Privatizing the fortifications : the legal perforation of Maltese coastal space

Abstract

As an urban space directly located on the Maltese coastline and lacking encircling fortifications, Paceville represents something of an anomaly in Maltese social geography; one which must be understood in the light of legal and social history. This paper represents a first attempt to outline what is at stake, legally and socially, in the changing use of coastal spaces in Malta and to indicate how places like Paceville can be seen as simultaneously the culmination of the historical processes which have marked the internal elaboration and structuring of the Maltese environment and as an outpost of financial capitalism on Maltese shores. The paper is divided into two main parts. The first relies mainly upon travel accounts and descriptions of Malta produced by nineteenth century British travelers in order to sketch out a tentative genealogy of Maltese coastal space; indicating how it transformed from a highly militarized no-go area invested by British forces, being the true locus of colonial power in Malta, into an increasingly privatized, economically active and cosmopolitan part of Maltese social space; the preferred site for tourism, industries, foreign residents, restaurants and night-life. The second explores how this transformation was legally facilitated; despite the fact that Roman law -which in the period was actively asserted by Maltese jurists to be the basis of Maltese law- classifies the foreshore as a res extra commercium, which from its very nature cannot be privately owned. A nineteenth century Maltese court judgment is focused on to show how the activity of courts dominated by 'native' Maltese judges and lawyers succeeded in relativizing the absolute prohibition on the privatization of the foreshore and created pathways to legitimize private ownership. In the process the Maltese legal system was itself constructed as a highly compartmentalized system embracing divergent and contradictory values; which served to increase its pragmatic flexibility as a tool in the hands of an emerging mercantile elite. Finally the paper indicates how problems of enforcement and the contradictory values which are hosted by the hybrid and fragmented Maltese legal system, continue to empower entrepreneurs from diverse social backgrounds, often tacitly supported by the Government, in their efforts to 'bend the rules' to promote their privatization agendas. This conforms closely to the model of postcolonial illegality developed by the anthropologist John Comaroff.