By Dr Edward Mussawir, Griffith Law School
The opening words of Justinian’s Digest, the great surviving compilation of Roman law, contains a thought on the relation between the concepts of law and justice. ‘For he who intends to devote himself to law (ius),’ the jurist Ulpian states from his guidebook for students, ‘first it is necessary to know from where the very name of law (ius) derives. It is called such from justice (iustitia). For … the law is the art of goodness and fairness.’ (Digest 1, 1, 1).
On its own the passage isn’t very remarkable. In the place where Justinian enshrines it, it would be easy to take it either as a relatively empty introduction, aimed at lifting esteem in the lawand the study of law in particular.
Or it could be seen as resembling something of a more critical reminder, one which is similar to the way our better teachers,remind us from the start not to neglect in our studies that which always exceeds the law: the singularity of justice.
Should law or justice come first?
Yet, it takes only a small piece of historical context to reveal a different picture. When Ulpian makes ius (law) derive from iustitia (justice), the etymologies of these words, the paths by which one word is derived from another, are actually quite deliberately reversed.
In fact, the opposite of the statement was clearly true, as Aldo Schiavone tells us, that: ‘iustitia derived from ius and not the other way around,’ (Aldo Schiavone, The Invention of Law in the West. Trans. Jeremy Carden and Antony Schugaar, 2012, p. 419) and this would have been well-known to the writer and his audience.
Ulpian was thus not solemnly reminding and urging his audience to remember justice or to put justice first. The fragment must have had a sort of irony to it. It was not a strict and dogmatic observation from the jurist about the absolute nature of law. It was an earnest and at the same time playful piece of wisdom shared between a teacher and his students about the possibility and the occasion of studying it.
What does it mean to be a law student today?
History allows us to glimpse something fascinating here about what it means to be a student of law today because it is precisely the shared context and the independence of the student reader that is indispensable to reinsert into this fragment for it to take on its fullest meaning.
We notice the way that Ulpian, the teacher, the jurist, is not what we first assume. He is not pontificating to mindless devotees on the nature of law. He is constructing instead a rhetorical reversal in order to make this intimate thought that he has on the nature of his craft resonate more vividly for the reader who comes to it for the first time.
If the origins of law and justice are switched around, it is to convey and to emphasise something about the true philosophical life of legal study: a philosophical life that students and teachers must share, regardless of whether they are trained for entering a profession, and shared all the more closely when confined to the technical and pragmatic art of jurisprudence, of which the jurists are, Ulpian says, rightly called the ‘priests’.
Hidden within this fragment, in other words, is a kind of witticism, made for the initiated, poking fun at that which claims to speak in the name of justice but which, next to the study of law, only appears like a false philosophy.
Why these opening words of the Digest should still be of interest to law students today I think is that they remind us of the way in which students are present and indeed play an active, independent and indispensable role in the production of the meaning of law, even toward the depths and origins of the Western tradition.
Dr Edward Mussawir is a lecturer at the Griffith Law School.
Dr Edward Mussawir co-edited with Dr Chris ButlerSpaces of Justice: Peripheries, Passages, Appropriationsavailable now through Routledge.