учебный год 2023 / Precedent-C.Law

216 JUDICIAL OBLIGATION, PRECEDENT AN) THE COMMON LAW

these lines is, of course, a dominanttheme in the work of RonaldDworkin,3but it

can also be discerned,to a greateror lesser degree and in differingforms, in the work of George Fletcher,4 Charles Fried5 and Ion Fuller;6 a

interesting version of the approach, interpreting the form of adjudicationas Aristotelian corrective justice, has recently been developed by ErnestWeinrib.7

Theories which view law from this second perspective are, in essence, natural law theories that are grounded in a certain conception of adjudicationand the judicial process; in this they differ from more traditional natural law theories, which attempt to establish a systematic connection of some sort between valid positive law and moralvalue.8One might say that the non-traditionaltheories are not so much concernedwith the relationshipbetween positive law andjustice as

is to be regardedas a certainkind of institutionalizedprocedurefor attemptingto

settle particulardisputesjustly or fairly, and this requires,as I shall arguebelow, an interpretationof the theoretical nature of at least certain manifestations of positive law which differs from the interpretations of either positivism or traditionalnaturallaw theories; the process of adjudicationitself, ratherthan the positive law, is taken to be the essence of law, and I shall

accordinglyspeak of such theories as exemplifyingthe adjudicative approachto legaltheory.

Both the positivist and the adjudicativeconceptions of law can perhaps be

thought of as singling out a particularaspect of the legal process as theoretically fundamental,and then as somehow trying to accommodate all remaining legal phenomenawithin the theory of law that results. Positivism takes the essence of law to be the authoritative guidance of conduct by means of source-based,

duty-imposingrules, so that the primaryobligationof a judge is to be regardedas the interpretation,applicationand enforcementof those previously-existingrules. There is, however, no reason to suppose that such a model will fit all areasof law equallywell, and althoughI shallnot try to arguethe point in detail here I believe

3See especially Ronald Dworkin, Taking Rights Seriously (2nd ed, Cambridge, Mass, 1978), chs 2-4 (hereafterTRS).

4 George Fletcher, 'Two Modes of Legal Thought', 90 Yale LJ 970 (i98I); 'Punishment and Compensation', 14 CreightonL Rev 691 (I981).

5CharlesFried, 'The Laws of Change: The Cunning of Reason in Moral and Legal History', 9 J of Legal Stud 335 (I980).

6Lon Fuller, 'Reason and Fiat in Case Law', 59 Harv L Rev 376 (1946); 'The Forms and Limits of Adjudication',92 Harv L Rev 353 (1978).

7Ernest Weinrib, 'Toward a Moral Theory of Negligence Law', 2 Law and Philosophy 37 (I983);

'The InsuranceJustificationand Private Law', 14 J of Legal Stud 68I (1985); 'The Intelligibility of the Rule of Law', forthcoming in Monahan and Hutchinson, (eds), The Rule of Law: Ideal or

Ideology?; 'The Natural Law of Torts' (unpublishedmanuscript);'Liberty and Community in the Theory of PrivateLaw' (unpublishedmanuscript).

8The most recent attempt to develop a systematic traditionalnatural law theory is to be found in John Finnis, Natural Law and Natural Rights (Oxford, 1980).

9Cf Fletcher, 'Two Modes of Legal Thought', supra n 4, 981.

that this sort of model offers a much more successful explanationof criminallaw than it does of, say, privatecivil law.

The essence of the positivist model is the forward-lookingguidanceof conduct by means of pre-establishedstandardsof behaviour,with the theoreticalemphasis being placed upon the duty to conform to the standards,rather than upon any rights of other persons to be free from whateverharmfuleffects that the regulated conduct might generate; at least at first glance this seems to be a much more accuratepicture of the criminallaw than it is of private law, the usual concernof

which is with the determination,generallyon a retrospectivebasis, of the rights and liabilities of two parties inter se.'1Unlike the criminallaw, where the conduct of a single person comes under the scrutiny of the state, private law does not so much look to the conduct of individuals as such, as it does to the balance of

equities between two (or occasionally more than two) persons (whence, for example, the much greater prevalence of objective standards in civil than in criminal law). It thus comes as no surprise that the usual focus of adjudicative theories is on civil law, and particularlyprivatelaw, ratherthan on criminallaw."

