Graduation Ceremony 21
Wednesday 9 December 2015 at 1630hrs – Jesuits Church Valletta
Graduation Oration
Dr David Edward Zammit LL.D. Ph.D. (Dunelm)
Faculty of Laws
As I look at your bright and happy faces, my memory throws up an image of my own first graduation
ceremony some twenty five years ago. At the time a well-known Humanities professor had urged us (I
quote from memory): “grab your guitars, sing demonstrate, protest…do something to challenge the
lukewarm passivity which surrounds us.” These words were a wake-up call to us then and remain
relevant today. Indeed, you are currently in what anthropologists call a ‘liminal’ state; poised on the
brink of an important transformation in your lives and careers. Once today’s rite of passage is
completed, you will have stepped over the gulf separating the world of the University student from that
of the graduate. Traditionally, for law students obtaining the LL.D. degree this was understood as a
movement from ‘Theory’ to ‘Practice’ rather hyperbolically described in terms of: ‘il-prattika kollox’
(practice is everything) and ‘meta tohrog mill-universita tkun ghadek ma taf xejn’ (when you emerge
from your University studies you as yet know nothing). Tonight I will be contesting the devaluation of
the academic study of law implicit in such expressions and indicating various ways in which theoretical
understanding can be usefully applied to and combined with the sort of practical action in the “real
world” that was recommended to me and my cohort of graduates twenty five years ago.
While preparing today’s speech, I thought of paraphrasing Gabriel Garcia-Marquez and entitling it ‘Law
in a time of Terror’. The region we live in is currently going through a very difficult period darkened by
war, terrorism, mass migrations of refugees and the rise of the security state. In this context, good legal
education, like the very idea of human rights and the rule of law itself, might easily appear as an
unaffordable luxury… the pursuit of an idealistic chimera, which is hopelessly unrealizable in the world
we inhabit. The alternative view, which I will be championing tonight, is that the practice of law,
informed by a sound understanding of its relationship to justice and human rights, represents our best
hope of defending the values of tolerance, respect for human dignity, solidarity and freedom which lie at
the heart of our society. These values need to be defended not only against their overt proclaimed
enemies, but also against some of their friends, whose over-enthusiastic defense of freedom risks
undermining some of the foundations upon which this freedom must be built.
As an academic whose research has mostly been conducted in the no-man’s land between private law
and legal anthropology, my mind naturally turns to the Civil law as a field where the need for
theoretically informed law practice promoting human rights values can be assessed and demonstrated.
Here I immediately encounter a series of obstacles which have for a long time fostered the illusion that
the rules of Civil law are somehow immune from interference, even perhaps from “contagion” by the
principles underlying human rights. The roots of this belief can be traced back to the status of the Civil
code as one of the famous ‘saved codes’ which the Independence Constitution originally exempted from
Constitutional review. They have also, perhaps, been affirmed by the procedural rules which make
specific human rights remedies a last resort. As Chief Justice Emeritus Joseph Said Pullicino reminds us:
“This single track, straight jacket iter that the right of individual petition has to follow before specialised
Courts with exclusive jurisdiction, constitutionally determined, has led to the erroneous notion that the
identification of a violation of a fundamental human right or its threat and its redress were exceptional
circumstances that require an exceptional remedy.”1
The misconception that the technical and specialised nature of Civil law rules somehow shields them
from scrutiny of their conformity or otherwise with the values underlying human rights, has also
spawned the notion that our Civil law as a whole is only susceptible to a “practical” or “technical”
application or critique. While I would not like to overstate the extent to which this idea has diffused
within our legal profession, I would like to show, by referring to a few practical cases documented by
students I supervised, including some who are graduating today, how problematic this idea is. How
important it is to be able to reach beyond the literal wording of the Civil code and related statutes and
to draw upon ideas of justice, fairness, human dignity and human rights in order to properly understand
and apply law in practice!
