 |
| Conflict of laws |
|---|
| Preliminary matters |
| Characterisation · Incidental question |
| Renvoi · Choice of law |
| Conflict of laws in the U.S. |
| Public policy · Hague Conference |
| Definitional elements |
| State · Jurisdiction · Procedure |
| Forum non conveniens · Lex causae |
| Lex fori · Forum shopping |
| Lis alibi pendens |
| Connecting factors |
| Domicile · Lex domicilii |
| Habitual residence |
| Nationality · Lex patriae |
| Lex loci arbitri · Lex situs |
| Lex loci contractus |
| Lex loci delicti commissi · Lex loci actus |
| Lex loci solutionis · Proper law |
| Lex loci celebrationis |
| Choice of law clause · Dépeçage |
| Forum selection clause |
| Substantive legal areas |
| Status · Capacity · Contract · Tort |
| Marriage · Nullity · Divorce |
| Get divorce · Talaq divorce |
| Property · Succession |
| Trusts |
| Enforcement |
| Enforcement of foreign judgments |
| Mareva injunctions · Anti-suit injunctions |
In law, jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. Conflict of laws (or private international law) is that branch of International law and intranational interstate law that regulates all Lawsuits involving In Conflict of Laws, characterisation is the second stage in the procedure to resolve a Lawsuit involving a foreign law element In the Roman Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a Lawsuit. In Conflict of Laws, renvoi (from the French, meaning "send back" or "to return unopened" is a subset of the Choice of law rules Choice of law is a procedural stage in the litigation of a case involving the Conflict of laws when it is necessary to reconcile the differences between the laws of The Choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally Public policy is the body of fundamental principles that underpin the operation of legal systems in each state. The Hague Conference on Private International Law (or HCCH for Hague Conference/Conférence de la Haye is the preeminent organisation in the area of Private international law The term State has several meanings in law in Private international law and Conflict of laws, State can refer to a well-defined jurisdiction with its own set In all Lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the Lex fori, i In the Conflict of laws, lex causae ( Latin: Lex + Causa, "cause the law" is the law or laws chosen by the Forum court from In Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is distinguished from the lex causae which is the law the Forum shopping is the informal name given to the practice adopted by some Litigants to get their Legal case heard in the Court thought most likely The principle of lis alibi pendens (literally "dispute elsewhere pending" applies both in municipal Public international law, and Private international law In Conflict of Laws, domicile (sometimes termed domicil in the U The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the Lex causae in cases characterised Nationality is a relationship between a Person and their State of Origin, Culture, association Affiliation and/or Loyalty The term lex patriae is Latin for the law of Nationality in the Conflict of Laws which is the system of Public law applied to The lex loci arbitri is the Latin term for "law of the place where Arbitration is to take place" in the Conflict of Laws. The term lex situs ( Latin) refers to the Law of the place in which Property is situated for the purposes of the Conflict of laws The lex loci contractus is the Latin term for "law of the place where the contract is made" in the Conflict of Laws. The lex loci delicti commissi is the Latin term for "law of the place where the tort was committed" in the Conflict of laws. lex loci actus law of the place where the act occurred that gave rise to the legal claim The lex loci solutionis is the Latin term for "law of the place where relevant performance occurs" in the Conflict of Laws. The Doctrine of the Proper Law is applied in the Choice of law stage of a Lawsuit involving the Conflict of Laws. The lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the Conflict of Laws. A choice of law clause or proper law clause in a contract is one in which the parties specify which Law (i In Law, dépeçage refers to the concept in the Conflict of laws whereby different issues within a particular case may be governed by the laws of different states A forum selection clause in a contract with a Conflict of Laws element allows the parties to agree that any Litigation resulting from that contract will A person's status is a set of social conditions or relationships created and vested in an individual by an act of Law rather than by the consensual acts of the Discussion As an aspect of the Social contract between a state and its Citizens the state adopts a role of protector to the weaker and more vulnerable members In the Conflict of Laws, the validity of a Contract with one or more foreign law elements will be decided by reference to the so-called " Proper law In Conflict of Laws, the Choice of law rules for Tort are intended to select the Lex causae by which to determine