This document discusses Dworkin's theory of adjudication and precedent. It makes three key points:
1) Dworkin argues that in hard cases, judges should weigh competing rights and principles to determine the uniquely correct decision, rather than exercising discretion. However, this view struggles to explain the doctrine of precedent, which sometimes requires following prior incorrect decisions.
2) For precedent to have a role in Dworkin's theory, past judicial decisions must themselves create new legal rights or entitlements. However, this undermines Dworkin's argument that judges do not make law in an undemocratic way.
3) Even if past decisions create new entitlements, this only explains why they should be considered
This document discusses delegated legislation, also known as subordinate or subsidiary legislation. It begins by explaining that delegated legislation refers to laws made by persons or bodies to whom Parliament has delegated law-making authority. Principal Acts of Parliament can enable subsidiary legislation and specify who has the power to make it. Delegated legislation allows administrative details to be implemented that ensure Acts will operate successfully.
The document then covers types of delegated legislation like regulations, statutory rules, by-laws and ordinances. It discusses the rationale for delegated legislation, including saving parliamentary time and dealing with technical or rapidly changing issues. The institutions and authorities that can make delegated legislation are also outlined, along with controls like parliamentary and judicial scrutiny.
Feminist jurisprudence is a philosophy of law based on gender equality. It began in the 1960s and believes that law systematically maintains patriarchy by privileging male perspectives. There are several schools of feminist thought, including liberal feminism which seeks equal treatment, difference feminism which emphasizes women's differences, radical feminism which views patriarchy as the root of gender inequality, and postmodern feminism which rejects universal standards.
This document provides an overview of delegated legislation in India. It defines delegated legislation as the exercise of legislative power by an agent who is lower in rank or subordinate to the legislative body. The document discusses the history and types of delegated legislation under the Indian constitution. It outlines cases that illustrate judicial control over delegated legislation and analyzes the effectiveness of parliamentary control. The document also discusses advantages and criticisms of the practice of delegated legislation in India.
The document discusses the principles of natural justice in Indian law. It outlines two main principles: nemo judex in causa sua (no one should be a judge in their own case) and audi alteram partem (hear the other party). Administrative decisions must follow these principles of fairness and impartiality. The principles require an unbiased decision maker who hears both sides before ruling. Exceptions can be made in emergencies or where applying the principles would be impractical. A violation of audi alteram partem results in a void decision, while violating nemo judex only makes a decision voidable. The document also presents hypothetical problems involving alleged violations of natural justice principles in administrative proceedings.
This document provides a summary of 3 key points about legal aid in India:
1. The history of legal aid in India dates back to 1951 when the Supreme Court stated that denying access to justice due to poverty negates a fair trial. Article 39A of the Constitution obligates the State to provide free legal aid.
2. The Legal Services Authorities Act of 1987 was passed to fulfill the constitutional mandate of providing free legal aid. It defines those eligible for free legal aid as members of scheduled castes/tribes, women, children, disabled people, victims of disasters or violence, industrial workers, those in custody or with an income less than 50,000 rupees.
3. The Supreme
- The document discusses procedures for lawsuits involving the government or public officials under Sections 79-82 of the Indian Code of Civil Procedure.
- It notes that notice must be given to the government or public officer being sued at least two months before filing a lawsuit against them regarding acts done in their official capacity.
- Exceptions to the notice requirement allow for urgent legal action with court approval, and errors in the notice will not result in dismissal if key information is provided.
The document discusses the legal doctrine of res judicata. It begins by defining res judicata as "the thing has been judged" or "a dispute decided." There are three main principles underlying res judicata: no one should be vexed twice for the same cause, it is in the interest of the state for litigation to end, and a judicial decision must be accepted as correct. Res judicata applies broadly to civil suits, criminal proceedings, and other legal matters. For res judicata to apply, the matter must be directly at issue in both cases, between the same parties under the same title, and decided by a competent court. A matter can be actually or constructively at issue. Res judicata differs from estoppel
1. Explain in detail the stages in commission of a crime with decided cases.
2. Theories of Attempt.
3. Inchoate crime.
4. Distinguish between preparation and attempt.
5. Explain section 511 and 307 of IPC.
This document discusses delegated legislation, also known as subordinate or subsidiary legislation. It begins by explaining that delegated legislation refers to laws made by persons or bodies to whom Parliament has delegated law-making authority. Principal Acts of Parliament can enable subsidiary legislation and specify who has the power to make it. Delegated legislation allows administrative details to be implemented that ensure Acts will operate successfully.
