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

Dworkin and System of Rights

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 feed future hard cases.

Egan v Canada

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.

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.

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.

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.

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.