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LAWMAKING BY PRECEDENTS

To quickly review material from Chapter 2, judicial decisions in the United States and other common law nations such as England typically build on the precedents established by past decisions, known as the doctrine of stare decisis (“stand by what has been decided”).

By contrast, civil law nations such as France and Germany have a codified legal system where the basic law is stated in codes. These are statutes enacted by the national parliament, which arranges whole fields of law (family law, housing law, and so forth) in an orderly, logical, and comprehensive way. Judges in these nations follow the basic principles of law found in acts of parliament. In common law nations, judges base their decisions on case law, a body of opinion developed by judges over time in the course of deciding particular cases. The doctrine of precedent, the notion that judges are bound by what has already been decided, is a fundamental common law doctrine (Friedman, 2002).

In the common law system, following precedents is often much easier and less timeconsuming than working out all over again solutions to problems that have already been faced. Precedent enables judges to draw on the reasoning ofjudges from earlier generations and helps to minimize arbitrariness in judicial decision making. Moreover, precedent enables individuals (with the assistance of attorneys) to plan their conduct in the expectation that past decisions will be honored in the future. Although certainty, predictability, and continuity are not the only objectives of law, they are certainly important ones. Many disputes are avoided, and others are settled without litigation simply because individuals are familiar with how the courts will likely respond to certain types of behavior (Geel, 2009).

Despite the importance of precedent, judges do make decisions that overturn prior decisions. A judge may also be confronted with a case for which there is simply no precedent. For example, consider a problem that judges faced a century ago when airplanes began flying over farmland and agitating farm animals. Farmers sued for damages. Because airplanes were new, existing law did not at all cover this situation, and courts thus looked to analogies in existing law that could reasonably be extended to this new situation (Hamilton and Spiro, 2015). As this example suggests, judges sometimes make law in instances without being guided by precedent, and they do so via the selection of appropriate analogies.

 
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