the nature and scope In Conflict of laws, the issue of Marriage has assumed increasing public policy significance in a world of increasing multi-ethnic multi-cultural Community In Conflict of Laws, the issue of nullity (known as Annulment in the United States) in Family Law inspires a wide response among the laws In modern Society, the role of marriage and its termination through Divorce have become political issues See also Get (divorce document For the religious process see Get (divorce document A get or gett ( גט) is In Sunni Islamic Law there are two forms of divorce known as the talaq and its less well-regulated Sunni version of Triple talaq. In Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. In the Conflict of Laws, the subject of Succession deals with all procedural matters relevant to estates containing a "foreign element" whether that element In Conflict of Laws, the Hague Convention on the Law Applicable to Trusts and on Their Recognition was concluded on 1 July 1985 and entered In the Conflict of Laws, issues relevant to the enforcement of foreign Judgments are frequently regulated by Bilateral Treaty or Multilateral The Mareva injunction (variously known also as a freezing order, Mareva order or Mareva regime) in Commonwealth jurisdictions is a court In the area of Conflict of law, anti-suit injunction is an order issued by a court or Arbitral tribunal that prevents an opposing party from commencing Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. In Politics, authority ( Latin Auctoritas, used in Roman law as opposed to Potestas and Imperium Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society A politician (from Greek " Polis " is an individual who is involved in influencing public decision making through the influence of Politics or a person JUSTICE is a Human rights and law reform organisation based in the United Kingdom.
Or in common English: Jurisdiction is the authority given to a legal body, or to a political leader (Prime Minister, President, etc. ) to deal with legal matters, and to pronounce or enforce legal matters.
As a topic, jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society. Public international law concerns the structure and conduct of States and Intergovernmental organizations. Conflict of laws (or private international law) is that branch of International law and intranational interstate law that regulates all Lawsuits involving Constitutional law is the study of foundational or basic Laws of nation states and other political organizations In Political science and Constitutional law, the executive is the branch of government responsible for the day-to-day management of the State. A legislature is a type of representative Deliberative assembly with the power to create amend and change Laws The law created by a legislature is called Legislation For the government of parliamentary systems see Executive (government. A society is a Population of Humans characterized by patterns of relationships between individuals that share a distinctive Culture and Institutions
Contents |
Types of judicial jurisdiction
There are three main types of judicial jurisdiction, personal (personam), territorial (locum), and subject matter (subjectam):
- Personal - Authority over a person, regardless of his location.
- Territorial - Authority confined to a bounded space, including all those present therein, and events which occur there.
- Subject Matter - Authority over the subject of the legal questions involved in the case.
For jurisdiction to be complete, a court must have a concurrence of subject matter jurisdiction with either personal or territorial jurisdiction. The territorial jurisdiction is critical, on the principle that courts enforce laws which are territorial in their authority.
A succinct definition can be stated as follows: "An area of land that is governed by an entity who can hold those residing therein accountable for following specific laws. "
Courts may also have jurisdiction that is exclusive or concurrent (or shared). Where a court has exclusive jurisdiction over a territory or subject matter, it is the only court that is authorized to address that matter. Where a court has concurrent or shared jurisdiction, multiple courts in the same area can address the matter. Where concurrent jurisdiction exists in civil cases, the parties may attempt to engage in forum shopping, by bringing or moving the case to the court which they deem most favorable to them. Forum shopping is the informal name given to the practice adopted by some Litigants to get their Legal case heard in the Court thought most likely
Jurisdiction in the international dimension
Public international law provides a framework within which nations and states (in the political sense of the words) can come into being and relate to each other. A nation is a Human Cultural and Social Community. In as much as most members never meet each other yet feel a common bond it may be considered A state is a political association with effective Sovereignty over a geographic Area and representing a Population.
