The island of custom in face of a mixed legal system: the differences between customary law and statutory law in the context of Jersey contract law

Abstract

The paper analyzes the contract law of Jersey, a bailiwick made up of islands of Anglo- Norman tradition located in the Channel. Although such bailiwick is a British Crown Dependency, Jersey has developed an eight-century legal tradition of its own, based on customary (“sedimented”) law, which is fully operational. Such legal tradition, however, has gradually been subjected to the advances of advocates to the concept of a “mixed legal system”, which would, in its turn, subject Jersey’s contract law, based on custom, to statutory (“positive”) law with English roots, based on the justification of a higher standard of legal certainty. The author argues that this rationale, however, has been essentially formulated by authors of English origin and training, whose approach to civil law and common law issues is based on the perspective of the intersection of influences of either system on the other. In light of such, the paper provides a perspective that is contrarian to the notion that a legal system, such as Jersey’s legal system based on custom, must sacrifice its original sources of law in search of legitimacy which would be allegedly embodied in positive law.