To the Law Student, From Emperor Justinian

Every Roman law student would have heard of the great Emperor Justinian. We would have heard things, both good and bad, about his understanding (or misunderstanding) of the classical law, tarnishing its purity and sophistication. We would have heard of his extrapolations of texts in the Digest, arbitrary categorisations of law and perhaps Roman law academics who just do not like him. Either way, one thing we can agree on is that Justinian himself seems inaccessible, inaccessible not only in the obvious sense that he is long dead, but also in the sense of him being an emperor more than a law teacher. You would have stopped to pause at the words “law teacher” if you were skim reading through this blog, and you would be right to do for his role as a law teacher is little known nor emphasized, and surely it would sit at a lower rank compared to some of his other achievements. But that does not mean that in itself it was not a great achievement. In this short blog piece, I aim to display that Justinian, through one short passage in a first year law textbook - the Institutes of Justinian – grants transgenerational and transcultural insight into the heart of a law student even today.

In Institutes of Justinian¹ I.I.2, right at the beginning, in a heading entitled “Of Justice and Law”, Justinian writes:

our object being the exposition of the law of the Roman people, we think that the most advantageous plan will be to commence with an easy and simple path, and then to proceed to details with a most careful and scrupulous exactness of interpretation. (Emphasis added)

Here he sets out an educational approach for law students that consists of a two-step plan. Firstly, to begin their teaching “with an easy and simple path”, then only to, secondly, go on to consider the details with the methodology of careful scrutiny. To assert the importance of this educational approach, Justinian provides the consequence of failing to do so:

Otherwise, if we begin by burdening the student's memory, as yet weak and untrained, with a multitude and variety of matters, one of two things will happen: either we shall cause him wholly to desert the study of law, or else we shall bring him at last, after great labour, and often, too, distrustful of his own powers (the commonest cause, among the young, of ill-success), to a point which he might have reached earlier, without such labour and confident in himself, had he been led along a smoother path.

I seldom begin a blog with a personal anecdote, but I think it is fitting this time as I have just gone through the perils of first year law, in an institution where Roman law is a mandatory first-year subject. In hindsight, if I had approached law taking into account Justinian’s warning in mind (which I had not), I would not suffered the consequences that he warned against (which I did). I will also posit that these warnings too apply to other areas of law.

“As yet weak and untrained”

There is no, I think, better way to describe a student memory. Untrained may be obvious. Why go to university if we are trained already? Weak may require a bit of contextualisation. Weak is the opposite of strong, and can be attributed to many attributes! Justinian is clearly not attributing it to physical weakness for example. He is also not attributing it to a student’s aptitude, hinting that they are not ‘suitable’ for the study of law. Otherwise, why would he concern himself with the direction of their education. He instead is referring to their ‘mental stamina” the ability to grasp the concept of law and filter the important materials from the not. Every law student will agree that there is a lot to read. But every law student will agree that the reading gets easier. Why has it gotten “easier”? Because we are increasingly less “weak”. We build our mental stamina through study and practice, through dedicated time, through sacrifice. We are becoming strong.

“a multitude and variety of matters”

Indeed Justinian’s description is apt. To use an analogy, assuming that the amount of law we have to study is the amount of ice cream we have to eat, we not only have many tubs of ice cream, but many flavours. Eating too much ice cream however, regardless of whether more tubs or more flavours are eaten, would lead to brain freeze. In a brain freeze, it feels like you have lost the ability to think. But do not think I am taking the metaphor too far – or to a plane of ridicule – when I compare law provisions with ice cream. The latter is commonly associated with joy, even from the memory of our childhood days. Likewise, whenever we come across a new law, we burst with a ‘sugar rush’ of energy wanting to figure out what it is. In a summer webinar series by Shearn Delamore, with a series of 18 workshops each speaking on an area of law, it is no wonder that the first question that everyone asked was “What was the most interesting case you did so far?”

But departing now from our analogy, note that Justinian refers to this “multitude and variety” as “burdening”. That is clearly not a positive description. When one is shown the breadth of knowledge that one lacks, when one possessed little to no knowledge, the gap feels as large as the abyss. The reality of Socrates’ famous line, “I know that I know nothing” manifests itself with imposing clarity. With maturity and self-reflection, we know that this is truth. That there is an infinite amount of knowledge, and in our entire lifetime, what we know may only amount to a small fraction. Not all of us have the time like the scholar in The Last Airbender who let himself be buried with the trove of knowledge so he may live out the rest of his days learning, knowing that he may never come close to finishing. Law students are humans with other commitments and dedications. It seems an obvious proposition but the nature of the work, the temptation of the “multitude and variety”, presses me to deliver this reminder, for I myself have too been made a victim of the temptation.

“one of two things will happen: either we shall cause him wholly to desert the study of law…”

If I were to be honest, this is the fear that lies in the back of my head. The fear that circumstances will push me to the choice of leaving behind the “study of law”. Certainly I can say now that I do not want that. But how can I predict the thoughts that drive my future decision making? We have heard talks of “abandoning law” or “changing course of study” spoken so much as a joke. However, perhaps in some people, their humorous comments reflect a deeper inner battle. This is especially painful when one defines themselves by their career – a pandemic among stereotypical Asian mind sets, where Law is one of the few only acceptable degrees – and failing to do so is not only a loss of one’s identity, but an insult to that of the family’s collective. Deserting the law is to topple off the hill towards self-actualisation, assuming that is even a meaningful goal of life. Personally, I have doubts with this assumption. But granting this assumption for the sake of argument, deserting the study of law is then not an option for those who define themselves by their career.

