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The Jersey Law Review - February 2004
SHORTER ARTICLES AND NOTES
CITATION FROM OTHER LEGAL SYSTEMS
Richard Southwell QC
1 After nearly ten years as a judge of the Courts of Appeal of Jersey and Guernsey, I remain fascinated by the interplay between the different sources of law, especially Norman law, French law and English law, on which HM Solicitor General for Jersey, Stéphanie Nicolle QC, has written so well in her “The Origin and Development of Jersey Law”, an essential guide for judges and practitioners.
2 Norman law owed and French law owes a large debt to Roman law as transmitted and transmuted over the centuries. In Snell v Beadle, before the Judicial Committee of the Privy Council, in the majority judgment delivered by Lord Hope much emphasis was placed on Roman law in interpreting the Jersey customary law doctrine of déception d’outre moitié. Lord Hope stated in para 21 that -
“It will be helpful also to examine the Roman law, as the origins of the [Jersey] customary law rule lie in the Roman law.”
3 In their judgment the majority examined the Roman law rule as stated in the Codes of Justinian’s time: see paras 22, 30-32 and 49. They relied particularly on Roman law in seeking to limit the Jersey law doctrine to contracts for the sale of land, and in holding that it does not apply to the grant or constitution of servitudes, such as a right of way: see paras 49 and 55.
4 This strong reliance by the majority in the Privy Council on Roman law as a direct guide to the interpretation of Jersey customary law is something of a new departure. It might be said to be contrary to the unanimous view of the Judicial Committee in the appeal from Guernsey in Vaudin v Hamon in the judgment delivered by Lord Wilberforce, of which I quote only the first sentence -
“While it might be true, in a very general sense, that there is some basic similarity between Roman law, at various periods, the various customary laws applicable in different parts of France, the Civil Napoleonic Code, the law applicable in Jersey and that which governs in Guernsey, this similarity is of a too general and approximate character to be of much assistance in a particular case: it covers, quite clearly, large differences in matters not only of detail but of principle.”
5 Lord Wilberforce went on to refer, in connection with that case, to differences and developments within a single one of these systems of law, giving as an example the extensive developments and changes in the Roman law of prescription over the course of many years.
6 In Foster v Attorney General Le Quesne JA, delivering the judgment of the Court in a criminal appeal, drew attention to this passage in Vaudin v Hamon when rejecting reliance on Roman law, and also South African, Scots and Canadian law as guides to the law of fraud in Jersey.
7 My purpose in drawing this development to the attention of practitioners and others is two-fold: (1) to emphasise that it is a new development which seems not wholly consistent with Lord Wilberforce’s wise observations in Vaudin v Hamon; and (2) to express some concern about the additional burden of research which, it seems, now falls on practitioners’ shoulders.
8 In Beadle v Snell before the Court of Appeal there was no citation of Roman law. In Vaudin v Hamon there had been extensive citation of Roman law in the Guernsey Court of Appeal and before the Privy Council, and it was this citation which the Privy Council through Lord Wilberforce was gently deprecating. Now it seems that in every case involving Jersey customary law it will be necessary to carry out full research into Roman law doctrines: see e.g. Haas v Duquemin per Hodge JA. My concern is that this should not place on the shoulders of practitioners a burden similar to that placed on lawyers in England and Wales by the extension of the ability to refer to the Hansard record of debates in Parliament by the House of Lords in Pepper v Hart, a development which has added a further element to the costs of litigation.
9 It should not be thought that Roman law was a monolithic system to which reference can readily be made via a student’s book such as Buckland’s and Thomas’s textbooks of Roman law. As Lord Wilberforce pointed out in Vaudin v Hamon Roman legal doctrines developed and changed over several centuries so that one may well not be able to say that there was ever one single unchanging principle of Roman law; in reality there was a shifting kaleidoscope. Further, any student of Roman law knows that in, for example, the main Code of Justinian there are many contradictory and many uncertain statements of legal principle about which scholars have argued ever since.
10 To Roman law should also be added Scots law (see Snell v Beadle and Haas v Duquemin) and South African law (Haas v Duquemin also at para 36). These references to Scots and South African laws are somewhat surprising, in view of what was said in Foster, as well as by the Privy Council in Vaudin v Hamon and also La Cloche v La Cloche. I have the greatest sympathy with an advocate preparing to argue a case or an appeal on Jersey customary law who may now have to research dutifully in Roman, Scots and South African law, probably without the benefit of having ever studied any of these systems of law, and without knowing what is the best and most accurate authority in any of those systems on the analogous question in issue. This problem was strongly emphasised by Sir Godfray Le Quesne JA in Foster. As he said there, to seek to discover what the analogous doctrines are in Scots or South African law without any proper understanding of the weight of authority in those jurisdictions “is a perilous manner of proceeding”. I add: “and an expensive one”.
11 It seems to me that there is a real need for consensus on, and perhaps brief codification of, the limits to which citation of other systems of law can be carried. Otherwise the expensive burdens on advocates, and hence on their clients, may be excessive, and the uncertainties in Jersey law too great.
Richard Southwell QC has been a judge of the Courts of Appeal of Jersey and Guernsey since 1993.
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