A tide of constitutional reform has arrived to our seashore - Interview with Egill Helgasson - TV Program Silfur Egils - 21 March 2010

"There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; omitted, all the voyage of their life is bound in shallows and in miseries".

Shakespeare's  Julius Caesar, Act 4, Scene 3, lines 217-221.

The quote is spoken by Brutus, during the civil war which occurred after the assassination of Caesar.  Brutus is in effect arguing that the time is right, and their opportunity is now; if they do not take advantage of it, it will not come again. 


I approach law and constitutional from a European perspective because, due to my education and background, I tend to have a different view on issues discussed by the Icelandic society. I also have to clarify that I work in the field of European law where constitutional reform is a dynamic never-ending process. The EU Treaties have been reformed 5 years since I started specializing in this field.

The way I approach law is certainly different to what you are used to. Some reasons explain this:

1) I believe that law and politics are not separated by an abyss but should work together. I believe that law should serve society and its citizens in their search for a better future.

Law subject events to the rational order of pre-settled rules and judges are charged with the task of administering and interpreting rules. Politics is the means by which new law is created. Politics is the vehicle for making changing of societies. Politics looks to the future while Law provides a continuity with the past. In my discipline law and politics are not separated by an abyss, there are always bridges between the two. Academics talk about Judicial Activism – where judges do not only interpret but also create European law (creating rights for citizens, for instance ) – and Legal Politics – where politicians which are the law-makers bring politics into law. I believe that law can and should be changed to serve society, not simply to preserve the status quo. I have been educated not only to describe and apply the European law that it is but also to advocate for change and build a European legal order for the next generations.

2) I am critical towards law and some schools of legal thought which are not universal.

Example: interpretation of the New Testament by catholics and protestants regarding the ordination of women priests....should we prohibit it just because Jesus did never choose a woman apostle? Should not we interpret the Bible according to the needs our present societies? I believe that the rule of law should be interpreted in a dynamic way in the best interest of society, not only applying rules to facts but also providing justice and equality. Romans used to say in some circumstances: Summa iuris summa injuria. The maximum application of law can lead to the greatest injustice. This is still a maxim that has to be remembered today.

3) I always look at the limits of the law. And that law needs to respect fundamental rights and democratic will of people, otherwise it is illegitimate and therefore cannot be called “law”. Unfortunately, I remember that -sometimes - law can be "unlawful".

After 40 years of a dictatorship following a civil war, legal education in Spain made compulsory 2 years of legal philosophy, one at the beginning of our studies and one at the end. In Spain law graduates learn the current law but we also take it as relative and not absolute. We learn what law can do and what law should not do. We learn very well the difference between legality, morality and legitimacy. We learn how law is used and misused and concepts such as civil disobedience when a regime acts beyond its powers. My teacher was nobody else but the Dean of the Faculty of Law of the University Complutense of Madrid: Prof. José Iturmendi Morales.

So there are fundamental things for me which are always on my mind when I think about law and a process of constitutional reform. Legality, Ethics and Legitimacy are the three pillars of the law and the "law of laws" which is the Constitution.

My message today is very simple: as many have argued before me, there are historic opportunities that arise for men and societies at certain moments of their existence which simply have to be followed as they cannot be ignored.

As, it is the case in Iceland today, we are living in a constitutional moment of reform that we may not realize in full because we are too busy focusing on the economic consequences of the crisis. But the truth is that a unique political and sociological context is before us and we should be honoured to follow and participate in the discussions of a new constitutional order. 

 The President of the Spanish Constitutional Court has recently declared: “Without Constitution there is no future” calling for reform. This is because a Constitution must necessarily reflect the values and principles which are fundamental for the society so that we do not become slaves of other values and legal institutions which are outdated.The world in 2010 is very different now than in other times such as the 1789 French Revolution which gave rise to the Declaration of Human Rights. And yet the same revolutionary beliefs for which Europeans have fought over thousand years are still at issue around the world -- the belief that the rights of man come not from the generosity of God, but from us, sovereign people in democratic system who are the ones giving the legitimacy to the State. In a democracy, we are the demos, the power, we the people.

