Being a lawyer in the USA and in Hungary

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Except as noted, the information below applies to dr. Talabér János (ID:109714DA), such as this essay, which is defined as his own product of mind. All texts, images, logos and information contained in this essay is the intellectual property of the writer, unless otherwise registered and are protected under the U.S. Copyright Act 17 U.S.C. 101-810 (provided it is also published in the USA or on the Internet) as well as under the Hungarian Civil Code (Act. 1959. évi IV. törvény/91.§- 138.§) (within the borders of Republic of Hungary).

Copyright gives the owner exclusive right to reproduce, distribute, perform, display, or license a given work. The writer declares that he has not violated the copyrights of other authors and publishers, he avoided plagiarism and that all the things except for notes are the production of his intellectuality.

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Introduction – personal motivations

Since our having been in contact with church law and medical law for long, it was definitely obvious that we would not have chosen other topics to deal with. However, since there is a whole library of books and Internet sites dealing with the British and American legal systems as unique, non-conform ones, we set off to point at the basic differences compared to other laws while we would like to note some interesting canonical points as well. It is obvious, however, that we cannot expect the perfection of this short essay, therefore we are rather eager to present only some interesting points and views.

I. Basic concepts – Roman Law

Just before we get to the American legal system while concentrating on practical things, we cannot apart from the fact that the American legal system had been built upon the British system for hundreds of years. Therefore, first we would intend to draw the basic concepts of British laws, then we would point at the differences between British and overseas laws. Moreover, we would pick on some interesting facts of canonical law, and finally we would attempt to get to the conclusion where it would be better to exercise legal career – not only from a financial point of view. In many legal systems, the basic concept of a written regulating document (later called written law) hanged upon the Roman law – as the source of all legal documents. However, this law is not as implemented in British legislation as it is in many other systems. Legal experts, therefore, divide the legal sources into two major fountains: Roman and Anglo-Saxon roots. Both share similarities and differences. Moreover, before the civil legislation, two major roots had been known as basic fountains: Roman and Canonical. 1

Roman law refers not only to the legal system of ancient Rome, but also to the law that was applied throughout most of Western Europe until the end of the 18th century. Still many of the concepts are preserved and partially applied. This is especially true in the field of private law. The influence of Roman law is shown by the wealth of legal terminology, retained by all legal systems. Before the Twelve Tables (754–201 BC) 2 , private law consisted of the old Roman civil law (ius civile) being

applied to Roman citizens only. After the Tweleve Tables, there were many laws issued by the Roman leaders such as Lex Hortensia, Lex Aquilla, etc. The Roman written form of legislation

1 See. Corpus Iuris Canonici and Corpus Iuris Civilis (Twelve Table)

2 The first written document of legal regulations having general force and ruling power over citizens

4 reached its peak in the post-classical period, somewhere in the middle of the 3 rd Century BC. This is the date since which we have been able to take Roman law as our source (Fontes essendi) into

account. 3 Corpus Iuris Canonici ('Body of Canon Law') is the collection of sources of church law. It was replaced by the Codex Iurius Canonici ("Code of Canon Law") later, which was promulgated in 1917. The CIC was revised in 1983 for the Latin rite of the Catholic Church and in 1990 for the Eastern rites. However, the present CIC is not so important for us now, since civil legislation and church legislation have been separated since the early 19 th century. Before that period, however, the legislation of kings and emperors did really rely on canonical actions. We can observe canon law as the roots of legal documents from the middle of the 13 th century. 4 Precedent law is the essence that makes law very Anglo-Saxon. This is the first distinguishing step between Continental legal systems and British (American) one. The precedent on an issue is the collective body of judicially announced principles that a court should consider when interpreting the law. When a precedent establishes an important legal principle, or represents new or changed law on

a particular issue, that precedent is often known as a key or landmark decision. 5

3 ERDÖ PÉTER, Az egyházjog forrásai,SZIT,Budapest 1998, 1-29.

4 See. Pope Gregory IX, Ad expediandos, 9 th September 1253.

5 GÖNCI-HORVÁTH-STIPTA-RÉVÉSZ-ZLINSZKY (eds), Egyetemes jogtörténet, Nemzeti Tankönyvkiadó,

Bp,1997, 258-314.

