ИГПЗС учебный год 2023 / Прецедент в 18-19 веках (статья)

only shew the opinions of the writers, yet all precedents which

are brought into argument are of the same authority. Their

weight depends much upon the age in which they were written, and

the character of the writers."233

Arguments of counsel reproduced in state reporters also

give evidence that practitioners considered the maxim stare

decisis not as a fixed and unyielding rule, but as a maxim that

had to be weighed with other maxims and principles in order to

reach a just outcome in a particular case. Thus we see counsel

in Connecticut arguing: "The precedent, however, will have its

due weight, in proportion to the soundness of the reasons, on

231 Wood v. Bullock, 10 N.C. 298, 299 (N.C., 1824).

232 Means v. Trout, 16 Serg. & Rawle 349, 350 (1827). Cf.

Hobbs v. Middleton, 24 Ky. 176, 185 (1829): "[W]e shall not be

much embarrassed by the maxim, 'stare decisis et non quieta

movere.' For, we do not consider it as applicable to such a

question as that now under consideration, and to such decisions as

those which have been rendered upon it." Id.

233 State v. Owen, 5 N.C. 452, 463 (Taylor, J., dissenting).

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which it was founded, and the number and respectability of the

judges, who acted upon it."234 Counsel in Virginia in 1807

asserted: "Stare decisis is a rule which I hold in as much

respect as any man in the Commonwealth; but there are cases in

which it may be necessary to depart from it."235

These cases demonstrate that stare decisis, termed

variously a maxim, or a principle, or a rule of law, was not

understood as a doctrine that exerted binding authority on the

courts. Courts, rather, engaged in a process of weighing and

balancing competing considerations. The vocabulary the courts

employed was not one of strict obligation, or absolute adherence;

rather, the vocabulary is one of proportionality, due weight,

measuring and balancing. Again, the explanation for this

vocabulary is to be sought in the jurisprudential foundations of

the time. The early American Republic came of age at a time

before the ascendancy of the strict positivism, the

instrumentalism, and the utilitarian doctrines of a later age.

As we have made clear throughout this Article, what mattered more

at this stage in American history was fidelity to theories of

234 Fitch v. Brainerd, 2 Day 163 (Ct. 1805) [page reference to

be supplied].

235 Eldridge v. Fisher, 11 Va. 559 (1807) [page reference to

be supplied]. One might compare this form of argument with the

following: "The maxim stare decisis is of peculiar weight in

commercial questions, in which, perhaps more than in any others,

it is more important that the law be settled, than in how it is

settled." Oliver v. Newburyport Insurance Company, 3 Mass. 37

(Mass., 1837) [full reference to be supplied].

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natural justice and natural law.

III. Conclusion:

This Article can now be fitted within the scholarship

on the history of stare decisis and precedent. It differs from

the early scholarship on the subject by taking seriously the

first premises of this older conception of precedent and stare

decisis. Thus Frederick Kempin takes as normative a strict

doctrine of precedent and searches for its origins in early

American judicial opinions.236 Using the strict doctrine as his

model, Kempin concluded: "One can summarize by saying that

American cases, up to the year 1800, had no firm doctrine of

stare decisis."237 In proceeding on these premises and claiming

these historical objectives, Kempin's work might even be called

by that indelicate term "Whig history."238 As this Article makes

clear, however, English and American courts most certainly had a

conception of stare decisis; it was not, however, the strict

doctrine that would come to prevail at a later time in American

history. And, indeed, it is hoped that this Article's review of

the jurisprudential foundations of this older way of viewing

stare decisis establishes the extent to which this now vanished

236 Supra note --.

237 Id., at 50.

238 See generally, HERBERT BUTTERFIELD, THE WHIG

INTERPRETATION OF HISTORY (1931).

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thought-world was a rich and coherent one on its own terms.

