10 Mark Washofsky
sion stand”): the prior decision becomes a formal reason for the ruling in a subsequent case and therefore a formal constraint upon the subsequent judge’s freedom of decision. By“formal,” I mean a reason that is sufficient in itself: if a precedent is“binding” the subsequent judge must decide in accordance with the legal rule or“holding” of the earlier decision,” whether or not he or she likes or agrees with it." It is in this sense that a system of case law differs so starkly from the civil law tradition, for there is little doubt that, say, a French judge would overrule the decision of a prior court should he consider it wrongly decided." Common law systems differ as to just how binding the“binding” precedent is,*? and there is no unanimity among legal theorists as to how precisely to identify that part of the prior decision which in fact obliges the subsequent judge to decide in the same way. Yet most common law countries have adopted some version of the doctrine of stare decisis and recognize a significant body of binding precedents.*
Not all precedents are regarded as binding. Common law theorists speak of“persuasive” precedent, a ruling“which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve.”*> Among these are the decisions of foreign courts, particularly those of other common law countries, and those parts of judicial decisions regarded as dicta, or extraneous to the decision’s legal holding. And it has been suggested that, at one time, all precedents in the English tradition were held to be persuasive rather than binding in nature. I refer here to the so-called“declaratory theory” of the common law, according to which a judicial decision is regarded as evidence of the pre-existing law rather than as an act of law-creation. Thus, Sir Matthew Hale (d. 1676) writes that judicial decisions
do not make a law, properly so called; for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times. And though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons.
Similarly Blackstone(d. 1780):“the common law, properly so called” consists of“general customs” established by“immemor