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

Theory: Dworkin on Positivism - Dworkin’s theory is a direct counterpoint to positivism. - Rather than Hart’s argument that law is a system built solely on rules, Dworkin argues that it contains more such as principles and policies. - If a case is not covered by a rule it is still covered by legally binding principles. - Focuses on adjudication rather than legislation. Ie. So may be a rule in place through legislation but may not be in line with societies changing principles and need to be reexamined and changed via judge’s decision. - It is up to the judges to weigh societies interests in determining what is important when making a decision of whether to follow the rule or principle. Rule vs. Principle/Policy - Rule: A rule is applicable in an all or nothing fashion. It is either valid or invalid. o Example: “3 strikes and you’re out” in baseball. o Also of note, exceptions to rules need to actually be included within the rules. o When rules intersect one must be held invalid, cannot have both and just say one is more important that the other. - Principle: Considerations based on justice and fairness, the support specific rights and duties. o Since it is based on justice and fairness there is an element of morality. o Principles developed by professions and public over time. - Policy: Social goals pursued for the benefit of some segment of the population. o Decisions about which goals to pursue and which benefits to provide should be left to legislators. o Generally Dworkin includes the term policy within the term principle. - When rules and principles intersect judges consider both. Rules and principles can coincide with one another if they play the same role. However, if they are at odds with one another it is up to the judges to weight the rule against the principle. Rules often need to change with the changing of societies principles. Discretion - Judges have discretion when deciding case to an extent. However they are within the confines of the principles. - Judges can change existing rule of law when principles change over time and new principles have been given more weight. - When judges use this discretion to make decisions it is of utmost importance for the judge to take the communities/societies interests into consideration rather than their own subjective attitudes. Only when doing this are they ruling with integrity. - Law as integrity: one common voice, law comes from communal rights and duties. It is important for judges to acknowledge and rule with this in mind. - Finally, important to note when judges use discretion when making decisions they are not creating new law but rather changing it by finding the underlying rights and duties. Application to Khawaja - The impugned provision 83.01(1)(b)(i)(A) of the Criminal Code. - This is clearly a rule and in Khawaja the challenge was under a claim of freedom of expression. This provision would potentially infringe on freedom of expression. - There are essentially no principles that would support this argument based on the accused’s actions. - This is a case where the rule in question goes along with societies underlying principles against terrorism and harming the innocent. o The principle and rule are aimed toward the same end and not in conflict - What is actually at odds with each other is a principle (freedom of expression/speech) and the underlying societal principle against terrorism. Which is weighted more? - It a new case, and a hard case because there was very limited precedent but it was not completely “hard” because it was clear what societies principles were regarding terrorism. o Judges would appeal to principles, this is their obligation. o In this case because the rule and principles coincided it was not extremely onerous for the judges to weight both and reach a conclusion. - The court actually listeing to Khawaja’s argument was an example of the fairness of fundamental justice. They weighted Khawaja’s principles vs. the principles of society when reaching their conclusion and gave proper discretion to Khawaja’s argument. - By taking every argument into consideration and looking at society’s underlying principle (that against terrorism and harming another person) the judges were ruling with integrity, this would uphold Dworkin’s theory of “law as integrity.”