In some respects, this Article may serve as a

complement to the studies of Gerald Postema239 and Jim Evans.240

Postema, like Kempin, takes as normative a strict doctrine of

precedent and traces its roots back into the philosophical

speculations of Thomas Hobbes and Jeremy Bentham.241 Postema

labels the older school of thought that we have been examining

the "traditionary doctrine of precedent," and associates it with

English common lawyers like the seventeenth-century Sir Matthew

Hale.242 While I have eschewed the label traditionary doctrine of

precedent, my investigation complements Postema's in that it

studies the main premises of this doctrine. Unlike Kempin,

Postema takes the "traditionary doctrine" seriously although he

does relatively little with it. This Article in a sense remedies

this deficiency in the literature. This Article,

similarly, has some affinities with Jim Evans' study of precedent

in the nineteenth century. Evans uses some of the English cases

we examined in the course of this Article as background to his

239 Gerald J. Postema, "Roots of Our Notion of Precedent," in

PRECEDENT IN LAW 9 (Laurence Goldstein, ed., 1991).

240 Jim Evans, "Change in the Doctrine of Precedent During the

Nineteenth Century," in PRECEDENT IN LAW, supra --, at 35-72.

241 Postema, supra note --, at 11-15 (reviewing Hobbes in the

context of examining the "positive conception of precedent"); and

at 13-16 (examining Bentham).

242 Id., at 15-23.

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investigation of the emergence of a positivist account of

precedent.243 In my own case, once again, rather than use this

material merely as a starting-point for the investigation of

recent developments, I have chosen to consider the older

materials on their own terms.

This Article also has affinities with the historical

sections of Caleb Nelson's important article, "Stare Decisis and

Demonstrably Erroneous Precedents."244 Unlike the other studies

of precedent and stare decisis that I have mentioned, Nelson

recognizes the significance of what he calls "the external

sources of the common law" -- by which means reason and natural

law -- to the story he wishes to tell.245 This Article builds on

Nelson's insight by exploring, in much greater detail than he

does, the role these "external sources" played in judicial

reasoning at the time of the Founding.

Having a proper appreciation of the history of stare

decisis and precedent is not a merely academic concern but in

fact matters greatly to the outcome of cases today. I might thus

close by considering the very different treatments of stare

decisis found in the reasoning of two recent -- and highly

243 Evans, supra note --, at 35-47 (reviewing the older

English materials).

244 Caleb Nelson, "Stare Decisis and Demonstrably Erroneous

Precedents," 87 VA. L. REV. 1, 21-45 (2001).

245 Id., at 28.

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controversial -- cases, Anastasoff v. United States246 and Hart v.

Massanari.247 The Court in Anastasoff concluded that not only

published opinions of the Court but also every unpublished

opinion must, as a matter of originalist constitutional

interpretation, be considered as creating binding precedent.248

This much, the Anastasoff Court asserted, was the implicit

understanding of the conferral of "judicial power" upon Article

III judges at the time of the Founding.249 In support of this

contention, the Anastasoff Court cited some of the authorities

discussed in the body of this Article, including especially

William Blackstone,250 James Wilson,251 and even Chancellor Kent.252

The Anastasoff Court can be criticized for reaching the

conclusion it did. It can fairly be said that the Anastasoff

Court adopted what might be called a "presentist" reading of

246 Anastasoff v. United States, 223 F. 3d 898 (8th Cir.,

2000).

247 Hart v. Massanari, 266 F. 3d. 1155 (9th Cir., 2001).

248 Id., at 899-900 ("Inherent in every judicial decision is a

declaration and interpretation of a general principle or rule of

law. . . . This declaration of law is authoritative to the extent

necessary for the decision, and must be applied in subsequent

cases to similarly situated parties"). Id.

249 Id., at 900 ("The Framers of the Constitution considered

these principles to derive from the nature of judicial power").

Id.