The document then covers types of delegated legislation like regulations, statutory rules, by-laws and ordinances. It discusses the rationale for delegated legislation, including saving parliamentary time and dealing with technical or rapidly changing issues. The institutions and authorities that can make delegated legislation are also outlined, along with controls like parliamentary and judicial scrutiny.
Feminist jurisprudence is a philosophy of law based on gender equality. It began in the 1960s and believes that law systematically maintains patriarchy by privileging male perspectives. There are several schools of feminist thought, including liberal feminism which seeks equal treatment, difference feminism which emphasizes women's differences, radical feminism which views patriarchy as the root of gender inequality, and postmodern feminism which rejects universal standards.
This document provides an overview of delegated legislation in India. It defines delegated legislation as the exercise of legislative power by an agent who is lower in rank or subordinate to the legislative body. The document discusses the history and types of delegated legislation under the Indian constitution. It outlines cases that illustrate judicial control over delegated legislation and analyzes the effectiveness of parliamentary control. The document also discusses advantages and criticisms of the practice of delegated legislation in India.
The document discusses the principles of natural justice in Indian law. It outlines two main principles: nemo judex in causa sua (no one should be a judge in their own case) and audi alteram partem (hear the other party). Administrative decisions must follow these principles of fairness and impartiality. The principles require an unbiased decision maker who hears both sides before ruling. Exceptions can be made in emergencies or where applying the principles would be impractical. A violation of audi alteram partem results in a void decision, while violating nemo judex only makes a decision voidable. The document also presents hypothetical problems involving alleged violations of natural justice principles in administrative proceedings.
This document provides a summary of 3 key points about legal aid in India:
1. The history of legal aid in India dates back to 1951 when the Supreme Court stated that denying access to justice due to poverty negates a fair trial. Article 39A of the Constitution obligates the State to provide free legal aid.
2. The Legal Services Authorities Act of 1987 was passed to fulfill the constitutional mandate of providing free legal aid. It defines those eligible for free legal aid as members of scheduled castes/tribes, women, children, disabled people, victims of disasters or violence, industrial workers, those in custody or with an income less than 50,000 rupees.
3. The Supreme
- The document discusses procedures for lawsuits involving the government or public officials under Sections 79-82 of the Indian Code of Civil Procedure.
- It notes that notice must be given to the government or public officer being sued at least two months before filing a lawsuit against them regarding acts done in their official capacity.
- Exceptions to the notice requirement allow for urgent legal action with court approval, and errors in the notice will not result in dismissal if key information is provided.
The document discusses the legal doctrine of res judicata. It begins by defining res judicata as "the thing has been judged" or "a dispute decided." There are three main principles underlying res judicata: no one should be vexed twice for the same cause, it is in the interest of the state for litigation to end, and a judicial decision must be accepted as correct. Res judicata applies broadly to civil suits, criminal proceedings, and other legal matters. For res judicata to apply, the matter must be directly at issue in both cases, between the same parties under the same title, and decided by a competent court. A matter can be actually or constructively at issue. Res judicata differs from estoppel
1. Explain in detail the stages in commission of a crime with decided cases.
2. Theories of Attempt.
3. Inchoate crime.
4. Distinguish between preparation and attempt.
5. Explain section 511 and 307 of IPC.
These slides provide case brief of Bangalore Water Supply and Sewerage Board v. R Rajappa case.
