VOL. XXXV 1966 NúM.

EL ARBITRAJEOBRERO-PATROAL EN PUERTO RICO

DEMETRIO FERJ\'A"'NDEZ

THE CIVIL RIGHTSAND CIVIL LIBERTIESDECISIONSOF THE

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''STARE DECISIS"IN THE CIVILAND IN THE COMMONLAW

IIELEN SILVING

LlBROS
"STARE DECISIS" IN THE CIVIL AND
IN T H E CO MM ON LAW*
Helen Silving**

AL LAW
I. THE NEED FOR DECISION
edents varies:
The problem of the wisdom of following prec legal system:
ni scope depending on the general structure of the n
within which it arises. There is a great deal of difference betwee a
lw
in-lieu-of statutory
acceptance of a law of precedents largelyits use in aid of statutory
accordng to the common law pattern and
Where statutes are considered
law according to the civil law model.
an exceptional phenomenon and customary law is no longer felt ot be
accepted a s a matter
adequate to satisfy social needs, precedents are
continuity, indeed, of
of sheer necessity; they are safeguards of legal the guidance they
the unity of the legal system. Realization that
that the pretense as though it.
afford is very often but verbal and eternal "reason" behind it that-
were not the decision itself but the
ot this necessity. With
constitutes "law" si fictitious, must yield pre
of cedents as sources of
expansion of statutory law, recognition that they, rather than
law ceases to be imperative, but the ideology
the legal system, so that
statutes are of the essence of law pervades
is not even seriously consider-
abandonment of the rule of precedents
statutes are not sufficiently
ed. I n countries of t h e com mon law
acclimatized to be accepted as full substitutes for case law. The
former.! Countries of com
latter is still deemed paramount to the
od which permitsi
mon law tradition have indeed invented a meth
at the Faculty of the
Lectures delivered within the Fullbr ight Programin the Sprin g Semester
nal Univ ersity,
Grad uate School of Law, Seoul Natio in The Seou l Law Journal,
1964. These lectures were previously published
1964, N 9c
° Helen Silving is a Profess or of Law. Univers ity of Puerto Rico, and
Pena l Refo rm Comm ission of the Com monw ealth
Advi ser to the Legis lative
those
lectur es a n d a r t i c l e a r e exclu sively
T h e o p i n i o n s e x p r e s s e d in t h e s e view s of t h e P e n a l Refo rm
ssari ly r e fl e c t t h e
of the w r i t e r ; they do n o t nece wealth of Puerto
any Department or Agency of the Common
placed on case
1 Jurispr udentia lly this is manifes ted in emphas is being
origin.
law even in areas of law of wholly statuto ry
196 REY/STA JURIDICA DE L.-f UNIPERSIDAD DE PUERTO RICO

immediate incorporation of case law into the statutes: the decision

hccomes part of the statute which it interprets. This stress on case
law is so deeply ingrained in the ideology of these countries that
statutory abrogation of the rule whereby statutes are construed
according to the "reason of the Common Law" have proved inef •
fe.ctive.2 The great merit of this system of binding inlerpretative
decisions líes in the fact that once such decision is rendered, legis-
lators are put on notice of the meaning which judges will henceforth
assign to the statute. Of course, legislators can pre.vent continuation
of the resulting polic· by repealmg or amending the statute~--
ln the heydays of the re rec e movement sorne civil
law philosophers exhibited perhaps exces ive admiration for case
law, but there has hardly bee.n a noticeable drive to substitute case law
for code law. Nor are judicial decisions viewed as incorporated by
reíerence in the statutes which they interpret. Nevertheless, there is
felt to be a growing trend toward acceptance of judicial decisions as
an avowed source of law. Perhaps it is related to a decline of the
method of "authentic ínter retatio " 'slators them-
selves construe an a 1 ous statutc- method never accepte m
e mt tates because of i!:'..Jncompatibility with the principie
of separation of powers. Perhaps also contact with the common law
world has given "case law" a new impetus, though examples of very
far reaching influence of judicial decisions on legal development are
of pre-world W ar II vintage.
My submission is that a comhination of code and case law is a
desideratum today both in Lhe common and in the civil law world.
The necd for such ombinalion arises from the emantic limitations
oí statutory formulation in an agc dominated by stress on new
systems of logic and new approaches to language critique, on the
one hand, and the analytical and social wastefulness of pure case
law, on the other hand.
The Benthamite tru t in statutes, as affording greater "cer-
tainty" than "custom," 3 has heen somewhat shaken, since so-called
"common language"-in which, in Benlham's view, codes ought to
he formulated-is no longer thought to be e fully reliable transmit-

12 ee on this M:ax Radin. Anglo-American Legal History 337 (St. Paul,

Minn., West Publishing Co., 1936).
a Jeremy Bentham, The Theory of Legislation 156-157 (Hildreth transl•
from French, Ogden ed., London, Rontledgc & Kegan Paul Ltd, 1931).
 "STARE DECISIS" ,.v THE Cll'IL A.Y!) /,Y THJ: co:1•10, L.rn·
197

ter of shared meaning. In fact, case law, particularly whe.re it

develops-as it does according to arly tradition as well as to some
recent trend -by way of demonstration, rather than by way of
formulized linguistic enunciation, of principles, may help to establish
standards of pre.ci ion within the framework of statutory language,
which the latter is by it.elf incapable of conveying. It may thus
remedy shortcomings of so-called ''written law."
The scope of this papcr does not permit exten ive discussion of
the inherent limitations of statutory language .. Perhaps those oí the
language which has been most highly recommended for drafting u e,
the "common language," may serve as an illustration. That language
has been so recommended for the obvious reason that it is thought
to be best suited for e>,.1>ression of so-called "plain meaning." One
might CX'J>CCl "plain meaning" to be uncontroversial. But the history
of law records iabundant examples of judicial disagrecment on the
meaning of statutory words, notwithstanding agrecment that such
meaning in "plain." 4 In f.act, in law "plain meaning" is in a !'ense
a paradox, since legal ''plainness of meaning" is not a natural ot-
tribute of words but the result of legal interpretation. Even iI it we.re-
possible to grasp a "natural' or "common language" meaning of
statutory words, thcre oould be no guarantee oí pennanency of the
relationship between word and meaning. For the life of a word is
dynamic, and the evolution of its social meaning does not necessarily
correspond to either constancy or transformation of rational statutory
purpose.
Wurzel believed that the growth of the social meaning oí a word
is necessarily reflected in the meaning of its statutory version. 5 He
called "projection" the extension o{ a statu:ory concept to phcnomena
not originally contained in it because not comprised in the group of
images forming that concept at the time of enactment but subsequent-
ly entering into it without effecting a change of its_nature. As e "ample
of "projection" he cited extension of a statute p:i ~cd in 1,700 impos-
ing a tax on mills "run by machine power" to steam or electrio
mills, which were unknown at the time of enactment. Wurzel tbought
that "projection" is inherent in "juri.dical thinking." That the exten•

• 4 See on this Helen Silving, A Plea f or a Law o/ Jnterpretation, 98 U.

Penna L. Rev. 499, at 513, 514 (1950).
li Wurzel, Methods o/ Juridical Thi.nking, in Scieuce o/ Legal Method
286, at 342 et seq. (1921).
-198 REVIST,I JURIDICA DE LA UNIYERSIDAD DE PUF.RTO RICO

ion described by Wurzel is "inherent" or necessary may well be

,doubted, at any rate when a criminal statute is in issue and restrictive
'interpretation is po tulated. That which is "inherent," however, is
tbe question bow far one may go in excluding ali "projection." For
examplc, would any, even very minor, technioal improvement in a
·"train" have the effect of taking the latte.r out of the category
symbolized by the term "Lrain" as used by a legislator? 6 Obviously,
"restrictive interpretation cannot in social reality mean perfect stability
o( the contents of statutory language.
In situations such a tho e exemplified, creative judicial inter-
p_rctation is a re pon e to an obvious social demand. The controversy
regarding the judicial role actually reduces itself to di agreement on
thc reach oí such creativity. hould a judicial interpretative decision
have an impact on íuture decision making? H so, should one inter-
pretative decision sufíice, or hould only a consistent line of ·similar
dccisions have thi effect? The di tinction between the position taken
by the common law and that taken by the civil law is said to be
llinited to the fact that thc former a umes a single decision to
constitute a precedent, whereas the latter ascribes this effect only
to several oonsi tcnt decisions, ju,risprudence constame, sti:indige
Rechtsprechung, doctrina legal. The formulation of the distinction in
these terms, however, is mi lending. TheTe are instances in civil law
of one decision being as authoritative as a statute, and at common
law the precc.dent value of a single decision is o{ten largely verbal.
The differences between the two systems lie mainl i •
operation an underlying an mot1vatrng legal phil-0s
ince as compared with case aw, statutory faw as the advan-
tag~ of economy, efficiency and equality of administration, the utility
·of case law must be sought in such of its qualities which are unique.
To the extent that verbalization without undue verbalism is possible,
statutes today are preferable to ca e law. Only where statutes prove
to be inadequate, cases functioning as "examples" should b pre-
ferred to abstract doctrinal interpretations. But case law today can
no longer serve a useful social function when it assumes unman-
ageable dimensions. There is a clear need for oonscious direction in
6 The Supreme Court of Japan (Showa 15, decision of 8.22, 1940) he]d
that a gtu1oline car qualified within the statutory description "trajn., for pur-
·poses of a crimina] statute, although at the time of enactment ¡zasoline operated
trains were unlmown. I owe this reference to Dean Paul K. Ryu.
 "STARE DECISIS" IN THE Cll'/L A.VD IN TIIF. CO.llMO,\I LAW
199

the use of case material. Perhaps a statutory guide to methods and

orders of citation is as necessary today as it proved to he in the days
of thc "Law of Citations." 7

II. DECISJONAL LAW IN CIVIL LAW COUNTRJES

In civil law code precedents are either expressly or tacitly

excluded from tbe list of "sources of law.''ll A consistent series of
uniformly decided cases of highest courts, however, is interpreted
to con titute "cu tomary law," and such law is generally accepted to
be a "source of law" either by virtue of expre s qualification as a
sou rce coordinaed to "statutes" ( Gesetz, loi) 9 or by virtue of doctrinal
inclusion within the term "Gesetz." In Germany "cu tomary law'' i
often dcemed to be a source of law not of choice but of necessity, on
the theory that if a statute were to exclude it, that statute could itself
he repealed by cu tomary law.10 If, indeed decisional law is custom-
ary law, it would seem to follow that it partakes of this quality of
the latter and is thus an "inherent" and not eliminable legal source.
The a. erlion that "customary law" is a logically "necessary law"
may he questioned; to what extent it is not eliminable, would seem
depend on what its constiluent elements are, which is uncertain. 11
Given particular views as lo such elements, one might doubt that
deci ional law would in reaHstic terms qualify as such law. Surely,
even a suindige Reclitsprechung need not amount to an invetera./.a
con.metudo, an immcmorial custom, upon which, as is often thought,
the existence of "cu~tomary law" is predicated. Sorne believe that
the "opilnio juris sive necessítatís" -which, as is mostly, though not
invariahly, postulated, mu t acoompany the repefüion of a practice
to qualify it as "customary law" -must reíle t a popular "collective
7 Act of Empcror Valentinian, passPd A.D. 426, prescribing tl1e degree of
authority of certain Roman jurists.
e § 12, Austrian Allgemeines Bürgerliches Gesetzbuch expressly ba.rs use
of legal decisians as authority. The Italian Codice Civile (Capo I. "Delle fonti.
del diritto") and the Swiss Zivilgesetzbuch (Art. I. "Anwendans des Rechtr')
do not mention precedents among the ~ources of law. But in the latter code
precedents may be included in the term "cuEtomary law."
9 Swiss Zivilgesetzbu,eh Art. L
10 Enneccerus-Nipperdey, Allgemeiner Teil des Bürgerlichen Rechts 165
(14th rev. cd., 1952).
11 On this see Helen Silving, "Customarr Law:" Cnntinuitr in Municipal
and lnterna.tional Law, 31 lowa L. Rev. 614, 621-627 (1946).
200 REY/STA JURIDICA DE LA UNIYERSIDAD DE PUERTO RJCO

conscience," but conformance to a popular conscience is not, by

definition, a required part of decisional law.
Whatever may be the ultimate jurisprudencia} basis oI their
authority, oonsistent decisions of highest courts are in praclice
treated as undeniable sources of law in all civil law countries. In
some instances their authority is expressly sanctioned by le.gi lative
provisions establishing formal conditions under which such decisions
may be at all overruled. Thu , in Austria -where tbe Civil Code
expressly denies to judicial decisions the status of legal sources~
an Imperial Suprem.e Resolution13 prescribes that certain settled
decisions of the Oberster Gerichtshof 4 be recorde.d in the so-called
"Spruchrepertorium" and "ludwatenbuch," and decisions thus re-
corded may not be overruled except in a prescribed qualifie.d man•
ner, by approprialely enlarged judicial collegia.15
In Germany, the Law concerning the Organization of Courts 16
provides for a procedure intended to secure consistency of decisions
of the various divisions of the Bundesgerichtshof.1 7 Particularly
noteworthy is the rationale advanced for authorization of any "Sen-
ate" (Senat--Division) of the Bundesgerichtsh<>J,before which a
oase involving a matter of "fundamental importance" (grundsii.tzliche
Bedeutung) is pending, to request its resolution by a "Great Senate''
(Groser Senat); the Senate seized of such matter may submit it
when it believes this to be required in the interest of "further de-
velopment of law or assurance of uniform adjudication" (Fortbildwng
des Rechts oder sicherun;g einer einheitlichen Rechtsprechung) .18
Nor is "development of general law" by a judicial decision
rendered in a single case -implying an attribution to courts of a
law creative-power which courts of the common law world have
rarely so franlcly avowed to po ses19- a post-war innovation in-
Compare .supra, note 8.
.l2
13AUerhochste Entschliessung of August 7, 1872.
Highest Court in Civil and Criminal Matters.
14
Act of February 24, 1907 (Reichsgesetzblatt 41}.
IS
16 Gerichtsverfassungsgesetz, text of September 12, 1950 (BGBl, 455;
III 300-2), as amended, Act of September 8, 1961 (BGBI. I 1665).
17 §§ 136, 137, id. The Bundesgerichtshof is the highest court of the
German Federal Republic in Civil and Criminal Matters.
1s 137, id.
19 In the United States, the Federal Supreme Court will grant certiorari,
for instance, to resolve a conflict of decisions in the severa] circuits (inter-
me<liate apprllate courtq). See. c.g .. Mever v. United States, 364. U.S. 410.
41L 81 . Ct. 210, 2ll 0960): United States v. Union C ntral Liíe In-
surance Co., 368 U. . 291, 293, 82, S. Ct. 349, 351 ( 1961). But the avowed
"STARE DECISIS" IN THE C/Yll A/VD f,V TI/E COM\ION LAW
2or
troduoed under the impact oí Anglo-American model . A glance-
at a pronouncement of the Joint Criminal Senates (Verei'.nigte
Strafsenate) of the former German Reiclisgeri,d,PJ may show that
such judicial legislation has hec.n long since deemed a natural pre-
rogative of courts of appropriate level and composition.21 This i
wbat the Reichsgericht said :

In deciding upon this controversia! legal questioo, tbe-

Joint Senates have the authority and the duty of performing
an act of legal creativity for the purpose of filling a statutory
gap of procedural law, hence of exercising an influence, which
reaches beyond tbe concrete case, upon the decisions of the-
Reichsgericlu as well as those of other courts. In this supple-
mentary law creation, they must work as the legislator does~
The latter devises the system of criminal procedure, supplying·
it with rules and exceptions, in such a manner as to reach his,
objective, particularly that of truth finding and that of e tablish-
ing to what extent the legal interests of the guilty per on may-
be justly curtailed. Hence, the decision of the Joint Sena tes on
Lhe questions submitted to them is also determined by con-
siderations of utiliy. It should be noted that the Reichsgerichr
has frequently performed such legally creative tasks also in
other íields ...

