plays a crucial role. The use of the Watergate precedent in the recent impeachment debate is another example Of course it is not obvious in theory and often not clear in practice what it means to follow a precedent. Just as important, a central feature of the common law method is that rules derived from precedents need not always be followed. They can be modified or even overruled in order to make them better as a matter of morality or policy. This is a familiar aspect of the common law: precedent controls in a general way, but in determining what precedents require, or how far they are to be extended or cut back, or whether they are to be overruled entirely, inevitably requires one to make judgments of morality or social policy. Cardozo gave this description, in the twentieth centurys best account of the common law method: The final cause of law is the welfare of society. The rule that misses its aim cannot nently justify its existence.. I do not mean,of course, that judges are commissioned to set aside existing ules at pleasure in favor of any other set of rules which they may hold to be expedient or wise. I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance. 10 Because it is based on precedent, the common law approach might be thought to be beholden to the past, and therefore, at first glance, might seem especially subject to Jeffersons objection. Paine,s principal target was not written constitutions but the kind of traditionalism that has an affinity to the common law approach; his bete noir was Burke, who borrowed extensively from the common lawyers But in fact the common law approach is, if anything, relatively well-suited to resist Jeffersons argument. 10Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (Yale Univ Pres 1921)11 plays a crucial role. The use of the Watergate precedent in the recent impeachment debate is another example. Of course it is not obvious in theory, and often not clear in practice, what it means to follow a precedent. Just as important, a central feature of the common law method is that rules derived from precedents need not always be followed. They can be modified or even overruled in order to make them better as a matter of morality or policy. This is a familiar aspect of the common law: precedent controls in a general way, but in determining what precedents require, or how far they are to be extended or cut back, or whether they are to be overruled entirely, inevitably requires one to make judgments of morality or social policy. Cardozo gave this description, in the twentieth century’s best account of the common law method: The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. . . . I do not mean, of course, that judges are commissioned to set aside existing rules at pleasure in favor of any other set of rules which they may hold to be expedient or wise. I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.10 Because it is based on precedent, the common law approach might be thought to be beholden to the past, and therefore, at first glance, might seem especially subject to Jefferson’s objection. Paine’s principal target was not written constitutions but the kind of traditionalism that has an affinity to the common law approach; his bete noir was Burke, who borrowed extensively from the common lawyers. But in fact the common law approach is, if anything, relatively well-suited to resist Jefferson’s argument. 10Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (Yale Univ. Press 1921)