One of my favourite moments of history is the call for democracy and human rights that occurred in the aftermath of the Second World War. European civic movement started there. Hundred of peaceful activists, a lot of women, requested European powers to create a new legal order so that the same mistakes would not happen again. And the European Council of Europe was created. And so the European Convention of Human Rights that we enjoy today.

As Helmut Khol, historian and Chancellor of Germany said “A people who does not know its history, cannot understand its present nor build a future”.  We should not forget today that we are the heirs of many European wars and revolutions where millions of people sacrificed their lives for us. And this torch of law, democracy and human rights that started in Greece and Rome has been passed to us by history. Is it the destiny as the Greeks would argue? I do knot know.

What I know for sure is that, after the publication of the investigations of the Truth Committee in Iceland, it is essential to convert negative thoughts and experiences into positive change. We have to leave behind this black page of our recent history. A wonderful way to start anew is to send the message to the world that we will assure the survival and the success of this country, that we are one of the oldest democracies of the world and that, no matter what, we are committed to liberty, peace, fundamental rights and democracy. This would be a new page for our history.

Let me remind you that citizenship has rights but also obligations. And history sometimes forces us to take obligations that are not easy. For this task we need to act all together and look beyond our political differences. Divided there is little we can do. Not always we will share common views but we shall always hope to find the compromise solutions that we can all live with dignity.  

To participate in a constitutional process we have to begin anew -- remembering on both sides that civility, courtesy and respect are not signs of weakness, and sincerity is the minimum we deserve towards each other. Lets not argue and negotiate out of fear, but lets not be afraid to discuss and negotiate. We can explore together the problems that unite us instead of fighting over those problems which divide us. Let all sides of our society, for the first time, formulate serious and precise proposals to build a better future. We should aim for excellence. We should  aim not only to have a new society contract between us with maybe a new balance of power, but also a new world of law and institutions – where social justice, peace, democracy, sustainable development for us and our children are guaranteed. 

It is an honour for me to join and participate in this historic effort. But, as the President would say, my fellow Icelanders, the final success or failure of this intellectual adventure is in your hands more than mine.  

Constitutional reform is often the result of violent confrontations. The revolution I have seen in Iceland is as soft as velvet. I think most of us want a new revolution similar to the light which was given to us by Yoko Ono in Videy island: a bright light for the future, a peaceful revolution of hope. In my view, this is the most beautiful one. 

In the long history of Europe, only a few generations have been granted the honour of going through a process of peaceful constitutional reform. We should not avoid this responsibility – we should welcome it. Like President John F. Kennedy requested to his fellow Americans in his famous speech beginning his term in 1961, ask not what your country can do for you; ask what you can do for your country. This letter is just a distant echo of his inspirational speech and I have taken the freedom to borrow many of his beautiful expressions in English language. 

Because as Shakespeare would say, this tide of history and constitutional reform has arrived to our seashore. It is a tide that will lead us to fortune but, if we miss it, it might lead us to misery. Lets work together for this land that we all love because this is the main reason why I chose to live in this country.  

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1 identicon

Ég vildi óska aš fleiri hefšu žinn žankagang ... :)

gerdur (IP-tala skrįš) 23.3.2010 kl. 17:02

2 identicon

Algjörlega frįbęr samantekt hugsandi konu. 
Viš getum veriš stolt aš hśn skuli hafa vališ okkar land sem sitt land.  Viš eigum aš hlusta į hana, nota žessa grein sem leišarljós aš "Endurbęttu Ķslandi" og greinina žarf aš žżša yfir į ķslensku svo sem flestir geti skiliš innihald og bošskap hennar.

JÓ (IP-tala skrįš) 25.3.2010 kl. 08:58

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