The case covers:
Citation
Facts
Procedural History
Issues
Principle
Judgement
Recent Developments
Hans Kelsen was an Austrian jurist who developed the "pure theory of law" in the 20th century. He viewed legal science as a pyramid of norms with a basic norm (Grundnorm) at the apex, and subordinate norms controlled by norms above them. Kelsen's theory aimed to reduce confusion caused by natural law theory by treating law as a normative science rather than a natural science. However, critics argue that Kelsen's theory lacks sociological foundation and practical applicability, and provides no solution for conflicts arising from ideological differences.
Code of civil procedure 1908 reference, review, revisionDr. Vikas Khakare
This explains what is reference, review and revision. when and where it can be made. It also explains difference between reference, review and revision.
jurisprudence topic possession detailed ppt which help to learn this topic easily by a minimum time by any person who study law. person easily download this ppt to read and to teach also.
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
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Precedent refers to principles or rules established by higher courts that lower courts must follow when deciding similar cases. Binding precedents come from superior courts within the same hierarchy, while persuasive precedents from other hierarchies or courts of equal rank can be considered but are not obligatory. The Supreme Court's rulings are binding on all Indian courts, though it is not bound by its own precedents. Precedents promote predictability, stability, fairness and efficiency but also present challenges like distinguishing key ratios and tracking numerous rulings. Overall, precedents are an important source of law but require effective recording mechanisms.
Judicial review allows courts to examine agency decisions and provide remedies if a person believes they have been injured by an agency. Before seeking judicial review, one must complete all agency appeal processes. Judicial review is not automatic and standards govern access to it. Courts can review agencies by statutes that create the agency or establish judicial review. Several barriers like no provision for review or preclusion of review exist. Procedures like standing, ripeness, exhaustion of remedies, and primary jurisdiction must also be followed to seek judicial review. The scope of review is limited but exceptions exist like reviewing issues de novo rather than just the agency record.
The Advocates Act, 1961 is an act to consolidate and amend the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. It was enacted by the Parliament in the Twelfth Year of the Republic of India.
The Advocates Act,1961 provides for the constitution of two types of councils:
State Bar Council-Section 3
Bar Council of India-Section 4
The Bar Council as well as the State Bar Councils have various functions to perform
This document discusses the various internal aids to interpretation that can be used when interpreting statutes. It outlines 14 main internal aids: the preamble, title, headings, marginal notes, context, punctuation and brackets, illustrations, definition and interpretation clauses, provisos, exceptions and saving clauses, rules, fictions, explanations, and schedules. For each aid, it provides examples from acts like the IPC and constitutional cases where courts have referred to these aids to resolve ambiguities in statutes.
The document discusses the legal principle of audi alteram partem, or "hear the other side." It means that no person should be judged without a fair hearing that allows each party to respond to evidence. Specifically, it refers to the rights to notice of proceedings, present one's case and evidence, rebut adverse evidence through cross-examination and legal representation, and receive a reasoned decision. The document also summarizes a court case where an examination board canceled results without giving examinees a chance to respond, violating this natural justice principle.
The document summarizes the key concepts of the historical school of jurisprudence. It discusses that historical jurists like Montesquieu, Savigny, and Maine believed that law develops organically over time based on the customs and traditions of the people, rather than being created through legislation or judicial decisions. Savigny's concept of "Volksgeist" described law as emerging from the shared spirit or values of the national community. The historical school rejected theories of natural law and viewed law as continually evolving according to the changing needs and norms of society.
Jurisprudence its meaning, nature and scopeanjalidixit21
This document discusses the meaning, nature, and scope of jurisprudence. It defines jurisprudence as the knowledge of law and explains that it is the study of the sources, validity, objectives, functions, and effects of fundamental legal principles. Several jurists are cited defining jurisprudence as the observation of divine and human things, the philosophy of positive law, the science of the first principles of law, and the scientific study of the union of legal rules. The document also outlines different types of jurisprudence according to various jurists and lists several influential books written on the topic.
