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

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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)

One way to fully understand how theoretical perspectives shape the laws which are made and interpreted by decision makers such as judges and legislators is to apply the theory to the case law.

  1. Susan Dimock, “Classic Readings and Canadian Cases in the Philosophy of Law” at 235.
  2. Dimock at 243
  3. Dimock at 240
  4. Dimock at 243
  5. Dimock at 264