учебный год 2023 / Dworkin-Precedent

Dworkin argues that his theory is not defeated by complaints about judicial law-making or retroactivity. Hercules decides hard common

law cases on grounds of principle (weighing rights), not policy. Hence he is not a quasi-legislator, and the principles are not applied ex post facto.6

My concern is with Dworkin's claim that the rights thesis "pro-

vides a more satisfactory explanation of how judges use precedent in hard cases than the explanation provided by any theory that gives a more prominent place to policy." 7 He asserts a link between

principled adjudication and the doctrine of precedent.

"An argument of principle can supply a justification for a particular decision, under the doctrine of responsibility, only if the principle cited can be shown to be consistent with earlier decisions not recanted, and with decisions that the institution is prepared to make in the hypothetical circumstances. That is hardly surprising,but the argument would not hold if judges based their decisions on arguments of policy. They would be free to say that some policy might be adequately served by serving it in the case

at bar, providing, for example, just the right subsidy to some troubled industry, so that neither earlier decisions nor hypo- thetical future decisions need be understood as serving the same

policy." 8

Dworkin explains that the doctrine of precedent gives a judicial decision two types of force. It has enactment force (its effect on future

cases covered by its exact words) and gravitational force (its influence on later cases that fall outside the language of its opinion).9 The language of a judicial decision does not explain its gravitational force. Nor do arguments of reliance, convenience, or accumulated wisdom. Gravitational force is justified by "the fairness of treating like cases alike." 10

Because precedent is based on fairness, a judicial decision has gravitational force only if it was decided on grounds of principle. If an earlier decision is seen as justified by an argument of policy, then it only has enactment force."1

II

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 Aladdin's cave there is hidden the common law in all its splendour and that on a

judge's appointment there descends on him 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."

6Dworkin, p. 85.

7Dworkin, p. 87.

S Dworkin, p. 88.

9Dworkin, p. 111.

10Dworkin, p. 113 (and pp. 318-319 in " A Reply to Critics ").

11 Dworkin, p. 113.

to reach the right answerin a hard case has no need for rules of precedentobliginghim to give gravitationalor enactmentforce to past decisions.If the judge believesan earlierdecisionwas correct,

he will apply its reasoningand its conclusionto the present case withoutbeing forced to do so by rulesof precedent.He alreadyhas an obligationto reachthe rightdecision.If precedentis to add some- thing to the fundamentalduty of the judge to weigh rights,it can only be a role that challengesthe very roots of the rights thesis. Precedentdemandsthat a judgemustgive considerationto an earlier

decisionnot because he thinks the decisionwas a correctone, but, rather,even thoughhe thinksit was (legally)incorrect.Staredecisis

would otherwisebe ignored.12Precedent,far from being explained and justifiedby fairness,is opposed to fairness,if fairnessmeans

enactmentforce) to at least some wrong decisions.13It is doubtful whetherhe can avoid givingforce to all wrongdecisions.But, even if he can, he has merely anaesthetisedthe role of precedent;stare decisiswould becomeredundantin the rightsthesis,since that thesis alreadydemandsthat the judge decides each case by weighingand

in the rightsthesis, and that wheneverprecedentis given a role it conflictswith fairness?

We can reject two weak defencesof precedentas fairnessin the rightsthesis.Precedentcould servea secretarialrole,the past decision

being a guide to the presentjudge on how to weigh precedentsand

12 Radin, 33 Columbia Law Review 199. The fact that precedent is redundant if it compels respect only for correct decisions explains the contempt in which precedent is often held.

See Bentham's outburst (in his Constitutional Code, Book 2, Art. 49): precedent "is acting without reason, to the declared exclusion of reason, and thereby in declared opposition to reason"

Similarly, in Shakespeare's The Merchant of Venice (Act 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."

13Dworkin, pp. 119-122.

14Swift (in Gulliver's Travels-" 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 care 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 Dworkin's Theory of Rights" (1978) 26 Political Studies 123, 135 argues that sometimes there are good reasons to perpetuate

a decision that should not, in the first place, have been made.

ments done 50, 100 or 200 years ago should bind today's judge,

theory therebychanged.The second weak justificationargues that the judgein the earliercase was betterqualified,and so morelikely

to develop correctlythe political theory than is the judge in the

acceptablewhen the earlierdecisionemanatedfrom a superiorcourt

(and the explanationdoes not allowfor changesin the rulingpolitical theorythat have occurredsince the decisionof the earliercourt).