This document provides an introduction and overview of legal research. It defines research and discusses the meaning and importance of research. It outlines the characteristics of good research and motivating factors for research. It also discusses different types of legal research, including doctrinal research, and compares common law and civil law systems. In summary:
1. Legal research involves systematically investigating issues through various sources to establish facts and principles of law. It aims to discover new information or verify existing knowledge.
2. Good research is based on prior work, addresses real-world problems, and generates new questions. It clearly defines what is being examined and results can be verified.
3. The main types of legal research are doctrinal
This document provides an overview of Hans Kelsen's Pure Theory of Law. Some key points:
- Kelsen advocated a "pure" theory of law that distinguishes law from morals and facts.
- The theory views law as a hierarchical system of norms derived from a basic "grundnorm."
- The grundnorm is the hypothetical starting point that provides validity to the entire legal system.
- Kelsen's theory aims to reduce law to a science by removing non-legal factors, but it has been criticized for being too removed from social realities.
This document discusses administrative tribunals in India. It defines tribunals and distinguishes them from courts and executive authorities. Tribunals were established to handle the growing workload of courts due to expanded government functions. While tribunals have some court-like qualities, they are not bound by strict rules of evidence and procedure. The document outlines the constitutional provisions related to tribunals, their powers and limitations, as well as recommendations from committees on improving their structure and functions.
Representative Suit / What is Representative suit / representative suit in de...Asif Mohammad ALFAYED
Representative suits allow one or more persons to file a suit on behalf of themselves and others who have the same interest in the matter. Order 1 Rule 8 of the Code of Civil Procedure lays out the process for representative suits. It allows for one or more persons from a group with the same interest to file a suit on behalf of all members of the group, with permission of the court. Notice must also be provided to all interested parties. The key purposes of representative suits are to avoid conflicting judgments, reduce court expenses and complications, and allow for matters to be determined in a single trial. Permission for a representative suit can be granted at any stage of litigation, including the appellate stage. Representative suits differ from personal suits in that personal
The office of the ombudsman was established in Pakistan through a presidential order in 1983 and is now enshrined in the constitution. The ombudsman examines complaints from citizens regarding maladministration by government agencies and public bodies. The ombudsman has powers to investigate complaints, summon witnesses, recommend disciplinary action or compensation. Any aggrieved person can lodge a complaint within 3 months to the ombudsman regarding matters not pending in court. The ombudsman provides an independent mechanism to protect citizens' rights and ensure transparent and accountable governance.
judicial process interpretivism drowin theoryindujhaa6
The document discusses Ronald Dworkin's theory of legal interpretivism. It provides context on how interpretivism emerged between legal positivism and natural law theory. For Dworkin, judges are constrained to follow legal principles derived from interpreting legal materials like statutes and precedents, rather than just social facts. This allows for moral values in adjudication. The document uses the case Riggs v Palmer to illustrate Dworkin's approach of resolving hard cases through a principled interpretation that provides the morally right outcome. It outlines the method of interpretivism and discusses some advantages like linking law to morality, while noting potential disadvantages like difficulty in international law.
Civil Procedure Code, 1908,
a Universal Doctrine, applied in civil proceedings.
Shah Muhammad
Lecturer,
University Law College Quetta Khojjak Road Quetta
Cantt
These slides provide case brief of Bangalore Water Supply and Sewerage Board v. R Rajappa case.
The case covers:
Citation
Facts
Procedural History
Issues
Principle
Judgement
Recent Developments
Hans Kelsen was an Austrian jurist who developed the "pure theory of law" in the 20th century. He viewed legal science as a pyramid of norms with a basic norm (Grundnorm) at the apex, and subordinate norms controlled by norms above them. Kelsen's theory aimed to reduce confusion caused by natural law theory by treating law as a normative science rather than a natural science. However, critics argue that Kelsen's theory lacks sociological foundation and practical applicability, and provides no solution for conflicts arising from ideological differences.
Code of civil procedure 1908 reference, review, revisionDr. Vikas Khakare
This explains what is reference, review and revision. when and where it can be made. It also explains difference between reference, review and revision.
jurisprudence topic possession detailed ppt which help to learn this topic easily by a minimum time by any person who study law. person easily download this ppt to read and to teach also.
