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DU PLESSIS PRINT.indd ii 19/12/2012 16:49
 New Frontiers
Law and Society in the Roman World

Edited by Paul J. du Plessis

DU PLESSIS PRINT.indd iii 19/12/2012 16:49

 Acknowledgement

The editor wishes to thank Mr Benedikt Forschner who assisted in the

editing of this work.

© editorial matter and organisation Paul J. du Plessis, 2013

© in the individual contributions is retained by the authors

Edinburgh University Press Ltd

22 George Square, Edinburgh EH8 9LF
www.euppublishing.com

Typeset in 10/12pt Goudy Old Style by

Servis Filmsetting Ltd, Stockport, Cheshire, and
printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon CR0 4YY

A CIP record for this book is available from the British Library

ISBN 978 0 7486 6817 5 (hardback)

ISBN 978 0 7486 6818 2 (webready PDF)
ISBN 978 0 7486 6819 9 (epub)
ISBN 978 0 7486 6820 5 (Amazon ebook)

The right of the contributors to be identified as authors of this work has been asserted in
accordance with the Copyright, Designs and Patents Act 1988.

DU PLESSIS PRINT.indd iv 19/12/2012 16:49

 Contents

List of Contributors vii

List of Abbreviations viii

1. Introduction 1
Paul J. du Plessis

Part I Perspectives on Roman Legal Thought

2. Why Read the Jurists? Aulus Gellius on Reading Across
Disciplines 9
Joseph A. Howley
3. Artes Urbanae: Roman Law and Rhetoric 31
Olga Tellegen-Couperus and Jan Willem Tellegen
4. The Senatus Consultum Silanianum: Court Decisions and
Judicial Severity in the Early Roman Empire 51
Jill Harries

Part II Interactions between Legal Theory and Legal Practice

5. Law’s Empire: Roman Universalism and Legal Practice 73
Caroline Humfress
6. The Concept of Conubium in the Roman Republic 102
Saskia T. Roselaar
7. Financial Transactions by Women in Puteoli 123
Éva Jakab
8. Tapia’s Banquet Hall and Eulogios’ Cell: Transfer of Ownership
as a Security in Some Late Byzantine Papyri 151
Jakub Urbanik

Part III Economic Realities and Law

9. Law, Agency and Growth in the Roman Economy 177
Dennis P. Kehoe
10. Dumtaxat de peculio: What’s in a Peculium, or Establishing the
Extent of the Principal’s Liability 192
Jean-Jacques Aubert

DU PLESSIS PRINT.indd v 19/12/2012 16:49

 vi New Frontiers

11. Pipes and Property in the Sale of Real Estate (D.19.1.38.2) 207
Cynthia J. Bannon

Part IV Concluding Thoughts

12. The Standpoint Determines the View: Jacques Barzun’s Theory
of Aspect 227
Philip Thomas

Index 245

DU PLESSIS PRINT.indd vi 19/12/2012 16:49

 Contributors

Jean-Jacques Aubert is Professor of Classical Philology and Ancient

History at the University of Neuchâtel.
Cynthia J. Bannon is Associate Professor in the Department of Classical
Studies, University of Indiana (Bloomington).
Paul J. du Plessis is Senior Lecturer in the School of Law, University of
Edinburgh.
Jill Harries is Professor of Ancient History at the University of St Andrews.
Joseph A. Howley is Assistant Professor in Latin Literature in the
Department of Classics at Columbia University.
Caroline Humfress is Professor in the Department of History, Classics and
Archaeology at the University of London, Birkbeck.
Éva Jakab is Professor of Roman Law in the Faculty of Law, University of
Szeged.
Dennis P. Kehoe is the Andrew W. Mellon Professor of Humanities at
Tulane University, New Orleans.
Saskia T. Roselaar is a Teaching Fellow in the Department of Ancient
History at Reading University.
Jan Willem Tellegen is Senior Lecturer Emeritus in Roman Law and
Jurisprudence at the University of Groningen.
Olga Tellegen-Couperus is Associate Professor in the School of Law,
Tilburg University.
Philip Thomas is Professor Emeritus of Roman Law in the Faculty of Law,
University of Pretoria.
Jakub Urbanik is Associate Professor in the Taubenschlag Institute in the
Faculty of Law and Administration, Warsaw University.

DU PLESSIS PRINT.indd vii 19/12/2012 16:49

 Abbreviations

§ paragraph
a anno
ap apud
B Basilica
BCE Before the Common Era
BGU Berliner Griechische Urkunden
c circa
C Codex Iustinianus
CE the Common Era
ch. chapter
Coll Collatio Legum Mosaicarum et Romanarum
Const Constitutio
cos Consul
CTh Codex Theodosianus
D. Digest
DNP Der Neue Pauly
Ep. Epistula
FIRA Fontes Iuris Romani Anteiustiniani
fn. footnote
FV Fragmenta Vaticana
ILS Inscriptiones Latinae Selectae
Inst The Institutes of Justinian
Inst.Gai. The Institutes of Gaius
ll. lines
no. number
Nov. Novellae
P. (Pap.) Papyrus
PL Patrologia Latina
pr principium; prooemium
Pr Preface
Ps Pseudo
PSI Papiri della società Italiana
Reg. Regulae
SC Senatus Consultum
TPSulp Tabulae Pompeianae Sulpiciorum

DU PLESSIS PRINT.indd viii 19/12/2012 16:49

 Abbreviations ix

All abbreviated references to authors from classical antiquity and their works
follow the standard conventions in Lewis and Short’s Latin Dictionary. All
abbreviated references to ostraka and papyri follow the standard conven-
tions in these disciplines.

DU PLESSIS PRINT.indd ix 19/12/2012 16:49

DU PLESSIS PRINT.indd x 19/12/2012 16:49
 Chapter 1
Introduction
Paul J. du Plessis

In the introduction to Law and Life of Rome (1967), John Crook described the
aim of his book as follows:

This is not quite a book about Roman law, on which there already exist any
number of excellent treatises. Neither is it quite a book about Roman social and
economic life; that subject, too, is already illuminated by massive works of schol-
arship. It is a book about Roman law in its social context, an attempt to strengthen
the bridge between two spheres of discourse about ancient Rome by using the
institutions of the law to enlarge understanding of the society and bringing the
evidence of the social and economic facts to bear on the rule of law.1

As an ancient historian with a keen interest in Roman law, Crook must

have been aware that he was courting controversy with this statement which
essentially called for a broadening of disciplinary horizons and greater col-
laboration between both ‘spheres of discourse’. Not only did this approach
expect historians to take greater account of Roman law, but it also expected
legal scholars to look beyond the then prevailing dogmatic approach to the
study of Roman law practised by most.2 It was perhaps owing to an aware-
ness of the complexity of what Crook was advocating, since the crossing
of disciplinary boundaries is never easy, that he took great care to explain
what he meant by a ‘law and society’ approach to the study of Roman law.
While Crook was undoubtedly influenced by contemporary debates in juris-
prudence regarding the relationship between law and society, he was also
aware that these debates had limited use in the study of ancient Rome.3 The
study of Roman law could not be subjected to a sociological enquiry in the
contemporary sense, since too much of the empirical data required for such
an enquiry was lacking.4 Furthermore, as Crook pointed out, controversies

1
Crook (1967), p. 7.
2
For perspectives on the dogmatic methodology, see Ernst and Jakab (2005), p. v; Tuori
(2006), p. 13.
3
See Crook (1967), p. 7. On the purpose of a ‘law and society’ methodology in modern legal
scholarship, see Cotterrell (2006), p. 5.
4
Crook (1967), p. 9. See also Cotterrell (2006), pp. 17, 54; and Travers (2010), pp. 5–6, 9, 19
for a summary of the prerequisites of the modern sociological study of law.

DU PLESSIS PRINT.indd 1 19/12/2012 16:49

 2 New Frontiers

surrounding the meaning of concepts such as ‘Roman society’, ‘Roman law’

and the fact that both law and society change with time also complicate mat-
ters.5 Nevertheless, Crook maintained that since some relationship between
law and society existed, it was possible to provide a broader context for
Roman law using elements of social and economic history.6
[L]aw is certainly some reflection of society (usually of its more conservative
aspects, because of the law’s function as a guarantor of stability), and not only a
reflection, but also in some degree an influence upon it (usually a brake, providing
only cautiously and tardily the mechanisms to fulfil the changing desires of society
as a whole, but sometimes an accelerator, a tool in the hands of a particular section
of the community such as an intelligentsia for achieving new ends that people in
general do not actively want but will not positively oppose).7

It is not the aim of this introduction to engage once more with the critics of
Crook’s approach as this debate has been comprehensively explored recently
elsewhere.8 Studies such as those by Cairns and du Plessis have shown that
Alan Watson’s view on ‘law and society’ in the Roman world, sometimes
cited as being in opposition to that of Crook, is in fact complementary and
that new insights can be achieved, provided that scholars are sufficiently sen-
sitive to the methods, perspectives and legitimacy of the conclusions of the
other ‘sphere of discourse’.9
Since the ground rules for interdisciplinary collaboration have now been
established, further exploration of the emergent field of research relating to
‘law and society’ in the Roman world has become possible. This is what this
book seeks to do. It is designed to be read as an integrated whole. The chap-
ters have been grouped into three larger themes and within these, individual
chapters have been arranged in a specific order to form a cumulative picture.
The first theme explored in this book, ‘perspectives on Roman legal
thought’, addresses issues of Roman juristic writing and its contexts. The
chapter by Howley, which introduces this theme, examines the place of
Roman juristic writing within the broader context of Roman society using
the work of Aulus Gellius as his example. By investigating the way in which
Gellius used juristic writing when compiling his own works, Howley pro-
vides a fascinating external perspective on the way in which these works
were perceived and utilised by the Roman educated classes at large. In doing
so, Howley demonstrates that Roman juristic writing formed part of the
broader intellectual culture of the Roman world and was used by the elite for

5
Crook (1967), pp. 9–10.
6
Crook (1967), p. 7; see also Treggiari (2002), p. 47.
7
Crook (1967), p. 7.
8
See Watson in Cairns and du Plessis (2007), pp. 9–23.
9
See Sirks (2002), pp. 169–79; Aubert (2002), pp. 183–6; Cairns and du Plessis (2007), pp. 3–8.
On the dangers of interdisciplinarity with reference to modern socio-legal scholarship, see
Cotterrell (2006), p. 18.

