Rethinking Maltese Legal Hybridity: A Chimeric Illusion or a Healthy Grafted European Law Mixture?

Authors

Kevin Aquilina

Abstract

Although Maltese Law is traditionally classified as a mixed system of Civil Law and Common Law, this paper suggests that it is more appropriate to do away with this designation, which is not entirely exact, and instead call it what it really is, namely, a ‘European’ legal system.

The paper proposes a typology of the Maltese legal system divided into nine distinct phases which contain traces of Civil Law, Common Law, Customary Law, Canon Law, Maltese Autochthonous Law, European Union Law, Regional Law (Mediterranean Law and, in its widest sense, European Law), Public International Law and elements of foreign national law. To a very large extent, all these traces are European in origin even if tinged with Mediterranean and International Law.

The historical evolution of Maltese Law in the nine distinct phases demonstrates that the nature of the Maltese legal system has shifted over time. For instance, when Malta was administered by the Knights of St. John, it was the Civil Law tradition that dominated the legal system. During the British period, it was Common Law that had the upper hand. Following independence, Maltese Law became more autochthonous whilst after European Union accession the law in Malta has become more European Unionised. All these periods are also interspersed by Public International Law influences.

The nature of Maltese Municipal Law has changed from period to period reflecting the colonizers’ laws and, under self-determination, the will of the Maltese, but there has been one common trend throughout the history of the Maltese legal system: it has been heavily dominated by European Law, be it Civil Law, Canon Law, or Common Law. However, this does not mean that Maltese Law is purely European in the wide sense of the term: there are some slight traces of non-European Common Law influences taken from the US, New Zealand and Australia. Nevertheless, that said, the paper concludes that the common denominator and undoubtedly the most predominant in Maltese Law was and remains European Law in the widest sense of the term in all its diversity and richness.

Repository Citation

Kevin Aquilina, Rethinking Maltese Legal Hybridity: A Chimeric Illusion or a Healthy Grafted European Law Mixture?, 4 J. Civ. L. Stud. (2011)
Available at: https://digitalcommons.law.lsu.edu/jcls/vol4/iss2/5