LA COMPARACION SITEMA JUDICIAL MEXICO USA

Christian Sly Robles  318842

Ronald. N . Johnson Mcdowell

MEXICAN AND USA JUDICIAL SYSTEM

Speaking of the judicial system or of binding precedents in Mexico must be special mention to the Anglo-American system as a precedent in the case law of Mexico, through the Common Law, which is characterized by a respect for the written law, as in Latin systems, but by a reverence with a load of recognition and more towards the judicial precedents legal validity. Next to the Common Law, the Equity and the law legislated; the precedents are the sources of written law, in this essay it was the difference and in turn link between the Mexican and American judicial system.

 In the doctrine of the contemporary legal systems to this system is called Anglo-American law, which differs from civil legal systems, inter alia, by the incorporation of the case element as a deciding factor in the jurisdictional issues through judicial precedent, i.e., to settle a dispute in court order, rather than meet the previously established standard text He is preferred to go to the content of previous statements that resolved similar cases under these faults contain representing judicial experience and decisions that were built from interpretations and constructions of argumentative type which, by their precedence and use in true issues, deserve to be assisted in order to achieve conditions of equity in the dictation of the corresponding resolution. Lucio Cabrera Acevedo, who expresses this in the following terms, condenses the above ideas: "The reverence for the law derives from French law and the legitimacy given to the legislatures by the thought of Rousseau. However, in common law there has been higher esteem by the judgments, that "common law" they have the strength of a precedent under "stare decisis", and thus acquired a almost legislative character, as they are binding "erga omnes". This is why interesting change that it operated in Mexico during the second half of the 19th century to follow the principle of binding jurisprudence that acquired characters similar to the of the "common law" and parallel to the constitutional justice in European countries... “For its part, Emilio Rabasa says that you for whites, the strength of the precedent is so close to the law that would be foolish to fight the already admitted, as if it were set aside the same law in the particular case of a judicial controversy. The allegation of lawyer consists of showing that their client's case is covered by enforceable that have resolved similar cases; failures are founded in the enforceable, whose words are verbatim delimit. In this way, Anglo-American law, while, on one hand, is formed in the legislature, or Parliament the General Congress, on the other, and most importantly, is built by the formulation of principles contained in the decisions and judicial precedents applied mainly by the old English courts called Common Law Courts such as The King´s Bench, Common Pleas and The Exchequer as well as the modern courts of same category both in England and in the United States of North America. Jay M. Feinman describes the strength of the solution of the case in the American system in the following way: "It often gives the impression that the law is part of the natural order of things. Law and legal decisions could conceive in effect as inevitable, made based on the immutable principles of Justice, not as a result of human action. Judges and lawyers often talk as if the Law Act moved by initiative itself, unrelated to any interference... False. People do act. The law and precedents do not say anything; those who say we are... "The common law is identified with the ancient history of Great Britain, which was characterized by being confused, dark and full of ancient legends. In the first English primitive peoples made up of tribes and clans, there were a set of normative or legal system, but a set of customs and usages that are gradually carried widely in different regions of the British island. After long struggles and conquests, the British reorganized the political structure of the country by putting in place the feudal system which divided the territory into large estates, each one bass of the domain of the feudal Lord. The great reformer and founder of the English system, was King Enrique II, who centralized the Justice of this country in the Crown and organized judicial system, making it sound and made the actual instance open justice, not only for the nobles, but for all the men of the Kingdom. Let that the ancient local people's courts work, but he catalogued them as courts of first instance, whose decisions were subject to appeal to real justice. It changed the system of feudal justice, it centralized it on his person and in the Council. Established judges throughout the Kingdom to administer justice on behalf of the Crown. Created in addition some institutions such as the King's Council or Curia Regis, which became the backbone of the English political and legal system. In addition to the above institutions, is it due to Enrique II, the Foundation of the Real Inquisition, which is the antecedent of the trial by jury, characteristic of the Anglo-American system, where neighbors were responsible for bring trials in replacement of the judges and the actual doctrine, which was initially created for not disturbing the peace of any person, thing or property. These bases were a much more consistent and rational legal system that drew the unique profile of the Common Law. The judges, to impart justice, had certain general provisions of legislative type called writs or Royal Decrees, but these did not have the features that currently have laws and encodings. Judges underlying its resolutions in the customs generally recognized and accepted by the population, so that when these began to reflect on the failures, they acquired validity and legal force to be repeated again and again by the judgments; This was given the name of precedents; that virtue, the preceding served as reference to future judges for the solution of new similar cases, and over time came to acquire the character of compulsory not only vertically, but even horizontal (i.e. not only were mandatory for the judges lower courts sweetheart, but also to bodies forming the criterion), characterized under the doctrine of “stare decisis” which is the habit of respecting the moral authority of decisions taken by judges in previous topics, especially when those decisions came from the judges of high rank. Also the preceding managed to mix by full customary law of the Kingdom, thus emerging characteristic of the Common Law legal system. These descriptions reveal the essence of the right of the record and allow us to understand the historical formation, which gave rise. Thus, the legal model in study had to extend to all those countries conquered by England from the era of the great explorations, begun in the 16th century, when powers European shipping companies (Spain, England, France and Portugal primarily) were distributed