The Maltese legal system has been held to be a mixed one, admitting of both Civil law and Common law characteristics – a reality which ostensibly has a bearing on the manner in which the legal order caters for the recognition and provision of subjective rights and more predominantly, the nature and modalities of the remedies offered for their pursuit.
Notwithstanding the fact that since 1814, Malta was officially a British colony, the British refrained from imposing common law in Malta. The Code de Rohan which had been promulgated in the dying days of the long rule of the Knights of Malta was gradually by a Civil Code inspired by the Continental model. In fact, the Maltese Civil Code was promulgated between 1868 and 1874 in what has been described as a piecemeal manner. The code was compiled and drafted by the celebrated Maltese jurist and later Chief Justice Sir Adriano Dingli. In the making of the Maltese Civil code, Dingli largely followed the Napoleonic Code civil both in terms of structure and also substantive content. Dingli also consulted the civil laws of Austria, Parma and the Kingdom of the Two Sicilies. Biagio Andò opines that ‘specific institutions and rules were introduced into Maltese law through the influence of French law, such as indivisible obligations, the relevance ipso iure of legal compensation, the diligence of bonus pater familias as an objective standard [and] the principle possession vaut titre’ . Hence, the Maltese law of obligations follows the French model. Hugh W. Harding, former Chief Justice and an eminent legal historian, states that ‘The ordinances were mainly based on the Code Napoléon which, in its turn, in many parts had reproduced with modifications the principles of Roman law long established in Malta. These ordinances were, in certain respects, more progressive than the Code Napoléon because they incorporated provisions containing solutions to the controversies which arose after the promulgation of the Code Napoléon’.
To date one may still trace many provisions in the Maltese Civil code which are practically verbatim translations of the corresponding articles of the French Code civil and also feature in the Italian Codice civile of 1865. For this reason, it is axiomatic that the commentaries of the numerous French and pre-1942 Italian authorities constitute an indispensable source of interpretative guidance when contemplating the provisions of our law. The same can be said for the Jurisprudence of the courts of those jurisdictions.
Other codes were enacted during the 19th Century, most notably the Code of Organization and Civil Procedure and the Criminal Code. The most notable reform introduced by the latter instrument was the introduction of trial by jury which is a predominantly Common Law concept and prevails to date.
Notwithstanding the fact that the core of Maltese private law was largely modelled on the Continental model, British legal influence can clearly be felt in the Public and Commercial sectors. Taxl, maritime and company legislation follow closely the British model. The Maltese Constitution, promulgated upon Maltese Independence in 1964, reflects closely British constitutional principles but it also incorporated a bill of fundamental rights which was very much influenced by the European Convention on Human Rights, although at that point, Malta was not yet a signatory.
Malta acceded to the European Convention on Human Rights in 1987 and its protective provisions were thus transposed into domestic legislation. Since Malta’s accession to the European Union in 2004, the acquis communitaire and future EU regulations prevail over domestic legislation and EU directives have to be incorporated in domestic legislation.