The question tbus decided by the Joint Criminal Senates of

the Reichsgeriche was indeed of fundamental significance, cutting
deeply into the philosophy of criminal law and procedure: Whether
an accused could be convicte.d where, though there has been ample
proof that he has committed either larcency or receiving stolen
property, there has been no sufficient evidence showing which of
the two crimes it was. The court held that a conviction (for the
lesser crime) on such "alternative íindings" (Wahlfeststellung) was
proper in the case, since in the light oí "the sense of justice of
the community. . . the conduct of the re.ceiver is subject to the same
purpose of this exercise oí jurisdiction is to bring about uniformity of decision,
not "furtht-r devt-loprnent of law," as suggested in a literal readin~ of the-
Germ11a1term "Fortbüdu.n.s des Rechts."
20 The Reichsgericht was the Supreme Court of the German Reich in
Civil and Criminal Matters until collapse o! the "Reich" wilh the Nationnl
SociaJist regime.
21 Decision rendered May 2.1934, 68 BGSt. 257 (1934}.
 REYIST,1 JURJDIC.I DE L.4 UN/l'ERSIDAD OE PUERTO RICO
202

cthical censure as that of thc thief." Simultaneously the court

warned against admitting convictions of this type where the several
competing offences "require diverse mental states of the actor and
<:alifor a different ethical evaluLion." These pronouncements of the
Joint Senates were elaborated in a subsequent series of decision
-one might say, in typical common law fashion- into the rule that
convictions on alternative findings are permissible provided that
"the alterna ti ve acts charged [are] legally-etbically and psychol-
ogically comparable.''22 In this Iorm 1:he ruling of the Reichsgericht
survived the repeal of a later statutory provision generally author•
izing "alternative íact finding. " 23 -a survival which may well be
taken as a special demonstrati,on of the vitality of German "common
law" judicial legíslation.
Should one be inclined Lo assume that such judicial legislation
in Cermany is but ~'interstitiaf' 24 or "gap filling" -the latter being
the Reichsgeridif s de cription of it own function in the cited
<:ase-, he might find certain recent activities of the Bundesgerichts-
lwf hardly reconciliable with such assumption. The latter court ha
preempted via a single ca e dispo ition an entire virgin field of
law, generally thought to involve ha ic legislative policy. The field
of law referred to is that of "legal error."
With utmost hesitation, English and Unite.d States courts rnade
occasional inroads into the fortress guarding the old maxim, error
juris haud excusa.t. In Long v. State,as the Supreme Court of Dela-
ware excused one charged with bigamy where, in reliance on the
advise of an attorney and the minister who perforrned the marriage
ceremony, he beüeved that bis former marriage was validly di solved.
The error in this inslance was one of "subsumption" of relevant facts
under Lhebigamy statute -an error occupying a border a rea of error
22 9 BGHSt. 309 (1957). The Bundesgerichtshof is the highest court of
the German Federal Republic in Civil and Criminal Matters.
23 § 2 h of the German Penal Code, inscrted by an Act of J une 28,
1935 (RGBJ. l. 839), was rep aled as product of National SociaJist ideology
by the Allied Control Council Law o. 11 of January 30, 1946 (ArL 1). ee
chonke-Schroder, Stra/gesetzbuch, Kommentar 7l (12th rev. ed., Beck che
Verlag buchhandlung, München und Berlín 1965).
2-, This term has b en used by Ju tice Holmes to describe a common•
law judge's legislative fonction: "I recogmize without hesitation that judgei-
must and do legi late, but they do so only ínter titially; they are confined
from molar to molecular motions. A eommon-law judge could not say, I think
the doctrine of consideralion a hit of historical non ense and shall not enforce
it in my court." Southern Pacific Co. v. Jensem, 244 U.S. 205, 221.
25 44 Del. 262, 278, 65 A. 2 d 489, 497 (1949).
 ~•sTARE Dl::CISIS" 1/1' TI/E C/1"11, ,l,VO /,V TI/E CO~f.110,\' lAlr
203

•of fact and error of law. In Lambert y. Cal,i/orni.a,~ tl1e Supreme

'Court oI the United State , against the vjgorous di sent of Mr. Justice
Frankfurter, 27 held ignorance of a duty to act in a cdme of omi .
-sion excusable, on the constitutional ground that in crimes of
thi type knowlcdge of such duty is an essential oI mens re.,,,. It
would seem that thc court' reliance on mens rea open poteJ1tialitie
oI amplification. But the care with which the majority opinion
limited it ruling and the general jurisprudential atmosphere with
which the dissent surrounded it rather warrant the foreca t that
the general principie of the irrelevance of legal error will remain
m force in oommon law countries for sorne time to come.
In G rmany the principie of "error juris nocet," bom out of
an crroneus interpretation of a passage in the Digesls, was a
·deeply imbedded in law as it i in the common law.:>sMoreover.
that principie in Germany appear. to have a tatutory foundati-on,
though the latter i e pres d in but a ncgative form: "error of
law" is clearly excluded from the Penal C de' provi ion on "guilt-
exempting" error. § 59 of the Code provide that "factual circum-
stante " (Tatumstande) "which belong to the tatutory description"
·of a crime (welche zum gesetzlichr!n Ta.tbestand gehoren) are not
imputed to a person wbo hod no knowledge of them. Such "factual
•circumstances" do not, within any of the several known doctrine.
·of error, comprisc criminality of the pertinent totul conduct. or
ha.s any other Code provision be.en read to incorporate the de{en~e
•of legal error. lndced, no contention has even been made that
. admission oI such defen e is part of an implied legislative inlent
or that the legislator has left in this area of law a "gap" to be
filled. Thus, when in 1952 the Great Senate in Criminal Matter
•of the Bund-esgerichtshof ruled the excuse of "error of law" to he
an integral part of German Criminal law,29 the choice. it made wa
•quite as legislative in nature and cope as wa the choice made by
·the German legislators when they enacted any of the other guilt
•e.xemption grounds, dure s, in anity, necessity. The policy in thi
instance, in contrast to that profe sed in the above cited Reü:hs-
26 355 U.S. 225, 78 S. Ct., 240 (1957).
Z7 Supra, 355 U.S. 230, 78 S. Ct. 244.
28 See on tbis Paul K. Ryu & Helen Silving, Error J ..ris: A Comr,arative
.'Study, 24 U. Chl. L. Rev. 421, 425-427 (1957).
29 2 BGHSt. 194 (1952).
204 REYISTA JURIDICA DE LA UNl1'ERSIDAD DE PUERTO RICO-

gcricht case,30 was declared to be not a "utility" consideration but

adherence to the "guilt" principie, which though neither defined'
nor clearly enunciated in the Penal Code, allegedly pervades the
entire German criminal law.31 On this doclrinaire jurisprudential'
basis, the Great Senate, while answering a narrow question submit-
ted to it in a specific case, proceeded to dictate an elaborate legis~
lative program to be followed by itself as well as by any otber
future German court. The question was whether an attorney charged'
with violating § 240 of the Penal Code ( defining "coercion"-
Notigung) by forcing a client to make certain íee payments under
threat of discontinuing her representation could set forth in bis
defense that he had no consciousness that such act was iilegal;
should this question be answe.red in the affirmative, tbe furtber-
query was whether the deíendant's guilt would be excluded even if
his error was due to negligence. On these limited facts, the court
elaborated a comprehensive "meaning oí guilt," bearing on the-
total philosophy of criminal justice and each and every one of its-
aspe.cls, in a manner comparable to the melhod used by legislators.
in expanding the legislative policy oí a new criminal code (Motiven-
bericlit). Tbe philosophy thus set íorth by the Great Senate has-
since dominated German decisions far beyond the confines oí the-
doctrine oí legal error.
German Supreme Courts have per-formed similar legislative·
functions when introducing into the law the conce.pts of "supra-
statutory necessity" (Ubergesetzlicher Notstand) 32 and of "nonexi:..

so Supra, at note 21.

31 On thiE consult Ryu Silving, supra, at 449-548.
32 "So-called extralegal necessity' -says Reinhart Mauracb. D<'11tsches
Strafrecht, Allgemeiner Teil 259 (2nd ed., C.F. Müller Karlsruhe, 1958)-
"presents one of the mo t striking instances of formntion of customarv law.....
This notion emerged in the first place from tbe need to resolve "difficulties
of a concrete life sphere, namelv, abortion for the purpo•e of averting a·
serious danger to the body and life of the mother." While phy!iicians claimed'
a ril!;ht to intervence in such cases to be self-evident, written law clearly
prohibited such intervention. Unless the pregnant woman was the physician's
near relative, in which case § 54 of the Penal Code (on "necessitv action")
would be applicable, the physician would not even be excused. • l\foreover
§ 54 could not be applicable unless the pregnancy was not "caused by tlie
fault., of the pregnant woman, and "fault" in this context was given a variety
of interpretations. The Reichsgericht introduced in this instance a nov<•Iground
of justification (and not merely an excuse), incidentally formn1ating a
general principle oí law, whieh has sinee become an integral part i,f German
Iaw. Decision of the Firet Senate, March 11, 1927 g. Dr. St., 61 R'C:;St.242
(1928).
-srARE DECISIS" l,'V THE CIJ'll ,l'VD ,,, TflE COlf\10\' l.AIT'
205

gibility of law abidance" ( Unzwnu,tbark1dt rechtrnassigen Verhal-

.tens) •33 On such occassions they invariably assumed f ull legjslative
~uthority in dictating a oomprel1ensive program rather than limit-
ing their rulings to thc specific point raised in the case. In sorne
such cases (as, for instance, in that regarding error of law), of
course, this feature of tbe decisions is intimately connected with
thc fact that the issue, though posed within the framework oí a
ooncrete ca e, is ubmitcd to the highest tribunal as a request for an
aL:::lractlyIormulated rule, a declaration of principie, rather than for
a judgment on the specific facts alone. But mainly is this feature
the result oí the, civil jurist ' tendency to ooncentrate on doctrinaire
principies of broad scope (Rechtswissenschaft-science of law) rath-
er Lhan on pragmatic, casuistic solution .
A student of German court decisions may perhaps notice that
their concern with fundamenta.Is wben analyzing the contents of
particular decisions to be made is not parallelcd by a similarly
tborough syslematic consideration of the jurisprudence of decision
making itself. Apart fonn occasional pronouncements, uch as that
cite.el abo,·e, Lh y have shown relatively little self-awareness, that
is, conciou ness of the naturc and scope of their decision making
process and oí its role in political and legal reality. A decision
of the Federal Constitutional Court (Burulesverja,Ssungsgericht), ren•
de.red in 1953,34 purporting to expand the constitutional philosophy
of the judicial law making role, seems to be at odds with other
repeated pronouncemenls of the same court, when it declares that
separation oí powers is not an ~sentia.l of a Rule of Law (Rechts·
,~taat) but merely a "fundamental organizational principie,'• that
may be overridden by other principles rooted in the constitution. 35
According to this deci ion, if delegation of legislative authority to
court is implicit in such other principles, it is proper provided
that "legal security" is not thereby impaired. This avowed relaxa-
tion of the traditional bar imposed upon judicial legislation by
s3 6 BGHSt. 46 (1954}.
S4 December 18, 1953, 3 BVerfGE 225.
35 Division of powers was mentioned in the enunciation of the "basic
principies which the Constitution comprises in the concept of a free democra-
tic basic order" in the Socialist Reirh Party case. Judgment of Oct. 23, 1952,
Bundesverfassungsgericht (I. Senat), 2 BVerfGE 1, at 14 (1952). This enu·
mcl'ntion wns q11oted in the judgm<'nt of Augu~t 17, 1956, Bundesverfas..<nmgs-
gericht (l. Sen), 5 BVerfGE 85 (1956), outlawing the Communist Party
(Chaptcr II, item 1).
206 RJWIST.4 JURWICA DE LA UNIVERSIDAD DE PUERTO RICO,

