Precedents all the way down: halakha as a common law system (part 3)

3. Legal systems compared

Most national or sub-federal jurisdictions today are identified with one of two legal traditions: civil law and common law. As we shall see in this section, civil law systems take positive law (i.e. legislation) as the almost exclusive source of law, with other potential sources, such as natural law, custom, or precedent, playing little role, if any. The role of the judge is simply to apply existing law as he sees it. Common law, by contrast, sees precedents as the key to understanding and applying the law, including statutes. Cases are decided, and thus new law is derived, based on existing precedents. Thus, judges are effectively capable of incremental innovation, within the existing body of precedent. The higher the authority which set the precedent, the more formal and binding it is; the greater the authority of a court, the more room it has to innovate.

What I describe here are archetypes: in reality, differences between legal systems are more subtle and more varied, and hybrid systems exist as well. Moreover, the differences between them were (in most countries) more significant in the past than today.¹ Also, next to common law, there are other, less widespread legal systems which also share(d) the relevant features I wish to highlight, especially other legal systems built around judge-made law, such as Roman-Dutch law.

Civil law

Developed in continental Europe, civil law has its roots in late Roman law, particularly Justinian’s Code, but in most countries has been moulded or influenced most directly by the Napoleonic Code. Under civil law, ‘the law’ is thoroughly identified with positive law, which means law created through the means of formal authority, and judicial interpretation is focused on these positive laws. Positive laws are legal texts decided by the will of, and promulgated by, a legislator - an authority typically (but perhaps not necessarily) external to the court system, with formal authority to create obligations binding upon citizens, i.e. laws. Depending on the country in question, positive laws may include a constitution, statutes, codes, treaties, decrees, and various forms of secondary legislation.

In civil law systems, statutes are the predominant source of law. The judicial role consists primarily of finding the statutory provisions relevant to a given case and applying them. Judges typically still have a good deal of discretion, as statutes, written as they are in natural language, involve ambiguity. Moreover, any nation’s statutes were made by different people at different times (often as messy compromises), and which legal provision should apply in a given case is not always clear. The hierarchy between different forms of positive law, as well as conflicts between laws and older laws also present ambiguity and therefore a source of judicial discretion.

A legal philosophy closely related to civil law, but not exclusive to such systems, is legal positivism, which has its roots firmly in classical liberalism and the enlightenment. The chief principle of positivism, is nulla poena sine lege (lit. ‘no penalty without law’): no person can be punished or bound by anything which has not been duly legislated and promulgated as law by the legitimate legislator. Also known as the ‘principle of legality’, this idea is based on one interpretation of legal certainty. According to this conception, since a person should not be expected to obey a law unless it is clearly established what the laws are, one cannot be held liable for a law which was not officially proclaimed as such. Positivism implicitly assumes a separation of powers: that legislator and judge are separate actors. Law is created by the legislator, not the judge. The judge’s role lies in identifying the relevant legal provision and applying its language as accurately as possible – applying any other principle or consideration is tantamount to violating the principle of legality and inflicting arbitrary punishment.

Common law

The main foil to civil law is common law, a legal tradition originating in the state-building efforts of England’s Norman kings. Virtually all jurisdictions which were at some point part of the British Empire use common law or a system influenced by it to a significant degree. The literature on comparative law distinguishes between common law systems, which are legal systems with a large common law component, and within which jurisprudence is developed through a common law methodology, and common law meaning case law developed through that methodology. Common law systems usually include positive law (such as statutes), but they also involve common law developed by the courts.

To explain common law, it is perhaps best to begin with what I would argue is its underlying philosophy of justice. Unlike civil law systems, for common law, the legal process is not simply a matter of applying general laws but rather a question of achieving justice in individual cases, in a way consistent with how law was applied in previous cases. Common law assumes that social interaction is governed by norms which may find expression in formal positive laws, but not necessarily – social norms emerge from human interaction even without state involvement. Where there is no positive law, courts emerge as a way of adjudicating social norms and arbitrating between competing parties in the case of a dispute. Though social norms are often clear, the absence of positive law can yield a great deal of disagreement about what the rules are. Positivists contend that in the absence of positive law, individuals are not bound by any social rules except those they themselves contractually obligated themselves to. Common law, however, does not seem to believe, as it were, in atomised individuals, and instead sees them as bound by social norms and expectations. In the absence of positive law or precedent, it is the job of judges to identify (cautiously) what the rules are and to apply them.

Common law is often described as judge-made law, but individual judges face important constraints, both formal and informal, which affect common law rulings. Firstly, there are formal constraints. As under civil law, common law systems, positive law holds precedence over all other forms of law.² Statutes are usually the starting point of chains of precedents, and the legislator can override any judge-made law through statute. However, the meaning of statutes themselves is determined (to a far greater degree than in civil law) by judicial precedents. Often, part of the authority behind precedents is binding and formal in nature, being based on court hierarchy.³ However, precedents can be highly influential, and therefore count as ‘persuasive precedents’, despite coming from lower or equal-ranking courts, or even originating outside the court system (e.g. writings such as Blackstone’s Commentaries or opinions authored by leading lawyers). The use of different precedents in court rulings is therefore partly influenced and structured by informal authority.