250 Id., at 900-902.

251 Id., at 902, notes 10 and 11.

252 Id., at 902, note 12.

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precedent and stare decisis; in essence, it read back into

eighteenth- and nineteenth-century discussions of precedent and

stare decisis understandings of those terms that would not, in

fact, cohere until the middle and later 1800s. Along these

lines, perhaps the largest error in Anastasoff was the adoption

of a positivist reading of precedent and stare decisis which

precluded the possibility of appreciating the jurisprudential

framework of the founding period.253 As this Article repeatedly

establishes, the historical foundations of these two basic

principles of Anglo-American law can only be understood through

the prism of eighteenth-century theories of natural law and

natural justice.

Hart v. Massanari, for its part, rejected Anastasoff's

analysis. It did so by focusing on the meaning of the term

"judicial power" as used in Article III of the United States

Constitution, and reading into it the modern presupposition that

courts not merely found the law but that they "made" it.254 The

253 The Anastasoff Court at several points mentions what it

calls "the law-declaring nature of the judicial power," id., at

901; the Anastasoff Court, however, fails to appreciate the

consequences that extend from this limitation on judicial power.

254 Id., at 1159-1160. The Hart Court reveals not only its

own but also Anastasoff's essentially modernist understanding of

precedent and stare decisis: "According to Anastasoff, exercise

of the 'Judicial Power' precludes federal courts from making

rulings that are not binding in future cases. Or, to put it

differently, federal judges are not merely required to follow the

law, they are also required to make law in every case." Id. The

assertion that federal judges "made the law" would be profoundly

repulsive to most lawyers and judges in the Founding period and

for several decades thereafter.

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Hart Court was comfortable with the anachronism implicit in this

assertion. "[W]e should exercise considerable caution," the Hart

Court declared, "lest we freeze the law into the mold cast in the

eighteenth century."255 But even though the Hart Court accepted

the evolving character of legal concepts, it wished to engage in

historical exploration. It did so as a way of confronting

Anasatasoff's reading of precedent and stare decisis. "To accept

Anastasoff's argument," the Hart Court explained, "we would have

to conclude that the generation of the Framers had a much

stronger view of percedent than we do. In fact . . . our concept

of precedent today is far stricter than that which prevailed at

the time of the Founding."256

In the course of explaining, in a few pages, the

common-law understanding of precedent, Hart touched on some of

the themes explored in this Article. At footnote eight, for

instance, we find recited Sir Matthew Hale's assertion that

"judicial decisions 'do not make a Law properly so-called,' . .

." but constitute evidence of what the law should be;257 in the

same footnote, we also encounter Lord Mansfield's declaration

255 Id., at 1162. The Hart Court returned to this theme one

page later: "One danger of giving constitutional status to

practices that existed at common law, but have changed over time,

is that it tends to freeze certain aspects of the law into place,

even as other aspects change significantly." Id., at 1163.

256 Id., at 1163.

257 Id., at 1164, note 8 (quoting Sir Matthew Hale, The

History of the Common Law of England).

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that "'the reason and spirit of cases make law; not the letter of

particular precedent.'"258 After reviewing this history, the Hart

Court reasserted the proposition with which it commenced its

analysis:

"A survey of the legal landscape as it might have

been viewed by the generation of the Framers casts

serious doubts on the proposition -- so readily

accepted by Anastasoff -- that the Framers viewed

precedent in the rigid form that we view it today.

Indeed, it is unclear that the Framers would have

considered our view of precedent desirable. The

common law, at its core, was a reflection of

custom, and custom had a built-in flexibility that

allowed it to change with circumstance."259

To address the normative question left unasked by Hart

-- why should we accept the modernist understanding of precedent

and stare decisis rather than return to the older understanding

embodied in the work of the jurists of the later eighteenth and

nineteenth century? -- would be a large and daunting task,

especially for the conclusion of an already overly-long

historical study of the subject. It is best, perhaps, to close

with an observation: stare decisis, at the time of the Founding,

258 Id. (quoting Fisher v. Prince, 97 Eng. Rep. 876, 876

(K.B., 1762).

259 Id., at 1167.

was a very different concept from what it has become today. How

we respond to this background is very much up to us.