The first Europeans to visit Mexico were Francisco Fernandez de Cordoba in 1517 and Juan de Greijly in 1518. Hernan Cortes, started the conquest from Cuba in 1519 along with lieutenants such as Pedro de Alvarado
managed to conquer the Aztec capital, Tenochtitlan; to capture the Aztec ruler, Montezuma, and to bring down the his empire; and to ward off Spanish rivals. In1528 the first royal court was set up under Nuno de Guzman.
After Mexico finally established independence, it went through many different constitutions until 1917. The current Mexican Constitution is commonly referred to as the 1917 Constitution. It is the source and origin for all Mexican law. The hierarchy of sources of law in the civil law Tradition to which Mexico’s legal system belongs are, “constitution, legislation, regulation, and Custom.” The constitution will override all legislation, legislation will override all regulation, and regulation will override all custom.
Spanish legislation continued to be used in many key areas, including civil law. During Mexico’s early beginnings, the constant political upheavals and the ruined economy left by the war of independence demanded along and challenging process of consolidation for the law of the new country to finally emerge, be formulated and systematized, and then to gradually acquire its distinct legal contours.
In the late 1820’s isolated efforts at the state level had resulted in the formulation of a couple of civil codes. It was until the 1870’s when the codification process gained recognition and stature at the state level. President Benito Juarez was very much in favor of codifying a civil and penal code. As a result, Justo Sierra O’Reilly-Juarez Minister of Education-formulated one of the most advanced and significant civil works in 1861. The French intervention (1862-1867) interrupted these codification attempts.
The defeat of the French army, soon followed by the execution of Maximillian of Hapsburg and his generals in 1867. President Juarez then returned to Mexico and started to restore the republican and federal form of government. President Juarez resumed his codification efforts. Finally on December 8, 1870, the Civil Code for the Federal District and the Territory of Baja California. The U.S. did not use codification until much later than Mexico.
Mexico is a so called “law” country. Mexico’s civil law system derived primarily from Roman law as set forth in the compilation of codes and statutes of the Emperor Justinian, called Corpus Civilis. The system is also influenced by the Spanish and “Indian” law of Spain’s Colonization of areas that became Mexico. The U.S. is a so called “common law” country. The U.S. common law system is based on the case law and statutory law of England and the American colonies before the American Revolution. The traditional colonial law system Emphasizes case law, customs and usage rather than legislative enactments.
The judicial branch of the Mexican government is divided into federal and state systems. Mexico’s highest court is the Supreme Court of Justice, it consists of twenty-one magistrates and five auxiliary judges all appointed by the president and confirmed by the Senate. This court decides the most important cases in the country. Next in the line of authority and significance are the Circuit Courts who take cases on appeal and amparo cases. The District Courts have jurisdiction over amparo cases in the first instance, and functions as courts of ordinary jurisdiction on matters of federal law, such as commercial law cases.
The Supreme Court of Justice is divided into four chambers, each with five justices. These are the Penal Affairs Chambers, Civil Affairs Chamber, Administrative Affairs Chamber and the Labor Affairs Chamber. The Auxiliary Chamber, the fifth chamber, is responsible for the overload of the four regular chambers. Court rulings of both the whole, or plenary, court and the separate chambers are decided on the basis of majority rules. Rulings by the separate chambers may be overturned by the full court.
Under the Supreme Court of Justice there are three levels of federal courts: twelve Collegiate Circuit Courts, each with three magistrates; nine Unitary Circuit Courts, each with six magistrates; and sixty-eight District Courts, each with one judge. Federal judges for the lower courts are appointed by the Supreme Court of Justice. The Collegiate Circuit Courts can be compared to the United State’s Courts of Appeals, and this court deals with the protection of individual rights, usually hearing cases where an individual files a writ of amparo, a type of legal protection that can be compared to a form of habeus corpus that protects individual civil liberties and property rights. The Unitary Circuit Courts handles appeal cases also.
Spanish civil law is based on strict adherence to legal codes and minimal jurisprudence. The writ of amparo is the most powerful judicial instrument which can be used against acts by any government official, including the president. The Supreme Court of Justice is prohibited by the constitution from applying their rulings beyond any individual case. The Supreme Court of
Justice usually shows greater independence in relation to the president than does the legislature often deciding against the executive in amparo cases. But, the Judiciary does not often try to change the will of the president on major issues.
The diversification of administrative regulations in the different legal areas is difficult to control due to the quick growth of Administrative law in Mexico. The administrative courts are classified either federal or state. The federal courts include; the Federal Boards of Conciliation and Arbitration which hear labor cases and are of the utmost importance because of Mexico’s
Federal Labor Law which controls each employer employee relationship, the Court of Agrarian
Justice; the Court of Military Justice; the Court of Jurisdiction over the Electoral Process; and other special courts. State administrative courts include the Administrative Court of Contentions; Justice of the Peace Courts and other courts of little importance.
In Mexico there is not as much civil litigation as in the U.S. Mainly, the reason for this is that litigation in Mexico is expensive, there are no awards for punitive damages, all parties must pay their own attorney fees and costs, and the entire process of litigation can be lengthy. If litigation is unavoidable although, there are no punitive damage awards in Mexico, there are awards for “normal damages” under certain conditions set forth in the Civil Code. The awards here never amount to some of the high figures seen in U.S. rulings.
