Journal of Civil Law Studies


David E. Zammit


This article starts by critiquing two recent attempts to sociologically account for court delays in Mediterranean societies. The first account was produced by the sociologist David Nelken and uses the concept of legal culture to explore the causes of court delays in Italian criminal trials, while the second account was produced by the anthropologist Michael Herzfeld, who sees court delays in Crete as metonymically encapsulating a broader cultural context. It is argued that both accounts omit an important dimension of the issue, which is how such delays are produced and justified at the level of legal practice itself. By referring to the author’s fieldwork in the Maltese civil courts it is argued that court delays are best explained with reference to the social relations involved in legal practice, particularly those between lawyers and clients. Delays must be related to the ways in which lawyers see their role in litigation and these professional understandings are in turn connected to the kinds of expectations that their clients have of them. In this article particular attention will be paid to discursive invocations of these professional understandings by Maltese lawyers in the mid-1990’s, while resisting administrative reforms intended to streamline the procedures through which evidence is compiled in court. Delays were justified as necessary consequences of the lawyer’s professional role as locally understood. This is possible as, although often considered as synonymous with corruption, delay as a professional strategy is capable of signalling an extraordinary range of meanings. In particular, delay makes it possible for lawyers both to affirm and to traverse the distance between everyday and legal concepts of evidence, truth and reality. Delay is an intrinsic part of the practical symbolism through which the specificity of “the legal” is enacted. Through delay Maltese lawyers cope with the specific demands of their clients by performing specific professional understandings of legal representation as a matter of balancing between patronage and professional detachment. The generative matrix of these professional understandings can itself be located in the colonial encounters which shaped Maltese legal history and its mixed jurisdiction.

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