University of Virginia Library

LEGAL PRECEDENT

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:

(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.

II. ROMAN LAW—THE CIVIL LAW SYSTEMS

Woldemar Engelmann as late as 1938 wrote:
“Precedent-justice is not only illogical but pernicious,
because it interferes with the wiser conclusion of a later
judge through the 'prejudice' of the earlier judge and
serves the comfort of the indolent judge.... A mark
of Rome's high legal culture is its systematic prohibi-
tion” (Engelmann, p. 29). This exaggerated statement,
which is in fact mistaken, focusses sharply what has
often been claimed as the main distinction between
the Roman and English legal traditions, but stresses
usefully a difference in attitude towards precedent
which for centuries characterized these two traditions.
If development of English law, built up from precedent
to precedent, depended upon the preeminence of a
small centralized professional judiciary assisted by a
technically expert bar, legal development in Roman
law was mainly the contribution of legislator and jurist
using a different technique of precedent. Roman law
owed its excellence to the work of its jurists.

Until the middle of the third century A.D. under
Roman procedure an action usually took place at two
stages, neither of which was before a professional
judge, but before respected and responsible laymen
who sought expert advice. At the first stage the parties
settled with the praetor the issue to be tried and at
the second the iudex (“judge”) actually tried the case
and pronounced judgment.

In early Roman law an aristocratic priesthood had
exercised a monopoly of legal knowledge, and gave

opinions (responsa) on matters of procedure and inter-
pretation. Their opinions, of which copies were kept
in the archives of the pontifical college, were binding
on the magistrates. These opinions no doubt provided
precedents for the pontiffs themselves. About the third
century B.C., however, the pontifical monopoly was
breached when a number of lay jurists appeared, shar-
ing with the priests access to legal lore. Secularization
of the role of jurist was, however, a gradual process
and for a period many experts on legal matters con-
tinued to be members of the aristocratic priesthood,
who in any event claimed no supernatural or spiritual
gifts. The lay jurists possessed no formal authority and
received no remuneration for their services, but by
virtue of their high social status and personal prestige
as experts, eventually superseded the pontiffs as inter-
preters of secular law. Under the formulary system
(introduced about 150 B.C.) a party seeking redress was
allowed to submit a draft formula embodying his claim
for the praetor's approval, and would seek a jurist's
advice in the drafting. In deciding whether to allow
a novel type of formula, the praetor was accustomed
to take the advice of the jurists on his council. The
latter were thus enabled indirectly through the praetor
to extend the scope of legal remedies, and thus make
new law. They also exercised their influence through
the medium of the praetor's Edict. On entering on his
year of office a praetor issued an edict in which he
proclaimed the policy in granting actions which he
intended to follow. He was morally, and later legally,
obliged to implement its terms, though he was not
debarred from granting an action not contained in the
edict. In drawing up his edict the praetor was again
advised by his council of jurists, and, as he was not
bound to follow the policies of his predecessors (until
the Edict was given permanent form about A.D. 130)
the jurists had scope for cautious and experimental
development of the law, giving weight to the claims
of continuity and innovation.

At the trial stage the judge (who like the praetor
was an eminent layman) could also seek the advice of
a council of jurists or seek an opinion from a jurist
of reputation. The class of lay jurists, however, held
themselves available to give gratuitous advice to all
who sought it. Their opinions (responsa) in due course
were published and they engaged in legal writing based
on the style of responsa. Augustus granted to certain
patented jurists the right to give opinions by the Em-
peror's authority and these carried special weight. In
due course the opinions and writings of the jurists
(responsa prudentium) were recognized among the
sources of written law, and were cited as authority.
The jurists were, on the whole, content to give solutions
based on particular problems without elaborate theo
retical analysis and reference to first principles. Though
the work of the jurists was often in effect comparable
to that of English “case lawyers,” they did not cite
judicial decisions but juristic opinions, and were not
dependent on the actual adjudication of disputes to
develop the law. The learned men, rather than the
judges, were the elite or honoratiores of the Roman
system, a factor which has influenced attitudes in the
successors to Rome's legal heritage.

