| Return to Contents Foreword The emergence of this Review calls for an explanation. The objects of the association which publishes the Jersey Law Review, as set out in the constitution, are "the development of the law of Jersey and the encouragement of interest therein". As every Channel Islander knows, the crucial date in the Islands’ constitutional history is not 1066 but 1204. It is back to June 1204, when the English forces surrendered at Rouen and the Duchy of Normandy was lost to the English Crown, that the peculiar constitutional status of the Channel Islands can be traced. In that year the Channel Islands, at that time part of the Duchy of Normandy, were severed from their continental connection. Yet the Islanders spoke the same language, used the same money, and shared the same culture as the Normans. King John, no doubt seeking to minimise the traumatic effects of that severance and to preserve the loyalty of the Islanders towards their King/Duke, established a separate administration for the Islands and decreed that they should continue to be governed by their own laws and customs, essentially the customary law of Normandy. He appointed a Warden (later to be known as the Governor) who in turn appointed a Bailiff for Jersey and a Bailiff for Guernsey. He decreed that the Islanders were each to elect 12 sworn coroners (duodecim coronatores juratos) to keep the pleas. Whether King John adapted existing insular institutions or created these benches of Jurats to meet the exigencies of the situation is still unclear. What is certain however is that in both Jersey and Guernsey the Bailiff and the Jurats formed a court from which there emerged in the 13th century the Royal Court of Jersey and the Royal Court of Guernsey applying the customary laws in their respective bailiwicks. Although the Warden was granted the lordship of all the Channel Islands, the bailiwicks of Jersey and Guernsey were administered separately from an early stage. Although sharing a common root, the legal systems of the two jurisdictions have developed separately over the centuries. In Jersey the Royal Court was at first not merely a law-enforcing body but also a law-making body. By the end of the 15th century the process whereby the Royal Court consulted with the rectors and connétables of the 12 parishes before proposing any change in the law, had formalized and a legislative assembly, the States of Jersey, had emerged. Today the States of Jersey fulfil, within the limits of the Island’s constitutional status, all the functions of a modern democratic parliament. The judicial system has also developed. The Royal Court retains its jurisdiction to hear all causes, civil and criminal, (trials for treason excepted), arising within the Island. Appeal lies to the Jersey Court of Appeal and thence to the Judicial Committee of the Privy Council. Jersey is in many ways a microcosm of the nation state. But the size of the Island has limited its capacity to develop its corpus juris to meet the demands of a thriving economy. The number of cases coming before the Royal Court for decision is too small to build up a comprehensive body of case-law. Le Geyt and Poingdestre wrote extensively on the customary law of Jersey towards the end of the 17th century, but few legal works of reference have been written since. The result has been a tendency in recent years to refer to English text books as if they represented the law of Jersey. Jersey law is being swamped by an alien jurisprudence. The Jersey Judicial and Legal Services Review Committee recommended in its final Report published in 1991 that resources be found to prepare a fully comprehensive statement or encyclopaedia of Jersey law. This recommendation has not thus far been implemented. The preservation and modernisation of Jersey law is however a task which is worth the effort. Jersey’s legal system is part of its cultural heritage. Without a separate legal system the Island’s cherished quasi-autonomous status would not have emerged. Few would wish to turn back the clock and to rely upon ancient legal doctrines relevant only to a primitive agricultural economy which has disappeared. But it is possible to modify the customary law to reflect the needs of contemporary society. A note in this issue of the Review exemplifies how the Court of Appeal in Guernsey has adapted the law on occupier’s liability. In small jurisdictions such as Jersey and Guernsey a journal such as this Review can play an especially important rôle in the modernisation of the law both by disseminating knowledge and by stimulating discussion. One section of the Review will contain a summary of recent cases which are thought to be of interest. Readers will of course have to consult the Jersey Law Reports for the full texts of reported cases. The purpose of the case summaries is to alert members of the profession to important recent decisions and to act as a form of index to the unreported judgments. As will be evident from the above remarks, the Island’s constitutional relationship with the United Kingdom has developed over the centuries. Jersey is not a colony nor an independent state. It is a dependency of the Crown enjoying, for practical purposes, autonomy in respect of its internal affairs, while the United Kingdom remains responsible for its defence and international relations. One of the perennial problems arising from that constitutional relationship has been the determination of the extent to which a treaty or international agreement between the United Kingdom and some other state is binding upon Jersey. The traditional view was that such treaties are generally binding. That view is no lonld. A useful memorandum prepared by the legal advisers in the Foreign and Commonwealth Office was published recently by the States [1] . The Insular Authorities are now regularly consulted as to whether a particular treaty or international agreement should be extended to the Island. A section of the Review sets out a list of such matters currently under consideration. The relationship with the European Union is also one which is of some interest and complexity. Jersey is, in the words of Article 227(4) of the EEC Treaty, one of the "European Territories for whose external relations a member State is responsible". The legal instrument which sets out the relationship is Protocol 3 to the 1972 Treaty of Accession of the United Kingdom and other States to the EEC. The protocol contains but five articles and is brief and succinct. Its brevity does not avoid numerous difficulties of interpretation which have indeed multiplied since the Single European Act and, to an extent, the Maastricht Treaty. Jersey’s relationship with Europe and the extent to which European legislation applies to the Island are of practical importance in many areas of commerce. The Review will therefore include articles and notes touching on aspects of the European dimension which are thought to be of general interest. The Review will also include a summary of legislation adopted by the States and of noteworthy subordinate legislation enacted by States’ committees during the preceding four month period. Primary legislation adopted by the States will not of course come into force until it has been sanctioned by the Privy Council and registered by the Royal Court; indeed, if there is an Appointed Day Act provision, the law will not come into force until such an Act is made. Those different stages will be noted. The explanation of the content of primary legislation will however be found at the stage of adoption by the States. Letters to the Editor are encouraged and a selection will be published in each Review. It is hoped that debate on issues of current interest might be stimulated through the correspondence columns. The Editorial Board expresses its appreciation to the distinguished correspondents who have expressed their confidence in this venture by commending the Review to readers in this issue. Book reviews may also be published in order to draw attention to any publication of relevance to Jersey law. We conclude with a word about language. The Bailiwick remains, in theory at least, a bilingual jurisdiction. Both English and French are the official languages of the Island. The reality on the ground is that Jersey is now primarily an anglophone society, and that reality is reflected in this Review. Jersey law must be developed in a language which is understood by the majority of the Island’s inhabitants. In the practice of law, however, a good working knowledge of the French language remains of the first importance. All the authorities on Norman customary law are written in French. The statute law and most of the judgments and records of the Royal Court prior to 1945 are written in French. The only comprehensive works on the customary law of Jersey, namely the works of Poingdestre and Le Geyt to which we have referred above, are written in French. Le Gros’ Droit Coutumier de Jersey, published in 1943, is also written in French. No student of Jersey law can hope to master the subject without a good understanding of the French language. The average reader of this Review will be assumed to have that understanding. In general, therefore, French words and phrases, and extracts from legislative, judicial and other written authority, will not be translated. The occasional article or note will appear in French. The Editorial Board expresses the hope that the Jersey Law Review will stimulate its readers and, more importantly, will help to develop Jersey law to serve the changing needs of this small community. It will then have played its part, if we may respectfully adopt the words of the Jersey Judicial and Legal Services Review Committee, in ensuring "the continuance of Jersey’s legal heritage not as a mere memorial but as force". [2] The Editor |