continental legal reasoning focuses on the creation and the application of rules,
mostly statutory rules, while the emphasis in the common law tradition has been on
reasoning by analogy to previous cases. This is a consequence of the doctrine of
stare decisis, to which we will now turn.
1.3.2 Precedent
Customary law comes into being if particular guidelines and standards for behavior
are traditionally used in a particular society and are experienced as binding.
If a regular form of behavior is not experienced as binding, for instance to go to the movies
on Saturday evenings, then it is no more than a merehabit; it is not customarylaw.
Customary rules are used by, among others, judges and other legal decision
makers.
As we will see in Chap. 2 , it is usual to distinguish judge-made case law from customary
law as a “source of law”. One of the points of this section is that this distinction is not
always very sharp. The customary nature of customary law consists partly in the fact that
legal decision-makers follow the custom of applying these rules.
Customary rules can come into being, or are confirmed, if they are actually used
in legal decision making.
An example would be the following: A peasant sells a cow to another peasant. The cow
turns out to be sick and dies within a few weeks. The second peasant wants his money back.
The seller refuses to return the money and says that the buyer should have paid more
attention to his purchase. If he had done so, he might have known that the cow was sick. The
case comes before a judge, who agrees with the seller: the buyer should have been more
careful, since the illness of the cow would have been detected had there been a careful
inspection of the animal.
In future cases, there is no longer a need to go to a judge about the sale of an unhealthy
animal if the animal’s bad condition might have been discovered through careful inspec-
tion. In such cases no money will be returned from the seller to the buyer. The decision of
the judge will function as aprecedentfor future cases. Moreover, after some time, the rule
that discoverable illness of cows does not constitute a reason to request the return of the sale
price will be considered as customary law.Judicial decisions can and often will function as precedents. There are two ways
to interpret this. The first interpretation is that the decision of the judge isevidence
of the law that already existed before the judge gave his decision. If the rule already
existed, it is clear that the same rule should be applied in future cases and also by
other judges.
A second interpretation is that the judge, in giving his decision, created a new rule
that did not yet exist but would exist from the moment that the decision was given. It is
also understandable in this interpretation that other judges will have to apply the rule in
future cases. It is this second interpretation, namely that courts’ decisionscreatethe
law rather than merely state it, that has become prevalent in the twentieth century.
10 J. Hage