Thus, British colonists in America were steeped
in this tradition. Indeed, among the grievances enumerated
in the American Declaration of Independence were that the
English king had deprived the colonists of the rights of Englishmen,
that he had made colonial judges "dependent on his will alone
for the tenure of their offices" and that he had denied the
people "the benefits of Trial by Jury."
It is often said that the common law system
consists of unwritten "judge-made" law while the civil law
system is composed of written codes. For the most part, law
in the United States today is "made" by the legislative branch.
To some extent, however, the judge-made law analogy is true.
Historically, much law in the American common law system
has been created by judicial decisions, especially in such
important areas as the law of property, contracts and torts
-- what in civil law countries would be known as "private
delicts." Civil law countries, in contrast, have adopted
comprehensive civil codes covering such topics as persons,
things, obligations and inheritance, as well as penal codes,
codes of procedure and codes covering such matters as commercial
law.
But it would be incorrect to say that common law is unwritten
law. The judicial decisions that have interpreted the law
have, in fact, been written and have always been accessible.
From the earliest times -- Magna Carta is a good example
-- there has been "legislation," what in civil law systems
would be called "enacted law." In the United States, this
includes constitutions (both federal and state) as well
as enactments by Congress and state legislatures.
In addition, at both the federal and state levels, much
law has in fact been codified. At the federal level, for
example, there is an internal revenue code. State legislatures
have adopted uniform codes in such areas as penal and commercial
law. There are also uniform rules of civil and criminal
procedure which, although typically adopted by the highest
courts of the federal and state systems, are ultimately
ratified by the legislatures. Still, it must be noted that
many statutes and rules simply codify the results reached
by common or "case" law. Judicial decisions interpreting
constitutions and legislative enactments also become sources
of the law themselves, so in the end the basic perception
that the American system is one of judge-made law remains
valid.
At the same time, not all law in civil law countries is
codified in the sense that it is organized into a comprehensive
organic, whole statement of the law on a given subject.
Sometimes individual statutes are enacted to deal with specific
issues without being codified. These simply exist alongside
the more comprehensive civil or penal codes of the system.
And while decisions of the higher courts in a civil law
jurisdiction may not have the binding force of law in succeeding
cases (as they do in a common law system), the fact is that
in many civil law countries lower courts tend to follow
the decisions of higher courts in the system because of
their persuasive argumentation. Nevertheless, a judge in
the civil law system is not legally bound by the previous
decision of a higher court in an identical or similar case
and is quite free to ignore the decision altogether.
The Concept of Precedent
In the United States, judicial decisions do have the force
of law and must be respected by the public, by lawyers and
of course, by the courts themselves. This is what is signified
by the "concept of precedent," as expressed in the Latin
phrase stare decisis -- "let it [the decision] stand."
The decisions of a higher court in the same jurisdiction
as a lower court must be respected in the same or similar
cases decided by the lower court.
This tradition, inherited by the United States from England,
is based on several policy considerations. These include
predictability of results, the desire to treat equally everyone
who faces the same or similar legal problems, the advantages
to be gained when an issue is decided that affects all subsequent
cases and respect for the accumulated wisdom of lawyers
and judges in the past. But it is also understood that primary
responsibility for making law belongs to the legislative
authority; judges are expected to interpret the law, at
most filling in gaps when constitutions or statutes are
ambiguous or silent.
Thus, there are important limiting features to the concept
of precedent. First and foremost, a court decision will
only bind a lower court if the court rendering the decision
is higher in the same line of authority. For example, a
decision of the U.S. Supreme Court on a matter of constitutional
or ordinary federal law will bind all U.S. courts everywhere
because all courts are lower and in the same line of authority
as the Supreme Court in such matters. But decisions of one
of the several U.S. Courts of Appeals -- the intermediate
federal appeals courts -- will only bind federal trial courts
within their respective regions. Decisions of a state supreme
court on the meaning of a state law where that court sits
will be binding everywhere, so long as the state court's
decisions do not conflict with constitutional or federal
statutory law.
American judges tend to be very cautious in their decision-making.
As a rule, they only entertain actual cases or controversies
brought by litigants whose interests are in some way directly
affected. In addition, judges usually decide cases on the
narrowest possible grounds, avoiding, for example, constitutional
issues when cases may be disposed of on non- constitutional
grounds. Then, too, the "law" that judges state is only
so much of their decision as is absolutely necessary to
decide the case. Any other pronouncement on the law is unofficial.