The only strongdefenceopento Dworkinis to arguethatprecedent is requiredby the rightsthesis,and is basedon fairnessin givingthe litigants their entitlements,because the earlier decision developed the law in some way. Withoutthe earlierdecisionthe law would be

differentin content. The past decisionis thus itself an entitlement, one that judgeswould be in dangerof ignoringbut for the doctrine

of precedent.16

The acceptanceof judicialdecisionsas entitlementsseemsessential

insistencethat the commonlaw evolvescan be termedthe "Galileo"

theory of adjudication.17Without it, Donoghue v. Stevenson 18 would have been similarlydecidedin 1922, 1832or 1632(if an analogycan

would not influence the correct result in Donoghue v. Stevenson, wheneverlitigated,if thosedecisionsare merelythe correctweighings of existing entitlements.The common law developsbecause wrong judicialdecisions(i.e. ones in which rights are defectivelyweighed) create new rights."

Judicialdecisionsas entitlementsis the best defence of precedent in the rights thesis. However, the foundation of that thesis, and Dworkin'sjustificationof adjudicationas against argumentsfrom

judges would be increased almost to the breaking point if every past decision could be re-opened in every case."

16 Dworkin hints at this interpretation. He says, at p. 113: "A precedent is the report of an earlier political decision; the very fact of that decision, as a piece of political history, provides some reason for deciding other cases in a similar way in the future." The earlier decision has a force independent of that possessed by the

rights weighed in it.

17 In Lister v. Romford Ice and Cold Storage Co. [1957] A.C. 555, 591-592, Lord Radcliffe said: "No one really doubts that the common law is a body of law which develops in process of time in response to the development of the society in which it rules. Its movement may not be perceptible at any distinct point in time, nor can we always say how it gets from one point to another; but I do not think

that, for all that, we need abandon the conviction of Galileo that somehow, by some means, there is a movement that takes place."

1s [1932] A.C. 652.

19 We can only avoid 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.

not ex post facto legislation. The dilemma is this: if Donoghue v.

Stevenson merely weighed already existing entitlements,it added nothingcreativeto the body of the law, and so no doctrineof precedentis requiredto ensurethat a laterjudgeweighsthose rightsin the sameway; if Donoghuev. Stevensonneedsto be consideredas a precedentbecauseit did add somethingto the law (thatis, if it was an incorrectweighingof entitlements,resultingin a new entitlement),

law-makingby discretion.But what we do have is equally anti- pathetic to democracy: a new entitlementis created by a wrong judicial decision.20The only improvementon a theory of judicial discretionis the limitationthe rightsthesisimposeson the procedure by which a judge may createan entitlement.He can only createan entitlementas a by-productof his attempt to reach the correct decisionby weighingexistingentitlementsUndemocratic.law-making is the minimumprice of defendingprecedentin the rightsthesis by seeing judicial decisions as entitlements.21Dworkin concedes that

no judge is Hercules,so mistakeswill be common.If judgesare to make law in hard cases, the objectionsto them consideringmatters of policyseemless persuasive.22

We have, then, a theory that not only do judges reach decisions by applyingexistingrights,but also that a judicialdecisionis itself

of the enactmentforce of judicial decisions.Even if each judicial decisioncreatesan entitlement,we have no reasonto thinkthat such

an entitlementwill alwaysbe strongenoughto outweighcompeting entitlementsin later cases, and so generatea particulardecisionin the later case when the earlierdecisionis cited as a precedent.Precedent as fairness,with each judicial decisionitself an entitlement, can only explain why judicial decisionsare given considerationin later cases. Judicialdecisionsare merely entitlementsamong other entitlements.This is inadequateto explain enactmentforce, which

he justifies his decisions by reference to pre-existing standards, therefore he is not a legislator even though his decisions change the law. But we know that judges are not perceived as legislators because of the popularity of the doctrine that judges do not make law. Since we are assessing the veracity of that doctrine, its popularity is irrelevant. Judicial reliance on pre-existing standards is relevant in assessing how a judge makes law, but it does not determine whether he is a legislator. If Parliament decided to codify the existing law of contract and, inadvertently, altered the law in the process of codification, this would be as much law-making as if the alterations were deliberate.

22 Wasserstrom, The Judicial Decision (Stanford, 1961), at p. 157 comments: "Once the notion that legal rules are discovered rather than made by the courts is given up, it is difficult to escape the conclusion that these rules ought to be formulated intelligently."

