Common law v. civil law

Common law:

1. a legal tradition (v. civil law)

2. a source of law (v. statutory law)

Civil law:

1. a legal tradition (v. common law)

2. a domain of positive law (v. public law)

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Stare decisis

The defining principle of the common law tradition.

The conjunction of

1. Like cases must be treated alike.

2. Higher courts bind lower courts.

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Fact v. law

Implicit in stare decisis, which really says:

1. Cases alike in fact must be treated alike.

2. Higher courts bind lower courts on questions of law.

Judges determine law, juries find fact.

Verdicts are applications of law to fact.

Appeals.

To say that higher courts bind lower courts is to say that appellate courts bind trial courts, and that higher appellate courts bind lower appellate courts.

1. Appeals are reviews of trials, but are not themselves trials in the familiar sense.

2. Appeals can be raised on a question of law (most commonly), fact (in narrow circumstances) and fitness of sentence. Every appeal we will be reading is an appeal on a question of law.

3. An appeal on a question of law is granted only if there was an error of law (typically in the judge's instructions to the jury) and if the appellate court finds that it might have affected the outcome.

4. Appellate courts can acquit, convict (in limited circumstances) and order new trials.