I agree generally with** Noel Prosequi**'s points above, with one quibble and one qualification.
The quibble is with this statement:
I think it’s better to say that the Court is not deciding the issue and lets the lower court decision stand. My understanding of the cert. practice in the SCOTUS and the leave to appeal practice in the Supreme Court of Canada is that when the Courts refuse to take an appeal, that decision is not an affirmation of the lower court decision, and does not have any precedential value. (That is, lower courts do not treat the denial as a precedent on that point from the Supreme Court.) The Court simply doesn’t want to take that particular appeal.
The qualification is with this statement:
I think that there is a major difference on this point between the common law systems and the civil law systems. In the common law systems, derived from the English courts, the model is for courts of general jurisdiction, or at least very broad jurisdictions. Thus, the major trial courts generally have jurisdiction over all matters, and the ultimate appellate courts in most common law jurisdictions are courts of general appeal, which can hear appeals on any question of law. (The SCOTUS is an exception to this general characteristic of the common law countries.) If you look at a chart of the court systems in common law jurisdictions, they tend to be pyramidal, with a number of lower courts (usually divided by territorial jurisdictions) all feeding up into a series of intermediate appellate courts, with one court at the apex.
However, my understanding is that in the civil law system, there is a much greater willingness to split up legal issues by subject matter and to have parallel court systems: a criminal court system, an administrative law courts system, a civil law court system, a commerical law court system, a family law court system, and so on - each with their own ultimate court (e.g. - the French Conseil d’État and the Cour de cassation referred to by clairobscur - they are both the ultimate appellate court for their part of the court system.)
Constitutional courts are often “to the side”, so to speak - they often do not have original jurisdiction, but receive cases from the other courts, who refer them for a decision on a constitutional issue. Once the constitutional court has decided the constitutional issue, it refers the case back to the original court for further proceedings.
Now, to me as a common lawyer, that seems a weird system, and our system of courts of general jurisdiction is so ingrained in me that I don’t know how the civilians make it work without turf wars between the courts, as happened between the four superior courts in England, prior to unification. However, the civilians do make it work. I don’t think that model would transpose well into a common law system (although South Africa has adopted the idea of a separate constitutional court, I believe), but given the civilian experience I don’t think we can say outright that it can’t work. I just don’t think it would work well in a common law system.
No quibbles or qualifications here.