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II. Difference in constitution

The roots and major differences that we discussed above were all true for both American and British legal systems, compared to Continental law. As far as the constitution of Britain and America are concerned, we have got to point at major divergences. Astonishingly, in British legal system there is not a written constitution covering all fields of human life. In fact, there are a lot of laws and acts dealing with different basic rights and obligations, however, there is not a bunch of laws put down in one book. The concept that lies behind is that the government (including the house of lords and commons) has the right to make out acts or laws to interact in any affairs of life. Consequently, there are a lot of written decisions that form the basis of the cases. As there is a high acceptance and application of precedent decisions, it is not a problem to decide upon formal cases. This is implemented in the other Anglo-Saxon invention, the common law.

Unlike in Britain, there is an old written constitution in the United States. Moreover, the constitution seems to be kept as a sacred document, learned and cited by school kids all around the whole country. This is something, a sacred relic, that US citizens are really proud of.

The Constitution of the USA (main times written with a capital initial letter) is the supreme law of the United States. It is the foundation and source of the legal authority highlighting the existence and ruling powers of the United States and the Federal Government of the United States. It provides the framework for the organization of the United States Government. The document defines the three main branches of the government: The legislative branch (there is the bicameral Congress), the executive branch (President), and a judicial branch (led by the Supreme Court). It is not only providing for the organization of these branches, but the Constitution also outlines which powers each branch may exercise. In addition, it also reserves numerous rights for the individual states, hence establishing the United States' federal system of government. It is the shortest and oldest written constitution of a major sovereign state. 6

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What makes the Constitution of US so popular? First, it is short so it is much easier to recite. Second, perhaps

because it is the oldest written document underlying American feelings (you know the term “old” is relative when

we discuss the USA), being a basement upon which American Dream is built.

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III. Difference in division (branches) of powers

Common law is law created and refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, the judge has the authority and duty to make law by creating precedent. Legal amendments, acts, measures, proposals and written form of rights are similarly created in the British legal system. Therefore, the division of powers is an apparent phenomenon. It means that we can certainly talk about legislative power, executive power and juridical power. In the British case, however, the acting bodies have been different throughout the history. I would go into deeper details here, however, I should in that case explain the basic concepts of law and legal philosophy, which I think is impossible now. As for the division of powers, the basic difference is that in Hungary (and in most European countries) general law is only created by the legislative bodies, whereas in the British system a general law could come to forth by a decision of a court. It means that a decision in a certain case might act binding in general matters. To clarify this, I would show an example. In Hungary the criminal code is applied for the certain case, and precedent law does not really exist. For instance, two different thieves could get two different sentences regardless of the similarity of the cases. It is because there are different and wide possibilities of the judges to apply the code, and because of the code having wide range (range of imprisonment periods) of possibilities. Moreover, the law is applied for the individual case, therefore there are such ambiguities in decision making. And the sentence or decision made by the judge (or judges) are binding only for the certain given case. This could not happen in England or either in the States. A decision made by the judge (or jury) is not only binding for the given case but it also has general binding effects on the future similarities. Therefore, the judges could go back on the previous judgments and those could serve as precedents. The new judgment - if any case it is provenly different from its ancestors- could stand as a new precedent. A judge (or judges, jury) could have the right to observe many previous cases upon which they can come out with the new sentence. As a result, juridical power could create general law as well, therefore it also stands as legislative power in certain occasions. (see. mandatory precedent and persuasive precedent)

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IV. Differences in participants of legal actions

Lawyers are people educated in aspects of law who may represent clients at court; often referred to as an attorney or an advocate, they can fulfill a number of roles depending on the circumstances. As advocates, lawyers can represent one of the parties in criminal and civil trials by presenting evidence and arguing in court to support their client. For almost every area of society there is a specialist branch of the legal system; for example: Constitutional Law, Criminal Law, International law, Adoption, and Identification Theft.

