Because we draw our cultural heritage from so many different traditions, our legal system is a bit like a jigsaw puzzle. There are big pieces of English law (itself drawn from Norman, German, Saxon, Scandinavian and Roman societies) side by side with smaller bits from Spanish, French, Native American and ancient biblical sources.
These have all been modified by our peculiar North American experience. Until the 12th century, law in the western world operated on several primary levels. Collections of written laws such as the Augustinian Code or the Code of Charlemagne (both traceable to Roman law) created a broad written legal framework. This basic system still prevails in many countries (and in Louisiana in this country) and is known as the “civil” law.
In addition, the Catholic Church governed many activities under a large body of ecclesiastical law. Finally, all kinds of rules and regulations, many of which were never written down, were enforced by kings, local lords and courts, both ecclesiastical and secular.
A legal tradition called the “common” law, quite different from that of the civil law, developed in England after the Norman conquest in 1066. At least since the reign of the great legal reformer Henry II in the 1100s, decisions by English grand juries, kings, magistrates and (slightly later) trial juries were written down and eventually catalogued according to the type of case.
When the courts were called on to decide similar issues in subsequent cases, they reviewed the earlier decisions and, if one was found that logically covered the contemporary case, they applied the principle of the earlier decision. This doctrine is called stare decisis—Latin for “let the decision stand.” The common law thus consists of court opinions in specific disputes that state legal principles and must be followed in subsequent court cases about the same type of dispute.
This does not mean that every judge’s decisions stand forever. Courts reflect society’s values (however imperfectly), and old case law is rejected as society changes. But the principle of stare decisis is a strong one; judges are reluctant to discard well-established rules and take pains to explain (or deny) a significant departure from precedent.
Large areas of law developed in England in this case-bycase common law tradition. Eventually, two basic types of courts evolved: the law courts and special “chancery” courts established by the king to handle types of cases and provide types of relief that tradition did not allow the regular courts to entertain.
The principles developed in the law courts were called “legal” or “law,” while the principles developed in the king’s chancery courts were called “equitable” or “equity.” This distinction still exists in modern American law, although now there are not usually two separate kinds of courts.
England also, beginning hesitantly with the Magna Carta in 1215, developed a parliamentary system under which statutes proposed by the king or his ministers were enacted by Parliament. These statutes were gathered together into books not too different from today’s civil law codes.
During America’s colonial period, most of the English common law tradition and many of the English statutes
became firmly entrenched, though modified to some extent in accordance with the religious and cultural beliefs of the colonists. At independence, the basic legal system did not change. For the most part, the new country simply continued to follow English law.
There was, of course, one big difference. The U.S. Constitution was ratified in 1789, and neither the laws of Parliament nor the edicts of King George III had any further power in the new United States. The Constitution became the foundation on which our legal house was built.
Both the law inherited from England and that enacted by Congress and state legislatures eventually had to either find support in this foundation or be discarded.
Despite the increasing importance of statutes and regulations, many areas of our law still consist almost entirely of court decisions—but now by American courts. Also, the courts of this country are empowered to interpret statutes when a dispute arises as to their meaning.
As well as using other interpretative techniques, a judge will look at earlier cases to see how they have interpreted the statute and will apply the prevailing interpretation unless she feels it is wrong or clearly doesn’t apply to the current dispute. In other words, court opinions in America, as in England, serve as authority or “precedent,” which is often binding and always important to subsequent court decisions.
The courts whose decisions are published and thus become part of the common law are almost always appellate courts, not trial courts. Trials are for determining facts. In other words, it’s usually a jury that decides who did it, while the legal consequences of the act are left to the judge.
If a question that involves the law, or the way the law was applied in the trial, is appealed to an appellate court, the appellate judges (there is no jury) generally issue a written opinion that decides the legal questions presented in the appeal. Only in very rare instances will an appellate court agree to review the factual findings of the judge or jury. (Appeals are discussed in more detail in Section F2, below.)
So far we have talked about the United States of America as if it were one political unit. For many reasons, it often seems that this is true. However, it is important to remember that we have a federal system under which 50 sovereign political states have banded together voluntarily and agreed to give the federal government certain powers spelled out in the U.S. Constitution.
All powers not expressly granted to the federal government are reserved to the states. The states in turn have divvied up some of their power among counties, cities and special districts.
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