This sort of theory places theoretical emphasis upon such civil remedies as restitution and compensatorydamages, claiming that liability to make restitution or reparation is mainly determined by historically-oriented,backward-looking principlesof justice, not necessarily source-based,that provide redressfor unjust enrichmentor wrongfulinjury;the judge's duty is then to ascertain,on an ex post facto basis, whethersuch liabilityexists.

If it is true that the two sorts of theories can be looked upon in this way as foundingthemselves on quite differentareasof law and the legal process,then it is by no means obvious that they cannot be reconciledunderthe umbrellaof a single

unifying theory. I take Lon Fuller,for one, to have been advocatinga position of this sort when he maintained,somewhat aphoristically,that both fiat and reason were necessary elements of law.12Positivism, however, at least as it has been developed by Hart and Raz, claims to be an all-encompassingtheory that sets out the foundationsof law in their entirety. The aim of this paperis to challengethat

claim of exclusivity by showing that the interpretationwhich positivism must

12'Reason and Fiat in Case Law', supra n 6. Fletcher, in 'Two Modes of Legal Thought', supra n 4, 979 ff, also seems to have in mind what might be called a 'mixed' theory of law.

218 JUDICIAL OBLIGATION, PRECEDENT AND THE COMMON LAW

place on a phenomenonthat is to be found in a numberof differentlegal systems, namely judicial law-making of the sort associated with the common law, is, in

comparison with the rival interpretationof the adjudicative approachto legal

theory,an inadequateone.

The central focus of adjudicativetheories is, as I have said, on private law, which is the heart of the common law. I shall be speaking,however, of common law reasoningas it manifests itself in civil cases generally.I shouldemphasizethat I do not assume that judges of all legal systems make law, that all judicial law-makingis like that of the common law, or that civil law must necessarilybe

judge-made. I do not argue that positivism is in every respect a wrong-headed theory, nor do I attempt to set out a full-blownalternativeconceptionof law. My aim is the more modest one of showing that there exist certain kinds of legal institutions of which positivism presents a deficient account, and that any adequate general theory of law must consequently incorporate certain of the

insights of the adjudicativeapproach.Since an argumentby counter-exampleis sufficient for this purpose, I do not attempt to make any unnecessaryclaims of

universalityor exclusivityon behalfof the adjudicativetheory.

Since much of the discussion of this paper will concern the proper interpretationof the common law doctrine of stare decisis, I begin the argument with an examinationof the logic of practicalreason and its possible applications

to the interpretationof a practice of following precedent. I then outline Raz's developmentand defence of what seems to me to be the most powerfulversionof positivism that has yet been advanced. I discuss and criticize the positivist interpretation,based upon Raz's notion of an exclusionaryreason, of both the generalconcept of judicialobligationand the specificjudicialpracticeof following precedent. Drawing upon certain aspects of the adjudicativeapproachto legal theory I then offer what I think is a more satisfactoryaccountof both phenomena, at least so far as their manifestationin the commonlaw is concerned.

An important point which should be mentioned before proceeding with the main argumentconcerns the fact that a conception of the 'function'of law has figured in the preliminary characterizations of both the positivist and the

adjudicativeapproachesto legal theory. Proponentsof both approachesroutinely make the assumption that law can sensibly be said to have a function, and both rely on that assumptionin developingparticulartheories of law.13The attribution of a functionto a social institution which is both purposiveand yet shapedby the purposes not of one but of many individuals is problematic, however, and unfortunately there are few discussions in the jurisprudentialliterature that address the question of whether such attribution is meaningful, let alone the

I3 See e.g. Raz, AL, 50o-52;Dworkin, TRS, 347-48. In 'Does Law Have a Function? A Comment on the Two-Level Theory of Decision', 74 Yale LJ 640 (i965), Dworkin argued against the proposition that law could be said to have a goal or function, but it is clear that he had in mind only those goals or functions that are forward-looking in character (e.g. the maximization of

utility).

