Graduation Ceremony 2
Academic Oration
Friday 19 November 2010 at 1630hrs
JESUITS’ CHURCH – VALLETTA
Oration
Dr. David Zammit
Head, Department of Civil Law
Faculty of Laws
The Law Faculty, to which most of today‟s graduands belong, still uses the quaint and
old-fashioned title “Doctor of Laws” to describe the degree which is awarded after six
years of full-time study and which is considered by the Maltese State as a necessary
prerequisite in order to be allowed to practise the profession of an Advocate in Malta.
The word “laws”, here, traditionally refers to the Civil and the Canon laws, harking back
to a time when law students were expected to be learned not only in the Jus Comune, that
is the Roman law as it had been redacted by Justinian and rediscovered in the great
medieval universities, but also in the Canon law, which was the law of the universal
Church. This title jars with modern sensibilities, which not only expect law to be secular
but are also suspicious of the plural form, given that we expect law to originate and be
administered within the confines of a unified national legal system. Not surprisingly,
there are periodic calls for the abolition of the Doctor of Laws and its replacement by a
more rational-sounding title for the degree.
Yet such demands, which often accompany calls for the reform of other aspects of
Maltese legal education, should also provoke broader reflection concerning the overall
purpose and scope of this legal education. What kind of formation should we aspire to
give law students? What counts as best practice in this field? What is a “good” legal
education and how does one gauge its success or failure?
These questions were raised over a century ago by law professor Ullo Xuereb who,
addressing Malta University law graduands in 1898, observed:
“Let us listen to the words of Paillet: Endow a man with all spiritual gifts.
Give him too all the gifts of character. Ensure that he has learned everything
and remembers everything he learned; that he has worked for thirty years of
his life; that he is at the same time a scholar, a critic and a moralist; that he
has the experience of the old, the ardour of youth, the infallible memory of a
child and maybe with all these qualities you will form a perfect advocate.
Endowed with these gifts, consecrated to the well-being of humanity,
generous and always overflowing with blessings because he is a gentleman of
goodwill, the advocate becomes a real social force.1” (Ullo-Xuereb 1898:8)
Much of Professor Xuereb‟s wish-list sounds strange to our, modern, ears, although we
may still be willing to endorse it. For instance we would probably be less willing than he
was to presume that the advocate is necessarily “a gentleman of good will”, still less that
he is “consecrated to the well-being of humanity.” It is interesting, however, to compare
his description of the “perfect advocate” with its counterpart as delineated in the
Consultative Document on “Regulating the Legal Profession for the Twenty First
Century”, drafted by the Malta Chamber of Advocates in 2008:
“Our professional values have for centuries been characterized by the
probity and integrity of the lawyer. In the current day and age these are
simply not sufficient on their own. One of the elements that should
characterize the new reformed profession is a high level of professionalism
and competence – that together with the traditional values should create the
lawyer of the future.2”
The new stress on competence and professionalism found in this Consultative Document
reminds us that the goalposts of what constitutes a good legal education have shifted
historically and will continue to shift in tandem with changing perceptions of the nature
and function of law. For this reason too it is important that legal scholarship never
degenerate into the purely formalistic study of abstract rules which have been
disembedded from their social context. Producing graduates who are able to adapt to
changed understandings of their role and collaborate with other professionals from
different disciplines, requires us to contextualise legal teaching so that students can know
where legal rules are “coming from” and where they will be applied. It is here important
to recall the stand taken, back in the 1970‟s, by late Lord Dahrendorf, where the
distinguished sociologist insisted that Maltese legal education should not be conceived in
purely utilitarian terms and should encompass the study of the human sciences. Indeed if
law, as the anthropologist Clifford Geertz insists, is: “a species of social imagination 3”,
we must ensure that our law graduates are equipped to: “Dream other dreams and better
ones.4” The cost of an impoverishment of the legal imagination may be a high one
indeed, finding expression in the violation of human rights, creeping authoritarianism,
and the cynical elevation of professional interests above professional ethics. By
comparison the investment required to teach law holistically is surely well worth the
price.
The holistic study of law is best carried out when students are not only taught to
contextualise what they learn, but also when they are empowered to relate the theoretical
study of law to its practical application. US law schools are acknowledged leaders in this
field, having developed various forms of experiential learning, ranging from role plays to
internships and legal clinics, these last being structured environments in which supervised
students are given the opportunity to put their legal knowledge into practice by offering
pro-bono assistance to needy clients. In this context it is interesting to note that the recent
report on reforms to law teaching produced by GHSL, the law students‟ society, has
expressed the desire for “a more clinical approach to law teaching.5” The Law Faculty is
beginning to respond to this need by creating various new courses, such as the study unit
in Advocacy Skills where students are given the opportunity to work on real cases under
supervision. However there is still much work to be done to ensure that all students are
adequately taught how to relate the „law in the books‟ to the „law in practice‟
Treating American legal education as a model inevitably raises questions regarding its
applicability to the Maltese setting. These questions are challenging because they evoke
the divide which continues to exist in the way in which legal education is structured in
Common law countries and in those which follow the Civilian tradition. Experiential
learning and the case study method have been developed in the Common law countries
far more than in the Civilian ones, whereas the Civilian countries continue to treat the
systematic study of the provisions of their Civil codes as the foundation of legal
education. In Malta the challenge is even greater, given the mixed character of the legal
system, in which Civilian and Common law rules, concepts and doctrines jostle side by
side and where students are expected to be equally conversant with both traditions.