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
FREE AFFIDAVITS AND NOTICES FORMATS
FREE AGREEMENTS AND CONTRACTS FORMATS
FREE LLB LAW NOTES
FREE CA ICWA NOTES
FREE LLB LAW FIRST SEM NOTES
FREE LLB LAW SECOND SEM NOTES
FREE LLB LAW THIRD SEM NOTES
FREE LLB LAW FOURTH SEM NOTES
FREE LLB LAW FIFTH SEM NOTES
FREE LLB LAW SIXTH SEM NOTES
FREE CA ICWA FOUNDATION NOTES
FREE CA ICWA INTERMEDIATE NOTES
FREE CA ICWA FINAL NOTES
KANOON KE RAKHWALE INDIA
HIRE LAWYER ONLINE
LAW FIRMS IN DELHI
CA FIRM DELHI
VISIT : https://www.kanoonkerakhwale.com/
VISIT : https://hirelawyeronline.com/
Precedent refers to principles or rules established by higher courts that lower courts must follow when deciding similar cases. Binding precedents come from superior courts within the same hierarchy, while persuasive precedents from other hierarchies or courts of equal rank can be considered but are not obligatory. The Supreme Court's rulings are binding on all Indian courts, though it is not bound by its own precedents. Precedents promote predictability, stability, fairness and efficiency but also present challenges like distinguishing key ratios and tracking numerous rulings. Overall, precedents are an important source of law but require effective recording mechanisms.
Judicial review allows courts to examine agency decisions and provide remedies if a person believes they have been injured by an agency. Before seeking judicial review, one must complete all agency appeal processes. Judicial review is not automatic and standards govern access to it. Courts can review agencies by statutes that create the agency or establish judicial review. Several barriers like no provision for review or preclusion of review exist. Procedures like standing, ripeness, exhaustion of remedies, and primary jurisdiction must also be followed to seek judicial review. The scope of review is limited but exceptions exist like reviewing issues de novo rather than just the agency record.
The Advocates Act, 1961 is an act to consolidate and amend the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. It was enacted by the Parliament in the Twelfth Year of the Republic of India.
The Advocates Act,1961 provides for the constitution of two types of councils:
State Bar Council-Section 3
Bar Council of India-Section 4
The Bar Council as well as the State Bar Councils have various functions to perform
This document discusses the various internal aids to interpretation that can be used when interpreting statutes. It outlines 14 main internal aids: the preamble, title, headings, marginal notes, context, punctuation and brackets, illustrations, definition and interpretation clauses, provisos, exceptions and saving clauses, rules, fictions, explanations, and schedules. For each aid, it provides examples from acts like the IPC and constitutional cases where courts have referred to these aids to resolve ambiguities in statutes.
The document discusses the legal principle of audi alteram partem, or "hear the other side." It means that no person should be judged without a fair hearing that allows each party to respond to evidence. Specifically, it refers to the rights to notice of proceedings, present one's case and evidence, rebut adverse evidence through cross-examination and legal representation, and receive a reasoned decision. The document also summarizes a court case where an examination board canceled results without giving examinees a chance to respond, violating this natural justice principle.
The document summarizes the key concepts of the historical school of jurisprudence. It discusses that historical jurists like Montesquieu, Savigny, and Maine believed that law develops organically over time based on the customs and traditions of the people, rather than being created through legislation or judicial decisions. Savigny's concept of "Volksgeist" described law as emerging from the shared spirit or values of the national community. The historical school rejected theories of natural law and viewed law as continually evolving according to the changing needs and norms of society.
Jurisprudence its meaning, nature and scopeanjalidixit21
This document discusses the meaning, nature, and scope of jurisprudence. It defines jurisprudence as the knowledge of law and explains that it is the study of the sources, validity, objectives, functions, and effects of fundamental legal principles. Several jurists are cited defining jurisprudence as the observation of divine and human things, the philosophy of positive law, the science of the first principles of law, and the scientific study of the union of legal rules. The document also outlines different types of jurisprudence according to various jurists and lists several influential books written on the topic.
