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I
A THEORY of adjudication remains one of the more elusive goals of
modem jurisprudence. Who should resolve a legal dispute and how
Ronald Dworkin
should they resolve it? In Taking Rights
attacks the positivist thesis of H. L. A. Hart that in hard cascs
judges exercise a quasi-legislative discretion in deciding for one party
or the other. Dworkin rejects this as descriptively false. He also finds
it normatively unsatisfactory because undemocratic (since it involves
lawmaking by judges) and unfair (because those laws are applied ex
post fucto to the litigants).
Dworkins theory of adjudication is that in all cases judges weigh
and apply competing rights. Even in hard cases, one party has a right
to win. His theory of adjudication is tied to a theory of what law is.
For Dworkin, law embraces moral and political as well as strictly
legal rightss Dworkin develops a third theory of law. Law is neither
merely the rights and duties created by legislation, custom and precedent; nor is law merely the edicts of natural law or morality.
Rather, law is the body of rights given expression to in legislation,
custom and precedent, plus the political and moral rights that arc
implied by the political theory that best explains and justifies the
existing legislation, custom and precedent. The task of a super-human
judge, Hercules, is to construct a political and moral theory that best
explains and justifies the existing legal material, that ruling theory
being the best guide to the rights Hercules must apply to reach the
correct decision in a hard case. Dworkin has produced a sophisticated version of the Open Sesame theory of adjudication.
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...
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Jan. 19801
37
I1
The doctrine of precedent is difficult to reconcile with a theory of
adjudication based on the entitlement of the litigants to the correct
decision (reached by weighing their competing rights). A judge striving
declare it. Those with a taste for fairy tales seem to have thought that in some
Aladdins cave there is hidden the common law in all its splendour and that on a
judges appointment there descends on hm knowledge of the magic words Open
Sesame. Bad decisons are given when a judge muddles the pass word and the wrong
door opens. But we do not believe in fairy tales any more.
6 Dworkm, p. 85.
7 Dworkin, p. 87.
* Dworkin, p. 88.
* Dworkin, p. 111.
10 Dworkin, p. 113 (and pp. 318-319 in A Reply to Critics ).
11 Dworkin, p. 113.
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to reach the right answer in a hard case has no need for rules of
precedent obliging him to give gravitational or enactment force to
past decisions. If the judge believes an earlier decision was correct,
he will apply its reasoning and its conclusion to the present case
without being forced to do so by rules of precedent. He already has
an obligation to reach the right decision. If precedent is to add something to the fundamental duty of the judge to weigh rights, it can
only be a role that challenges the very roots of the rights thesis.
Precedent demands that a judge must give consideration to an earlier
decision not because he thinks the decision was a correct one, but,
rather, even though he thinks it was (legally) incorrect. Stare decisis
is only of importance in so far as it ensures respect for authorities that
would otherwise be ignored.I2 Precedent, far from being explained
and justified by fairness, is opposed to fairness. if fairness means
deciding cases according to rights.
Hercules is. it is true, obliged to develop a theory of mistakes to
enable him to avoid giving gravitation force (and, perhaps, also
enactment force) to at least some wrong decisions.lJ It is doubtful
whether he can avoid giving force to all wrong decisions. But, even
if he can, he has merely anaesthetised the role of precedent; stare
decisis would become redundant in the rights thesis, since that thesis
already demands that the judge decides each case by weighing and
applying competing rights.
Fairness cannot be the justification for the repetition of wrong
decisions.
111
Can Dworkin escape from the arguments that precedent is redundant
in the rights thesis, and that whenever precedent is given a role it
conflicts with fairness?
We can reject two weak defences of precedent as fairness in the
rights thesis. Precedent could serve a secretarial role, the past decision
being a guide to the present judge on how to weigh precedents and
_-
12 Radin, 33 Columbfu Law Review 199. The fact that precedent is redundant if
it compels resped only for correct decisions explains the Contempt in which prece
dent is often held.
Sea Benthams outburst (in his Constirurional Code, Book 2, Art. 49): precedent
is acting without reason, to, the declared exclusion of reason. and themby in
declared opposition to reason (Cited in Goodhart, 50 L.Q.R.40, 46).
Similarly, in Shakespeares The Merchant of Venice (Ad IV, Scene I) Portia
declares: Twill be recorded for a precedent, And many an error by the same
example Will rush into the state. It cannot be.
1s Dworkm, pp. 119-122.
14 Swift (in
Girllivers Travel+ A Voyage to the Houyhnhnms, Chap. 5 )
explains: It is a maxim among these lawyers that whatever has been done before
may legally be done again, and therefore they take special cam to record all the
decisions formerly made against common justice and the general reason of mankind.
