Course:Law3020/2014WT1/Group X/System Of Rights
Ronald Dworkin: System of Rights
Ronald Dworkin’s conception of law involves an expansion of law from merely a system of rules, into a skeleton of principles, policies and rules. Dworkin’s criticism of Positivism involves the idea that the law is governed by principles of justice and fairness that underlie it. As a result, Hart’s theory that Judges have the authority to exercise discretion in deciding upon the results of hard cases is incorrect. The principles of justice and fairness inform their legal reasoning, and therefore, there are no actual gaps in the law.
In Dworkin’s Rights Thesis, Rights are interpreted through a judicial consideration of principles in a manner that both seeks to enforce the past treatment of these principles as well as make fresh decisions that advance a societal good. Judges who must determine the outcome of hard cases appear to become a deputy legislature. However, even though they appear to exercise power and discretion, they are still subordinated to the actions of the legislature. In this way, judges enforce existing political rights when they seek to uphold existing decisions and principles, contrasting directly with Hart's view of judges exercising their own free discretion.
Principles vs. Policies
Principles are basic, fundamental ideas of justice and fairness that are part of the law itself. When considering hard cases, judges must take into account the principles of rights and duties to resolve problems. In his thesis, Dworkin claims that principles are part of the law because they support certain rights and duties. Laws are informed by morality in the sense that they are often drawn upon when judges discover new rights while interpreting cases in the penumbra. Principles differ from rules in the sense that rules are factual requirements that may not carry the same importance among them. This allows one rule to be more important than another rule in order to allow certain types of behavior to be more regulated. However, in the event that one rule conflicts with another, the rule carrying greater weight will surpass the other.
Policies are the social goals that exist to benefit a segment of the community. These policies are identified and prioritized by legislators. Policies and principles are separate from one another, but nonetheless inform one another to produce consistency and integrity in the law. Policies differ from principles in the sense that they are decided by the legislature, as opposed to the judiciary, in order to preserve the priority of the most important social goals of society. These social goals benefit at least some segment of society. In this way, the court turns to the policy for guidance as to why the purpose of the old cases were important to us in the first place. Policies also change over time, and inform the principles in this way.
Applying Principles and Policies
Vicarious liability is the principle used in this case and its ability to serve society by compensating those who have suffered and deterring future harms is the primary policy concern. The job of the judge is to keep these goals in mind when applying the principle in order to arrive at the proper, correct decision.
With regard to the case of E.B. v. Order of the Oblates, Dworkin would view vicarious liability through its importance as a policy choice. The ability of vicarious liability to allow a person to be compensated properly if they have suffered harm is important to Dworkin, as it is rationalized through policy and through the social goals of society. Cases where vicarious liability may be found are examined in light of available precedents, as well as this broader idea of policy rationale. In E.B. v Order of the Oblates, determining the presence of vicarious liability is left to McLachlin C.J. to use discretion and find the correct decision, while being primarily guided by policy concerns.
Dworkin would appreciate the application of the Bazley test in this case as a judicial decision to examine a finding of vicarious liability in a consistent manner. A finding of vicarious liability may have been appreciated in the short term, however, a decision must be justified by larger reaching principles and policies, rather than simply deemed right in one isolated case. Principles may change over time, but they become damaged if changed back and forth by seemingly arbitrary rules. In this case while due to the severity of the situation of a child being sexually assaulted, it would have brought temporary acceptance if vicarious liability was found, in the larger scheme would have had overreaching negative repercussions.
The Majority Decision
In the majority decision, the Court pulled forth the principle of fairness and proximity to harm in the test that led to their finding that vicarious liability could not be established. The policy reasons of compensation and deterrence of future wrongs had to weigh against the policy of protecting an employer which caused no harm from the imposition of liability. The past decision in Bazley was pulled up and used to refine these principles before returning them to the greater whole of the dynamic stream of principles. The Court modified the principles by placing a limit on who can be found vicariously liable so as to prevent a flood of litigation entering the courts.
The dissent on the other hand, placed more weight on the principles of compensation and fairness with regard to the innocent victim. A broad application of the Bazley test was used to find vicarious liability through the responsibility that the residential school had towards their employees and the power structure that was created in this environment. Dworkin would likely believe that the Courts were correct in not finding liability on the part of the school. However, it is also possible that deterrence would play a large role in his assessment and result in a finding of liability. Nonetheless, this is unlikely, as a strong connection between the employer and the employee is a greater policy concern, as opposed to providing compensation to the victim.
Dworkin states that there is always a right answer when the principles are applied correctly. Both the majority and the dissent believed that they were applying the correct principles in the interest of fairness and justice. However, according to Dworkin, only one of them arrived at the right answer. In this case, the discretion of the majority was incorporated into Dworkin’s metaphorical chain novel of the law, which seeks to tell the best story possible about the law and the values of the community.