This document provides an introduction and overview of legal research. It defines research and discusses the meaning and importance of research. It outlines the characteristics of good research and motivating factors for research. It also discusses different types of legal research, including doctrinal research, and compares common law and civil law systems. In summary:
1. Legal research involves systematically investigating issues through various sources to establish facts and principles of law. It aims to discover new information or verify existing knowledge.
2. Good research is based on prior work, addresses real-world problems, and generates new questions. It clearly defines what is being examined and results can be verified.
3. The main types of legal research are doctrinal
This document provides an overview of Hans Kelsen's Pure Theory of Law. Some key points:
- Kelsen advocated a "pure" theory of law that distinguishes law from morals and facts.
- The theory views law as a hierarchical system of norms derived from a basic "grundnorm."
- The grundnorm is the hypothetical starting point that provides validity to the entire legal system.
- Kelsen's theory aims to reduce law to a science by removing non-legal factors, but it has been criticized for being too removed from social realities.
This document discusses administrative tribunals in India. It defines tribunals and distinguishes them from courts and executive authorities. Tribunals were established to handle the growing workload of courts due to expanded government functions. While tribunals have some court-like qualities, they are not bound by strict rules of evidence and procedure. The document outlines the constitutional provisions related to tribunals, their powers and limitations, as well as recommendations from committees on improving their structure and functions.
Representative Suit / What is Representative suit / representative suit in de...Asif Mohammad ALFAYED
Representative suits allow one or more persons to file a suit on behalf of themselves and others who have the same interest in the matter. Order 1 Rule 8 of the Code of Civil Procedure lays out the process for representative suits. It allows for one or more persons from a group with the same interest to file a suit on behalf of all members of the group, with permission of the court. Notice must also be provided to all interested parties. The key purposes of representative suits are to avoid conflicting judgments, reduce court expenses and complications, and allow for matters to be determined in a single trial. Permission for a representative suit can be granted at any stage of litigation, including the appellate stage. Representative suits differ from personal suits in that personal
The office of the ombudsman was established in Pakistan through a presidential order in 1983 and is now enshrined in the constitution. The ombudsman examines complaints from citizens regarding maladministration by government agencies and public bodies. The ombudsman has powers to investigate complaints, summon witnesses, recommend disciplinary action or compensation. Any aggrieved person can lodge a complaint within 3 months to the ombudsman regarding matters not pending in court. The ombudsman provides an independent mechanism to protect citizens' rights and ensure transparent and accountable governance.
judicial process interpretivism drowin theoryindujhaa6
The document discusses Ronald Dworkin's theory of legal interpretivism. It provides context on how interpretivism emerged between legal positivism and natural law theory. For Dworkin, judges are constrained to follow legal principles derived from interpreting legal materials like statutes and precedents, rather than just social facts. This allows for moral values in adjudication. The document uses the case Riggs v Palmer to illustrate Dworkin's approach of resolving hard cases through a principled interpretation that provides the morally right outcome. It outlines the method of interpretivism and discusses some advantages like linking law to morality, while noting potential disadvantages like difficulty in international law.
Civil Procedure Code, 1908,
a Universal Doctrine, applied in civil proceedings.
Shah Muhammad
Lecturer,
University Law College Quetta Khojjak Road Quetta
Cantt
The document discusses theories of adjudication, specifically examining two approaches: the descriptive dimension which looks at how judges actually decide cases, and the normative dimension which focuses on how judges ought to decide cases. It covers American legal realists like Oliver Wendell Holmes who argued that law is defined by what courts actually do rather than theories or principles. Realists believe judges are influenced by numerous factors beyond just legal rules. The document also discusses legal scholars like Llewellyn, Frank, and Cardozo and their views on judicial discretion, precedent, and a judge's role in lawmaking.