Jurisdiction as a political issue
A number of supranational organizations and bodies have been created which provide mechanisms whereby disputes between states may be avoided, discussed or resolved, e. Supranationalism is a method of decision-making in political communities wherein power is democratically entrusted to independent experienced appointed personalities or to representatives g. through arbitration or mediation. Arbitration, a form of Alternative dispute resolution (ADR is a legal technique for the resolution of Disputes outside the Courts wherein the Mediation, a form of Alternative dispute resolution (ADR or "appropriate Dispute resolution " aims to assist two (or more disputants in reaching When a country is recognized as de jure, this is an acknowledgment by the other de jure nations that the new country has sovereignty and the right to exist. In Political geography and International politics, a country is a Political division of a geographical entity Sovereignty is the exclusive Right to control a Government, a country, a people or oneself This is a political system that moves slowly, gathering consensus wherever possible and the extent to which any state will co-operate or participate is always at the discretion of each sovereign state. Necessarily, if any state does agree to participate in any of the activities of the supranational bodies and to accept decisions that might be made in the ordinary course of their business, that state is giving up a little of its sovereign authority and thereby allocating a little power to these bodies. Insofar as these bodies or nominated individuals may resolve disputes in a judicial or quasi-judicial fashion, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents each body's own jurisdiction. A Treaty is an agreement under International law entered into by actors in international law namely States and International organizations. But no matter how powerful each body may appear to become, the extent to which any of the judgments may be enforced, or proposed treaties and conventions may become or remain effective within the territorial boundaries of each nation is a political matter under the sovereign control of the relevant representative government(s) which, in a democratic context, will have electorates to satisfy. In non-legal contexts a judgment is a balanced weighing up of evidence preparatory to making a decision
International versus municipal jurisdiction
The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i. The International Criminal Court ( ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for Genocide, crimes against e. the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent, or as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
The concept of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to states (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium) which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy). Universal jurisdiction or universality principle is a controversial principle in International law whereby States claim criminal Jurisdiction International Organization is a peer-reviewed Academic journal that covers the entire field of International affairs. The United Nations ( UN) is an International organization whose stated aims are to facilitate cooperation in International law, International security See also International Commission of Jurists The International Court of Justice (known colloquially as the World Court or ICJ; Cour Belgium 's War Crimes Law invokes the concept of Universal jurisdiction to allow anyone to bring War crime charges in Belgian courts regardless of Public policy is the body of fundamental principles that underpin the operation of legal systems in each state. Under Article 34 Statute of the ICJ [1] only states may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time.
Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those states which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy. Realpolitik ( German: de real “realistic” “practical” or “actual” and de Politik “politics” refers to politics or diplomacy based primarily
Within other international contexts, there are intergovernmental organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the states affected, save that the WTO is permitted to allow retaliatory action by successful states against those states found to be in breach of international trade law. International Organization is a peer-reviewed Academic journal that covers the entire field of International affairs. International trade law includes the appropriate rules and customs for handling trade between countries or between private companies across borders At a regional level, groups of states can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, e. g. the European Union and African Union both have the potential to become federated states although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. The European Union ( EU) is a political and economic union of twenty-seven member states, located primarily in The African Union (abbreviated AU in English, and UA in its other working languages is a Confederation consisting of 53 African The term nationalism can refer to an Ideology, a sentiment, a form of Culture, or a Social movement that focuses on the Nation Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the Member States on issues of European law. This article refers to the European Union court not the European Court of Human Rights of the Council of Europe The Court of Justice This jurisdiction is entrenched and its authority could only be denied by a Member State if that Member State asserts its sovereignty and withdraws from the Union.
International and municipal laws
The standard treaties and conventions leave the issue of implementation to each state, i. e. there is no general rule in international law that treaties have direct effect in municipal law, but some states, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact legislation to honor their international commitments. Direct effect should not be confused with Vertical effect and debates over the Horizontal effect of the British Human Rights Act Legislation (or " Statutory law " is law which has been promulgated (or " Enacted quot by a Legislature or other Governing Hence, citizens in those states can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:
- Monism
- This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. The Netherlands ( Dutch:, ˈnedərlɑnt is the European part of the Kingdom of the Netherlands, which consists of the Netherlands the Netherlands This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, e. g. the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the The International Covenant on Civil and Political Rights is a United Nations Treaty based on the Universal Declaration of Human Rights, created in In states adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy
- Dualism
- This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty is not effective until it has been incorporated at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom, the UK or Britain,is a Sovereign state located Otherwise the courts have a discretion to apply international law where it does not conflict with statute or the common law. A statute is a formal written enactment of a Legislative authority that governs a Country, State, City, or County. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive The constitutional principle of parliamentary supremacy permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties. Parliamentary sovereignty, Sovereignty of Parliament, parliamentary supremacy, or legislative supremacy is a concept in Constitutional law
- In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law, …the "Supreme Law of the Land" (U. The United States of America —commonly referred to as the The Supremacy Clause is the common name given to Article VI Clause 2 of the United States Constitution, which readsThis Constitution and the Laws of the United The Constitution of the United States of America is the supreme Law of the United States. S. Const. art. VI Cl. 2) and, as such, the law of the land is binding on the federal government as well as on state and local governments. According to the Supreme Court of the United States, the treaty power authorizes Congress to legislate under the necessary-and-proper clause in areas beyond those specifically conferred on Congress (Missouri v. Holland, 252 U. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. The United States Congress is the bicameral Legislature of the federal government of the United States of America, consisting of two houses The Necessary-and-Proper Clause (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause) is the Missouri v Holland, 252 US 416 (1920 the United States Supreme Court held that the federal government's ability to make treaties is supreme S. 416 (1920)).
