out of the customs in force among the miners of the state. The growth of the law in modern times, however, has owed but very little to custom. Custom in our law furnishes a rule only where statute law is lacking, and only where the custom is not inconsistent with the general principles of the common law. These limitations on its field tend more and more to exclude its operation as a source of law. 8. Judicial precedent-The following of precedent. It is a principle of Anglo-American law, and one of the greatest importance, that a court is bound, with but few exceptions, to apply the rules and principles embodied in former decisions in similar cases, unless these rules and principles have been changed by statute. This principle is generally spoken of as the rule of stare decisis (standing by the decisions). The largest part of our law, at least so far as it deals with the relations between individuals, is the product of these judicial precedents. No other system of law allows such authority to adjudication. In the civil law of European countries, for example, the opinion of a court as to what rule should be the ground for a decision carries weight just like the opinion of any other legal expert. It is solely on the merits of its reasoning that it makes an appeal to the tribunal having the later case in hand. In Anglo-American law, on the other hand, as Professor Gray succinctly puts it, the peculiar force of a judicial precedent "does not lie in its accordance with the opinion of the learned, or in the fact that it is right; it is a judicial precedent not because it ought to have been made but because it has been made."3 In other words, courts recognize the authority of previously decided cases as preventing the exercise of their own discretion. They follow precedents which they may think ought not to have been made. With respect to their binding force, precedents are usually divided into those which are imperative and those which are only persuasive. The former class, however, is the only one which is a legally recognized source of law. Judges are bound by it even where they disapprove of it. Persuasive precedents are really authoritative only as their merit impresses the court to whose consideration they are presented. The judges are not bound to follow them. Thus, decisions of English and Canadian courts, while they receive careful consideration in American tribunals, are merely persuasive and not binding on these tribunals. Imperative precedents, on the other hand, are of binding authority. They cannot be disregarded at all by courts subordinate to the court making them, that is, subject to reversal by it on appeal. Thus the decision of the United States Supreme Court makes a precedent which is absolutely binding on all the federal District Courts, whatever their opinion of its soundness may be. On courts of coördinate jurisdiction, on the other hand, or on the court itself in subsequent cases, they are not so absolutely binding. Such a court may disregard its prior rule in some circumstances. The only Anglo-American court which apparently 3 Gray, The Nature and Sources of the Law, p. 188. binds itself irretrievably by a decision is the British House of Lords.* 9. The disregarding of precedents. It is hard to formulate exactly the situation in which a court will feel justified in rejecting a precedent which it has made. Mr. Salmond has, however, made an attempt to define such a situation by saying that if the rule is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interest of justice, it may be overruled or dissented from." This requires a balancing by the court of the evil of unsettling what has been regarded as law against the benefit of correcting the erroneous decision. If the precedent, while it still stood, has been the basis of numerous or important transactions it would be better to let it stand. On the other hand, if the rule has not been followed, but has become obsolete through disuse and changed conditions, it may be more freely disregarded. 10. The creation of precedents.-Hitherto consideration has been directed to the question of how a precedent once established furnishes a rule for subsequent cases. But one may well ask how did the precedent itself come to be established in the first place. The answer is to be found in the primary principle that the purpose of the court and the duty of the judge is the administration of justice. A case brought for decision must be decided, and in the administration of justice according to law it must 4 London Street Tramways Co. v. London County Council, (1898) A. C. 375-379 (Eng.). 5 Salmond, Jurisprudence (3rd ed.), §§ 64-65. if possible be decided on a general principle. This principle may be found in custom, in a statute or other legislative enactment, or in a judicial precedent already provided in an earlier case. But if a case arises for which no rule can be found in any of these sources it is none the less incumbent upon the judge to decide it, and to do so if possible on a principle susceptible of general application. This principle he must seek ultimately in his own ideas of right and justice, and in formulating it he creates a new precedent. But in his search for a principle a judge is habituated to obtaining guidance from various sources, the chief of which is the analogy of the preexisting law. Thus the rules for the control of aeroplanes may be suggested by analogies from the rules governing water craft or land vehicles. Competing analogies are likely to be presented to him by counsel for consideration, and most new precedents are essentially the selection of one of two or more possible analogies for development into a principle. In this selection the trained jurist is guided by a desire to choose the analogy which will best fit into the existing system of the law, and be most likely at the same time to work out justice in its applications. In the accumulated experience of the courts as embodied in the reports of their decisions-now reaching into the thousands of volumes and extending over centuries of experience with actual situations he has a guide to his own reason which is of inestimable value. It is in this aspect that one of the chief merits of our Anglo-American legal sys tem of adherence to the course of development of the law through decided cases becomes conspicuous. A certainty that the court, even in an untrodden field, will be guided by the judicial experience of the past, and will reach its principle of decision by lines of reasoning tested and accredited by professional usage, enables the lawyer to advise his client and the client to engage in his enterprise with confidence in the uniform and definable development of the law to cover the new situation. 11. The persuasive sources of law in general— Legal reasoning and persuasive precedent. Those sources of law which have been spoken of as persuasive may perhaps be most appropriately discussed at this point, since from the point of view of the student of law they get their chief significance as the sources guiding judicial discretion where the authoritative sources fail to furnish a binding rule. It is a peculiarity of the Anglo-American system which cannot be too often emphasized, that not merely when the legislator has laid down a rule but, under the doctrine of stare decisis, when a court of superior authority has provided a precedent, the court cannot exercise its discretion. It is only when the question raised is an open one within the jurisdiction, when the judges are not concluded by an existing rule of law, that they may look further afield for help in the creation of a new precedent, or even in the decision of the particular case in hand. It has already been said that the chief source of guidance in such a situation is the judge's own trained reason, operating on the various analogies found in existing law |