question of what it means. A notable exception is the work of John Finnis, who argues both that a theory of law cannot help but take some position on what the point or function of law is, and that in taking such a position the theory will necessarily be adopting an evaluative viewpoint.'4 I take Dworkin to have been making an essentially similar point when he says in Taking Rights Seriously that positivism is, like his own theory, 'a politicaltheory about the point or functionof law';'5he has since elaboratedon what this sort of claim involves in his discussion

in a number of different works of the general nature of interpretationand of its

sense, correct in this regard, as it seems to me that they are, then, contraryto what has sometimes been claimed, a neutral, value-free description of legal phenomenacannot be given. It is not possibleto explorethis issue here, important though it obviously is. For present purposes I will simply assume that the attributionof a function either to law generallyor to particularlegal institutions, whether by positivist or by adjudicativetheorists, is a notion which can, one way

2.1 Raz onpractical reason

In his valuable discussion of the logic of practical reason Joseph Raz draws a formal distinction between two modes of reasoning about what ought to be done.17The first, which involves considerationof and action upon what he calls

the balanceof reasons, presupposesboth that all the relevantreasonswhich might bear on whether or not one ought to performa given action have a certainweight or strength, and that all such reasons are commensurable.A rationalagent who is acting in accordancewith this conception of practicalreason first determinesthe total weight of the various reasons that favour each alternativecourse of action, and then acts upon that alternative which has the greatest overall support. He

14 Supra n 8, ch i. Raz would seem to be in agreement with Finnis on this point: see Raz, 'The

the position that the identificationof particularlaws within a particularlegal system depends on evaluative considerations: see the discussion of what he calls the sources thesis in section 3 of

this paper,inJra.

15 TRS, 347. Cf 'A Reply by Ronald Dworkin', in Marshall Cohcn, (ed), Ronald Dworkin and ContemporaiyJurispru(dence(Totowa, NJ, 1984), 254: 'In my view any theory of law, including positivism, is based in the end on some particular normative political theory.' Finnis, unlike I)workin, does not expressly characterizethe relevantevaluative considerations as being political in nature.

i6 See Dworkin, "'Natural" Law Revisited', 34 Univ Flor L Rev I65, I65-69 (1982); A Matter of Principle (Cambridge,Mass, 1985), chs 5-7; Law's Empire(Cambridge,Mass, I986).

17 PRN, 35-48.

220 JUDICIAL OBLIGATION, PRECEDENT AND THIE COMMON LAW

acts, that is to say, on the balance of reasons, taking into account the weight of each relevantreasonin doing so. Since this accountis a formalone, no distinctions

are drawn among substantive types of reasons; the reasons that figure in the balanceof reasonscouldbe, for example,moral,prudentialor desire-based.

The second mode of practicalreason which Raz distinguishesinvolves what he calls an exclusionaryreason,which is a second-orderreasonto refrainfrom acting on a reason or on some categoryof reasons. Such reasons are,in effect, reasonsto refrainfrom acting on the balance of reasons. The idea of acting in accordance with an exclusionaryreason is, again, a formal one, and so does not depend on whetherthere ever could in fact be ajustificationfor refusingto act on the balance of reasons. Raz nonethelessclaims both that actingon the basis of an exclusionary reason is a common phenomenon,and that in at least some sorts of situations it can be defendedas the rationalthing to do. He supportsthis claim by pointing to the differentsorts of rules that persons often do in fact follow, and to the sorts of reasonsthat might be given for their doing so. Consider,for example,a rulenot to take a majorinvestment decision when one is tired or drunk.'8Adherenceto such

a rule will sometimes entail forgoing an investment possibility entirely, and so amountto a decision on the substantivequestion of whetheror not to invest. That decision has not been taken on the balance of reasons, but it may nonethelessbe

justifiable if one will be better off in the long run by always following a predeterminedcourse of action whenever it is necessary to make certain sorts of decisions under conditions of impaired rationality or incomplete information.'9 Rules of thumb of this sort can also be justifiedon efficiencygrounds;calculating the balanceof reasons involvescosts, in the formof time and effortconsumed,and one may well be better off in the long run if one avoids incurringthese costs by adhering, within a certain range of circumstances, to a preconceived plan of action.

