Our legal system as it simply is

Our legal system as it simply is

David J. Attard: The Maltese Legal System Vol I. Malta University Press, 2012. pp 445.

Would such a thing as a Maltese legal system exist?

To the uninitiated in Maltese Law, the immediate response would arguably be similar to my reply if I were asked about the existence of my computer. I would venture to suggest that it is an electronic bundle of wires, mysteriously allowing me to type documents and send e-mails.

To the initiated, the answer would be akin to a technician knowing very well all about the computer’s component parts and the manner in which they interact with the whole. Yet, the nature of the beast, as it were, eludes one.

Therefore to both, their exposure to the system is empirical, albeit to a different degree.

Were it not for the inspiration on the part of Prof. David J. Attard (who also sits as a judge on the International Tribunal for the Law of the Sea), this elementary but fundamental question on the Maltese legal system would have persisted further in time.

The beauty of Prof. Attard’s approach is in the language and style

This, despite the fact that the Maltese legal system is the product of a very long evolutionary legal, political, social and constitutional process which precedes Independence, the British colonial period and, one might say, also the period of the Knights of St John.

The beauty of Prof. Attard’s approach is in the language and style, which appeal to both the initiated and the uninitiated.

Indeed, this represents an intellectual challenge which only a scholar fully steeped in the tradition of the Maltese legal system could have undertaken with success.

Prof. Attard is careful to stress the need for a clear, direct style to render our complex legal system, which achieves simplicity without falling in the pitfalls of simplicity, or worse, of artificiality.

At the launch of his book, Prof. Attard made reference to a time gone past, when legal pens of the first water were capable of adorning their legal expertise with a style that has been lost due to the stresses caused by modern pressures.

The pen of the late Sir Anthony Mamo , a former Chief Justice, first Maltese Governor General and the first President of Malta, remains vivid in the profession’s collective nostalgic memory.

“Every state has a legal system which is particular to itself.” This statement perfectly renders Prof. Attard’s clarity of thought.

On the social order of a state and its legal system, Prof. Attard glides effortlessly: “It is this order that determines the way in which the law is applied, and it therefore shapes the very development and function of law in that society.”

Ditto on more profound issues such as The meaning of Law and The Nature of Law. Can one better Prof. Attard’s intellectual clarity, when he simply states: “The law is meant to serve the people. The State makes laws in the name of the people that the laws are to bind.”

The simple and direct explanation of the Maltese legal system is scrupulously shadowed by references to the law, legal authors of repute and judgments of the Courts.

This is done for the initiated, to verify chapter and verse behind Prof. Attard’s rigorous thinking. Yet, these are meticulously reserved to footnotes in much the same way as dolphins liven up the beauty of the ship they trail.

The author is, of course, fully aware that this monograph may not substitute “a deeper treatment of the subject” but such a treatment would “deviate from the objectives of this book”.

Indeed, the book reserves much information which even “a deeper treatment” of the Maltese legal system would have welcomed.

There is the reproduction of a dictionary on Italo-Maltese legal jargon by lexicographer Joe Felice Pace, invaluable when decoding Maltese legalese in an attempt to understand if, in fact, a court judgment was won or lost.

Then there is a glossary of Latin legal maxims, which is not of sole archaeological value, since these terms make their constant appearance in legal and judicial texts; general legal culture is included via an appendix on the statue of justice at Palazzo Castellania by Judge Giovanni Bonello.

Of course, there may be petty issues of detail where the author may be taken to task involving presentation, but not of any consequence to detract from the enjoyment derived by students, members of the legal profession and people who are simply interested to learn what the Maltese legal system is all about.

The book contains two insightful reviews by President Emeritus Ugo Mifsud Bonnici and Judge Bonello.

At the risk of committing an act of lese majeste, I quote Judge Bonello: “So far, we have done without it. After its publication we may well ask how that was at all possible.”

We now await volume two with great expectations.

Dr Austin Bencini, LL.D, Ph.D, is Head of Department and senior lecturer in Public Law of the Faculty of Laws at the University.

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