Taking Precedent Seriously 57

21

27. 28.

29. 30. 31.

34.

37. 38.

Schultz, 52-53, speaking of the“Hellenistic period” of Roman jurisprudence, when the iudices turned for legal advice to the great scholars(iurisconsulti) who would hand down learned advice(responsa) to them.

See David , 180-181, on the situation in French law: the principle of separation of powers prevents the creation of legal rules by the courts. Cf. Code civil, article 5: il est défendu aux juges de prononcer par voie de disposition générale et réglementaire.

... non exemplis sed legibus iudicandum est(legal decisions must be based upon enacted law and not upon prior decisions in particular cases); Code of Justin­ian VI1.45.13.

René David and John E. C. Brierley, Major Legal Systems in the World Today (London: Stevens and Sons, 1985), 120-121, 136.

25. See Merryman, 35-39; Glendon et al., 208.

Merryman, 48, contrasting the“folklore” of the civil law, which ignores judi­cial decision as a source of law, with this reality. See also Robert A. Riegert, “The West German Code, Its Origin and Its Contract Provisions,” Tulane Law Review 45(1970), 69-71.

Glendon et al., 209.

Michel Trope and Christophe Grzegorczyk,“Precedent in France, ” in D. Neil MacCormick and Robert S. Summers , Interpreting Precedents: A Comparative Study(Aldershot , UK : Ashgate, 1997), 115.

David , 180.

Trope and Grzegorczyk, 112-113.

Glendon et al., 209; Riegert, 69-70. See also David , 183-184: the primary role of the Cour de Cassation is to enforce the uniform application of the law.“This function cannot be fulfilled if the Court of Cassation itself does not have a stable case law.”

MacCormick and Summers , 532.

. And see Merryman, 17: the experience in pre-revolutionary France , in par­

ticular, was that the judiciary was a conservative, anti-progressive force. Leg­islation, by contrast, could express the will of the people and keep the judges in check.

As Watson writes(p. 25):“Roman law is learned at the feet of specially appointed teachers and not from observing practitioners of all kinds.” See also David and Brierley, 147-149.

. Glendon et al., 268. 36.

Glendon et al., 564-565. See Theodore F. T. Plucknett, A Concise History of the Common Law(Boston : Little, Brown, 1956), 342: since the common law devel­oped out of the judicial custom of the king's courts, it was but natural that these courts developed regular routines of practice, which, becoming set­tled, could allow the people to forecast with certainty the future decisions of the judges.

Rupert Cross , Precedent in English Law(Oxford : Clarendon Press, 1977), 4. The most striking example of this is the rule that prevailed in England from 1898 to 1966 whereby the House of Lords , the highest appellate body, con­sidered itself bound to its own precedents. See Cross, 4-8.

. Or the ratio decidendi, that part of the judge’s ruling that is considered essen­

tial to the decision; all else in the opinion is called dicta and does not bind the subsequent judge. See Cross, 38ff.