DU PLESSIS PRINT.indd 2 19/12/2012 16:49

 Introduction 3

a variety of different purposes, apart from merely as juristic authority. The

theme is continued by Tellegen-Couperus and Tellegen on the relationship
between law and rhetoric. Their elegant chapter explores the extent to which
Roman juristic thought as recorded in the works of the jurists was doctrinal
and thus removed from the demands of legal practice dominated by orators
trained in rhetoric. The authors argue that the prevailing orthodoxy whereby
Roman juristic thought is said to be removed from legal practice in the
courts based on rhetoric is incorrect and should be abandoned in favour of
a more integrated assessment whereby Roman juristic thought and rhetoric
are seen as two sides of the same coin. The last chapter on this theme is that
of Harries who, using a controversial senatorial decree relating to slavery
as an example, argues in favour of a greater appreciation of the context in
which law was created and developed and the interest groups which drove
the enactment of a law.
The second theme, ‘interactions between legal theory and legal practice’,
explores Roman law as a working ‘legal order’. This theme is introduced by
a fascinating chapter by Humfress in which she challenges the prevailing view
about the universal application of Roman law in the Roman Empire post
212 CE. Using elements of an anthropological approach, Humfress argues
that the notion of an Empire-wide ‘legal system’ imposed from above by the
Roman state onto its people should be rejected in favour of a more nuanced,
pluralist understanding of Roman law as a number of interconnected ‘legal
orders’ in terms of which individuals had access to different legal solutions
based on status and affiliations to local communities. In reaching this con-
clusion, Humfress advocates that research in this area should not merely
focus on the perceived ‘gap’ between legal theory and legal practice, but on
the motivations of individuals for choosing to use one legal solution over
another and the manner in which this informs modern understanding about
the concept of an Empire-wide ‘Roman law’.10 This challenge is reflected
in the remaining chapters on this theme in which three authors explore the
relationship between legal theory and legal practice in three different periods
of Roman society. The first of these, by Roselaar, is devoted to the notion
of conubium and the legal significance of this concept in the early Roman
Republic. Through a re-examination of the sources, Roselaar shows that
conubium was an instrument that the Roman state employed strategically to
secure allegiances in order to gain political supremacy on the Italian main-
land. The second chapter explores the legal world of the Sulpicii archive
with a view to assessing the role of women in commercial transactions. This
chapter challenges the accepted view that women, owing to various legal
restrictions and social conventions in Roman society, did not engage in
commerce directly, but relied instead on (mostly male) relatives or business

10
Humfress’s chapter also ties in with recent advances in ‘law and society’ research in relation
to ‘community’; see Cotterrell (2006), pp. 62–9.

DU PLESSIS PRINT.indd 3 19/12/2012 16:49

 4 New Frontiers

agents. From Jakab’s analysis of the sources, it becomes clear that women
engaged far more actively and fully (albeit sometimes indirectly on account
of their status) in Roman commercial transactions, and that some of the legal
impediments which appear to have inhibited their participation in commerce
could be circumvented. The last chapter in this theme, by Urbanik, investi-
gates the use of ‘classical’ Roman law in sixth-century Byzantine legal prac-
tice. Using the contract of pledge as an example, Urbanik assesses whether
the legal needs of society were met by the existing law, and highlights certain
creative legal solutions to new problems.
The last theme explored in this book is ‘economic realities and law’.
Three chapters examine the interplay between law and economic considera-
tions in the context of the Roman world. Kehoe uses a ‘law and economics’
approach to investigate the law of agency. He argues that in developing the
Roman law of agency, the jurists and the Imperial bureaucracy were aware
of and driven by the economic implications of law. The remaining two chap-
ters explore related issues. Aubert focuses on the liability of slave agents for
debts incurred in relation to their peculium and argues that the legal rules in
this area of law cannot be fully understood without an appreciation of the
economic realities in which commercial transactions by a slave operated.
Bannon’s account of fixtures and fittings in relation to the sale of property
demonstrates that the jurists were aware of the commercial reality of such
sales and factored these into their legal thought.
The final chapter by Thomas is meant to provoke further thoughts on
interdisciplinarity. Thomas explores a topical theme in modern historical
scholarship, namely plurality of perspective, which has yet to make a signifi-
cant impact on traditional Roman-law scholarship.11 He argues that it is pos-
sible to look at Roman legal texts from different angles to appreciate the full
complexity of their different layers of meaning. In a certain sense, Thomas’s
chapter represents the very essence of the approach of this book. When read
as a whole, the themes explored in this book demonstrate that it is possible,
to paraphrase John Crook, to ask ‘new questions about Roman law’.12 These
are the new frontiers of ‘law and society’ in the Roman world.

BIBLIOGRAPHY
Aubert, J.-J. and Sirks, A. J. B. (eds), Speculum Iuris: Roman Law as a Reflection of Social
and Economic Life in Antiquity (2002).
Cairns, J. W. and du Plessis, P. J. (eds), Beyond Dogmatics: Law and Society in the
Roman World (2007).
Cotterrell, R., Law, Culture and Society (2006).

11
For the effect of post-modernism on ‘law and society’ scholarship, see Cotterrell (2006), pp.
19–20, 62, 66; Travers (2010), pp. 144–8; Southgate (2001), pp. 61–2, pp. 115–16, 158.
12
Crook (1996), pp. 31–6.

DU PLESSIS PRINT.indd 4 19/12/2012 16:49

 Introduction 5

Crook, J. A., ‘Legal history and general history’, BICS, 41, 1996, p. 31.
Crook, J. A., Law and Life of Rome: 90 B.C.–A.D. 212 (1967).
Ernst, W. and Jakab, E. (eds), Usus Antiquus Iuris Romani (2005).
Sarat, A. (ed.), The Blackwell Companion to Law and Society (2004).
Southgate, B., History: What and Why? 2nd edn (2001).
Travers, M., Understanding Law and Society (2010).
Treggiari, S., Roman Social History (2002).
Tuori, K., Ancient Roman Lawyers and Modern Legal Ideals (2006).

DU PLESSIS PRINT.indd 5 19/12/2012 16:49

DU PLESSIS PRINT.indd 6 19/12/2012 16:49
 Chapter 2
Why Read the Jurists? Aulus Gellius on Reading
Across Disciplines
Joseph A. Howley

1. INTRODUCTION
Aulus Gellius, the Antonine chronicler of his own and others’ reading,
knew a thing or two about the hazards of misjudging the contents of a book.1
Among the books he describes reading in his Noctes Atticae are many works
of Republican and early Imperial jurists, preserving fragments of them
for modernity.2 It is often assumed that his reading was connected to his
occasional service as a judge, despite his lack of interest in reconciling his
reading of older material with his own contemporary legal situation.3 If we
consider the Noctes as simply the product of scholarly efforts, then we are
left to conclude that he finds jurists’ work an interesting source of facts for
his project. But the Noctes is a literary work with its own strategies, and so we
might ask: how does Gellius, one of the most involved narrators of reading
in the Roman empire and the only non-jurist author to discuss in such
depth the reading of jurists, represent that reading and its relationship to the
intellectual life of a learned member of the elite?
What I offer here is a brief tour of that material. I am interested not in
the legal content of Gellius’s juristic reading, or even the jurists themselves,
but rather how he describes and represents the reading of them; I thus am
interested here to interpret and characterise narrative technique rather than
analyse legal substance. I take the Noctes as a strongly protreptic text: under-
standing its narration of its author’s reading as a careful and intentional pro-
gramme of self-representation (rather than mere documentary fact), designed
to emphasise and prompt reflection on certain elements of an intellectual
lifestyle, will allow us to take its use of narrative, rhetoric, and juxtaposi-
tion as a valuable illustration of an imperial Roman who was thinking and
talking about his own mind. In short, if we let it, the Noctes can begin to
help us situate juristic literature along more ‘mainstream’ disciplines on the
intellectual landscape – or at least elite bookshelves – of Antonine Rome.

1
E.g. Noctes Atticae 9.4, 14.6, 18.6 (Noctes Atticae is hereafter abbreviated to N.A.).
2
For a tally, see Holford-Strevens (2003), pp. 298–9, in the course of a discussion with differ-
ent interests than mine here.
3
The assumption implicit at Frier (1985), p. 205 fn. 35; but see Holford-Strevens (2003), p. 31.

DU PLESSIS PRINT.indd 9 19/12/2012 16:49

 10 New Frontiers

Jurists feature regularly in a kind of narrative moment important to

Gellius’s project: he turns towards an authority figure. I will examine the
various questions that Gellius turns to a jurist to answer, and the other
authorities who are present when a jurist has something to offer. Gellius
frames encounters with juristic literature as an important part of learning
about the mos maiorum and the language of the ancient Romans, carefully inte-
grating jurists into enquiries alongside other kinds of authoritative source.
He emphasises the studiousness and curiosity of good juristic writers which
lead them to provide accounts of customs and words that can supplement or
even supplant those of more commonly-encountered writers of antiquitates.4
As he excludes juristic reading from his judicial duties, he also emphasises
the broad range of other kinds of knowledge and literature whose authority
can speak to questions that arise from actual legal experience.
The effect is twofold: we are reminded that when we answer legal ques-
tions, it is important to be well read, but we are also encouraged to make
jurists part of our wide reading, for purposes that go well beyond the legal.
Juristic knowledge, for Gellius, is both culturally mainstream in its antiquar-
ian methodology, and uniquely complementary to the other genres and
modes of books and enquiry available to the curious Roman intellectual.

2. GELLIUS AND DISCIPLINARY KNOWLEDGE

Adopting the proper attitude towards disciplinary expertise and knowledge
concerns Gellius greatly. For many kinds of knowledge, Gellius weaves into
the Noctes Atticae autobiographical reflections on formative experiences
with those disciplines: tales of learning that kind of knowledge and learning
about the nature of the discipline’s experts. For example, he realises that
grammatici cannot be trusted with innocent and earnest questions because
they are often too rude and ignorant.5 He also offers glimpses of the various
steps of learning about the nature of authority, finding the rare good experts
but also identifying their limits.6 This gives the reader a framework in which
to understand the text’s contents as having been encountered and excerpted
by a judicious author: we have met the bad experts and the good ones, we
have learned what Gellius thinks is the right way to approach a topic, and
so we have more confidence in (or have more specific questions for) his own
researches on that topic. There are high ethical stakes for an individual’s
intentional decision to self-educate in a realm that has its own experts.
Gellius does not ever clearly articulate the turn toward juristic self-

4
On jurists and antiquarians, see Harries (2006), pp. 176–7.
5
N.A. 6.17 is the locus classicus. For a full analysis, see Vardi (2001).
6
There is more on this below, but consider, e.g., N.A. 18.5, where the beloved rhetorician
Antonius Julianus speaks ‘erudite . . . et adfabiliter’, but the words are revealed not to be his
own (18.5.12).

DU PLESSIS PRINT.indd 10 19/12/2012 16:49

 Why Read the Jurists? 11

education (with the exception of Noctes 20.10, discussed below). However,

an interesting and rare articulation of why a learned Roman might study the
law can be found in Cicero’s De Oratore.7 There, part of Crassus’s case for
the orator having mastery of the law (1.166 ff) is that it can be easily mastered
even by an amateur (1.191–2) because its basic principles are part of everyday
life and practice; and, moreover, the study of law is pleasant and stimulating
because of the various kinds of interests it satisfies:
[. . .] plurima est et in omni iure civili et in pontificum libris et in XII tabulis
antiquitatis effigies, quod et verborum vetustas prisca cognoscitur et actionum
genera quaedam maiorum consuetudinem vitamque declarant.8 (De Oratore 1.193)

[. . .] there is in all the civil law and in the pontiff’s books and in the Twelve Tables
an immense portrait of antiquity, as the ancient antiquity of words is mastered
and certain kinds of legal formula reveal the customs and lifestyles of the maiores.

