Legal English Shot – Don’t let the court of competent jurisdiction hold you incompetent

Master the difference between jurisdiction and competence

The English term “jurisdiction” can have different meanings, depending on the context:

  1. The official power to hear a suit and to make judicially binding decisions or judgements (e.g. “The courts of Switzerland have no jurisdiction in/over the matter”, “The Supreme Court has appellate jurisdiction to hear appeals from the Court of Appeals”) or the authority exercised by law courts over a certain party (personal jurisdiction), territory (territorial jurisdiction) or subject-matter (subject-matter jurisdiction) (e.g. “the Commercial Court has jurisdiction over matters of commercial law); used in this sense, it is equivalent to the German “Zuständigkeit” and the French “compétence”.
  1. A national or territorial legal system: “Choice-of-law clauses can be crucial where there are conflicts between the laws of two or more jurisdictions with a connection to the case” or “In common law jurisdictions, juries play a more important role than in civil law jurisdictions”; in this sense it is equivalent to the German “Rechtsordnung”, and is synonymous with the French “juridiction”.

The English equivalent of the French phrase “la compétence relève de” would thus be “jurisdiction lies with”. The phrase “das zuständige Gericht” or “le tribunal compétent” may be translated with “the court with jurisdiction (to hear the case; as to the substance; over the offense; for the appeal etc.)”, “the court that holds jurisdiction” or “the court of competent jurisdiction”. The phrase “competent court”, albeit not wrong, is somehow broader, less “technical” and less precise in meaning.

The only definition of “competence” given by the Oxford Dictionary of Law, for instance, refers to the competence of witnesses. Black’s Law Dictionary very broadly defines “competence” as “the capacity of an official body to do something”. When used in connection with courts, the (non-technical) English term “competence” may thus refer not only to its “jurisdictional competence” (i.e. jurisdiction), but also to the compliance of the court with further statutory requirements for exercising its jurisdiction in a given instance (e.g. impartiality, required number of judges). In theory, it is therefore possible for a court to hold jurisdiction but nevertheless lack competence in a given case.

The term “authority” is usually used when referring to the powers of administrative authorities (government agencies) to grant permits or decide non-judicial matters. A government agency is said to “have authority” in the matters in question, or to “have authority to decide” certain questions; a matter may also be “beyond the scope of authority” of a certain department. Again, one can also speak of the “competent authority” when referring to the administrative body that has the authority to rule on a matter, or which is responsible for dealing with a matter.

The English term “competency” (“mental competency” or sometimes “mental competence”) is roughly equivalent to the German “Urteilsfähigkeit” and the French “capacité de discernement”: it refers to the mental fitness of an individual to participate in legal proceedings.  One may say, for example, “The accused lacks competency (or was held to be [mentally] incompetent) to stand trial, by reason of insanity.”

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