the principle oí separation of thc judicial from the legislative-

power -a bar hardJy e.ver mentioned in common law countries,..
even tho e most in i tent 011 separation 36- is new in Germany~
Morevoer, it seem to be conditioned upon the presence of oonflict
o{ the principie of eparation with other constitutional tenets. Even
in the presence of such conflict, judicial legislation is permissible•
only provided that "legal security" is saíeguarded, for the latter,
in the court 's view, is an essential of the Rechlsstaat. The ultima te
limit of judicial legislation under any circum lances hence seems:
to be set at the point of impairment of "legal ecurity." But at what
point is "legal se.curity" impaired? The court thought that tbere-
can be no uch "security" where judges are called upon to make
deci ion depending on their "per onal philosophies and political
views."
Doe then cla sification of policy determinations into tho e·
requ1nng xpr ssion of "per onal philosophie and political views' ..
and all others aifonl the cru ·ial line of demarcation between the
aren of legislative monopoly, not open to oourts, and the area of
potential judicial legi lation? The numerous adherents of the view
that law is an expression of, and should reflect, prevailing culture
rather than "per onal philosophies" or even "political view " of
legi lators, might wonder whether within the test set forth by the
Constitutional Court in the cited case there is anything left over
which legislators have exclusive jurisdiction. One might further
wonder whether a division along the lincs suggested by the court
is practically meaningful, considering the fact that the several Su-
preme Courts of Germany them~elves hold clivergent views of the
nature of their interpretative function. Thus, the Great Senate of
the Bundesgerkhtshof in Criminal Matters ruled that the expression
"lewd conduct'' (Unzucht) in the Penal Code (§180) must be read·
in the light of immutable principles of Christian morality rather
than in that of oommunity mores.37 0n the other hand, the Bundes-
verfassungsgericht, in an illuminating decision rendered in 1960,38-
S6 On this see Helen Silving, The Twilight Zone of Positive and Naturaf
L'aw, 43 Calif. L. Rev. 477, at 504 (1955).
37 Cited supra, note 33.
38Judgment of December 20, 1960, reported in 14 Ne/U! /uristí,sche-
Wochenschri,ft 355 (1961).
 "STAKE DECISIS" IN THE CJ'IIIL A.VD IN THE COMltON LAIT'
207

interpreted the term "conscience" (Gewissen) in Art. 4, par. 3

of the Constitution of the Federal Republic 33 in the sense of "com-
mon language usa ge" ( im Sinne des allgemeinen Sprachgebraw:hes)
rather than in that of particular historically-culturally developed
beliefs or patterns. 40 Both decisions have, been vigorously attacked
by various commentators. 41 That they involved "personal philoso-
phies" or "political views" of the judges who rendered them, is
hardly deniable.
German jurisprudence today is torn between "statutory po-
sitivism" ( Gesetzesp<JsitiV1'.srmt,S),
traditional in Germany, and novel
ingredients of a "judical kingdom" (Richterkonigt:umJ) of Anglo-
American style. There is noticeable a strange oombination of both
elements. A striking fe.ature is the attempt to give the very judicial
Jegislation a systematic legislative foundation. For example, a rul-
ing such as that of tbe Constitutional Court on the constitutionality
of the Law ooncerning General Military Service42 possesses, ·by
virtue of an express statutory provision, 43 the same legal effect as
a statute ( Gesetzeskraf t). Such regulation of the effect of the de-
cisions upon general legal development is a phenomenon unknown
in counlries oí the common law. In Germany it seems to be needed
to satisfy the illusion of "Geset=essraa.t!' ev n as a basis of judicial
legiclation.
A suming that judicial legü,lation will contiilue to develop, the.re
will ¡:con he felt an urgent nee.d to y.stematize decisional law not
only by deíining the conditi•ons oí recourse to courts and the general
effocts of decjsions but also by providing a conscious methodology
oí decision making. One might e:\-pect English and American law

39 "No one musl be compelled canti-ary lo his conscience to perform

military service with anns."
40 All that is necessary is a showinr; of !IIIl inclividual's sincere persuasion
as a source of objection ngain~t anned military service in any war. The
contents of "conscience" evmce from the concrete situntion (situaJ.ionsbe-
;;ogcn) rather than from any definite pattern.
41 On the Bundesgerichtsho/ dec~ion !fee, for example, Jescheck, "Zur
Fra1?e dcr Kuppelei gegenüber Verlobten", in Monatsschri/t für Deutsches
Rec.ht 1954, 645-649. On the Bundesverfassungsgericht case see for exampler
Gustnv W. Heinemat1111, Note to tbe rnport of the case in 14 Neue ]LLristische
Wochenschrift 355-356 (1961); a.lso Adolf Arndt, Sprache und Recht in
14 id. 1200 (1961).
42 Supra. note 38.
~ Art of Marcl1 12, 1951, concerning the Federal Coostituti•mal Court
(Bunde_rnerf,1ss1mgsgericht,sgc:ictz) (BCBI. IS. 243), Text of Acts o{ July 21.
1956 <BGBl. IS. 662). of June, 26, 1959 (BGBl. I 297). of Sept. 8 1961
(BGBJ. I S. 1665) aod of August 3 1963 (BGBJ. I S. 589), 31(1).
'208 RE.l'IST.4 JURIDICA 1JE U U,V/1'.F.RSIDAD DE PUERTO RICO

·to afford some guidance in the choice of such methodology, in the

light of the long experience of the common law in case analysis
and application. But the common law it elf had until rather recent
times proceeded on largely uncon cious grounds, and the recent
realization in the common law world that the.re is not "one common
law method" but rather a variety of available conflicting and
-competing case law methods has brought about ,a "crisis of de·
ci ional law."
Nevertheless, the debate over the "proper" me,thod of case
1aw, in which British and American scholars are now engaged, af-
fords both a rich rcservoir of selection and many constructive ar•
guments, which might prove to be highly u c:ful to judges, legis·
1ators .and legal scholars everywhere in the course of policy making
.and policy projects. An important con ideration in deciding upon
Lhe "proper" method of case law hould b the nature of the function
·which that law is expected to perform in a given legal system. In
-civil law countries -soon this may also be true of common law
-oountries- case law must be fitt d into a scbeme of comprchensive
codiíication; its role must be subsidiary to codes and statutes. Its
usefulne s begins where the statutes prove inadequate. This sug·
gests that the test of the proper function of interpre1ative decisions
-should be their capacity of demonstrating the operation of statutes
by affording concrete "examples" rather than by mercly multiplying
the rapidly growing number of highly abstract rules.
Among the significant Anglo-American contributions to case
analysis is a trend which stresse the "non-verbal behavior" of
courts, advancing as ratio decúlendi (ground of decision) not "what
'the court says" nor "what it says that it does" but "what it actually
does," whatever may be meant by "actually" in this context. German
jurisprudence is far from adopting this position. But it has made
a substantial step in this direction when ít assumed the position
that thc binding force of pertinent decisions of the Constitutional
Court is to be attributed solely to the judgment rendered by the
-comt and not to the grounds of decision.44 The Bundesgerichtslwf
rationalized this position by pointing to the uncertainty of drawing
a line between "decisive" and mcrely "supporting grounds of de-
-cision" .and to the danger evincing from such uncertainty for both
4' 13 BGHZ 265 (1954), where the Bundesgerichtshof deals with the
-effect of certain decisions of the Bundesverfassun,gsgericht.
, "STARE DECJSIS" IN TIJE CI/ /f. A:VD /,V TIJE co.11.110.v lA/r'
209

iegal security and separation of powers. But what is the correct

division between a "ruling" and "grounds of de.cision?" German
-courts might, by taking as a basis the formal division between the
"'judgment" and its "grounds" ( Urteil and Urtt!ilsgründe), seek
protection against the vicissitudes of the conunon law method. lf
so, they will probably be. disillusioned in due course. The uncertain-
tics of Lhat method result to a large extent from the relativity and
mutual interdependence of the nature and scope of a "judgment"
and its "grounds." To find a fonctional solution, one mu t take
account of that relativity and form a policy decision as to how the
two Iactors should be conceived to bear on each other. A conscious
decision on what procedure should be adopted for determining the
'SO-called"ratw deci.derul?' of oases is the most significant task of
the f uture jurisprudence of judicial law making.
The foregoing description of "case law" in Germ.any would
be quite inadequatc wilhout at lea"t an indication of the legal phil-
osophy prevailing in Germany. The reflection of "law" in popular
:and juristic thinking is an integral part of the control apparatus
of "law," of the "life of the law" in a given community. So i., of
course, the philosophy of law that pervades the "law" itsclf. Juris-
prudence "within the law" may be said to have a more immediate
effect on "legal" development than "me.talega! jurisprudence." For
this reason, it is mo t ignilioant to note in studying the impact
of "common law" lhinking on civil law that it has not as yet pene-
trated -and perhaps never will fully penetrate-- the "philosophy
within the. law" itself. Typical "common law" phrases, such as that
the law i a process oí "tria] and error," may he occasionally
encountered in a German ca e, but there is reason to doubt that a
civil law jurist reacts to such pronouncements either rationally or
emotionally in the same manner as common law jurists do. An
opinion of wide fame in Germany, in which that sentence occurs,
i that accompanying the Judgment which outlawed the Communi t
Party. 45 But the total philosophy of constitutional law on which that
.Judgment is based, th very notion of a constitutional, that is,
statutory, provision conferring upon the Constitutional Court an
original authority and duty of éle.claring a political party "uncon·
45 Cited supra note 35.
210 REl'I T.4 JURIDIC4 m: I.A UNIYF.RSIDAD DE PUERTO RICO

stitutional," 46 is hardly a reflection of the spirit of "trial and

error" or, indccd, of any !)hase oí common law ideology.
Perhaps the most sLriking ex1>ression of the philosophical di-
mate pNvading civil law juri prudcnce notwith_t.nnding any deviant
legal theories that roo.y haYe originr.tcd in civil law soil, i thc fact
that Eugen Ehrlich died in Europc in obscurity. To a civil lawyer
the "Law" is primarily composed oI "rnl s." If thc e happen to be
inoomplete or inconsistent, then there i felt to be a need for sup-
plementation or for a conoordance in the style of a concoráanria
discordantium canonum. If there is no general conform.ance to the
law in tbe books, then pe.rbaps a reform is in poinl. But the "case
law" idoo1ogy has no genuine roots in civil law countries. A "case"
does not mean the same in Germany as it does in the United States.
It may hencc be useful to introduce. lhe rcadcr into "common law"
thinking by first pointing out certain juri~prudm~ ial, philo opl1ical
differenc<"" betwccn it and "civil law" idea_,

III. PRECEDENTS IN THE COMMON LAW WORLD

JURISPRUDENTIAL BACKGROUND

An assertion Lhat in the common law, in contrast to the si-

tuation obtaining gcnerally in the civil Jaw, one de.cision constitutes
a preccdent, presents a superficial picture oI jurisprudential rcality.
In matlers of "comparative law" verbal formulae are mostly mis-
leading. Bette.r in ights rnay be reached iI the comparison is oast
in terms of what the person per:rorming roles in "legal" proce.,ses
"do" in the systems in is~ue, given certain comparable factual cir-
cumstances. But even such "doing" may reflcet but a minor portion
of social or legai life. The matter musl be approached with the
attitude of .an anthropologist, trying to penetrnte into the ideology
behind the legal rituals. 47 That ickology may be unconsci-ou , even

46 Art. 21 of the Basic Law (Grondgesetz), which provides in para. 2

that "Parties wbicb by reason of their aims or tbe behavior of their supporters
seek to impair or destroy the free democ-ratic ha ic order or to endan~er
the existence oI the Fed ral Rl•puhlic of Germnny nre wnsconstitutional. Tbe
Federal Constitutional Court deeidt:s on the question oí uncon titutionality."
Translated in Edward McWhinney.Judicial Restraint a11d the West German
Con.r,titu.tional Court, 75 Ilnrv. L. Rev. 5. nt 21. n. 64 (1961). ce id. for
backl(Tound of the decision, at 20-22.
47 Bronislaw Malinowi::ki, Crime a11d C1Mtom in a1,-age ociety, Intro-
di.:rtion (London, Routlcd~e & Kegun Ptml Ltd. 1926), showed how pre-
"STARE DEC/SIS" IN THE Cll'/1, AND IN 1'HE COMMON LAW
211

in the case of the most learned in law. To evaluate the "comparative

law of precedents," the observ r must concern himself with the
question of whether the pertinent qu ries are at aH directed in the
several laws to the same issue. Of course, these queries must be
posed in operational terms: What do the various actors in the leaal e
drama "do" with a judicial d cision? Who utilizes it an<l how i
it being utilized? But however "operationally oriented," an inves-
tigation of that type cannot remain within the confine of "ope.ra·
tional thinking." An important further query is: What do the actor
themselves and others, whom one might describe as the "choru ••
in the drnma oí law, think or feel about such "doing?" Do any
oI these pe.ople consciou ly advert to it at all, and if so, what stage
of awareness or of sophistication has been reached, and what is the-
distrihution of such awareness and intensity of concern among the-
actors and the choru ?
These questions ultimately lead to primary problems of juri •
prudence: Wbat is "law ?" What is "authority" or "binding force?',,.
In the context of policy making these questions can haxdly be
answered purely cognitively; there i , no douht, a mínimum con-
ce.pt o{ "law" of comparative scopc, that is used, inarticulately
perhaps, in intemational law context and might evolve from con-
scious cooperative analysis of international jurists, Ü they really
chose to engage in one; such concept might be cognitivc. Apart
from such comprchen i e analysis, the stated problems are not
susceptibie of being understood without regard to the total oomple.
of the values of a gjven society. Is "ccrtainty" of law or "security',...
or stability a virtue, and if so, what rank does it occupy in the·
hierarchy of virtues? What is the proper function in society of
a lawyer and a judge, as compared with the academic ''scholar ?"'
Is substance more important than procedure or vice versa? In-
extricably combined with ali these questions i how law carne· to
be and whe,ther and to what extent it can be detached from its
past. In thc last analyisi.::, there is no such a lhing as a "comparison
of laws;" all that can be compared are eertain partial aspects of
their total images. Nevertheless, such limited compariwn may be
conceived ideas ahoul the ideologie of primitive comm\mities have ha111dicap·
ped anthropological insigl1t. We are similarly bandicappt>d whcn undertaking
studv of the Jaws of communities with which we are not intimatelv acquaint-
ed and of which we have no frist hand or sufficiently comprehensive knowledge.
212 REYISTA JURIDICA DE L.4 UNIPER.SIDAD DE PUERTO RICO