Political science, institutions of state, the Twelve Tables themselves – all this
knowledge is yielded by study of law, of more value to those interested in
ethics than ‘all the libraries of philosophers’ (1.193–5). By framing Roman
law as a uniquely Roman cultural property, Crassus makes the study of law
(and realisation of Roman superiority to Greece) a patriotic act that also
brings pleasure through the pictures it paints of ancient mores.9
Gellius makes a turn toward medical self-education that seems to echo
these terms in important ways. As a youth in Athens staying at the country
villa of Herodes Atticus (when and where, he tells us in his Preface, he
began composing the Noctes),10 he was taken ill (Noctes 18.10). A doctor
comes to check on him and, in the presence of Gellius’s teacher Taurus and
various learned friends, gauchely mishandles the terms for veins and arteries
(18.10.4–5), earning a careful rebuke from the philosopher Taurus (18.10.5–
7).11 This sickbed experience leads Gellius later to an epiphany (18.10.8): that
it is shameful (turpe) not to know even those things about one’s body (such as
taking a pulse) which Nature has made clear and self-evident (in promptu . . .
in propatulo). So he hunts up medical books and with a taste (attigi) of them
he learns various such things relevant to the human condition (humanitatis
usu non aliena).
Learning a little medicine helps one understand one’s body, but what
is – to Gellius – the value of studying law? Here the problem of disciplinary

7
Known to Gellius, N.A. 1.15.17, 4.8.8.
8
I omit the disputed beginning of the sentence, a comparison to Aeliana studia, which refers
either to early grammatical and antiquarian writing (by way of Varro’s and Cicero’s teacher
L. Aelius Stilo Praeconinus, Brutus, pp. 205–7) or the early jurist Sextus Aelius Paetus Catus.
For the controversy, see Leeman and Pinkster (1981), pp. 100–1.
9
On the Twelve Tables as common Roman property, see Harries (2006), p. 171.
10
N.A. Pr. 4.
11
18.10 also arrogates the intimacy and affection of Taurus seen in 12.5.

DU PLESSIS PRINT.indd 11 19/12/2012 16:49

 12 New Frontiers

authority is central: as Crassus says, law not only touches on all aspects of
life, but its practice can involve a variety of methodologies. Law’s utility is
in fact so ubiquitous that Gellius uses it to identify the limits of other disci-
plines’ authority: so, in 12.13, Gellius recalls when as a young man, having
been appointed iudex, he has a question about the terms of legal procedure
and takes it to his preferred grammaticus, Sulpicius Apollinaris. This is the
story of learning that a beloved teacher does not know everything, and that
one’s own questions may not be properly formed: Gellius recalls asking
what he knows now to be a silly question about what it means that he must
rule intra Kalendas.12 Apollinaris demands to know why he has not taken
a procedural question to the usual periti studiosique iuris (12.13.2). Gellius
responds that he would consult a jurist for the interpretation of a law, but
his question here is simply about a word (12.13.3–4). Apollinaris assents,
but makes Gellius promise not to actually use this grammatical answer
in his duty as iudex, seeing how language is as susceptible to the deprada-
tions of usage as law is to obsolescence (12.13.5). And when Apollinaris
finally explains the word intra, Gellius reveals he has challenges prepared to
counter this interpretation (12.13.17). Apollinaris responds with a smile and
a counter-argument, enjoying the repartee.13 Gellius here models the sort
of sophisticated, friendly and well-informed conversation that one should
aspire to have with a truly qualified grammaticus; but he also shows himself
having found the actual limit to his teacher’s knowledge in this matter:
haec tunc Apollinaris scite acuteque dicere visus est. Set postea in libro M. Tullii
epistularum ad Servium Sulpicium sic dictum esse invenimus [. . .] (12.13.20–1)

At that time, Apollinaris seemed to have said these things knowledgeably and
acutely. But later I found the word used thus in a book of Letters of Marcus Tullius
to Servius Sulpicius [. . .]

Gellius is always keen to appeal to Cicero, and it is only fitting that he is

reading Cicero’s correspondence with a jurist friend.14 But he is also making
explicit to the reader his discovery of Apollinaris’s limitations in this matter,
and we might read it as Gellius’s ‘graduation’ from his devotion to grammati-
cal studies when he finds that his teacher (1) does not have all the answers
and (2) cannot offer answers directly relevant to Gellius’s professional needs.
And this revelation about the apparently scite acuteque speech of the teacher
comes as a result of later, independent reading on Gellius’s part.15
The tension played out in this passage about the boundaries of utility and

12
Holford-Strevens (2003), pp. 85–6, with fn. 30.
13
12.13.19: Tunc Sulpicius Apollinaris renidens: ‘non me hercule inargute’ inquit ‘nec incallide
opposuisti hoc [. . .].’ Cf. Keulen (2009), p. 75.
14
Gellius may know these letters well, given the general resemblance in premise between N.A.
2.21 and Cic. Fam. 4.5.
15
As it does in N.A. 18.5.12.

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 Why Read the Jurists? 13

relevance between different disciplines is inherent to the nature of ancient

disciplinary thinking. Gellius establishes a clear rivalry between the experts
with a natural claim to a question by virtue of their title (iuris periti versus
grammatici), but also points out the possibility of reading begun for one
reason yielding an answer relevant to something else entirely. One’s private
intellectual lifestyle is thus a place of active synthesis, in which wide reading
and enquiry has unexpected rewards. And as Gellius turned to a grammaticus
to help with the law, so he regularly finds that turning to the law helps with
other things, including grammar.
A hallmark of Gellius’s regular forays into ‘archaic’ and Republican litera-
ture is the frequent consultation of grammatical commentaries for assistance
with the difficulties that old language presents.16 He represents an instinctive
turn toward such commentaries with questions arise in reading, but also
regular disappointment with them: so in 17.6 a group encounters an obscure
phrase in a speech by Cato and immediately calls for the obvious commen-
tary (17.6.2: libri statim quaesiti allatique sunt Verrii Flacci de obscuris Catonis).
But Gellius rejects Flaccus’s answer and instead reports his own better one:
so a story that relates a fact (the meaning of the phrase in question) also plays
out a lesson about how such facts are found.
In a similar encounter, in Noctes 20.2, when the grammarian fails, it is not
Gellius but the Republican jurist Ateius Capito who comes to the rescue.
There, three words (siticines, liticines, tubicines) from a speech of Cato’s
prompt confusion (20.2.1). Caesellius Vindex’s Commentarii Lectionum
Antiquarum yields definitions of the latter two – lituus- and tuba-players,
respectively – but Vindex, a regular target of Gellius, throws up his hands for
the first.
nos autem in Capitonis Atei Coniectaneis invenimus ‘siticines’ appellatos, qui
apud sitos canere soliti essent, hoc est vita functos et sepultos, eosque habuisse
proprium genus tubae, qua canerent, a ceterorum tubicinum differens. (20.2.3)

However, I found, in the Miscellanies of Ateius Capito, that those are called sit-
icines who customarily played in the presence of the ‘stored’ (siti), that is, the dead
and entombed, and that they had a special kind of tuba, on which they played,
differing from that of the rest of the tubicines.

Following Gellius’s scepticism about grammatici to its margins, then, has

taken us over into the land of the jurists. Reasoning simplistically has led
Vindex to a dead end, but Capito brings knowledge of ancient custom to
bear on the problem and finds the answer: the bad grammarian knows only
how to disassemble and reassemble words, but the good jurist knows far
more than law, a clear contrast between those who restrict themselves to

16
On Gellius and archaism, see generally Marache (1952); Vessey (1994). For Gellius on
archaism and obscurity, see 1.10, 11.7.

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 14 New Frontiers

disciplinary boundaries and those who are truly learned (and happen to
specialise or direct that learning toward a particular end). Jurisprudence,
with its unique interests, has emerged to fill the cracks in another discipline’s
expertise, and the reading of juristic literature provides knowledge one might
not otherwise come across. To the elite gentleman who spends his otium on
intellectual efforts, the jurists would seem to have something to offer.

3. GELLIUS READS JURISTS

The main authoritative role which Gellius assigns to juristic authors (and
legal primary texts) is not the answering of legal questions. My discussion
here will focus on what kinds of questions the juristic texts seem to solve
– that is, not why Gellius tells us he is reading them (for he rarely, if ever,
does), but to what benefit of having read them he is drawing our attention by
setting them in the context he does.
A jurist’s analysis of a word may be cited as one among several compet-
ing explanations for Gellius. So Noctes 6.4 is a short piece on why captives
for sale as slaves are said to be sub corona, and it opens with a citation of
Caelius Sabinus on the use of headgear to distinguish slaves for sale; explain-
ing which ones wear pilleati and which sub corona (6.4.1–3). ‘However,’ says
Gellius, ‘there is another reason’, and he supplies a competing but unsourced
theory (6.4.4). Then, as often, he passes judgment on the two, the evidence
supporting Caelius’s explanation being a rhetorical usage of the term by
Cato in his work de Re Militari (6.4.5). Gellius combines juristic thought,
common opinion, and archaic literary evidence to come to an authorita-
tive answer. Similarly, Masurius Sabinus’s etymology of religiosus (from his
Commentarii de Indigenis) is just one of many pieces of evidence consulted
in Gellius’s lengthy exploration of that word, prompted by a line of verse
quoted without citation by Nigidius Figulus (4.9.8–9). The jurist here is an
effective antiquarian etymologist.17
The turn to authority with which Gellius is concerned is often based on
assumptions about who will know what, and more often than not is explic-
itly depicted in part because it was misguided. So in 10.20 he attempts to
answer a common question:
quaeri audio, quid ‘lex’ sit, quid ‘plebiscitum’, quid ‘rogatio’, quid ‘privilegium’.
Ateius Capito, publici privatique iuris peritissimus, quid ‘lex’ esset, hisce verbis
definivit: [. . .] (10.20.1–2)

I hear it asked what a lex is, and what a plebiscitum is, and what a rogatio is, and
what a privilegium is. Ateius Capito, a man most learned in public and private law,
defines what a lex is with these very words: [. . .]

17
For another comparison, see the anonymous Commentarii ad Ius Pontificum Pertinentes that
offer an account of bidentes in 16.6.13.

