A NOTE ON DWORKIN AND PRECEDENT

I
A THEORY of adjudication remains one of the more elusive goals of
modem jurisprudence. Who should resolve a legal dispute and how
should they resolve it? In Taking Rights Ronald Dworkin
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).
Dworkin’s 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 pre-
cedent; 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 sophisti-
cated version of the “ Open Sesame ” theory of adjudication.
__
1 Taking Rights Seriously (Duckworth, 1977. New impression with an appendix,
“ A Reply to Critics,” 1978). Henceforth cited as “ Dworkin.”
2 The Concept of Law (Oxford, l%l).
J Dworkin, Introduction p. xii: “ ... individuals may have legal rights other
than those created by explicit decision or practice; that is, they may have rights to
specific adjudicative decisions even in hard cases when no explicit decision or practice
requires a decision either way.”
In deciding hard cam, judges rely on principles as well as rules. Dworkin’s
contention is that these principles are part of “ law,” and not something extra-legal
which a judge has a discretion when and how to apply. Dworkin therefore redefines
these principles as legal rights.
4 In Dworkin’s jurisprudence, to every hard case there is an uniquely correct
solution. If judges fail to weigh rights correctly it i s not because of any ambiguity
in the question posed and not because of any incompatibdity between the rights.
There are only practical difficulties: failures to understand the question, defects in
moral reasoning powers. Dworkm has reintroduced into jurisprudence the errors
of a monist vision so powerfully and persistently exposed in other areas of life by
Isaiah Berlin. Sir Isaiah’s writings develop the central theme that values and experi-
ence Cannot be accommodated within a consistent framework without the loss of
much that is thought valuable. The very notion of harmony and unity denigrates
man by denying the heterogeneous quality of human life. This is as powerful a
critique of a legal philosophy as it is of a political philosophy. Hercules cannot
claim immunity from the painful dilemmas of choice felt by all other men.
5 Lord Reid “The Judge as Lawmaker,” 12 J.S.P.T.L. 22. “There was a time
when it was thought almost indecent to suggest ‘that judges make law-they only
36
Jan. 19801 A NOTE ON DWORKIN AND PRECEDENT 37
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 f acto.’
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.” He asserts a link between
principled adjudication and the doctrine of precedent.
“ An argument o f principle can supply a justification for a par-
ticular 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.” *
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).” 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.” l o
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 seem as justified by an argument of policy,
then it only has enactment f0rce.l’

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
Aladdin’s cave there is hidden the common law in all its splendour and that on a
judge’s 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.
38 THE MODERN LAW REVIEW [Vol. 43
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 some-
thing 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 Bentham’s 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 Shakespeare’s 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 Girlliver’s 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 Dworkm’s 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 A NOTE ON DWORKIN AND PRECEDENT 39
~tatutes.'~ The difficulty here is to explain why a balancing of entitle-
ments 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

IS Cardozo, The Nature of the Judidal Process (p. 149): I ' . ..

the labour of
judges would be increased almost to she breaking point if every past decision could
be reopen4 in every case.."
1" 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 piecs of
political history, provides some reason for deciding other cases in a Milar way in
the future.." The earlier decision has a force independent of that possessed by the
rights weighed in it.
1 7 In Lister v. Romford Ice and Cold Storage Co. [I9571 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 h 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 t h i i
that, for all that, we need abandon the conviction of Galileo that somehow, by
some means, there is a movement that takes place."
10 119321 A.C. 652.
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.
40 THE MODERN LAW REVIEW [Vol. 43
not ex post fact0 legislation. The dilemma is this: if Donoghue v.
Stevenson merely weighed already existing entitlements, it added
nothing creative to the body of the law, and so no doctrine of pre-
cedent is required to ensure that a later judge weighs those rights in
the same way; if Donoghue v. Stevenson needs to be considered as a
precedent because it did add something to the law (that is, if it was
an incorrect weighing of entitlements, resulting in a new entitlement),
how do we maintain the rights thesis against arguments from democ-
racy and retroactivity? It is true that we do not here have judicial
law-making by discretion. But what we do have is equally anti-
pathetic to democracy: a new entitlement is created by a wrong
judicial decision.a0 The only improvement on a theory of judicial
discretion is the limitation the rights thesis imposes on the procedure
by which a judge may create an entitlement. He can only create an
entitlement as a by-product of his attempt to reach the correct
decision by weighing existing entitlements. Undemocratic law-making
is the minimum price of defending precedent in the rights thesis by
seeing judicial decisions as entitlements.21 Dworkin concedes that
no judge is Hercules, so mistakes will be common. If judges are to
make law in hard cases, the objections to them considering matters
of policy seem less persuasive.22
We have, then, a theory that not only do judges reach decisions
by applying existing rights, but also that a judicial decision is itself
an entitlement. This explanation of precedent still cannot be the basis
of the enactment force of judicial decisions. Even if each judicial
decision creates an entitlement, we have no reason to think that such
an entitlement will always be strong enough to outweigh competing
entitlements in later cases, and so generate a particular decision in
the later case when the earlier decision is cited as a precedent. Pre-
cedent as fairness, with each judicial decision itself an entitlement.
can only explain why judicial decisions are given consideration in
later cases. Judicial decisions are merely entitlements among other
entitlements. This is inadequate to explain enactment force, which
“ O In The Courts as Legfslufors (Holdsworth Club Presidential Lecture, 1964-65).
Lord Diplock said: “No lawyer really supposes that such decisions as Rylands v.
Fletcher in the last century or Donoghue v. Stevenson in this did not change the
law just as much as the Law Reform (Contributory Negligence) Act 1945.”
21 Sartorius, “ Social Policy and Judicial Legislation,” 1971, 8 Am.Phi1.Q. 151,
159-160, argues that because a judge is not perceived as a legislator, and because
he justifies his decisions by reference to preexisting 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 preexisting 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 Judfdd Decision (Stanford, 1%1), at p. 157 comments:
I‘ 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.”
Jan. 19801 A NOTE ON DWORKIN AND PRECEDENT 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 entitle-
ments (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 Raz’s explanation of how promises and
other second-order reasons are exclusionary reasons for action that
exclude a weighing of reasons for action.*&In Dworkin’s 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 entitle-
ments.’$ One can only counter gravitational force with the gravita-
tional 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 entitle-
ments. This leads to the further conclusion that judge-made entitle-
ments 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.
42 THE MODERN LAW REVIEW [Vol. 43
not at all when others are mentioned.” The existence of levels of
entitlements challenges one tenet of the rights thesis : that adjudication
concerns the weighing of entitlements.2a

