COURT SYSTEMS AND LAWneeded, anyhow. In the end they asserted that
there is a ‘‘fundamental maxim’’ found in all ‘‘civi-
lized countries,’’ namely:
No one shall be permitted to profit by his own
fraud, or to take advantage of his own wrong,
or to found any claim upon his own iniquity,
or to acquire property by his own crime. (Riggs
vs. Palmer 1889)But the dissenter asked: What is the legal
source of this ‘‘maxim?’’ It could not be found in
any case previously decided, nor in any statute
(such is no longer the case in most jurisdictions).
Although he agreed that the principle had intui-
tive appeal and might be found in most religious
and moral systems, the law, at least Western secu-
lar law, is not simply a set of religious or moral
principles. In the United States, the Constitution
specifically erects a wall between church and state.
Since that case, the principle, once announced by
the court, has been cited and is indeed now a part
of U. S. (and most other common law countries)
law. But we must not go too far and declare that
common law is simply a set of principles. Rather,
the law is informed by policy assumptions, often
hidden, but influential nonetheless. Although civil
law is equally political, attempts are much stronger
to hide the policy assumptions with an insistence
that only a legislature can make law. All judges are
supposed to do is apply it with as little innovation
or interpretation as possible, let alone enunciating
‘‘principles.’’ The overall issue of how much poli-
tics and governmental policy is reflected in judicial
decision making clearly affects the triadic system’s
functioning to produce or not produce a sense of
justice done and seen to be done. It is this feature
that has been seized upon by Marxists and propo-
nents of socialist law who see both common law
and civil law as simply disguised systems whereby
bourgeois ideologies are foisted on a powerless
proletariat by capitalist exploiters, whether gov-
ernmental or private. Their answer to the triadic
dilemma is that there never can be neutral third
parties, with the result that the only reality is
endless strife between parties with temporary truces
as victors seek to pick up the spoils.
In addition to taking policy positions, courts
in common law systems can have massive effects
on society by judicial review of legislative acts, a
phenomenon severely limited in civil law systems
as we shall note. Courts also provide a major
alternate route to persons who lack funds or who
have been stymied by attempts to influence legisla-
tion. Persons can convert a private grievance into a
public cause (Savat and Scheingold 1998) by, for
example, deciding that severe burns from hot
coffee served at McDonald’s requires court action
to impose punitive damages as a warning to all
companies serving the public that consumer safety
must be a part of the design even in private firms.
So too, persons suffering from lung cancer who
have been unable to get protective legislation against
cigarette companies have turned to the courts, not
simply for financial awards, but for vindication of
what they feel are violations of their rights, as
citizens, to life. When added up, the damage awards
in such suits as well as those even in routine
automobile accidents, violations of privacy, and
tort and contractual disputes have never been
totaled but constitute a huge shift in resources
comparable to that involved in taxation. Nor have
we touched on the part that lawyers’ fees play in
such cases.Finally, unlike judges in civil law jurisdictions
who are part of the civil service from the start
(judges in France, for example, even go to special
schools), judges especially in the United States,
often come to their judgeships in mid-life, after
serving in political positions, business or other
areas of life. Jacob points out that:... between 1963 and 1992, between 58 and
73 percent of federal appeals judges had a
record of party activism before their appoint-
ments; among federal district judges, between
49 and 61 percent had such a background.
(1996, p.19)
Yet such a background should not lead to
cynicism that judges are necessarily biased or pro-
big business or pro-party. Their background in
ordinary society helps ensure a commitment to the
importance of the rule of law, of procedural fair-
ness, and of individual rights as a legitimate expec-
tation of ordinary citizens.
A special characteristic of common law court
is often the source of surprise and some envy on
the part of those schooled in civil law systems.
American courts are often perceived as a jumble,
with multiple urban, country, and state systems, so
that what is actionable in Montana may not be
actionable in Idaho and that if one is not happy
with treatments in a state court, one can, with