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

From Kumu Wiki - TRU
Jump to navigation Jump to search

Dworkin: Law as a System of Rights

As per Dworkin, valid law does not exist simply through the form of legal rules enacted by legislators. Valid law could also be in the form of principles and policies. Although principles and policies do not look like legal rules, they are nonetheless legally binding. Because principles and policies are inherent rights, they are legally binding at all time and are consistently applied to every person. It’s validity does not depend on it being written or codified. The origin of laws, principles, and policies is a sense of appropriateness. The rights thesis states that through historical events, judges dealt with different issues with the goal of protecting citizens and making moral decisions for the community. Therefore, the assessment of what rights people are entitled to is greatly influenced by morality.


Principles are inherent rules based on fundamental ideas of justice and fairness that seek to deter future harm to the community. As a result, Dworkin argues that compliance with principles is a moral conduct. Principles can validly restrict the liberty of individuals in the course of serving its functions.


Policies are social goals pursued on behalf of some segments of the population. Where issues arise where policies conflict one another, legislators must determine which policy is preferred over another. Due to the concept of legislative supremacy, judges ought not to interfere with the legislator’s decision. In situations where legislators have not made such clarification, judges can make decisions in accordance with any previous priority given by legislator.

Role of Judges and Legislators

There are three forms of valid law: legal rules, principles, and policies. As per Dworkin, the role of legislators is to enact legal rules and assess the priority of policies. Judges, on the other hand, have a much greater role. Since principles and policies are legally binding, if there are relevant principles and policies already in existence, judges must decide a case in compliance with them. In cases where there are no relevant existing principles and policies, judges must make decisions that are consistent to relevant legislator decisions and ensure the result can contribute to the pool of principles and policies that could lend certainty to the law and guide future applications.

Application of Dworkin’s theory to Trinity Western Universtiy v. BCCT

Legal Rules

In Trinity Western Universtiy v. BCCT, TWU established a teacher training program and applied to the BCCT for permission to assume complete responsibility for the program.[1] The BCCT is empowered under s.4 of the Teaching Profession Act to “establish, having regard to the public interest, standards for the education, professional responsibility and competence of its members, persons who hold certificates of qualification and applicants for membership and… to encourage the professional interest of its members”.[2] BCCT rejected TWU’s application on the basis that the “Community Standards” document which TWU requires all students to sign is discriminatory and acts in contrary to s.4 of the Teaching Profession Act.[3] TWU’s “Community Standards” was not drafted nor enacted by legislators. Therefore, it cannot be considered as a legal rule. S.4 of the Teaching Profession Act, on the other hand, is a valid legal rule. The Act was enacted by legislators to delegate authority to the BCCT to regulate educational programs.


As per Dworkin, principles that promote fundamental ideas of justice, fairness, and deterrence of future harm are also valid law. TWU wished to have a teacher training program that reflect Christian World view (para 2). The “Community Standards” sought to ensure all students share this Christian World view by refraining biblically condemned practices (para 4). TWU argued that the “Community Standards” reflect religious freedom. Justice and fairness is achieved if faculty and students of TWU have the right to study in an environment consistent with their religious beliefs. It is also just and fair to allow people to be given the freedom to exercise maximum spiritual and intellectual capacities. Allowing a program that reflects Christian World view also deters future harm by establishing a stable community and promoting self-preservation. Therefore, Dworkin would agree with TWU that the “Community Standards” represent religious freedom. Dworkin would also agree that religious freedom ought to be considered a legally binding principle, an inherent right which people ought to comply with. Section 4 of the Teaching Profession Act is concerned with public interests, standards of education, professional responsibility, and professional competence (para 11). BCCT argued that the society we live in today is diverse and equally ought to be respected. Therefore, it is of utmost importance that programs prepare future teachers for diversity (para 11). BCCT argued that by allowing TWU to engage in discriminatory practices, there will be equality concerns in BC’s public school systems and society generally (para 27). Dworkin would agree with BCCT that equality rights are consistent with the fundamental ideas of justice and fairness and the prevention of future harm.


As mentioned, policies are interests pursued on behalf of different segments of the population. This case is concerned with TWU”s fight for religious freedom and BCCT’s concern for equality rights. As per Dworkin, in circumstances where policies conflict with one another, it is the responsibility of legislators to determine which policy is superior to another. There is no such determination in relation to freedom of religion and equality rights. The Court in Trinity Western Universtiy v. BCCT recognized this as they stated “neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute” (para 31).

Court’s decision In Trinity Western University v. BCCT

Dworkin views laws as “all or nothing”. A law is either valid or invalid, a middle ground does not exist. If two laws are in conflict with one another, one must prevail and the other one deemed invalid. Two conflicting laws cannot both be valid. This assessment need not take place since the two rights of this case are not in conflict with one another. The Court in Trinity Western Universtiy v. BCCT ultimately decided that the TWU program should be allowed but emphasized that the teachers from this program must not act in discriminatory ways. If any discriminatory conducts occur, BCCT is authorized to discipline them (para 37). By BCCT approving the TWU program, faculty and students at TWU enjoy religious freedom. By prohibiting discriminatory conduct and reserving BCCT’s ability to discipline misconduct, the Court is protects equality rights by ensuring diversity is respected and safeguards the goals of s.4 of the Teaching Profession Act. The Courts decision in this case is consistent with Dworkin’s theory.

Dialogue with other theories

Traditional positivists argue that valid laws are commands issued by superiors to subordinates that are backed by sanctions. Modern positivists argue that valid laws are more than commands. In order to be valid, laws must also be recognized by officials within the legal system. Citizens ought to obey legal rules because it is moral to obey laws enacted by the superior legal system. In other words, legal rights and obligations exist due to the existence of legal rules. Dworkin rejects the propositions of positivism. He argues that laws are more than commands recognized by officials within the legal system. Laws also include principles and policies. Certain laws, rights, and obligations exist because they are inherent, not because they are the product of the superior legal system. As a result, while positivists would argue neither TWU's "Community Standards" nor s.4 of the Teaching Profession Act are valid laws, Dworkin argues otherwise.


  1. Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 SCR 772 at para 2
  2. Supra Note 1 at para 11
  3. Supra Note 1 at para 5