учебный год 2023 / Precedent-C.Law

sufficiently strong reformulationof the principles underlyingthe proposition to prevailover the formulationthat had previouslybeen accepted;the approachcan thus account for a fact that seems to lie beyond the explanatory reach of a purely custom-based theory, which is that changes in the common law do not simply happen but are typically the by-productof a reasonedjudicial argument. The strong Burkeanapproachalso differs from a custom-basedtheory insofar as

it recognizes that judges do not simply identify particular propositions as belonging to the common law through reliance on a crude and undifferentiated conception of general acceptance,but rather assign differentrelative weights to different propositions as a function of a number of more or less independent factors concerning, inter alia, how and how often the proposition has been

employedin previousjudicial decisions.

It is worth pointing out that the differences between a strong Burkean conception of precedent and an explanation of the common law in terms of custom also serve to deflect certain criticisms that have been made of Dworkin's

account of how principles figure in legal argument, as that account was developed in 'The Model of Rules I'. Dworkin maintained that we would go

about backing up a claim that a given principlewas a legal principleby pointing to certain kinds of 'institutional support' that it enjoyed,'29the most notable instance of which would be the fact that it had been relied upon in earlier

judicial decisions. Raz replied that such institutional support was really just a sign of general customary acceptance among the judiciary,which indicated that principles of which this was true possessed a social source that was compatible with positivism after all. (Raz further allowed for the possibility that a legal system might also contain non-ultimate principles that could be identified as

pointed out in 'The Model of Rules II' that courts frequentlytreat principlesas binding even in cases where they are given judicial expression for the first time,'13which shows that institutional support cannot be a necessarycondition

for a principle to be a legal principle. But such support is not a sufficient condition either, since, as Dworkin had already made clear in 'The Model of

Rules I', it is just one of the factors to be taken into account in determiningthe

strong change in the way that a court perceives the balance of reasons will lead it to conclude that a given principle should not be taken into account in a particularlegal context at all, even though the courts had themselves previously

regardedit as being applicable.

In a legal system based on a strong Burkeanconceptionof precedentit would in fact be misleading to speak of any kind of generaltest for establishingwhetheror not a given principle is a 'legal' principle; institutional support in particularis simply a reason for attributingwhat amountsto an additionalincrementof weight

to the (moral) weight that a principle is perceived as independentlypossessing.

(More accurately,extra weight is effectively attributedto a set of principles,and only to the extent that they are collectively taken to justify a particularlimited

range of earlier decisions.) It is true that Dworkin does sometimes speak in this misleading way in 'The Model of Rules I', but it seems to me that that is a superficialand inessential featureof the theory of adjudicationwhich he presents there.133 The notion of institutional support clearly coincides at a more fundamentallevel with the effect of second-orderweighting principlesin a strong Burkean model of judicial reasoning; for the reasons alreadygiven, it therefore cannot plausibly be construed as an indication of general judicial acceptance amountingto an instanceof custom.

4.6 The constructionof statutes

Courts in common law jurisdictions follow their own previous decisions concerningthe constructionof statutoryandconstitutionalprovisionsin much the same way that they do when common law precedentsare in play, and in fact some of the cases that I cited earlierin describingthe doctrineof precedentfell into the first ratherthan the second category. No theoreticaldistinction is drawnbetween the two types of situation (althoughjudges in England,at least, clearlygive more weight to a decision if it involves the construction of a statute).'34One might thereforewant to ask whetherthis univocalcharacterof stare decisisis in any way at odds with the theoretical distinction argued for in section 4.2 between the status of legislativeenactmentsand the status of propositionsof the commonlaw.

This is not the place to try to develop a full-blown theory of statutory construction,but the answer that I would want to give to the questionjust raised can be briefly sketched out in the following way. The consideration of moral principlesin common law reasoning leads to the tentative judicialformulationof

133 Dworkin's own elaboration of the idea of institutional support in 'The Model of Rules 11'

involved the idea that 'a principle is a principleof law if it figures in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question': TRS, 66. This way of explaining institutional support, which Dworkin

developed at much greater length in 'Hard Cases', amounts in my view to a departurefrom the insights of 'The Model of Rtules I' for the reason that it seems to require acceptance of an

exclusionary model of the common law.

134 The result is, where overruling is concerned, Paterson's 'construction criterion' (supra n 90, 156). See e.g. Jones v Secretary of State for Social Services, supra n 90o,966 per Lord Reid, 995 per Lord Wilberforce, and 1024 per Lord Simon; Vestey v IRC 19801] AC 1148, 1187 per Viscount Dilhorne, and I196 per Lord Edmund-Davies. As Lord Edmund-Davies noted in the latter case, however, 'there can be no absolute veto against overrulingdecisions turning on the construction of statutes or other documents-or, indeed, any other type of decision'.

256 JUDICIAL OBLIGATION, PRECEDENT AND THE COMMON LAW

specific dispute-settling standards,as enunciated in propositionsof the common law. Such standardscan be thought of as attempts to articulatethe moral rule which properlyapplies to the sort of dispute in question. Instances of statutory construction,on the otherhand,can be thought of as attemptsto articulate,not an independentmoral rule, but rather a rule which is taken to have been createdby an act of legislation. The enacted rule cannot, of course, simply be equated with the particular(canonical) text which the legislature adopted; the rule must in effect be constructedfrom that text by means of interpretiveprincipleswhich are, as Dworkin has rightly insisted, principles of political morality.'35The strong

Burkeanconception of precedentcan then be thought of as applyingto previous attempts to state, in accordance with these principles, the rule which the legislature'really'enacted,'36and so can be seen to be operatingin this context in very much the same way that it does with respect to prior attempts in common law cases to state an independentmoralrule.

The univocal nature of stare decisis is thus accounted for, but without

collapsing the theoretical distinction between statutory enactments and propositionsof the commonlaw: the formerrepresentrulesthat have been created by particular legislative acts, whereas the latter represent direct judicial approximationsof the requirementsof justice and other relevant dimensions of morality. Furthermore,while the need for interpretinglegislative enactments is unavoidable,this does not preclude treating the provisions of, say, the criminal law (including,incidentally,those derived from the common law as well as those from statute) as exclusionaryguides to conduct of very much the sort which are described in Raz's version of positivism. Judicial attention to the basically exclusionaryand action-guidingcharacterof criminallaw accountsfor the concern evinced, for example, in the 1966 Practice Statement for 'the especial need for certainty'in this area of the law. It is also consistent with the fact that one of the

most important principles of political morality which is applicable to the interpretationof criminal statutes is that they are to be construed strictly, in favour of the subject. Adherence to this principle means that much potential uncertaintyis eliminatedconcerningwhat conduct on the part of an individualis being statutorilyrequiredor proscribed,therebymakingit easier for him to guide his actions in accordancewith what the legislaturehas enacted.Considerationsof this sort also serve to explain the asymmetrywhich can be seen to operate in the doctrine of precedent in criminal cases.'37 Finally, a judicial concern with the action-guiding character of legislative provisions generally, and not just those which can be characterizedas criminallaw, seems to underliethe greaterweight

135See e.g. Dworkin,A Matter of Principle, supran I6, chs I, 2; Law's Empire, supra n I6, ch 9.

136Cf Dworkin, Law's Empire, supran I6, I6-17.

137See e.g. Merriman v DPP 119731AC 584, 605 per Lord Diplock: 'JAlthough the Criminal Division of the Court of Appeal is not so strictly bound by its own decisions as is the Civil Division, its liberty to depart from a precedentwhich it is convinced was erroneousis restricted to cases where the departureis in favourof the accused.'