Attorneys, however, are rather the lawyers in the States. They are professional representatives of their commissioners in front of legal forums. They show much more of resemblance to the Hungarian “ügyvéd” In the States, therefore, the picture is much easier: lawyer (= jogász) is a general term for a person who graduated from the university of law, however, it does not mean that she or he has the practice and rights to act as an advocate. To become an attorney (advocate), the fresh graduate has to learn at least two more years in order to gain It is like in Hungary, where the newly graduated lawyer has to learn three extra years to become an attorney (ügyvéd). In the UK, however, there are barristers and solicitors.

A solicitor, on the other hand, is a lawyer who, after having served under the supervision of a

practicing solicitor for two years, and having satisfied other demands of the Law Society, including educational requirements, is admitted to practice by the Master of the Rolls. Solicitors have limited rights to practice before the courts. These rights of access to the courts have been expanded of late however, generally, a solicitor is considered an office lawyer whereas the barrister, who provides opinions to solicitors on difficult points of law, also appears in court. 7 Summing up the differences I have mentioned (certainly there are more than plenty), we have to conclude that the Hungarian term “jogász” correlates with “lawyer”, whereas for “ügyvéd” we can use either attorney, barrister or solicitor. It is due to the fact that in Hungary “ügyvéd” is not sub- specified like someone representing in front of a court or not. It is true, however, that the Hungarian attorneys are also specializing in different cases like criminal, civil, health care, etc.

7 See. J. ERWITT, America At Home: A Close-up Look At How We Live, RPBP, New York, 2008.

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V. Difference in education

Extremely surprisingly, however, the education of lawyers is outstandingly different in the countries of the world. The Anglo-Saxon concepts hang upon formal historical education and certain participation in different boards, bars and benches (US). It is possible to gain a basic BA (BL) degree in law after a three year course; after this, the study period should be prolonged with two extra years (in some places of the US only one) to reach the university level (MA, Magister). This is the level upon which the person could start heading for being a solicitor or a barrister (he should become a member of some of the bars or inns, in the USA “bench”). Post-graduating studies and gaining PhD (doctorate in Law) is surely possible, however, not inevitable for opening an office or starting a carrier. On the contrary, a doctorate in law is essential for academic teaching or being a senior consultant. After one getting the first degree in law (BL), in the US further education may be continued with the Master’s degree in law (LLM) 8 which is the professional JD degree meant for those who wish to practice law (or work within the legal field) in the US. Therefore, JD programs primarily focus on American law. The LLM degree is generally meant for already-qualified lawyers who wish to undertake further study in a particular area of the field of law. Please note that to practice law in the US, you must first pass the bar exam and have legal right to work in the US. It is very notable here that concerning many fields of education in the US (including teacher’s trainings as well), getting you degree is just one thing, however, in order to start a career one needs the authorization (licensure) to start work.

The Hungarian legal education merely depends on custom law. 9 Therefore, it is a privileged systems. The lawyers in Hungary study for five years at a university, and they obtain a university doctorate at the time of graduation. This doctorate is not equivalent to PhD level, it is an honored- like doctorate. If they want to work as attorneys they need to learn for three extra years and pass a special qualifying exam. The following chart should intend to show the differences.

8 Degrees awarded at the doctoral level are the Doctor of Juridical Science (SJD or JSD) and the Doctor of Comparative Law Studies (DCL). These are the most advanced degrees in law and generally intended for those who would intend to teach at universities. Most law schools also offer the option of joint degrees in various disciplines. The most common degrees are a JD/MBA or a JD/MA or JD/MSc in fields such as economics, international relations, public policy or political science.

