Taking Precedent Seriously 13
and wisely so: for the development of the common law has been an empirical one proceeding step by step.”*® Or as Llewellyn himself put it:“one does not progress far into legal life without learning that there is no single right and accurate way of reading one case, or of reading a bunch of cases.”
At first glance, the legal theory of the Anglo-American tradition stands in stark opposition to the ideology of civil law. Common law is derived from judicial decisions, and those decisions, as precedents, create law that constrain the freedom of subsequent judges. Binding precedent deprives subsequent courts of the opportunity to reach beyond the controlling cases to some higher or background legal standard by which, as it were, to judge the judges. Yet as we have seen, the common law tradition plays host to a competing, if no longer dominant theory of precedent, which sees the judicial ruling not as law properly so called but as evidence of law, a persuasive argument that the law—a reality distinct from any particular judicial decision—is best interpreted in this particular way. It has also created, alongside its numerous precedents, a host of tools through which those precedents can be and are overruled, eliminated, re-fitted, and re-created—as well as upheld, preserved, strengthened and solidified. Thus does the common law respond to the theoretical and the practical problems that emerge from a doctrine of precedent. On the theoretical side, judges are equipped with“leeways” whereby to adjust precedents to what in their view is the correct interpretation of the law. On the practical side, judges can develop the existing so that it coheres with the demands of the contemporary scene. Common law judges are therefore endowed with considerable judicial freedom, both to arrive at what they think is the right answer and at what they think is a good and useful answer, even though they are formally bound to follow the decisions of the past. No less than judges in civil law countries, those of the common law tradition have found the means whereby to accommodate the“creative tension” between the two great conflicting needs of a legal system: to honor precedent and to overcome it.
Precedent in Jewish Law
While the civil law and the common law proceed from opposite poles on the jurisprudential spectrum—the former is primarily