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Jersey & Guernsey Law Review – February 2007
BOOK REVIEW
HALPÉRIN’S LE CODE CIVIL, 2ND edition 2003, translated into English by TONY WEIR, and published as THE FRENCH CIVIL CODE, by UCL PRESS, 2006
1 This translation into English by Tony Weir, of Trinity College Cambridge, of the second edition of Jean-Louis Halpérin’s little work on the French Civil Code was published in time for the 200th anniversary of the Civil Code, which occurred in 2004. It is sometimes said that the measure of the quality of a translation is that it should read as if it was originally written in the target language. However, this is a dangerous test, as often the stylistic integrity in the target language is only achieved by re-writing the original text, altering nuances and emphasis, if not also actual ideas. But Tony Weir’s translation is so clever that it achieves the former whilst avoiding the latter.
2 The original author, now a Professor of Law at L’Ecole Normale Supérieure in Paris, came to prominence in 1992 with the publication of L’Impossible Code Civil, a well-received and detailed history of the genesis and drafting of the Code. This present work is shorter, and less controversial, but still rich and valuable in content. It is divided into 6 chapters, with the following titles: 1. The Genesis of the Code Civil (history and drafting of the Code); 2. Law for Fathers (civil status and family law and economics); 3. Law for Property Owners (the new property concept and its uses); 4. Interpretation of the Code 1804-1904 (criticisms and defences of the Code); 5. The View of Historians (the genealogy, ideology and sociology of the Code); 6. The Code at Home and Abroad (historical change in France, and exportation of the Code to other countries). The text in English runs to some 95 pages.
3 In addition there are no fewer than six short appendices, none of which appears in the French original. Five have been written specially for this book by Tony Weir to assist the Anglo-Saxon reader, dealing respectively with (i) the various legislative bodies during the revolutionary and imperial periods, (ii) political groupings in the revolutionary period, (iii) the revolutionary calendar, (iv) the concept of état civil, and (v) the strange entails known as majorats. The sixth is an extract from HAL Fisher’s History of Europe, giving an English historian’s view of Napoleon and the Civil Code. There is also a helpful index.
4 The importance of this work for the readers of the Jersey & Guernsey Law Review can hardly be over-estimated. It is true that the French Civil Code is not in any way, shape or form the law of either of the Bailiwicks of the Channel Islands, but it does represent a revolutionary distillation of French civilian thinking at the end of the 18th century. The origins of that civilian thinking lay back in medieval French lawyers’ understanding of Roman law. But that is also the source for much of the Channel Islands’ old law, albeit mixed with Scandinavian customary law brought by the Normans and before them the Vikings. Many shared values and ideas are still to be found in the Civil Code. These include, for example, forced heirship, cause in contract law, the absolutist nature of property rights, and so on. It is in itself valuable to understand what the French have done, and why they did it. Differences are as important as similarities, so as to avoid what is otherwise dangerously tempting, namely a blind application of French law in the hope that it will fit Jersey and Guernsey. The chapters on family and property law are particularly valuable in this regard.
5 Every Jersey and Guernsey lawyer should read this book, as indeed should every intending Jersey and Guernsey lawyer. And if the judges read it too, as they surely will, no longer will lazy advocates faced with a novel situation be able to get away with a quick glance at the Code Civil and the suggestion to the court that there lies the solution for Jersey or Guernsey law. At the very least, they will receive the sharp inquiry: “Well, Mr/Ms Snooks, what does M Halpérin say about that, then?”
Paul Matthews is a consultant with the firm of Withers LLP, 16, Old Bailey, London, EC4M 7EG, and is a Visiting Professor at King’s College, London.
A GUIDE TO GUERNSEY’S TRUST LAW by St John Robilliard (CD-ROM)
1 This is a first for the Review, a book review which is not about a book.
2 Guernsey suffers in some respects by comparison with Jersey in legal matters. So far (and despite promises) there is no equivalent website in Guernsey to the Jersey Legal Information Board website, there are no regular law reports published, there are only a few books published in recent times on Guernsey law (though a more than honourable mention must be made of Gordon Dawes’ modern classic work), and the only regular source of legal information, the Guernsey Law Journal, although very useful in its way, is unfortunately rather in arrears. This Review has, no doubt in a small way, begun to make some difference. All the more reason, therefore, to greet Advocate St John Robilliard’s new work on Guernsey Trust Law with enthusiasm. Unlike other works on legal subjects, it is not published in paper form. Instead it is published only as a CD-ROM, which can be read as it is, or downloaded to the hard-drive of a computer. (It is not one of those annoying CD-ROM works which can only be read when the CD is actually in the disk drive.)