As scholars, lawyers and teachers, I and my colleagues in the Law Faculty are often
tempted to resolve the resulting complexity by ignoring it, or by striving by sheer force of
emphasis to ensure that our preferred way of understanding the Maltese legal system
prevails, at least temporarily. So we hear statements to the effect that the Maltese system
is really a Civil law or Common law system, relegating the other tradition to a marginal
status. Some delight in embracing the Common law methodology and terminology;
others seek comfort in a purist approach which treats all attempts to apply Common law
doctrines as a potential contamination of our unsullied waters. Yet it would seem that
such unilateral attempts to assign the legal system as a whole to one or the other of these
Legal Families are misguided and must fail. The way forward surely lies in
acknowledging this mixity and recognising that the Maltese legal system is forged at the
precise point of intersection between these different legal systems and traditions. This is
after all the approach taken by our colleagues, operating in mixed jurisdictions such as
Scotland, South Africa and Quebec.
If we approach Maltese legal education in this open and collaborative spirit, the various
competing models which we can draw upon for inspiration can come to be seen as a
strength and not as a weakness. Rather than seeing experiential learning as an unwelcome
intruder in the hallowed domain of Civilian law, we might see it as an approach to legal
learning which can complement the effort of memory and logical elaboration required to
understand our law-codes. Instead of seeing Roman law and our Civilian heritage as an
obstacle to modernising our legal teaching, we might see in them the logical foundation
of the various European legal systems; the study of which not only equips us to handle
our own private law, but also provides us with the necessary keys to unlock and access
continental European law. In brief it would seem that while Common law legal pedagogy
is well suited to transform law students into advocates, the Civilian methodology has the
potential of transforming them into jurists.
The approach advocated here rests on the basic insight developed by legal
anthropologists that the various competing rules that characterise a mixed jurisdiction
like the Maltese are only an accentuated version of a generalised global phenomenon of
legal pluralism. As Brian Tamanaha describes it:
“Legal pluralism is everywhere. There is, in every social arena one examines,
a seeming multiplicity of legal orders, from the lowest local level to the most
expansive global level. There are village, town, or municipal laws of various
types; there are state, district or regional laws of various types; there are
national, transnational and international laws of various types. In addition to
these familiar bodies of law, in many societies there are more exotic forms of
law, like customary law, indigenous law, religious law, or law connected to
distinct ethnic or cultural groups within a society. There is also an evident
increase in quasi-legal activities, from private policing and judging, to
privately run prisons, to the ongoing creation of the new lex mercatoria, a
body of transnational commercial law that is almost entirely the product of
private law-making activities.
What makes this pluralism noteworthy is not merely the fact that there are
multiple uncoordinated, coexisting or overlapping bodies of law, but that
there is diversity amongst them. They may make competing claims of
authority; they may impose conflicting demands or norms.6”
At this point I would like to observe that contemporary legal pluralism has brought us
close to the situation of medieval legal pluralism, to which I referred in my introduction.
It would appear, in fact, that the expression Doctor of Laws is in the process of acquiring
a new meaning. The word „Laws‟ no longer refers to Roman and Canonical law, but
rather to: (i) diverse legal families, whether Civilian or Common law; (ii) plural legal
orders: European, International, National and Transnational; as well as (iii) various
systems of social norms and regulations operating at the sub-state level. Because our
system of legal education, at its best, produces graduates who are capable of navigating in
these diverse and tricky waters, it would seem that we should continue to retain the plural
form of the Doctorate in Laws.
In conclusion I would like to express my heartfelt congratulations to today‟s graduands
and to augur them success and happiness in their future careers. I hope in particular that
the LLD graduands have managed to acquire a sufficiently comprehensive and flexible
perspective on law to justify the award of the Doctor of Laws degree.
___________________________
1
Ullo-Xuereb, B (1898), Carattere, Dignita e Doveri della Professione Legale, Valletta,
Malta, Malta Press.
2
Chamber of Advocates, Malta (2008) Consultative Document on “Regulating the Legal
Profession for the Twenty First Century:”
http://www.avukati.org/chamberofadvocates/common/file_provider.aspx?id=6335604293
7286500
3
Geertz, C. (1983), Local knowledge: Further essays in interpretive anthropology, NY:
Basic Books, p.232
4
Twain, M (1916) The Mysterious Stranger, See Chapter 11 here:
http://www.classicreader.com/book/1370/11/
5
GHSL,(2010) Law Course Reform Report, downloadable from:
http://www.ghsl.org/index2.php?option=com_content&do_pdf=1&id=96
6
Tamanaha, B.(2007) “Understanding Legal Pluralism: Past to Present, Local to Global,”
in Sydney Law Review, Vol. 29 http://ssrn.com/abstract=1010105,p.375