9 Ius conquassatum, law of habits, customs law (see. Roman law)

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Table 1. Secular Law education in the US and Hungary

Table 2. Canonical Law education (universal, both in the USA and Hungary) 10

Please note there is a joint degree possible here, so with an extra 2-3 years of learning Secular Law, one can obtain both legal qualifications such as civil lawyer and church lawyer (doctor utrisque iuris).

10 Please note that the Canonical Law studies are always Postgraduate studies, so first you need a degree in Theology or Secular Law, then you can start these studies

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The education of church is also different, however, it is rather standardized. As the church itself is unique, the church education is similar in all countries of the world. However, since the bilateral nature of church law, the education must be adjusted to the legal education of the exact country. Therefore, church law (canon law) education is possible only at those universities where secular law is also taught. In church law the students can obtain three different degrees (MA/Baccaluarate = university degree, Licentiate = minor doctorate level degree, Doctorate = PhD level). All three could be granted, however, in order to work as an advocate in front of church courts, the candidate must possess at least the second level. Studying church law in Hungary has been possible since 1998 at Pazmany University. The course is ratified and authorized by the Hungarian State.

VI. Legal careers

Both the American and Hungarian systems have advantages and disadvantages. As for one being respected, it seems to be a good thing getting a doctorate after the first graduation. However, in many countries such as in the USA no one would care about it. Building up one’s own career, a BL degree would easily do if you pass special qualifying examinations and join the bar or bench. Therefore, making up a career one has to study the maximum of 5 years (sometimes fewer) and one is ready to start. It is impossible in Hungary. Either being a doctor or not, starting an own career is impossible after 5 years of studies, thus one must learn (and practice under the supervision of an attorney) for extra 3 years and pass a very hard qualifying exam.

We have summed these things up in the chart below.

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Table 3. Legal careers (advantages and disadvantages)

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VII. Summary

Let us not decide on which one we would choose. The writers of this short essay have a kind of experience in both legal systems, including church law as well. What we have to note is that one is supposed to work very hard to start a real career in both countries. Perhaps the situation seems to be easier in the States, however, competition is a very tough phenomenon underlying the fact that lawyers have to be very well prepared everywhere in the world.

Although we lacked the opportunity to draw up everything (it would have devoured a whole book), our readers might have gotten a hint of view on legal differences. The key differences hang upon education system and the nature of common law. However, the most important thing which all legal system should keep in mind is legal security. We do think it is not abridged or abused in any democratic states. Being a lawyer either in Hungary or in the United States, one must always keep these things in mind: serve the good, the hope and wish for moral and better quality of life. Well, you see, to keep this is the hardest thing ever, is it not?

Thank you for your attention.

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  Bibliography  

  Books and articles  

  Corpus Iuris Canonici and Corpus Iuris Civilis (see www en wikipedia org wiki Corpus Iuris Canonici)  

  CURZON L B Dictionary of Law Longman London  2002

  ERDÖ P Az egyházjog forrásai SZIT Budapest  1998

  ERWITT America At Home: A Close-up Look At How We Live RPBP New York  2008

  GÖNCI-HORVÁTH-STIPTA-RÉVÉSZ-ZLINSZKY (eds ) Egyetemes jogtörténet Nemzeti  

  Tankönyvkiadó Budapest  1997

  PARROT D Your Church and the Law CP Norwich  2008

  POPE GREGORY IX Ad expediandos 9 th September 1253 (fontes essendi)  

  TALABÉR J Jogi Ismeretek 1 (jegyzet az OKJ képzésben résztvevő szociális asszisztens  

  hallgatóknak) SOTER-LINE Budapest  2003

  Web sites  

1.  http: www michlaw com salary02charts cfm years (04 11 2009)  

2.  http: en wikipedia org wiki Corpus Iuris Canonici (05 02 2009)  

3.  http: www w3education org education legal asp (05 08 2009)  

4.  http: www lifeintheusa com government legaleduc htm (05 10 2009)