Secondly, rulings are expected to plausibly abide by precedent. This principle, known as stare decisis, lies at the heart of all common law systems. It entails that cases ought to be decided according to consistent rules so that similar facts will yield similar results. Judicial case law (and other forms of precedent⁴) are not merely a constraint on rulings, they “are themselves law, or rather the rules which the courts lay down in making the decisions constitute law".⁵ Judges apply the law to new cases through the casuistic extension of precedents to new cases - thus, law does not merely exist, as the act of a legislator, it is continually developed. Peter Jaffey⁶ explains how this works:

Analogical reasoning [i.e. the extending of precedents to new cases by analogy] is based… on attributing to courts, not the authority to lay down [positive law-like] exclusionary rules, but the authority to determine what outcome is just on the particular facts of the case. The first function of a court is to reach a decision that is just as between the parties on the facts of the case, and this function is reflected in the structure and character of litigation, including the emphasis on a detailed account of the particular facts and the focus of the arguments on them. This does not mean that the court is not required to articulate a justification for the decision and formulate an appropriate rule. The point is that a court’s ability to identify and express the rationale for a decision, or to identify precisely which facts are material, or to formulate a rule that also applies in situations not directly under consideration, falls short of its ability to reach a just decision with respect to the outcome on the facts. On this assumption, if the court formulates a rule to justify its decision, the rule should indeed be treated as a provisional rather than a definitive exclusionary rule, in the sense that, although it is of necessity applied as the definitive law in the case in hand, with respect to future cases it is to be understood as a rule proposed or offered, as it were, as the appropriate rule, but subject to modification in cases that a later court regards as materially different… in a well-developed area of law, where there have been many decisions identifying the relevant underlying considerations, weighing them up, and exploring the way in which they interact and support each other, the rules will operate for practical purposes as if they were ordinary exclusionary rules.

Common law is therefore inherently inductive. While civil law starts at the level of general principles expressed as statutes, common law starts with the details relevant to a specific case, expressed in terms of a single ruling. Though individual rulings represent the resolution of specific cases, common law judges look for common threads running through previous rulings. And thus, no rulings are written without reference to previous rulings, or in their absence, customs and norms. Even written rulings which apply arguably novel interpretations justify themselves by reference to precedent.

As I argued above, I see the common law approach as normatively deriving from a certain vision of justice and legal certainty. Beyond that, upholding precedent is its way of avoiding judicial whim and an overly unpredictable, ad hoc process. If, as I described above, a common law court can decide cases even in the absence of a legislator having laid down positive law, this means that the first precedents are made with relatively high levels of judicial discretion. Stare decisis means that once precedents begin to pile up, this discretion is quickly constrained. The rules articulated in past cases become law, and legal certainty becomes anchored in precedent. Importantly, though, the precedents used to make decisions continue to include less formal sources, such as custom, legal texts, or opinions written by respected jurists. Of course, as already noted, the authority of formal judicial case law will also vary, most importantly by the relative authority of the court which issued the ruling in question, but also by how much it is backed up by subsequent precedents.

The authority of precedent is also backed up by a wider culture of conservatism in the courts and the legal profession. This culture is bolstered by both formal legal principles and the expectations of those affected by the courts’ rulings. judicial attitudes can go so far as to assert that judges have no power to change the law, despite clear evidence that they can (even if they are constrained). This makes a lot of sense - if judges believe they can change the law, it may not be long before they believe they should in fact actively do so to serve other aims (i.e. judicial realism), losing sight of legal certainty and eroding the constraints placed on judges. As a result, the law could lose its coherence and become the product of judges’ whims.

Having sketched out the main differences between civil law and common law, I shall now turn to Jewish law, halakha. I first lay out the sources of formal and informal authority in halakha. Halakhic judge-made law consists mainly of precedents governed by informal rules and conventions. Besides underlining the similarity to common law, I will examine the case that any halakhic text possesses formal authority as either a civil law-style code or a set of binding precedents.

1. As I noted in part 1, the way I present these systems is also more geared towards helping to describe halakha than towards presenting the most accurate possible picture of these legal systems themselves.

2. Though, classically, common law allows courts to create new crimes, this power is rarely used if there are other sources on which to draw, especially statutes.

3. Of course, even binding precedents are not necessarily given equal authority in practice.

4. I’ve often seen precedents being referred to as ‘case law’, but this term suggests precedents only issue from actual cases ruled on by courts. However, this is not so - and it certainly is not in halakha.

5. Carpenter, Charles E. (1917). "Court Decisions and the Common Law". Columbia Law Review. 17 (7): 593–607.

6. Jaffey, Peter (2011). Authority in the Common Law. Australian Journal of Legal Philosophy, 36.