Page:Harvard Law Review Volume 9.djvu/55

27 JUDICIAL PRECEDENTS. 2/ JUDICIAL PRECEDENTS. — A SHORT STUDY IN COMPARATIVE JURISPRUDENCE. THE weight attached to precedent in every department of life is closely connected with the force of habit, and has its root deep in human nature. That judicial precedents have exercised great influence in all systems of law is more than probable; the feeling that a rule is morally right has often arisen from the fact that it has long been followed as a rule ; but the degree in which judicial decisions have been openly recognized as authoritative, simply because they are judicial decisions, has varied very greatly in different systems. Judges are everywhere largely influenced by what has been done by themselves or their predecessors, but the theories to explain and control such influence have been di- verse, and the development of the law has not been unaffected by them. It may, perhaps, be of some interest to compare a few of these theories. Two things should be borne in mind. In the first place, the functions of courts are not in practice confined to the decision of particular causes. Either by authority expressly delegated, or of their own motion, courts have undertaken to legislate with regard to the conduct of litigation before themselves ; they have published general rules, in the form of command or permission, setting forth the manner in which they will proceed. The most striking example is the edict of the Roman praetor, which became a chief instrument in the development of the Roman law. Doubtless special cases gave rise to many of its provisions, but none the less it was in form a legislative, not a judicial act. The Scotch Court of Sessions, in its Acts of Sederunt, assumed extensive powers of enacting laws, and in our days governments have frequently intrusted to courts a wide authority to make rules of procedure. All this lies outside of our present limits. Such rules are not judicial precedents. Further, the peculiar effect and quality of a judicial precedent as a source of law should be noted. So far as it expresses the opinion of wise or learned men, or so far as it expresses the opin- ion of the community, it may be a source of law; but its peculiar force as a judicial precedent lies, not in its accordance with philos-