instructive, in showing that, even though the very tenn "law" may
not have the same meaning in two systems, there obtains in them
a remarkable parallelism of certain phenomcna, It may be thus
instructive to note that in the common law, as in the civil law, it
mo tly requires more than one case to establish a workable "pre-
cedent," meaning, one which will in all probability be followed
in the belief that it affords a "binding authority." Though the
lattc.r term may not mean thc same in the two legal systems, its
social meanings in these systems are "tangential." To sorne 'limited
extcnt, they represent similar social consequences. Thus, as there
is -notwithstanding differences of interpretation and of pertinent
lC'gal philosophies- a minimum common understanding among men
regarding the symbolic reference of thc term "law," so there is a
mínimum notion of "precedent," as source of law.
Much has bcen said in both legal and p ychological literature
about the significance of expre. ing "meaning" in "non-,·erbal"
operational terms, and this approach is assumed here to be basically
-correct, i.e., functional. However, this approach is subject to limi-
-tations. Verbalization, particularly in law, is an esse.ntial oí any
.experience. Examples, to "exemplify" anything, must be verbalized.
Obviosuly, the first qucstion which should be answered -and
-cannot be answered "non-verbally" -before engaging in any com-
parison oI the "law of precedents" is what a "precedent" is. No
ooubt, such comparison would be entirely devoid of meaning if
~he 5ymbol "precedent" were not taken to convey some mínimum
common denotation in all thc· perLinent syslems. In the widest sense,
~'prec dent in law mean any practicC' that is relie.d. on, and is at
pre enl mostly takcn to refer to u of judicial decision in this
rnanner." But the sense in which a "precedent" is "relied on" poses
the íirst problem that may be di!,parately answered in various laws.
lt is usually formulated in terms of the "authority" or "binding
íorce" of a precedent, and upon clo e.r crutiny may be shown
to involve the comprehen he and more íundamental issuc, already
mentioned, of what "law" i .. A!'suming that we know what "bind-
ing" means, the further queslion i : What in a de.cision "is binding?"
Th e and many other questions are not uniformly answered in the
civil and in the common law, as has bccn already suggested when
it has bee.n said that civil law juri ts look upon the faw prcdomi·
nantly as a system of "rules." But neither are the mentioned ques-
"STARE DECISIS'' IV TlJE l'll'll A.YO l.\' Tllf: f 0111/0N LA/P
213

l.:ons uniformly answered in all parl oí the common law world~

!nde~d, ewn within the same jurisdiction, or before, or by, an
1dentical cou_rt, djvergent ar., wers to these auestions may be given
or suggested.
Particularly where lhc. lnck of uniformity pertain to the ques-
tion as lo "what in a deci ion is binding," civil law jurists might
be inclined to doubt th uility oí the use of precedents. 0n the other
hl1Ild, the apologi ts of thc common law consider this vcrry lack
of unifomity in methodology to he one of the oomon law's greate t
virtues. 48 The possihility of re<:...ortto various competing methods
of "case analysis" is said to enable lnwyers to find in the "exfating"
law authority for diverse policy arguments, without breach of legai
continuity. This does not mean -we are told- that any position,
however arbitrary, rnay be thus supported, but only mean that
"rationality," "rea onableness," --.or "legitimacy" is not a monopoly
of any single solution. Scholastically rather than forensically oriented
civilians prefer legal certainty to the Ile.xibility of the common law
method, which favors a problem-solving, socratic, argumentalive
approach to law.
The düference in <;valuation of the relative merits of certainty
and flexibility may pe.rhap be explained by the fact that commQn
law jurists do not react to uncertainty with the same amount of
anxiety es civilians do. This, in turn, may be connected with thé
strong historical orientation o{ common lawyers, their belicf that
history sets a limit to chao . Finally, through hlstory, as one sho,w~
ing continuity of the common law. there seems to be afforded an
assurance of rationality. So deeply rooted i the common lawyer's
association oí law .and precedent with history, that he assumes,
notwithstanding Holme's per ua ive arguments to the contrary, that
"judicially developed norms appli c1 in a particular case have al-
ways been the law. This rule, at the least, ymbolizes, the common
assumption (spoken or tacit) . that ali present and future develop·
ments in comrn()n law principies are omehow already implicit in
the common law existing hitherto. 49 It is probably due to. thís
orientation that the inconsistencies of the case l.aw methodologiei,
.ai Juliua Stone, The Ratio o/ the Rati.o Decidendi, 22 Mode~ L. Rev.
597, 598-600 (1959).
49 /bid.
2H REVISTA JURIDICA DE LII UNIYERSIDAD DE PUERTO RICO

have until quite rccently passed pracLically unnoticed in the com-

mon law world.
In the civil law, with its focus on "timeless" scholastic prin-
cipies or systematic con id .ration , a case is readily detachable
from its pa t. By contrast, in the oommon law each decision is
viewed in thc light of bistory and projects that hi tory into the
íuture, uniting past and future cases. Possibly, this íeature has
also obscured the difference in the impact as authority of severa!
decisions and one decision, obliterating the transition from "custom"
to "precedent,"50 and now facilitates uncritical acceptance of univer-
ality of the formula that "one decision is a precedent."
This historical orientation, in which past and íuture combine
into one, is also a oonstitutent element oí the legal philo ophy which
is at present dominant among common law jurists, the Holmesian
view of "law" as a probability judgment, based on past experience,
as to what courts will do in the future. 51 Within such vie.w, assimilat-
ing "law" to an empfrical law oí nature, "binding force" or "author-
ity" oí a precedent cannot have the ame meaning as it has within
thc civil law conception Lhat the "law" i a "rule." Cynics might
compare the effort of courts of the common law to arrive at their
own decision in terms of a "probability judgment" inferable from
past decisions to Baron Müncbhausen's attempt to pull himself out
of a mudpool by his own pigtail. 52 So the smile of the "probability
judgment" cannot be taken to be strictly apposite in all situations.
Justice Holmes's famous phrase, "The life of the law has not been
logic: it has been experience," 53 seems to be applicable to bis very
definition of law as a "probability judgment." By this phrase, of
course, he did not mean to say that law can dispense with logic, but
rather suggested that the process of decision making requires other
so Frederick Pollack and Federic WiJJiam Maitland, / History o/
En¡;lish Law 183 (sec. ed., Cambridge, University Press 1923).
s1 "The propheoie of what the court will do in fact, and nothing more
pretentious, are what I mean by the law." Oliver Wendell Holmes, The Path
o/ the Law, 10 Harv. L Rev. 457-462 (1897).
S2 Max Planck, Vom Wesen der Willen,sfreiheit (1939), pointed out that
it is impossihle to predict one's own conduct without at the same time
influencing such cOlllduct by self•observation. Of course, this does not render
prediction of one's own judf!Il'lent playfog a role in the process of reaching
~uch judgment, impo sible. But except where such self-observation is directed
~o elimination of prejudice and thus to prediction in reverse. the idea of
"law as precliction" when applied to the decision maker himself is awkward.
S3 OlivPr Wendell Holmes. The Commo,~ •Law l (Forty-fiith Printing~
Bo~ton Little, Brown and Company, 1923).
 .. STARE DECIS/S" IN THE Clrll. A,\D /,Y TJ/E COMMO.V LAW
215

tool in addition to logic. ext to "thc slory oí a nation's develop-

ment through many centudes," he mentioned as such "tooh,"
"[t ]J1e felt necessities of the time, the prevalent mora] and political
theories, intuitions of public policy, aYowed or unconscious, even the
prejudices which judges share with their fellow-men." He wound up
by saying tbat "[t]he suhstance of the law at any given time pretty
ncarly corresponds, so far as it goes, with what is thcn understood
to he convenient.54 Wherein lies the "probability judgment" which
the e tools are supposed to facilitate? lt would seern that it must
consist in the judge's projection of his own decision into the future,
in thc evaluation of the chances of its social acceptance. Shared
"prejudice,' present "convenience," and "existing theories of lcgis-
lation" combined with history, serve. as basis for a forecast, whether
conscious or unconsciou , of what the same and future courts may be
expccted to accept as "authority." A decision in the style of com•
mon law thinking is alway oriented to the future, as it is to thc
pa t. Con ideration of "future acce.ptance" is, in fact, the only
rational meaning that can he given, in the 'light of critical rational-
istic analysi , to the vi w that law an be testcd by a method oí
"tri al i:.nd rror."
Of cour e, whatever may Le it meaning, a "probability judg-
mcnt" cannot be "binding" in the. samc sense in which a "rule' is
refcrred to as "binding." Sucl1 judgment always connotes a "degree
of probability." Onc might eay that once a judgment of probability
has been acceptcd by the prec<'dent ourt and ha bcen inoorporated
into iLs prccess of acljudication a ~ufficient to serve as a basis of
a decision, it is tranf-formrd into tht" 'rule" of that decision, wbich
is "binding." This, in foct, is the r.ieaniI!g attributed to the "bind-
ing force of a precedent" by many courts and writers. But if this
were the only meaning of "binding,'' the oontinuity of the proces
of ''probability" estimation would come to an end as regards such
"ru'le," the sole question that remains possibly open being what it
is that is "binding" in a prccede.nt.
Other meanings of "binding" as regards a precedent are hence
suggested. For example, it may be as¡;umed that a precedent would
or sbould be. accepted by future courts if the same judgment of
probability as expressed in thc pr<'cedent is repeated. This need
M Op. cit. at 2.
216 REPIST.~ JURIDIC.4 DE LA UNIYERSIDAD DE PUERTO RICO

not render the precedent superfluous, if it is taken to afford a

presumption of oontinued validity of the precedent's probability
judgment.
Of greatest significance is thc íact that the degree of the value
oí a case as a precedent is not a constant quantity. There are strong
and weak prece.dents and more or less settled "rules." There are
many elements that enter into the degree of the "hinding force"
of a precedent, its closeness or rcmoteness, e.g., in time to the date
in which it is relied on, in ituational analogy, the relation of
the forum of the precedent to that of the court hefore which the
issue arises, the method or methods whereby that which in the
precedent decision i supposed to constitute the "precedent" is
reached. One speaks of the "binding force" of a precedent if it
has been significantly taken into oonsideration in reaching a new
decision or if it is likely to be thus taken into consideration. Beyond
a minimum of such "significance," there are many varieties. In th:is
sense, "binding force" is not a purely "normative" concept, as
civilians might understand it. It is perhap a composite comparable
to that which in common law is designated as a "mixed question of
law and fact." Civ:ilians might say that a precedent as a source
of law is either "valid" or "not valid" and that tertwm non datur.
But to the common lawyer the "valídity of a precedent" is not fixed
in this sense: there are degrees oí validity. To such lawyer, this in
fact may he the most striking difference between a statute and a
preceden t.
Perhaps this "validity" oí a precedent expressed in terms of
degree can be best observed against thc background of a case in
which a United States Federal District Court is called upon to decide
a case transíerred to it from a State Court. Such Federal Court is
"bound" to apply State substantive law, and since Erie R. Co. v.
TompHns,ss is thus "bound" to follow State precedents. The ques•
tion then arising within the To-mpkins holding is to what extent
State precedents may be said to reflect "state law" for Federal
purposes, what State preCP.dents are to be deemed "binding," and
what in a State precedent may be deemed "binding." "Binding"
does not have the same meaning in these contexts. A most instructive
casf", in which the plurality of the mc.:ming of the term "binding
SS 304 U.S. 1:1 (1938).
 "STARE DECISIS" IN THE CIYIL Afl'D IN THE COM,110,VLAW
217

precedent" is rather dramatically demonstrated, is BernJ1ardt v ~

Polygraphic Com¡xmy oj America.56
In the Bernliardt case the issue was whether an arhitration
agreement concluded hetween the now litigating parties in ew
York was "binding" in a Federal court sitting in Vermont. The-
chances that the Supreme Court of the United tSates would overrule-
the Tompkins holding whereby Federal courts must follow State
substantive dccisional law, were at the time when the Benmardt
case was being litigatcd too remotc to be seriously taken into
account, although this does not preclude all possibility of its reversal
at sorne future time. TI1e "probability" that Tompkins would be·
followed was for the time being onc. verging on certainty, and thus
the degrce of the va1ue of tbe case as a precedent was extremely
high, meaning that its "bincüng force" was practically absolute..
The effect of this decision oould still be avoided by a successfuf
argument that the arbitration agreement in issue before the court
was a matter of procedural law, to which the Tompkins holding does
not apply. The chances oí uch or a contrary ruling werc rather
difficult to cstimate, in the light of the fact that the Supreme Court
of the United States bad held within a single year the. etatule of
limitations to be a matter of sub tance in one context57 and a matter
of procedure within another context.58 A civilian would probably
rather assume that an arbitration agreeme.nt, whicb purport to•
deprive a court of jurisdiction, should be deemed a matter of pro•
cedure. But the Supreme Court of tbe United States held that it was-
a matter of substance. In this it r lied on Guaranty TrU,St Co. v.
Y ork,59 where tbe running of a Sta te statute of limitations in an

56 350 U.S. 198, 76 S. Ct. 273, 100 L Ed. 203 (1956).

