Google+ Followers

Sunday, 2 December 2012

Common Law is not the same thing as Customary Law

"All nations who are ruled by laws and customs are governed partly by their own particular laws and partly by those laws which are common to all mankind." Emperor Justinian

COMMON LAW - This was used in Roman Times to denote the laws which were common between the City of Rome and the various regions of Italy. It was also used by Alfred the Great to denote a 'Common Law' of England which was based upon the ten commandments which would stand above the local customs and baronial courts. In a very real sense then the Common Law is superior to the regional and subordinate laws of 'the Island of Jersey and its Dependencies' having been adopted into Jersey as part of the apocryphal 'Constitutions of King John' which, whilst the basis of Jersey law, were never actually written nor given to Jersey by the King but borrowed from Magna Carta.

CUSTOMARY LAW - This is different to Common Law in that it represents the customs of a particular region, it should include, but it is not limited to, Common Law. Jersey uses a number of customary laws (or did or bases current laws upon) Norman Law which are not part of the Common Law.

The Jersey Courts will refer to customary law, they will never refer to common law.

LEGAL FICTION - (Latin fictiones) Certain Roman proceedings were conducted under various fictions, such as that the parties were citizens of Rome rather than foreigners in order to give jurisdiction to the Court. So by saying I do not wish to be recognised as a citizen of Rome, but as a foreigner, you are saying that this Court does not have jurisdiction.

CIVIL LAWS - These are the laws which are particular to a nation (or body of people). The City of Rome had its own law as did each of the various states of the Italian peninsula at this time. In order for the Laws of Rome to apply to non-Romans, the Court acted often under the fiction that the party was a Citizen. England did not have a 'legislature' for several centuries after Alfred the Great. Though it would later come back to defining a 'civil code' of laws instead it used what is known as Maritime Law. The majority of non-English based legal system use a civil code.

MARITIME LAW - As opposed to the Common Law which can only be applied to those things possessed of life, an animus (or spirit) whether human or animal, the maritime law has within it a form of 'limited liability' in that the most which can be confiscated in damages is the ship and its cargo. This was on the basis that of all things inanimate a ship was the most life-like. For example if a cart pulled by an ox ran someone down then the owner of the cart could be compelled to surrender the ox (which is possessed of life), but not the cart (which is lifeless and therefore cannot be held to be at fault), under common law. Damages for those lost at sea were limited to the confiscation of a ship and its cargo. It is Maritime Law which is the basis for such things as 'Company Law' or any form of limited liabilty, all Statutory Law (as it deals with an organisation, the States of Jersey, rather than the individuals who comprise the States of Jersey) is also derived from Maritime Law. Finally all international law is likewise based upon maritime law