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

Dworkin System of Rights

Principles and Rules

In a rejection of HLA Hart’s legal positivism Ronald Dworkin, the mastermind behind this theory, posits that the law contains not only rules but also underlying principles. These principles guide the ever changing and amorphous body of law that governs the lives of individuals. “Hard” cases are those for which clear rules do not exist prior to the decision reached by the judge. The mundane rules of law are not subservient to these principles but in “hard” cases, the correct principles are sought to give direction to the judicial decision making process. These principles are binding and judges are to follow them where appropriate and applicable.

Ronald Dworkin

These principles are not static as they are shaped themselves by the moral and political culture of the moment. When they are applied in particular circumstances they are reaffirmed as binding and are reinvigorated. Conversely, if they are not found to be of use any longer they will fade from relevance. A relevant example would be the inception of negligence law in torts. The case of Donoghue v Stevenson is a perfect example where the law obviously lacked a rule to deal with a situation in which an innocent victim had suffered as a result of wrongdoing. Privity of contract precluded Ms. Donoghue from recovering for the ill effects suffered resulting from that infamous snail. Lord Atkin reached outward to the general principle in society that innocents should not be made to suffer and created an entire body of rules as a result.

Principles and Policy

A dichotomy exists in this theorem in principles and policy. Policy is concerned with social goals that are in the best interest of certain sections of the population. Policy is the responsibility of elected officials and judges apply the law in a manner that is consistent with the wishes of those legislators. Rizzo & Rizzo Shoes is a perfect example of the respect which adjudicators must maintain for the will of the legislator. In that case the Supreme Court of Canada outlined a holistic or “totality of the circumstances” approach to statutory interpretation which is focused on delineating the true intent of Parliament. The principles of law, according to Dworkin, are “discovered” fundamental tenants of justice and fairness that simply exist. Judges appeal to them and are able to decide in situations where hard cases fall outside of the existing collection of rules.

Application to Case

The case of Alberta v Elder Advocates of Alberta Society saw five main claims made by the plaintiffs.

1. There was a breach of a fiduciary duty;
2. there was a breach of a duty of care;
3. the government acted in bad faith;
4. there was a violation of the Long Term Care Facility (LTCF) patients' section 15 rights; and
5. the Government of Alberta was unjustly enriched.

Links to further treatments of the case:

Legal Perspectives		Philosophers
	Natural Law	Thomas Aquinas
	Legal Positivism	John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
	Separation Theory	HLA Hart and Ron Fuller
	System of Rights	Ronald Dworkin
	Liberty and Paternalism	John Stuart Mill and Gerald Dworkin
	Law and Economics	Susan Dimock
	Feminist Jurisprudence	Patricia Smith and Catharine Mackinnon