Taking Precedent Seriously 11

ial usage.” The decisions of the judges, the“living oracles,” are “the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law.” Judges, therefore, while obligated by practice to follow prior decisions, may overturn these“where the former determination is most evidently contrary to reason.” But even in such a case, the judge does not legislate;“for if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.”¥ In this view, a precedent is“bind­ing” only to the extent that it is right, a correct application or interpretation of the law that exists prior to and apart from the judge’s decision and that acts as a standard by which lawyers can measure that decision’s correctness. Yet the declaratory the­ory has gone out of fashion; it seems much more reasonable now to concede that common law is judge-made rather than“judge­declared.” The judicial decisions are precedents because they lay down the legal rule to be followed. This view proceeds from the jurisprudential theory generally known as legal positivism, rooted in the nineteenth- and twentieth-century reactions against the more“mystical” conceptions of law championed by earlier theorists.4® Positivism asserts that law is a human artifact; it is “legal” because it is posited, enacted, created by an authoritative law-making agency.* From now on, a precedent is not judged “correct” to the extent that it accords with the law; a precedent is law, having been established by proper judicial authority, whether or not the subsequent judge thinks the earlier case was rightly decided.® A precedent cannot be“wrong.” A precedent binds as an act of legal power; it need not“persuade.” Thus, referring back to that“theoretical problem” of which I spoke ear­lier, the doctrine of binding precedent as it has come to be under­stood effectively blurs the distinction between law and the judicial interpretation or application of that law.

As though recognizing this dilemma of theory, however, the common law tradition provides remedies for it. Even if a prece­dent is an act of judicial legislation and hence, like a legislative enactment“binding” upon the courts, the common law judge is not rigidly subservient to it. He or she may in some cases over­rule a precedent, either explicitly or implicitly, or simply disre­gard an earlier ruling should it prove troublesome.” A famous