January 14

World legal authority warns on politicians’ republic

There would be few people more qualified person to make an assessment of the value of our constitutional system, compared with others,  than Belgian born Professor Gabriël A. Moens.   Professor Moens is respected around the world for his research into and study of the world’s major legal systems, including the law of the European Union.

He is one of those rare lawyers who is not only at home in, but who is expert in both the common law and the civil law. ( For a brief explanation, see the note on the world's legal systems at the foot of this column)

 

…Professor Moens….

Since 2005, Professor Moens  has been Dean of Law at Murdoch University in Perth, having held teaching and research positions in leading Australian, European and American Law Schools.  

An award-winning teacher of law (including being the co-winner of the 1999 Australian Award for University Teaching in law and legal studies), Professor Moens is a noted author, with an extensive publications record, including the co-authorship of The Constitution of the Commonwealth of Australia Annotated, 7th edition, 2007, several  other books and over 40 major articles in law journals of international standing.

Knighted by His Majesty, King Albert II of Belgium, Professor Moens is a Membre Titulaire of the International Academy of Comparative Law in Paris, and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators. He also serves as Deputy Secretary-General of the Australian Centre for International Commercial Arbitration (ACICA) and Director, The College of Law Western Australia.

…his assessment of the Australian constitutional system… 

Professor Moens is thus in a unique position to make a learned and independent assessment of the Australian constitutional system.

Delegates to the 2008 ACM National Conference were privileged to hear Professor Moens’ speak to a learned  paper on this very issue.

In the course of his address, Professor Moens observed  that those who wish to transform Australia into a republic should be reminded that the American Constitution is twice as old as Australia’s, and that few Americans would call for a drastic change of it.

Rather, Americans see the longevity of their written constitution as a positive indication that that legal document is working properly.

He said that Australia’s constitutional monarchy exercises an important role in protecting the people from political arbitrariness.

The monarchy, he said,  exists to keep the constitutional order protected against arbitrary government. Indeed, while the monarch or her representative reigns but not rules, ‘there is no space waiting to be occupied by a populist, dangerous demagogue’. 

“There is no deficiency in the constitutional system of Australia that a change to a republic could possibly remedy. Rather, a change to a republic would be excessively complex, if not traumatic for the nation. Although it offers no advantages over a constitutional monarchy, any change to a republic would certainly involve the greatest leap into political, legal, and constitutional darkness that this country has ever experienced. “

Professor Moens' paper is included in the current issue of one of the ACM journals, The Australian Constitutional Defender. This contains a range of relevant comments and expert articles on issues concerning the governance of Australia.

The Defender is fast becoming compulsory reading for anyone interested in these issues.

We are now in the process of sending The Defender to all the ACM mailing list.

If you are interested in seeing a copy, just send an email to ACM asking us to send you a copy of The Defender.

Please include your name, postal address, email address and your telephone number.  

…Note on the  world's legal systems…

It is appropriate at this point to say a few words about the world's principal  legal systems.

The common law, which came from England, is now the dominant legal system of the Commonwealth, the United States and in much international finance and business.

The civil law is principally based on either the French Code Napoléon or the German Code, the BGB (Bürgerliches Gesetzbuch).

The civil law  prevails on the European continent, Latin America, former French colonies, former communist countries – in brief countries not colonised by the British. 

It is interesting to note that the few countries not colonised or fully colonised by the European powers – Japan, China, Thailand and Japan – chose the German BGB.

No country voluntarily imported the common law  – it is a law based on custom found in vast numbers of cases.  By way of contrast a code based legal system lent itself to import as countries modernised. In the late ninetenth century the German BGB was seen as the most modern code based legal system.

Not all British colonies took the common law or took it fully.  For example, when the British took Quebec, they preserved the civil law. In other former British colonies, the civil law enjoys varying degrees of influence reflecting previous imperial powers, e.g., Sri Lanka ( Dutch and Potugese)  South Africa (Dutch )and Mauritius ( French).

Note that when we talk of these priniclpal legal systems we are talking of the law governing private relations and obligations.

Constitutions are a different matter. While Britain from 1688 enjoyed probably the world's  most sophisticated constitutional system, it was never reduced to a single document. The American constitution is in many ways a writing down of the then British constitution. Only federalism is uniquely American; even the bill of rights is derived from Britain. 

Outside of the Netherlands the principal civil law countries were not strong on constitutional development, and when this did come, they looked principally to Britain, with an occasional glance at the US, as in France's brief experiment  in 1848. 

 


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