II.

The Legal System

The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. Common law can be contrasted to the civil law system, based on ancient Roman law, found in continental Europe and elsewhere. Whereas civil law judges resolve disputes by referring to statutory principles arrived at in advance, common law judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants.

As the number of judicial decisions accumulate on a particular kind of dispute, general rules or precedents emerge and become guidelines for judges deciding similar cases in the future. Subsequent cases, however, may reveal new and different facts and considerations, such as changing social or technological conditions. A common law judge is then free to depart from precedent and establish a new rule of decision, which sets a new precedent as it is accepted and used by different judges in other cases. In this manner, common law retains a dynamic for change. As the United States Supreme Court Justice Oliver Wendell Holmes wrote in his book The Common Law (1881): “The life of the [common] law has not been logic; it has been experience.”

In all common law systems, a pyramidal structure of courts exists to define and refine the law. At the base of the pyramid is the trial court. In criminal trials a judge sits with a jury; the judge decides and instructs the jury on the law, and the jury decides on factual issues. Except for cases of defamation, malicious prosecution, or false imprisonment, which are decided by a jury, in civil actions a judge sitting alone decides issues of both fact and law.

Above the trial courts, layers of appellate (appeal) courts, composed entirely of judges, exist to adjudicate disputes. These disputes centre on whether or not the trial judge applied the correct principles of law and drew the right conclusions from the factual evidence in civil cases. The interpretations of law made by appellate courts form the precedents that govern future cases. Furthermore, the importance of a precedent for any given court depends on that court’s position in the pyramidal structure; for example, a precedent set by an appellate court has greater force in trial courts than in other appellate courts.