Mark Washofsky

prior decisions. Lawyers and judges alike refer to prior cases in briefs and decisions;“the fact is that courts do not act very dif­ferently toward reported decisions in civil law jurisdictions than do courts in the United States .”?® The situation in France , where the force of precedent is somewhat weaker than it is in other civil law countries,” serves as an example. In theory, precedent does not bind a French judge; he may even be forbidden to treat a prior decision as the obligatory reason for his ruling in the instant case.?® Indeed, the decision of a regular court will be reversed for“absence of legal basis” if the only justification it offers for it is an earlier decision of the high court(Cour de Cassa­tion).? Yet the citation of precedents is common in French law, where the prior decisions of the courts are the most important factor in predicting how the present court will interpret the rele­vant legislation.’ It is understood that while the Cour de Cassa­tion can change its mind whenever it so chooses, it will not do so readily. The reasons for this are similar to the reasons for the emphasis upon precedent in common law countries: the require­ments of reasonable certainty and predictability in the law; the desire of judges to conserve intellectual energy or to avoid embarrassing reversals by higher courts; the demand that like cases be treated alike; and the consideration that justice not only be done but should appear to have been done.*! Thus, the“cari­cature” that civil law systems are free from the constraint of precedent“is certainly no longer remotely accurate, if ever it was.” Rather,“precedents are generally recognized at least as providing strong(but defeasible or outweighable) force.”

The clash between the ideology and the practice of the civil law underscores the inevitability of precedent even in legal sys­tems that formally renounce it as a source of law. It also suggests the ways in which the civil law, intentionally or not, negotiates the“creative tension” between respect for precedent and the need to escape it. The civil law begins with an assertion that law is fundamentally a legislative endeavor. Legislation, especially codification that strives to impose order and system upon the legal materials, is the innovative force within civil law, for it is the essence of legislation that its power lies in the here and now, with the authority of the current legislator, rather than in the rulings of past judges or the statements of ancient authorities. It is thus a force for reform, for an observed defect in the law can be reme­died much more simply and quickly through comprehensive leg­