THE NATURE AND SOURCES OF THE MALTESE MIXED LEGAL SYSTEM: A STRANGE CASE OF DR. JEKYLL AND MR. HYDE?

Abstract

This paper discusses the sources of the Maltese mixed legal system which are essentially
two – civil law and common law – but observes that Maltese Law is also influenced by
international law and, more recently, European Union Law. It notes that not all the sources of the
common law system have infiltrated the Maltese legal system: for instance Malta does not abide
by the doctrine of precedent. Nor does it recognise the judgments of the Constitutional Court as
binding erga omnes but as binding only between the parties to the case. This has brought certain
tensions within the legal system as the civilian Code of Organization and Civil Procedure is
applied to a Westminster inspired constitution. The case law and doctrine on this point are
examined with a view to proposing solutions to this legal quandary. The paper further recognises
that with 164 years of British occupation of the archipelago, the nature of the legal system has
changed: it is no longer a civil law system with a superimposed layer above it of common law – it
has been turned on its head by developing as a common law system with a layer of civil law
together with international law and European Union Law influences. The latter two legal systems
are on the increase as well as autochthonous law which has developed since Malta obtained its
independence in 1964.