These, under the name of precedents, they produce as authorities to justify the most
iniquitous opinions, and the judges never fail of decreeing accordingly.
However, Joseph Raz, in Professor Dworkms Theory of Rights (1978) 26
Political Studies 123, 135 argues that sometimes there am good reasons to perpetuate
a decision that should not, in the first place, have been made.
Jan. 19801
39
~tatutes.'~
The difficulty here is to explain why a balancing of entitlements done 50, 100 or 200 years ago should bind today's judge,
particularly as new statutes have been enacted, and the ruling political
theory thereby changed. The second weak justification argues that
the judge in the earlier case was better qualified, and so more likely
to develop correctly the political theory than is the judge in the
present case. This explanation of precedent as fairness is, at best, only
acceptable when the earlier decision emanated from a superior court
(and the explanation does not allow for changes in the ruling political
theory that have occurred since the decision of the earlier court).
The only strong defence open to Dworkin is to argue that precedent
is required by the rights thesis, and is based on fairness in giving the
litigants their entitlements, because the earlier decision developed
the law in some way. Without the earlier decision the law would be
different in content. The past decision is thus itself an entitlement,
one that judges would be in danger of ignoring but for the doctrine
of precedent.'"
The acceptance of judicial decisions as entitlements seems essential
if Dworkin is to allow for the development of the common law. The
insistence that the common law evolves can be termed the " Galileo "
theory of adjudication." Without it, Donoghue v. Stevenson l" would
have been similarly decided in 1922, 1832 or 1632 (if an analogy can
be found for ginger-beer and glass bottles). Other judicial decisions
would not influence the correct result in Donoghue v. Stevensort,
whenever litigated, if those decisions are merely the correct weighings
of existing entitlements. The common law develops because wrong
judicial decisions (i.e. ones in which rights are defectively weighed)
create new rights."
Judicial decisions as entitlements is the best defence of precedent
in the rights thesis. However, the foundation of that thesis, and
Dworkin's justification of adjudication as against arguments from
democracy and retroactivity, is precisely that judicial decisions are
..
10
19 We can only nvoid the conclusion that judicial decisions are entitlements by
arguing that entitlements created by statute have a gravitational force of their own
and so affect common law decisions in which they are not directly applied. Statutory
entitlements will also cause a change in the ruling political theory.
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Jan. 19801
41
demands that later cases falling within the exact words of the earlier
decision accept that earlier decision as dispositive of the present case.
IV
The enactment force of judicial decisions is not based on fairness
since no weighing of entitlements there occurs. The entitlement
created by the judicial decision is exclusionary of all social entitlements (i.e. those not created by judicial decision or statute, but derived
indirectly through the ruling political theory that best justifies the
existing precedents and statutes). To explain the enactment force of
judicial decisions we need to recognise judge-made entitlements as
existing on a higher level than social entitlements. Similarly statutory
entitlements (those directly created by legislation) override other
entitlement^.^^ There is little point in these cases in talking of a
weighing of entitlements. One level of entitlement excludes the other.
This is analogous to Joseph Razs explanation of how promises and
other second-order reasons are exclusionary reasons for action that
exclude a weighing of reasons for action.*&In Dworkins rights thesis,
exclusionary entitlements prevent a weighing of entitlements.
Enactment force and gravitational force are creatures of the same
species. Enactment force is very strong gravitational force. As the
present case moves further away from the language of the earlier
decision, so the force of that earlier decision diminishes. Gravitational
force, like enactment force, excludes consideration of social entitlements.$ One can only counter gravitational force with the gravitational force of conflicting decisions. Enactment force goes further.
It excludes consideration of the gravitational force of conflicting
decisions. There is really little point in talking of the weighing of
entitlements unless we mean a conflict between gravitational forces,
the clash of enactment forces, or the battle of social entitlements.
Our efforts to explain the function of precedent in the rights thesis
led to the conclusion that judicial decisions are themselves entitlements. This leads to the further conclusion that judge-made entitlements are on a higher level to social entitlements and on a lower level
to statutory entitlements. (If constitutional entitlements exist, they will
occupy an even higher level.) Dworkin comments that Hercules is
faced with layers of authority and a vertical ordering of legal
material.2flHe may mean, by this, to embrace levels of entitlements.
One problem is that a vertical structure of entitlements is difficult to
reconcile with his insistence that If rights make sense, then the
degrees of their importance cannot be so different that some count
2.5 Dworkin bases his political theory on the right to treatment as an equal. It is
unclear whether this right can eve? be outweighed by judgemade and statutory
entitlements, let alone whether it can so easily be excluded by them. The answer may
depend on the existence of a higher level of constitutional entitlements.
