Similarities and differences between the Legal Systems of Argentina and United States

There are many differences as well as similarities between Argentina’s legal system and the United State’s legal system.

Firstly, the US’s legal system is a «Common Law» system, that means based on precedents. Precedents bind the decision of Courts of First Instance as well as there of Court of Appeal, when the Courts are located in the same jurisdiction. Therefore, you have to describe the facts in order to «fit» them in the precedent that you want to use in a trial. Contrary to this Argentina’s legal system is based on Codes. This kind of system is commonly known as «Civil Law». This legal system provide you with Civil, Commercial, Criminal and Procedural Codes that contain the rules that you have to attend. These rules must be consider in order to file a suit.

Both systems have Oral Trials in Criminal Law, but only American legal system has Oral Trails in Civil and Commercial law. The US’s trials are composed of one judge and twelve juries ( it can change in different jurisdictions – for example Louisiana) and it is a constitutional right, whereas in Argentina’s legal system Oral Trials are composed of three judges, without a jury. Civil, Commercial and Labor trials are written, not oral, in Argentina.

While in Argentina’s legal system a person can have two or three domiciles, in the US’s legal system a person can have only one. For example in Argentina is allowed to have a real domicile – that means the domicile in which a person live – «constituido» domicile – domicile in which a person is supposed to live and in which are valid all kinds of summons and notifications – and a commercial domicile – in which the main office of a person is located.-. Sometimes the domicile of the contracts can be stipulated by the parties to choose a jurisdiction. For example, a
person can rent and apartment in the Province of Buenos Aires, and agree with the Landlord that in case of being a trial the suit should be file in the District Court. – That means in a National Court instead of a Province – State- Court.

All Argentina’s judges are elected by the Congress. The Argentina’s Prosecutors are elected by the Ministry of Justice. The Ministry of Justice depends of the Executive Power. US’s Judges and Prosecutors , on the other hand, are elected by Congress and by popular votes.

The Argentina’s legal system is an Inquisitorial system. The judges, after hearing the arguments and theories of the parties, formulates the legal theories, that sometimes can be different from the parties’ legal arguments. American Legal system adopts the adversary system, in which the judge is only an Umpire, who chooses among the arguments of the parties.

Besides, in Criminal Law, Argentina’s Judges are able to conduct the investigation. The judges try to look for the truth, and can produce evidence for themselves. The parties can propose proves and require search warrants, but the Judge is the only one who can allow the production of the proves. The first step in Criminal Law Trails occur in the «Instruction Courts». That is a written step. If the Judge consider that the case has sufficient proves, and that the indictment is considered «prima facie» guilty, the case is sent to the Oral Trail. If not the case
finish in this step. Oral Trials are formed with three judges, and without jury. The parties can produce in this step new evidences that was not allow in the Instruction Court. The verdict of the Judges can be appealed for the parties, but the appeals should be only about matters of Law.

The Oral trials in US’s System are, almost always, with jury. This is a very important difference between both legal systems. Before the trial, in the American system, have the pretrial and the discovery steps. This two steps don’t exist in Argentina’s system. Also In the American legal system the parties must choose the members of the jury, being able to refuse the candidates with or without cause. In the trial the Judge decides the matters of law and the jury the matters of fact. The judge must give instructions to the jury. Then, when the trail is finished, the jury have to decide if the indictment is guilty or not guilty. The verdict of guilty should be unanimous.

Also in Criminal Law, in the American System the Death Penalty is allowed in some states. The Argentina’s system does not have death penalty.

Argentina’s legal system is modifying its procedural law in order to have oral trials, and there is a possibility in modify the law for having Oral Trials with jury. I do not think that this is a good idea, because Oral Trial with jury are – in my point of view – more sensitive than technical., but in the other hand reflect better the way in which the people think about different behaviors of the society. In addition US’s legal system has different types of Courts. For instance, Federal Courts and State Courts.

Besides the America system has Courts of First Instance and Courts of Appeal. Likewise Argentina’s legal system has Federal Courts and Provinces -State- or National Courts ( depending if they are located in a Province or in a Federal District). Federal Courts have jurisdiction in many Provinces analogous to the US Federal Court. Equally important is knowing that Argentina’s and US’s Supreme Court are composed by nine Justices.

Finally both systems have similar rights established in their Constitution, but one important difference is that the Argentina Constitution protect the life of an unborn child since the mother is pregnant, that is why abortion is prohibited in all over the country. Also we do not have problems with minorities groups, for instance for reason of different race or religion. This is a distinguishable point from American Legal System. We do not need to protect minorities and in this way we have different electoral laws

CONCLUSION

The US’s and Argentina’s legal systems have similarities and differences. In the US legal system the most important «tool» is the jurisprudence, but there are many important statutes which judges must to observe and respect. The Argentina Legal System is based in Codes – or statutes- but is also very important the jurisprudence, and in almost all the suits the lawyers quoted jurisprudence. Common Law and Civil Law system are closing day by day. I think that in a few more years the systems would be more and more similar.