Research methods- Aquilina.pdf

8/14/2019 Research methods- Aquilina.pdf

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INTRODUCTION TO LAWResearch methods

Why do we fail?

ASSIGNMENTS:

It is important that you provide a bibliography which needs to be arranged according tothe sources which have been used: for instance if you have been consulting books the

first heading should be of the books consulted. Guidelines: Oxford standard for citationof legal authorities (from the website of the faculty of laws of OxfordOSCOLA 2006).

Peer Reviewed journals (http://denning.law.ox.ac.uk/published/OSCOLA.shtml) Official Reports: the Maltese government issues white papers to amend laws. Quote

debates of the house of representatives and to other reports which are published from

time to time.

Websites: it is important that as much as possible you refer to the published versionthan to the website. When you use a website you state the date of when you accessed

that website

Use of footnotes: Whenever you refer to an author, case or a document on a website you have

to provide a footnote with the page of the quite. Footnotes are not used to give a source only

but theyre also used to add texts and comments, for instance if you say that adultery is a

criminal offence in country X you put a footnote for a relevant comment for instance that in

Malta adultery is not a criminal offence.

Case Law: Another reason why students fail is that they dont quote case law. For ex: In Malta

we do not have a law that states that we cannot sue a judge ex Dino Debono vs Magistrate Lino

Mallia. So if you do not quote case law theres nothing to say about it, you will enrich your

answer by referring to the applicable case law since this is unwritten law.

Law:It is necessary to refer to the law, whichever law would apply to the addressed context. It

is important that you know the principle behind the particular provision. The article number is

not important but the principle and its emanation for instance the Constitution of Malta. The

laws are very important but sometimes the law by itself is not enough because it might be

ambiguous and therefore you would want to consult the writing of certain established authors
http://denning.law.ox.ac.uk/published/OSCOLA.shtmlhttp://denning.law.ox.ac.uk/published/OSCOLA.shtmlhttp://denning.law.ox.ac.uk/published/OSCOLA.shtmlhttp://denning.law.ox.ac.uk/published/OSCOLA.shtml


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and quote them. For instance the definition of theft of Carrara is something very important.

Read the authors which are commenting on the law.

Critical: you need to be critical and not write what the lecturer says. Law has various schools of

thought thus interpretations and opinions vary. You can be a positivist: you will interpret the

law in a specific way, you can also adhere to the natural law school etc. dont be descriptive but

analytical and critical, come up with your ideas after reflecting and reading books and journals,

and write down your own suggestion

Answer: answer the questions properly dont use padding. Stick to the point! Think and analyze

what the questions asking.

Plagiarism: you cannot take an extract from a book and quoting it word by word without

stating that it is directly taken from that particular author. Citation is acceptable but lifting

whole sentences and paragraphs rather than acknowledging sums to plagiarism. Do not copy

ideas! Do not turn the structure of the sentence!


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Maltese Law: the internet:www.justiceservice.gov.mt

1) Judgments of Maltese Laws2) Laws

Legal Section: laws of Malta: Chapters (505 in all) =

1) Primary Laws (enacted by Parliament)

2) Subsidiary Laws (laws made by the Minister or any public corporation)

Primary Laws:laws enacted by parliament

Laws from the British 1800s till now

1) Acts of Parliament2) Ordinances3) Codes

Acts of parliament: These are from 1964 onwards. However there are also acts of parliament

which predate 1964 due to self-government, although the Maltese were under the british rukle

they ahd their own parliament and government and the laws which were enacted by self-

government parliament are called acts of parliament as well.

Ordinances: Laws made by the Governor of Malta. They are still on the statute book.

Codes:Criminal, Civil, Commercial, Police Codes, Organization and Civil Procedure. They weremade under the British period and theyre still in the statute book and used to the present

time. They all have legal binding force and they all have a chapter number, you have to cite the

code and the chapter number. There are two laws which do not have a chapter number

although one of them is chapter 0, this is the constitution of Malta. There are two different laws

when speaking of primary legislation: the constitution and primary laws (505). The constitution

always prevails it is hierarchically superior to all other laws in Malta. The Statute Law Revision

Act is the law in terms of which all laws are numbered. This law is unnumbered and comes

secondly after the constitution.

Subsidiary laws:

They are also numbered:

S.L. (subsidiary legislation) 50.01 (the chapter number of the primary law and the second

number is the chronological number of the subsidiary law)
http://www.justiceservice.gov.mt/http://www.justiceservice.gov.mt/http://www.justiceservice.gov.mt/http://www.justiceservice.gov.mt/


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There are regulations, rules and orders. These are the three most used of subsidairay

legislation as well as by-laws.

