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

Ronald Dworkin: System of Rights

Ronald Dworkin

Introduction

Ronald Dworkin’s conception of law involves an expansion of law from merely a system of rules, into a skeleton of principles, policies and rules. Dworkin’s criticism of Positivism involves the idea that the law is governed by principles of justice and fairness that underlie it. As a result, Hart’s theory that Judges have the authority to exercise discretion in deciding upon the results of hard cases is incorrect. The principles of justice and fairness inform their legal reasoning, and therefore, there are no actual gaps in the law.

Principles vs. Policies

Principles

Principles are basic, fundamental ideas of justice and fairness that are part of the law itself. When considering hard cases, judges must take into account the principles of rights and duties to resolve problems.

Policies

Policies are the social goals that exist to benefit a segment of the community. These policies are identified by legislators, who prioritize these goals. Policies and principles are separate from one another, but nonetheless inform one another to produce consistency and integrity in the law.

Applying Principles and Policies

With regard to the case of E.B. v. Order of the Oblates, Dworkin’s conception of policy would be the ability of vicarious liability to allow a person to be compensated properly if they have suffered harm. This would best be done by legislation but since there isn’t any in BC, it is left to McLachlin C.J. to use discretion and find the correct decision.

The principle in this case is vicarious liability and its ability to serve society by compensating those who have suffered and deterring future harms. The job of the judge is to keep those goals in and when applying the principle in order to arrive at the proper, correct decision.

The rules that Dworkin would see in this analysis is the test laid out in Bazley and applying this to the principle embodied in the vicarious liability tort. This is in the interest of avoiding an unfair outcome, which is a priority.

The Majority Decision

In the majority decision, the Court pulled forth the principle of fairness and proximity to harm in their finding that vicarious liability could not be established. These principles were related to the idea of compensation and deterrence of future wrongs. The past decision in Bazley was pulled up and used to refine these principles before returning them to the greater whole of the dynamic stream of principles. The Court modified the principles by placing a limit on who can be found vicariously liable so as to prevent a flood of litigation entering the courts.

Dissenting Opinion

The dissent on the other hand, found no reason to modify the Bazley test as it was and placed more weight on the principles of compensation and fairness with regard to the innocent victim. The Bazley test was used to find vicarious liability through the responsibility that the residential school had towards their employees and the power structure that was created in this environment.

Conclusion

Dworkin states that there is always a right answer when the principles are applied correctly. Both the majority and the dissent believed that they were applying the correct principles in the interest of fairness and justice. However, according to Dworkin, only one of them arrived at the right answer. In this case, the discretion of the majority was incorporated into Dworkin’s metaphorical chain novel of the law, which seeks to tell the best story possible about the law and the values of the community.