CHAPTER III.

CASE LAW: ITS GENERAL CHARACTER, HISTORY AND

AUTHORITY.

Case or judiciary law. The three classes of literary authorities, which might at the present day be used by or to the magistrates of a state administering its law, have been broadly indicated, in English phraseology, as Acts of Parliament or other similar public rules, authorised Reports, or authoritative Text-books. In considering the matter included under the second class I must first explain my decided preference for the well-known English phrase, case law, over other expressions.

Austin adopts from Bentham and the language of French lawyers the word judiciary, to indicate "the law made by judges as properly and directly exercising their judicial functions...the law made judicially (or made through particular decisions or particular cases) whether by sovereign or subordinate judges1." As far as I understand his preference for Bentham's judiciary over Romilly's judicial, it is because he seems to conceive that the former expresses more clearly the act of judging, or the mode in which this law is made, whereas judicial might, like judge-made, mean any kind of law made by subordinate judges. To the last term, judge-made, he elsewhere objects, partly because this term seems to "savour of disrespect," partly because it 1 Austin 39. p. 670.

2 Ib.

might appear to exclude law made obliquely (i.e. through particular decisions) by the sovereign, when acting as judge: which law is of precisely the same nature as that similarly made by a subordinate judges.

With all this, as with the distinction (by modes of legislation) which Austin draws between statute and judiciary law, I entirely concur. My reason for not adopting the last term is a further position of Austin's, with which I cannot agree, that the division of law into the two classes of statute and judiciary is exhaustive—that every possible rule of law emanates from a sovereign or subordinate source, either in the way of direct or of judicial legislation*.

Now, much of what I have termed text-book law, though administered by magistrates, whether sovereign or subordinate, cannot, in my opinion, be reasonably said to emanate from such magistrates, or be made by them, in any sense which does not disregard the plain history of the thing, and the general meaning of the term, law. I propose, therefore, by using the term case law, to narrow Austin's judiciary class of rules to those which do actually originate in assignable particular decisions, and for which such decisions are the literary authority. I do not include cases where the judge applies (apparently according to Austin) a pre-existent rule, and such rule accordingly originates as law (according to the same author) in his decision.

3 E.g. the decreta of the Roman Emperors. See below, p. 219. The passages referred to in Austin are 29. pp. 548, 9 and 39. p. 670. In the last, 'directly by the judicial decisions of sovereign or supreme judges" means, as opposed to circuitously, i. e. through a subordinate.

Ib. p. 549, concluding paragraph. The first part of the sentence quoted in the text constitutes, with Austin, another exhaustive division of law, into such as emanates from a sovereign and such as emanates from a subordinate source. I avoid this confusing and unnecessary distinction, which has nothing to do with that between statute and judiciary law.

5 Austin 30. p. 554.

Case law, then, or "judiciary" law taken in this closer sense, must, as a matter of history, belong to a comparatively advanced period in the life of an ancient nation. For it obviously postulates a system of authoritative or at least trustworthy reporting, and therefore some slight progress in literature. But, from some period or other, and in some shape or other, case law appears indispensable to every jural system. No code can be conceived drawn with such foresight, and detailed with such minuteness, as to meet every complication which can arise, at any rate in civil, as opposed to criminal, law.

The general shape in which case law has appeared is a subject essentially connected with the authority which it has enjoyed; and I have found it convenient to consider this last point, with particular regard to Roman legal history, before I come to the special characteristics of case law as illustrated mainly by our English practice.

Authority of case law with the Romans. Cicero speaks of res judicatae as one constituent of jus civile, and Boethius, in his comment on the passage in question, treats such res judicatae almost exactly like English precedents. But the other references to this subject in Cicero do not go so far. One of the phrases most suggestive of citing a precedent-rem judicatam referre1-merely means to bring up again a case which has been already decided. Boethius is, of course, only an independent authority for the practice under Theodoric, in whose kingdom judicial precedents would seem to have had more force than in the Byzantine empire.

