Voluntary jurisdiction


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VOLUNTARY JURISDICTION. In the ecclesiastical law, jurisdiction is either contentious jurisdiction, (q.v.) or voluntary jurisdiction. By the latter term is understood that kind of jurisdiction which requires no judicial proceedings, as, the granting letters of administration and receiving the probate of wills.

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As this brief summary reveals, matters within iurisdictio voluntaria arose not from a concrete dispute of law or fact among the parties, but from the desire of those parties to secure a conclusive legal recognition of their status or to obtain formal approval of "certain legal acts or transactions." (272) Indeed, many of the invocations of voluntary jurisdiction described above were similar to petitions for naturalization in federal courts in that the law provided a procedure by which parties could alter their legal status through ex parte applications for judicial action.
According to Fernandez de Bujan, voluntary jurisdiction in Roman law occupied an "autonomous" zone on the border between the judicial and administrative powers and, as a result, has posed challenges for historians attempting to classify or describe its precise nature.
(280) Thomas Wood's influential eighteenth-century treatise A New Institute of the Imperial or Civil Law, for example, divides "causes" into "Jurisdictio Contentiosa, or Judicial, which is exercised upon Persons whether they consent to it or not," and "Voluntaria, which may be used at all times without any manner of contradiction; as Emancipation, Adoption, Manumission; and in several other legal Acts granted by the Judge upon request, and by consent of all Parties." (281) Voluntary jurisdiction also appeared in Scotland, and the distinction between contentious and non-contentious jurisdiction was described in the late eighteenth century by Sir John Erskine, author of a treatise that was well-known in Britain and in America.

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