Life has been good to me. I have had the good fortune of spending quite some time, 11 or 12 years, with Giuseppe Mifsud Bonnici, who passed away recently. We worked on a book together. I have already written an appreciation of this great man elsewhere. Today, I would like to share some thoughts on a central idea in his philosophy.
Some aspects of Mifsud Bonnici’s philosophical thought can be found in the 2008 book bearing the title the professor himself chose, Il-liġi, il-morali u r-raġuni (Law, morality and reason).
It is made up of a series of interviews (picture) in which I ask him (who had taught philosophy of law at the University of Malta for countless years) questions on a number of moral issues about which some of the great intellectual wars of the 20th and 21st centuries have been waged.
The book is in Maltese, as Mifsud Bonnici, affectionately known as Ġoġò, was the only lecturer who delivered his lectures in our national language. Like his father before him, he felt neither Anglophile nor Italianate: he felt Maltese. I fully identified with this self-description.
Apart from such personal side issues, acute observations on the Nationalist Party and Maltese politics, and analyses of moral issues like abortion, euthanasia, etc, the main idea that troubles Mifsud Bonnici in that book is a quintessential issue for the philosophy of law and one of the basic tenets of the rule of law: legal certainty. The citizen should not learn what the law is after court proceedings have begun. The law should not be “discovered” by a judge during proceedings but should be known to all already prior to the coming into existence of the facts.
This is of fundamental importance to the proper functioning of a legal system. It often happens, however, that our written laws refer to “public morality” or similar concepts and this was a real headache for Mifsud Bonnici. The delegation made by the legislator in favour of the judge to legislate morality into ex post facto law offended his sense of statecraft.
It offended him not only because of considerations of legal certainty but also because of the system’s philosophical bases. One judge might “discover” that “public morality” means one thing and another judge might “discover” something else altogether. Why not have the one and the same law for all and that law be known, to all, in advance?
Giuseppe Mifsud Bonnici was a diehard positivist
In a sense, even though he spoke a lot about natural law, Mifsud Bonnici was a diehard positivist.
Mifsud Bonnici’s solution was ingenious: refer to Catholic teachings as the compendium of the rules making up “public morality”. The risk in his solution, evidently enough, is that of raising the spectre of tense Church-State relations, a spectre that would best be lain to rest. But to my understanding, Mifsud Bonnici’s solution can be understood in the sense that Catholic teachings bind the State because they are customary law.
In a way, they would also indirectly justify the constitutional provision whereby the Maltese State delegates the Catholic Church to teach what is right and what is wrong. Mifsud Bonnici never explicitly says as much in the book but this is what I make of his rhetorical question: since everybody has a different opinion, whose opinion should the judge follow?
It is manifest that Mifsud Bonnici was addressing the problem of the democratic deficit in judge-made law. The judge is not an elected representative of the people and never has to answer to an electorate. So how can the judge make law?
The obvious problem with his model is that neither is the Church democratic nor does it have to answer to any electorate. That said, one could argue that the people bestow legitimacy on the Church’s teachings by following them. If the people in their vast majority follow the Church’s moral teachings as a matter of course, as an anthropological phenomenon, then the democratic question does not even arise because customary law is somehow democratic by its very nature.
This has nothing to do with the big discussion with Giovanni Bonello about the supremacy of Parliament versus the supremacy of the Constitution. The debate with Bonello, which was not referred to in the book, centred on positive law-making (when Parliament makes or abrogates laws) versus negative law-making (when the Constitutional Court declares a law unconstitutional and removes it from the statute books).
In his interviews for our book, Mifsud Bonnici was referring to a different issue: positive law-making being delegated to the judiciary, a practice which deeply offended his strict, almost prudish, sense of the separation of powers.
Mifsud Bonnici’s insight into the intersection between religion and law, through the intermediation of morality, can be better understood in the light of Harold J. Berman’s two-volume Law and revolution (The formation of the western legal tradition [1983] and The impact of the Protestant Reformation on the western legal tradition [2003]) and Jean-Louis Halpérin’s reply, Five legal revolutions since the 17th century: an analysis of a global legal history (2014).
Mifsud Bonnici’s solution is essentially Maltese. It is a legal model for a more or less culturally homogeneous, non-multi-denominational, single-legal-system community. His solution clearly belongs to a certain philosophical tradition and is self-evidently inimical to multiculturalism. It is internally coherent and solves one of the thorniest problems the judiciary and the notarial profession have to face: how to determine the rules making up “public morality”.
This alone is enough to make him a major Maltese philosopher.
Mark Sammut is a lawyer and author.
This is a Times of Malta print opinion piece