I. GENERAL
As a general idea “precedent” is not restricted to
juristic situations or the determination of legal contro-
versies. Human conduct in general is largely based
upon past experience. Thus precedent serves not only
as an aid to resolve instant problems by reference to
past practice but also is used consciously or uncon-
sciously to direct the course of legal or other social
developments. Psychologist, sociologist, philosopher,
and lawyer, whose paths may diverge on many issues,
are here on common ground. Resort to precedent an-
ticipates the evolution of ideas and theories regarding
it. Hoebel, a social anthropologist writes:
Regularity is what law in the legal sense has in common
with law in a scientific sense. Regularity, it must be warned,
does not mean absolute certainty. There can be no true
certainty where human beings enter.... In law, the doc-
trine of precedent is not the unique possession of the Anglo-
American common law jurist.... [P]rimitive law also builds
on precedents, for there too, new decisions rest on old rules
of law or norms of custom, and new decisions which are
sound tend to supply the foundations of future action
(Hoebel, p. 28).
The psychological motivation to accept—at first un-
questioningly—the validity of the conduct patterns of
the past has been noted by many. Thus F. Pollock,
of an older generation, thought it “... not unlikely
that this is the manner in which the ideas of precedent
and custom are formed. What has been done before
is done again, not because it seems the best thing to
do, but because there is an unreasoning tendency to
do it” (Pollock, p. 165). K. Llewellyn, who concludes
that “case law in some form” is found wherever there
is law and that precedent is operative even before the
idea is consciously recognized, asserts: “Towards its
operation drive all those phases of human makeup
which build habit in the individual and institutions in
the group” (Llewellyn, “Case Law”).
If there is a general natural inclination to regard
past experience and decisions as guides to future action,
lawyers more than other groups perhaps have used and
elaborated the concept of precedent in many ways, in
many legal systems, and in many epochs. Juristic the-
ory and judicial practice may often seem to conflict—
sometimes for quite creditable reasons. Though prece-
dent may first have been recognized and accepted
through irrational or unreflecting attitudes, the idea
or concept of legal precedent has been supported by
a variety of cogent arguments. In particular it has been
said from Aristotle or Chaim Perelman to be a basic
principle of the administration of justice that like cases
should be decided alike. Such at least is the equality
of “formal” justice. “The rules of justice,” says
Perelman, “arise from a tendency natural to the human
mind to consider as normal and rational... behaviour
in conformity with precedents” (Perelman, p. 86).
Without the guidance of precedent based on the accu-
mulated wisdom of the past and declared as the basis
of decision by the authorized oracle, whether judge
or jurist, men, it is said, would have no certainty of
the law or confidence in equality before an evenhanded
justice. Precedent assists the litigant or his adviser to
assess the extent of his rights and duties and restricts
the scope of litigation. Nor is it the party litigant or
accused alone who rejects the idea of arbitrary justice.
The judge or other lawgiver, unless he claims to speak
as the medium of the gods with access to supernatural
revelation or as an autocrat, prefers as a rule to show
preexisting legal justification for the decision or sen-
tence which he pronounces. Judges of lesser ability and
experience may be fortified by the opinions of the most
eminent. Moreover, in the busiest courts where most
justice is administered, the machinery would break
down if all judges took it on themselves to reexamine,
in disregard of precedent, each aspect of every case
before them. It is not indolence alone that suggests
conformity to established practice. If justice requires
that like cases be decided alike, this implies equality
before the law. Yet, no more than two men's finger-
prints are identical, are all the facts of two legal pro-
ceedings. The law itself selects—either by general rules
or by the individuation of equity—what facts are rele-
vant to exclude precedent. J. Stone comments: “Unfor-
tunately, as lawyers have come to see, the question
whether an earlier case
is a 'precedent' for the present
situation depends on an assessment of 'essential simi-
larities' and 'differences' between the two” (Stone, p.
328).
Thus the law itself does not treat all persons as
“equal”—for benefit or detriment. The young, the
mentally ill, the female, the foreigner, the professional
man, and the law officer are not necessarily weighed
on the same scales. Changes of social mores or eco-
nomic circumstance and the passage of time itself may
supply good reasons for rejecting or distinguishing
earlier precedents and developing the law by inter-
stitial judicial lawmaking. Some systems are more rigid
than other in veneration of past decisions. To some
the idea of legal precedent is almost abhorrent.
A propensity to decide according to precedent has
been criticized on the grounds that true justice is pre-
cluded when before argument or evidence one scale
of the balance is already weighted by a previous deci-
sion on similar facts. Hence, as J. P. Dawson, a leading
apostle of case law, has shrewdly discerned, “[T]he
German for 'precedent' is Präjudiz. Its primary mean-
ing is 'prejudgment' but it also verges on 'prejudice.'”
A similar word (praeiudicia) was occasionally used by
Roman jurists as a description of prior court decisions;
as préjugés with the same meaning it appeared in
pre-revolutionary France. Whether taken as 'pre-
judgment' or 'prejudice' it carries an implication that
is distinctly unpleasant; it suggests that minds have
been at least partly closed” (Dawson, p. xv). Philippe
de Beaumanoir indeed argued that a judge who had
participated in the decision of a case should be dis-
qualified on grounds of bias from ruling in the future
on another similar matter. Perhaps, however, the main
argument which has been mounted against legal
precedent based on case law is that decisions should
always be based upon laws already declared by legisla-
tive power and should not be restricted by reference
to decisions of judges on particular cases. It is, of
course, fallacious to assume that any legal system has
been or could be so formulated as to cover completely
all legal relationships and situations. Moreover, the
meaning of legal rules, whether contained in codes,
juristic writings, or case law can only be manifested
through a continuous process of interpretation, which
itself tends to become guided by precedent.
Whatever the strength of arguments for and against
doctrines of legal precedent in the abstract, in fact
the doctrine is found to apply generally, though with
differences in rigidity of application and of theoretical
rationalization. A broad distinction may be made be-
tween systems where precedent has persuasive force
and systems in which adherence—related to an hier-
archic system of courts—is regarded as obligatory.
Precedent is a useful legal tool; but misuse can result
and has resulted in rigidity and injustice. Anthropolo-
gists have demonstrated that laws of precedent operate
in simple societies, and legal historians have traced the
application of case law in inter alia Semitic and Jewish
law, under the code of Hammurabi, in Islamic law,
in the systems of China and Japan before the impact
of Western influence. For the Western world the legal
traditions which have particularly molded attitudes to
legal precedent are derived from Roman and English
law.