The jurisdiction of courts between and within states
This now concerns states in the technical legal sense of the word and the relationships both between courts in different states, and between courts within the same state. The term State has several meanings in law in Private international law and Conflict of laws, State can refer to a well-defined jurisdiction with its own set The usual legal doctrine under which questions of jurisdiction are decided is termed forum non conveniens.
Supranational
At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of state courts and to enforce the judgments obtained. For example, the Member States of the EEC signed the Brussels Convention in 1968 and, subject to amendments as new states joined, it represents the default law for all twenty-five Member States of what is now termed the European Union on the relationships between the courts in the different countries. International Organization is a peer-reviewed Academic journal that covers the entire field of International affairs. The European Community (EC is one of the Three pillars of the European Union (EU created under the Maastricht Treaty (1992 The Brussels Regime is a set of rules regulating the allocation of jurisdiction in international legal disputes of a civil or commercial nature involving The European Union ( EU) is a political and economic union of twenty-seven member states, located primarily in In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Area. The Brussels Regime is a set of rules regulating the allocation of jurisdiction in international legal disputes of a civil or commercial nature involving With effect from 1 March, 2002, all the Member States of the EU except Denmark accepted Council Regulation (EC) 44/2001, which makes major changes to the Brussels Convention and is directly effective in the Member States. The Brussels Regime is a set of rules regulating the allocation of jurisdiction in international legal disputes of a civil or commercial nature involving Direct effect should not be confused with Vertical effect and debates over the Horizontal effect of the British Human Rights Act In some legal areas, at least, the reciprocal enforcement of foreign judgments is now more straightforward. In the Conflict of Laws, issues relevant to the enforcement of foreign Judgments are frequently regulated by Bilateral Treaty or Multilateral At a state level, the traditional rules still determine jurisdiction over persons who are not domiciled or habitually resident in the European Union or the Lugano area. In Conflict of Laws, domicile (sometimes termed domicil in the U
There is a real and growing problem of forum shopping and in the reluctance of some states to adopt more positive Conflict of Laws rules. Forum shopping is the informal name given to the practice adopted by some Litigants to get their Legal case heard in the Court thought most likely Although the Hague Conference and other international bodies have made consistently useful recommendations on jurisdictional matters, litigants with the encouragement of lawyers now more commonly operating on a contingent fee continue to exploit the system to their advantage, always seeking remedies in courts where the outcome is more likely to be favorable. The Hague Conference on Private International Law (or HCCH for Hague Conference/Conférence de la Haye is the preeminent organisation in the area of Private international law In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy A lawyer, according to Black's Law Dictionary, is "a person learned in the law as an attorney, Counsel or Solicitor; a person A contingent fee in the United States or conditional fee in the United Kingdom is any Fee for services provided where the fee is only payable
Many nations are subdivided into states and provinces (i. A province is a territorial unit almost always an Administrative division. e. a subnational "state") in a federation (as can be found in Australia, Brazil, India, Mexico and the United States) and these subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures operating within the whole. Many countries are made up of a number of subnational entities called states (or related terms in languages other than English A federation ( Latin: foedus, covenant is a union comprising a number of partially self-governing states or regions united by a central ("federal" The Commonwealth of Australia is made up of 8 states and territories controlled under a federal system of government The Federative Republic of Brazil is a union of twenty-six estados ("states" singular estado) and formed by the states and one district the Distrito India is a union of states comprising twenty-eight states and seven union territories. A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government Sometimes when the areas of separate governmental entities overlap one another—for example, between a state and the federation to which it belongs—their jurisdiction is shared or concurrent jurisdiction. Otherwise one governmental entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one governmental entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted or restricted only by a number of limited restrictions, these government branches have plenary power such as a national policing power. Police power is the capacity of a State to Regulate behaviours and enforce order within its Territory, often framed in terms of Public welfare Otherwise an enabling act grants only limited or enumerated powers. The problem of forum shopping also applies as between federal and state courts, and it is for each system to adjust jurisdictional matters to achieve the fairest possible results.
