Category:System of Rights
Law, Principles, and Rights
Currently one of the most dominant figures in jurisprudence and a great influential legal philosopher, Ronald Dworkin has contested almost every aspect of legal positivist theory rejecting much of H.L.A. Hart’s work in the area. Dworkin begins his criticism of legal positivism by outlining three foundation propositions that he contests. The first proposition Dworkin disagrees with concerns the positivist belief that law can be understood as a system of rules. Dworkin disagrees that positivism can explain the normativity of law.The third proposition that he contests is that which Hart believes judges exercise discretion when there is no legal rule to apply. For Dworkin the law contains more than rules, hence his theory of the role of principles in the law. The role of principles in law undermines what Dworkin believes to be the positivist position. Although positivists don’t completely deny the existence of principles, they dismiss their importance in relation to the hard cases in which they feel judges should exercise their discretion.
When case law is not applicable to the case at hand, H.L.A. Hart believes that this is where judges encounter hard cases where they step in to fill in the gaps by creating new laws to apply to the case. For Hart, judicial interpretation at this stage is guided by morality. Dworkin rejects this view, instead believing that principles have a quality of weight and importance when there is no rule to address the gap in the law. When these hard cases come to light, principles are extremely important in aiding to create the new rules. The process that the judges encounter when considering and weighing principles through their legal reasoning are what produce new rules according to Dworkin. Principles help regulate judges discretion when deciding these cases that do not currently have any rules that are applicable. For Dworkin, these principles that judges rely on in rulings are law, hence they are binding on the judiciary.
One of Dworkin's theories is described as a chain novel. The author(s) begins to create the novel one chapter at a time. As it progresses the novel must stay consistent with the previous chapters within it. Each new chapter of the story can be developed further, but must not deviate from the main principles of the story. Dworkin uses this analogy to describe the how judges are constricted in developing the law. Judges must always reference back to the cases that have been previously developed and use the principles that guided them to make judgments in new cases as they emerge. Judges must continue to elaborate on the laws, adding to them, but are constricted by the laws that have been set out before them.
Application to the Case
In Chaoulli v. Quebec, in order to determine if section 11 of the Health Insurance Act and section 11 of the Hospital Insurance Act had the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through these specific prohibitions infringed Zeliotis and Chaoulli's section 7 right from the Canadian Charter of Rights and Freedoms the judges addressed the impact on ???.
This clear violation was then analysed to determine if this deprivation of Zeliotis and Chaoulli's section 7 Charter right was in accordance with the principles of fundamental justice. Dworkin would support that the Charter has to be successful at using the values of fundamental justice to resolve conflicts between the laws, hence, for Dworkin the Charter would have been created with principles in order to produce what we now apply as the law. If the Charter is unable to carry the principles of justice, it would fail in Dworkin's eyes. If the judges were not satisfied that the section 1 application was not adequate at addressing the issue at hand, judges would have to guide their decision by principles in order to create a rule in which they felt was applicable to the issue.
In order to guide their decision they must look to previous cases in order to determine the action that should be applied to the case at hand. In the case of Chaouilli v. Quebec, Dworkin would agree with the way the Courts handled the case. They apply the various cases that had been decided before them in order to determine the test that should be applied in order to determine if the violation of Zeliotis and Chaouilli's section 7 Charter right should be saved under section 1 of the Charter. This case is a clear example of Dworkin's description of jurisprudence as a chain novel. The Courts used previous "chapters" to help continue to develop the law and to appropriately determine the decision of the case.
- Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 235.
- Ibid. at 235.
- Ibid. at 235
Pages in category "System of Rights"
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