Taking Precedent Seriously 9

islative act than through the slow and piecemeal development of judicial interpretation.* Yet reliance upon precedent remains a vital part of the judicial function. This demonstrates that the respect for tradition and the desire to solve legal issues by pro­ceeding on the basis of prior decisions is a basic element in the conception of“law” even in jurisdictions which officially refuse to bind their judges by the rulings of the past. Precedent, we might say, is not binding, but it is persuasive, a means of map­ping the way for the judge so that he will not likely stray very far from the paths blazed by his predecessors. If legislation insures that the law in civil law countries remains flexible, forward-look­ing, and open to change, the practice of judicial precedent insures that it remains law, a conversation in which the sages of the past are asked to confront the problems of the present.

Precedent in the Anglo-Saxon Legal Tradition

While the civil law is rooted in legislation and codification illu­minated by the writings of university-trained jurists,* the“com­mon law,” the basic legal doctrine of English -speaking countries, emerged from“a unique,‘unwritten’ constitution and the recorded, but orally rendered decisions of an extraordinarily gifted and respected judiciary.”® In saying this we should take care not to overlook the significant role played by legislation in common law systems. Still, it is correct to state that England's common law, originating in the efforts of the Plantagenet magis­trates to extend the authority of the king's courts, is to a great extent the product of judges rather than legislators or academi­cians. It is a system of case law, and the distinguishing charac­teristic of such a system is precedent.* This is only natural: if the basis of a legal system lies in the rulings of judges rather than in the abstract principles and provisions of an enacted code, those rulings constitute the major source material upon which a judge can draw for his decisions.“A judge in a subsequent case must have regard to(prior decisions); they are not, as in some other legal systems, merely material which he may take into consider­ation.”¥ To the extent that a precedent is recognized as binding, especially—but not necessarily’*—upon a court that ranks lower in the legal hierarchy than the tribunal which issued the original ruling, the court applies the doctrine of stare decisis(“let the deci­