When, in the Roman system, a professional judiciary
was established it was too much overshadowed by
imperial authority to introduce an effective system of
precedent by judicial decisions, and in A.D. 534 Justin-
ian's corpus Juris Civilis was promulgated. Justinian
conceived of this as a “complete code of laws without
contradiction or imperfection,” and arrogated to him-
self the authority of interpretation. He laid down (C
7.45.13) that “decisions should be rendered in accord-
ance, not with examples, but with laws.” This pro-
nouncement, misconstrued in its emphasis and impli-
cation, was often seized on after the “reception” in
Europe of the Roman Law (from the twelfth century)
to disavow judicial precedent as a source of law, though
in reconciling Roman law with custom, judicial ac-
ceptance of custom was recognized. In Italy by 1500
the judges, to protect themselves against accusation of
deciding wrongly, relied on the advice of legal scholars,
the successors to the jurists of classical Roman law. In
Germany, despite a considerable contribution of the
judges before and after the reception, and many col-
lections of judicial decisions, primacy again was for
centuries secured by the learned men who professed
the systematized Romanistic law and were not gener-
ally disposed to recognize judicial decisions as a source
of law unless they had the effect of declaring “custom.”
The German Civil Code (Bürgerliches Gesetzbuch or
B. G. B.), which came into force in 1900, was highly
conceptual in structure and was expected to restrict
the judicial role to that of interpretation rather than
that of creating and developing law by decision. How-
ever, the duty to interpret “the general clauses” in the
code and the pressure of unforeseen circumstances
following two wars compelled the judges to take a
leading part in developing German law by judicial
decision. Extensive use has been made of interpretation
of the code by analogy to develop the law. It seems
now to be widely accepted that German judges can
and do make law, though, as in the United States, there
are differing views as to how far the judiciary should
take the initiative in introducing new trends of moral
attitude or social policy. Though there are differences
in attitudes and techniques, J. P. Dawson concludes
that there is a close resemblance between the adminis-
tration of case law in Germany and the United States,

and that “all the devices for close and critical reading
of judicial opinions are known and used in Germany”
(Dawson, p. 505). Thus, for example, cases may be
narrowly distinguished on their facts if a court does
not wish to follow a policy suggested in an earlier
decision. However, subject to possible qualifications
with regard to precedents of the Bundesverfassungs-
gericht (“Constitutional Court”), in Germany no higher
court's decision in theory binds a lower court in a
subsequent case, and no court is precluded from over-
ruling its own decisions. In practice, however, decisions
of the Bundesgerichtshof or of an appeal court will
be followed by lower courts, while the form of judicial
opinions and an elaborate reporting system facilitate
the use of judicial precedents. Though hitherto deci-
sions have been collegiate, a bill was prepared in 1968
with the object of recognizing opinions of individual
judges and allowing dissents in the Constitutional
Court. It follows that German ideas on precedent have
undergone considerable transmutation over the cen-
turies.

In France before the Revolution, though the law was
largely Romanized, its administration differed substan-
tially from the patterns of Italy and Germany. The
highest courts (Parlements) played a considerable part
in developing private law, but, though the judges
themselves sought to achieve consistency through
precedent in their own decisions, their motives were
not readily accessible for practitioners. The Parlements
were empowered by arrêts de règlement to make judi-
cial pronouncements which were essentially legislative
in character, and, because the Parlements tended to
pursue reactionary policies, powers of judicial law-
making were regarded with hostility after the Revolu-
tion. Article 5 of the Code Napoléon forbids judges to
pronounce decisions so as to make general rules or
precedents for the future. It was intended to abolish
decisions made by judges as a source of law, not as an
echo of Justinian but because of distrust of judges based
on French experience. However, while academic
writers emphasized the supremacy of the written law
of the codes, law reports multiplied. Moreover, “While
ostensibly disclaiming lawmaking power, the judges
assumed it, while adopting a cryptic style of opinion
writing whose main purpose was to prove their dutiful
submission, but which in fact left them more free”
(Dawson, p. 431). Still, though counsel in France rely
greatly on precedents (which are extensively reported)
the court in theory always applies the legal rule de-
rived from the appropriate code, and the highest court
(Cour de Cassation) refrains from citing previous cases
to avoid the appearance of violating Article 5. Theo-
retically a French judge is entitled to ignore the previ-
ous decisions of other courts and of his own, but in
fact judges tend to adopt the interpretation of courts
higher in the hierarchy unless for special reason, and
will also tend to follow a course of decisions in courts
of coordinate jurisdiction. Judges will also be influenced
by the attitude of legal scholars to particular decisions.
Courts normally follow their own previous decisions,
but all, including the Cour de Cassation, may reject
a prior ruling on grounds, for example, of social or
economic change. Thus the words of the code may be
reinterpreted from time to time.

The French pattern is, on the whole, typical of
Western Europe, because of the wide dissemination of
the Code Napoléon, but Spanish law (which has influ-
enced South America) provides that a lower court is
obliged to follow a principle expressed in two judg-
ments of the highest court. European civil law jurists
regard this rule as unsound and calculated to result
in casuistic distinctions in cases where the lower courts
should anticipate that the highest court would not itself
any longer follow the principle formerly enunciated.
In civilian systems, generally, decisions are pro-
nounced by a collegiate court and dissenting opinions
are excluded. Moreover, the precedent is a proposition
stating a legal principle, while Anglo-American tech-
niques often leave this to inference closely linked to
findings in fact. The primary technique of judicial
decision in civilian systems is deductive and in Anglo-
American systems inductive.

