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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas

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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

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
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
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-

Stare decisis is at least the everyday working rule of our
law. [T]he work of deciding cases in accordance with prec-
edents that plainly fit them is similar to deciding cases in
accordance with a statute. It is a process of search, compar-
ison and little more.... The sample nearest in shade
supplies the applicable rule. But, of course,... no judge
of a high court, worthy of his office, views the function of
his place so narrowly.... It is when... there is no decisive
precedent, that the serious business of the judge begins. He
must then fashion law for the litigants before him. In
fashioning it for them, he will be fashioning it for others

(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.