V
We have a restatement of Dworkin’s rights thesis. Dworkin is not only
describing and justifying adjudication by showing it to be based on a
weighing of entitlements. He is also developing a theory of the conse-
quences of a judicial decision. A judicial decision must itself be an
entitlement if precedent is not to be redundant in the rights thesis.
Judicial decisions as entitlements leads to an objection from demo-
cracy. We have the difficulty of what weight such entitlements have in
comparison with other entitlements, whether there are levels of entitle-
ments that exclude a weighing process, and whether fairness can
justify the exclusionary nature of judge-made entitlements. We also
have to explain how a judge can dismiss an earlier decision as a mis-
take, and so deny it force, if it is an entitlement. If judicial decisions
are entitlements, how do we explain the power of the House of Lords
to overrule its own decisions? I n the context of the overruling power
we do see a weighing of entitlements, judge-made and social. Yet it is
precisely in this context of a true weighing of entitlements that prece-
dent is ignored. Precedent is not needed to ensure that entitlements
are weighed. Indeed, the force of precedent would prevent any such
weighing process from occurring: the House of Lords would merely
follow the earlier decision.
Dworkin postulates only an impure rights thesis, with levels of
entitlements. A pure rights thesis (one wherein all entitlements are
weighed) would recognise that statutory entitlements could be out-
weighed by social entitlements: for example, when the right to treat-
ment as m equal is denied by a statute. A pure rights thesis would
also cease to ascertain the ruling political theory that gives us the
content of our social entitlements by reference solely to statutes and
previous judicial decisions. If, as Dworkin insists, men have legal
rights other than those expressly created by legislation and prior
judicial decisions, why is the content of that body of rights so rigidly
dependent on the content of earlier legislation and adjudication?
The answer is that a pure rights thesis would pose insuperable
practical difficulties. First, granted that men possess legal rights that
are not stated in statutes or the subject of express recognition in
judicial decisions in earlier cases, how are individual right-holders and
judges to decide the weight and content of those rights? Secondly, if a
~~ ~ -

Dworkin, pp. 203-204.

27
2 8 The 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.
Jan. 19801 A NOTE ON DWORKIN AND PRECEDENT 43
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? Dworkin’s 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 Dworkin’s 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
44 THE MODERN LAW REVIEW [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 “ prin-
ciple ” or policy.” Dworkin’s 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.*
~

2u In “ Professor Dworkin‘s Theory of Rights,’’ 26 Political Studies 123, 133-136,

Raz points out that Dworkin’s rights thesis is a conservative thesis: “ for it
instructs [judges] always to perpetuate the existing ideology of the law.” Dworkin’s
rights thesis is, I suggest, n conservative thesis because of the existence of the
doctrine of precedent: it is the doctrine of precedent that compels respect for
earlier decisions.
3 0 [19531 2 AU E.R.127, 129.
31 The dichotomy suggested by Denning L.J., dissenting, in Candler, v. Crane,
Christmas & Co. C19511 2 K.B.164, 178.
32 March 28, 1772. Similarly, Cardozo, The Growth of L m (pp. 6 5 ) .
B.A., B.C.L., Fellow of All Souls College, Oxford.