The sources of Maltese law as developed by civil jurisprudence since 1936

Abstract

Sources of law are of immense importance in a legal system, since they aid in the identification of a legal rule, which recognises and protects one’s rights and obligations, from one which is not. There is, however, no universally accepted definition or hierarchy of the sources of law due to a number of factors. Such inexistence also extends to the Maltese system, as the legislature has not established a list of the sources of Maltese law which are binding on the judiciary and/or which are authoritative interpretational aids. By way of introduction, this thesis attempts a generic analysis of the term ‘source of law’, and thereafter focuses on three particular sources – legislation, preceding judicial decisions and doctrinal writings. The role of, and authority attributed to these sources in the founding legal traditions – these being the civil and Common Law families – is examined briefly, since the Maltese legal hybridity is due to the influences which were derived from such systems. This thesis then presents an empirical study of legislation, jurisprudence and doctrine as sources of Maltese law, specifically focusing on the manner in which they were utilised, and on the authority which is attributed to them by the Court of Appeal (in its civil superior jurisdiction) over a specified period of time. The examination of seven specific years (which years start from 1936 and finish in 2014) over a period of approximately eighty years of decided and, at times, published judgments, will also pave the way to an informative examination of whether the role and status of these three sources of Maltese law were preserved or developed throughout the years.