Mexico is a federal republic with three branches of government (executive, legislative and judicial) and has a “civil law” legal system. While its neighbor to the north, the United States, has a “common law” legal system with a foundation in English case law and statutory law, Mexico law is derived from Roman law as set forth by the codes and statutes of the Emperor Justinian. Italian law, Spanish Colonial law, and most significantly, the French Napoleonic Code (1804) have also influenced Mexican laws.
At the federal level, the Mexican Supreme Court is the highest-ranking court, followed by the Circuit Courts and District Courts. At the state level, the Superior Court of Justice is the top court and is followed by the Courts of First Instance and then by lessor courts with special jurisdiction. There are also administrative courts at the federal and state levels, and these courts tend to deal with military issues, labor issues and electoral issues, among others.
Modern Mexican laws emerged from the 1910 Mexican Revolution and today are based on Codification, the adoption of formal codes, at the state and federal levels. These codes include the Code of Commerce, the Federal Fiscal Code, the Civil Code and the Federal Criminal Code, plus many others that regulate daily Mexican life and establish the rule of law. As such, unlike the United States, Mexico law does not recognize the concept of “stare decisis,” the common law doctrine under which judges are obligated to follow the precedents established in prior court decisions. Similar to other Latin American countries, however, Mexican law does recognize the concept of “amparo,” a means of protecting everyday Mexican citizens from the abuses of public authorities.
When it comes to civil litigation in Mexico, there is not much of it, primarily because it is very expensive and time consuming. All parties involved must pay for their own expenses and attorneys, and no punitive damages are awarded. Most cases are settled through negotiation and mediation, and even when a case is won, the judgement can be hard to enforce because it can be contested in a separate amparo proceeding. There are no class action suits, no jury trials, and judges, who are not elected, have much more control over court cases than do lawyers, including over the process of “discovery.”
Mexican criminal law, in many aspects, is very different from U.S. criminal law. In Mexico, the accused is considered guilty until proven innocent. During questioning about the alleged crime, the accused may not have an attorney present, but if he is arrested, within 48 hours he has the right to a public hearing to air the charges against him. Within these 48 hours he also has the right to introduce evidence that could result in the charges against him being reduced or dropped altogether. If the accused cannot afford an attorney, the judge will appoint a public defender, although pro bono attorneys are often not well trained or qualified.
Within 72 hours after being arrested, according to Mexico law, the judge must determine whether the charges will stand against the criminally accused or whether the case should be dismissed. If the case is set for trial, the accused may not receive bail based on personal recognizance, and in some cases, bail may not be available at all. The accused has the right not to incriminate himself and cannot be compelled to testify against himself. The laws of Mexico do not include the death penalty, but those convicted of a crime cannot receive parole.
The defendant in a criminal proceeding has the right to a public trial and the right to confront his accusers, but at trial, there is no jury. The judge renders a verdict based on depositions, expert opinions, written statements, and in some cases, oral testimony. Mexico law states that for crimes carrying a maximum sentence of two years or fewer, the court must hand down a sentence within four months of arrest. For crimes carrying a longer sentence, the court must come to a decision within one year of arrest. In most cases, sentences tend to be short, no longer than seven years, and for those sentenced to five years or fewer, bond may be posted in lieu of serving time.
Prison overcrowding in Mexico is a serious problem, and understaffing, insufficiently trained guards and unsanitary conditions make the problem that much worse. Violence, drug trafficking and corruption are common, and in some prisons, the prisoners, not the guards, are in charge. In contrast to some other nations, Mexican prisons do, however, allow regular conjugal visits for both men and women, and in some situations, female prisoners are allowed to have their young children live with them.
When it comes to Mexican attorneys, the system is very different from the United States. Mexican lawyers are licensed to practice law but are not required to pass a bar exam and are not regulated by the state or any legal associations. After eleven years of formal education, legal education consists of five years at the undergraduate level, and attorneys may also obtain a Masters in Law or a Doctorate of Law. Lawyers are licensed to practice law in all areas of the country rather than in specific states, and certain types of lawyers with special training are known as Notary Publics or “notaries.”
Mexico takes its laws seriously, but following the law usually just involves using common sense (for example, following all traffic rules and do not carrying guns or drugs into the country). If arrested, remain calm, stay courteous and ask to speak to an attorney. Always keep in mind, though, that foreigners arrested in Mexico are subject to Mexican law, and it can be very different from the laws back home.