Reforming the principle of juridical interest : a necessary democratization of the civil action

Abstract

This thesis presents an argument in favour of reforming the notion of juridical interest as applied in our courts. It argues that in order for the latter notion to be in synchronization with modem society, it is essential that the notion of interest is widened in order to embrace diffused and collective interests, in such way 'democratizing' the civil action. Chapter one describes the notion of juridical interest as traditionally construed and as applied and developed by our courts. This chapter is primarily based on court judgments. Chapter two deals with new emerging realities, particularly with diffused rights and interests, and attempts to show how the traditional notion of interest is incompatible with these new realities. In order to help prove this inadequacy, an assessment of laws already present within our legal order is carried out. Chapter three presents a comparative study concerning the solutions mainly operated in order to cater for the representation of these new diffused and collective interests. It is immediately argued that the public 'governmental' attorney general solution is inadequate, allowing for more detailed study of the two private attorney general solutions. Chapter four attempts to prescribe a possible procedure for Malta, essentially favouring the private 'ideological' (as opposed to 'organisational') attorney general solution. It is argued that Malta should at least introduce a representative action, the aim of which is to obtain an injunctive or declaratory remedy. It is concluded that in order to ensure that our legal order is just and thus sustainable, a reform of the notion of juridical interest is imperative. However, this reform, even if it requires the intervention of the legislator, involves primarily a change in the legal culture embraced by our courts.