3 Apart from a foreword, it contains a text on the trust law, a selection of reports of Guernsey trust cases, a selection of legislation both primary and secondary from Guernsey and also copies of relevant regulatory codes. This brings together therefore a significant amount of important relevant information on the subject of trust law in the Bailiwick of Guernsey.
4 As for the format of publication, there is no doubt as to the “killer application” for CD-ROM: this is the ease of searching for particular words or phrases. Conversely, of course, until computer hardware becomes much more portable, the difficulty is to be able to use the information in as simple and easy way as a book may be used. The portability of the information is more restricted, although this matters little in the office. It does however create problems where it is sought to take the information to meetings or even to court. But a pioneering work of this kind is certain to have some advantages and some disadvantages compared with existing methods of publication.
5 More serious is the style with which the material is set out in the CD-ROM display screens. Every single screen is framed by a banner slogan at the top of the screen advertising the author’s law firm and at the bottom a panel giving the address and other contact details of that firm. No doubt the author and his firm wish to make readers aware of how and how easily they can be contacted (and no one will grudge then this in principle), but the way in which this has been done is not merely repetitive, but also heavy handed, and after a while, rather oppressive. It gives, rather unfortunately, a negative rather than positive image, one of insecurity. It is the kind of behaviour one would find acceptable in a “free” newspaper (where the “price” is actually your time spent reading the text and the advertisements), but it is not acceptable in a serious legal practitioner work for which you have paid. One wonders what the author would think if all the text books on the shelf in his office had banner advertising on every page from the law firms concerned.
6 The textual part of the CD-ROM comprises a commentary on the Guernsey law of trusts. It is perhaps too short to describe as a treatise, and skims over some matters which perhaps might have benefited from a more in-depth analysis. Nevertheless, it covers most of the matters which the enquiring foreign lawyer would wish to be informed about. After certain introductory matters (including history and basic ideas about trusts in Guernsey) there are sections on constituting trusts, trustees’ powers and duties, beneficiaries, trust investments, problems encountered in running trusts, going to court and “putting things right”. The Guernsey cases that are relevant are all referred to, and a great many Jersey, English and other cases too, where these are relevant. Some of the propositions put forward are perhaps, at first sight, rather surprising to a mere English lawyer, but that is inevitable, given the differences that undoubtedly exist between Guernsey trust law and English trust law.
7 There is no commentary or discussion supplementing the texts of legislation enclosed with the CD-ROM, but that is hardly surprising, and not particularly necessary. However, it would have been useful if there could have been footnote cross references from the text of the legislation and regulatory codes to the appropriate places in the commentary where those legislative provisions are dealt with, and even hyperlinks, using another of the “killer applications” of the computer format. These would have improved the usefulness of the work considerably. No explanation is given as to why this was not done. Perhaps it was not thought of (although there are hyperlinks the other way, from the text to the legislation or to the cases, albeit rather clumsily from HTML to PDF format).
8 The section of the work dealing with cases is probably the most useful, because, given the lack of a proper series of Guernsey law reports hitherto, the vast majority of the cases set out in the CD-ROM are unreported elsewhere. In each case the headnote has been prepared by members of the author’s firm. Some of these head notes are rather lengthy, and do not always restrict themselves to the matters which are really important in the context of the case, but the important thing is that the text of the judgment is given in integral form, together with the orders of the court made in respect of the particular application or decision. Thus readers can form their own view as to what a given case stands for.
9 It would perhaps also have been useful to have a conventional index, as well as the ability to search the CD-ROM by key words, because the contents of the entire CD are not (so far as this reviewer is able to judge) listed anywhere, and if one wants to find the discussion, let us say, of the ability of the court to set aside a trustee decision because of a vitiating factor, there are simply too many key words that might be used, and too many “hits” that might be obtained by so doing. A conventional index would tell the reader to look in such and such a part of the CD-ROM (whether it be the commentary, the cases, or the legislative texts, or indeed all three).
10 Overall the impression is of an innovative work, an important and worthwhile addition to the range of resources on Guernsey law. It is a nice product; it is a (partial) shame about the package.
Paul Matthews is a consultant with the firm of Withers LLP, 16, Old Bailey, London, EC4M 7EG, and is a Visiting Professor at King’s College, London.
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