ABSTRACT
The beginning of wisdom may be to recognize the variety of problems that arise in common law systems concerning application of precedents. Even the selection of precedents as relevant, let alone binding, requires the extraction of some material element. A legal system may stand somewhere between the civil law jurisdictions that have no formal theory of binding precedent and the common law jurisdictions that embody a fairly strict stare decisis doctrine. The binding elements in legal precedents may be treated as either positive or critical norms. Within the common law the differentiation of binding and non-binding elements within a decision has been historically connected with the existence of a formal practice of stare decisis and hierarchical subordination. An unwillingness to envisage strict distinctions between rationes decidendi and obiter dicta may also be favoured by theories about the sources of law in general.