6 Cicero, Topica 28. Boethius. Res judicatae sunt quae inter eos qui super aliqua re ambigunt sententia judicum fuerint constitutae, quarum exemplo ceterae quoque judicantur. Distinguish the language of the Emperor Justinus, Codex 7. 45. 13. Cum non exemplis sed legibus judicandum sit. 7 Cicero pro domo 29, 78.

The article on res judicatae in the Digest treats simply of the effects of a judgement in the individual case: the same may be said of the few sentences in the Codex. The general maxim, rem inter alios actam aliis non nocere, does not even recognise, by negativing it, the growing principle of precedents, for it only protects parties who, having some interest in the particular suit, have not been represented in it before the Court 10.

The first instances that I can find, where the authority of a judgement merely as a judgement, (without any extraordinary weight due to the supreme position of the judge,) has been maintained for subsequent cases, are the following, due to the times of Alexander and Septimius Severus. "When a plea is based," says Ulpian, "upon the custom of a particular city or province, this is, I think, the first question, whether the matter has ever been actually contested, and the custom confirmed by a judicial sentence"." Here, however, it must be observed that the sentence scarcely introduces anything new: it is simply in confirmation of other proof previously alleged. The reference is, it is true, to an individual decision; but that decision, unlike case law proper, distinctly contains a rule already stated elsewhere in general terms. An older rescript by Septimius Severus is more in point-that, in ambiguities arising out of statutes, custom, i. e. the authority of an uninterrupted series of cases similarly decided, is to have the force of statute 12. Yet the 8 Digest. 42. 1.

9 Codex 7. 56. Quibus res judicata non nocet.

10 Austin's view therefore of res judicata (35. p. 616), if extending to the influence of a single res judicata by way of precedent, must be questioned.

11 Dig. 1. 3. 34. An etiam contradicto aliquando judicio consuetudo firmata sit. The sentence as translated above is inelegant: but it seems better to take contradicto in an absolute sense (cf. dissimulato Dig. 2. 4. 15 &c.) than to admit the construction contradicere judicium. See Mommsen's note and the passage as translated in the Basilica.

12 Callistratus Dig. 1. 3. 38. Nam imperator noster Severus rescripsit in

English precedent, with its extension of an old, or introduction of a new, rule is scarcely covered by this rescript. Here is rather a question, apparently, of what Austin calls genuine interpretation, decided by the custom of the court, i. e. invariable decision. What number of decisions constituted sufficient invariability is a point so difficult to settle that it suggests the improbability of any individual precedents being alleged. Far more natural is it to suppose that the custom or rule of interpretation was testified by the authority of some text-writer of eminence, generalising the results of his reading and observation into some such form as those familiar in our old books "It hath ever been held," "It is commonly said," "It is a maxim of law." Should my apprehension be correct, this "custom or "series of cases" must be classed with the jus civile of Flavius and Aelius 13, as originally based upon observed cases, but, in the form under which it was practically applied, Text-book law.

13

I am much confirmed in this view by a passage of Savigny bearing upon the present subject, which I had overlooked when I wrote the above lines. That great authority, in speaking of a certain "usual" or customary interpretation of statute law, shews that, as such interpretation by national custom is rarely conceivable, this "usual" interpretation comes practically from lawyers, and therefore approximates very closely to scientific (wissenschaftlich), which would perhaps be better styled, in English, professional, law 14

ambiguitatibus quae ex legibus proficiscuntur consuetudinem aut rerum perpetuo similiter judicatarum auctoritatem vim legis obtinere debere.

I think I am justified in taking aut here=sive by the passage of Paulus which is prefixed to the above (Dig. 1. 3. 37). Si de interpretatione legis quaeratur, in primis inspiciendum est quo jure civitas retro in similibus casibus usa fuisset: optima enim est legum interpres consuetudo.

13 See below, pp. 287, 292. And, as to English law, ch. 10 pp. 310, 313. 14 Savigny, System 1. § 32. p. 209. note c. See also below p. 231.