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Jurisdiction
From Wikipedia, the free encyclopedia

For an article on the use of jurisdiction to mean a state or country, see Jurisdiction (area).

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.

Alternatively Adjudicate and enforce legal matters. The term is also

used to denote the geographical area or subject-matter to which such
authority applies.

Jurisdiction draws its substance from public international law, conflict of

laws, constitutional law and the powers of the executive and legislative
Statue titled "Authority of Law" by
branches of government to allocate resources to best serve the needs of James Earle Fraser. A single tablet
its native society. inscribed with "LEX" (Latin for
"Law") is held by the figure, which
is located to the right of the front
steps of the United States Supreme
Court Building.
Contents
1 Types
2 International dimension
2.1 Political issue
2.2 International and municipal jurisdiction
3 International and municipal law
4 The jurisdiction between and within states
4.1 Supranational
4.2 State level
5 U.S.
6 Franchise jurisdiction
7 See also
7.1 Footnotes
7.2 External links

Types
There are three main principles of judicial jurisdiction: personal (personam),
territorial (locum), and subject matter (subjectam):

Personal jurisdiction is an authority over a person, regardless of their

location.
Territorial jurisdiction is an authority confined to a bounded space,
including all those present therein, and events which occur there.
Subject Matter jurisdiction is an authority over the subject of the legal Conflict of laws
questions involved in the case.

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Courts may also have jurisdiction that is exclusive, or concurrent (shared).

Preliminiaries
Where a court has exclusive jurisdiction over a territory or a subject matter, it
is the only court that is authorized to address that matter. Where a court has Characterisation
concurrent or shared jurisdiction, more than one court can adjudicate the Incidental question
matter. Where a concurrent jurisdiction exists in a civil case, a party may Renvoi · Choice of law
attempt to engage in forum shopping, by bringing the case to a court which it Conflict of laws in
presumes would rule in its favor. the United States
Public policy
International dimension Hague Conference

Definitional elements
International laws and treaties provide agreements which nations agree to be
Jurisdiction
bound to.
Procedure
Forum non conveniens
Political issue
Lex causae
Lex fori · Forum shopping
Supranational organizations provide mechanisms whereby disputes between
states may be resolved through arbitration or mediation. When a country is Lis alibi pendens
recognized as de jure, it is an acknowledgment by the other de jure nations Connecting factors
that the country has sovereignty and the right to exist.
Domicile · Lex domicilii
However, it is often at the discretion of each state whether to co-operate or Habitual residence
participate. If a state does agree to participate in activities of the supranational Nationality · Lex patriae
bodies and accept decisions, the state is giving up its sovereign authority and Lex loci arbitri · Lex situs
thereby allocating power to these bodies. Lex loci contractus
Lex loci delicti commissi
Insofar as these bodies or nominated individuals may resolve disputes in a Lex loci actus
judicial or quasi-judicial fashion, or promote treaty obligations in the nature of Lex loci solutionis
laws, the power ceded to these bodies cumulatively represents its own Proper law
jurisdiction. But no matter how powerful each body may appear to be, the Lex loci celebrationis
extent to which any of the judgments may be enforced, or proposed treaties Choice of law clause
and conventions may become or remain effective within the territorial Dépeçage
boundaries of each nation is a political matter under the sovereign control of Forum selection clause
the relevant representative government(s) which, in a democratic context, will
have electorates to satisfy. Substantive legal areas
Status · Capacity · Contract
International and municipal jurisdiction Tort · Marriage · Nullity
Divorce (Get · Talaq)
The fact that international organizations, courts and tribunals have been
Property · Succession
created raises the difficult question of how to co-ordinate their activities with
Trusts
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 Enforcement
relationship is expressly based on the principle of complementarity, i.e. the
Enforcement of
international court is subsidiary or complementary to national courts, the
foreign judgments
difficulty is avoided. But if the jurisdiction claimed is concurrent, or as in the
Mareva injunctions
case of International Criminal Tribunal for the former Yugoslavia (ICTY), the
Anti-suit injunctions
international tribunal is to prevail over national courts, the problems are more
difficult to resolve politically.

The idea 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

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implementation in any other state under the standard provisions of public policy). Under Article 34 Statute
of the ICJ [1] (http://www.icj-cij.org/icjwww/ibasicdocuments/Basetext/istatute.htm) 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.

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. 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, for example, 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. 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 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 law

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. 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. 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, for example, the European
Convention for the Protection of Human Rights and Fundamental Freedoms and the International
Covenant on Civil and Political Rights. In states adopting this theory, the local courts automatically
accept jurisdiction to adjudicate on lawsuits relying on international law principles.

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. Otherwise the courts

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have a discretion to apply international law where it does not conflict with statute or the common law.
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.

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.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.S. 416
(1920)).

