wrong even though the person at the time had every right to act as they did. When deciding hard cases, Judges simply discover these new rights, which were always part of the system just not articulated properly.<br/><br/><br />
Balancing the principles and the rights already established by previous cases when deciding hard cases is where “law of integrity” comes into play. A judge’s role must be interpretive and must match the pattern of decisions before them. By reconciling where a community is attempting to be with the past decisions of courts the Judges, can attempt to make the best possible law and a central aspect of this theory.<br/><br/><br />
[[File:Grand Canyon North.jpg|thumbnail|left|An aerial view of the Little Colorado River Gorge near East Rim of Grand Canyon]]<br />
'''Dworkin and the stream analogy'''<br/><br/><br />
According to the Rights thesis put forward by Dworkin, the underlying principles of the law should run like an underground stream, being fed by the social and political policy as it develops over time. The hard cases that come up pull from this stream but also feeds these new rules back into the stream to influence future hard cases.<br/><br/><br />
'''''Egan v Canada'''''<br/><br/><br />
In the case of ''Egan v Canada'', it would appear that the policies regarding same sex marriage had not found their way down to the stream at the time of the case. The social environment within which the stream flowed was not receptive to gay rights.<br/><br/><br />
For the majority of the justices, the issue of "spouse" including same sex couples was an issue, that on the face of it, had not quite reached the stream. The social turmoil regarding this decision was not one that had been fully folded into the fabric law or society.<br />
However, Dworkin may find that this topic was one that the justices could easily have foreseen would have found its way into the stream in the near future. Therefore, it would appear that the dissent is more in line with the thesis proposed by Dworkin.<br/><br/><br />
Cory J found that the majority using the definition of "spouse" as a grounds for dispute rather than section 2 of the ''Old Age Security Act'' was "quite simply, not facially neutral", P.587. The integrity of the law must be in conformity with other social and political policies and underlying principles. The dissent appears to agree with this Dworkin sentiment.<br/><br/><br />
The dissent follows the Dworkin line of thought that it is the judiciary's duty to facilitate a historical flow between the past policy considerations and guide future courts.</div>Montyr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_P/System_Of_Rights&diff=5313Course:Law3020/2014WT1/Group P/System Of Rights2014-03-28T05:47:00Z<p>Montyr13: </p>
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<div>'''System of Rights'''<br/><br/><br />
Writer Richard Dworkin developed the system of rights theory. A main aspect of his work is spent criticizing the positivist theories of HLA Hart. He takes aim at positivist staples of a definitive central rule-system, their explanation of normative law, and their approach to adjudication. Dworkin believes that laws are not solely developed by a system of rules, but also by principles. These principles can be defined as being governed by both justice and fairness. Where Hart believes that judges fill in gaps of inconsistent or failed laws by using their discretion in hard cases, Dworkin believes these gaps are filled by these principles.<br/><br/><br />
Dworkin rejects the separation theory and positivism in its entirety, he counters with his theory of “Law as integrity”. Within this theory there are both principles and rules. There are a few ways in which principles differ from rules: first, a judges discretion is limited when there are both principles and rules in play; if there are no attached rules then binding principles will take legal authority. Second, there are no hard cases where a judge’s discretion is used, rather rights will decide the cases that lie outside of binding law based on obligations established by these principles. Finally, principles fall outside the idea of a rule of recognition as defined by Hart because they are within the system of rules. DImock opined that these principles “are not officially adopted so much as recognized as relevant based upon their widespread acceptance within the community or among officials of the legal system” (Dimock 2009,Classic Readings and Cases in the Philosophy of Law, p. 160).<br/><br/><br />
Dworkin breaks down the decisions in hard cases further into principles and policies. Policies are social goals that a portion of the population is striving for; legislation is the power behind which social goals to aim for and how much benefit should be provided. On the other hand, principles are establish by justice and fairness, which supports specific rights; it is these principles that Judges’ use to make decisions in hard cases.<br/><br/><br />
By establishing a difference between principles and policies Dworkin is able to answer some of his critics. He states that people say because judges are not elected they should not have a say in legal rights, which he says are policy; they do however have a say on decisions based on principle. He also says that it is the duty of Judges to find rights that people have, not to make them up. This is his reaction to critics saying that his theory will affect laws retroactively by coming up with new ones making past actions wrong even though the person at the time had every right to act as they did. When deciding hard cases, Judges simply discover these new rights, which were always part of the system just not articulated properly.<br/><br/><br />
Balancing the principles and the rights already established by previous cases when deciding hard cases is where “law of integrity” comes into play. A judge’s role must be interpretive and must match the pattern of decisions before them. By reconciling where a community is attempting to be with the past decisions of courts the Judges, can attempt to make the best possible law and a central aspect of this theory.<br/><br/><br />
[[File:Grand Canyon North.jpg|thumbnail|left|An aerial view of the Little Colorado River Gorge near East Rim of Grand Canyon]]<br />
'''Dworkin and the stream analogy'''<br/><br/><br />
According to the Rights thesis put forward by Dworkin, the underlying principles of the law should run like an underground stream, being fed by the social and political policy as it develops over time. The hard cases that come up pull from this stream but also feeds these new rules back into the stream to influence future hard cases.<br/><br/><br />
'''''Egan v Canada'''''<br/><br/><br />
In the case of ''Egan v Canada'', it would appear that the policies regarding same sex marriage had not found their way down to the stream at the time of the case. The social environment within which the stream flowed was not receptive to gay rights.<br/><br/><br />
For the majority of the justices, the issue of "spouse" including same sex couples was an issue, that on the face of it, had not quite reached the stream. The social turmoil regarding this decision was not one that had been fully folded into the fabric law or society.<br />
However, Dworkin may find that this topic was one that the justices could easily have foreseen would have found its way into the stream in the near future. Therefore, it would appear that the dissent is more in line with the thesis proposed by Dworkin.<br/><br/><br />
Cory J found that the majority using the definition of "spouse" as a grounds for dispute rather than section 2 of the ''Old Age Security Act'' was "quite simply, not facially neutral", P.587. The integrity of the law must be in conformity with other social and political policies and underlying principles. The dissent appears to agree with this Dworkin sentiment.<br/><br/><br />
The dissent follows the Dworkin line of thought that it is the judiciary's duty to facilitate a historical flow between the past policy considerations and guide future courts.</div>Montyr13