Legal Systems

 

Roman Law Statute Law (Parliament: 1st source) + Case Law (Supreme Court)

Common Law Case Law (any Court) + Equity

 

(Equity system of law designed to furnish remedies for wrongs which were not legally recognised under the common law of England)

 

In Spain, the case law are the verdicts ruled by the Supreme Court. In England, any court produces case law.

 

TORT: A civil, not criminal, wrong. An injury against a person or property, with the exception of breach of contract.

 

 

private wrong → tort

public wrong → crime

 

Damages Remedies

 


 

COMMON LAW SYSTEM

 

Main source → case law (justice + common sense)

         Equity (general rules) + case law + acts → FACTS

         In USA both systems co-exist (except in Lousiana)

Roman Law → Rules → PRINCIPLES

Statute Law → acts passed by the Parliament

In USA: Ordinances, Regulations, Federal Constitution, Federal Acts of Congress, Foreign Treaties

 

State Courts are influenced by their own verdicts and federal decisions, but not by courts from other states.

In 1923 they tried to unify the legal system in the USA but they couldn’t reach an agreement on divorce,

marriage and the death penalty.

 

In the US Equity Law and Common Law are unified except in Arkansas, Delaware, Mississippi and Tennessee


UK: 

-         Acts of parliament

-         By-laws

-         Statute Law

-         Common Law

-         Equity

 

 

Supreme Court of Judicature Act 1873 → unifies Common Law and Equity Law

 

SCOTLAND:

-         Contemporary texts of Common Law

-         Equity Law

-         European Acts, directives and by-laws

 

IRELAND:

-         Same as UK+US (2 parallel systems)


THE JURY

Only in criminal cases:

-         Grand jury they bring the process and charges. Maximum 23 civilians

-         Petit jury or trial jury guilty/not guilty/innocent

6 to 12 members

UK: 12 members, 8 in County Courts

Scotland maximum 15 members

COURTS

USA: Supreme Court (Federal Government)

-         Interpret laws

-         Solve disputes between individuals, firms, states…

-         Violation of federal laws

-         Decide if the laws respect the constitution

-         Ambassadors, consuls, ministers…

-         Attorney decisions

-         Last instance

-         Does not bring cases, they accept the facts of previous courts

-         Not all lawyers can bring cases to this court

 

UK: House of Lords (criminal cases mainly) + Luxembourg (civil cases)

-         3rd Instance, 2 courts Court of Appeal

·        Court of Appeal (civil)

·        Court of Criminal Appeal (criminal)


THE LEGAL PROFESSION

 

duties

USA

UK

SPAIN

Represent

Attorney at law

Solicitor

Law Agent

 (Scotland before 1973)

Procurador

Counsel

Attorney at law

Solicitor

 

Abogado

Negociate

Attorney at law

Solicitor

 

Abogado

Allegations

Attorney at law

Solicitor

 

Abogado

Sue

Attorney at law

Solicitor

 

Abogado

Defend

(lower court)

Defence Attorney

Solicitor

 

Abogado

Defend

(high court)

Attorney at law

Barrister at law

Advocate (Scotland)

Counsellor (Ireland)

Abogado

Bear Witness

Notary Public

(not professional, they work for the government, but there are other validation services)

Notary Public

(solicitors)

Commissioner for oaths

Notario

(fedatario público)

Judge

Judge

Magistrate

Justice of the Peace

Judge

Magistrate

Justice of the Peace

Juez

Juez de Paz

Prosecute

Prosecutor

Prosecutor

Fiscal

 

 

Bogus Cases ← click here


An Example of a false friend: Magistrate

A magistrate is a judicial officer. In common law systems a magistrate usually has limited authority to administer and enforce the law. In civil law systems a magistrate may be a judge of a superior court. In some jurisdictions, such as Australia, the term has become blurred as a Federal Magistrate has jurisdiction similar to a judge. A magistrate's court may have jurisdiction in civil cases, criminal cases, or both.

England and Wales

In the courts of England and Wales, magistrates hear prosecutions for and dispose of summary offences, by making orders in regard to and placing additional requirements on offenders. Magistrates' sentencing powers are limited, but extend to shorter periods of custody (maximum of 6 months), fines, community orders which can include requirements to perform unpaid work up to 300 hours or supervision up to 3 years and or a miscellany of other options. Magistrates hear committal proceedings for certain offences, and establish whether sufficient evidence exists to pass the case to a higher court for trial and sentencing. Magistrates have power to pass summary offenders to higher courts for sentencing when, in the opinion of the magistrate, a penalty greater than can be given in magistrates court is warranted. A wide range of other legal matters are within the remit of magistrates. In the past, magistrates have been responsible for granting licences to sell alcohol, for instance, but this function is now exercised by local councils though there is a right of appeal to the magistrates court. Magistrates are also responsible for granting search warrants to the police, therefore it is usually a requirement that they live within a certain distance of the area they preside over in case they are needed to sign a warrant out of hours.

There are two types of magistrate in England and Wales: lay magistrates and legal professionals permanently employed by the Department for Constitutional Affairs. The first group, known as lay Justices of the Peace, sit voluntarily (though they may receive money for costs incurred) on local benches (a colloquial and legal term for the local court), hearing lesser matters, and are provided with advice, especially on sentencing, by a legally qualified Court Legal Adviser. However, before they can hear cases they must undergo a period of training.

The second group, professional magistrates, are nowadays known as District Judges, although hitherto they were known as Stipendiary Magistrates (which is to say, magistrates who received a stipend or payment). District Judges have the authority to sit in any magistrates' court (or, in legal parlance, on any bench). Under European legislation with force in England and Wales (by Act of Parliament), certain sentences may be passed only by paid magistrates and not by their lay colleagues.

In Scotland, the lowest level of law-court is presided over by a Justice of the Peace.