The jurisdiction 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 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-seven Member States of what is
now termed the European Union on the relationships between the courts in the different countries. In
addition, the Lugano Convention (1988) binds the European Union and the European Free Trade
Association.

In 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. In some legal areas, at least, the reciprocal enforcement of foreign judgments is now more
straightforward. 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.

To deal with the issue of forum shopping, states are urged to adopt more positive rules on conflict of laws.
The Hague Conference and other international bodies have made recommendations on jurisdictional matters,
but litigants with the encouragement of lawyers on a contingent fee continue to shop for forums.

Many nations are subdivided into states and provinces (i.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.

When the jurisdictions of 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 government 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. Otherwise, an enabling act grants only limited or enumerated powers.

The problem of forum shopping also applies as between federal and state courts.

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State level

Within each state, it is for the government to determine the allocation of jurisdiction:

1. 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). 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. 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.
2. 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. 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 parallel to the courts system, other tribunals and quasi-judicial
bodies may also have a form of jurisdiction, e.g. for arbitration, mediation, etc within a broad
framework of alternative dispute resolution. 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. However, some well-established bodies such as the Beth Din represent more interesting
challenges. 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).

U.S.
Main article: Federal jurisdiction
(United States)

The primary distinctions between areas of

jurisdiction are codified at a national level.
As a common law system, jurisdiction is
conceptually divided between jurisdiction
over the subject matter of a case and United States Federal
jurisdiction over the person of the litigants. civil procedure doctrines
(See personal jurisdiction.) Sometimes a Justiciability
Advisory opinions
court may exercise jurisdiction over
Standing · Ripeness · Mootness
property located within the perimeter of its Political questions
powers without regard to personal Jurisdiction
jurisdiction over the litigants; this is called
jurisdiction in rem.

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A court whose subject-matter jurisdiction

is limited to certain types of controversies Subject-matter jurisdiction:
(for example, suits in admiralty or suits Federal question jurisdiction
where the monetary amount sought is less Diversity jurisdiction
than a specified sum) is sometimes Supplemental jurisdiction
referred to as a court of special Removal jurisdiction
jurisdiction or court of limited Amount in controversy
Class Action Fairness Act of 2005
jurisdiction.
Personal jurisdiction:
A court whose subject-matter is not limited
to certain types of controversy is referred Jurisdiction in rem
Minimum contacts
to as a court of general jurisdiction. In the
Federalism
U.S. states, each state has courts of general Erie doctrine · Abstention
jurisdiction; most states also have some Sovereign immunity · Abrogation
courts of limited jurisdiction. Federal Rooker-Feldman doctrine
courts (those operated by the federal Adequate and
government) are courts of limited independent state ground
jurisdiction. Federal jurisdiction is divided
edit this template (http://en.wikipedia.org/wiki/Template:US_fed_civ_pro)
into federal question jurisdiction and
diversity jurisdiction. 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.

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. 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. 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. 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 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.

However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction.
Under 28 U.S.C. § 1251 (http://www.law.cornell.edu/uscode/28/1251.html) , 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.

The word "jurisdiction" is also used, especially in informal writing, to refer to a state or political subdivision
generally, or to its government, rather than to its legal authority.[1]

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. Traditional franchise jurisdictions of various powers were

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held by municipal corporations, religious houses, guilds, early universities, Welsh Marches, and Counties
Palatine. 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. 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. 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
Lawsuits against God
Law enforcement agency - a different use of the word jurisdictio
Labor unions in the United States - a different use of the word jurisdiction
Guantánamo Bay
Rasul v. Bush

Footnotes
1. ^ "jurisdiction - Definition from the Merriam-Webster Online Dictionary" (http://www.merriam-webster.com
/dictionary/jurisdiction) . http://www.merriam-webster.com/dictionary/jurisdiction. See also, e.g., "Metro's $11
Billion To-Do List," (http://www.washingtonpost.com/wp-dyn/content/story/2008/09
/22/ST2008092201168.html) in The Washington Post: "Local jurisdictions are also facing shortfalls, and much
will depend on the economy and political decisions at the local, state and federal levels"; "Teacher pension
pinch," (http://www.baltimoresun.com/news/opinion/editorial/bal-ed.pensions24sep24,0,2581549.story) in The
Baltimore Sun: "Large, affluent jurisdictions have scores of high-salaried teachers with correspondingly higher
pension costs."

External links
LII Law about... Jurisdiction (http://www.law.cornell.edu/topics/jurisdiction.html)
Supreme Court Decision (http://www.cdi.org/news/law/gtmo-sct-decision.cfm) on Guantánamo Bay
jurisdiction
Jurisdiction As Property (http://szabo.best.vwh.net/JurisdictionAsProperty.pdf) on franchise
jurisdiction
Retrieved from "http://en.wikipedia.org/wiki/Jurisdiction"
Categories: International law | Conflict of laws | Jurisdiction

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