'Essays in Maltese Legal History Vol. 2'
Author: Dr Mark Sammut-Sassi
Publisher: Pзrtіnǝnt Press / 2024
Dr Mark Sammut-Sassi's Essays in Maltese Legal History Vol. 2 is a superb collection of legal papers. Every single one of them is carefully researched, making this 158-page volume legally, historically and philosophically fascinating. The elegance and attention to detail is his signature, as the author went through the trouble of meticulously choosing even the front cover, namely Arpad Szenes's Vers l'Ouest. What's more, the preface is likewise a chef-d'oeuvre in itself written by none less than the former Maltese judge at the European Court of Human Rights, Giovanni Bonello. Conceivably, the latter's words describe the feeling one gets when working his or her way through the book, "you find yourself levitating towards the higher rungs of the philosophy of law and of history of legislation". Carried away by Bonello's cerebral light-heartedness, I titled this piece brazenly mimicking his preface (that is, Almost a Preface).
The brief introduction sets the tone for the rest of the book. Sammut-Sassi's "interest is mostly piqued by the history of ideas". The author's outlook is not that of "history-of-legislation". Though we should take his pledge to possibly "write a monograph" from that perspective, very seriously.
Dr Sammut-Sassi focuses on constitutional and criminal law. Namely, from pages 3 to 39 with two essays, the first one of which is entitled An Enlightened Shadow? Elements of the intellectual climate at the time of the codification of the Criminal Law of Malta, wherein the author analyses the intellectual background in which the Maltese Criminal Code came into being. He concludes that the Maltese drafters of the Criminal Code appear to have reasoned like Europeans handling the old legal principles in the light of the novel Enlightenment thinking. In the second essay entitled: Common Law Contributions to the Maltese rendition of the French Penal Code: Preliminary observations, Sammut-Sassi argues that while the development of criminal law in other European regions was meant to pave the way for the consolidation of the political and economic supremacy of the budding capitalist and industrialist caste, Maltese criminal law seems to have developed to serve the objectives of colonial power.
Furthermore, the constitutional part with three contributions, spans from pages 53 to 101. The first paper entitled Amabile Bonello's Essay on the Public Law of Malta, has this "entirely unknown patriot" making a case for "Malta's legal right to self-government" a "hundred years before independence". Moreover, in J. J. Dillon's 1807 Memoir on Malta, Sammut-Sassi meticulously explores and reveals the 1807 intellectual reflections on the juridical considerations and on the origin of British Malta. Just to quote one example the author states: "Dillon approaches the conclusion by referring, albeit fleetingly, to the manner in which Britain possessed Malta, which, he suggests, was 'anomalous in the history of [her] foreign acquisitions'." Without explicitly stating so, Sammut-Sassi hints at what could have been our legal (and probably our political) landscape had Dillon wore his "barrister's robe" earlier. Last but not least in this constitutional section is Sammut-Sassi's paper Constitutional Law as History, wherein he argues that the "succession of constitutional documents imposed by Britain on Malta imbued the Maltese with cynicism with respect to such documents and possibly to the very idea of grundnorm". As the author submits constitutional law "makes history" as it is in turn itself shaped by history. As Heidegger explains works of history are neither simply factual nor socially constructed, but display a hermeneutical or communicative event of disclosure.
I absolutely agree with Sammut-Sassi, that these two legal fields, the criminal and the constitutional, follow the "flow created by philosophy, politics and economics". Since I have an ever-growing interest in philosophy and a constant interest in law, I find this book extremely satisfying. It tickles both interests, creating an interdependency between the two and at the same time subjecting them to the gravitational forces of history in order to create what in astrophysics is called the three-body problem.
The third and last section of this volume is dedicated to two reviews, one of which Sammut-Sassi does himself, entitled: Understanding Giovanni Bonello: The Most Important Book of the Decade. He closes his review by stating "[i]f only all of us, every single one of us, were really to understand the Constitution, then nobody would undermine our human rights anymore". The other, a review of Volume I, is written by one of Sammut-Sassi's (and mine) mentors, the late Chief Justice Emeritus Giuseppe Mifsud Bonnici, entitled Intriguing aspects of Maltese legal history, Review of Maltese Legal History and Comparative Law. Suffice it to say here, without spoiling it for you, that Judge Mifsud Bonnici thought that Sammut-Sassi "is a first-class researcher, ranging far and wide and following all the trails, primary and secondary, which that research suggests".
The book boasts a 14-page bibliography and an eight-page index of authors.
This type of literature contributes to that noosphere so much desirable in the Maltese context. We need more of this.
This is a timely and insightful book, which sheds light on the "why" we do have the messy and disastrous political situation we wound up in today and on the need for an in depth and on-going academic and practical dialogue in the field of public law. A second republic is called for, and it starts with a thorough and sober analysis of "what has happened", like Dr Mark Sammut-Sassi attempts and delivers in this volume. After all, according to Hegel, one of Sammut-Sassi's favourites, the end or goal of history is the actualisation of freedom in the life of the modern nation-state.
Dr Alan Xuereb is a lawyer-linguist and legal and political philosophy author