1. The Relevance of Judicial Precedents

We have been looking at one legal institution which is regarded as peculiar to the common law⁴⁰⁰ and at another legal concept that is taken to be characteristic of the civil law.⁴¹’¹ In both cases there is more common ground than is usually assumed.

^w Goode (n. 366) 7.

Zweigert and Kotz (n. 90) 37. Zweigert and Kotz use this example to substan­tiate the same proposition: 'we must not too readily infer that it is only the Conti­nental systems, with their tendency to abstraction and generalization, which develop grand comprehensive concepts.... I hings may be the other way round.' ⁴⁰⁰ Supra VII. *·« Supra VIII.

⁴⁰² For a representative statement, see Wolfgang Fikentscher, Methcden des Recltls hi vergleicheitder Darslellttttg, ii: Angla-ameriknnisclier Rechtf&reis (1975), 115 ff. and passim; more recently see, e.g., Michael Reinhardt, Konsisteule Jurisdiktion: Grundlegitng ci tier verfasstt ngsrecht lichen Thenrie der rechfsgeshiltendeti Rechtsprechung (1997), 227, 260. The phrase 'the European method' is taken from techniques of developing the law from case to case. The supremacy of judge-made, unwritten law 'is imprinted deep in the English lawyer's soul'.⁴⁰³ Similar stereotypes still largely prevail about the continental legal methods.

The reality, however, is different. Even in countries with a civil code, precedents are of very considerable importance today.⁴⁰⁴ In Germany, they constitute an independent source of law,⁴⁰⁵ albeit one of only 'outweighable force'.⁴⁰⁶ Modem legal methodology is thus about to leave behind certain positivistic constrictions which have their origin in late eighteenth- and nineteenth-century scholarship. Char­acteristic of the older ius commune is a more open and flexi­ble approach. The Corpus Juris Civilis, it is true, had been ambivalent. 'Non exemplis, sed legibus iudicandum est' (One must not decide according to precedents but to the laws) was the exhortation contained in C. 7,45,13; but in D. 1, 3, 38 it was stated that where the law gives rise to ambi­guity 'consuetudinem aut rerum perpetuo similiter iudi- catarum auctoritatem vim leges optinere debere' (statutory force ought to be ascribed to custom or to the authority of an unbroken line of similar judicial decisions). By the eigh­teenth century, however, the usus fori was assigned consid­erable weight.⁴⁰⁷ This was due to the authority which courts like the Rota Romatia, the Graudi Tribuiudi, the Hoge Raad of Holland, or the Reichskammergericht enjoyed as well

Lord Denning (James BtfchatMfi & Co. Ltd. v. Boko Fortcarding & Shipping (U.K.) Ltd. (19771 QB 208 (213 f.)) who thus describes the 'schematic and teleological method of interpretation'.

⁴⁽¹¹ Roderick Munday, 'The Common Lawyer's Philosophy of Legislation', (1983) 14 Rrt-htsf/icow 201.

*^M Cf. supra pp. 55 f.

405 p_or details and references, see Reinhard Zimmermann and Nils Jansen, 'Quieta Movere: Interpretative Change in a Codified System', in Cane and Staple­ton (n. 367) 298 ff.

"*· Cf. the terminology adopted in the questionnaire underlying the research project by D. Neil MacCormick and Robert S. Summers (eds.), lnterpnling Prece­dents: A Comparative Study (1997), 555.

■^W7 See Coing (n. 197) 125 (.; Heinz Weller, Die Bedeutung der Prdjudizien int Versfii'iidnis der deutschen Rechtswisseiischaft (1979), 43 ff.; Gem Dolezalek, 'Stare Decisis’: Persuasive Force of Precedent and Old Authority (12lh 20lh Century) (1989), 13 ff.

as to the fact that their precedents had become increasingly available in a large number of collections of decisions.⁴⁰[543]

Also, it must be kept in mind that the ius commune during the period generally known as usus modern us pandectarum was, to a large extent, judicial law (jurisprudentia forensis) developing through lawyers' interpretation and judicial opinions.⁴⁰⁹ The vis praeiudiciorum was widely recognized as vital for determining the law, the convenience of confor- mitas in iudicando was emphasized, and the typical case-law techniques were taught.⁴¹⁰ On the other hand, it was always recognized that the force of precedents was subject to a better, and more convincing, interpretation of the law being advanced. The weight of the argument was what ulti­mately counted.

The general approach, in other words, was not dissimilar to that prevailing in England before the introduction of the doctrine of stare decisis. Before the nineteenth century, English courts had displayed a flexible attitude towards precedents. Typical for that period were statements like 'if a judge conceives a judgement given in another Court to be erroneous, he being sworn to judge according to the law, that is, in his conscience ought not to give the like judge­ment',⁴¹¹ or '(t]he reason and the spirit of cases make law, not the letter of particular precedents.'⁴¹² 'You are not bound by any rule of law which you may lay down', as Lord St Leonards staled as late as 1852,^4,3 'if upon a subsequent occasion you should find reason to differ from that rule; that is, that this I louse, like every court of justice, possesses an inherent power to correct an error into which it may have fallen.' A number of factors combined to produce the doctrine of stare decisis that had begun to emerge by that time:⁴¹⁴ the declaratory theory of adjudication which had been espoused by Sir Matthew Hale and Sir William Black­stone⁴¹^ and which reduced the role of judges to finding rather than establishing the law;⁴¹⁶ the legal positivism culminating in, but not confined to, the writings of Jeremy Bentham⁴¹⁷ and John Austin;⁴¹⁸ the doctrine of separation of powers with its emphasis on the sovereignty of Parlia­ment;⁴¹⁹ the quest for legal certainty within a society domi­nated by vastly increasing trade and industrialization;⁴²⁰ and, last but not least, the abolition of the forms of action which had previously provided stability.

The same kind of legal formalism thus gained ascen­dancy in England which dominated contemporary German legal scholarship except that in Germany it found its focus in 'legal science' rather than precedent. For nineteenth­century pandectist scholars proceeded from the assumption that the law constituted a closed system of rules and general principles on the basis of which the correct decision of individual cases could be reached by purely logical deductions. Each judgment was thus an act of scientific cognition, and each judge had the duty to find the one

^4,4 See, in general, Baker (n. 389) 225 ff; Rupert Cross and J. W. Harris, Precedent in English Law (4th edn., 1991), 24 if.; Jim Evans, 'Change in the Doctrine of Prece­dent during the Nineteenth Century', in Laurence Goldstein (ed.), Precedent in Law (1987), 35 ff

^4I' See the references in Cross and Harris (n. 414) 27 f.

^4,6 See, e.g., IViffis v. Brtdde/ey 118921 2 QB 324, at 326 (per Lord Esher, MR; CA): There is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applic­able.'

⁴¹⁷ On the influence of Bentham's positivistic legal theory on the common law, particularly concerning the rule of stare decisis, see Gerald J. Postema, Bentham and the Common Imp Tradition (1986), especially at 192 ff.

^4,8 John Austin, The Province of Jurisprudence Determined (4th edn., 1971), passim; cf. also the evaluation by H. L. A. I lart in the introduction to that volume.

^{4,be the ultimate, and conclusive, sources of the law. The famous prohibitions against interpreting, developing, and commenting upon these codes (Kommentier- und Auslegungsverbote) enacted in the course of the eighteenth century[547] [548] remain the ultimate monuments to an ideology attempting completely to emas­culate judges (as well as academic lawyers).}