Another important limiting feature of the concept of precedent
is that the later case must be the same or closely related
to the previous one. Unless the facts are identical or substantially
similar, the later court will be able to distinguish the
earlier case and not be bound by it.
The highest court of a jurisdiction, e.g., the U.S. Supreme
Court for the United States or a state supreme court within
its own state, can overrule a precedent even where the facts
of the later case are identical or substantially similar
to the earlier case. In 1954, for example, in the famous
school integration of Brown v. Board
of Education, the U.S. Supreme Court overruled an
analogous decision it had rendered in 1896.
But such direct over-ruling is not common. What is more
likely is that the high court, by distinguishing later cases
over time, will move away from an earlier precedent which
has become undesirable. But for the most part, the long
standing precedents of the high courts remain.
An Organized Law
Where does one go to find the law in America? It might
be supposed that with both enacted law and judicial decisions
comprising the law, the search would be difficult. But the
task in fact is relatively easy. Even though much American
law is not codified, it still has been systematized and
organized by subject matter. Legal encyclopedias and treatises
written by learned professors and practitioners set out
the law in logical sequence, typically providing historical
perspectives as well. These books of authority contain references
to the principles and specific rules of law in a given branch
of law, as well as citations to relevant statutes and judicial
decisions. Accessing statutes in "codebooks" and cases in
bound volumes called court reports, and nowadays accessing
both by computer, is a relatively straightforward undertaking.
But it also bears noting that in the common law system,
treatise writers do not have the same importance that they
do in the civil law system. In civil law countries, such
authorities are often considered sources of law, looked
to for the development of the doctrine relative to a given
subject matter. Their statements are given considerable
weight by civil law judges. In the United States, in contrast,
doctrine developed by treatise writers lacks binding force,
although it may be cited for its persuasive effect.
Common Law v. Civil Law
Apart from these features, there are a number of institutions
associated with the common law system not usually found
in civil law systems. Principal among these is the jury
which, at the option of the litigants, functions in both
civil and criminal cases. The jury is a group of citizens,
traditionally 12 in number, summoned at random to determine
the facts in a lawsuit. When a trial by jury is held, the
judge will instruct the jury on the law, but it remains
for the jury to decide the facts. This means that ordinary
citizens will decide which party will prevail in a civil
case, and whether, in a criminal case, the accused is guilty
or innocent of the charge against him or her.
The institution of the jury has had an important shaping
effect on the common law. Because jurors are brought in
on a temporary basis to resolve factual issues, common law
trials are usually concentrated events, sometimes only a
matter of days (although occasionally possibly weeks or
months in duration). Emphasis is on the oral testimony of
witnesses, although documents also are presented as evidence.
Lawyers have responsibility for preparing the case; the
trial judge performs no investigation of the case prior
to trial. Lawyers, acting as adversaries, take the lead
in questioning the witnesses at trial, while the judge acts
essentially as a referee. Testimony is recorded verbatim
by a court reporter or electronically.
The trial court, which is the "court of first instance"
(i.e., where the case is first heard) in the American system,
is where the factual record of the case is made. Generally
speaking, appeals courts confine their review of the lower
court record to errors of law, not of fact. No new evidence
is received on appeal.
All this stands in marked contrast to what is usually found
in civil law systems, where jury trials are for the most
part unknown. In a given case, instead of a single continuous
trial, a series of court hearings may be held over an extended
period. Documents play a more important role than witness
testimony. The judge actively investigates the case and
also conducts the questioning of the witnesses. Instead
of a verbatim record of the proceedings, the judge's notes
and findings of fact comprise the record. Appeals may be
taken both on the facts and the law, and the appeals court
can and, sometimes does open the record to receive new evidence.
Despite their differences, both the common and civil law
systems have as their goal the just, speedy and inexpensive
determination of disputes.
U.S. courts have become particularly sensitive in recent
years for the need to continuously reappraise their processes
in order to improve the quality of justice. As a consequence
of these efforts, there are many other aspects of court
activity in the U.S. These range from alternate dispute
resolution mechanisms (including arbitration and mediation)
to such procedural devices as default and summary judgment,
used by judges to decide cases at an early stage without
having to proceed to a formal trial.
Reprinted from the U.S. Department of State electronic
journal, Issues of Democracy