STARE DECISIS tion to §7 of the same code, which reads, — "If a case cannot be decided either from the words or from the natural construction of a law, similar cases which are distinctly decided in the laws, and the motives of other laws allied to them, must be taken into consideration. Should the case still remain doubtful it must be decided, with regard to the carefully collected circum stances, according to the natural principles of right." He added in his own words, "On a doubtful question not clearly settled by the written law, a decision of the highest court becomes law, and remains so until the legislature adopts more definite enact ment." In Hungary there are some minor codes but as yet no Civil Code has ever been adopted. Several commissions have been appointed, from time to time to prepare one (the report of the last commission is now printed and pending), but the legislative body has always hesitated, — as Common Law countries have hesitated, to put into rigid form, provisions of positive law which may require interpretation or amend ment as soon as published. There is a Commercial Code, and also a Code of Procedure; but otherwise as a prominent lawyer said to me " There is a Common Law in Hungary, as in England, based on decisions of the courts. Only those decis ions are published which are important, and they are binding as precedents." Here then are four countries in which "Stare Decisis" prevails, not as law or as doctrine, but as a recognized fact. There is no question as to the leading place which decisions of the courts occupy in the law literature of southern Europe. I asked my Austrian friend how he pre pared cases for trial. His answer was: "After assuring myself that there is no statute to cover the case, I turn to the treatises. I never expect much help from them, however, for they generally state what everyone ought to know, and evade doubtful points. I then make a thorough
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search through the decisions of the courts to find something to support my point of law." If we remember that there are in Austria also indexes and encyclopaedias to help in hunting for precedents, is not this just the answer an American lawyer would make to an Austrian inquirer? I have just had very interesting inter views with a judge of the Tribunal Federal (Supreme Court) and with a prominent pro fessor of the University at Berne. Before 1875 the Supreme Court convened irregularly in the different cantons whenever and wherever appeals accumulated. In that year the court was located permanently in Lausanne and began publishing its deci sions in a regular series. Although there is no law to compel it these are regarded as precedents to be followed in the cantonal courts (which are courts of first instance and first appeal in federal as well as canto nal cases). When asked as to the place the decisions of his court occupied in Swiss jurisprudence, the judge answered that the court had the "high and noble part" of adapting law to the march of civilization. The court first interprets existing law, and then, if existing law does not apply to new conditions, the court "must make the law." The "project" of the new Civil Code, which will probably be adopted next December, prescribes that in absence of a written law which is applicable, the judge must decide according to customary law; in absence of customary law, following doctrine and juris prudence. In default of these sources he will apply the rules which he would enact if he had to fill the office of legislator." The court thus "legislates" on those new and difficult cases, which (as the judge said) arise from time to time and "imperceptibly but surely" form the law of the future. Does this not indicate that court deci sions are the material, next to codes and laws, for our lawyers to search for practical matters, and our students to search for the tendencies of modern law? Berne, Switzerland. July, 1907.
