European Journal of Law Reform

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Issue 2, 2022 Expand all abstracts

Access_open Managing Legal Pluralism in the Maltese Legal System: Processes, Driving Forces and Effects

A ‘Loving’ Marriage of Legal Systems or a Curse?

Keywords hybrid legal system, private law systems, Maltese legal system, EU law supremacy
Authors Ivan Sammut
AbstractAuthor's information

    This article seeks to discover whether a state who has ended up with a hybrid legal system, whether by choice or by history over time, is in a better position to face the new legal challenge posed by economics and politics or whether it makes sense to opt for a legal system that more or less follows one of the legal families which historically is a source of the current legal system. The approach is taken from a private law perspective. Hence, reference is made to both constitutional law and private law, and in the case of Malta, the former is mainly derived from the English common law while the latter applies to the main civil law and private law systems. The article refers to the Maltese legal system as a case-study. After independence, Malta opted out of a free choice to consolidate the mixedness in its system, and common law’s influence became stronger than before. For the past two decades, there has been a strong influence from the European Union (EU) legal system, Malta being the smallest among the EU Member States. Reference is also made to how the Maltese legal system adapted itself to its ‘marriage’ with the EU legal order and how Malta reconciled the Westminster model of parliamentary supremacy with constitutional supremacy and later with EU law supremacy.

Ivan Sammut
Ivan Sammut, Faculty of Laws, University of Malta, Malta.

Legislative Drafting in Multilingual Legal Orders and Computer-Assisted Translation Tools (Case Study: The European Union)

A Perspective of Constitutional Law

Keywords computer-assisted translation tools, European Union, legal acts, transposition, implementation
Authors Enrico Albanesi
AbstractAuthor's information

    The article analyses the role of computer-assisted translation (CAT) tools in the European Union (EU). Such tools are of a great help in dealing with multilingualism within the EU legislative process, in particular in drafting legal acts in the twenty-four official languages of the EU. The article’s original contribution to the current academic debate is twofold. First, it looks at these tools from a perspective of constitutional law to see if they are sufficiently transparent and do not jeopardize the role of human intelligence. Secondly, it analyses the potential role of CAT tools in the implementation/transposition of EU legal acts. One of the main problems when implementing/transposing EU legal acts within Member States comes from the use of legal terms by the EU legislator that sometimes have slightly different meanings from the meanings that those terms have within domestic legal orders. Two different approaches have been developed to deal with this issue: the copy-out approach and the interpretative approach. From this perspective, the article analyses whether and especially under which legal conditions some legal terms could be stored in the main EU termbase IATE (Interactive Terminology for Europe) according to the meaning that term has within the domestic legal order.

Enrico Albanesi
Enrico Albanesi is an Associate Professor of Constitutional Law, Department of Law, University of Genoa, and Associate Research Fellow, Institute of Advanced Legal Studies (IALS), University of London. I would like to acknowledge for their kind help Ingemar Strandvik, Quality Manager, Directorate-General for Translation, European Commission, and Mads Nyegaard Outzen, Head of Strategy and Innovation Unity, Directorate-General for Translation, European Parliament. Any errors that remain are my sole responsibility. A first version of this article was discussed at the International Conference on Multilevel Legislative Drafting and Legislative Impact Assessment, University of Lisbon, 15 July 2022, and at the 7th International Conference on Legislation and Law Reform, Washington, DC, 3 to 4 November 2022.

European Membership Clauses and Constitutional Hurdles to Withdrawal

Keywords constitutional hurdle to withdrawal, constitutional amendment, EU post-Brexit, EU membership clauses, constituent decisions, withdrawal from the EU
Authors Ylenia Maria Citino
AbstractAuthor's information

    Considering the interpretation of Article 50 TEU provided in the aftermath of Brexit, this article delves into the steps required as a matter of domestic constitutional law before the procedure of withdrawing from the European Union can commence. It examines the question of whether the Member States could trigger the exit process by a simple majority decision through ordinary law or whether it is necessary to go through constitutional reform. This research assumes that countries equipped with European membership clauses can proceed to notify their intention to withdraw only after repealing such clauses through a constitutional amendment. The Italian example is analysed in depth to provide concrete evidence.

Ylenia Maria Citino
Ylenia Maria Citino is a Post-Doctoral Research Fellow in Public Law at Luiss Guido Carli.

Criminal Intent and the Ruthless Risk-Taker

Keywords genocidal history, criminal intention, ruthless risk-taker, punishment by stigmatisation, foresight
Authors Gary Lilienthal and Nehaluddin Ahmad
AbstractAuthor's information

    Senator Jana Stewart said, on 27 July 2022, that Australia’s failure to cognise its genocides on First Nations people obstructs progress. The research objective is a critical analysis of criminal intention in genocide. A ‘ruthless risk-taker’ denotes a killer whose conduct was not directly calculated to kill, with callous disregard for human life, so as to label him or her as ‘murderer’. Officials continuing genocidal acts are ruthless risk-takers. The question asks about the character of criminal intent. Argument proposes that, in the English law, criminal intent to commit murder has been truncated by judicial legislation. The research is legal doctrinal research, set out as a legal narrative analysis. Judicial labelling was a precursor to punishment by stigmatisation, and juries should infer intent only for rare cases. This is because proof of the defendant’s foresight either of death or of grievous bodily harm, at minimum as a probable outcome of his or her actions was different from proof that he or she actually intended the consequence. Few ruthless risk-takers would have foreseen death or serious injury to the required degree. The cognitive approach to mens rea will never return a satisfactory answer to the ruthless risk-taker problem, without actual proof of intent. In consequence of these outcomes, genocidal acts in Australia must first be assessed as having been commissioned either by ruthless risk-takers, or not. If they were ruthless risk-takers, their intent must be proved at a very high degree of certainty. If not, their intent may be inferred from the natural consequences of their actions.

Gary Lilienthal
Gary Lilienthal is a Professor of Law, Tashkent State University of Law, Tashkent, Uzbekistan.

Nehaluddin Ahmad
Nehaluddin Ahmadis a Professor of Law, Sultan Sharif Ali Islamic University (UNISSA), Brunei Darussalam; Email: ahmadnehal@yahoo.com (corresponding author).