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 ~nes.~~ 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.” s1 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.” 32 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.” 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. DAVID PANNICK.* ~ 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. 30 [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 Lm (pp. 65). B.A., B.C.L.,
Fellow of All Souls College, Oxford.