III. ANGLO-AMERICAN COMMON
LAW SYSTEMS

English law is rightly regarded as the system which
has given greatest veneration to legal precedent.
Founded neither on the received Roman law nor on
a code, the system itself was built up precedent by
precedent from the Middle Ages by a remarkably small
centralized judiciary working intuitively with a re-
stricted number of practitioners at the bar. Previous
decisions provided the means for building up the com-
mon law of England from other customs of the realm
and was closely linked to procedural forms and tech-
niques. Though the doctrine of precedent in a general
sense is of ancient origin in English law, the doctrine
of strict precedent (stare decisis) whereby a single
decision may have binding force is more modern.

The common law was evolved by the fiction that
the whole law was to be found in the bosoms of the
judges (in gremio iudicum) and was conjured up from
that repository as occasion required. Naturally there-
fore from the twelfth century onwards the courts were
referred to earlier decisions. Bracton, who had access
to the original plea rolls (the court records), cited in
his writings many cases on a selective basis and accus-
tomed lawyers of the thirteenth and fourteenth cen-

turies to discuss them. The Year Books (ca. 1260-1535)
were the earliest available law reports and, concen-
trating on procedural matters rather than on decided
cases, supplied an account of accepted professional
practice. The lawyers of this period did not evolve
theories of precedent, though they attached impor-
tance to decisions recalled by judges and pleaders.
They did not feel themselves compelled to perpetuate
the error of a precedent which seemed clearly wrong.
Until an orderly hierarchy of courts was ordained and
until reliable law reports became available covering
the facts in issue, counsels' arguments and judgments
thereon, a strict doctrine of precedent could not de-
velop, and from the early seventeenth until the mid-
eighteenth century English law was poorly served by
private reporters. Moreover, until the late eighteenth
century the highest court of appeal, the House of
Lords, forbade reporting of its decisions. In C. K.
Allen's words: “To sum up the position at the end of
the eighteenth century: the application of precedent
was powerful and constant, but no Judge would have
been found to admit that he was 'absolutely bound'
by any decision of any tribunal” (Allen, p. 150). In
1833 Chief Justice Park stated clearly the view that
rules derived from precedents must be followed unless
“plainly unreasonable” for the sake of conformity,
consistency, and certainty. Jeremy Bentham and John
Austin had already exposed the “declaratory” theory
of judicial precedent in England, i.e., that the law
reposed in gremio iudicum, but while Bentham de-
nounced the “retrospective legislation” of judges,
Austin criticized them for being too obsequious to past
authority.

Private law reporting improved in the later eight-
eenth century and eventually the current semi-official
series of Law Reports was instituted in 1865. The
Judicature Acts 1873-75 ordained a hierarchy of courts
ascending from the High Court, to the Court of Ap-
peal, to the House of Lords. Thus the whole apparatus
for a strict doctrine of precedent was assembled, the
decisions of courts higher in the hierarchy binding
those inferior, and in the alleged cause of certainty
the House of Lords in 1898 held itself bound by its
own previous decisions. Probably because of the re-
sulting rigidity, English jurists have since engaged in
extensive and conflicting casuistic writing seeking to
determine the binding element or proposition of law
(ratio decidendi) in a precedent, as contrasted with an
incidental judicial statement (obiter dictum). In fact the
“general rule” of a precedent may be construed subse-
quently either broadly or narrowly according to
whether the court considering it wishes and feels free
to restrict or develop the underlying judicial policy.
Though theoretically many a precedent could be “dis
tinguished” because its “material” facts differed from
those of the instant case, the handling of case law is
an art partly learned in the course of practice and
partly dependent on judicial temperament and placing
in the judicial hierarchy. “Notwithstanding all the
apparatus of authority, the judge has nearly always
some degree of choice”—at least in the higher eche-
lons. On the whole, nevertheless, English judges have
been more anxious to preserve “certainty” through
precedent than have judges of most other systems in
the Anglo-American tradition. R. Cross, the leading
modern English writer on precedent, declines to regard
the distinction between ratio decidendi and obiter
dictum as “entirely chimerical” in English law and
concludes that to accept the views of Judge Jerome
Frank and the American realists would be to impute
hypocrisy to English judges who follow, while disliking
“the rule” laid down by earlier cases. The “realists”
by way of contrast with the stress placed by orthodox
English judicial theory on the binding force of ratio
decidendi emphasize the liberty of judges to disregard
the views of their predecessors, though they may pay
lip service to precedent. In 1966 the Lord Chancellor
announced that the Lords of Appeal in Ordinary rec-
ognized that too rigid an adherence to precedent could
result in injustice and restrict unduly development of
the law. Accordingly they declared that in the future
they would not be strictly bound by their own earlier
decisions. This relaxation resulted from the initiative
of Scots lawyers whose system, though not derived
from English law, is subject to the appellate jurisdiction
of the House of Lords. Subsequently, in 1968, the
English Court of Appeal held that it would be bound
by its own previous decisions. The Court of Session
in Scotland is not so fettered. Scots law, like other
systems derived from Roman law but influenced by
Anglo-American law—such as those of Ceylon,
Quebec, Louisiana, and South Africa—reflects that
influence by accepting a doctrine of stare decisis (the
authority of a single, binding precedent) similar to, if
more liberal than, that of English law.