What about those who escape this definition, and define themselves by something else. They are vulnerable to being put off by the vastness of knowledge which they have to pursue. It is like showing them a map of world’s longest obstacle course, and telling them about each and every pitfall and danger. Not to mention, internal pitfall and danger in the form of adverse mental health. We do not do these to those who are about to run an obstacle course. Indeed, we do tell them what each obstacle entails so they will be prepared. But we do not focus on every shortfall of stamina we think will prevent them from overcoming each hurdle. Surely if we did so, that would amount to some intense form of pessimism. This is the danger. When we see what there is to achieve when we have achieve close to nothing, we tunnel-vision onto our shortfalls, and if we do not desert the study of law by un-enrolling ourselves, we certainly do so by un-enrolling our spirit.

“or else we shall bring him at last, after great labour, and often, too, distrustful of his own powers (the commonest cause, among the young, of ill-success)”

The alternative to what might happen if the memory of the law student is burdened appears to be less severe at first. This is because it promises progress. Justinian echoes the hardworking long student after days, months and perhaps even years: “at last”. At last we have achieved this level of knowledge which we genuinely hope is enough. Even if its not enough, to embark on that studying journey was a task of “great labour”. But we find little comfort in seeing that people are not comforted by the grind at the ‘bottom of the iceberg’, they only see the shiny top. Regardless of what I, as a law student, tell myself – convincing myself that my great labour is enough – I feel as though I am decorating a lie with the sprinkles of late nights and deadlines.

While this whole section of Justinian’s advice resonated with me as something that law students should be told, it was this symptom, being “distrustful of [my] own powers” that inspired me to write this. Because even after hours of work, even right up to the exam, I felt as though I knew a lot, but I did not know if what I knew was really knowledge. To borrow an analogy from professor Joel Trachtman², I wielded the state power in the form of words in a law student’s briefcase, but I did not know if my weapon was made of metal or rubber. To take this analogy further, when I surveyed the vastness of material, I acquainted myself with an arsenal of weapons, being able to rehearse their names and recite their functions and the battlefields at which they had advantage in. But I never really got more than a couple swings, some even just a touch. Sometimes I falsely tell myself that that is alright, at least it might appear to another that I did. But my lapse of judgement will show itself on the battlefield. But there are situations when one picks up a weapon and is able to wield it, for they wielded it not as it was commonly understood to be wielded, but with confidence, developed their own in the heat of the battlefield. This I could not do.

I found myself uncertain to write what I knew. I dared not think I know, I felt that I either did or did not. But how was I to be the arbiter of this question? For I am just a law student, beginning in my journey. Without a standard of measurement, distrust grew. Even if I did have some objective standard of measurement, I will deem it as high as the bookshelf of unread law books, and feel that I can only spare each section a skim and one or two repeats, never to reach a standard where I trust that I know it all. This is the first devil, the one that whispers that “I will never do enough”, alternating with the other whispering that “what I have done was not enough”. Perhaps this is what C.S. Lewis meant when he said that the devil “always sends errors into the world in pairs”³. Lewis continues:

he always encourages us to spend a lot of time thinking which is the worse. You see why, of course? He relies on your extra dislike of the one error to draw you gradually into the opposite one⁴.

As we cycle between the first error and the second, we build the momentum of distrust. This is as Justinian points out “the commonest cause, among the young, of ill-success”. We then harm ourselves by bashing our worthiness, when we should have used our “own powers”. What are these “own powers”? The power to wield state power. The organisation, interpretation, and filtration of words are the machinery of war which lawyers have access too. When we lose trust in operating this machinery, tt is not that the machinery is not there, it is only that we dare not operate it. How do we then harness this ‘power to wield power’, by driving one machinery every time, and using it to process one material at every time. Do not overheat the machine nor the operator. Clearly the latter is more prone is overheating, as the former is indeed the comparatively very well-resourced state.

“to a point which he might have reached earlier, without such labour”

Justinian observes in retrospect. Surely he must have seen the toil of many Roman lawyers that come and go. See this unexpected paradox he reveals. That by not “burdening the student’s memory”, they would have arrived at a point earlier. If Justinian is right, this has huge implications for our society which favours productivity.

Two more important differences in this counterfactual journey must be highlighted in this regard. Firstly, that this point has been reached “without such labour”. The journey was easier if law students were not burdened with the information of what they had not done. Rather, begin with an “easy and simple” footpath set out before revealing the chisels and cracks on the rocks. Secondly, the law student is now “confident in himself [or herself]”. Here they walk proudly with powers of their own coursing through their mental veins, wielding it to the protection of others, and knowing that their labour has made a difference.

One last thing to note is how Justinian defines the “point” that he desires law students to reach. It is not some level of knowledge, wealth or prestige. Rather, it is characterised by being confident in their own powers. This means that desiring to use what knowledge you know to the betterment of the work of the lawyer is the standard of an ideal lawyer according to Justinian. Rather than amassing knowledge, it is simply serving the work. And what is this work? “Of justice and law”. Now we see why this section of transgenerational and transcultural advice is included under the heading “Of Justice and Law’. Because justice and law are transgenerational and transcultural. Lawyers, are not we blessed in our power to serve this work?

I both fittingly and unfittingly end this blog with the end of the prelude to the Institutes of Justinian, addressed “[t]o the youth desirous of studying the law”⁵:

Receive then these laws with your best powers and with the eagerness of study, and show yourselves so learned as to be encouraged to hope that when you have compassed the whole field of law you may have ability to govern such portion of the state as may be entrusted to you.

¹Translated into English by J.B. Moyle ²The Tools of Argument: How the Best Lawyers Think, Argue, and Win ³C.S. Lewis, Mere Christianity ⁴Ibid. ⁵Justinian, Institutes of Justinian, Prooemivm (Prelude)