Quis custodiet custodientes?

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Dr Peter Evans

Dr Peter Evans says that there is no need to codify the constitutional conventions in a republic because having a Constitution with so many gaps actually works pretty well.

Independent Australia is happy to publish this view, which is pretty widespread, though it frankly disagrees with it. There is no way to codify all conventions, but codifying a list of Presidential reserve powers is essential in the view of IA. The fact is, unwritten rules aren't worth the paper they aren't written on. If you want to operate largely on the basis of conventions and unwritten laws, why bother with a written Constitution at all? We can do better than a Constitution that is full of holes and unknowns.

This is what IA thinks, but what do you think? Have your say after the article.

Quis custodiet custodientes?

THIS IS an ancient Latin saying translating the question asked in Plato's Republic, "who will guard the guards?" It is also based on the second century Roman poet Juvenal who likewise asked "who will guard the guards themselves?" It is often quoted in questions of a political nature and is translated broadly though still in the spirit of the original question. In the question at hand it could be translated, "Who will watch over those watching over us?” and more specifically "What conventions will protect us while we are being governed by conventions?”

As is well known, our constitution doesn’t always say exactly what it means and often doesn’t always mean exactly what it says, at least to us in the 21st century. In fact, as Philip Shaw and David Donovan have pointed out, it says some rather ‘hazy’ and somewhat silly things. But whatever, it works by unwritten rules which are a sort of gentleman’s agreement. Which is fine provided we remain gentlemen (or gentlewomen) and in our vibrant democracy we do. (Sir John Kerr excepted!)

We should have no fear of conventions because they work quite well. It is neither wise nor necessary (indeed, not even possible) to codify conventions. By definition they are unwritten customs, traditions and practices and can't be clearly put down in words or if they are, the words are able to be interpreted in different ways by different people in different circumstances. They function well in practice and this is very sensible for it is the very way that the brain itself works. Contrary to what we like to think our brain (mind) doesn't usually work with certainties, it works with patterns, probabilities and best guesses. And fortunately, with a bit of creativity especially when it comes to the unknown when our brain is at its best. Here it sorts out lots of new possibilities patterned on the old and has a stab at the one most likely to succeed. It simply picks what is the best fit with the information it gathers. That’s why we are mostly right but sometimes wrong. Nothing is absolutely certain in human affairs: it never has been and never will be. So we should be quite comfortable with conventions and constitutions that aren’t rigid. While we are scientifically Homo sapiens (wise men!), we are more accurately Homo coniciens (men who toss things around and have a good guess)

So let’s change our Constitution simply because it’s way past its use by date and we should not be afraid of doing so at all. Nor should we attempt to codify in detail all the conventions by which it will work. It will work well because the guards will make it work. And why will they make it work? What will make them keen to observe conventions? The crowd! Or in modern parlance, the voters! Don’t they know it! They watch the voting crowd like hawks. And rightly so for we, the people of Australia, vested with sovereign power, will have the last say just as we just did in the recent 2010 elections. There is nothing like the voting public to bring out honesty and humility in politicians. We will be watching the guards and waiting, waiting, waiting till the next election.

Nos ipsi custodiemus custodientes. (We ourselves will watch over those watching over us)

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Quis custodiet custodientes?

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