Mark Washofsky

44.

45.

46.

47. 48.

41. 42. 43.

. See P. S. Atiyah and Robert S. Summers , Form and Substance in Anglo-Ameri­

can Law(Oxford : Clarendon Press , 1987), 115, who cite the English judge Lord Patrick Devlin :“The principle of stare decisis does not apply only to good decisions; if it did, it would have neither value nor meaning. It is only if a (prior) decision is doubtful that the principle has to be invoked.”

See the discussion in Cross, 12-17.

Atiyah and Summers , 118-127.

Compare Arthur L. Goodhart , Essays in Jurisprudence and the Common Law (Cambridge: Cambridge U. Press , 1931), 1-26, who constructs a ten-point checklist for determining the ratio decidendi, with the critique of Cross, 66-76. In turn, C. K. Allen, Law in the Making Seventh Edition(Oxford : Clarendon Press , 1964), 259, n. 3, opines that Cross’s own description“is perhaps a lit­tle too complicated to be really illuminating.” Allen, 260, rejects the effort to find a precise definition, proposing a pragmatic alternative:“it is for a court, of whatever degree, which is called upon to consider a precedent, to deter­mine what the true ratio was.”

Atiyah and Summers , 116ff. The difference between the English and Ameri­ can versions of stare decisis, they write, rests in the greater degree of formal­ism present in English law, as opposed to the more“substantive” approach of American courts. English judges are therefore much less likely to disre­gard otherwise binding precedents than are their American counterparts. American courts, too, will overrule precedents with much greater frequency than English courts. But even in America ,“stare decisis is at least the every­day working rule of our law;” Benjamin Cardozo , The Nature of the Judicial Process(New Haven : Yale , 1921), 19. In the words of the U.S. Supreme Court : “it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch , which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary decision”; Patterson v. McClean Credit Union, 109 S.Ct. 2363, 2370(1989).

P. J. Fitzgerald, Salmond on Jurisprudence, 12th ed.(London : Sweet and Maxwell, 1966), 145. See also Allen, 268-285, for examples of English judges deriving guidance from Roman or continental law. On the theory of non­authoritative precedent, see Richard Bronaugh,“Persuasive Precedent,” in Laurence Goldstein , ed., Precedent in Law(Oxford : Clarendon Press , 1987), 217-247. Rabbinic law serves as“persuasive precedent” in the modern Israeli legal system, particularly when a court confronts a question that has no clear resolution in existing law. See Menachem Elon , Jewish Law: History, Sources, and Principles, translated by Bernard Auerbach and Melvin J. Sykes(Philadel­ phia : Jewish Publication Society , 1994), 1729-1730. See also his discussion of the Foundations of Law Act(1980), which formally requires that when a court cannot resolve a question on the basis of legislation or judicial prece­dent it shall look to the principles of freedom, justice, equity, and peace as expressed in the“Jewish heritage”(moreshet yisrael); 1827ff. Sir Matthew Hale , The History of the Common Law of England, 6th ed.(London : Butterworth, 1820), 90. Sir William Blackstone , Commentaries on the Laws of England, 1:3, 68-70. On this, see Daniel J. Boorstin , The Mysterious Science of the Law: An Essay on Blackstone's Commentaries(Boston : Beacon Press, 1958), and H. L. A. Hart,