57 Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S. Ct.
1464 (1945). .
S8 Chase Seeuriúes Corp. v. Donaldson. 325 U.S. 304 (1945). This was
not a case arisi:ng under the Tornpkins rule, but one presenting an issue under
the Fourteenth Amendmet: whether a State statute which lifted the bar of the
statute of limitations in a pending liúgation amounted to taking of property
without due process of law from lhe one in whose favor ti ran? The Court
said:
Statutes of Hmitation find their justification in necessity and'
convenience rnther than in logic. They represent expedients, rather thnn
principles. They are practica} and pragmatic devices to spare the
courts fri,m litigation of stalc claims, and the citizen from being put
to his defense after memories have faded, witnesses hove died or dis-
appenred, and evidence has been lost.
59 Supra, note 57, cited in 350 U.S. 203-204, 76 St. Ct. 276-277.
:218 REY/STA JURJDIC.1 DE LA UN/J'ERSID.4D DE PUERTO RICO

.equity suit was beld "binding" upon a federal court, on the theory
that "[t]he nub of the policy that underlies Erie R. Co. v. Tomp-
kins is tbat for the same transaction tbe accident of a suit by a
non-resident litigant in a federal oourt instead of a State court a
block away should not lead to a substantially different result." 60 "The
change from a court of law to an arbitration panel" -said the Court
in Bernlur,rdt61- may make a radical diiference in ultimate result."
'To be sure, it might. But is there any litigious issue which might
not make such a difference? What type or probable degree of•
impact upon lhe "ultimate result" would be deemed sufficient to
r.onstitute "a radical difference ?" Would psychological or socio-
logical reality íactors be taken into consideration? Factors of this
nature have been deemed legaJly determinative in other contexts in
the United States. 62 What then is the value of the Bemhardt case
as a precedent in future case arising under Tompkins on the issue
oí the procedure-substance dilemma? Added to the York case, Bern-
harclt could undoubtly be expecterd to help in resolving sorne is-
ues while in others reliance upon it by a oourt might mercly serve
-as a guise for what was aplly called the "inarticulate major premiss"
h the decision making process. 63
Having de.cided that whether the arbitration agreement -being
a matter of subsance~ was binding-64 must be determined ,by
60 Notice, however, Justice Rutledge's vigorous dissent in the York case,
:,ased on the contention thot, notwithstanding Tompkins, the statute of limita-
úons in an equity suit is a matter oI procedure. 326 U.S. 112, 65 S. Ct. 1464.
61 350 U.S. 203, 76 S. Ct. 276.
62 For instance, in Poe v. Ullmnn. 367 U.S. 497, 81 St. Ct. 1752 (1961).
where the complaint nlleged that the tote's Attorney of Connecticut "intend5
to prosecue any offenses ag11inst Connecti('Ut law, and that he clnims thnt
use of advice concerning contraceptives would constitute offenses,. (367 U.S.
at 301, 81 S. Ct. at 1754), it was held that such verbo! threat bv the State's
_l\ttorney would not be sufficient a thrcat of prosecution in the event oI
violation, in the light oí the fact that the record did not disclose a history
·or actual prosecutious under tl1e pertinent law.
63 Holmes, The C.ommon. Law, supra, at 35-36, said:
The very con ideration whic-h judges most rarcly mention. and
always with an apology, are the s cret root from which law draw
ali the juices cf life. I mean, I course, considerations of what is
cxpcdient for thc community concerned. Every important principlr
whkh is develored by litigation is in fact at bottom the result oí
more or less deíinitely understood views of public policy; most gen·
erally, to be sure, under our practice and traditions, the unconscious
result of instinctive preferences and inarticulate convictions, but none
the less traceable to views of public policy in the last analysis.
61 This is another meaning of "binding."' hut does not in this context
necessarily refer to ''binding" as a precedcnt.
 º"STIIRE DECISIS'" I\ THE lll /1. -1\'D IN TI/E COllll/0\ l.◄ lf'
219

·vermont law for the purposc of the Tompkins rule, the United State
.Suprcme Ccurt was further faced with the question as to what wa
Vermont law on this i.: ue at the time oí the Bernhardt litigation. To
,determine this was a matter of considerable diificu1ty. The last
-decision rmdered on the subject by the Supreme Court of Vermont
dated back to 1910, and that decision relied on another one, decided
in 1803.65 The United State Supreme Court took into consideration
the possibility that Vermont law on the point might haYe changed
·since 1910, even though sueh change was not documented by either
·1f'gislative or decisional authority. lt Iinally found that the Vermont
cases referred to could be taken to reflf'ct Vermont law in force at
the relevant time, since (1) the Federal District Judge who rendered
th dccision below, relying on these two cases, carne from the Ver•
mont bar; and (2) no dicta, doubts or ambiguities of Vermont jud·
ges, no legislative development that promise to undermine the judi-
•cial rule, could be found. 66 Concurring, Mr. Justice Frankfurter ad-
vanced an even broader jurisprudential view of the scope of Ver·
1mont law, which a Federal court mu t consider as "binding:" 67

... " [E] stimates" are necessarily often all that federal
courts can make in ascertaining what the tate court would rul
to be its law. . . [T] he mere fact that Vermont in 1910 restated
its old law against dcnying equitable relief for breach of a
promise to arbitral a contract made under uch Vermont law.
is hardly a conclusive ground for attributing to the Vermon•.
Supreme Court application of this cquitable doctrine in 1956
to a contract made in ew Y.ork with explicit agreement by thr
parties that the law of ew York which allows such a tay a~
was here sought ... should govern ... Law does change with
times and circumstances, and not merely through legi latfr~
reform It i also to be noted tl1at law is not restrictcd to whal
is found in Law Report , or otherwise writeen.

'In support of the first sentence Mr. Justice Frankíurter said :68
65 Mead's Admr. v. Owen, 83 Vt 132, 74 A 1058 (1910}; Aspinwall v.
-Tousey (Vt) 2 Tyler 328 (1803).
<i6 Supra, 350 U.S. 204-205, 76 S. Ct. 277.
67 Supra, 350 U.S. 205, 205, at 209-210, 76 St. CL 277. at 279-280.
68 lbid., note 3 at 350 U.S. 209, 76 S. Ct. 279.
220 REY/STA JURIDICA DE LA UNIYERSIDAD DE PUERTO RICO,

lt is peculiarly true of the problem hefore us, that law

is a prophecy "of what the courts will do in fact."

As may he seen, the degree of the "precedent value" of a,_

decision rendered by a State Supreme Court dependa on a number·
of variables; foremost among these is its date in a Tompkins context,
though in other contexts the ancientness of a decision is not deemed
to detract from its validity.
Thus, in the Bemhardt case there may be found at least thre.e-
instances of precedents, the "binding force" of which may be said'
to be different, in the sense that each of them could have been·
predicted to be followed in the case with greater of lesser probability.
Does this feature of precedents render them less useful as legal'
sources than statutes? The chances that a statute will be appliedJ
in future cases also differ in degree, depending on variables. The-
differcnce between a statute and a precedent in this regard rather-
lies in the fact that it is not customary to use a statute as a "more·
or less valid authority," whereas it is customary to do so in the•
case of precedents at common law.

IV. PRECEDENTS IN THE COMMON LAW WORLD:

WHAT IN A DECISION IS THE PRECEDENT?

As suggested above, one of the items to be considered in de-

termining the degree of "binding force" to be attributed to a case·
is the mcthod or methods whereby that which in the precedent
decision is supposed to constitute the "precedent" is reached. In
the civil law methodology of precedents, except in special situalions, 69 '
the court's statement in the opinion constitutes the "precedent,"
provided that it is repeated in severa} cases, even though it is thus-
uttered by the oourt in all or sorne of these cases not in direct·
relationship to the judgment. By contrast, in common law countries,.
such statement of a oourt not related to the judgment is not a "pre•-
cedent." To be a "precedent," a factor must be related more or •
less directly to the judgment, but what that factor is or should be
or how it must be related to the judgment or who determines-
whether it ji_ thus properly rela.ted, are highly controversia} ques--
69 Compare supra, at note 44.
 ~'STARE DECISIS" IN TFIE Cll'lf. AND /Y Tllf, C0.1/MOV L.111
221

,tions. The di pute is known as onc concerning the so-called "ratio

decidendt' of the case, as oontrasted with a "áictum" or "obiter
.áitcum" (apparently lcss than a "dictum")-a tatement of the court
not related to the judgment.
An observer might query how it is possible that throughout
many hundreds of years of common law development no firm idea
has crystallized regarding the crucial issuc as to what in a deci-
ion is "binding." The an wer pe.rhaps may be found in a historical-
jurisprudential phenomenon. At Iir t a case was deemed an "ex-
ample" (exemplum) of a "cu·tom," and custom was thought sus-
,ceptible of extension by analogy. But we must not think of any of
the operative concepts of this proposition in terms of our own
írames of refercnce. We do not know all the legal phenomena which
were oomprehended in "cu tom" 70 or what degree of authority
they po sed at variou historical tages. As pointed out by Pollock
.and Maitland, 71 Bracton who in bis age stood quite alone in elabo-
l'ately citing cases "had not our modern notions of 'authority.'" Ami
'he apparently thought that analogou application of a custom required
,authorization by the great assembly of prelates and barons. In
evaluating the origins of "precedent:' it is well to keep in mind that
we generally lend to project • our own jurisprudential conceptions
-0nto the past as well as ónto other cultures. This impedes under·
standing that ''authorty" of law has various meanings in variou
.cultures and denote various intensities of the experience of authority.
In early cultures it is 0Ite11 combined with anarchical elements.72
A thorough socio-psychological study of the nature and origins of

70 Notice particular1y uu: manner in which apparent "custom" operated

in the Roll of Esther. The King had called h.is advi ers to consultation on how
to treat the recalcitrant Queen Vasbti. Tbeir qualificati0111as such advisers
consisted in their knowledge of custom. He called them because they "knew
the times (for so was the king's manner toward all that knew law and
judgment." Esther 1: 13. But the advice of these men did not refer at all
to any existillg custom; it was rather concemed with the policy to be follow-
ed, in the light of the probable impact of Vashti's treatment on future
matrimonial power relationships, and the policy thereafter adopted was en-
acted and published as royal decref'. E. tber 1 :16-22. Compare also Roscoe
J>ound. The History and ~-stem of the Common Law 56 (P.F. Collier &
Sons, New York 1939).
71 Pollock & Maitland, r>p. cit., supra, note 50, at 183-184.
72 Broni law Malinowski. Crime and Custom in Savage Society (London,
Róutled¡?;e & Kegan Paul Ltd. 1926), showed such anarchical elements to be
present even in savaAe societies, c0011.raryto the view until then held by
unthropologists that the savage is blindly and without reservation obedient
to the authority of tl1e legal ritual.
222 R.EYIST.4 JURJDICA DE LA UNll'ERSIDAD DE PUERTO RICO,

custom as source oí law i outstanding. Such study might perhaps

convey a better in ight into later forros oí "authority," for undoub-
tedly there is a connection belween "custom" and later evolving
rources of law, and it may be surmised that there ex.ists hetwcen
thcm a historical-ideological tran ition, not yet comprehended by us.
It is thus not clear how tbe "example" of "custom" later carne
to he regarded as "e idence"-"evidence" no longer of "custom' .,
but of a preexisting "rule oí law" discovered and not invented
by the judges. "Custom" in early society seems to have have beell"
a phenomenological social reality oí things done in a certain way
i-ath r than a mystical metaphysical entity. Magic itself, which
plays an important role in early law, seems to have been oonceived'
of not as a distinctive event hut as integral part of the rest of aU
life happenings. We do not know how out of such notions of
"custom" and its exemplification there merged the duality of
"law," as a ''brooding omnipr ence of Rea on," and "precedent"
as its mere "evidence." To understand thc full perhaps atavistic·
origins and rneaning oí "precedent," such knowledge would seem
to be essential. lt is regrettable that the matter has not been more
elaborately studied by social psychologists.
Bentham has bluntly obscrved that on each occasion on which,
a judge rrnder an original decision, "the rule to which íhje gives
the force of law, is one which, on this very occasion, he malees out
of his own head." 73 But not until Holmes has the jurisprudential'
realization that a decision is not merely "evidence of preexisting
law" significantly influenced common law jurisprudence. Until then
the duality of "law," as a transcendental eternal and omnipresent
entity, and of "decisions," as not even manifestations but merely
as "evidence" of such "law," was part of the juristic religion of the-
common law.74 Holmes suceeded in persuading oommon law jurists
that not only are decisions controlling formulations of "law," but
that they are ''law itself :" for there is no such thing as "a trascenden-
tal hody oí law outside of any particular State hut ohligatory
within it unless and until changed by statute." 75 "Law" is r.ather
73 Jeremy Bentham, Justice and Codi.fication Petitions (1829) Petition-
/or Codiíication, p. 2.
See on this Mr. J uslice Frankfurter's summary in Goaranty Trust
74
Co. v. York, supra, note 57, 326 U.S. at 101-104, 65 S. Ct. at 1466-1467.
15 Supra, 326 U.S. at 103, 65 S. Ct. al 1467.
"STAli'E DECISIS" IN TIIE Cl/1/L AND /,V THE CO,l!MON LAIP

the enunciated dictate of the sovereign, the Stiate: "Law" is the

"decisions," as well as the statutes, of the State.
The change of "juri prudential atmosphere" which paved the
way to acceptance of the Holmesian view-whlle Bentham's similar
view was not taken seriously-was, of course, connected with a
shüt in the general epi temological ''climate'' oí opinion regarding
the overall relationship between "evidence" and that of which it is
"evidence." Formerly it seems to have heen felt that since the "law"
is in existence regarclless of being perceived, whether ,a medium
of its discovery is true or false, rigbt or wrong, is in the oourse of
time dcmonstrated by Lhe nature of the probandum as "law;"
the latter ultimately proved itself, heing in the Iast analysis
"seH-evident." As an incident of such immanent proof of "law"
qua.si hy its "revelation," it might perhaps be demonstrated whether
the method oí precedent used in the evidentiary process was correct;.
in any event, such method was not necessarily uniform, as there
are varieties of methods oI proving the same probandum. Inherent
in this philosophy was the Ieeling that there is less significance
in that which in a medium of evidence is evidentiary than in that
which in a "thing" is il "esscnce." Wben helief in such "essence'.-
of law, its rnet.aphysical substance as "Reason omnipresent and
eternal," wa lost, a Copernikan turn was accomplished: attention
for the first time ÍOCtt!':edon the so-called process of evidence of
"law," for on Lhe type of methodology used henceforth de.pended
what was to be "the law." Thus, Lhere arose a di pute over what
in a precedcnt is the "precedent."
Howe.ver, long hefore the lime when critical philosophy was
thus fir t applied to tbe law of "precedent ," it had been estahlí hed'
that, whatever may be the "evidence" of law in a case, it is not
''the words" used thercin. Francis Bacon emphasized this "non-
verbal" character of decisional law to be its distinctive trait, as-
compared with statutory law.76 "íNJeque enim ex verbis regul.ae
pelenda est probatio, ac si essent textus legi,s; regul.a enim legem
indica.t non statuit" (ProoI cannot be derived írom the words of the
rule, as if it were th text of a ta tute; for the rule indica tes tbe
law but <loes not constitute it). In time "precedent" was defíned 77
76 William Searle Hold wort.h, Some Lessons From Our Legal Hi,Hnry
17 n. 30 (New York, Macmillan Co. 1928).
ií Gitcd op. cit., at 17.
.224 REVIST.4 JURIOIC.I DE LA UNIVERSIDAD DE PUERTO RICO

