Guide to Understanding
The Term "Jurisdiction"
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.
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.
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."
Jurisdiction in the 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 jurisdiction over the person of the litigants. 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.
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.
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. Federal courts (those operated by the federal government) are courts of limited jurisdiction. Federal jurisdiction is divided 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 the U.S. federal court system, the United States District Courts have original jurisdiction over a number of different matters (as mentioned above), and the United States Courts 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, 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.
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.
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.g. through arbitration or mediation. 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. 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. 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.
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.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 concept of jades law 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). Under Article 34 Statute of the ICJ 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, 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. 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 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. 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:
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, e.g. 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.
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 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 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 usual legal doctrine under which questions of jurisdiction are decided is termed forum non conveniens.
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. In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Area. 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. 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.
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. 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.
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 operating within the whole. 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. 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.
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. 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.