COMMON LAW
The principle underlying the common law is that cases should be resolved by reference to previous judicial decisions, rather than subject exclusively to written laws made by legislative bodies. This principle is what distinguishes the common law system of continental European law and of other countries. While in the continental legal, judges resolve cases basing their judgments on legal rules set in advance, in the common law, judges are more focused on the facts of the case to reach a fair and equitable outcomes for litigants .
When it meets a number of judgments about a particular set of similar responses, extract general rules or precedents that become guides for guidance when the judges have to solve similar cases in future. However, subsequent cases can contain various facts and considerations, for example arising from social changes or different technological conditions. A judge at common law is therefore free to get open or dissent from the doctrine established by precedent and have a new rule for the decision, which in turn will become a new precedent if accepted and used by other judges. Thus the common law has a continuing momentum for change. As Supreme Court Judge of the United States Oliver Wendell Holmes wrote in his book The Common Law (1881): “the life of the common law was not logic, but has been experimental.”
In every system of common law outlines a pyramidal structure of courts to define and clarify the law. At the base of the pyramid is the trial court (in English, the court of first instance). In criminal prosecutions, with the judge, also involved a jury: the judge decides and instructs its components on the law and it is they who decide on matters of fact. Except for cases of defamation, malicious prosecution and false imprisonment, which are decided by a jury in civil actions only the judge decides, both in regard to legal questions as to the factual.
Above the lower courts are courts of appeal, made exclusively by judges responsible for arbitrating disputes. These discussions are focused on finding out whether the lower courts have applied the correct legal principles and whether they have drawn the right conclusions from the data established facts in civil cases. The interpretations of law made by the appellate courts are established precedents that inform the decisions of future cases. Keep in mind that the importance of precedent for any court depends on the position of the court in the hierarchical structure described above. For example, a precedent set by an appellate court has a greater legal force to the courts of first instance for the rest of the other courts of appeal.
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