James Upcher

The Australian Constitution contains no aspirational statements of national possibility or sweeping vision of collective virtue, but the founders did not intend the Constitution’s meaning to remain fixed. It was to function as a prism of our national self-understanding, and its elaboration and development should aim, in the words of Alfred Deakin, to ‘enable the past to join the future, without undue collision and strife in the present’.

Greg Craven, professor of Government and Constitutional Law at Curtin University, attempts to steer a delicate course: to rescue Australia’s founding document from irrelevance and scorn; and to preserve it from the impatient hands of reformists. Although he is more interested in demonstrating the Constitution’s resilience than in exploring in detail the contours of our constitutional democracy, Craven raises important questions about the legitimate roles of the judiciary and parliament, the future of federalism and the prospects for an Australian republic. He writes with zeal and obvious enthusiasm, and, while his rhetorical extravagance is often distracting, his discussion is never dull.

At the time of his death in March 2006, Slobodan Milošević had been on trial at the International Criminal Tribunal for the former Yugoslavia (the ICTY) for more than four years. Greeted initially as a victory in the ‘struggle against impunity’, the progress of his trial was soon hindered by thickets of procedural argument and by the cunning of Milošević himself. Diverting attention from events in Croatia, Bosnia and Kosovo – the subject of his trial – Milošević manipulated every legal avenue available to him, giving the impression that, like the farcical and chaotic litigation in William Gaddis’s A Frolic of his Own (1994), the trial was meaningless, ultimately ‘about itself’.

What role should international law play in the domestic legal sphere? The author of the Institutes of Justinian stated that ‘[e]very community governed by laws and customs uses partly its own law, partly laws common to all mankind’. Nevertheless, a certain view propounds that international law is an unstable or subversive intrusion into the processes of democratic sovereignty and the pedigree of national law. Such a stance, while persistent, denies social fact; the reach of international legal regulation is unprecedented and national bureaucracies increasingly operate beyond state boundaries. Such is the reality of the ‘Fluid State’ which, the editors of this volume suggest, will alter orthodox understandings of the interrelationship between international and national law.

Alexander Downer, when asked on the ABC in February 2003 about the legality of military measures against Iraq, was keen to emphasise Australia’s fidelity to international law: ‘We’ve reached a point where you either take international law seriously and ensure that Iraq does comply with international law or else you abandon the whole concept, at least in this case, of trying to enforce international law.’ But only a month after these comments, the federal government demonstrated its commitment to ‘enforcing’ international law by participating in an invasion characterised as illegal by the preponderance of states and international lawyers.

Campaigning during the 1912 US presidential election, the great labour leader and socialist Eugene Debs used to tell his supporters that he could not lead them into the Promised Land because if they were trusting enough to be led in they would be trusting enough to be led out again. In other words, he was counselling his voters to resist the easy certitude that zealotry brings; to reject a politics that trades on blind faith rather than the critical power of reason.