Course:Law3020/2014WT1/Group S/System Of Rights
Distillation of the positivist position Dworkin’s concept of principles in the law Principles, policies and rules (distinctions) Principles and the concept of law (principles in judicial process) Principles and the role of discretion Are principles “master” or “super” rules The rights thesis (Relationship between rights and principles - principles concerned to give effect to individual right, themselves the product of history Law’s integrity: the fabric of law
Principles of human rights - charter Better good for everyone is a principle - used to buttress equality They have pulled out principles - charter informs rules, rules buttress charter.
Identify correct principles and assign correct values - if you do it correctly you are controlled, like a vessel If you are a bad judge - you have used discretion incorrectly.
Principles are unwritten, need to be so so that they can be infused by outside sources, replenished by outside sources and decisions within law. Wouldn’t work to frame them like the Civil Code.
Charter is encapsulation of policy/principle at that point in time - court always reinterpreting with principles as they are now. Stream of principle has flowed on since 1982, especially as it pertains to S.15 - DIGNITY part of stream, dignity is a principle, imbued S.15
Rules - CPP provision - not compelling outcome - not invalidated by principles of act or the provision itself. Rules derive from principles, sometimes need to be interpreted when occasions come up where interpreting them in a certain way would get principles.
Do we need to reinfuse the rule?
Charter both a policy and principle - applies to principles to legislation. So many different principles, everything in the charter - amalgamation of rules effectively becomes super rules, contradicts Dworkins opinion about master rules. Charter is a special set of rules, but principles still underlie them. Dworkin would say it can never be written down.
S.15 - elucidated principle. Helps symbiotic principle. What about the fact that S.15 hasn’t been recognized? Expansion of the idea - equality has always been a value, policy considerations and changing times have been depositing more equality into the stream of law until the seminal moment of the charter.
Judges not applying discretion - judges pull out relevant principles - disabled people should be treated fairly, utilitarian principle of good for people who need it most. Seemingly related to utilitarianism. Natural conclusion is that the legislation is valid and when principles are honored this is the main concern. Natural Law: seems analogous, principles to be discovered, god probably put them there. However, laws change over time. Similar in the way that overarching principles govern rules, discretion etc. Dworkin is like a modern Aquinas - he is living in a changing world, Aquinas wasn’t Natural law believes in ordaining of power, our modern principles don’t agree
Rules: Rules of act are clear and straightforward, validly instituted. Acceptance of rules self propogates and peoples acceptance of the underlying principles is bolstered.
Discretion: Judges don’t really have discretion, because they are objective. Judges can use discretion when choosing between principles Feminist approach - ignorant to divorce judges and their history from the discretion they use in choosing which principles to focus on.
Natural Law: God Granted - Principles have become more inclusive of rights, in the old days the rights were said to be helping the common good but ended up helping church power structure. Inevitably Society becoming more modern and inclusive is against natural law.
Law Fabric - judge set precedent by not contravening cpp provisions, upholding principles of equality. By denying him they aren’t actually violating principles that caused the law to come into effect. Judges are working together to strengthen fabric of the law.
Chain Novel: Prior to this the law didn’t exist, this is a brand new chapter needs to be as good as it can be, not perfect but competently formed. Similar to vicarious liability. Fair to draw on principles where we can, helps to create narrative as good and fair and just.
Policy Considerations are so intertwined nowadays that policy consideration is essentially inseperable from analysis of law.