COURT SYSTEMS AND LAWthen he would prefer the Civil law system because,
for reasons we shall explain, judges have far less
power than they do in the United States, and the
system is far less adversarial. The Civil law judge
assumes a more neutral role in searching for
‘‘truth,’’ rather than winners or losers. Attempts
are made in both systems to produce an outcome
that each will feel is ‘‘just.’’ Disputants may be
asked to submit voluntarily, and if they do, they
will be felt to have offered at least a modicum of
consent to the outcome. Alternatively, attempts
are made to avoid an all-or-none outcome. For
example, in auto accident cases, one party may be
felt to be 70 percent at fault and the other 30
percent, with a division of property in that propor-
tion. In criminal situations, as in the United States,
a plea bargain may enable the accused to walk
away with a much lesser penalty than he or she
might otherwise have suffered.
Actually, although plea bargaining is thought
of as peculiar to criminal proceeding, negotiation
is equally common in what are called ‘‘civil situa-
tions’’ (involving actions between two or more
persons) where, as in criminal proceedings, an
estimated 90 percent of cases are settled without
trial. Such resort to negotiation places a special
strain on the triadic model, particularly where the
judge may himself participate, at least to the point
of interviewing the accused in case of crime, or the
parties in civil law, to provide assurance, at least in
his own mind, that the accused or the plaintiff is
aware of what is happening and has voluntarily
entered into the ‘‘deal.’’ (Klein 1976). What one
needs to understand is that the ubiquity of nego-
tiation in American law is an organizational mod-
el. Lawyers, both defending and prosecuting, as
well as lawyers in other courtroom situations be-
come ‘‘repeat players’’ (Galanter 1974), who deal
routinely with one another as well as with judges,
clerks, and others in the court. Gradually, their
work becomes routinized, with all focusing on
getting things moving and coming out with cases
settled. The goal of the system, then, becomes one
of efficiently moving cases through, with partici-
pants seeing themselves, however unwittingly, as
agents of the system. As that takes place, the triad
can be seen as disappearing altogether and being
replaced by a work group consisting of three or
more players who have an interest in the outcome
of the game (see Eisenstein and Jacob 1977; Ja-
cob 1983).
We proceed to a detailed examination of the
two systems, beginning with the common law sys-
tem as most familiar to American readers. But that
very familiarity is likely to blind us to the assump-
tions of the system that contrast so sharply with the
equally hidden assumptions of the civil law system.THE COMMON LAW SYSTEMAlthough most persons are taken with the image
of justice as a ‘‘blind lady’’ who acts on the basis of
the facts and the inherent justice of the situation,
as Jacob (1996) points out, courts in common law
systems are ridden with policy assumptions, no
more so in the United States than in other places.
While courts go about their business of settling
disputes and ensuring orderly procedures, their
procedures send symbolic messages (see Nelken
1997; Sarat and Kearns 1988). This is especially the
case for appellate courts where, in contrast to
European courts, judges are fond of wrapping up
their decisions in opinions that are often more
widely cited and influential than the decision it-
self. While conservatives are usually at pains to
insist that judges confine themselves to being ‘‘strict
constructionists,’’ their opinions resonate with what
the legal scholar Dworkin (1977) calls ‘‘princi-
ples.’’ In the classic case of Riggs vs Palmer (115
N.Y. 506, 22 N.E. 188, 190, 1889), a presumptive
heir on becoming alarmed at the possibility that
his grandfather might change his will proceeded
to eliminate that possibility by murdering him.
The grandson was properly tried, but defended his
right to his inheritance. The court refused to
award the inheritance to him, leading a dissenting
judge in the case to ask for the court’s reasoning
for this decision. After all, wrote the dissenter, the
will was in order, was it not? There were the
required witnesses, and there was no question that
it was the intent of the testator that the young man
should receive the bulk of the estate. With barely a
reference to those issues, the majority awarded the
bulk of the estate to the deceased’s daughters,
who, under the will, were to receive only token
amounts. In sum, the majority proceeded to re-
write the will in direct contravention of the de-
ceased’s clearly expressed wishes. Although the
majority hunted mightily for a source for their
decision, turning variously to Aristotle, the Bible,
an ancient case from Bologna, the Napoleonic
Code, Roman law and, finally, to a rather desper-
ate assumption that no specific law was really