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 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. 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 is 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 “provides 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 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.” * 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.” lo
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’