.as being "not the exact words u ed in this or that judgment, nor
even all reasons given, but only the principle reoognized or applied
as necessary grounds for the decision." This definition contain
'hardly an ope.rative ingredient that has remained uncontroversial.
Nor is the list of controversia! subjects exhaustecl by those mentioned.
Even Bacon's characterization of the "regula" as "non-verbal"
has been only superficially upheld. For, while no specific single
-expression of the judge's ver~ion oí the "rule of the case" is insisted
on, the so-called "classical view" postulates that such rule is what
the judgc deems it to be and that what he deems it to be is "express-
-cd" in the opinion which he "writes." In fact, tbe rnost vigorou
efforts in the struggle for ralionalization of the law of precedents
.are directed precisely al re loration of the "non-verbal" characlcr
of the principie of law expre sed in the case.
Key quest,ons concerning the "ratw decúkndi!' v.ariously an-
wered by courts and writers are. What ground or grounds are
necessary ' for a given decii;;ion?; Is tbe "principie" which consl i·
tutes the "authority" in the case that which Lhe precedent court has
"recognized" to be such "principle" or that which a later court
"follows" or applies as such "principie.?"; Is the "principle" reveal-
ed in a "statement of principlc" or in the material facts?; Are the
operative facts of a case derived from thosc stated by the court or
from those appearing in other parts of the record? ; Are they those
which the precedent court finds to be the operative or material facts
-or those which a later court, purporting to apply the former case as
authority finds to be the material facts? Thus, the possibilities of
interpretation of a case have multiplied, opening the door to in-
numerable possibilities of finding the allegedly one and only "ratw
,decülendi." A variety of argume.nts, among them oflen contradictory
oontentions, can be hased on the same case. One hegins to wonder
whether tbe "example" still "exemplifies" anything, whe,ther
'"Reason" is still a "rationale" and not rather a "rationaiization,"
and whether it would not he wiser to abandon this game of wits
and of hidden meanings, and choose a more up-to-date and les
seH-deceptive metbod of policy making.
lt is of utmost significance to realize whenever questions of
ullimate po1icy are posed that legal philosophy is not merely a
-dispassionate ob erver oí law, looking upon· it from the outside, but
:a pai::sionate active particip.ant in the law itself. "Law," or whatever
"STARE DECISIS'' IN TI/E Ctr/L AND 1,V.THE CO,lJMON LAIT'
225

is called thus, has a nolion of its own oí what it is or should be.

There are reflected in it the various moods and temperaments of
those who shape it. As regards the described so-called "unrulines"
of the law of precedent , the diverse reaction to it among jurists
adds confusion to the general state of chaos. Sorne, of more anar-
chical or more contentious "forensic" mood, find in such "unru-
liness" a source of infinite sati.,faction. They praize the opportunity
it affords for argument, asserting that in it lies the very "freedom"
of the legai proiession. They eulogize the manner in which it helps
to solve the eternal le.gal dilemma of continuity and change.78 They
extoll as one of its virtues a feature which Bagehot found so
.attractive to the public mind in the English Constitution, a combina-
tion of the misleadingly theatrical with the venerable and digni-
fied. 79 Other jurists, of more pedantic, orderly temperament, find
such unruliness disconcerting. To them harmony, symmetry, con•
sistency and predictability are of the essence of law itself. Applica-
tion of democratic principies of government to law, the so-called
"Rule oí Law," is predicated upon these virtues. Sorne of these
jurists emphasize that the period of common law creation in the
unruly fashion is over; it was perhaps appropriate to the type of
social and economic life of former days, but cannot serve the
complex purposes of contemporary mobile industrial and urban
-society. A final and perhap psychologically-culturally most interest-
ing feature oí the "stare decisis" dilemma is the fact mentioned
beforc, that until the nineteentwe.ntieth no one seemed to notice
that it cxisted. Justice Slory in Swift v. Tyson 80 was satisfied that
decisions could not be "law" because they were frequently changing,
and he noticed general agreement among lawyers on this charac-
terization of decisions as not "law" on the stated ground. Of course,
precedents do not "change" more frequently than statutes; tbey
merely do so less noticeably. But jurisprudence in Story's days wa
apparently still in a slate of general oomplacency, so that any type
of rationalization was acceptable.

78 "l hove often wondered how this perpteual process of change can be
reconciled with the principle of authority and the rule of st.are decisis." Lord
Wright, quoted in Julius Stone. The Prooince and Functüm. o/ Law 166-167
(HarYard Uruversity Press, Cambridge, Mass. 1950).
79 WoltE-r Bagehot, The Enslish Constitution 7-10 (Twenty-Third Thou-
Gand, London, Kegan Paul, Trench, Trnbner & Co. Ltd. 1925).
so 41 U .. (16 Pct.) 1 (1842).
226 REVISTA JURIDICA DE LA UNIVERSID,4D DE PUltRTO RJC(>

or i it perhap quite correct to say that uncertainty oI cleci•

sional law was as great in the history oí thc common law as it has
bccome as a result of added , er ions of the nature oI ratio decüleruli.
In the light of the "classical view," whereby the ratio áeciáendi is
the principle of law which the judge con idered nece sary to the
decision of the particular ca e before him.81 a precedent was more
comparable to statutes than it was wit.hin Bacon's ver ion. lndeed,
in choosing among the various lingui tic ver ions in whích the
judge may have e.xpressed what he deemed necess,ary to bis decision,
the interpreter was not in a toto genere different position from
that of the hermeneuticist oí former day .. The real difference even
under the classical view between a precedent and a statute arose
from the jurisprudential ideology whereby decisions, like customary
law and in contrast to statutes, are usceptible uf analogou ap·
plication. This gave rise lo the technique oí as imilating and
distinguishing a ca e at bar from a potential precedent case "on
their facts"-a technique which in due course developed into an art
and became tbe basis of a highly sensitive preci ion in trument of
justice. Apparently, the devicc oí clislinguishing was then also ap•
plied even where the principie of the precedent case was presumably
broad enough to cover the new case. The closeness of extensive-
i nterpretation and analogy created a penumbra within which
forensic argument could flourisb.
Whatever rule the judge might con ider necessary to the-
decision before him, even within the clasical view, his judgment
carne to be qualiíied by the tenet that "no rule can be the rati<>
decüleruli from which the actual judgment <loes not follow."82 Cou1d
the judge advance as ground of hjs judgment a proposition which
no one else would oonsider to support such judgment? lf he oould.
the distinction between ratio deckl,endi and dictum might be obliter-
ated. What margin of error is be allowed in declaring with finality
what is the ratio deciclendi? The potential conflict between the-
judicial evaluation of the rat,io ,and the more or less ohjective ration-
ali ty of such evaluation set a necessary limit to the clas ical view,.

81 George Whitecross Paton, A Text-Book of Jurisprudence 160 ( ec.

ed. Oxford, Clnrendon Press 1961).
82 Karl N. Llewellyn, Tht Bramble 811.s/, 4546 ( ow York, Ocean&
Puhlications 1960).
"STARE DECISIS" IN THE CIJIIL AND /IV THE COMMON LAW
2Zl

whereby the precedent judge determines what in bis opinion is the

"precedent."
Seldom does the deciding judge simply announce the principie
of decision and the judgment thcreon. In trying to persu.-:.de, he
formulates that principle repeatedly in various alternative versions;
nor does he necessarily abide by one version of the statement of
operative facts. He thu impairs his own authority, himself creating
the need for a critical outsider's choice among the alternativc
versions. This factor, combined with emantic difficulties presented
in even a single version, creates the legal niceties of "narrowing"
or "broadening" the rule. Tn appellatc courts, which are collegiate,
each or sorne of the several judges may insist on offering distintive
or altemative versions.83 They may al o while agreeing on the
result, that is, on the judgment, disagree on the ratio decúlendi,
perhaps simply because they take a different view of the operative
fo.et . In a so-called "multi-point decision," that is one in which
several points have been argued and the decision could resl on all
or sorne of them, there may be found "an intermediate type oí
authority," such decision standing on "several legs.''84 To it comes
that the several participaling judges may ooncur in one result, while
resting their rationes decidcndi on diverse points in a multi-point
assignment of error. 85
Thu , cven within a basic acceptance oí the "classical view,"
tbe doctrine of precedent is not a unitary phenomenon. It is, as
described by Llewellyn, "Janus-face.d." "It is not one doctrine, nor
one line of doctrine, but two, and two which, applied at the same
time to the same precedent, are contraaictory of etroh, other . ...
fT Jhere is one doctrine for getting rid of precedents deemed trouble-
some and one doctrine for making use of precedents that seem
helpful. .. fT Jbese doctrines exist side by ide." 86
83 In the English cou.rts of appeal it is the common prRctice for each
judge successively to give his opinion on the case.
M Llewellyn, op. cit., supra, at 47.
85 For example, in Rochin v. California, 342 U.S. 165 (1952), where
the Supreme Court of the United Statf's revcrsed a conviction based on
evidencc of morphine capsules extracted forcibly from the acc:used's stomach,
the majority thought that such reversa! was required by the due proccss
clause of the Con titution, whereas justices Black imd Dougks concurred,
arguinii;. however, that the case should have been decided on the basi~ o{
the privilege against self incrimination.
86 Llewellyn, op. cit., supra. at 68.
228 REY/STA JURIDICA DE LA UNIYERSIDAD DE PUERTO RICO

Llewellyn was one of those jurists who believed this Janus-face

of the doctrine of precedent a most welcome feature of the common
law. So did otber American legal realists, notably Judge Jerome
Frank. In his view, following precedents was men's response to the
"drag oí childish no talgia for the over-secure and the impossibly
serene," so that most men, men of the time, prefer routines, thus
"avoiding the pain of suspended judgment." 87 "The modern mind
is a mind free of childish emotional drags, a mature mind." 88
Happily, however, "the precedent doctrine, the precedent theory, is
very different from the precedent pwctice." 89 There are many ways
oí avoiding an unwelcome precedent.90
Stress on judicial freedom to avoid or evade an unwelcome
precedent placed the que tion of ultimate authority to formulate
what in a decision fa the precedent, even given the "classic view"
as point of departure, into the limelight. Carleton K. Allen91 remind-
ed the reader that, historically, a case was thought of as an "illustrC1r
tÚJn of sorne real or suppo ed proposition of law" rather than an
exposition containing "an absolute formulation of a rule of law
(like an article of a code) ." In Allen's view, it is with qualifications
that one can deem the J udgr "bound" by pre.cedents:

We say that he is "bound" by the decisions of higher Court .

But he is bound only at his own discretion, according to his
own judgment. othing can make the process of "binding"
merely automatic and mechanical, for tbe Judge, ha fir~t to
decide, acoording to hi own lights, whether the illustration
-is really apposi.te to thc principle he is seeking. The bumblcst
judicial oHicer can disregard tbe most authoritative d claration
of the House of Lord. unle s be con iders that the precedent
cited is "on all fours."

This statement, of oourse. is itself suhject to severa! qualifica•

tion". Firstly, as shown ahove, "bound" in the jurisprudence of
87 Jerome N. Frank, Court,s on TriaJ.272 (Princeton, New Jersey, Prince•
ton University Press 1949).
88 Jerome N. Frank, Law an.d the Módem Mind 252 (Coward-McCann.
Inr., New York 1949).
8Q Frank, op. cit., supra, note 87, at 280.
oo Id., at 286.
91 Carlelon Kc111¡1 Alkn, Lau: i11 tlie M11king 164 (Oxford, Clarcndon
Presa 1927).
"STARE DECISJS" IV TBE CIVIL A.VD IN THE COJWON LAW
229

the common law world i su ceptible of a variety of degrees and

shades of meaning. Sccondly, gradation within the concept of
"authority" i particularly noticeahle in the law of precedents.
Thirdly, it is true of all "authority" that it is ultimately predicated
upon "jurisdiction to decide." Whether the "humblest judicial of-
ficer can di regard the most authoritative declaration of the House
of Lords," de.pends on the meaning atri,buted to the term "can."
So long as he has jurisdictio11 to decide the case hefore him, he
"can" render a right as well as a wrong decision, and unless un
appeal is ta.Icen,bis "wrong" dccision may weU stand. Whether he
has such discre.tion as attributed to him by Allen, depends on
whether, if an appeal is taken, an appellate court, ultimately the
House of Lords, will recognize such di cretion or rather reverse his
judgment, declaring him "bound" by the forroer House of Lords
decision. Fourthly, the House of Lords may upon examination of
the decision of the "humblest judicial oíficer" and perhaps other
factors, decide that it ought to overrule its prior holding. The te.rm
"can" attrihuted to the "humblest offic<'r" in this instance has a
distinctive sociological ~eaning.
The question as to who decides what is the ratiQ deciden.di of
a case may he best answered by comparison with the queslion as
to who decides what a statute means. Given certain procedural
oonfigurations, the "humble t judicial officer" may decide the latter
as well as the former question. However, in an appellate sihrntion,
it is normally assumed-and this is describcd as the rule governing
the meaning of statutes--that a tatute ultimately means what-
ever the legislators, objectively or subjeclively, chose it to mean
and not what the "humblest officer" decided that it mean!I. In
precedents, by contrast, there is no comparable common assump-
1
tion. Whether the precedent judge or the judge called upon to
follow the precedent decides what the "ratw decúl,endi"" is, depend
in this sense upon what rule on the me.thodology of precedents is
adqpted. At pr sent there is no uniíorm rule on this subject, and the
rule su¡?:gt>stedby Allen is actually but an application of ~cncral
methodology, governing any i,sue arising in law. •
evertheless, Allen's atternpl to shüt the weight of the precertent
making process from the precedent court to the court of de.ci ion
is significant in incidentally drawing attention to the issu<' of the
realistic meaning of the "binding force" of a precedent. The "hind-
230 REYIST A JURTDICA DE LA UNIJIERSTDAD DE PUERTO RICO

ing force" of a statute aLo is much less absolute than is mostly

essumed. But it is, no doubt, more "binding" as a general rule than
a precedent, and this to a large extent is due to the fact that the
methodology of precedents is le s settled than that of statutes.
As regards the contents of the precedent or ratio decidendi,
Allen's views are completely íallacious. He said: 92 "The difference
between authoritative and unauthoritative precedent is only the
difference betwee.n what is logically relevant and what is not."
Clearly, relevance for the purpo e of precedent authority is not a
purely "logical" quality. Evcn in the case of statutes in which
analogous application i not involv d, the problem of semantic
ambiguity combined with foct-finding vicissitudes makes "subsump-
tion" a oomplex operation. Thus, even H a precedent were lingustic-
ally formulated with comparable accuracy as a statute, and apart
from the nnalogy issue characteristic oí precedents, as contrasted
with statutes, application of the precedent to a new situation could
not be said to be a mcrely logical operation. To it oomcs that
precedents are not thus vrrbally fixed even within the "classic
view," whereby the precedeut judge formulate what is the ratio
deciáendi, and tbat at tlüs time the "classic vicw" itseli i by no
means dominant, no fixed methodol-0gical doctrine existing that
might determine how a ralio decidendJ is or ought to be established.
Moreover, whatever may be the role of logics in "subsumption," in
thc operation of "analogy," wqere the issue is "similarity" of facts
or principies rather than a fitting of facts under a given principie,
"logics" is oí no avail apart from ~ome c. umed doctrine of
"similarity ."
Julius Stone hrilliantly d monstrated that the application of a
"precedent" to a case is not but a "logical operation." He said :93

