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

Law as a System of Rights

Rejection of Judicial Discretion

Ronald Dworkin distils the positivist framework into three general tenets: law is a set of rules, judges exercise discretion in hard cases and that legal rules lack an a priori existence. Dworkin rejects all three of these tenets, contending alternatively that law contains not only rules, but also legally binding principles which comprise law in combination with rules. Dworkin evidences this contention by pointing to the adjudicative process, a process requiring appeal to principles such as fairness and justice to guide and underwrite the rules of our legal system. Responding to the positivism’s emphasis of strong judicial discretion, Dworkin argues that where a case is not governed by a legislated rule judges must appeal to a pre-exsisting legal principle rather than simply exercising discretion. The principles embedded within the law are, according to Dworkin, the source of our legal rights. Consequently, a judge deciding a case on principle is ‘simply articulating the rights and duties that the disputant already had.’ Dworkin approaches legal rules as having an a priori existence rooted in society’s articulated principles of justice, fairness and morality. These legal rules are binding because of the principles that inform them and resultantly the court is not free to disregard these principles. The rooting of legal rules in broader legal principles is distinguished from the positivist conception of a master rule that is the ultimate test for binding law. Dworkin contends that the principles which guide legal decision making cannot be distilled into a set of rules because they are ‘controversial, their weight is all important, they are numberless, and they shift and change so fast a list would be obsolete before reaching the middle.’ Principles are not assigned weights like a master rule, but rather underlie the entirety of the legal system and its rules.

Dworkin’s Rights Thesis

Fundamental to Dworkin’s approach is his ‘rights thesis.’ This thesis posits that individual rights are derived from existing political rights based on history and morality and derived from legislation and judicial decision. While principle compels legislation to a degree, legislative lawmaking is more commonly policy driven than judicial lawmaking is. Policy arguments justify political decisions, demonstrating how these decisions advance particular community goals and group rights.

Conversely, judicial lawmaking making is informed primarily by principle. Dworkin argues that political rights need to be incorporated with principle so that judges will approach cases where such rights are at issue with integrity and not simply on the basis of history or policy. Integrity is crucial to Dworkin’s rights thesis. For Dworkin, integrity in the law means that a judicial decision must be brought within ‘some comprehensive theory of principles and policies’ so as to contextually justify it with other right decisions. Dworkin’s premise of integrity as law means that law is interpretive and looks to the past and the future when conceiving current community values that are consistent with past community values.

Application to A.C. v Manitoba

Deciding A.C. v. Manitoba through a Dworkinian lens would compel a decision consistent with the principles that underlie our legal system and guide the rights of the involved parties. Given Dworkin’s conception of law as encompassing both rules and principles, adjudication of this case would require a judge to consider the motivating principles underlying the Manitoba Child and Family Services Act, The Charter of Rights and Freedoms and the past case law and academic commentary on the subject.

While a strict legal positivist would likely give primacy to the Charter as part of a constitutional ‘master rule,’ Dworkin does not believe a concise master rule can be articulated in a principle-driven legal system. Rather, Dworkin would consider the purpose of the Charter as a document protecting the rights and freedoms of the individual against unwarranted state interference. Additionally, he would look at the principles guiding the Child and Family Services Act, such as protecting vulnerable children from harm. He would also contemplate the policy factors driving the legislation, including medical evidence on children’s physical and psychological needs. Having considered the guiding principles of our legal system and the relevant statutes, Dworkin would then seek to articulate the rights of the involved parties on the basis of those principles. However, this decision would have to be consistent with the larger principles espoused by our communities and articulated by our justice system.

Were Dworkin adjudicating this case, I believe he would take a similar approach to that taken by Justice Abella. Justice Abella finds that the impugned provisions of the Child and Family Services Act are not in violation of the constitution. However, she argues that this is only the case if the provisions respect an adolescent’s autonomy and judgement where they are of sufficient maturity, rather than giving the state discretion over the decisions of all youth under the age of sixteen who are in potentially harmful situations. This decision is congruous with Dworkin’s contention that judges must uphold a claimant’s pre-existing rights and duties with regard to principle.

This is exactly what Justice Abella does, appealing to past case law and psychological research that affirms the principles of adolescent growth and autonomy held by our society. Justice Abella goes on to articulate these principles in the form of elements that demonstrate an adolescent’s ability to make important life decisions such as emotional and intellectual development, upbringing, religious and social affiliations and ability to exercise mature judgement. This articulation is consistent with Dworkin’s approach in that it is informed by principle and integrates political rights of autonomy, liberty and religious freedom with principled decision making. Upon articulating the guiding principles that underlie the adolescent right to a certain degree of autonomy, Dworkin would uphold the Family Services Act as did Justice Abella, not because it satisfies the constitution as a master rule in the positivist sense, but because it is guided by the principle of the ‘child’s best interests’ as espoused by the community through the constitution and the act itself.