COURT SYSTEMS AND LAWThe Civil law is by far the older, going back at
least to the Corpus Juris Civilis of the Emperor
Justinian in the sixth century C. E., though some
scholars would trace it back to the 12 Tables of
Rome, said to have been put together in 450 B. C.
E. This system is found throughout Western and
now Eastern Europe, most of Central as well as
South America, and in many other areas in Africa
as well as Asia, plus the state of Louisiana (for an
example see Williams vs. Employers Liability Assur-
ance Corporation, Limited, 296 F.2d 569 (1961) U.S),
the Canadian province of Quebec (Magnet 1980),
and Scotland. The common law system is often
dated from the Norman conquest of England in
the eleventh century, when the Normans sought to
impose a single system on the country, hence the
name ‘‘common law.’’ Common law is now found
not only in Great Britain but in those countries
that made up the British Empire, such as Canada,
Australia, New Zealand, Ireland, India, as well as
the United States, and is influential in many coun-
tries of Africa and Asia. During colonialism, the
common law countries preserved legal ties with
England through Privy Council appeal, a process
largely abolished or greatly attenuated today. Com-
parable appeals or ties to a single place were
largely unknown to the civil law system. Whether
the European Community will establish some form
of tie remains to be seen.
THE BASIC COURT PARADIGM: THE
TRIADIC DILEMMAWhen persons with a grievance decide to take
action, they may: (1) act separately from each
other as in direct attacks, seizure of property, etc.
(see Black 1993, chs. 2, 5); (2) confront the other
party; or (3) enlist the participation of a third party
to help settle the dispute. Courts are preeminently
concerned with this third option, what we call ‘‘the
triadic dilemma.’’ Although courts deal with mat-
ters other than dispute settlement, such as law
making (when judges make a new policy in deci-
sion making) as well, of course, as social control,
they all employ a variant of a triad. Two persons or
collectivities who have been unable to settle their
differences or who have accused others of public
harm have in all societies sought the help or
guidance of a third party. The hope of each party is
that the third party will side with them. Although
each may think it fairest if the third party is neu-
tral, in practice each hopes for a decision in his or
her favor. As Simmel (1902; Wolff 1950; Caplow
1968) shows, parties of three are inherently unsta-
ble, being liable to break down when two of the
three form a coalition to defeat the third, a phe-
nomenon well-known to parents of small children.The third party may be simply a go-between
who offers his services unasked in the interest of
preserving or restoring good relations. Or he or
she may, as Shapiro (1986, ch. 1) notes, take a
more active role as a mediator, though only with
the consent of the two disputing parties. While
mediators may seek to preserve their neutrality, in
fact he may, as in the case of real estate agents,
make proposals of their own and may shade the
decision by how they handle the facts each shares
with them. Less consent from the disputants is
involved when an arbitrator appears who may be
persons agreed to by the parties or persons im-
posed by the state or the terms of a labor contract,
for example. Arbitrators are under no obligation
of coming up with a solution agreeable to both,
but they will usually try for such a solution. The
most coercive situation of all is the appearance of a
judge, either as required by law or by decision of a
governmental body. Here the parties may have no
say at all either in his appointment or on the body
of rules he applies, which may be the terms of a
contract or the rules of law.The dilemma in all these triadic situations is,
as noted, preventing the breakdown into two against
one. Whatever the outcome, those who lose are
likely to feel the other two have somehow com-
bined against them or that they were defeated
from the start. In common law systems, the myth
of the neutral judge is much celebrated, although
since judges are political figures who owe their
position to their political activities and may even
have been rewarded with the judgeship for their
services, it is not surprising the loser feels he never
had a chance. In Civil law systems, there is no
pretence of neutrality. The judge is a member of
the civil service and hence a part of government
itself. With the prosecutor in criminal cases being
also a member of the administration, the dice are
loaded as two against one. On the other hand, this
does not mean the civil law system is less fair or just.Indeed, because of the many protections of-
fered to the accused in common law systems, one
author commented that if he were guilty, he would
rather be tried in the United States but if innocent,