Another characteristic of litigation in Mexico is that there are no jury trials as is the right in most U.S. cases, formal, written declarations are used more often than the oral hearings used in U.S. courts; negotiation and mediation are encouraged.
The “discovery process” is monumentally significant in U.S. litigation, controlled by attorneys this is where much of the time and expense is associated with Mexican litigation. But, in Mexico the judge controls his process. Mexican attorneys have a much more active role in developing a case than do the judges. They assist in the gathering of evidence and selection of witness. If the accused wants the lawyer to be more in control of the case, this could be to his disadvantage.
Not including administrative proceedings, most litigation is settled for the above reasons and because in Mexico, judgment is difficult to enforce against a solvent defendant, judgments can be contested in a separate amparo proceeding which can run for several years.
In Mexico, one is judged guilty until proven innocent. The death penalty does exist in
Mexico, a feature shared with other Latin American countries for historic reasons.
In most cases, arrests can only be made on authority of a judicial warrant, unless the suspect is caught in the act of committing a crime. Oftentimes suspects are arrested without a warrant and judges tend to overlook the irregularity. Those arrested are required to be brought before an officer of the court who takes their statements and within 48 hours then informs them of he charges against them. Within seventy hours of the arraignment, the judge must remand the arrested person to prison or release that person.
Criminal trials in most cases are tried by a judge without a jury. The judge acting alone basis his/her verdict on any evidence, although at times oral testimony is presented. Defendants have the right to counsel, if they can’t afford it they are appointed a public defender. This quality of counsel is usually poor. Usually the accused and the lawyer may not appear the important stage of sentencing. The defendants right to a public trials is guaranteed, as is the right to confront one’s accusers and to be provided a translator if the defendant is not Spanish.
Under their Constitution the court must hand down sentencing within four months of arrest for crimes carrying the maximum sentence of two years or less, and within a year if the crime carries a longer sentence. The Mexican Penal code stipulates a range of sentences for each offense. Sentences tend to be short, usually not longer than seven years. The actual time of incarceration is usually three fifths of a sentence if, good behavior. These sentenced for less than five years may avoid further jail time by passing a bond. The entire process of trial, sentencing and appeals often takes a year or more.
A key element in Mexico’s legal system is their Lawyers. Many of them are highly educated and many speak English. These students enter law school after eleven years of formal education. Law school is five years and is broader and more formal and theoretical than law schools in the U.S. After graduation the person will usually clerk for a firm or government
Official until an oral exam is presented to become licensed. Mexican lawyers are licensed to practice throughout Mexico, not in individual states as in the U.S.
A “notary public” in Mexico is different in what is referred to as a notary public in the U.S.A Mexican notary public is a lawyer who is also a public official appointed by the by the Mexican state, or by selection after a rigid application process and examination. This type of appointment is considered a delegation of government authority for the certification or official recognition of certain acts and documents. Mexican notaries are allowed to practice law in some states. This position of notary public in Mexico is coveted, and one acquires this position after years of apprenticeship under the guidance of another public.
There are many similarities between Mexico and the U.S. contract law. As in other legal systems, the general principle is freedom of contract between individuals and entities is the backbone of contract law in both countries. The common fundamental principles of contract law
Include the initial offer and negotiation of the terms, acceptance; formalization of the contract including the establishment of liquidated damages or other provisions and conditions of default; and termination of the contractual obligations.
The major differences between U.S. and Mexican law surround the fundamental U.S. concept of consideration for a valid contract requires that one party receive something of value or that the other party suffer a lost, take on a responsibility or give up an opportunity. If such consideration is absent, the contract is invalid, although the U.S. is evolving away from this requirement. In Mexico, the validity of and compliance within a contract depend only on the existence of the agreement between parties. The parties do not need to present “legal consideration” to bind themselves, their intent to agree is sufficient Mexico, as in the U.S., freedom of contract depends on the legality of the subject of the contract, and accordingly, contracts involving illegal activities are void.
Another important difference between U.S. and Mexican contract law is the degree of formality required of contracts. Mexican contractual law imposes many formalities that are not required in the U.S. One example of these formalities is the requirement to appear before a Mexican notary public to center the legality of certain types of contracts, such as contracts to buy or sell real property this certification process is much more formal than the U.S. requirement that a Notary Public acknowledge signatures on a deed.
Finally, the difference between the strength of U.S. guarantee agreements and Mexican guaranty agreements in Mexico, such contracts are “secondary contracts” because they require the prior existence of a principal contract, a special characteristic of Mexican law. An example of this is the mortgage contract which cannot be guaranteed without a prior contract that gives rise to the obligation to be guaranteed or secured by the mortgage. In the United States, guaranteed agreements are more flexible and independent, and can exist without prior principle contract, as in the case of a standard security agreement.
Who’s to say what changes can be made to improve the Mexican legal system, seeing as how the U.S. legal system could also use some improvement. The rule of law is not simply the consequences of what is written down in the constitution and the various laws, but rather a behavioral equilibrium that emerges from the interaction of legal institutions and the strategic choices of political and social actors who attempt to bypass the constraints imposed by those institutions.