Since 1993 with the Local Councils Act 15 of 1993, by-laws are the main subsidiary instrument

through which local councils make their own legislation.

- The Department of Informationwww.dio.gov.mtThis site has got all the issues of the government gazette. This website has got the texts of

acts of parliament of subsidiary legislation of bills which are presented to the House of

Representatives and of by-laws made by the local councils.

The text of bills: Before a law is enacted in parliament a bill has to be presented in the

house of representative, discussed, approved and then enacted. If you want to compare the

original version with the law actually enacted you have to use this website.

CASE LAW

Judgments of the Maltese Law: from 2002 till today. (Justice website)

Search by the name of the parties or by the name of the judge or magistrate or tribunal. You

can carry out a search using this information, also through the reference number of the case. If

you dont know anything you can make a free text search ex: Kostituzzjoni: all the case law

where the term Kostituzzjoni is used.

The laws are enacted in Maltese and in English, there is a provision in the constitution which

states that if there is a conflict it is the Maltese version which prevails. In so far as case-law is

referred normally in Maltese therefore there is no English translation of judgments. It is

exceptional that you come across a judgment in English. They are delivered in English where

one of the parties or both do not understand Maltese.

Administrative Law (second year)

www.statecareandmore.eu translating the salient provisions of case law dealing with

administrative law

A case which predates 2002 or a law that has been repealed:Found in libraries such as the National Library in Valletta. If you want to cpousnilt an act

of parliament of 1905 which is not in use anymore you have to find it in these books of
http://www.dio.gov.mt/http://www.dio.gov.mt/http://www.dio.gov.mt/http://www.statecareandmore.eu/http://www.statecareandmore.eu/http://www.statecareandmore.eu/http://www.dio.gov.mt/


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Acts of Parliament and Subsidiary Legislation. Under the Statute Law Revision Act if 1980

all these chapters used to be published in book format before everything went to the

internet. The last edition of the laws of Malta in print form was of 1984: Dr.Edgar Mizzi

attorney general of Malta was entrusted by the government to print all the laws of

Malta and in 1984 we have the revised edition of the Laws of Malta. We also had aprevious edition of 1942 and at that time it was Judge William Harding who was

entrusted with the compilation.

Books to refer to: The Revised Edition of the Laws of Malta + The Acts of Parliament

The collection of decisions of the superior courts of Malta: up till 2003 from 1880.

From 2003 onwards the judgments went online. Not all judgments were published in it

but there was a selection through the editorial board. On the internet version there

arent any selections all judgments are published irrespective of importance.

In constitutional law Dr.Anthony Farrugia vs Kummisjoni Elettorali: the case was not

published by the editorial board. In order to get the judgment you have to go to the

courts archive in Valletta. The only source would be to go to the source of justice. Old

unpublished judgments are found there.

Judge Wallis Gulia: had compiled the text of several judgments with regard to

Administrative Law. Ian Refalo has done similar as regards to private international law.

Other books which if they do not publish the text of the judgment they publish as

synopsis ex in 1977 Mr. Justice Joseph Filletti published the course of criminal appeal.

The writings of various academics: codes of civili procedure: refer on foreign textbooks;

the library of the university is a good source + the national library in Valletta where you

also find reports as well as books. For instance if in 1884 a report was published on the

criminal code that is an important source is far as the criminal code is concerned. In

addition to reports and to writings of various authors there is also the LLD thesis 1958-

today. Theses are found at the militensia branch in the library at university but also in

the laws faculty and at the courts of justice library. The Courts of Justice Library is a

specialized library for law books. It is not a lending library it is a reference one but there

is the possibility of doing photocopies apart from taking notes. Even the attorney

generals office has a library with a number of books .

Various legal databases can be found in the library.

French journals are important for the Civil Law since the sources of our Civil,

Commercial and Criminal law are based on the French, Italian and Roman Law. Our law


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has also been influenced by the English Law. 98% of the Constitution as it was in 1964 at

that time was English law therefore we have English databases.

The international maritime law institute has got an excellent library dealing with

shipping law and international law subjects which will be dealt with in second and thirdyear.

EDRC has got a very important collection of EU materials. In third year this library will be

an asset.

Databases can be accessed from home.

Documents

Research methods- Aquilina.pdf