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 Why Read the Jurists? 15

This seems to sketch an assumption by Gellius that an answer would be

found in this qualified juristic source. But if Capito’s definition is true,
then the various legislative documents that survive from the Republic are
misnamed (10.20.3), which allows an excursus that requires Gellius to quote
some Lucilius (10.20.4), after which we return to Capito and his rationale
for plebiscitum (10.20.5–6) – and only then can Gellius explain, on his own
authority, that it all comes down to rogatio because the people are rogatur
their opinion (10.20.7). But, Gellius observes, the usage one encounters fails
to respect any of this careful distinction (10.20.9).
Sallustius quoque proprietatum in verbis retinentissimus consuetudini conces-
sit et privilegium, quod de Cn. Pompei reditu ferebatur, ‘legem’ appellavit.
(10.20.9–10)

Even Sallust, the most observant of correctness in speech, yielded to custom and
called the privilegium which was passed about the return of Cn. Pompey a lex.

There follows the relevant quotation from Sallust. Where does this whole
discussion leave us? What is the answer to the question Gellius was hearing
about the difference between the terms? This encounter with Capito’s
grammatical authority thus casts juristic reading, or rather the knowledge
to be gained therefrom, as a kind of bonus to the usual literary canon of
Republican speeches and histories. It is neither incorrect nor irrelevant;
indeed, it is both exceptionally authoritative and off the beaten path.
Although juristic interest in language is an obvious element of their prac-
tice, Gellius makes a special effort to identify a jurist whose legal expertise
is augmented by his researches into language. Noctes 13.10, which provides
etymolgies of soror by Antistius Labeo and of frater by Nigidius Figulus,
introduces the former thus:

Labeo Antistius iuris quidem civilis disciplinam principali studio exercuit et con-
sulentibus de iure publice responsitavit; set ceterarum quoque bonarum artium
non expers fuit et in grammaticam sese atque dialecticam litterasque antiquiores
altioresque penetraverat Latinarumque vocum origines rationesque percalluerat
eaque praecipue scientia ad enodandos plerosque iuris laqueos utebatur. sunt
adeo libri post mortem eius editi, qui posteriores inscribuntur, quorum librorum
tres continui, tricesimus octavus et tricesimus nonus et quadragesimus, pleni sunt
id genus rerum ad enarrandam et inlustrandam linguam Latinam conducentium.
praeterea in libris, quos ad Praetoris edictum scripsit, multa posuit pariter lepide
atque argute reperta. sicuti hoc est [. . .] (13.10.1)

Antistius Labeo cultivated the discipline of the ius civile with especial zeal and
gave responsa to those who consulted him about the ius publicum; but he was
not without experience of indeed the rest of the fine arts, and he delved deeply
into dialectic and older and more remote literature and became well versed in
the origins and derivations of Latin words, and he applied this especially to the

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 16 New Frontiers

unknotting of many tough points of law. Indeed, there are books of his published
after his death, which are called Posteriores, of which three continuous volumes
– the thirty-eight, thirty-ninth and fortieth – are full of that kind of material that
tends to explain and shed light on the Latin language. And in addition to that, he
has included in his books that he wrote On The Praetorian Edict many things he has
figured out finely and cleverly. Such a one is this: [. . .]

In this passage – itself longer than both etymologies it introduces (13.10.3–4)

– Gellius gives a clear rationale for the wide and careful reading of juristic lit-
erature, reminding the reader of the grammatical knowledge it can provide.18
Gellius honours Labeo in that sphere by here giving him a sibling role to
Nigidius Figulus, a scholar himself the equal of Varro.19 Labeo was not only
a legal expert, but made a special point of seeking grammatical knowledge he
could apply productively to the law. Gellius explains that it is not only his
obviously language-related works that have something to offer in this regard,
but that indeed a grammatically learned jurist will leave traces of that learning
in everything he writes. The best jurists, in Gellius’s view, are learned in lan-
guage too, and so authority on matters of grammar is not a matter of one’s pro-
fessed title (to the contrary, this is often the problem with his grammatici). It is
instead a matter of what interests, learning and skills one has actually mastered,
and grammar, we are reminded, falls into that category for a good (to Gellius)
jurist. So, when we consider a word of the sort that everyone uses without
knowing exactly what it means, we might quite sensibly turn to a jurist, even if
we end up listening to Sulpicius Apollinaris cite Lucretius, Lucilius and Virgil
for a fuller account of its ratio.20 When a word is under examination, those
who have read their jurists will have something extra to contribute.
Similarly, the jurists’ necessary interest in the mos maiorum makes their
generous intersection with ‘antiquarianism’ unsurprising. Gellius under-
stands jurists to be a useful source of such knowledge about the customs and
institutions of Romans and, as with grammar, he intentionally inserts them
into the interrogation of such topics so as to highlight their utility in that
regard.
Gellius cannot resist a good exemplum. He cherishes stories about impres-
sive words and deeds, stories well told, and even competing versions of
the same story.21 In Noctes 4.20 Gellius has gathered three examples of the

18
Intrinsic to the nature of their work and a common juristic activity; see, for example, the
collected definitions at D.50.16.
19
N.A. 4.9.1: Nigidius Figulus, homo, ut ego arbitror, iuxta M. Varronem doctissimus [. . .]. Cf. 19.14.
20
N.A. 16.5 turns first to Gaius Aelius Gallus, On the meaning of Words Which Pertain to the Ius
Civile for a meaning of vestibulum that accords with the choice ratio Gellius recalls hearing
from Sulpicius Apollinaris.
21
For example, 4.18 or 9.13. N.A. 10.27 offers two versions of a story we are likely to know
from Liv. Hist. 21.18, that of the Roman emissary offering ‘peace’ or ‘war’ to the Carthaginian
senate, but it also appears – ascribed to a different figure entirely – in Pomponius, D.1.2.2.37
(Pompon. 1 Enchirid.), attesting perhaps to its currency at the time of Gellius’s writing.

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 Why Read the Jurists? 17

traditional severity of the censors.22 The first two are introduced without
source, but Gellius admits at the end that he has taken them from a speech
of Scipio (4.20.10). For the third, he turns to the first-century CE jurist
Masurius Sabinus (4.20.11).23 Here again he models explicitly the added
wealth of knowledge that comes from reading not just the classic works of
oratory but also volumes of juristic scholarship.
Thematic collections of material in juristic works can offer the backbone
for a Gellian enquiry. The piece Gellius offers ‘on old-time frugality, and on
ancient sumptuary laws’ (cap. 2.24) in fact uses the latter as a way of explor-
ing the former; and the synthetic application of juristic reading to antiquar-
ian enquiry is also framed by explicit gestures on Gellius’s part to his own
habits of reading and writing, emphasising the performance for his reader
of an intellectual activity. Montaigne-like, he opens by asserting a premise
about the mos maiorum, and then offers an example to support it:
parsimonia apud veteres Romanos et victus atque cenarum tenuitas non domes-
tica solum observatione ac disciplina, sed publica quoque animadversione leg-
umque complurium sanctionibus custodita est. legi adeo nuper in Capitonis Atei
coniectaneis senatus decretum vetus C. Fannio et M. Valerio Messala consulibus
factum [. . .]. (2.24.1–2)

Among the ancient Romans, frugality and simpleness of nourishment and meals
was observed not only by domestic observation and discipline but also by public
censure and the restrictions of many laws. In fact, I recently read in the Miscellany
of Ateius Capito that in the consulships of Gaius Fannius and Marcus Valerius
Messala an old decree of the Senate was made that [. . .]

Capito has cited senatorial decrees, and Gellius picks up this research tech-
nique, citing six more (2.24.3–14) which he may well have by way of Capito
but which he re-articulates to suit his discussion, injecting a claim to addi-
tional autopsy research (2.24.12). He also intersperses snippets of verse from
his usual stable of archaic poetic readings: Lucilius on the Fannian law in
2.24.4–6, with a pause to engage rival commentators on the poet, and Laevius
and Lucilius both on the Licinian law in 2.24.8–10. Not until the end does
Ateius Capito re-emerge.
esse etiam dicit Capito Ateius edictum, divine Augusti an Tiberii Caesaris non
satis commemini; quo edicto [. . .] (2.24.15)

Ateius Capito also says that there is an edict, whether it was of the deified
Augustus or the deified Tiberius, I don’t rightly remember; by this edict [. . .]

Gellius creates a sense of collaboration with Capito, seeming to follow the

general outline of his discussion but laying at least verbal claim to it and

22
Cf. Holford-Strevens (2003), p. 315.
23
Harries (2006), p. 88.

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 18 New Frontiers

adding a by-now recognisable literary body of evidence to the legal. He also

uses the device of incomplete recollection to direct the reader’s attention to
the text in question. Elsewhere, we are tantalised by the content of the story
of Papirius Praetextatus to seek out Cato’s rendering of it that so caught
Gellius’s eye (1.23.1–3), and to seek out the answer (which Gellius knows
Aristotle will have) to a disagreement between Herodotus and Homer (13.7).
Noctes 2.24 is, by the same token, both a use of juristic reading and a depic-
tion of that reading and use. Gellius invites us into his compositional process
to show how a jurist’s discussion provides insight into the mos maiorum
when combined with fashionably archaic literature, and leaves just enough
unfinished to point the way to further enquiry.
Gellius hangs several discussions of Roman religious institutions on
writers on pontifical law (not properly jurists, but operating analogously as
far as the antiquarian aspects of their expertise go) as well as the occasional
primary text, larding them often with these gestures of active research and
judgment that foreground both the industry of his own approach and its
viability as an option for his audience. Noctes 13.14 cites anonymous augural
authors de Auspicis (13.14.1), M. Valerius Messala (13.14.5), and a juicy
titbit of the recently-read grammarian ‘Elys’ (13.14.7: praetermittendum non
putavi, quod non pridem ego in Elydis, grammatici veteris, commentario offendi
[. . .])24 for the nature and history of the pomerium, all of which is framed as
a matter of long and current debate (13.14.4). Messala continues to be the
source for the next few pieces, offering a lengthy and well-sourced explana-
tion of the magistratus minores (13.15) and their relationship to the consul as
regards the holding of contiones (13.16), and Gellius lets the jurist speak for
him:
quaeri igitur solet, qui sint magistratus minores. super hac re meis verbis nil opus
fuit, quoniam liber M. Messalae auguris de auspiciis primus, cum hoc scriber-
emus, forte adfuit. (13.15.2–3)

So, it is often asked who the magistratus minores are. On this subject there’s no
need for my words, since the first book of M. Messala the augur On Auspices
happens to be right here as I am writing this.