My first practical example is drawn from the field of Tort law; where, as we know from the relevant
jurisprudence of our courts, the damages which can be paid by a tortfeasor are subject to a
compensatory logic geared towards achieving a restitutio in integrum. This compensatory logic has itself
to be exercised within the confines of Article 1045 of the Civil Code; understood and applied, insofar as
compensation for lucrum cessans is concerned, through the prism of the decision in the leading case of
Butler vs Heard. The limitations of this system are well known. Moral damages for pain and suffering
suffered by the victim cannot be compensated directly as such because they are not mentioned within
the categories of compensable damage listed in Article 1045. Yet our courts have often affirmed, most
recently a little over a year ago in the Appeal decision of Busuttil vs Muscat,2 that although our courts do
not give moral damages, the compensation they give is nevertheless sufficient to compensate for the
damage suffered by the victim and therefore presumably somehow indirectly compensates for the
moral damage as well. This reasoning was actually rejected less than a month after the judgment was
delivered, when the European Court of Human Rights delivered its judgment in the case of Brincat and
Others vs. Malta.3 It is nevertheless interesting to observe how our courts have managed to construct an
edifice for compensating psychological pain and suffering by construing it as harm which indirectly
1
Joseph Said Pullicino, ‘The Ombudsman: His role in Human Rights Protection and Promotion’ in David Zammit
(ed), Maltese Perspectives on Human Rights (University of Malta 2007), p.122
2
Linda Busuttil et. v. Dr Josie Muscat u Tania Spiteri, delivered on the 27th June 2014
3
This judgment was delivered by the European Court of Human Rights on the 24th October 2014.
affects the victim in his or ability to work in the abstract and thus also leads to the sort of future loss of
income which is considered compensable under Article 1045. Thus we see how our courts, through their
theoretically informed interpretation of the Civil Code provisions, have sometimes succeeded to achieve
restitutio in integrum in cases which were not envisaged by our legislator and despite codal provisions
which appeared to deny this possibility.
A counter-example, where a rigid and outdated understanding of the Civil code continues to hamper the
development of our law and its ability to provide just practical solutions to problems people face, can be
found in the interpretation of our Civil Code provisions on unlawful causa in relation to contracts. Our
jurisprudence in this field appears to be wholly dominated by traditional understandings of morality and
public policy. The failure to connect the understanding of unlawful causa with human rights principles
and values means that we are still uncertain as to the correct legal solution when we are faced with
contracts which appear to contradict human rights principles. An example would be a contract by which
a father gave his daughter a sum of money on condition that she only marries a man of the same
religion as him. Would such a contract be given effect by our courts or would it be considered as
contradicting the value of freedom of marriage, which is also protected and expressed in human rights
law? I suggest that the failure to elaborate a new theoretical understanding of Maltese public policy
which reflects developments made in our understanding of and respect for human rights values, lies at
the heart of these difficulties. This is where the academic study of law, known in Civilian countries as
doctrine, must lead the way. We at University have a special responsibility in this regard.
In conclusion I would like to return to my starting point from a comparative perspective. On reflection
the over-valorisation of legal practice which characterises Common law jurisdictions may be as harmful
to the rational and harmonious development of law as the undue importance given to legal theory
detached from its practical applications has proved to be in certain Continental jurisdictions. Instead the
ideal I would like to put before you, particularly the students graduating with the LL.D. degree, is one
which was dear to Saint Ignatius, the founder of the Jesuit religious order which built the church in
which today’s ceremony is being held. Saint Ignatius urged his followers to be contemplatives in action;
that is to seek to align through their lives the values of practical action and theoretical contemplation
and study. In the same way, I would suggest that you think of this ceremony not so much as one where
you leave the world of theoretical study to enter into the world of practical action, but rather as one
where you move to a new level in which you will be given the opportunity to blend theory and practice
in such a way that you progress in your understanding of both. In this way, incidentally, you will also
conform to my favourite definition of lawyers: ‘a reasoning element in society.’