Taking Precedent Seriously 7
dates the organization of the political state and certainly exists prior to the enactment of the legal codes, is the great exception to this rule. All civil law jurisdictions recognize custom as the other “source” of law; hence, the theorists tend to divide the civil law into the broad categories of“written law”(ius scriptum) or legislation and“unwritten law”(ius non scriptum) or custom.” Yet they tend to dismiss custom as being of slight importance compared to legislation.'® The second great intellectual trend was the rationalism that dominated Continental philosophical thought during the Enlightenment and that was congenial toward codification. Ever since Justinian , the civil law has assumed a systematic and formally rational style, one accessible to philosophers who are not necessarily lawyers, as opposed to“the common law, with its mass of cases and its lack of theory, especially until the nineteenth century,(which) is largely impenetrable to anyone not specifically trained in the common law.” Codification contributes to this systematic outlook; when the law has become fully rational and set forth in clear terms, the answer to a legal problem should consist in the simple application of the relevant statute rather than the interpretation of a line of cases.’
The supremacy of legislation as a source of law parallels the comparatively inferior position of the judiciary in civil law jurisdictions. Just as the Roman law judge was frequently a layperson not especially trained in the law,*! the civil law judge does not exert a significant influence over legal development. Limited by the doctrine of the separation of powers, the judge is not to make law or interpret unclear legislation; he is rather to refer such difficulties to the legislature, the ultimate source of the law.* He simply applies the law to the facts of the case and reaches a decision in that case alone, in a supposedly deductive manner. He must base his case solely upon“the law,” and this does not include previous judicial decisions.? In interpreting the law, the judge must give paramount weight to the intent of the legislator rather than to the practice of the courts, which may be rejected or modified at any time, depending upon the case.” The doctrine of binding precedent(stare decisis) is rejected in civil law theory.”
Civil law practice, on the other hand, accords the rulings of judges a much greater degree of influence than the theory would seem to allow. Judges perforce must interpret the law when applying its provisions to cases. And if there is no formal doctrine of binding precedent, civil law judges are in fact guided by