Page:Harvard Law Review Volume 9.djvu/61

JUDICIAL PRECEDENTS. 33 have rather ungratefully kicked down the ladder by which they themselves have climbed, and exhibit a great repugnance to recog- nize judicial decisions or Gerichtsgebrauck in any form as a source of law. Perhaps the dislike felt towards the old Schoffen courts may have had something to do with this attitude. The prevalent view on the subject among modern civilians is expressed in an elaborate and much cited article by Jordan, 8 Archiv. fur civil. Prax. 191, 245 et seq. He sums it up thus: " Judicial usage (Gerichtsgebrauch) as such, that is by reason of its being judicial usage, has formally no binding force, and materi- ally only so much value as on the principles of a sound jurispru- dence belongs to it by reason of its inner nature; and hence a court cannot be bound to follow its own usage or the usage of another court as a rule of decision, but rather has the duty to test every question with its own jurisprudence, and ought to apply usage only when it can find no better rule of decision." Later writers seem generally to deny that Gerichtsgebrauch is a source of law at all, and consider judicial decisions as merely evidence (just as many other things might be evidence) of custom- ary law. This seems to have been Savigny's opinion. See I Heut. rom. Rechts, § 29; and such are the views, for instance, of Wachter, 23 Archiv. f. civ. Prax. 432, and of Keller in his Pan- dekten, § 3. Thus Stobbe (i Handb. d. deutsch. Privatrechts, § 24, p. 165): " Practice is in itself not a source of law; a court can depart from its former practice, and no court is bound to the practice of an- other. Departure from the practice hitherto observed is not only permitted but required, if there are better reasons for another treatment of the question at law." Dernberg in his Pandekten is the only recent author whom I have observed fairly to admit that Gerichtsgebrauch is a source of law; and even he says: *' Single decisions of a court, even of the highest, do not make Gerichtsgebrauch," which he defines as " the general uniform and long continued existence of a legal tenet by the court of the country." Pand. § 29. One point especially of the German theory seems very strange to a common-law lawyer. To such the duty of a lower court to follow the precedents set it by the court of appeal seems one of the plainest of judicial obligations, but the German writers, almost to a man, unite in denying this duty. Gengler, § 13, is the only writer cited by Stobbe (i Handb. § 24, p. 165) who affirms it 5