In a similar vein, on the flamen Dialis, Gellius offers pointers to some primary
sources and then relates material limited, he reminds us, by his own powers
of recollection (10.15.2: unde haec ferme sunt, quae commeminimus). That col-
lection of facts is capped with language from the praetor’s edict (10.15.31)
and Varro’s Divine Antiquities (10.15.32). Meanwhile, Noctes 7.7, on Acca
Larentia, gathers antiqui annales (7.7.1), the lex Horatia (7.7.2), the Twelve
Tables (7.7.3), and historians (7.7.6: Valerias Antias, inter alios); Masurius
Sabinus (7.7.8), who has the last word, is quoted verbatim at length, and –

24
Holford-Strevens (2003), p. 163 observes something is wrong with Elys’s name.

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 Why Read the Jurists? 19

we are told – has consulted actual historians himself on the matter (secutus
quosdam historiae scriptores).
Perhaps the best example of the way Gellius stages an active and pro-
ductive enquiry to which jurists contribute is 1.12, on the taking (cepi)
of vestal virgins. Gellius starts by citing various authors on the topic, ‘of
whom Antistius Labeo wrote most diligently’ (1.12.1). Then Ateius Capito
is invoked (1.12.8), and again Capito seems to bring with him legal primary
texts (here, an uncited lex Papia). At 1.12.13 Gellius pivots around the word
cepi and pursues that linguistic question, involving, in short order, Fabius
Pictor (1.12.14), the autobiography of Sulla (1.12.16), and a bon mot of Cato
(1.12.17), culminating in quotation from Labeo ad XII Tabulas (1.12.18–19).
Discussions of old civic procedure likewise involve juristic writing. Gellius
in 15.27 epitomises a survey of kinds of comitia from Book 1 of Laelius Felix’s
ad Q. Mucium, which itself quotes Labeo. Varro’s monologue on senate
procedure is challenged by something Ateius Capito says that Tubero said
(14.7.12–13); but Capito and Varro are found in 14.8 to join ranks contra
Junius on the praefect of the Latin festival. Another discussion of senatorial
procedure at the end of the Republic seems like it will turn to Tullius Tiro for
Cicero’s account second-hand, but Tiro is surpassed by Capito, who offers
the same information alongside other material of interest (4.10.6–8).
Opinions on the civil law are persistently useful. Tackling the delinea-
tion between one day and the next, Gellius turns at first to Varro’s Human
Antiquities, considering Roman custom, Athenian custom, and what can be
gleaned from the Roman taking of auspices at night (3.2.1–11). But Gellius
then introduces, second-hand, an opinion of Q. Mucius concerning eman-
cipation that allows Gellius to conclude Mucius’s opinion about the ques-
tion at hand (3.2.12–13). Noctes 4.3 and 4.4, on the history of divorce and
betrothal in Italy, starts out with what is memoriae traditum (4.3.1) but then
turns to Servius Sulpicius de Dotibus, on which both pieces depend heavily
(the latter being confirmed in its account by Neratius de Nuptiis, 4.4.4).25
Such writings also offer evidence of the general severity of the veteres Romani:
Noctes 6.15 needs to relate Labeo’s observation on the cruelty of old-time
judgments (6.15.1) to contextualise Q. Mucius’s opinion in Book 16 de Iure
Civili that improper use of a loaned item constitutes theft (6.15.2). Ateius
Capito, meanwhile, offers us in his Commentarii de Iudiciis Publiciis a juicy
exemplum of the plebeian aediles’ punishment of arrogant speech (10.16).
Juristic observations and facts are extricated thoroughly from whatever
discussion they originally appeared in, and are interpreted and synthesised
by Gellius with other material to yield observations about the mos maiorum.

25
For this sort of enquiry, compare the not-quite-antiquarian discussion in 5.19 of adoption
procedure, in which no jurist or indeed any authority is cited until 5.19.11. On Servius as
antiquarian, see Harries (2006), p. 84, and on Gellius’s use of Servius, see Harries (2006), pp.
85–90 (and on adoption, pp. 153–5).

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 20 New Frontiers

Gellius demonstrates two ideas to his reader simultaneously: that he read

juristic writing and it prompted a wider-ranging enquiry into some aspect of
the mos maiorum, and that, pursuing an enquiry (for whatever reason) into
some mos maiorum, Gellius turned to jurists and found they yielded thorough
and learned material.
Perhaps the most interesting appearance of juristic reading in an anti-
quarian or grammatical enquiry (and we should note that Gellius rarely
distinguishes between the two except in refutation of the latter) comes on
an occasion when it serves to elucidate a word the meaning of which is of
critical programmatic importance to the Noctes Atticae itself. Noctes 4.1 is
the much-discussed penus episode, a discussion of this word for provisions
or a store of food that pits a philosopher against a grammarian. Favorinus
casually exposes a boastful grammaticus who knows the various declensions
and genders of the noun (4.1.1–4) but, when faced with a challenge to define
it (4.1.5), sputters and flails about with examples but not definitions (4.7–14).
Having shown up the man’s intellectual limitations, Favorinus shares various
competing definitions he has found in juristic reading (4.15–18). After an
explanation of Favorinus’s socratic mode (4.19), Gellius offers some further
juristic writing (4.20–3) to emphasise that, indeed, jurists over the years have
been unable to reach a consensus on the word’s meaning.
The scene offers an important paradigm for the Gellian exposure of a
fraudulent professor, focusing on the grammaticus’s rudeness and elucidat-
ing the exact nature of his intellectual flaws.26 There is the genital pun that
is suspiciously aptly fitted to Favorinus’s infamous sexual ambiguity.27 And,
perhaps most critically, there is its confrontation of the ‘axial’ term penus,
which can only recall Gellius’s own preface.28 Near where our text of the
Preface picks up, Gellius, describing his compositional method, explains
that whenever he saw or heard something worthy of memory in either lan-
guage, he made a note of it and stored these things up ‘as a reinforcement to
memory, like a certain penus of letters’ (Pr. 2: quasi quoddam litterarum penus
recondebam). The Preface goes on to emphasise that material in the Noctes is
meant to be useful, a stimulation to further study, and also to invite careful
scrutiny and reevaluation;29 so in 4.1 we are in the presence of something
critically important to Gellius’s intellectual value set.
Favorinus’s speech here is Gellius’s; he too reads his Scaevola second-
hand (4.1.16; cf. 3.2), and at the close of the speech Gellius immediately
chimes in with more of the kinds of things Favorinus was quoting (4.1.20).30

26
Holford-Strevens (2003), pp. 1213–14.
27
Keulen (2009), pp. 87–94.
28
Gunderson (2009), pp. 75–7.
29
Pr. 14–18.
30
For this, cf. 2.22.30, where Gellius refers to Favorinus’s speech as his own, or 14.1, where
the pretense of modestly reporting a Favorine speech cannot withstand Gellius’s ambition
for aemulatio.

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 Why Read the Jurists? 21

It is not uncommon for Favorinus to serve as a Gellian mouthpiece.31

Here he preaches the Gellian gospel of juristic reading for better Latinity
and better Romanitas; he concludes thus his report of what he has ‘heard’
Scaevola used to say:
‘haec ego,’ inquit ‘cum philosophiae me dedissem, non insuper tamen habui
discere; quoniam civibus Romanis Latine loquentibus rem non suo vocabulo
demonstrare non minus turpe est, quam hominem non suo nomine appellare’.
(4.1.18)

‘Although I am a philosopher,’ he said, ‘nevertheless I did not think it beneath me

to learn these things; for it is no less shameful for a Latin-speaking Roman citizen
to indicate something by a word that is not its proper name than to call a man by
something other than his name’.

Favorinus attaches to proper speech the same ethical value (turpe) that
Gellius attached to knowledge of readily apparent medical phenomena (see
section 2 above), with the nationalistic twist of Cicero’s Crassus.32
But as we zero in on a meaning of penus, we also explore an important
programmatic aspect of the Noctes. We have been pointed at the idea that the
penus contains goods and materials set aside for household use (4.1.17–13).
This makes Gellius’s claim that his work is a penus into a forceful confron-
tation of traditional fiscal language around knowledge; his predecessor and
regular target for attack as a knowledge-glutton, Pliny the Elder, assigns
thesaurus the analogous role in his own Naturalis Historia, and in spite of
that term’s long history as the name for a personal store of knowledge,
Gellius, by offering the dynamic penus as contrast, renders the thesaurus a
static hoard.33 The penus, full of things useful and productive, placed there
for a purpose, goes some way to making Gellius’s unsystematic disorder an
anti-encyclopedic claim for the idiosyncrasy and engagement of the intel-
lectual lifestyle. And Favorinus’s explanation of what he learned from the
jurists – that there is no agreed-on definition of the word, even among such
wise men – makes the stocking of a penus a process of constant re-evaluation.
Does this belong? Does that?
The penus episode is a clear example of knowledge (the meaning of penus)
being put into action (to prove a point about grammatici) in service of a
programmatic argument about actionable knowledge; and in all of this, it
relies heavily on juristic reading. Gellius has given juristic reading and what
it can offer those with an interest in language a starring role in the Noctes’s

31
For example, the moral of 11.7 about excessive archaism is also put forth, with more flair, by
Favorinus in 1.10.
32
Cf. Swain (2004), pp. 32–3.
33
Plin. H.N. Pr. 17 (cf. 22). See especially N.A. 9.4 and 10.27 for (unfair) attacks on Pliny. Cic.
De Or. 1.18 also invokes the thesaurus ideal, but cf. Quint. Inst. 10.1.2 for its negative side.
On finance and wealth in Pliny, see Murphy (2003); Lao (2011).

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 22 New Frontiers

treatment of authority as well as its self-awareness about intellectual activity

and standards.
The kinds of questions Gellius invokes jurists to answer and the other
kinds of sources to which he compares them situate them strongly in the
interlinked realms of antiquarian and grammar. One juristic source can
provide various facts and contribute to the examination of divergent topics,
as the same volume of Masurius Sabinus has the last word in both the penus
episode of 4.1 and the comparison of morbus and vitium in 4.2.34 At Noctes
11.18, a survey of the punishment of theft throughout history, Gellius
pauses in his (rare) exegesis of modern law to endorse a juristic work:35
sed quod sit ‘oblatum’, quod ‘conceptum’ et pleraque alia ad eam rem ex egregiis
veterum moribus accepta neque inutilia cognitu neque iniucunda, qui legere volet,
inveniet Sabini librum, cui titulus est de furtis. in quo id quoque scriptum est,
quod volgo inopinatum est [. . .] (11.18.12–13)

But anyone who wants to read about what oblatum is, and what conceptum is,
and many other things along these lines excerpted from the outstanding mores
of the ancients, neither useless nor unpleasant to learn, will look up the book
of Sabinus’s which is titled de Furtis. Also written there is this thing, which is
surprising to most people [. . .]

To set oneself and one’s speech and one’s learning apart from the vulgus is a
recurring concern in the Noctes. The message from Gellius’s use of juristic
reading is clear: the best jurists have been diligent scholars of language and
custom, and so to read their works is to learn things about those topics that
might not be available elsewhere. The primary documents of Roman law are
also documents of law and custom and so worthy of attention in their own
right.36 What one finds in reading about the history of the law, then, is clear
depictions of the customs and language of the past.

