A NOTE ON DWORKIN AND PRECEDENT

AuthorDavid Pannick
DOIhttp://doi.org/10.1111/j.1468-2230.1980.tb01581.x
Publication Date01 Jan 1980
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
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
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