Treatise on the Principles of Malta Public Law Book One

by Kevin Aquilina,

published by Midsea Books

Kevin Aquilina, former dean of the Faculty of Laws of the University of Malta, has recently published book one of his Treatise on the Principles of Maltese Public Law.

Kindly partly sponsored by the National Book Council, the Farsons Foundation and the University of Malta, the book is published by Midsea Books. The whole treatise, when complete, will consist of 10 books and will be spread over circa 10,000 pages.

It is intended to be the first comprehensive oeuvre published in Malta that will introspect several branches of Maltese public law including constitutional law, administrative law, human rights law, public finance law, media law, criminal law, local government law, the Maltese legal system, the principles of Maltese law, education law, legislative drafting and statutory interpretation, public international law of Malta and other related subjects.

The treatise is not written as a monodisciplinary work but draws upon several other branches of human knowledge – such as theology, philosophy, sociology, literature, public policy, government studies, international relations, legal history and others – with which the juristic science of law is constantly in contact therewith.

Book one is more philosophical in nature as it lays the groundwork for the study of law. Aquilina comes up with his own innovative definition of law after surveying many other extant definitions. He distinguishes between various branches of the law to illustrate better for what Maltese public law stands.

He thus contrasts between eternal law, divine law, natural law, and positive law; public law as distinct from public international law, and private international law; military law as distinct from martial law and public emergency law; ordinary or regular law as differentiated from exceptional law; the international dimension of public law that focuses upon public international law, global law, non-state law, cosmopolitan law, global goods law, planetary or intergenerational law, and principles such as the common heritage of humankind, the common interest of humankind, and the common concern of humankind.

Aquilina proposes a new expansive and holistic branch of international law that should replace extant branches of public international law that he calls inter-humanitarian law (as distinct from international humanitarian law). He constructs a typology of Maltese offences – criminal, military, administrative, disciplinary and environmental, and contrasts them with civil wrongs/civil law damages.

As much as law cannot be separated from society, justice cannot be separated from law

He supports a distinction between law and morality but recognises that both normative sciences are complimentary, and morality cannot be divorced from law as otherwise mass atrocities such as the holocaust and other genocides, and other human abominations will result therefrom.

The former dean distinguishes public law from politics, public policy, international relations, sociology, and theology; law from society; legal science from the social sciences; and law from culture, and views law as subordinate to society, being premised upon these other normative and social sciences.

The treatise will introspect several branches of Maltese public law. Photo: Shutterstock.com

In Aquilina’s conception of legal science, justice is paramount and is acknowledged to be a cardinal virtue unpinning the essence of law-making and judicial interpretation. As much as law cannot be separated from society, justice cannot be separated from law.

He is therefore critical of any approach to legal interpretation that elevates the word of the law beyond the spirit of the law thereby applying the rigour of the law indiscriminately without at times considering fairness, equity, equality, proportionality, and other legal principles covered across this treatise.

In the preface, Aquilina sets out the legal methodology which he will follows throughout the entire treatise together with the citation style adopted. He clarifies that his work is solely authored, leading him to publish it piecemeal rather than as a whole product.

Overall, this book must be lauded for the wealth of information it contains, how one theme is developed into another rendering the chapters to flow steadily but coherently.

He is to be eulogised for the innovative overall approach adopted by the author in employing diverse legal background and methodologies. It is set to fill a huge gap that hitherto exists in legal literature. No doubt, the rest of the treatise is set to regale the legal profession, students and the public with a comprehensive magnum opus on Maltese public law.

Raymond Mangion is head of the Department of Legal History and Legal Research Methods, University of Malta.