4. GELLIUS CONSIDERS LEGAL QUESTIONS

Gellius shows himself reading jurists to learn about various topics, mostly
antiquarian, but not to resolve specific legal questions. In a neat corollary,
problems that do arise from discrete legal encounters are often answered
with knowledge from these other spheres. The use of grammatical, philo-
sophical and even antiquarian expertise to resolve legal questions illustrates
Gellius’s commitment to the diverse intellectual life and sheds some light on
the place assigned to juristic learning.
We have seen that the kind of legal study that returns to the Twelve

34
For the latter, cf. D.21.1.1–12 (Ulpian. 1 ad Ed. Aed. Cur.).
35
But note Holford-Strevens (2003), p. 299, and Stevenson (2004), p. 154.
36
Consider 15.13.11, 2.15, and especially 11.17.

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 Why Read the Jurists? 23

Tables and their original language provides a useful frame of reference

for the mastery of archaic language. Correspondingly, Gellius finds that
the grammatical approach helps to elucidate technical language. Why is it
called a divinatio? Gavius Bassus, On the Origin of Words tells us (2.4). How
is ususcapio pronounced and formed? Reason by analogy to Cato’s account
of pignoriscapio (6.10). Does the future perfect in a law refer to the past or
future? Not even the great jurists of the Republic could agree, as Nigidius
Figulus will explain (17.7). And just think – in the courtroom as well as in
the street, people use superesse to incorrectly refer to legal representation
(1.22.1–2); advocates fail to speak integre, having not read their Varro, and
so open themselves up to punning humiliation by a more learned judge
(1.22.3–6). Courtroom speech should be informed by thorough grammati-
cal knowledge.37 So those whose negotium takes them into the courtroom
would do well to spend their otium as Gellius does, walking in the evening
and quietly reflecting on questions which seem minor but in fact have great
significance for understanding of the Latin tongue (11.3.1), such as the
meanings of pro.38
Rightly or not, Gellius often makes the turn to philosophy for questions
that arise from law. This is not just because logical flaws should be avoided
in argument (5.10, 9.15), but because legal rulings have ethical dimensions:
among the initial essays that gesture to values integral to the whole project
(Noctes 1.1’s nod to Plutarch and the utility of knowledge; 1.2’s paradigmatic
fraud exposure) is 1.3, a lengthy survey of philosophical opinions from
Chilo to Favorinus on ruling on the interests of a friend. Favorinus eluci-
dates a law of Solon to explain the moral hazards of impartiality (2.12), and
plays a starring role in a passage which suppresses the judicial utility of juris-
tic handbooks: Noctes 14.2 paints the author as only initially emerging from
curricular liberal education, at that tender age – adulescens – which in the
Noctes is ignorant of nothing so much as its own ignorance.39 Knowing only
rhetoric and poetry, and having no juristic teacher, he seeks out writings on
the duties of the judge (14.2.1). They teach him old laws, but fail to prepare
him for the inexplicabilis ethical dilemmas a judge often encounters (14.2.3).
Faced with one such, Gellius convenes a consilium of busy legal profession-
als who have no time for such considerations and advise him to simply

37
Gellius’s ascription of the mocking pun in 1.22 to an unspecified learned praetor may
recall, for example, the speechifying ‘mask’ character for Lucian in his Peregrinus. For the
difference grammar can make to those practising law, cf. also N.A. 7.6, where the grammar-
ian Sulpicius Apollinaris invokes Homer to explain the sense of praepes in the context of
discussing augural law with an urban prefect.
38
For this, cf. Taurus’s defense of the captio in 7.13, taken to heart by the Roman students
at Athens in their expat Saturnalia games of 18.2 and 18.13. The question that seems small
but has large significance is a defining programmatic concept for the Noctes. On recreational
habits, see 10.25.
39
See, for example, 9.15. Cf. Keulen (2009), p. 68 fn. 3.

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 24 New Frontiers

rule on the available evidence (14.2.9).40 He turns to Favorinus, who offers

a lengthy disquisition on the subject (14.2.12–24).41 Although Favorinus,
unlike Sulpicius in 12.13, makes no warning about the inapplicability of
his philosophical advice to a legal situation, Gellius realises that making the
ethical judgment which Favorinus encourages would demand an auctoritas he
lacks as a youth, and so he declares non liquet (14.2.25). Jurists feature here
only for their unhelpfulness; what 14.2 illustrates to the reader is not just the
many kinds of knowledge one should consider in a tricky legal situation, but
also the way that each authority figure’s status, profession and age will affect
the practical utility of his knowledge. In rapid succession, young Gellius
has found the practical limits of grammar and rhetoric, jurists, philosophy,
and – most importantly – his own youthful intellectual ideals. If nothing
else, this delineates clearly to readers the differences not only between dif-
ferent spheres of knowledge but between the private realm of learning and
the public realm in which articulations of knowledge are also articulations of
social power.42
Indeed, where actual legal questions arise, the turn to juristic knowledge
is treated with no small amount of skepticism. The image in 14.2 of young
Gellius called out of his studies and forced to reconcile what he knows with
judicial duties complements that found in 13.13. In the preceding essay,
13.12, Gellius has been learning from the letters of Ateius Capito about his
ideological rivalry with Antistius Labeo, manifested in his obstinate refusal
of a summons by a tribune of the commons (13.12.1–4). Gellius appends
a more expanded version of Labeo’s opinion from Book 21 of Varro’s
Divine Antiquities (13.12.5–6), and then passes judgment himself on Labeo’s
obstinacy (13.12.7–9), laying the groundwork for the following essay.
Noctes 13.13 offers a valuable example of Gellius’s portrayal of juristic
authority:
cum ex angulis secretisque librorum ac magistrorum in medium iam hominum et
in lucem fori prodissem, quaesitum esse memini in plerisque Romae stationibus
ius publice docentium aut respondentium, an quaestor populi Romani ad pra-
etorem in ius vocari posset. id autem non ex otiosa quaestione agitabatur, sed usus
forte natae rei ita erat, ut vocandus esset in ius quaestor. (13.13.1–2)

When I emerged from the nooks and crannies of books and teachers into the midst
of men and into the light of the forum, I recall it being asked in the workplaces
at Rome of those who publicly teach and give responsa about the law whether a

40
The theoretical aspects of consilium and responsa as an intellectual process are more sup-
pressed in the Noctes than there is room here to explore, but the text’s general question-and-
answer structure (see Pr. 25 and the phraseology of the capita rerum, on which Riggsby (2007))
is suggestive in this light. On 14.2, see Holford-Strevens (2003), pp. 294–5.
41
Gunderson (2009), pp. 68–70.
42
Cf. Gunderson (2009), p. 72.

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 Why Read the Jurists? 25

quaestor of the Roman people could summon a praetor into court. This was not
being discussed as a leisurely academic inquiry, but it happened to be actually
relevant to a case that had arisen, as a quaestor was to be summoned into court.

The power of magistrates to summon one another was also at stake in

Labeo’s refusal at 13.12. Gellius tells us that the emergent consensus of the
jurists in 13.13 is that the maiestas of the quaestor’s office protects him from
a summons.
sed ego, qui tum adsiduus in libris M. Varronis fui, cum hoc quaeri dubitarique
animadvertissem, protuli unum et vicesimum rerum humanarum in quo ita
scriptum fuit: [. . .] (13.13.4)

But since I was at that time always reading the books of Marcus Varro, when I
noticed that this thing was being investigated and in doubt, I brought out volume
21 of his Human Antiquities in which this is written: [. . .]

Varo’s declaration about which magistrates may be summoned, in combina-

tion with another passage of the same work (13.13.5), makes it clear that the
quaestor may be summoned after all, and Gellius settles the debate by having
the relevant passages read out of his Varro (13.13.6: utraque igitur libri parte
recitata, in Varronis omnes sententiam concesserunt).43 An antiquarian has come
to the rescue, and contemporary juristic discourse is set straight by a proper
respect for and interest in the historical status of institutions and offices; in
short, Gellius here enacts the same value which has made the juristic authors
he reads such an effective source of antiquarian knowledge. So although the
youthful Gellius, new to his judicial duties, sometimes strays across disci-
plinary boundaries, he brings back uniquely valuable knowledge with the
kind of interdisciplinary reading we see here – wide and synthetic in both
jurisprudence and antiquarianism and grammar.
On the one other occasion at which current legal questions are recalled,
jurists are nowhere to be seen. Noctes 3.16 considers the possible variations
in the term of pregnancy in a set of interlocking interpretive frameworks:
archaic literature as cultural evidence, traditions of linguistic interpreta-
tion, and the interpretation of archaic medical literature (Hippocrates).
The legal implications of this question are various, with the upper limit
touching on postumi as well as infamia for a wife who does not respect the
mourning period and the lower limit – specifically, the vexed question of
eight-month pregnancy – having bearing on the ius trium liberorum.44 Gellius’s
discussion here is lengthy, involved and assertive: he hunts down in Varro
an Aristotelian explanation for the differing accounts in poetry (3.16.5–
6, 3.16.13), goes toe-to-toe with known grammatical offender Caesellius

43
Gunderson (2009), pp. 177–8.
44
For various ramifications, see Hanson (1997), p. 589; Treggiari (1991), p. 29; Gardner (1986),
p. 51; Milnor (2005), p. 153.

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 26 New Frontiers

Vindex for misinterpreting Livius Andronicus (3.16.11), integrates his

own recent literary reading (3.16.13), pits laughable grammatici against the
Latinising Favorinus to apply Homeric evidence (3.16.15–19), and, having
learned from the commentary of Sabinus about the interpretation of
Hippocratic aphorism (3.16.7–8) offers his own exegesis of that vitally but
vaguely authoritative author (3.16.20).
Gellius indicates both the specific legal ramifications of this otherwise
somewhat aimless discussion and the authority for the approach he takes
to it with personal recollections. Besides book learning, he recalls learning
about an actual case at Rome (3.16.12); Gellius emphasises his autopsy of
Hadrian’s rescript and the claim the emperor makes there to having con-
sulted the opinions of philosophers and doctors (as advertised by Gellius
in his heading for the piece, cap. 3.16).45 The approach is hardly unique; the
Digest preserves a ruling of Antoninus Pius and an opinion of Paul that both
attest to the currency of the problem and the consultation of Hippocratean
evidence.46 Gellius recalls another legal investigation, too, the ultimate judg-
ment in which he omits (3.16.21) as a test to the reader (who has just read
Gellius’s pronouncement of an authoritative principle that should account
for all permutations of the question, at 3.16.20).47 He then closes with a story
from Masurius Sabinus by way of Pliny the Elder about a praetor who ruled
with obvious ignorance of all this material (3.16.23); for Pliny, the length of
pregnancy was wondrous, but Gellius finds wonder in the absurdity of the
praetor’s assertion that the law has fixed no limit on pregnancy. There are
some questions, Gellius shows, that have no need of juristic opinion, and
every need of wide, careful reading of all kinds of literature.

