In this essay the objective is to analyze the “Conflict of direct judicial competence from the Empiricist perspective”, which allows us to analyze and take into account the practical part of knowledge, that is, the importance of experience applied to conflict resolution. of competition, for a better supply.
introduction
Empiricism has its importance within the conflict of jurisdiction in the analysis of human understanding, as Hume points out, and in the practice or experience of the judge. Empiricism has promoted the gradual recognition of Human Rights, giving rise to positivism.
It focuses on the experimental and the inductive, it requires the verification of the theory so that it can be considered as knowledge. Empiricism will help the judge to observe broadly and objectively the type of issues to be resolved, to analyze and settle according to their area of competence, whether it is within their jurisdiction to know about the business or judicial conflict and which laws should apply.
II. Background
The so-called conflicts of judicial jurisdiction historically began in parallel with legislative conflicts, which has been given the name of traditional conflictual system.
From the historical point of view, one of the first antecedents is that raised in the 13th century by Carlos Carolus de Tocco, according to which the judge must always apply his own law, that is, both his procedural law and his material law to merits of the matter, which implies a concurrence of judicial competence and legislative competence, and the second will be its consequence, that is, the problem is reduced, ultimately to determine the judicial competence.
During the thirteenth century, previously mentioned, Jacobus Balduini affirmed that, in contractual matters if it is a custom (or a law) related to the procedure, it will be that of the judge of the case that is applicable; If the custom or law refers to the decision of the process, this should be that of the place where the contract was concluded (Mejieres).
In other words, lex fori (Law of the forum) in relation to the process, locus regit actum (Venue of celebration) as to its substance. This duality raised by Jacobus Balduini is reflected, to some extent, in contemporary doctrinal development. It is common that many courts and judges are only interested in determining their competence and immediately afterwards, regardless of the nature of the matter or the applicable laws, they simply apply their own law of the matter. This procedure reflects:
- That the judge or court is unaware that in certain matters, the merits of these must be governed by a substantive law different from yours, and That that judge or court simply refuses to apply any law other than yours.
In any case, whether due to ignorance or negligence, procedures of this type interrupt international legal life. Under these conditions, the correct course of action consists of deciding jurisdiction in accordance with its own procedural laws and then, if the matter requires it, applying the corresponding substantive laws, including foreign laws, if necessary.
III. Content
We are talking about a conflict of jurisdiction when two or more jurisdictional bodies try to decide, either directly or indirectly, on the same case that deals with a problem derived from international legal trafficking. This competition can be divided into two: direct or indirect.
In this essay we will lean on Direct competition. Pérez Nieto Calvo points out as direct competence "The legal authority that is conferred on a specific judge to recognize and execute a sentence that resolves a conflict of laws, issued by a different judge, usually a foreign one."
Likewise, competition is conceived as a local application. It is the activity of the State aimed at the performance of the law by applying the general rule to the specific case and which is known as jurisdiction, in turn, competence is the measure of that jurisdiction, that is, the power that the judge has to exercise the jurisdiction that corresponds to him in a concrete case or legal conflict, in this case merely international.
Fernando Villarreal Gonda, points out to us that "whenever the legislative competence and the judicial competence are linked, it is essential to know not only the applicable law, but also the competent judge to resolve a controversy that presents points of contact with two or more countries".
Now, from my particular point of view, I define direct competition as the power that the judge has to know, observe, substantiate and resolve those conflicts or specific cases that are within its competence, as well as apply laws as appropriate that it is warranted in international resolutions.
This direct judicial jurisdiction is divided into: national jurisdiction and international jurisdiction.
Direct national competition is applied locally. In some legal systems, the decision about jurisdiction by the courts or judges is at the discretion of any of them. In codified legal systems, in general, certain general rules are established, and in others, the criteria are more numerous and specific.
From the above, from my point of view there is no doubt in the application of laws, legal norms, but it is important to emphasize that based on experience, observation and practice, which are part of the knowledge, the judge must take into consideration aspects such as the type of crime being pursued, the specific business, the place of signing agreements, among others.
In the Mexican System, positive law grants a considerable catalog of general principles that help to pose and solve this type of problem, including what is established in Article 24 of the Federal Code of Civil Procedures, indicates that:
It will be the jurisdiction of the judge:
- The one of the place that the defendant has indicated to be judicially requested on the fulfillment of his obligation. The one of the agreed place for the fulfillment of the obligation.
Another example is Article 156 of the Federal Code of Civil Procedures of the Federal District, which states:
- The one of the place that the debtor has designated to be judicially required to pay. The one of the place indicated in the contract for the fulfillment of the obligation. Both in this case and in the previous one, the jurisdiction is not only for the execution or fulfillment of the contract, but for the termination or nullity.
From the above, we can observe the principle based on the place where the obligation indicated must be fulfilled, that is, the principle of forum loci executionis.
Regarding Article 156 of the CFPCDF, the Mexican judge must refer to the laws of the place of the celebration, that is, the judge will be exercising his jurisdiction according to the place where a contract or legal event has been made or concluded, therefore, will apply its procedural law and eventually will have to apply a different law to the fund.
Direct international competition, in this sense of direct competition, has been of great importance in Private International Law, so that in the matter of issuing an international judgment it has caused some controversy. The direct jurisdiction of judges and courts is subject to internal regulation, let us remember that jurisdiction is the measure of jurisdiction and this, in turn, is state activity aimed at the performance of law by applying the general rule to the specific case; that is why the rules of procedure are strictly national in nature, and are generally not taken into consideration by foreign judges.