Doctrine of Precedent - India, U.S and U.KIshaan Dang
The document discusses the doctrine of precedent, or stare decisis, in the Indian legal system and how it is similar to the British common law system. It outlines some key principles:
a) Lower courts are bound by decisions of higher courts in their jurisdiction, but decisions of other higher courts are only persuasive.
b) In cases of conflict between decisions of equal benches of the same high court, the later decision should be followed, though the rationale is also considered.
c) Larger benches of a high court are binding on smaller benches and coordinate benches.
The document discusses the Critical Legal Studies (CLS) movement and some of its key principles and influences. Some of the main points made in the summary are:
1. CLS disputes the idea that law is a coherent system and rejects the notion of neutral legal reasoning. It sees contradictions within legal doctrines.
2. Major influences on CLS include American Legal Realism, Marxism, and Postmodernism. CLS draws from these schools of thought like realism's skepticism of formal legal rules.
3. CLS identifies contradictions within the law between rules and standards, objective vs subjective understandings, and determinism vs free will. It argues these contradictions undermine the coherence of the legal
This document discusses debates between legal positivists and natural lawyers regarding the relationship between law and morality. It summarizes the views of key scholars in the debate. Hart argues that law is conceptually separate from morality, while Fuller argues that morality is inherent in law. Dworkin builds on Fuller's view, arguing that judges must consider principles of political morality when deciding hard cases. The document also discusses Llewellyn's legal realist view that while legal rules constrain judges, their "sense of the situation" most influences outcomes in difficult cases where precedent does not clearly line up.
The doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters".
This document discusses Ronald Dworkin's view that a judge's moral convictions should bear on their judgments about what the law is. Dworkin believes that interpreting laws often requires determining their moral content or resolving ambiguities, which involves moral reasoning. He argues against legal positivism and originalism, stating that the doctrinal concept of law is interpretive rather than merely descriptive. Dworkin also distinguishes between different stages of legal theory - semantic, jurisprudential, doctrinal, and adjudicative - and believes integrity-based moral principles provide the best interpretation of law.
RELEVANCY OF JUDGEMENT IN EVIDENCE LAW(1).pptxanjoomanver
Section 43 of the Indian Evidence Act deals with the relevance of judgments, orders, or decrees that are not specifically covered by Sections 40, 42, and 43. It states that such judgments are generally considered irrelevant as evidence unless the existence of the judgment is a fact in issue in the case or is relevant under another provision of the Act. In other words, judgments outside the scope of Sections 40-42 must directly relate to the issues in the current case or be allowed under another evidentiary rule to be admissible. The section provides clarity around the limited circumstances where other judgments can be introduced as evidence.
In this scenario, a building collapsed in the Christchurch earthquake, injuring workers inside. Evidence shows the building was poorly constructed and would not have collapsed if it met building standards.
The role of the courts is to resolve legal disputes arising from this situation by applying the legal precedents established by previous similar cases. The role of Parliament is to enact legislation to regulate building standards and prevent such problems in the future.
Case law, or common law, is developed through a hierarchical system of courts. Higher courts set binding precedents that lower courts must follow to promote consistency and predictability in legal decisions.
#2 Americans know what Subject Matter Jurisdiction is before going to court a...SueBozgoz
The document discusses the importance of subject matter jurisdiction in courts. It states that subject matter jurisdiction is essential for a court to lawfully exercise power over a case. It notes that jurisdiction can be challenged at any point in litigation and if a court lacks subject matter jurisdiction, its rulings are void. The document emphasizes that the burden is on the plaintiff to prove the court has subject matter jurisdiction and if jurisdiction is questioned, the plaintiff must provide evidence from the record to establish it.
This document discusses several mitzvot (commandments) related to fair procedures in court and justice. It examines mitzvot around resolving disputes in court rather than through force, requiring witnesses to testify truthfully, prohibiting false testimony, considering only individual responsibility, and requiring careful examination of witness testimony. The document also discusses debates around interpreting mitzvot and whether their meaning and application can change over time or remain fixed. It concludes that while understanding may change, the underlying divine teachings of the mitzvot aim to establish an eternal, just system available to all.
