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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas

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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-
(“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-

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.