5. GELLIUS MEETS THE JURISTS

Thus far I have omitted those rare occasions on which Gellius depicts
himself meeting a living jurist. He seems to lack juristic teachers, but is
not blind to the presence of jurists in contemporary Rome (although
Apollinaris’s reference to jurists quos adhibere in consilium iudicaturi soletis at
12.13.2 is suggestive – there were jurists in his judicial consilium, but they do
not appear in the Noctes). The two main encounters with jurists – 16.10 with
an anonymous iuris peritus and 20.10 with Sextus Caecilius – are much com-
mented upon and peripheral to my discussion here, but a brief discussion
will shed some light on the themes that have emerged from Gellius’s treat-
ment of juristic reading. Just as Gellius’s encounters with flesh-and-blood
grammatici teach him the scepticism he brings to the grammatical writings

45
On Hadrian and ruling on wills, see Honoré (1994), pp. 13–18.
46
D.38.16.12 (Pompon. 30 Quint. Muc.) and 1.5.12 (Paul. 19 Resp.), respectively.
47
3.16.20: . . . quod aliquando ocius fieret, non multo tamen fieri ocius, neque quod serius, multo
serius.

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 Why Read the Jurists? 27

of Verrius Flaccus and Caesellius Vindex, his run-ins with jurists resonate
closely with his handling of juristic literature, and encapsulate perfectly his
values for that reading.
Perhaps the best illustration of the Gellian Favorinus’s role as cipher/
provocateur for Gellius is Noctes 20.1, in which he openly claims (20.1.9)
the sceptic’s right to play at ignorance in order to elicit a learned disquisi-
tion. His criticisms of the obscure cruelty of the Twelve Tables compel the
famously learned (20.1.1) Sextus Caecilius to defend their continued rel-
evance; obscurity, Caecilius points out, is created at the point of reception
(20.1.5–6), and the cruelty is ameliorated when we consider the nature of
linguistic and customary change throughout history, and indeed the inter-
vening legal history which has reconciled the spirit and letter of the Tables to
contemporary values. Favorinus boasts of his reading of the Tables (20.2.4)
as well as juristic commentary on them (20.2.13), and his learning earns him
an embrace.48 Caecilius’s speech wins the approval of all (20.1.55), an unusu-
ally explicit endorsement for the Noctes.49 Caecilius is not an intimate of the
author’s, but his excellence has a clear rationale: the kind of jurist who pays
attention to the Twelve Tables (and whatever other ancient law and jurispru-
dence goes with it) will necessarily know much about the history of Roman
customs and practice.50
The other jurist at 16.10 proves a corollary.51 When a word in Ennius,
read in public, requires elucidation, Gellius makes the turn toward authority
that often presages disappointment as he asks a friend of his ius civile callens
to explain it. A pun on the man’s juristic authority accompanies his refusal
(16.10.4: . . . cum illic se iuris, non rei grammaticae peritum esse respondisset . . .)
as he pleads disciplinary boundaries, and Gellius must remind him that the
word appears also in the Twelve Tables – that, in fact, Ennius has taken
it from that source (16.10.5).52 The man sneers at the archaism: ‘I would
have to explain and interpret this if I had studied the law of the Fauns and
Aborigines’, he says (16.10.7), arguing that he is only responsible for the
laws that are currently binding (16.10.8).53 When a passing poet is able to
easily explain the word, the lesson becomes clear: Latin is the purview of any
Roman intellectual, a jurist who disdains the Twelve Tables (and, we may
infer, its accompanying tradition of interpretation and scholarship) will be
ignorant of the language that is a common cultural property.
Between 20.1, the virtuoso performance of the rare excellent jurist, and
20.2, the grammatical assistance offered by a juristic book with which we

48
20.1.20, for which compare his response to Fronto at 2.26.20.
49
On 20.10, see Holford-Strevens (2003), pp. 127–9 and Keulen (2009), pp. 170–4.
50
Gunderson (2009), pp. 79–84.
51
On 16.10, see most fully Nörr (1976). See also Gunderson (2009), pp. 157–8.
52
For the plea that a word is outside one’s purview, cf. the grammaticus of 19.10.
53
The allusion to mythic history is familiar from N.A. 1.10 as shorthand for risible obscurity.

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 28 New Frontiers

began, we have a complete illustration of Gellius’s relationship with juristic

knowledge. But if we are in search of an ‘origin story’ for this relationship,
the necessary coda is 20.10, in which a young Gellius takes a question about
a legal phrase to a grammaticus. The exchange inverts 16.10: the grammaticus
claims only to interpret literature, Gellius responds that the phrase appears
in Ennius, and the grammaticus begs off again:
cum hos ego versus Ennianos dixissem, ‘credo’ inquit grammaticus ‘iam tibi. sed
tu velim credas mihi Quintum Ennium didicisse hoc non ex poeticae litteris, set
ex iuris aliquo perito. eas igitur tu quoque’ inquit ‘et discas, unde Ennius didicit.’
usus consilio sum magistri [. . .] (20.10.5–6)
When I had quoted these lines of Ennius, the grammarian said, ‘I believe you now.
But you believe me when I tell you Quintus Ennius learned this phrase not from
reading poetry, but from some jurist. Therefore you should go and learn from the
same source as Ennius’. So I took the teacher’s advice [. . .]
Gellius’s description of the defeated authority as nonetheless a magister
reminds his reader there is still a lesson to be learned here. And Gellius
learns it, resolving to append to his discussion ‘what I have learned from
jurists and their writings’ on the grounds that it is unseemly (non oportet) to
be ignorant of the meaning of the legal phrases one encounters in everyday
business (20.10.6). This enquiry too leads us to the Twelve Tables (20.10.8).
That ancient code, then, and all the study, interpretation and legislation that
follows with it – collectively, the study of jurisprudence as Gellius believes
it is best done – bestows a kind of learning that offers not only access to
common cultural property but also the language and formulae that surround
one in everyday life, just as Crassus said. This fact is learned first-hand in an
experience as formative as his first encounter with an unreliable grammaticus
(6.17).

6. CONCLUSIONS
No small part of the Noctes’s enduring charm for modern readers is
accounted for by the deft way Gellius builds, cumulatively, his recalled and
current authorial personae. Piece by piece, we are given glimpses of someone
with a vague biography but distinct interests, from whom performances of
and opportunities for learning prompt increasingly recognisable responses.
And so it is that we know what is going on when we read the following:
edicta veterum praetorum sedentibus forte nobis in bibliotheca templi Traiani
et aliud quid requirentibus cum in manus incidissent, legere atque cognoscere
libitum est. (11.17.1)
The edicts of the ancient praetors just happened to fall into my hands one day
when I was sitting in the library of Trajan’s temple, looking for something else
entirely, and it pleased me to read and get to grips with them.

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 Why Read the Jurists? 29

This is the very mira quaedam in cognoscendo suavitas et delectatio that Cicero’s
Crassus assured his audience accompanies legal study (De Oratore 1.193). It
is not part of the training of an orator; it is, instead, the turn toward author-
ity, the pursuit of ‘immense portraits of antiquity’, that ensures for a man of
learning, responsibility and legal negotium an awareness of Roman custom,
values and language throughout history. And it is, in Crassus’s terms, a
direct encounter with the Roman cultural heritage that has made them the
rulers of the world.
Why read jurists in the Noctes? It is very rarely to help answer a legal
question – those may well have other answers. The question is instead, why
not read jurists? Why deprive oneself of the impressive antiquarian and
linguistic learning, the unique insight into values and institutions, and the
surprising and interesting material that lurks in the pages of Labeo, Capito,
Sabinus and others? Juristic literature is, in the classic formulation of adver-
tisements for breakfast cereals in the United States, part of this complete diet
– a distinct and irreplaceable element of a larger intellectual lifestyle for the
learned gentleman of Antonine Rome. Gellius shows us a library lifestyle
in which the jurists’ books are available to the curious reader, and indicates
how they contain the answers to questions as well as the kind of material and
knowledge with which one can set oneself apart from the herd.
The jurists understand ancient speech and mos maiorum because these
are essential to the interpretation of law. Gellius fixates on this antiquar-
ian quality in jurisprudence and expands it – in spite of the rising tide of
intellectual professionals, most notably grammatici, who seem to haunt him
with their restrictive self-definition, he knows the disciplines never had
true boundaries.54 He identifies a distinction among contemporary jurists
between those who still regard the Twelve Tables (and accompanying tradi-
tions) as relevant, and those who use the lex Aebutia (16.10.8) as an excuse
to ignore them; and into that distinction, which might seem like one of
intra-disciplinary concerns, inserts a provocative and assertive claim to key
cultural values.55 The right sort of jurists, for various reasons, are those who
take advantage of the deep and authoritative claim to antiquarian enquiry
that characterises their profession.
The elite intellectual gentleman has studied certain disciplines in his edu-
cation, and in his social life has the optional acquaintance of experts in both
these and others. This generates a wide array of questions with an equally
wide array of stakes. Gellius is interested to short-circuit certain assump-
tions about which disciplines can answer which questions, and thus the law
teaches non-legal knowledge as much as non-legal knowledge helps with the
practice of law. Gellius is perhaps concerned with no moment in one’s intel-
lectual lifestyle more than when a question has arisen and the student’s hand

54
Harries (2006), p. 180.
55
For the Twelve Tables did not belong to the jurists alone: Harries (2006), p. 172.

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 30 New Frontiers

hovers uncertainly in front of the bookshelf. The professional title of the

author is as poor a guide as the title of the book: a Roman curious about his
customs or language would do well to reach for a book on law.

BIBLIOGRAPHY
Frier, B. W., The Rise of the Roman Jurists: Studies in the Pro Caecina (1985).
Gunderson, E., Nox Philologiae: Aulus Gellius and the Fantasy of the Roman Library
(2009).
Harries, J., Cicero and the Jurists: From Citizens’ Law to the Lawful State (2006).
Hanson, A. E., ‘The eight months’ child and the etiquette of birth: obsit omen!’,
Bulletin of the History of Medicine, 61.4 (1987), p. 589.
Holford-Strevens, L., Aulus Gellius: An Antonine Scholar and his Achievement, rev.
edn (2003).
Gardner, J. F., Women in Roman Law and Society (1986).
Honoré, T., Emperors and Lawyers, 2nd edn (1994).
Keulen, W., Gellius the Satirist (2009).
Lao, E., ‘Luxury and the creation of a good consumer’, in R. K. Gibson and
R. Morello (eds), Pliny the Elder: Themes and Contexts (2011), p. 35.
Leeman, A. D. and Pinkster, H., De oratore Libri III / M. Tullius Cicero. Band II (1981).
Marache, R., La Critique Littéraire de Langue Latine et le Développement du Gout
Archaïsant au IIe Siècle de Notre Ère (1952).
Milnor, K., Gender, Domesticity, and the Age of Augustus (2005).
Murphy, T., ‘Pliny’s Naturalis historia: the prodigal text’, in A. J. Boyle and W. J.
Dominik (eds), Flavian Rome: Culture, Image, Text (2003), p. 301.
Nörr, D., ‘Der Jurist im Kreis der Intellektuellen: Mitspieler oder Aussenseiter?
(Gellius, Noctes Atticae 16.10)’, in D. Medicus and H. H. Seiler (eds), Festschrift für
Max Kaser zum 70. Geburtstag (1976), p. 57.
Stevenson, A. J., ‘Gellius and the Roman antiquarian tradition’, in L. Holford-
Strevens and A. Vardi, The Worlds of Aulus Gellius (2004), p. 118.
Swain, S., ‘Bilingualism and biculturalism in Antonine Rome’, in L. Holford-
Strevens and A. Vardi, The Worlds of Aulus Gellius (2004), p. 3.
Treggiari, S., Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of
Ulpian (1991).
Vardi, A., ‘Gellius against the professors’, ZPE, 137 (2001), p. 41.
Vessey, D. W. T., ‘Aulus Gellius and the cult of the past’, ANRW, II.34.2 (1994), p.
1863.

