Course:Law3020/2014WT1/Group R/System Of Rights
Law as a System of Rights
Ronald Dworkin's theory of "law as a system of rights" centers around the idea that law is created and governed based on principles. Dworkin argues that underlying principles, such as justice or fairness produce the legal rules that exist within a legal system. His theory contradicts the positivist perspective as put forward by theorists such as John Austin and HLH Hart. [1]
Dworkin's Rejection of Positivism
Dworkin holds that positivism is a model of and for a system of rules. He states that this is a type of system which, "forces us to miss the important roles of these standards that are not rules".[2] A central tenet of positivism that Dworkin specifically rejects is the idea that the law is a set of exhaustive rules, and that an official such as a judge must go outside the law to decide a case not specifically covered in the "system of rules".[3] Dworkin discusses the differences between positivist theorists Austin and Hart, noting that Hart's version of positivism is more complex and explores the different ways in which rules become binding on society. Although he thinks Hart's view of positivism is more complex, ultimately he holds that both views are essentially similar as both lead to the conclusion that hard cases are resolved by judges exercising discretions. [4]
The Distinction between Rules, Principles and Policies
Dworkin argues that in general, principles are standards other than rules, that must be observed in order to uphold virtues of morality such as justice and fairness. He states that an important distinction between principles and rules is that rules are often applied in an "all or nothing fashion", meaning that a rule is either valid and thus part of the law, or invalid and thus not accepted as being law. Dworkin argues that this is not true in respect to principles.
Dworkin believes principles to hold more weight or importance than rules, and this importance is what is weighed by legislators in determining policy or by judges deciding hard cases.
Dworkin differentiates between the broader concept of principles and the more specific standard of policies. To Dworkin, a policy is some sort of goal or improvement to serve the community. This can be in regards to economic, political or social goals. Policies are an aspect that relate to principles as they both inform, and are formed by them. The distinction between rules, policies and principles will be further explored in the context of the case below.
Law as Integrity
Another important aspect to Dworkin's theory of law as a system of rights is his idea of "law as integrity". This idea is that the principles that underly the legal system are a coherent continuation of the laws and principles that have existed in the past. This is not the same as saying that the same principles have always been present throughout history. He uses the analogy of a "chain novel" to express his idea that law that is both backward and forward looking. [5] In order to understand the principles that exist within the legal system it is necessary to look at the principles (and policies) that have been present in the legal system before. This enables judges especially to understand how to draw from those existing principles when deciding hard cases. Dworkin believe principles to be dynamic and changing and that they are influenced by, and potentially respond to what has been recognized as being important to law makers in the past.
Application to B.M v British Columbia (Attorney General)
Dworkin's theory of law as a system of rights is very reflective of our legal system today, and the interplay that occurs between principles, policies and rules. By applying the theory, the case can be seen as being concerned with two competing principles, but that it is ultimately decided based on the existing rules of tort law.
In this case the principle of fairness is discussed, in particular fairness for the accused. Many would say that fairness of the accused is a foundational principle within our legal system. On the other hand the case is also concerned with the underlying principle of individual safety and particularly the safety of vulnerable women within the legal system. While this second principle is perhaps less articulated within the case, it is undeniably an important factor that creates a tension with the competing principle of fairness for the accused.
Although this case is decided based on the established rules of tort law such as; duty, standard of care and causation beneath these rules, the judges are in effect weighing the competing principles in deciding this "hard case". In weighing those principles the judges if necessary could have changed the existing rules to allow for a private duty of care to be found. As well it has been argued that there is a necessity in the existing law of tort to find different ways of finding causation outside normal situations in which the "but for" test would apply.[6] This is the sort of argument that Dworkin would favour, as it is drawing from the principles and continuing on the "chain novel" of tort law, yet creating new rules which best fit the greater interests of society.
In this case there are also policies which have been shaped by the underlying principles of the legal system. The appellants in the case point to the policy of the provincial Attorney General which required police to be active when investigating claims of domestic violence. [7] However Justice Hall in his reasons states that "what occurred on 11 March 1996 could scarcely be said to be an incident of domestic violence because there were neither threats nor assault".
However, at issue in this case is whether police owe a private duty of care to individuals. In regards to finding a "new duty" category the court argues that "imposing tort liability for a failure to investigate is contrary to the public policy which recognizes that police have to make difficult choices with limited resources". at 43
the court sites the case of Anns v Merton London Borough Council which states that essential purpose when faced with a question of finding a new category of duty "is to evaluate the nature of that relationship in order to determine whether it is just and fair to impose a duty of care on the defendant". at 55.
In Justice Donalds dissenting reasons he states that he believes it is "just and fair" to impose a duty (rule) on the police because of the Domestic Violence Policy". He finds there to be a sufficient relationship of proximitiy in the circumstances to establish a new duty of care, with no policy reasons to negate the duty." at 56.