Difference between revisions of "Course:Law3020/2014WT1/Group I/System Of Rights"
Griffinr13 (talk | contribs) |
Griffinr13 (talk | contribs) |
||
| Line 6: | Line 6: | ||
====Law as a System of Rights==== | ====Law as a System of Rights==== | ||
| − | Ronald Dworkin rejects the model of law as a system of rules. According to Dworkin, law is not merely a system of rules but also of principles, primarily of justice and fairness. Since these principles are a part of the law, Dworkin denies that there are gaps in the law and Hart's suggestion that judges should have to use discretion when deciding hard cases. Dworkin further rejects the | + | Ronald Dworkin rejects the model of law as a system of rules. According to Dworkin, law is not merely a system of rules but also of principles, primarily of ''justice'' and ''fairness''. Since these principles are a part of the law, Dworkin denies that there are gaps in the law and rejects Hart's suggestion that judges should have to use discretion when deciding hard cases. Dworkin further rejects the positivist's claim that neither parties have a legal right to win, since principles always create a right answer to every legal question. Dworkin develops a theory of adjudication in which principles have their right place. He calls this theory "law as integrity". |
| + | |||
| + | ====Rejection of Positivism==== | ||
| + | |||
| + | Dworkin distills the positivists position to three central theses: | ||
| + | |||
| + | # 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 products of legal rules. If no legal rule applies to a case, prior to being decided at the judges discretion neither parties have a legal right to win or a legal obligation. | ||
| + | |||
| + | Dworkin rejects all three of these propositions, resting his case upon the claim that law contains not only rules, but ''principles''. The widespread importance placed on principles as part of the law undermines all three of the positivist's commitments. | ||
| + | |||
| + | If law contains principles as well as rules, judges do not have strong discretion, since any case not covered by existing law can turn to relevant and legally binding principles run throughout the legal system. Dworkin refers to hard cases as being those which are not established by existing law Thus, it is also true that there will always be an existing right to win since it can always be predicted with relative precision as to the outcome. | ||
| + | |||
| + | ====Conceptualization==== | ||
| + | |||
| + | It may be difficult to conceptualize Dworkin's theory as it would be applied to modern law. Where do these principles come from? How do they affect future cases? | ||
| + | |||
| + | Consider these principles to be a stream which flows underground through the course of time. This stream moves underneath all established law, always present yet not always obvious. In a hard case, where the issues cannot be resolved using existing rules, a judge will reach down and draw up the principle to determine how the case will be decided. He then goes back down to inform that stream of principle, and the stream continues on until the next hard case. | ||
==Application of the E. (Mrs.) v. Eve== | ==Application of the E. (Mrs.) v. Eve== | ||
Revision as of 21:16, 4 March 2014
Background & Theory
Ronald Dworkin has been the most prolific and influential writer since H.L.A. Hart on issues in the philosophy of law. He is currently the dominant figure in jurisprudence in Canada, and is a strong critic of legal positivist theory.
Law as a System of Rights
Ronald Dworkin rejects the model of law as a system of rules. According to Dworkin, law is not merely a system of rules but also of principles, primarily of justice and fairness. Since these principles are a part of the law, Dworkin denies that there are gaps in the law and rejects Hart's suggestion that judges should have to use discretion when deciding hard cases. Dworkin further rejects the positivist's claim that neither parties have a legal right to win, since principles always create a right answer to every legal question. Dworkin develops a theory of adjudication in which principles have their right place. He calls this theory "law as integrity".
Rejection of Positivism
Dworkin distills the positivists position to three central theses:
- 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 products of legal rules. If no legal rule applies to a case, prior to being decided at the judges discretion neither parties have a legal right to win or a legal obligation.
Dworkin rejects all three of these propositions, resting his case upon the claim that law contains not only rules, but principles. The widespread importance placed on principles as part of the law undermines all three of the positivist's commitments.
If law contains principles as well as rules, judges do not have strong discretion, since any case not covered by existing law can turn to relevant and legally binding principles run throughout the legal system. Dworkin refers to hard cases as being those which are not established by existing law Thus, it is also true that there will always be an existing right to win since it can always be predicted with relative precision as to the outcome.
Conceptualization
It may be difficult to conceptualize Dworkin's theory as it would be applied to modern law. Where do these principles come from? How do they affect future cases?
Consider these principles to be a stream which flows underground through the course of time. This stream moves underneath all established law, always present yet not always obvious. In a hard case, where the issues cannot be resolved using existing rules, a judge will reach down and draw up the principle to determine how the case will be decided. He then goes back down to inform that stream of principle, and the stream continues on until the next hard case.