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Jersey & Guernsey Law Review – February 2007

FOREWORD

1       When this Review was founded in 1997, the Editorial Board expressed the hope that it would stimulate its readers to think about and to develop the law of Jersey in order to serve the changing needs of the community. The aspiration was, adopting the words of Sir Godfray Le Quesne’s Jersey Judicial and Legal Services Review Committee, to ensure “the continuance of Jersey’s legal heritage not as a mere memorial but as a living force”.[1] We hope that the last ten years have seen some modest progress towards the fulfilment of that aim. This Review, together with the Jersey Law Commission and the Jersey Legal Information Board, have collectively published more material on the law of Jersey during this time than has been published during the preceding century or more.   Putting to one side the sweeping away of “French” customary law by the Code Civil in 1804 one has to return to the period leading up to the adoption of the Coutume reformée in 1583 to find an equivalent effort to modernize the law, and that effort took place not in Jersey but in continental Normandy in the context of the reformation of the 13^th century Grand Coutumier itself.

2       Notwithstanding this progress, such is the pace of change that the law of Jersey continues to be threatened by the tide of English law which washes up our beaches with increasing determination. In the field of financial services many statutes based upon their English equivalents have been enacted during the last decade. This is undeniably sensible. Our financial services industry is closely linked to the City of London. Furthermore the decision to follow English law in the commercial field was taken many years ago and led, for example, to the passing of the Loi (1861) sur les sociétés à responsabilité limitée, which was based upon the Joint Stock Companies Act 1856. The 1861 Companies’ Law has been followed by many others where the inspiration has been the law of England. The danger is, however, that such commercial statutes become Trojan horses in which the instruments of destruction of Jersey’s customary law can be hidden. It is not that English law is necessarily a Bad Thing. The problem is that the adoption of English legal principles in the context of commercial statutes sometimes grates uncomfortably with that part of the corpus juris based upon the customary and civil law. Some efforts have been made to accommodate the rules of customary law. The Companies (Jersey) Law 1991 imports the concept of cause in place of consideration. The Limited Liability Partnerships (Jersey) Law 1994 and the Limited Partnerships (Jersey) Law 2004 preserve the rules of customary law so far as they are consistent with the express provisions of the statutes. Harmony is not entirely lost, even if the statutory composition sometimes has a distinctly late 20^th century atonal character.  The experience of Guernsey law is very similar.

3       Much more needs to be done, however, to develop the indigenous law. The Channel Islands are now significant players on the offshore stage. Their legal systems need to reflect the maturity of the financial services industry. They need sufficient substance to offer clear answers to simple questions in all areas of law. It is no longer acceptable that “important parts of the law still reside in the breasts of the judges and legal practitioners of the Island”.[2]  That does not mean, however, replicating as quickly as possible a mass of English regulation irrespective of its effect upon the body of domestic law. That would lead to confusion and uncertainty as lawyers try to reconcile conflicting principles. Uncertainty is commercially unsatisfactory, and expensive. The corpus juris, or more properly, the corpora juris of the Islands need therefore amplification and, to that end, study and discussion. Textbooks are an essential tool. Again, progress has been made. Dawes’s monumental Laws of Guernsey[3]has laid the foundation for further publications in that bailiwick. In Jersey, efforts have been directed at discrete areas of law. Nicolle’s The origin and development of Jersey law[4] creates the essential framework for study by analysing the sources of law, and the shifting sands of judicial inspiration. Matthews and Sowden have written on trusts,[5] Matthews and Nicolle on the law of property,[6] and Wilkins and Dessain on the law of insolvency.[7] The authors of the last of that trio dedicate the book to “the acquisition and dissemination of legal knowledge.” Exactly right. Yet there are still large areas of law crying out for explanation and orderly presentation.

4       The Channel Islands need an institute or college of law, or perhaps more than one.[8] Legal education is too important to be left to the vagaries of chance. In Guernsey, students do at least have the opportunity of studying Norman customary law at the university of Caen, even if the teaching of other parts of the law is lacking. In Jersey, they have only a collection of notes, although there is no officially approved set, and each firm jealously guards the copyright of its own. Students deserve better. They deserve a properly structured framework of tuition leading to the examinations. Other offshore centres and small nations have done so. In the Cayman Islands there is a law school. In the Caribbean there is the University of the West Indies with law faculties in several small jurisdictions. Malta and Iceland have their own universities where law is taught.

5       Institutes and colleges of law are of course not just for teaching students. Research and academic writing are essential parts of the functions of institutes of legal learning. As Professor Gretton wrote in the last issue of this Review - “If a system of substantive law is to survive it needs many things. One is education. … A system of law needs a literature, and a literature needs writers and readers. In a small population both must be few, and the absence of an academic environment makes things more difficult, for the one thing academics will do is write …”.[9] We agree, and look forward to the day when the Islands will have their institute of law.

6       It is of course true that Jersey does have a small population (approximately 90,000); and so does Guernsey (approximately 65,000). But together the Channel Islands have a little more mass. They may still be small, but they are not significantly smaller than Iceland, Malta, or even Luxembourg. They are much bigger than the European sovereign microstates of Liechtenstein, Andorra and Monaco. Indeed in terms of economic performance, and GNI, only Luxembourg performs better than the Channel Islands. In speaking of the economy we digress, but only a little. The success of the economic performance of the Channel Islands is due in no small part to the existence of a body of competent lawyers and of stable judicial systems where commercial disputes can be fairly resolved.

7       In terms both of the economy and of jurisprudence we are convinced that the Channel Islands are stronger by working together rather than by labouring separately. For some years this Review has sought to include articles and legal information from and about Guernsey.[10] This has not been with a view to creating a legal or jurisprudential hegemony for Jersey! On the contrary we are persuaded that each bailiwick has things to learn from the other. Each bailiwick does some things better than the other. By pooling our resources and energies we reduce the difficulties faced by all small jurisdictions in maintaining an independent but competent system of law. We think that the time has come to formalize the desire of the Editorial Board to develop the law of both Channel Islands. We have therefore changed the title of this periodical to the Jersey and Guernsey Law Review[11] and welcome warmly HM Procureur for Guernsey to our editorial board.

8       The Review will in future try more consciously to be comparatist in nature.  We encourage our contributors, even if they are qualified or expert in the law of one jurisdiction but not the other, to try to ascertain on a comparative basis how the issues under examination are treated in the other bailiwick. The Channel Islands have a common jurisprudential root in the customary law of Normandy. The green shoots from that common root have surfaced in different places, and grown in different ways, it is true. The law of Jersey is not always the same as the law of Guernsey. Nonetheless there is more that unites the jurisprudence of the bailiwicks than divides them. There are separate courts of appeal but essentially the same judges sit in both.  We hope that the Review will help to preserve and promote the legal heritage of both jurisdictions whilst also bringing the laws of Jersey and Guernsey closer together.

The Editor

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