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 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 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.2fl He 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. 24 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 consequences 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 democracy. We have the difficulty of what weight such entitlements have in comparison
with other entitlements, whether there are levels of entitlements 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 mistake, 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? In 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
precedent 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 outweighed by social entitlements: for example, when the right to
treatment 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 ~~ ~ -
27 Dworkin, pp. 203-204. 28 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. Extrajudicial 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 entitlement