The document discusses the Australian legal system, including the main sources of law and the role of courts. It focuses on case law (common law) and how precedent is developed through judicial decisions. A key case discussed is Donoghue v Stevenson, which established the neighbour principle of duty of care in tort law. The summary establishes that case law is developed through judicial precedent where higher courts can overrule and distinguish previous decisions of lower courts to develop legal principles over time.
This document provides an overview of the principles of natural justice in the context of managerial decision making. It discusses key concepts like procedural fairness, lawfulness, evidence-based decisions, reasons for decisions, and accountability. It defines natural justice and its key features. The essential ingredients of natural justice are discussed as the rule against bias, the right to be heard, and the requirement for reasoned decisions. Exceptions to the right to be heard are outlined. The document also discusses the duty to act fairly, the validity of decisions that violate natural justice, and concludes with some case law examples.
This presentation covers key concepts in law including the definition of law, sources of law, precedent, ratio decidendi and obiter dicta. It discusses sources of law in different legal systems like civil law and common law. Precedent establishes principles or rules from prior legal cases that courts use to decide similar future cases. Ratio decidendi is the legal rationale for a decision while obiter dicta are non-binding additional remarks. The difference and advantages/disadvantages of ratio decidendi and obiter dicta are explained through examples.
PowerPoint presentation on the doctrine of jurisdictional error - for information purposes only - all rights reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
A COMPARATIVE ANALYSIS OF COMMON-LAW PRESUMPTIONS OF STATUTORY INTERPRETATION...Luisa Polanco
This document provides a comparative analysis of common law presumptions of statutory interpretation between South African and American law. It discusses how both legal systems share an English common law ancestry in their approaches to statutory interpretation. However, the status of interpretive presumptions has become questionable in recent times in both jurisdictions due to constitutional developments. The document examines responses to criticisms of interpretive presumptions and argues that they represent underlying legal principles and public values. It compares the most commonly cited presumptions in South African law to similar canons of interpretation used in American law. The document aims to demonstrate the potential utility of interpretive presumptions by conceptualizing them as principles that can provide determinacy in legal interpretation.
The document discusses the philosophical foundations of the general right to equality. It argues that the simple model of discrimination as injustice is deficient because it does not fit with how courts actually apply anti-discrimination rules in practice and is morally unattractive. The document proposes replacing the concept of justice with integrity and accommodating rule of law values to better justify the general right to equality in both theory and practice.
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Jurisprudence - Dworkin Theory of Adjudication
1. 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-legislativediscretion 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 fuctoto 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
__
2. 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 facto.’
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 of 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 consistentwith 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’
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.
3. 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 ensuresrespect for authoritiesthat
would otherwise be ignored.I2 Precedent, far from being explained
and justified by fairness, is opposed to fairness. if fairness means
decidingcasesaccordingto 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 escapefrom 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 servea 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.
_-
4. 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 fairnessis, 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 strongdefence 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.
17 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
entitlementswill also cause a change in the ruling political theory.
5. 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.a0The 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.21Dworkin 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.”
6. 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 entitlementsexist, 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.
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.
7. 42 THE MODERN LAW REVIEW [Vol. 43
not at all when others are mentioned.” The existence of levels of
entitlementschallengesone tenet of the rightsthesis: that adjudication
concernsthe weighingof entitlements.2a
V
We have a restatement of Dworkin’srights thesis. Dworkin is not only
describing and justifying adjudication by showing it to be based on a
weighing of entitlements.He is also developinga 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 entitlementshave in
comparisonwith 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? In the context of the overrulingpower
we do see a weighing of entitlements, judge-madeand social. Yet it is
precisely in this context of a true weighing of entitlementsthat 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 decisionsin earlier cases, how are individual right-holdersand
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. 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.
8. 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-makerto make
the same decision in all analogouscases 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
9. 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 DenningL.J. suggestedin 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 specifyingwhether 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 politicaljustificationsfor 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 SoulsCollege, Oxford.