State level
Within each state, it is for the government to determine the allocation of jurisdiction:
- There must be physical distribution of courts and tribunals throughout the territory which should be divided into convenient functional divisions to provide an effective service to the local communities. Hence, it may be convenient for there to be an extensive network of smaller local courts having a criminal law jurisdiction so that neighborhoods can have a disposition system administered by those familiar with their locality and its needs (see criminal jurisdiction). The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential Criminal jurisdiction is a term used in Constitutional law and Public law to describe the power of Courts to hear a case brought by a state accusing Whereas more specialized civil and commercial courts need only be located in larger towns and major cities where there is a demand for the particular specialisms consistent with the economic costs of providing the facilities and personnel to staff them. Civil law, as opposed to Criminal law, refers to that branch of Law dealing with disputes between Individuals and/or Organizations, in which Commercial law (sometimes known as business law) is the body of Law which governs Business and commercial transactions Each court system lays down detailed rules for determining who may invoke the jurisdiction in each of the various divisions. In addition to the possibility that the plaintiff has a local domicile, nationality or habitual residence, these conditions may vary from minimum residence requirements for those more transiently present, that business has been conducted within the territory or that there is some other real connection between the plaintiff and/or the cause of action and the state in which the lawsuit has been filed. A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit Nationality is a relationship between a Person and their State of Origin, Culture, association Affiliation and/or Loyalty A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit
- The government may decide that individuals within the executive should have the power to make judicial or quasi-judicial decisions, and the extent to which the exercise of this jurisdiction should be subject to review by the courts. This has constitutional implications in that many states operate on the basis of the separation of powers which requires that each branch of government operates as a check on the potential abuse of power by the others. Separation of powers, a term ascribed to French Enlightenment Political philosopher Baron de Montesquieu, is a model for the Governance Within the formalized judicial structure, jurisdiction may also be granted to individuals for the provision of specialized functions (e. g. the role of special referees or those individuals of prestige commissioned to conduct inquiries into specific situations with the power to compel testimony). In Law, a special referee acts as a Judge on matters of fact only In parallel to the courts system, other tribunals and quasi-judicial bodies may also have a form of jurisdiction, e. Tribunal is a generic term for any body acting judicially whether or not it is called a tribunal in its title g. for arbitration, mediation, etc within a broad framework of alternative dispute resolution. Alternative dispute resolution (ADR includes Dispute resolution processes and techniques that fall outside of the government judicial process Under normal circumstances, the supervisory function of the courts will be built into the constitutive process for each tribunal or body, or the courts will allow their jurisdiction to be invoked, e. g. by way of remedies such as certiorari, to ensure that justice is seen to be done. Certiorari (ˌsɚʃioʊ('rɛri 'rɑri is a legal term in Roman, English, Philippine and American law referring to a type of Writ However, some well-established bodies such as the Beth Din represent more interesting challenges. A beth din, beit din or beis din ( Hebrew: בית דין "house of judgment" plural battei din) is a Rabbinical Such religious or culturally-based courts often have significant power within the relevant communities yet, in an increasingly multi-ethnic, multi-cultural world, the secular or culturally-different majority in each state cannot be seen to be too quick to interfere and impose its standards without appearing to engage in unequal treatment and discrimination (see the secular response to the get as an example). Unlike most discrimination policies discrimination between, which is the discernment of qualities and recognition of the differences focused here discrimination against is See also Get (divorce document For the religious process see Get (divorce document A get or gett ( גט) is
Jurisdiction in the United States
