THE GREEN BAG
460
STARE
DECISIS
IN
CONTINENTAL
EUROPE
By Charles C. Soule An impression prevails in America that judicial decisions are not regarded as pre cedents in continental Europe. This opin ion is natural, in view of such explicit prohibitions as that of the Austrian Civil Code, which says (§12): — "The determinations issued in single cases and the sentences passed by the Courts in particular law disputes, have never the power of a law. They cannot be ex tended to other cases or other persons." But the most casual examination of European law books will show that decisions of the courts are published in long series and cited in the manuals intended for the use of lawyers. Why should these cita tions be so copious, unless decisions are to be regarded as precedents? In view of this apparent contradiction, I have tried to learn in each country, the exact force of decisions of the courts. Find ing very soon that there is a marked division of what we should call text-book-literature, in Europe, into theoretical and practical, — a distinction recognized in Italy in the arrangement of booksellers' catalogues, — I have confined my principal investigations for the present, to the practical books, con cerning myself not so much with what law was, or should be, as to what it now is. I have asked the advice of law professors and " jurists" as to histories of law and comparative jurispruduence, but have sought advice mainly as to practical books, from lawyers in active practice, and from judges now on the bench. Through the courtesy of our diplomatic and consular representa tives, I have been introduced in every country to leaders of the legal profession, who have responded with keen interest to my inquiries. I have had the good fortune, in two countries, to get young lawyers who spoke English, to act as interpreters
for me; thus getting clear comprehension, which is not always possible in dealing with a technical subject in an unfamiliar language. One of the leading questions I have asked everywhere is " Are decisions of your courts regarded as binding precedents." In Spain, a judge of the Supreme Court — I will use this general term for the highest courts — answered that if a lawyer cited one case only, it might not be followed; but that if he could cite in support of his argument, two or more former decisions they would be regarded by the court as establishing a precedent to be followed. The Spanish lawyer who advised me, said that if he cited one Supreme Court decision, he should expect any lower court to follow it. The Italian Supreme Court judges with whom I talked, said that there could hardly be uniform precedents for all Italy, as there are five Supreme Courts of equal authority in the five different political divisions, with as yet no common court of appeals, except in criminal cases. But he added that a lower court in Rome would be foolish to disregard a precedent cited from the Supreme Court because its decision would surely be reversed if appealed from. The Roman lawyer who interpreted for me, remarked afterwards, that if he could find a Supreme Court decision in his favor he should expect it to have " extraordinary weight," and in fact, should consider his case won in advance. In Austria, where the original Civil Code of 181 2 is still in force, a body of law has been built up from amending laws, new ordinances, and decisions of the courts. The Supreme Court indicates, in filing its decisions, which of them are on new points, and "plenar" (or binding) on the lower courts. I asked a leading lawyer in Vienna how this could be explained, in face of the provision quoted above. He called atten