The English theory of precedent, as formulated by Lext-

writers, imports that a particular dccision is explained by one
ratio decúlendi, and which is "rcquired" or "neces ary" to
explain that particular decision." ...
In the logician's sense, however, iL is possible to draw
as many genera'! propositions from a given decision as there
are possible cornbination!; of distinguishable facts in it. By
92 Jbid.
93 Stone op. cit., supra, note 78, at 187.
.. STARE DECISIS" IN TI/E CIVII. AND IN TTIE COMMON LA/P'
231

looking at the facts it is impossible logical.ly to say which

~re to be taken as the basis for the rado deddendi. If there
are ten facts, 1, 2, 3, etc. to 10, as many general propositions
will explain the decisions as there are possible comhinations
of those íacts. The question-What single principie does a
particular case establish? is it has been said, "strictJy non-
ensica1, that is, inherently incapable of being answered."

Moreover, since the facts of a ca e can be and frequently are

stated by the precedent judge at various le.veis of generality, one
decision can never be a compelling authority for another case; the
subsequent judge always has a choice, although that choice is not
an abc:olute one.. Successive series oí precedents narrow the choice;
but they mostly also introduce new variables, so that the "rule
of stare decisis" is a process of constant "self-perpetuating elf-
renewal of what the common law contains."94
Stone also belongs to those who believe such fluidity oí the
"rule of stmr.edecisi,s'' to be a virtue. But others found in it a source
of ultimate failure oI the common law as a íunctional tool of social
oontrol. Felix S. Cohen enurnerated the question "What is the
holding or ratio decrdendi of a ca e?" among "problems" which
"are in íact meaningless, and can serve only as invitations to equally
meaningless di plays of conceptual acrobatics," 95 He suggested tbat
"f f f undamentally there are only two significant questions in the
field of law. One is, 'How do oourts actually decide oí a gjven
kind ?' The other is, 'How ought they decide cases of a give.n kind ?'
Unless a legal 'problem' can be subsumed under one of tbese forros,
it is not a meaningíul question and any answer to it must be non-
sense." 96
One migbt query-and a civil lawyer wou1d undoubtedly po!<t>
this question-why Cohen believed it more pertinent to ask "how
courts actually do and should decide cases of a given kind ?" than
to inquire into their the problem of "how legjslators dispose or
should dispose of certain issues ?" or the problem of "how agencies
of sentence execution, police officer , etc., resolve the issues which
94 Stone, supra, note 48, at 603-605, 610-620.
95 F. S. Cohen. Transcendental Non.sense and the Functional Approach,
35 Col. L. Rev. 809, 822-829 (1935).
96 lbi.d.
232 REJIISTII JURJDICA. DE LA. UNIYERSIDAD DE PUERTO RICO

face them ?" Stre.:s on judicial behavior is a typical common law

jurisprudential "choice." While there is no obje.ction in principie
against purging sorne of our jurisprudentiial symbols, among them
also the doctrine of "ratio decúlendi' in its present state of ration·
alization, there is good reason to believe. that if courts are to remain
the center of our attention there will appear among the questions
of "How they should decide cases?" one akin to, or substituting
for, the prescnt queries for the "ratio deci\ll!ndi."
Cohen's approach is to sorne extent a revival of an older theory
which preached both departure from the doctrine of stare decisis as
it has come to be in the twentie.th century and return to the ex•
perimentalism of an earlier stare decr.sis. Oliphant, noting the almost
infinite variety of potential generalizations of rationes decidendi
of cases and the consequent unmanageability of the oommon law,
suggested "deverbalization" in judicial goverrunent, following the
pattern of original common law tradition :97

When an answer is looked for, it will be well to consider

whether the answer must of necessi ty be a statement. There
may be sorne gratuity in assurning that the answers to all
questions are inevitably so. The answer to sorne qucstions,
including this one, may be, not a statement, but an attitude,
not a matter of affirrnation but a method.

The method he proposed is to search for the predictable

element in

what courts have done in response to the stimuli of the

facts of the concrete cases before them. Not the judges' opinions,
but which way they decide cases, will be the dominant subject-
matter of any truly scientific study of law.

When the facts stimulating [judges] to action taken are

studied from a particular and current point of view, which our
present classification prevents, we acquire a new faith in stare
decisis. From this viewpoint we see that courts are dominantly
coerced, not by the essays of their predecessors but a surer
thlng, by an intuition of fitness of solution to problem ...
97 Herman Oliphant, A Return to Stare Decisí,s, 6 Aro. L. School Rev.
215 (1928).
"STARJ: DECISIS" IN THE CIYIL AND IN TIIE CO.lWON LATT

In a "methodical e.mpiricLm" of this type disrcaard of the

judges' "verbal hehavior" must include their version ~f the facts
of cases. In the United States this presents no ohstacle to continued'
study of case law, since in cases which reach the stage of appellate-
review, there is mostly available a voluminous printed record con-
taining a verbatim report of all lhe cvents in the case, pleadings
evide.nce, etc. But such "deverhalization" of the law of precedcnts
presents another major difficulty. To avoid all "verbal behavior
of judges," it would he necessary in each case to go hack to the
records of all previous cases, and such task is hopeless in tbe present
state of case law development. Any other considerations of
all pertinent cases requires sorne verbalization, whether by judges
or by Oliphant's empirical scientists. There is hardly any rea on to
trust the latter more than the formrr. Dependence on the word'
form is one of the tragic aspects of law. lt can be limited, but
cannot be wholly eliminated.
A much less amhitious approach to solution of the problem of
the unmanageability of the doctrine of stare decisis has be.en that
advanced by Professor Goodhart.!l8 lt bears signiíicantly on thc
present acuteness of the crisis of this doctrine that discu ion of
the eminent writer's theory set forth in 1930 has been recently
taken up with great vigor. 99 Goodbart suggested that "[t]he principle-
of the case is found by taking acoount (a) of the facts treated by
the judge as material, and (b) bis decision as hased on them." 100•
According to the authoT, it is not by any particular reason or
reasons, but "by his c1wü:e of material, facts tliat the judge cre&es
98 Arthur L. Goodhart, Determining the Ratio Decidendi o/ a Case, 40'
Yale L.J. 161 (1930); reprinted in Essays in. ]urispru.dence anal the Common
Law I (1931).
99 J. L. Montrose, Ratio Decidendi and the House of Lords, 20 Modern
L. Rev. 124 (1957); The Ratio Decid,endi o/ a Case, id. 587 (1957); A. W.
B. Simpson, Note, The Ratio Decidendi of a Case, 22 Modern L. Rev. 453'
(1959); Julius Stone, The Ratio o/ the Ratio Decidendi, id. 597 (1959).
100 Supra, at 182. Goodhart also set forth nine further rules; among
them notice particularly: (3) If there is an opinion, then the facts as stated'
in the opinion are conclusive and cannot he contradicted from the record ...
(5) All facts which the judge specifically states as immaterial must be
considered as inmaterial. (6) Ali facts which the jud1?e impliedly treats
as inmaterial mu t be considered as inmaterial. (7) AH facts which the
judge specifically states to be material must be considered material... (9)
If in a case there are severa) opinions which a¡?:ree as to the result but
differ as to the material facts, then the principle of the case is limited so as-
to fit the sum of all the facts held material by the various judges."
:234 REPISTA IURJDICA DE LA UNtrERSIDAD DE PUERTO RICQ

1
ta--w."
101The reasons wh"1ch th e judge gives in his opinion or his
statement of the rule of law which he is following, are of peculiar
importance, "for they may furnish us with a guide for determining
which facts he considered material and which immaterial." This
-distinction between the evidentiary and the probandum function of
the "reasons given by the judge" or his "staternent of the rule of law
"Whichhe is following" is reminiscent of tbe old distinction between
~'decision" and "law." The "reasons" and the "rule" are referred
to as "peculiarJy" evidentiary. An express or implied averment or
.denial by the judge of what he considers the material facts mar
well be deemed partial statements of such "reasons" or "rule." A
I view it, the crux oí Goodhart's position líes rather in the fact
that it deprives of immediate significance the judge's "verbal"
-version of the reasons of the rule, that is, that to orne extent, it
carries back to the idea "non ex verbis regul,a,e." To be sure, it
does not do so fully, since expre s statements or denials of "material
facts" are taken to override any implications to tbe contrary. 1ro
Also, Goodhart's theory may be said to aíford sorne guide for
,choosing, in an otherwise irreconcilable conflict, among diverse
versions of a judge's statement of the rule. Since all facts assum d
in tbese versions must be accepted in formulating the rada deculm-
.di, obviously all these versions are in a sen e controlling. This
follows a fortiori from Goodhart's proposition tbat in the evenl of
inconsistent versions of severa! ooncurring judges, ali the material
facts assumed by all of tbem must be taken to be true in formulating
thc rule. The difficulty with Goodhart's po ition líes in his insistence
that, notwitbstanding control oí all such focts, a judge's statement
111aybe "too broad."
Stone's criticism of ali the disputant's failure to distinguish
between tbe "descriptive" and the "pre criptive sen es,, of the,
tcrm "ratw deciJená?' 103 is much less appo ite in an atmospher
101 In hls beply to his critics, The Ratio Decidendi of a Case 22 Modero
L. Rev. 117 at 119 (1959), he underscored this statement.
102 Professor Goodhart e:xplained the reason for preference oí "material
facts" oyer the statement of H'B!'ons to be that such statement may be too
wide or too narrow. If so, answers Professor Simpson, so are the "material
facts."
1m Julius Stone, supra, note 96, at 600-603, To the same effect is the
roain objection advanced by Montrose against Goodhnrt and Simpson. See
20 Modern L. Rev. at 585-589. Goodbart's answers to it is (22 id. at 121-122)
that unless ratio decideruli means that it is "binding," the whole discu.ssion
-seems to be meaningless."
 •.,ST.iR.E DECISIS" /,Y TI/E CIVIi. 1lND IN THE CQ,11,1/QN LAIT"
235

--0fHolmc:,ian jurisprudcnce. than it would be in onc dorn1nated by

Austinian or Kelsenian thought. Stone suggests that we try, in the
first place, "scrupulously to respect the distinction between that use
of thc term rat,w decidenái which describes the pr-0cess oí reasonina
1>y which decision was reached, and that which identifie and
,delimits the reasoning which a later court is bound to follow.''
"Where, as in pre-Holmesian days in the United States and until
today in otber common law countri , the assumption prevails "that
ali present and future developments in common law principies are
·somehow alrcady implicit in the common law e.xi ting hitherto,"rn4
there is hardly such rigid dividing line between a "descriptive."
and a prescriptive use of the term ratw decidenái. And this is a
íortiori true within a Holme ian Yi w of decisional "authority."
Prediction based on judicial statements or behavior are not trktly
•classüiable into such categories.
The ultirnate question to be answered in the light of such
•relativity of oommon law methods and the fluidity of its concept
is whether this situation is till, a orne maintain, a felicitou one.,
and if it is not, whether anything can be done to adju t deci ional
·1aw to present day need .
The nub of the celebrated "common law method," as seen by
·writers such as Llewellyn, Judge Frank and Julius Stone, is it very
'inchoatenes. While other writers, such as Goodhart. are willing to
sacrificee the ensuing flexibility to ccrtainty, and have atempted to
ºintroduce some uniform methodology into decisional law the e·
attempts bave been singularly unsuccessful. One oí tbe reasons ad-
·vanced against Goodhart's method has been that it does not do away
with all uncertainty. 105 The fact is that it reduces it to sorne extent-
'for example, in declaring express tatements or denials of material
'facts by the judge to be oontrolling-. though perhap not uíficiently
'to warrant the prce in historioal arbitrariness of its choice to the
exclusion of othc.rs.
104 Stone, compare supra, text at note 49.
105 In answer to Stone's criticism that Goodhart's rules "for detecmining
''material' facts are artificial and in part indeterminate, requiring guesses
as to what facts the conrts tacitly took as material," Goodhart states (22
"Modero L. Rev. 124): "It is not a valid criticism of a system... to say
that sorne precedents will always remain indeterminate. This is due to the
subject-matter itself, and not to tbe system which is opplied to it. Guess-
work must always play a part in legal foterpretation: this is what makes the
\Jaw so interesting."
236 REY/STA JURJDICA DE LA UNll'ERSIDAD DE PUERTO RICO-

