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 b...
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...uld seem obvious.
As Kenneth Anthony wrote when anayzing the legal complexity of his native St Lucia,
"mixed systems have not only an inner logic, but a history, a sociology a psychology, and indeed a philosophy".
Bibliography
K.D. Anthony, The identification and classification of Mixed Systems of Law, in COMMONWEATH CARIBBEAN LEGAL STUDIES: A VOLUME OF ESSAYS TO COMMEMORATE THE 21ST ANNIVERSARY OF THE FACULTY OF LAW OF THE UNIVERSITY OF THE WEST INDIES (Gilbert Kodiinye & P.K. Menoon eds., 1992), 217
H.D.Hazeltine, The Study of Comparative legal History, J.SOC'Y PUB. TEACHERS L. 27, 33 (1927)
KEVIN AQUILINA, THE NATURE AND SOURCES OF THE MALTESE MIXED LEGAL SYSTEM: A STRANGE CASE OF DR. JEKYLL AND MR. HYDE?
Electronic Journal of Comparative Law, vol. 12.1 (May 2008), HYPERLINK "http://www.ejcl.org" http://www.ejcl.org
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
societies to reexamine their view of the Caribbean. In this paper the following topics in The
The Codes of Law were broken into certain categories. These categories are not definitely known, but the majority of historians believe them to be: family, labor, personal property, real estate, trade and business. Many think...
Green, Cencilia. (1997). Historical Roots of Modern Caribbean Politics. Against the Current. Vol. 12, (4), 34-38.
Today, across the world there are over nine million people held in penal institutions. The way in which these individuals have been prosecuted has varied greatly from country to country. Some were sentenced by lay people, military officials or professional lawyers, others were judged at public adversarial trials or through torture a confession was made. The diversity among the criminal justice procedures across the world is vast. Legal Historian Professor John H. Langbein has written extensively about the history of civil and criminal procedure and in particular the adversary system, which is the defining feature of the criminal justice system in England and countries which are founded on the English common law. Professor Langbein
In terms of civil law tradition countries, most judges have limited roles and court processes are driven by the legal code. Common law legal systems are rarer, and are adversarial; decisions tend to be based on precedent.
Aboriginal customary law and European law have been at odds since the first years of the European invasion, but only recently has the clash come into the open. Stuart MacMillan of the Aboriginal Resource and Development Services in the Northern Territory says that remote Aboriginal communities there and in Western Australia, South Australia and Queensland see no reason why they should submit to "whitefella law".
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
-Common Law: the “law of the land”(Pool 127), which was built up over many centuries
Legal Pluralism is the presence of various legal systems within a single country or a geographical area. Legal Pluralism is omnipresent although it is generally assumed to exist in countries only with a colonial past. This is because in most countries with a colonial past, colonial laws co-exist alongside indigenous laws. However, if we look at the expansive definition of legal pluralism, it can be said that every society or country if legally plural. The modern definition of legal pluralism also deals with the issues of relation between state and non-state legal orders. It shows the dichotomy that exists between customary legal norms and state law. The judiciary of India has upheld this principle of pluralism in many cases by showing that
In his treaty On Law, Thomas Aquinas defends the position that “the law is always something directed to the common good”. Laws are thus directed toward a comm...
Part of the grounds for arguing in favor of the common law system over the codified system is its characteristically equitable qualities. Since antecedents are pursued in all cases, everyone gets the same treatment. This same legal procedure is administered to everyone in spite of their position or creed. Therefore, this system of going by antecedents which had hitherto been set usually leads to equity and fairness. This system of law also has the advantage over the codified system by offering protection to persons via the law of tort.
Throughout history an even today, Caribbean scholars contend that Caribbean relations are characterized by an interplay of race, class and gender. Clarke agree with this statement and said that, “The social structure of the Caribbean region is based on differences associated with class, race or colour, ethnicity and culture (Clarke, 2013). These three (3) components of race, class and gender affect each other in one way or the other. In other word, one’s class position may be dependent on his or her race or gender or one’s gender may determine his or her class position in society. It is important to note that the interplay of race, class and gender in the Caribbean differs from island to island. This essay will discuss the extent to which
With in this courtroom observation paper I will form two articles and classroom knowledge to show the relevance they play within courts today. First, local legal culture, in "court culture" concept is based on dimensions of solidarity and sociability, the intersections of which create four cultures with associated case management types: hierarchical culture (rule-oriented case management); networked culture (judicial consensus); autonomous culture (self-managing); and communal (flexible case management). The second being, court guidelines and the sentencing structure, how’s it work, and why out comes different areas that defer from Kalamazoo and Southwest Michigan as a hole.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.