2 4 Practical Reason and Norms (Hutchinson, 1975).
z5 It cannot be argued that the strength of gravitational force depends on social
entitlements. This would be a circular theory, since social entitlements depend on
the ruling political theory derived by considering judicial decisions and statutes.
*a Dworkin, p. 117.
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Jan. 19801
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judge weighs all legal rights when deciding a case, how are we to
ensure that statutes and judicial decisions are effective guides for the
conduct of citizens and the decisions of judges? Dworkins answer to
the first problem is to state that the only social rights recognised by
law are those evidenced by statutes and judicial decisions by being
therein implied. His solution to the second problem is to see judicial
decisions as entitlements, on a higher level to social entitlements, but
on a lower level to statutory entitlements. The solution to each
problem is partly concretised in a doctrine of precedent.
It is, then, misleading to say that the doctrine of precedent is based
on fairness. Of course, it all depends what we mean by fairness.
Fairness as the weighing of all entitlements and the consistent
application of principles fails to capture the distinctive contribution
of precedent to the rights thesis. Precedent gives judicial decisions an
exclusionary force that prevents a true weighing of entitlements. It
gives to a judicial decision a force not present in the rights that were
weighed in reaching the decision. The role of precedent in the rights
thesis, apart from reconciling the thesis with the evolution of the
common law, is to help ensure that the content of our legal rights is
not too uncertain, and to help ensure that the thesis supports rather
than destroys a political theory of levels of rights.
VI
The discussion so far has, I hope, led to two conclusions. First, that
precedent hinders rather than ensures a weighing of rights in the
adjudicative process. Secondly, that there may be, nonetheless, good
reasons for retaining enactment and gravitational force. These reasons
have nothing to do with fairness, as Dworkin defines it. They are,
I suggest, political reasons.
These conclusions are not wholly surprising if one stands back
from the intricacies of Dworkins theory, and questions the intimate
connection he makes between principled adjudication and the doctrine
of precedent. Judges can make perfectly principled decisions even if
they are not constrained to follow earlier decisions. The principled
nature of a decision (whether it is made by a judge or by anyone
else) depends on the present intention of the decision-maker to make
the same decision in all analogous cases in the future, and depends on
the decision itself not being generated by policy considerations. His
decision does not become unprincipled merely because he does not
give especial weight to the fact that certain other decisions were
decided in a certain way in the past. His present decision can be
principled even though he rejects the principles applied in the past.
Principle can exist, quite happily, independent of precedent. The
crucial point is that the principles will be different in the absence of a
doctrine of precedent : they will be more radical.
Precedent ensures that the principles Hercules applies in hard cases
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[Vol. 43
are conservative ~ n e s It
. ~ensures
~
that in searching for solutions to
new problems, Hercules must operate with a conservative ideology.
He must search the past for authority to justify the principles he
wishes to apply. This may be desirable, for example to restrain the
reforming instincts of the judge. Or it may be undesirable, causing the
stagnation of the common law, its inability to resolve new problems.
As Denning L.J. suggested in Packer v. Packer,
If we never do anything which has not been done before, we
shall never get anywhere. The law will stand still whilst the rest
of the world goes on; and that will be bad for both. 30
We have to decide whether we want Hercules to be a timorous
soul or a bold spirit. s 1 Acceptance or rejection of enactment
and gravitational force in hard cases will be the key to ensuring the
siiccess of the choice we make.
Precedent, then, is not essential to principled adjudication in hard
cases. Enactment and gravitational force may, indeed, endanger the
principled nature of decisions made by Hercules. A judge will find it
easier, in hard cases, to shelter behind earlier decisions, rather than
articulate and justify the principles he is applying to resolve a
dispute. Perhaps it was for this reason that Dr. Johnson warned
Boswell: As to precedents, to be sure they will increase in course
of time; but the more precedents there are, the less occasion is there
for law; that is to say, the less occasion is there for investigating
principles. 3 2
I am reluctant to commit myself to specifying whether the political
justifications for precedent (ensuring conservative principles; enabling
the common law to develop, albeit at a slow pace; supporting a
political theory of levels of rights; preventing the content of our legal
rights from being too uncertain) come under the heading of principle or policy. Dworkins replies to his critics suggest a degree
of caution (or at least a safety-net) when walking that tight-rope. I
merely propose, tentatively, that the political justifications for precedent
cannot be embraced within the neutral concept of fairness used by
Dworkin to explain the existence of gravitational force.
DAVIDPANNICK.*
~