Courts of the United States, while accepting the
principle that precedents should normally be followed,
and in general using the same techniques and pro-
nouncing opinions of the same general pattern as those
of English judges, have introduced greater flexibility.
American law, like English law and unlike civilian
systems in general, distinguishes between the proposi-
tion of law (ratio decidendi) for which a precedent is
authority and obiter dicta, and, moreover, recognizes
the doctrine of stare decisis. Eugene Wambaugh, the
American jurist, writing at the end of the nineteenth
century, propounded one of the most important
theories for isolating the true ratio decidendi of a case.

Judge Benjamin N. Cardozo has observed that
though in exceptional cases precedents may be disre-
garded,

(Cardozo, pp. 20-21).

The Supreme Court of the United States and the
appellate courts of the different states do not regard
themselves as absolutely bound by their own previous
decisions, and in certain exceptional cases lower courts
may not follow a precedent of a higher court. The
multiplicity of jurisdictions, and consequently of law
reports, has resulted in a system of law school training
based on the detailed study of cases from different
American jurisdictions with a view to determining the
best solutions to problems. Close attention is paid to
the facts of cases in their sociological and economic
context, and the creative role of the judge is stressed.
Judges and legal scholars alike have appreciated realis-
tically the judicial function, and have shed many in-
hibitions of English lawyers. Thus the “problem ori-
ented” American judge will take into account trends
of decision in other United States jurisdictions and
apply principles of legal philosophy much more readily
than his English counterpart. In certain sectors of the
law, such as commercial law and property law, courts
may be more reluctant than in other sectors to innovate
by departing from precedent.

Where constitutional matters are in issue the Su-
preme Court has, most noticeably in recent years,
declined to be strictly bound by its own previous deci-
sions. Amendment of a constitution is not readily
secured, and if the constitution has been previously
interpreted in different social and economic conditions,
public policy may make expedient judicial reinterpre-
tation. The constitution itself remains fundamental. To
a limited extent American courts have used the tech-
nique of “prospective overruling” by declaring that a
precedent shall be reversed for the future but not as
affects the legal relations of the litigants before the
court. Strictly it would seem such a pronouncement
should not be a binding precedent in a similar future
case, but the technique has secured the approval of
the Supreme Court.

IV. CONCLUSION

The idea of precedent is not restricted to the citation
of authority within a single jurisdiction or nation-state.
Systems sharing the same jurisprudential origins—e.g.,
the Napoleonic Code or the English Common law—
may invoke each other's precedents; and there is au-
thority in the United States and the Netherlands for
the courts' adopting a “harmonizing construction” of
domestic law by using comparative techniques to as-
certain the solutions to a particular social problem of
foreign legal systems of various types. Moreover, deci-
sions of international courts and tribunals have persua-
sive authority in public international law and the Stat-
ute of the International Court of Justice (article 38)
accepts national judicial decisions as a subsidiary source
of law.

In sum, legal precedent in its conservative and crea-
tive aspects is encountered in all legal systems, though
in different forms. It has been said: “Tradition and
Conscience are the two wings given to the human soul
to reach the truth” (T. M. Taylor, Speaking to Gradu-
ates, Edinburgh, 1965). Both are implicit in legal prec-
edent. The judicial function is not or should not be
that of an animated index to the law reports, nor is
justice by computer a tolerable thought, however
helpful computers may prove to be in tracking avail-
able authority. Julius Stone, who has written exten-
sively on all aspects of precedent, echoes in that con-
tent the injunction of the father of cybernetics, Nor-
bert Wiener, “Render unto man what is man's, and
unto the machine only that which is the machine's.”

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(Englewood Cliffs, N.J., 1957).

T. B. SMITH

[See also Casuistry; Certainty; Equality; Equity; Justice;
Law, Ancient Roman, Common.]