From the foregoing, we say that if the judge decides that the foreign judge who issued a sentence does not have jurisdiction or who wrongly assumed it, he will not recognize that sentence, therefore it is said that there is no legal certainty and that it goes against the Justice. It is for this reason that States seek alternatives to resolve international conflicts, where they require the basic criteria of direct competition in the international arena.
Thus, in the absence of a competent international jurisdiction to hear international conflicts between individuals, the national legal norms, that is, the internal norms, have defined the jurisdiction or incompetence of the courts of the forum to hear the various conflicts.
Indirect Competition, as we have previously indicated that direct competition is the exercise of jurisdiction, by the judge when applying the general rule to the specific case. We understand by indirect competence the exercise of jurisdiction by the judge or court to carry out the recognition of legal validity and, where appropriate, execution of a sentence issued by the different judge. This recognition is presented at two levels: the national and the international.
Empiricism
The term empiricism comes from the Greek "empeiría" which means experience. Likewise, empiricism is a philosophical current opposed to rationalism that emerged in England in the 17th century and that extended during the 18th century and whose maximum representatives are J. Locke, J. Berkeley and D. Hume.
Empiricism is called any theory that considers that experience is the origin of knowledge, but not its limit. This current has been maintained by various philosophers such as Aristotle, Thomas Aquinas, Epicurus, Ochham, to name a few.
Its influence is noticeable in the seventeenth century, both in the field of political philosophy and in the theory of knowledge. For example, in the first we can mention Locke's liberalism, which influences the enlightened ones by encouraging the principles of the American and French revolutions; Montesquieu's division of powers and his principle of equality will promote the progressive recognition of Human Rights. As for the theory of knowledge, Hume's ideas will influence Kant, since this trend encourages 19th century positivism and logical positivism or neopositivism and 20th century language philosophy.
Empiricism meets certain fundamental characteristics that can be summarized as follows:
Subjectivism of knowledge. - The empiricists and rationalists have agreed on this point, they affirm that to know the world you have to start from the subject principle, not from reality itself. The mind cannot know things except from its ideas about them.
Experience as the only source of knowledge.- The origin of knowledge is experience, that is, taking into account the perception of things or external sensitive objects and the internal operations of the mind, such as emotions, sensations, etc..
Denial of innate ideas of rationalists.- the mind has no content (innate ideas), is empty, and must be filled with experiences and learning.
Human knowledge is limited: experience is its limit.- for empiricists this limit is experience, since more of it is illegal so as not to fall into error.
The importance of empiricism in the conflict of direct judicial jurisdiction
We have previously mentioned that empiricism is a philosophical current characterized by the ideal that the origin of human knowledge is experience.
How do we focus empiricism on conflicts of direct judicial competence? Aristotle said that: "there is nothing in the mind that has not previously been in the senses"; Although it is true, when the judge finds a legal fact or a particular legal matter, he puts his five senses into action to solve said problem; For this, the specific case must be studied and the situation analyzed.
The first thing a judge does is verify his competence in the matter, if he is fit to know the business and thus be able to better resolve the dispute. Regardless of the theoretical that the judge has, he must apply his notion in the practical, go beyond what he sees reflected and carefully observe the matter.
For Locke and Hume, the contents of the mind call them perceptions, and divide them into impressions and ideas. The impressions are immediate data of the experience, as well as the external sensations, passions, emotions, etc. That penetrate strongly into the mind of man.
Science cannot be based on assumptions or assumptions not contrasted with experience. The validity of scientific theories depends on their empirical verification.
Jurists know the content of norms with the help of legal theories. But, if we look closely at the term "theory", it is necessary to clarify that this term is used in the natural sciences, generally, to refer to the explanations of the facts that are subtracted from the perception of the senses, that is, those that are not empirically verifiable.
This conception of theory is meaningless, since jurists do not cultivate an empirical science, but a hermeneutical science, that is, they interpret laws and theoretical texts, therefore, they are possible understandings of some norm. Legal theories imply a thesis on the assumptions of the correct solution to the conflict.
IV.- Conclusion
Empiricism is the knowledge that is obtained through experience, that is, that only by living in the moment or carefully observing the situation, object, problems, we can come to the knowledge of certain things.
In legal practice many young students appreciate the theories of various sciences, not so, knowing them in practice. It usually happens with the judge, the practical and theoretical jurists have a common purpose, which is to try to resolve social conflicts on the basis of legal norms that establish, before the conflict takes place, the solution that the same must give.
The legal practice consists of applying the laws, legal norms, that the judges know through legal theories to the cases in conflict. In this case, the conflict that usually happens in direct judicial jurisdiction.
Each jurisdiction has your territorial competence, who, depending on the case presented to them, choose to exercise their jurisdiction applying their rules and laws, they should deeply analyze the seriousness of the matter, and above all what kind of conflict usually happens, seeing from the From an empirical point of view, the conflict that usually occurs internally does not change if a judge verifies the matter, even if the adjective norm does not apply.
By having the experience of the various theories, it is easier to be able to solve conflicts, turn matters in case it is not your responsibility, apply the law in a specific case. It is a necessity nowadays to find out the pure forms of the concept and of the judgment for the judge, since it is in the midst of human longings, and thus be able in the least way to settle controversies that may hinder the judgment and resolution of conflicts.
V.- Bibliography
- Enrique Bacigalupo. Empiricism and legal theories.Leonel Pérez Nieto. Private international right. General part. UNAM-ITAM. Oxford. Mexico DF 2000.Sergio Flores Díaz. Anthology of Private Law. Eusebio Francisco Flores Barraza. Execution of Foreign Judgments.