worldwide, introducing in its colonies, languages, customs, religions and, of course, legal sciences. In the particular case of English law, this was established in the thirteen British colonies, located northeast of the American continent, where it became a system with its own characteristics with the passage of time, and while this is true he departed not from the peculiar guidelines of the Common Law in regard to their common law, the truth is that in North America the system developed more advanced degrees with respect to the implementation of the constitutional law and his political organization and especially after the independence of the English Crown. In the last two decades of the 19th century arose in Anglo-American judicial activity a phenomenon that has been doctrinally known as "The revolt against formalism" and that in the context of the common law, the application of the law in England and United States was ballasted by the weight of the precedents, from the tradition, which hindered development in the legal field in accordance with the new social interests and then arose, mainly in the United States, a phenomenon through which attacked the right construction, becoming what is currently known as "North American legal realism". And it is that legal science, to emanate not laws or doctrines, but the contents of a series of "paradigmatic cases" experienced a setback. It was felt that the law was stalled as well as judicial decisions, especially if one takes into account that the law should progress together with the society in which it was found embedded and the assessment of judicial precedents was regardless of their connections with social or ethical issues. Thus arose the so-called revolt against the formalism of jurisprudence or "sociological jurisprudence" headed by judge Holmes who reacted against a way of understanding the law which had to be estimated as the best argument in favor of a rule, the fact that this had been "since times of Enrique IV". Against the weight of tradition, Oliver Wend, they were retaken by the Supreme Court of Justice American and fail the case West Coast Hotel & Co. v. Parrish, [1937], Minister Sutherland said: "The judicial function is that of interpretation;" It does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two, is to miss all that the phrase "supreme law of the land" stands for and to convert what was intended as inescapable and enduring mandates into mere moral reflections... Another case that is referred to the realistic ideas of Holmes is contained in the remarkable statement of the Justice in the case Schenek v. United States of America, corresponding to 1919 where it was determined: "The question, in each case, is to determine whether the words used cause a clear and present danger that will produce the substantive evils that Congress has right to prevent." It is a question of proximity and degree... "Holmes was considered a propeller of legal thought and legal practice, but not a systematic thinker. The lawyer who managed an articulated approach to the sociological approach of law in the United States of North America was Roscoe Pound who developed a huge scientific work in numerous writings, being the most important work, his work called The Spirit of Common Law written in 1921 and even translated into the Spanish. In the American system, in particular, decisions or judicial precedents are essential and are reported through codes or collections of statements called Law reports, thus constituting a true system of judicial right next to the legislative law, where the first, has even greater value than the second. The disclosure of the record is borne by the State Department and, in most States, the decisions of the Supreme jurisdiction are published also by State authorities or by a private firm, prior agreement with them. The official publication does not cancel the role of publishers in the dissemination of the judgments. The most important precedent in the American law collections are Annotated Reports System and the national Reporter System. The more remote history of American broadcasting bodies is the Repertoire of judgments King´s Bench Reports, which became known during the colonial era. But despite its officiality as unprecedented disclosure mechanism, has been recognized in the United States that the primary means of dissemination of the ancient English failures during the British colony were the works of English Jurists Sir Edward Coke and Sir William Blackstone. In the years following the independence of the colonies British (1776 to 1789) there was no means of official dissemination of judicial precedents until after the year recently pointed out in the State of Connecticut, the jurist Kirby took the initiative to disseminate the statements published by the Superior Court of that State, an idea that was subsequently taken up in other States and thus was born the notion of the reporters who were the persons responsible for publishing failures , activity that was formalized in New York and Kentucky, where the first public appointments of reporters were issued until 1806. The Supreme Court also adopted the system and in 1828 Richard Peters was the first official reporter of the High Court, followed by his predecessors Dallas, Cranch and Weaton, until in 1871 came the American Reports and next to them, the two most important private collections mentioned above: the Annotated Reports System and the national Reporter System. In order to facilitate the location of the previous collections of them, are published also on a regular basis the citation books, digests, or index. Given the diversity of public and private judicial criteria dissemination mechanisms, it has had to go in the US system to the unification of the method of appointment of the previous. It has to be admitted that no formatting has been unanimous recognition, although four major law journals have unified this aspect, and are: the "Columbia Law Review", "Harvard Law Review", the "University of Pennsylvania Law Review" and the "Yale Law Journal" and published the manual for the unification of appointments to the effect known as A Uniform Citation System. Finally, it is important to note that the value of the reported precedent comes from original or certified minutes of the issuing court and the reports affect their effectiveness to the existence of those, so that, although in principle his appointment is sufficient, this does not prevent the legal application in the courts to lift up request for purposes of corroborating the existence authenticity and sense of the judicial precedent. Obviously that characteristics of precedents, both English and American systems, dissemination, their binding force, your report and citation and the generation of statements of certainty from the prediction that can be made by observing the precedents from past cases already resolved, are elements and features that are also present in the system of jurisprudence that is discussed in this paper.

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