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

Law as a System of Rights

Ronald Dworkin's theory of "law as a system of rights" centers around the idea that law is created and governed based on principles. Dworkin argues that underlying principles, such as justice or fairness produce the legal rules that exist within a legal system. His theory contradicts the positivist perspective as put forward by theorists such as John Austin and HLH Hart.

Dworkin's Rejection of Positivism

Dworkin holds that positivism is a model of and for a system of rules. He states that this is a type of system which, "forces us to miss the important roles of these standards that are not rules". A central tenet of positivism that Dworkin specifically rejects is the idea that "the law" is a set of exhaustive rules, and that an official such as a judge must go outside the law to decide a case not specifically covered in the "system of rules". Dworkin discusses the differences between positivist theorists Austin and Hart, noting that Harts version of positivism is more complex and explores the different ways in which rules become binding on society. Although he thinks Hart's view of positivism is more complex, ultimately he holds that both views are essentially similar as both lead to the conclusion that hard cases are resolved by judges exercising discretions.

The Distinction between Rules, Principles and Policies

Dworkin argues that in general, principles are standards other than rules, that must be observed in order to uphold virtues of morality such as justice and fairness. He states that an important distinction between principles and rules is that rules are often applied in an "all or nothing fashion", meaning that a rule is either valid and thus part of the law, or invalid and thus not accepted as being law. Dworkin argues that this is not true in respect to principles.

Dworkin believes principles to hold more weight or importance than rules, and this importance is what is weighed by legislators in determining policy outcomes or by judges deciding hard cases.

Principles can be understood as differing from both rule and policies by using the analogy of an underground stream. The principles in a legal system are the underground stream always present and underlying the above ground rules and policies. Sometimes the principles come in contract with these policies.

Application to B.M v British Columbia (Attorney General)

One way to fully understand how theoretical perspectives shape the laws which are made and interpreted by decision makers such as judges and legislators is to apply the theory to the case law.