"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
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
The Channel Islands' problem was that being separated from Normandy after 1204, the law in the Islands remained in a limbo. Although Normandy Law continued to evolve for those in that territory under clear allegiance to the French Duke of Normandy and the French King it could hardly be followed, as it evolved, in the Channel Islands which claimed allegiance to the English version of the Duke and the English King.
ReplyDeleteEver since, the law of the Channel Islands has been uncertain. Of course that is great for people who want to earn a living smuggling or as havens for all sorts of other dubious activities but it is a doomed way to run a business in a world of international regulation and supervision.
And don't you just love the way that the JEP likes to pretend that we (ie in Jersey) have some sort of sacred and immune relationship with the "Crown" (as in Crown Dependency rather than UK Dependency) as though the peoples of the UK have not changed the relationship with the "Monarch" or "Duke" over the past 1,000 years! Not just changed it for them - but changed it for the Channel Islands too.
There really is nothing quite so reforming as chopping off the King's head...
Customary/common law offences.
ReplyDeleteIs how they are classified. They are used interchangeably (switched) able to be changed with each other, without making any difference or in the hope no one notices or we are to believe it is of little significance whether described as common law of the Island/land in given cases.
Well I have been reading some essays and lectures from the nineteenth century and I would suggest that there is a difference and that in fact you are being prosecuted under 'customary law' and not 'common law'
ReplyDeleteAs it says common law is part of customary law, but there is more to customary law than just the common law.
For customary law to apply you would have to be a member of the regional society (in Roman times anyway).
It's something to ask a judge to rule on...
Jersey does not have a "common law" in its true form because the Island is too small - there is no other territory to be "common" with.
ReplyDeleteEngland (and Normandy) had "common laws" that were similar in different parts of the country but there were still some different local laws in places. "Common" should not be taken to mean universal.
It was therefore possible to have "customary" laws that were/are not "common" and vice-versa.
One of the difficulties is to determine when a "customary" law has changed through usuage - who decides? Precedent is all very well but who can make the first contrary judgement?
In the Channel Islands, legal clarity was never a strong point! Make it up as you go along being the standard for many years but "certainty" is now creeping into the system and who knows - there many even be law text books and modern commentaries one day!
The law has always been the law, it just was not necessarily discovered until the judgement was made. The process of law formation is one of discovery, not decision. Until the situation arises no one knows what the law is which is why each situation must differentiate itself from a previous judgement in order to avoid the precedent (at least until legislatures started needing something to do with their time).
ReplyDeleteAs a member of a nation of one who has exercised his right to self-determination following a series of human rights abuses, I have only two laws given to me by Jesus; love thy God above all else and love thy neighbour as thyself.
ReplyDeleteThat is the limit of the Common Law as far as I am concerned, everything else is just custom.
I am willing to accept the legal fiction that I am a member of any other society if they wish to judge me under the Common law between my nation and theirs but I cannot be bound by the customs of a foreign nation.