Graduation address given by the Hon Justice Arthur Emmett

The Hon Justice Arthur Emmett gave the following occasional address at the Faculty of Law graduation ceremony held at 4.00pm on 22 May 2009. Justice Emmett is Judge of the Federal Court of Australia, Challis Lecturer in Roman Law, University of Sydney and recipient of the honorary degree of Doctor of Laws.

The photo of Justice Emmett is copyright, Memento Photography.

The Hon Justice Arthur Emmett

Graduation address

Pro-Chancellor, Deputy Chancellor, Deputy Vice-Chancellor, Professor Triggs, Fellows of the Senate, Participants in the Academic Procession, Families and Friends, Other Distinguished Guests, Graduands.

May I begin by congratulating the graduands on qualifying to be admitted to the respective degrees to which they are entitled? As a Roman might have said: Vobis gratulor. I am delighted to see among you, as well as in the academic procession, a number of former students of Roman law.

I also congratulate your families and friends, who have accompanied you to this ceremony today, for the support they gave you while you were studying. They can now be justifiably proud of your achievements.

Today is the 22nd of May. There are two reasons why the day is auspicious for me.

First, on the 22nd of May in the year 337 of the Common Era, the Roman emperor, Constantine the Great, died at Nicomedia, Izmit in modern day Turkey. It was Constantine who founded a new capital for the Roman Empire on the site of the Greek settlement known as Byzantium. Constantine, not entirely modestly, named the new city Constantinople, or the City of Constantine, which the modern Turks call Istanbul.

It was in Constantinople, in the Sixth Century, that another Roman emperor, whom we know as Justinian, published his great encyclopaedia of the law, known as the Digest, his text book for law students, known as the Institutes and his collection of statutes, known as the Code. All were proclaimed as law to apply throughout the whole of the Roman Empire. The Digest, the Institutes, and the Code contain the Roman law that has been taught in law schools throughout Western Europe and the rest of the world since the foundation of the law school at Bologna in Italy at the end of 11th Century.

The second reason is that, until I was 15, I had always intended to study medicine. However, when I turned 15, I dropped physics and chemistry, at which I was moderately competent, and persevered with history, in which I had achieved mediocrity. I have very much enjoyed my life in the Law and have absolutely no regrets at having made the change: the reason for the change was my introduction to the exploits of Sherlock Holmes, which, for no logical reason, inspired my interest in the law. The creator of Sherlock Holmes, Sir Arthur Conan Doyle, was born 150 years ago, on the 22nd of May 1859.

The 22nd of May will now have a particular significance for me and, I trust, for all of you as well, as we participate together in this time honoured graduation ceremony in the Great Hall of this most esteemed of institutions, the University of Sydney.

The law and the administration of justice must keep pace with technological and human development. Lawyers should be studious in taking advantage of the facilities that are available to them in the 21st Century. I am proud to be a judge of the Federal Court of Australia, which is at the forefront of the use of technology in the courtroom and the employment of modern procedures for the judicial resolution of disputes.

Nevertheless, the need to be forward looking does not obviate the desirability of learning from, and drawing on, the past. I propose, therefore, to reflect very briefly on the significance of the Roman law tradition for lawyers in 21st Century Australia. Much of our modern notions of what is just and right is derived from the Romans and the philosophy of the Roman jurists has had a profound influence on the thinking of common lawyers. The Digest, Institutes and Code of Justinian are the foundation stones of the jurisprudence of all modern European countries. They were also significant in the development of the jurisprudence that was received in the British colonies that ultimately combined to form our great Commonwealth of Australia.

Justinian enacted a new scheme of intestate succession to do away with unfair distinctions between males and females. In the Seventeenth Century, the scheme enacted by Justinian was adopted as England’s scheme for intestate succession to personal property. That scheme was inherited by the British colonies in Australia, although the scheme has since been modified in New South Wales, most recently in 2008, by the Succession Act of 2006.

By the time of Justinian, Roman law had worked out and recognised the equality of women with men in matters of property and contract. That was only achieved at the end of the Nineteenth Century in England and Australia, with the passing of the Married Women’s Property Acts. Until then, under the Common Law doctrine of coverture, a married woman had virtually no legal existence independently of her husband. That is hardly a notion that would be acceptable to us today.