Raz furtherillustratesthe conceptof an exclusionaryreasonby pointingto rules issued by authority.20Such rules are exclusionary reasons because they are, in effect, directions to comply with the authority'sjudgmentof what is right on the balance of reasons, rather than with one's own judgment. Compliance with authoritativerulescan, says Raz, bejustifiedin a numberof ways. One might have reasonable grounds to believe, for example, that the authority is wiser or more knowledgeablethan oneself. Alternatively,it might requireauthoritativedirection to coordinate in an effective way the activities of the various members of a

group.21This is not to say, of course, that one necessarilyhas a moralobligation to comply with authoritativerulings simply because the coordinationto which they give rise has social value (although, as Raz points out, the claim that coordination does have value figures in many of the classical justifications of

i8 Ibid, 37-38.

r9 Ibid, 59-62.

20 Ibid, 62-65.

2I But see Leslie Green,'Authorityand Convention', 35 Phil Quart 329 (I985).

political authority).22Raz's claim here is simply that, given certain reasonable

backgroundassumptions,it can be rational to comply with authority.

Raz recognizes that exclusionary reasons have a dimension of what he calls scope,23which is simply to say that the range of first-orderreasons that are pre-emptedby an exclusionaryreasoncan vary. Thus an exclusionaryreasonneed not be absolutely exclusionary. Even the standards of conduct imposed by the criminal law, which are archetypal instances of exclusionary rules, are not unlimited in scope; while Raz does not discuss these particularexamples, the defences of necessity and duress can plausibly be interpreted as involving a recognitionthat action which is taken on the basis of a certainvery limited range of reasons falls beyond the proscriptive reach of the criminal law. It s]houldbe

emphasized that the concept of scope is, like that of an exclusionaryreason, a formalone; it does not tell us, in and of itself, how the particularrangeof excluded reasonswhich is definedby these defences is to be justified.

2.2 Practical reasonandprecedent

Raz's distinction between acting on the balanceof reasons and acting on the basis

of an exclusionaryreason is a powerfulconceptualtool in the analysisof practical reason. It yields a precise and illuminatingcharacterizationof what a ruLleis, for example-viz an exclusionaryreason of general applicationwhich is also itself a first-orderreason to perform(or refrainfromperforming)some action24--andthis characterizationcan be employed,in turn, to clarifythe foundationsof positivism. It is important to note, however, that Raz's distinction is not exhaustive of the possible modes of practical reason. To see why this is so, it will be helpful to concentrateon the particularpracticalphenomenonthat is of interesthere,namely the common law doctrineof stare decisis. In what ways could a previousjudicial decision figure in a later decision in such a way that a court could be said to be 'following precedent'?One obvious possibility is that the priorcase is regardedas constituting, or as somehow giving rise to, an exclusionaryrule in the sense just discussed. This, as we shall see, is Raz's own positivistic interpretation of precedent. An alternativeconception would regard a court as being bound by a previous decision, itself decided on the basis of a balance of reasons, only until such time as it was convincedboth that the balanceof reasons had been wrongly assessed on the prior occasion, and that the correct assessment in fact led to the opposite result. A court could not departfrom a previousdecision, in otherwords, unless it had a positive reason for doing so. On this conception of precedent, which I will call the weak Burkeanconception,25it obviously takes very little to

22Raz discusses this and related issues in AL, ch 12. He outlines his own (limited) justification of political authority in 'Authorityand Justification',14 Phil and PubAff 3 (1985).

23PRN, 40.

24Raz calls exclusionaryreasons that are also first-orderreasonsprotectedreasons:AL, I8.

251 use the term 'Burkean'not in order to invoke the political philosophy of Burke,but simply to convey the idea of a presumptionof some sort in favourof previously-acceptedpractices.