'Lease, Locazioni and Kera' : merging legal concepts in postcolonial Malta

Abstract

This chapter explores an example of internal diffusion, in which legal concepts have migrated from one sector to another of the Maltese legal system, leading to a merging of civilian, common law and indigenous concepts of rent law, which reflects a rare moment of political consensus in Malta following independence from Britain. As an example of internal diffusion within a small mixed jurisdiction, it serves to problematise and challenge many of the orthodox assumptions about diffusion which were critiqued by William Twining in a leading article on the topic. Specifically, Twining invited legal scholars to consider how diffusion may operate outside and beyond the framework of a standard colonial and neo-colonial context, where the sources of importation of legal concepts are diverse and where diffusion can occur horizontally and across levels of ordering. He also showed how diffusion may occur through complex and indirect pathways which bypass the legislator, for instance via a judicial decision or even more informal routes. Agents of diffusion can be jurists or legal elites, not necessarily governments and the process of reception may be a long drawn out process which belies imperialist 'top down' models of transmission and transforms the legal concepts involved in the process. We shall see how most of these features of diffusion can be exemplified by this Maltese case and we shall focus particularly on: how importation of and resistance to foreign legal ideas, laws and institutions often forms part of some broader local political struggle.