The Roman jurists spoke of ius naturale, or natural law, being those rules of law that natural reason makes for all mankind. Under the laws of most ancient peoples, including the Romans, men and woman captured in war were subjected to slavery. Indeed, the Roman law developed detailed rules for dealing with slaves and the rights of their owners. However, the Roman jurists held that slavery was contrary to natural law since, by natural law, all men and women are, from the beginning, born free. That is a notion that we must, as lawyers, for ever hold dear.

In 1633 Hugo Grotius, the inspirer of modern public international law, said that there is nothing more worthy of a person than the study of law, which links person to person and nation to nation. No small part of that study, he said, consists in the Roman law. So apparent is the equity of Roman law in its several parts, said Grotius, that it prevails even among those peoples whom the Romans could never conquer by arms; it does so, without any force, triumphing merely by virtue of its innate justice.

The Digest is a compilation of the writings of the leading classical Roman jurists. One of the most important and influential of them was Papinian, who was chief legal advisor to the Emperor Caracalla at the beginning of the Third Century. In 211, Caracalla succeeded to the Imperial throne jointly with his brother. He found joint rule inconvenient and murdered his brother. He then commanded Papinian, as his chief legal advisor, to compose a legal justification for the murder.

The glorious reply of Papinian, who did not hesitate between the loss of life and the loss of honour, was that it is much easier to commit fratricide, than to justify it. For that reply, Papinian was executed by Caracalla.

Now I do not suggest that your clients will agitate for that sort of retribution if you give them advice that they do not want to hear. Nevertheless, it is important, when you practise law, to be steadfast in giving unpopular advice that you believe to be right and not to surrender to overbearing pressure to give the advice that your client wants to hear.

You are the last graduates of Sydney Law School to have spent your final undergraduate year in the old Law School building on the corner of Phillip, King and Elizabeth Streets. To one as old as I am, that building is the new law school. My Law School was situated in Phillip Street, next door. Future Sydney Law School students will learn in the new new law school. The University is to be congratulated on its foresight in constructing such a magnificent building for the teaching of law on the main campus.

When Justinian came to the Imperial throne in 527, there were law schools in all major cities of the Roman Empire. However, most of them had pretty poor reputations. Justinian changed all that. He closed down all but two of the law schools, leaving only those at Constantinople and Beirut. Justinian also laid down a new course of study to be followed by students in the two remaining law schools. The course was to occupy five years and the subject matter of the professorial lectures was set down in detail. Not much has changed in nearly 1500 years.

More importantly, Justinian expressly decreed that no one engaged in legal studies was to perpetrate unworthy or harmful jokes or other indignities against the law professors – a very worthy sentiment.

Justinian dedicated the Institutes, cupidae legum iuventuti, to young people who are passionate for the law. In his dedication, Justinian observed that Imperial majesty should not only be graced with arms, but also armed with laws. In that way, he said, good government should prevail both in time of war and in time of peace.

The dedication ends with Justinian’s exhortation to students to receive the law and to apply it in the service of the State and of the people. Thus, Justinian encouraged the graduates of his new law course to be passionate in maintaining and defending the rule of law. That sentiment is just as important for us today as it was for Justinian in the Sixth Century.

May I finish by citing to you the three commandments of the law formulated by Ulpian, another of the great classical jurists, who acted as assessor to Papinian at the time of Caracalla, and whose writings made a substantial contribution to the Digest? The Institutes first tell us that learning the law entails mastery of the difference between justice and injustice. Justice is defined as the unswerving and perpetual determination to acknowledge the rights of all persons. The Institutes then cite Ulpian’s three commandments.

The three commandments, in their original form, are these: Honeste vivere, alterum non laedere, suum cuique tribuere. That is to say: Live honourably, harm no one, give everyone their due.

I exhort you, as you go out into the world to make use of your degrees, to abide by those commandments.

I salute you all. I commend the Law Faculty for its commitment to the teaching of Roman law. I thank the University for the great Honour that has been conferred on me today.