42 THE MODERN LAW REVIEW [Vol. 43

not at all when others are mentioned." 27The existence of levels of

describingand justifyingadjudicationby showingit to be basedon a weighingof entitlementsHe. is also developinga theoryof the consequencesof a judicialdecision.A judicialdecisionmust itself be an entitlementif precedentis not to be redundantin the rightsthesis. Judicialdecisionsas entitlementsleads to an objectionfrom demo-

ments that exclude a weighingprocess, and whetherfairness can justify the exclusionarynatureof judge-madeentitlements.We also have to explainhow a judgecan dismissan earlierdecisionas a mistake, and so deny it force, if it is an entitlementIf. judicialdecisions are entitlements,how do we explainthe powerof the House of Lords to overruleits own decisions?In the contextof the overrulingpower we do see a weighingof entitlements,judge-madeand social.Yet it is preciselyin this contextof a trueweighingof entitlementsthatprece- dent is ignored.Precedentis not neededto ensurethat entitlements are weighed.Indeed,the force of precedentwould preventany such weighingprocessfrom occurring:the House of Lordswouldmerely followthe earlierdecision.

Dworkin postulatesonly an impure rights thesis, with levels of entitlements.A pure rightsthesis (one whereinall entitlementsare

weighed) would recognisethat statutoryentitlementscould be out- weighedby social entitlements:for example,whenthe rightto treatment as an equal is deniedby a statute.A pure rightsthesis would also cease to ascertainthe rulingpolitical theory that gives us the

previousjudicial decisions. If, as Dworkin insists, men have legal

rights other than those expresslycreated by legislationand prior judicialdecisions,why is the contentof that body of rightsso rigidly dependenton the contentof earlierlegislationand adjudication?

The answer is that a pure rights thesis would pose insuperable practicaldifficulties.First, grantedthat men possesslegal rightsthat are not stated in statutesor the subject of express recognitionin

judgesto decidethe weightandcontentof thoserights?Secondly,if a

27Dworkin, pp. 203-204.

28The distinctions between social, judge-made and statutory entitlements are

emphasised by Dworkin's method of ascertaining the ruling political theory (the use of which enables Hercules correctly to identify social entitlements). The body of social rights is evidenced by reference to entitlements on a higher level. Extra-

judicial pronouncements and statements by academics possess no force and are ignored when the ruling political theory is being considered. They occupy a level beneath social entitlements.

judge weighs all legal rights when decidinga case, how are we to ensurethat statutesand judicialdecisionsare effectiveguidesfor the conductof citizensand the decisionsof judges?Dworkin'sanswerto

the firstproblemis to state that the only social rightsrecognisedby law are those evidencedby statutesand judicial decisionsby being thereinimplied.His solutionto the secondproblemis to see judicial decisionsas entitlements,on a higherlevel to social entitlements,but

on a lower level to statutoryentitlements.The solution to each problemis partlyconcretisedin a doctrineof precedent.

It is, then,misleadingto say thatthe doctrineof precedentis based on fairness. Of course, it all depends what we mean by fairness. "Fairness" as the weighingof all entitlementsand the consistent

applicationof principlesfails to capturethe distinctivecontribution of precedentto the rightsthesis.Precedentgives judicialdecisionsan exclusionaryforce that preventsa true weighingof entitlements.It gives to a judicialdecisiona force not presentin the rightsthat were weighedin reachingthe decision.The role of precedentin the rights thesis, apart from reconcilingthe thesis with the evolution of the commonlaw, is to help ensurethat the contentof our legal rightsis not too uncertain,and to help ensurethat the thesis supportsrather than destroysa politicaltheoryof levels of rights.

VI

The discussionso far has, I hope, led to two conclusions.First, that precedenthinders ratherthan ensures a weighingof rights in the

adjudicativeprocess.Secondly,that theremay be, nonetheless,good reasonsfor retainingenactmentandgravitationalforce.Thesereasons have nothingto do with " fairness,"as Dworkindefinesit. They are, I suggest,politicalreasons.

These conclusionsare not wholly surprisingif one stands back from the intricaciesof Dworkin'stheory,and questionsthe intimate connectionhe makesbetweenprincipledadjudicationandthe doctrine

of precedent.Judgescan make perfectlyprincipleddecisionseven if

they are not constrainedto follow earlierdecisions.The principled nature of a decision (whetherit is made by a judge or by anyone else) dependson the presentintentionof the decision-makerto make

the samedecisionin all analogouscasesin the future,anddependson the decisionitself not being generatedby policy considerationsHis.

decision does not become unprincipledmerelybecausehe does not give especial weight to the fact that certain other decisions were decided in a certainway in the past. His presentdecision can be

principledeven thoughhe rejectsthe principlesappliedin the past.

Principle can exist, quite happily, independentof precedent.The crucialpoint is thatthe principleswill be differentin the absenceof a doctrineof precedent:theywillbe moreradical.

Precedentensuresthat the principlesHerculesappliesin hardcases