Reconstructing Mixity: Sources of Law and Legal Method in Cyprus

Abstract

Cyprus has a unique legal system, which has seldom been studied from a comparative-law perspective. Most of Cyprus private law, as well as its criminal and procedural law, follow English common law. Public law - as well as family law and certain elements of succession and land law - are strongly influenced by, or even transplanted from, Continental legal systems. Both the legal profession and the court structure would be essentially classified as common-law - however, the thirteen justices of the ubiquitous Supreme Court of Cyprus spend most of their time employing mostly Continental notions to adjudicate administrative law cases on first instance, as well as on appeal. The lack of an intermediate jurisdiction (appeal being a guaranteed right) means the Justices have no discretion over which cases to review. The hierarchical structure (and relative political independence) of the judiciary grants the Supreme Court - which also acts as a fully-fledged constitutional court - additional power.Sources of law add to the hybridity of Cyprus law. On the one hand, a clear hierarchy exists: constitution takes precedence over international (but not EU) law, which takes precedence over statutory law, which takes precedence over case law. The Constitution is the cornerstone of both legal and political discourse - and extremely hard to amend. Statutory law is everywhere: even the “traditional” areas, where English common law forms explicitly law of the land, are governed primarily by comprehensive legislation dating from the Colonial-era (the transplantation of the Indian Contract Act being a noticeable example). In “common law” fields, therefore, English and Cypriot case law is used, along with legal literature, to interpret statutory provisions and fill legal gaps. Accession to the European Union has further increased the significance of written law to the Cyprus legal system. On the other hand, it is at best unclear whether it is common-law or Continental methods, or both, which are used in statutory interpretation. The use of stare decisis is also not without its own problems, and indeed there are instances of “conflicting” lines of precedent. It is also unclear whether recourse to the English common law must also include United Kingdom statutes that modified the common law after Cyprus independence, or whether a Cyprus appellate case mistating the common law in e.g. contracts is higher authority than the “original” common law rule. Last but not least, it is unclear whether case law has binding or persuasive authority in legal fields, which do not derive from English common law. Both family law (where Greek family law was transplanted en masse in 1990s statutes) and administrative law (largely influenced by Greek case law) offer interesting cases to consider.This paper aims at a comprehensive account of the use of legal sources, the methods employed in Cyprus law and at identifying the principal challenges that need to be addressed in the near future.