In what ways does Malta differ from the classical mixed jurisdictions?
If classical mixed jurisdictions are to be studied collectively, certain sub-groups would need to be taken into consideration. Some would be amalgamations of common and civil law, such as Scotland and Seychelles; some of religious law, civil law and common law, such as Israel; some others with a mix of the previously mentioned laws with a further addition of socialist law and tribal law such as Algeria; others, such as Hong Kong, that combine traditional Chinese law and socialist Chinese law, which itself embodies elements of the civilian tradition and so on. Other systems which have shifted from the socialist sphere to the more civilian tradition, such as Poland, experience an ongoing mixture, with their legal systems looking for an identity.
Jan Smits' ‘The Making of European Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System’, manifests the increasing interest in mixed systems in Europe today. Indeed, though in a larger context, the exercise involves common law-civil law marriage.
All legal systems are mixed, and continental systems are better understood as overlaps : a reminder that there are no pure legal systems in the world. Having mentioned the previous examples, one of the more complicated crosses, is none but the Maltese legal system.
The Maltese islands have experienced several cultures throughout history, namely the British Empire, the Arabs, the Aragonese amongst others. All of these effected not only the language or the way of living but also the legal segment of the islands. Eventhough Malta is considered as a Mixed Legal system, there are still a number of differences which ensue.
A mixed legal system is one which is based on civil law and on common law. The latter is mostly known as English Law based on the principle of precedent i.e. a judicial decision taken in a particular case may be used in similar judgments. In Malta, this does not apply. Each competent court decides cases according to the relevant legislation. For example, the Criminal Court would look into the criminal code provisions when deciding on particular cases.
This assigment will look at examples of a number of overlaps of different types and compare them to the systems used in Malta, which Orucu described as an "extraordinary place" which allows comparatists to "best observe, analyse and understand the interaction between legak cultures and socio-cultures".
The 'mixedness' of the Maltese legal system
There are a number of ways in which Malta differs from the classical mixed jurisdictions. As to Maltese public law, it is commonly agreed that British common law is its backbone. Other legal areas, such as criminal law and criminal and civil procedure, unlike those of other mixed jurisdictions, are not ruled in full from English law. Criminal substantive law, which was codified, may be defined as the diverse result of the influence of blended Italian and British legal...