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

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Law as a System of Rights

Ronald Dworkin

Ronald Dworkin was an American legal philosopher who was a professor at New York University, University College London, Yale, and Oxford University. Being the second most cited legal author in the twentieth century, Dworkin's legacy is his theory of law as consisting of both rules and principles, and his rights thesis.

Ronald Dworkin

Rejection of Positivist Tenets

As a basis for his system of law as rights, Dworkin rejects the three following (positivist) propositions:

  • Law is a set of rules identified as such with reference to a master rule
  • Where no legal rule applies, judges exercise discretion
  • Legal rights and obligations are the product of legal rules, with no a priori or independent existence apart from those rules

Dworkin's assertion is that law contains principles in addition to rules, and that these principles subvert the positivist approach.

Legal Rules & Principles

According to Dworkin, legal rules have an a priori existence based in principles of justice, fairness, and morality. Contrary to the positivist ideal of a universal rule which is the ultimate determinant of binding law, Dworkin contends that legal rules are embedded in more extensive legal principles. He distinguishes rules from principles by asserting that rules are ever-changing, whereas principles stagnantly provide a foundation of these rules and the legal system as a whole. In a case where there is no applicable rule, there will still be applicable principles which are legally binding due to their foundational nature.

Dworkin's Rights Thesis

The fundamental point of Dworkin's right thesis is that judicial decisions enforce existing political rights. Political decisions are justified by using principles to demonstrate that the decision protects an individual or group right. Dworkin believes judges are guided by argument of principle and that this should be the basis for judicial decisions. Judges do not have the discretion to disregard principles, but rather have discretion guided by the rules and principles. Judicial decisions can result in new rules, however policy decisions should not be made by judges. Dworkin believes these decisions should be made by legislation. In the legislative procedure, there must be political responsibility in drafting rules (protecting individual/group rights), meaning new rules cannot be created arbitrarily.

Application to K.L.B. v. B.C.

Bazley v. Curry

Bazley v. Curry is a Supreme Court of Canada decision in which policy and principle came together and was applied to a factual situation that is analogous to K.L.B. v. B.C.. The following are principles which stemmed from this decision and are very applicable to K.L.B.:

  1. They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”. 
  2. The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.  Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.  Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence.  Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. 
  3. In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered.  These may vary with the nature of the case.  When related to intentional torts, the relevant factors may include, but are not limited to, the following:
(a) The opportunity that the enterprise afforded the employee to abuse his or her power;
(b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); 
(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) The extent of power conferred on the employee in relation to the victim
(e) The vulnerability of potential victims to wrongful exercise of the employee’s power. [1]

K.L.B. v. B.C.

In K.L.B. v. B.C., the majority decision given by McLachlin CJ is quite similar to how Ronald Dworkin would probably have decided this case.

From the K.L.B. v. B.C. page:
"In the majority’s judgment written by McLachlin CJ, it was ruled that there is a duty of care owed, and that the government was directly negligent, however they found that there was no vicarious liability via the foster parents, no breach of non-delegable duty, and there was no breach of fiduciary duty. Although the court ruled that the government was directly negligent, it was held that the claim could not succeed as a result of being statute barred by the Limitation Act."

Dworkin would point out that rules (in this case vicarious liability rules) are not set in stone, and that they change over time. He would say that these rules are always being informed by the underlying principle, and that the principles will be changing as well, reflecting individual and group rights. Therefore, Dworkin's ruling of this case would probably be guided by the relevant underlying principles which have been identified by McLachlin CJ in Bazley v. Curry (seen above). Based on these principles, Dworkin would then articulate the rights of the groups and/or individuals in the case.

Dworkin would likely ask the same question that McLachlin CJ asks in Bazley at paragraph 57:
"The appropriate inquiry in a case such as this is whether the employee’s wrongful act was so closely connected to the employment relationship that the imposition of vicarious liability is justified in policy and principle. From the point of view of principle, a prime indicator is whether the employer, by carrying on its operations, created or materially enhanced the risk of the wrong that occurred, such that the policy considerations of fair recovery and deterrence are engaged. In answering this question, the court must have regard to how the employer’s enterprise increased opportunity to commit the wrong, and how it fostered power-dependency relationships that materially enhanced the risk of the harm."[2]

In answering this question Dworkin would likely find that with respect to the vicarious liability issue, the rule does not align with the underlying principle. He would therefore likely agree with McLachlin and rule that there is no vicarious liability in the present case, however the direct negligence of the government cannot be denied.