Course:Law3020/2014WT1/Group J/System Of Rights
Ronald Dworkin and Positivists Conversation
Ronald Dworkin’s theory is a direct response to positivism; he lays out what he believes the positivists are doing and explains where and why he departs from their theory. Dworkin outright rejects the legal positivists’ notions that law is a command issued by the sovereign (Austin) and that law is a rule supported by the rule of recognition (Hart). Dworkin advances that law is comprised of rules, principles, and policies and that principles are not only part of the law, but are the most enduring and important component of it. Further, while Hart proposes that judges decide hard cases by drawing on terms of the rule-governed practice, Dworkin advances the idea that hard cases which are not entirely covered by a legal rule can be decided by employing principles. Finally, the positivists advance that in each legal system there is a test for binding law, such as Hart’s rule of recognition or Austin’s pedigree test, which would suggest that principles are not binding because they are not empirically provable. Dworkin proposes that despite principles’ incompatibility with the abovementioned theories, principles form part of the law and are thus binding. The significance that Dworkin places on the role of principles in the law undermines the positivists positions.
Law as a System of Rights
Principles
According to Dworkin, law is comprised of principles, rules, and policies. Principles are both an enduring and important aspect of the law and are legally binding because they are part of it. The significance of principles is best illuminated in hard cases; principles that are employed in hard cases establish new rules which did not exist before. In addition, principles possess varying degrees of weight in different situations. Thus, there is always a right answer to every case and there is a right way to apply principles.
Principles, Rules, and Policy
Dworkin advances that judges should use rules and principles to reach a decision. Rules and principles differ significantly. Rules apply to factual requirements in an all or nothing fashion and they are either valid or invalid. On the other hand, principles are not empirically provable, have varying degrees of importance, and they develop and change over time. In addition, for every legal question there is always a right answer, which can be realized by utilizing principles when rules fail to settle a case.
While there is a relationship between principles and policies, they are distinct in important ways. Policies are social goals that are pursued on behalf of a portion of the population. Moreover, Dworkin strongly discourages judges from examining which policy objectives have priority when deciding cases because this role is best suited to legislators who are elected by the people. However, judges may refer to policy to interpret law in a manner that is consistent with policy priorities identified by the legislators. Barring judges from making decisions based on policy ensures that the judiciary does not partake in the law making business. Further, Dworkin’s aforementioned concept is in line with the doctrine of parliamentary supremacy.
Law as Integrity
Dworkin compares literature and law and proposes that judicial reasoning is akin to an unfolding narrative. There are two dimensions to this notion: the first is fit and the second is interpretation that makes the work in progress the best that it can be. To accomplish this, judges must consider the past and future when tackling issues in the present. Judges are tasked with ensuring the “narrative” is the best possible story and this exercise is not one of total creative freedom nor one of total mechanical constraint.
Role of Judges
Judges are the most important players in Dworkin’s theory because law lives through adjudication and judges implement legal reasoning by drawing on principles, which they are obliged to follow based on their relevance. As mentioned, principles possess different weights and judges balance principles against one another to reach an outcome in hard cases. Further, principles are based on fundamental ideas of justice and fairness that support rights and duties; therefore, when judges consider principles in hard cases, they are discovering rights and duties and are not creating them. In addition, while judges can reference policy in deciding cases, they should not employ policy to reach decisions as this role is best suited for the legislators. Finally, judges must ensure that their decisions are consistent with and enhance the ongoing legal narrative.
Analysis
Several elements of Dworkin’s theory apply to PHS, a case which concerns a constitutional exemption from the CDSA based on the principles of fundamental justice.
PHS demonstrates the role of principles in a hard case; they can establish new rules where necessary. The CDSA directly engages liberty, life and security interests. Under s.4, in being caught with possession of drugs, an accused potentially faces imprisonment. Application of this rule would include the supervising health care providers, engaging their rights to liberty by performing their duties as staff. For the users of the facility, it engages their rights to life and security by depriving them of the potentially life-saving services that Insite provides. While the CDSA was found to be valid federal law, this application potentially deprives these parties of their s.7 Charter rights. Thus, the rule would effectively halt Insite’s ability to provide services, entice users or meet it’s stated objectives, demonstrating Dworkin’s theory that rules alone may not be able to provide an answer.
Another application of Dworkin’s theory looks at the CDSA under s.56, in which the Minister is given discretionary power to allow exemptions. As a fundamental principle of justice, these decisions must be in accordance with the Charter. Rendering Insite inoperable for the sake of a uniform application of government legislation, the courts argued, would be “grossly disproportionate”.(para.133) The success of Insite (in saving lives, having a positive impact on public safety) cannot be overlooked. The court discusses how failing to consider the impact of the Act would deprive Insite users of life and security that would ultimately violate the fundamental principles of justice.(para.127)

The court’s decision to order the exemption shows that greater weight was given to principles of fairness and justice under the Charter than to the valid legal rule of the CDSA. Dworkin would support the finding of the court, in that it is a reflection of a principle-based approach that seeks to secure the s.7 Charter rights rather than appeal to a collective goal of society as a whole through application of the CDSA.
In PHS, the judges have to respond to the challenging legal issue of balancing public safety with public health concerns that engage the Charter. Dworkin describes the role of adjudication as that of drawing on principles to guide the court’s decision. This is significant, as we see in PHS, because the judges face the new problems that having a safe injection facility creates. The important role of judges is demonstrated by determining that protection of individuals who use illegal drugs does not already exist in rule form but is a principle at the core of society. Dworkin’s argument that justness and fairness are the foundations of our legal system is clearly demonstrated in this judgement.
PHS is a case that calls upon the judges to engage in the “narrative” that is unfolding. In closing their judgment, the court writes that the Minister must consider the implications of the decision to grant future applications for exemptions, whether it be for Insite or other facilities. This case demonstrates Dworkin’s theory that principles do carry weight and are an important judicial tool and a binding element of the law. Finally, this case demonstrates that principles must be used where legal rules fail to determine a case.
| Theory | Philosopher |
|---|---|
| Natural Law | Thomas Aquinas |
| Positivism | John Austin |
| Separation Thesis | Example |
| System of Rights | Ronald Dworkin |
| Liberty & Paternalism | Example |
| Law As Efficiency | Adam Smith |
| Feminist Jurisprudence | Example |