The primary distinctions between areas of jurisdiction are codified at a national level. The United States of America —commonly referred to as the The federal government of the United States is the central United States Governmental body established by the United States Constitution. Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to Justiciability refers to the ability of a text to take effect as a legal rule or to create legal effects An advisory opinion is an opinion issued by a Court that does not have the effect of resolving a specific Legal case, but merely advises on the constitutionality or For other senses of this word see Standing (disambiguation. In the Common law, and under many Statutes standing or In United States law, ripeness refers to the readiness of a case for Litigation; " a claim is not ripe for adjudication if it rests upon contingent future In United States law, a matter is moot if further legal proceedings with regard to it can have no effect or events have placed it beyond the reach of the law In United States law, a ruling that a matter in controversy is a political question is a statement by a federal court declining to rule in a case because Subject-matter jurisdiction is the authority of a Court to hear cases of a particular type or cases relating to a specific subject matter Federal question jurisdiction is a term used in the United States law of Civil procedure to refer to the situation in which a United States federal court In United States law, diversity jurisdiction is a concept used in Civil procedure to refer to the situation in which a U Supplemental jurisdiction is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would lack In the United States, removal jurisdiction refers to the right of a Defendant to move a Lawsuit filed in state Court to the Federal district Amount in controversy (sometimes called jurisdictional amount) is a term used in United States Civil procedure to denote a requirement that persons seeking The US Class Action Fairness Act of 2005, 28 USC Sections 1332(d 1453 and 1711-1715 expanded federal jurisdiction over many large Class-action Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property Jurisdiction in rem ( Latin, power about or against "the thing") is a legal term describing the power a Court may exercise Minimum contacts is a term used in the United States Law of Civil procedure to determine when it is appropriate for a Court in one state Political federalism is a Political philosophy in which a group of members are bound together (Latin foedus, covenant) with a governing The Erie Doctrine provides that a federal court sitting in diversity jurisdiction over a state law claim must apply state substantive common law in resolving the dispute An abstention doctrine is any of several doctrines that a Court of law might (or in some cases must apply to refuse to hear a case when hearing the case would potentially intrude Sovereign immunity, or crown immunity, is a type of immunity that in Common law Jurisdictions traces its origins from early English law The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's Sovereign immunity and subject it to lawsuits The Rooker-Feldman doctrine is a rule of Civil procedure enunciated by the United States Supreme Court in two cases Rooker v The adequate and independent state ground doctrine is a doctrine of United States law governing the power of the U The American legal system includes both State courts and federal courts. As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and jurisdiction over the person of the litigants. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Subject-matter jurisdiction is the authority of a Court to hear cases of a particular type or cases relating to a specific subject matter In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy (See personal jurisdiction. Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property ) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem. Jurisdiction in rem ( Latin, power about or against "the thing") is a legal term describing the power a Court may exercise
A court whose subject-matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction. Admiralty law (also referred to as maritime law) is a distinct body of Law which governs maritime questions and offenses
A court whose subject-matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. states, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government Federal courts (those operated by the federal government) are courts of limited jurisdiction. The federal government of the United States is the central United States Governmental body established by the United States Constitution. Federal jurisdiction is divided into federal question jurisdiction and diversity jurisdiction. The American legal system includes both State courts and federal courts. Federal question jurisdiction is a term used in the United States law of Civil procedure to refer to the situation in which a United States federal court In United States law, diversity jurisdiction is a concept used in Civil procedure to refer to the situation in which a U The United States district courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens. The United States district courts are the general Trial courts of the United States federal court system.
Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. This article discusses the state supreme courts in the United States Discretionary jurisdiction is a legal term used to describe a circumstance where a Court has the power to decide whether to hear a particular case brought before it Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject-matter jurisdiction.
