A Lawyer's History of Malta

Introduction

leibniz-200Gottfried LeibnizThe concept of history of legislation relates to the narration of the rules and laws that constitute civil governments and of those acts expressed in the form of common precepts intended to regulate reciprocal relations in human society.

German philosopher Gottfried Leibniz (1646-1716) was the first to make the distinction in the history of law in terms of form between internal and external, the former dealing with its substance and the latter being the substantiation and requisite of the former, that is, it supports the treatment of the subject. In other words, the external history provides the reasons and the evidence that justify the internal.

In the introduction to his book Istituzioni di diritto romano (1859), Italian jurist Alessandro Doveri (1823-1872) defines internal history as the special history of the law itself, and external history as the treatment of the process and progress of legislation in general, describing:

  • the political events which influenced the legislation;
  • the origins and developments of the sources of law, that is, of the legislations and customs; and
  • the developments in the science of law describing the most famous jurists in the various epochs, the schools that they belonged to, the works they produced and the effect that these had on legislation.

In the introduction to his work, Storia Del diritto, Italian jurist Francesco Pepere (1823-1903) to avoid ambiguity, preferred to divide the history of law into pragmatic and philosophical, defining the former as the pragmatic exposition of the laws and civil institutions, and the latter as the development of the laws and institutions conforming to the development of the juridical and national spirit from which they emanate.

As Judge Paolo De Bono observes in his work Sommario della Storia della Legislazione in Malta (1897), from which the above information is sourced, regardless of the distinctions that one makes, to consider the process of legislation in combination with the civil history of a people, one cannot disregard one form for the other without rendering the treatment of the subject matter incomplete. He continues that one could also divide the history of law, in terms of its object, into universal, particular or municipal, depending on whether it relates to the whole human race, only one country or only one city.

Why study the History of Legislation?

According to De Bono, while natural law that originates from divine providence is one and immutable, human laws often change both in time and in space, due to the incessant human progress from the less perfect to the more perfect, as much as due to the different laws called for by the diverse conditions of society.

The study of the history of legislation -

  • helps one to distinguish the absolute from the mutable in the laws, since there are great principles of justice, the rule of which stays unchanged and reveals itself everywhere, and adds a guarantee and a burden to which the attention of man must reconcile;
  • teaches us the importance of not neglecting the criterion of opportunity when judging the laws: not because a law is good or bad for a nation or in an age is necessarily so for another nation, or for the same nation at different times;
  • assists in anticipating the future and destiny of the law because the future cannot be other than the conseqence, if not at times the repetition, of that which is or which was; 
  • helps us to continue usefully without destroying the work of the past because, if not in any other branch of knowledge, in legislation it would be fatal to reject the traditions; and
  • shows in practice how the laws and the institutions of the subsequent times link with those of the preceding times.

For these reasons, several famous  jurists and historians over the centuries have ackowledged the importance of the study of the history of legislation:edward_gibbonEdward Gibbon

  • French jurist Joseph Louis Ortolan (1802-1873) had observed that one cannot understand a law without knowing the history so that every jurist should also be a historian. 
  • French jurist Eugene Lerminier (1803-1857) believed that history is an integral part of the science of law. 
  • English historian Edward Gibbon (1737-1794) held that the laws of a people are the most instructive part of its history.
  • English philosopher, statesman, scientist and jurist Francis Bacon (1561-1626) was of the view that besides the body of current laws, it is necessary that one also studies the ancient laws, from which authority has disappeared, but to which respect remains.
  • sir-francis-baconSir Francis Bacon
  • Back in Roman times, celebrated jurist Gaius (AD 130-180) held that one cannot conveniently deal with exegetical jurisprudence without the historical.

Subject Matter and Methodology

According to Judge Paolo De Bono, the history of municipal legislation in Malta does not begin until the Order of the Knights of St John took over the government of the Maltese archipelago in 1530. In the previous centuries Malta had been governed by laws of the foreign dominators.

In his abovementioned work Judge De Bono's intent was to offer a brief account of the laws that either certainly had, or most likely would have, been in effect on the island from the early times until modern times (his book having been published in 1897). In his view it would not be right for the younger generations to totally ignore those laws, especially given that some of them, particularly those of Ancient Rome and Sicily never ceased to regulate the civil acts and customs of the locals and could still be considered the most important historical precedents which at times supplemented the local private law.

In his book, Judge De Bono deals with the laws of the various dominations which succeeded each other on the island sequentially, given that it is the most natural sequence to tackle the subject and that the public law of a country necessarily alters with each change of government, although sometimes the private law or the customs appears to remain the same.

gaius_juristRoman jurist Gaius

In his book, Judge De Bono covers the history of each foreign domination in Malta under the following sub-headings:

  • Political laws, or the constitution of the society
  • Personality, or active and passive subjects of rights
  • Family, which is the basic society where the subjects of rights perpetuate themselves
  • Succession, which is more about the continuation of the family than about property
  • Criminal laws, or the laws about social safety
  • Judicial Institutions, without which the protection of society would become meaningless
  • External relations with other people when these would have been important for the locals

Sources Constraints

Judge De Bono explains that Maltese history in ancient times and part of the middle ages is very obscure. Far from having any documents that confirm whether the laws of the Phoenicians and the Carthaginians would have undergone modification for the island, we do not even know who the writers of those nations were. If the monuments of the Greek and Roman eras may be enough to risk the accuracy of some point of public law and municipal laws, they are completely silent about the civil and criminal legislation then prevailing on the island. The occurence of the Gothic domination is itself in doubt. There is nothing to record particular institutions and laws under the Muslim domination. This limitation is necessarily felt in the works of famous Maltese historians, such as, Abela and Vassallo.

In light of these significant constraints in the sources available, De Bono states that, where it is impossible to arrive at the certain, one must up to a certain epoch often be content with the probable and confess that one is unable to satisfy a curiosity or provide an answer to a valid question.

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