V. WHAT PRICE CERTAINTY? HEREIN ALSO ON

CONSTJTUTJONALPRECEDENTS
lt is highly unlikely that any individual attempt such as Good-
hart's or return to the "classical view" can succeed in bringing at
least a modicum of order into the present chaos, as long as opposing.
lawyers continue to urge divergent methods of case analysis and·
find support for them in the existing methodology reservoir. Various-
means of coping with this cbaos bave been suggested and, indeed,
tried.
Of greate.c;timportance among these is the colosal undertaking-
of the American Law Institute to prepare Restatements of the severaJ.
branches of the Common Law. But the primary virtue of these ,
Restatements is preparation of a "concordance" and consolidation
of conflicting rules, as found in the Common Law; this is to yield'
a uniform rule to be adopted as a point of departure, and thu
overcome the need of going hack on each occasion through thousands
of cases.106 Though a Restatement is "something less than a code·
and something more than a treatise" and affords not more than a
sort of presumption, so that "[a]ny lawyer, whose interest in litiga-
tion requires him to say that a different view of the law shall be·
taken, will have upon his shoulders the burden to overturn the
statement," 107 even such presumptive authority is not expe.cted to-
reach beyond a certain point of time, for "[t]he judicial process-
is to be set in motion again" and the judges "set free." 108
Among tbe writers who have shown great concern with the·
problem of reconciling freedom for judicial creativeness and growth
of the law with sorne princip]e of order and predjctability, perhaps
the most oratorially gifted and hence appealing was Judge Denjamin•
N. Cardozo.109 The solution he suggested, on the basi of the Holmes-
ian jurisprudence of precedents and Ehrlicb's wciological ap-
proach, was adoption of a definite philosopby that would enable us
to estima.te probabilities of the outcome of cases even in advance of
106 See Benjamin N. Cardozo, The Growth o/ the Law, 6-11 (New
Haven: Yale University Press 1924.), on the organizatiO!llplans and prospects
of the Restatements.
. 101 AddreEs of Mr. Root at the organization of the lnGtitute (1923)
as chairman of the meeting, cited in Cardozo, op. cit., supra, at 10.
108 35 Harv. L. Rev. 113, 117. cited ibid,.
109 Cardozo, op. cit., supra, 21 passim; also Cardozo, The Nature of,
the Judicial Process 98-180 (New Haven, Yale University Pres 1921).
..,STARE OECISIS" IN THE CTYlL ANO IV THE CO,ll!,/ON LA'/T"
237

-Any decisions on the pe.rtinent points. "Law" -he said- "is some-
thing more than a succession oí isolated judgments wbich pend
their force as law wben they have composed the controver ies that
Jed to them." lt is rather the general body of "doctrine and tradi-
tion" from which these judgments were derived and by which we
'<'riticize them. Their study is "the study oí principles oí order
revealing the.mselves in uniformities of antecedents and con e-
,quents." 11º Part of this order is a hasic philosophy of pragmatism,
which apparently each judge must assume, so that the "teleogical
concept of his function ... he ever in [his] mind." Teleology, of
course, must be geared to sorne end, and Cardozo apparently assum-
,cd that the oonception of the end of the law "finds its organon, its
instrument, in the method of sociology." While the "mores of the
,day" cannot be taken automatically to shape rules, it is in the.m
that the judge must eek a guide to such end. "The standards or
patterns of utility and morals will be found by the judge in the life
of tlie community ." 112
As community life in modern society grows more complex and
less homogeneous, and as community mores and community morality
often clash, it becomes increasingl) difficult to explain in "prag-
matic," "teleologioal'' terms what exactly i expectcd from a judge
when he is told, 113

His duty to declare the law in accordance with reason

and justice is seen to be a phase of his duty to declare it in
accordance with custoro. lt is the customary morality of right-
minded men and women which he is to enforce by bis
decree.

Most importantly, however, the crude combination of technical

and sociologioal method uggested by these words seems bardly
appropiate as a legal tool in our times. Surely, the verbal haven it
promise is not a sub titute for the certainty of a well defined
methodology of precedents.n 4
llO Cardozo, The Growth o/ the Law, supra, note 106, at 36-38.
ll1 Cardozo, The Nature of the ]Uilicial Process, supra, note 109, at 102.
112 Id., at 104-105.
m Id., at 106.
114 The problem of who are "rigbt-nrinded men and women" and how
tl11:ir view~ might Le ascerlained has been po$ed in Repouille v. United
238 REYI TA JURIDICA DE LA UNIJIERSIDAD DE PUERTO RICO-•

Perhaps a Restatement of Common Law Method rather than,.

or in addition to, Restatements of various speciíic legal branches,
might modüy--even if not entirely eliminate--the continuing un•
cerlainty of the Common Law, as it progresses. A more reliable-
alternative would be enactmrnt of a statute that would determine
with force of law, what in any authoritative judicial decision should'
be its "binding'' f.actor. Before suggesting a more definite formula-
tion of such statutory rule, it may be proper to discuss the prohle.m,
of decisional law, as it appenrs particularly in American constitu-
tional law at the present stage of development.
Recently the inchoatene of the law of "pre,cedents" has been
most vigorously challenged in the area of American Constitutionar
decision making. The United States Supreme Court Justices have
heen criticized íor not founding their decisions on principies of
"adequate neutrality and gencrality,'' transcending "any immediate
result that is involved;"l!S for not supplying "the underpinning of
principle which is necessary to illumine lar ge areas of the law; ,,.
for foiling to articulate and develop "impersonal and durable prin-
cipies of con titutional law." 116 They have been urged to try to•
"hammer out" their differences by "a process of collective deli-
beration."
These comments seem to point to a trend toward a developmcnt
rather resembling the type of judicial legislation for "large areas',.
characteristic of deci ions of the Supreme Courts of Germany. 117'
This American trend contrasts strangely with the "spirit of self-
restraint" in the American style at present featured by German,
constitutional law adjudication.n 8
States ]65 F. 2d 152 (2d Cir. 1947), and further discussed by various
write~. The present writer believes that the most rufficult problem is not
one of ascertainment of community views or mores but one of discrcpancy-
between community practices and community preachings; in criminal law
context, the issue is of constitutional dimensions.
115 Herbert Wechsler, Toward Neutral Princíples o/ Constitu,tional Law,
73 Harv. L. Rev. l. 15-20 (1959).
116 Henry M. Hart, Foreword: The Time Chart of the Justices, id. 84',.
at 99-100.
117 Compare supra, text at note.• 19-24, 28-33.
118 McWhinney. supra, note 46. Notice also in other countries of c-~m-
mon law origin trends to eliminate the unmly element of decisional law.
In Canada for example, notice the proposal of Chief Justice Rinfret that
the Supre:i,e Court fonnulate onlv one (signed) decision. See O'l1 this
McWhinney ... Die Bedeutnn,z: del! SorukrvotuTIUI in der Vetfo.ssungsgerichts-
barkeit," 16 luristenzeitung 655 at 656 (1961).
"STARE DECISIS" IN TIIE Cll'IL AND IN THE COMMON LAIP' 239'

Of course, inadequate "reasoning" is not tantamount to in-

adequacy of "reasons." Assuming Oliphant's view as a basis of
critique, 119 one may ve.ry well perceive in recent United States
Supreme Court decisions coverage of "large areas" of the law,.
though these areas may not correspond to conventional legal ca-
tegories and, thus, appear to be arbitrary to those conditioned by
conventional ways of thought. In fact, the critics of the Supreme
Court, while purporting to press for "neutral and general principles"
in the Court's decisions, actually advance their own additional
prefe.rences, which, werc they themsclves members of the Court,
would multiply rather than simplify the issues and further confuse
the Ütigants. One e ample must uffice to illustr.ate the type of
potential constructive synthelic critici~m, attempting to derive from
Supreme Court decisions realistic social-ethical principles covering
"large areas," on the one hand, and the purely analytical, destructive-
censorship, accompanicd by wholly ubjective new proposals of the
critics, on the other.
Professor Wechsler 120 criticize the. school "desegregation
decisfon121 now of world fame for not aífording sufficiently broad"
and explicit reasons for the Court's choi e, that would alro apply
to desegregation in other 90cial contexts, transportatiion, re Laurants,
l"LC. He points out that, in advancing as ground of tbe decision-
resentment of segregation by egro childr n and consequent dctri-
ment to their learning ability, the Court made it appear as though·
the jud2111ent turned upon the facb provcn in the case. He then
procccds to sel íorth hii, own view on the matte.r. In his view "a~sum-
ing equal facilities, the qnestion posed by state-enforced segregation
i not one of discriminalion at alL" ince it imposes a burden upon
White and Negro citizens alike. To him, desegregation is rathPT
justified on the ground of the postula te oí "freedom of as ociation _,,.
There is no denying the fact that the reasons advanced by the-
Supreme Court in supporl of the desegre.gation decision are not
only per se unsatisfactory but, above all, flagrantly disproportionate-
in significance to the ocia] and thical tature oí the judgment Lhey
are supposed to carry. 1ost adherenls of de egrcgation are certainly-
not primarily concerned witb Lhe learning difíiculties of particular
11q Compare supra. tcxt et note 97.
120 upra. note 111, at 31-34.
121 Brown v. Board of Educ., 347 U.S. 483 (1954).
.240 REr/ST.-1 JURJDICA DE LA UNIYERSIDAD DE PUERTO RICO

groups of children. As a ha is of prediction, bowever, tbis decision,

in the total setting in which i was rendered, aIIords a sufficiently
reliable guide to later dispositions of desegregation in contexts olher
than that of education. lts predictive value undoubtedly covered
"large areas of law," in fact, areas immeasurably larger than those
that might be covered under the reasoning suggested by Profesor
Wechsler, namely freedom of a sociation, a freedom not even men•
•tioned in the United State.s Constitulion. 122
The basic objection against the critics of the Supreme Court,
however, should be addre.,sed not to their deviations from the
Court's philosophies on merits but to a part of their methodological
-postulates. Judicial legislation on a high Jevel of abstraction con·
·stitutes a striking departure from the traditional common law policy
that "courts should avoid deciding any question not directly and
unavoidably in is ue," 123 gran6ng that in reasoning abstraction
is unavoidable and that in this sense it is impossible to supply
"reasons" exclusively for solution of que tions "directly in issue."
There is need for going back to fundamentals of govern-
111ental and institutional structures and querying whether it is at
all the proper function o{ a court to "illuminc large areas of law:'
.and whether American courls particularly have not already unduly
.transgressed the proper limits of separation of powers. 124 Granting
that no exact line of demarcation can be drawn between adjudication
..and legislation, a total obliteration of any limits hardly corresponds
to the spirit of the American Constitution. True, in the field of
•Constitutional Law itseli separalion is not as apposite as it i
in other areas, 125 and the need for a comhination of continuity and
-change, as may be best realized in judicial legi lation, is greater. 1M
Yet, tlie Constitution also is hut a qualified statute, and while the
·Sopreme Coort in constitutional adjudication should be "set free"
-indeed, moch more "free" than in otlier contexts--, to reach a
122 See oo this Charles E. Wyzanski, The Open Window andl the Open
.Door, 35 CaliI. L. Rev. 336 (1947).
w Thurman Arnold, Pro/essor Harfs Theology, 73 Harv. L Rev. 1928,
1312 (1960).
124 See on this Silving, Twilight Zone, etc., supra, note 36, at 504.
l25 Compare 3 BVerfGE 225 (Gennany 1954); see Silving, supra, at
·503-504_
126 It is the United States Supreme Court's "considered practice 111ot
to apply stare decisis as rigidly in constitutional as in nonconstitutional
<'.ases." Glidden Company v. Zdanok, 370 U.S. 54-0, 543, 82 S. Ct. 1459,
aat 1469 (1962).
 "STARF. DECISIS" /\' THE Cl1'/L Al\'D IN THE COJWON LAW
241

policy decision on the issue before it, il ~hould not, if it is to remain

a "court," atlempt to preernpt legislation for "large areas."
But another aspect of the methodological criticism of Suprem6
Court con titutional and other adjudication seems to be ripe for
discussion. Unless Oliphant's proposal is accepted and any "verbal
hehavior" of judges disregarded or accorded at best a suhsidiary
signifioonce, it would seem that there is need for ridding the law
of preccdents of as much oí the "gue sing game" as possible. It is
desirable beyond doubt to avoid the Justices talking "past each
other" rather than reaching as much agreement as may he on what
the issue before the court is. An essential minimum demand should
he that each Justice face the is ue or i ues presented by the case
squarely and address himself conciou. ]y to this issue or issues, as
appearing to him. Above all, self-deception ougbt to be avoided.
In this age oí philosophical and jurisprudential analysis, the pro·
cess of decision making should be con, cious and articulate; it should
be geared to answering the question that are posed, and for this
purpose begin with formulation of what questions are pose.d.
To achieve this end, there is need for a conscious choice oí a
methodology of precedents, that would enable courts -both the
prece.dent courts and the precedent-bound courts-- to take stock of
the exact scope of the "precedent." My sabrnission is that either
by statutory fíat or rules of court there be imposed systematic
rule on deci ion writing. These rules should requfre the courts
on all Je,·el to make specific findings of fact and conclusions of
law. Grounds of decision should be specified in ,a distinctive part
of tbe decision in brief propositional form; whatever arguments a
oourt or judge choses to advance should he stated separately. This
should not preclude concurrence or di sent, provided that either
of these be formulated in the ame style as the majority opinfon.
No contention is advancecl that uch ystematic decision writ-
ing would introduce a panacea oí understanding -a panacea that
can never be achieved in the area of lingui tic expression. But no
doubt, many misunderstandings and inconsistencies can be thus
eliminated. Apart from the art>a of con titutional decision making,
statutory law creation is rapidly taking over traditional spheres of
the common law. The law creativeness of a judicial decision withln
a sy tem of largely tatutory law is, of course, quite diffcrent in
scope from that of a decision operating within ,a system of common
242 REPISTA lURIDICA DE LA UNIYERSIDAD DE PUl!RTO RICO

law. To the extent that statutes can be formulated without undue

verhosity and amhiguity, they are preferable to common law dispo-
aitlons. The fonction of a decision is to express that which a statute
cannot convey with equal convenience; this is the case when there
ís need for an exemplification or demonstration rather than for a
highly abstract exposilion. But between a concrete example and
the abstract proposition which it is purported to dcmonstrate there
are many intermediate stages of ahstraction, and the function of
grounds of decision is to estáhlísh the link .be.tween them. When
¡;,uch decisions supported by grounds hecome incorporated in the
statute and made a part thereof, there is created a body of law
endowed with ,a comhination of abstractness and concreteness that
nffords the greatest possible certainty and thus the best approxima-
tion to a "Rule of Law."