It is also necessary to distinguish between original jurisdiction and appellate jurisdiction. The original jurisdiction of a court is the right to hear a case for the first time as opposed to Appellate jurisdiction when a court has the right to review the decision of Appellate jurisdiction is the power of a Court to review decisions and change outcomes of decisions of lower courts A court of original jurisdiction has the power to hear cases as they are first initiated by a plaintiff, while a court of appellate jurisdiction may only hear an action after the court of original jurisdiction (or a lower appellate court) has heard the matter. A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit For example, in United States federal courts, the United States district courts have original jurisdiction over a number of different matters (as mentioned above), and the United States court of appeals have appellate jurisdiction over matters appealed from the district courts. The United States federal courts are the system of Courts organized under the Constitution and laws of the Federal government of the United States The United States courts of appeals (or circuit courts) are the intermediate appellate courts The U. S. Supreme Court, in turn, has appellate jurisdiction (of a discretionary nature) over the Courts of Appeals, as well as the state supreme courts, by means of writ of certiorari. Certiorari (ˌsɚʃioʊ('rɛri 'rɑri is a legal term in Roman, English, Philippine and American law referring to a type of Writ
However, in a special class of cases, the U. S. Supreme Court has the power to exercise original jurisdiction. Under , the Supreme court has original and exclusive jurisdiction over controversies between two or more states, and original (but non-exclusive) jurisdiction over cases involving officials of foreign states, controversies between the federal government and a state, actions by a state against the citizens of another state or foreign country. Title 28 ( Judiciary and Judicial Procedure) is the portion of the United States Code (federal statutory law that governs the federal judicial system The federal government of the United States is the central United States Governmental body established by the United States Constitution.
Franchise jurisdiction
In the history of English common law, a jurisdiction could be held as a form of property (or more precisely an incorporeal hereditament) called a franchise. In Law, a hereditament (from Lat hereditare, to inherit heres, heir is any kind of Property that can be Inherited Hereditaments In Anglo-Saxon law, an exclusive right is a de facto non-tangible Prerogative existing in law (that is the power or in a wider sense Right Traditional franchise jurisdictions of various powers were held by municipal corporations, religious houses, guilds, early universities, Welsh Marches, and Counties Palatine. A corporation is a separate legal entity usually used to conduct business An abbey (from Latin abbatia derived from Syriac abba "father" is a Christian Monastery or A guild is an association of craftsmen in a particular trade The earliest guilds were formed as confraternities of workers A university is an institution of Higher education and Research, which grants Academic degrees in a variety of subjects The Welsh Marches ( Welsh: Y Mers) is an area along the border of England and Wales on the island of Great Britain, in the current A county palatine is an area ruled by a Count palatine (or Earl palatine who may hold the higher title of Duke) with special authority and autonomy Types of franchise courts included Courts Baron, Courts Leet, merchant courts, and the Stannary Courts which dealt with disputes involving the tin miners of Cornwall. A Court baron is an English Manorial court dating from the Middle Ages. The court leet was a historical court in England and Wales. At a very early time in medieval England the Lord of the Manor exercised or claimed certain In England, a Court of Piepowders was a special Tribunal organised by a Borough on the occasion of a Fair or Market. The Stannary Parliaments and Stannary Courts were legislative and legal institutions in Cornwall and in West Devon (in the Dartmoor area Cornwall ( Kernow ˈkɛɹnɔʊ is the most southwesterly county of England, on the Peninsula that lies to the west of the River Tamar The original royal charters of the American colonies included broad grants of franchise jurisdiction along with other governmental powers to corporations or individuals, as did the charters for many other colonial companies such as the British East India Company and British South Africa Company. A Royal Charter is a Charter granted by the Sovereign on the advice of the Privy council to legitimize an incorporated body such as a city company The start of the European colonization of the Americas is typically dated to 1492 although there was at least one earlier colonization effort A corporation is a separate legal entity usually used to conduct business The Honourable East India Company ( HEIC) referred to most commonly as the East India Company, also historically and colloquially as John Company, or The British South Africa Company (BSAC was established by Cecil Rhodes through the amalgamation of the Central Search Association and the Exploring Company Ltd Analogous jurisdiction existed in medieval times on the European Continent. Over the course of the 19th and 20th centuries, franchise jurisdictions were largely eliminated. Several formerly important franchise courts were not officially abolished until Courts Act of 1971
See also
- Law enforcement agency - a different use of the word jurisdiction
- Labor unions in the United States - a different use of the word jurisdiction
- Guantánamo Bay
- Rasul v. Bush
External links
- LII Law about... Jurisdiction
- Supreme Court Decision on Guantánamo Bay jurisdiction
- Jurisdiction As Property on franchise jurisdiction
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