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 Chapter 3
Artes Urbanae: Roman Law and Rhetoric
Olga Tellegen-Couperus and Jan Willem Tellegen

1. INTRODUCTION
Modern Romanists generally assume that Roman law was completely
separate from rhetoric. Whereas Roman law was a science, rhetoric was not.
Rhetoric was a skill developed by the Greeks that was used by advocates
to pervert the truth. The Roman jurists did not need rhetorical arguments
to support their case: stat pro ratione auctoritas. They never wanted to have
anything to do with rhetoric.1
In the twentieth century, this view has been challenged several times.
First Johannes Stroux and later Theodor Viehweg argued – be it in different
ways – that Roman law was closely connected to rhetoric.2 Their ideas trig-
gered much discussion, but failed to convince the majority of Roman law
scholars. Over the past ten years or so, we have also tried to demonstrate
that Roman law and rhetoric were closely connected, but so far, our work
has not changed the commonly held view either.3 The reason may be that we
have not yet addressed the basic assumption that Roman law was a science
and rhetoric was not. We will do so now.
The assumption that Roman law was a science is based on another sup-
position: that the concept of science, including legal science, already existed
in classical Antiquity. However, it was only in the sixteenth century that
legal science as we know it now came into being.4 It originated in the minds
of the French legal humanists, for example Donellus. In the words of Peter
Stein, ‘he assumed that Justinian’s law must be logical even though it did
not appear to be so, and applied himself to identifying what he conceived

1
Cf. Schulz (1946), p. 54. A more differentiated approach is in Crook (1995), pp. 40–1.
2
Johannes Stroux, ‘Summum ius summa iniuria, Ein Kapittel aus der Geschichte der interpre-
tatio iuris’ intended for the Festschrift P. Speiser-Sarasin, Leipzig 1926, which never appeared
in its entirety. The work was reprinted in Römische Rechtswissenschaft und Rhetorik (1949), pp.
9–66. Viehweg (1974).
3
For instance, in Tellegen-Couperus and Tellegen (2000), pp. 171–202; Tellegen-Couperus
and Tellegen (2006), pp. 381–408; Tellegen-Couperus and Tellegen (2007), pp. 231–54. It all
began with Tellegen (1982).
4
Cf. Feldman (2009), pp. 109–20; remarkably, she does not refer to Roman law or rhetoric at
all.

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 32 New Frontiers

to be its underlying rational structure’.5 In the seventeenth and eighteenth

centuries, various orderings of the civil law were made, showing the influ-
ences of natural law and the Enlightenment. In some countries, for example
Austria and France, they resulted in codifications. The last step was made by
the founder of the German Historical School, Friedrich Carl von Savigny.
Focusing on the works of the second-century classical jurists, he tried to
ascertain the central principles of Roman law and created the new scientific
system of present-day Roman law.6
When the codifications of the nineteenth and twentieth centuries turned
Roman law into a historical phenomenon, scholars – now called Romanists
– began to apply this legal system to Roman law as well. Because classical
Roman law was regarded as the basis of modern private law, it was sup-
posed to share the same rules and principles. However, some of these rules
and principles did not belong to classical Roman law. At the same time,
Roman legal practice was familiar with rhetoric, but rhetoric was excluded
by modern legal science. Consequently, problems arose when legal sources
like Gaius’ Institutes and Justinian’s Digest were studied. These problems
were sometimes ‘solved’ by adapting the text to the theory, for instance,
by declaring words or sentences in the Digest to be sixth-century interpola-
tions.7 Sometimes, however, they were not solved at all because the rhetori-
cal aspects of, for instance, the controversies in the Institutes of Gaius were
ignored. Problems also arose when so-called rhetorical sources like the pleas
of Cicero were studied. These problems were solved by regarding the refer-
ences to legal practice as biased and therefore as unreliable. As a result, a
Roman law was (re)constructed that was not always in accordance with the
sources.
In this chapter, we will first discuss the theories put forward by Stroux
and Viehweg, adding our comment. Then we will deal with the role of
rhetoric in Gaius’ Institutes and in Justinian’s Digest. We hope to make it
clear that Roman law was not a science in the modern sense and that law and
rhetoric belonged together as two sides of the same coin: legal practice.

2. THE THEORIES OF STROUX AND VIEHWEG

Johannes Stroux (1886–1954) was a German classicist and historian. In 1926,
he published a paper entitled ‘Summum ius summa iniuria, ein Kapitel aus der
Geschichte der interpretatio iuris’. In the introduction to the paper, Stroux
described the various stages of legal development in Greek and Roman soci-
ety.8 Originally, there was only the oral tradition of law. In both cultures,

5
Stein (1999), p. 80.
6
Stein (1999), pp. 104–27.
7
Stein (1999), pp. 128–9.
8
Stroux (1949), pp. 9–12.

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 Artes Urbanae: Roman Law and Rhetoric 33

this stage was followed by that of recording law in order to protect it against
arbitrariness and distortion, as well as against time. Its being unchangeable
seemed to guarantee the essence of the law, and the interpretation of the law
necessarily had to serve that purpose. Over time, however, the words of the
law hardened whereas life went on and society changed. Neither the inter-
pretation of the law by judges nor its application by others could provide
the much needed innovation. Then, next to the law came equity. In Rome,
the praetorian edict became the instrument to make aequitas a fundamen-
tal legal principle. According to Stroux, the aphorism summum ius summa
iniuria, ‘the greatest right is the greatest wrong’, is like a war cry indicating
that positive law without equity is no law. As such, it was first formulated by
Cicero, but the idea originated in Greek culture. One could even say that it
belongs to all times and all places.
Stroux suggested that it was through Hellenistic philosophies and rheto-
ric that Rome was influenced by the idea behind the aphorism summum ius
summa iniuria. Here, however, the contrast between strict law and equity was
incorporated into legal practice and, in that way, had stimulated legal devel-
opment.9 Rhetoric provided the means for implementation, particularly the
so-called status doctrine.
We know the status doctrine because it is described by Cicero in his De
inventione but it may have been developed in the second century BCE by the
Greek rhetorician Hermagoras.10 It basically deals with the question of how
to defend oneself against an accusation: by focusing on the facts or on the
law. The latter category is particularly interesting when the words of the law
are not clear and have to be interpreted. This can happen if the words are
ambiguous, if the words of the law do not seem to reflect the intention of
the lawgiver, if there are two applicable laws that contradict each other, or if
the words of a law do not refer to a particular case but can be interpreted by
analogy so that they do. According to Stroux, this system did not only apply
to the interpretation of laws, but also to wills, stipulations, and other ‘formal
gefasste rechtsgeschäftliche Willensäusserungen’.11 Stroux presented two
examples to illustrate how the aphorism summum ius summa iniuria worked
in legal practice: the famous causa Curiana and Cicero’s speech pro Caecina.12
In both cases, the status of verba – voluntas was applied. In both cases, the
jurists argued for an interpretation according to the verba, the orators for the
voluntas. In both cases, equity won.
Stroux noticed that Roman jurisprudence then also changed into a legal
science, and he wondered whether this happened under the influence of rhet-
oric as well. In his time, it was generally assumed that the scientific approach

9
Stroux (1949), p. 20.
10
Stroux (1949), pp. 23–40.
11
Stroux (1949), p. 33.
12
Stroux (1949), pp. 42–8.

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 34 New Frontiers

to law was provided by Hellenistic philosophy, and particularly by the Stoa.

Stroux admitted that Stoic philosophy was very influential in Rome, but not
its dialectic. He assumed that rather the New Academy and the Peripatetic
School supported the development of Roman legal science. Again, rhetoric
provided the means, as is shown by the methodological work called Topica
which Cicero wrote for his friend, the jurist Trebatius. By drawing up an
abstract Topica – that is, a scientific theory of argumentation – the orators
offered the jurists a means to systematise their casuistic opinions.13 Stroux
concluded that the fact that Justinian’s Corpus Iuris does not contain a com-
prehensive theory of interpretatio iuris does not prove that such a theory
did not exist in classical Roman law, but that Justinian, in his new codifica-
tion, wanted to exclude all signs of interpretation: he even wanted to make
interpretation superfluous.14
There are two comments we would like to make on Stroux’s theory. First,
we think that Stroux made an important contribution to the rediscovery of
classical Roman law by connecting rhetoric to law, but we are surprised to
notice that he still regarded the jurists and the orators as thinking in com-
pletely different ways: the jurists focused on form and the orators focused on
justice. Second, Stroux was right in assessing that Cicero’s Topica is a method-
ical work that could be helpful to jurists, but he still adhered to the idea that
the jurists of the late Republic developed a legal science, a ‘Methodenlehre’.
It was Viehweg who, several decades later, questioned exactly this point,
whether law could really be organised as a systematic science.
Theodor Viehweg (1907–88) was Professor of Philosophy and Sociology
of Law at the Johannes Gutenberg University at Mainz, Germany. His
approach to the relationship between law and rhetoric was very different
from that of Stroux. In his book Topik und Jurisprudenz, Viehweg ‘con-
trasted the deductive systematic intellectuality that has been influential since
Descartes and the more contextual problem oriented style inherited from
classical rhetoric’.15 On the basis of examples drawn from two millennia of
legal history, he concluded that the rhetorical or topical approach is more
suitable for law. In the context of this chapter, we will focus on the first part
of his book, where Viehweg dealt with Greek and Roman Antiquity.
Because the concept of topica was practically unknown in his time,
Viehweg first wanted to discover its meaning and therefore turned to the
works of Aristotle and Cicero on this subject (§2). He noticed that Aristotle
did not present his Topica as part of logic but as belonging to dialectics.
In this work, Aristotle offered a catalogue of ways of reasoning that could
help in a discussion of any problem whatsoever to draw conclusions from
sentences that were probably true. Cicero, in his Topica, did not add this

13
Stroux (1949), pp. 51–2.
14
Stroux (1949), pp. 65–6.
15
Cf. the blurb of the English translation of Viehweg (1993).

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 Artes Urbanae: Roman Law and Rhetoric 35

philosophical context but only created a catalogue of arguments that were

based on probability and that could be used in daily life. Viehweg concluded
that topica can be described as a techne of problem-oriented thinking that had
been developed by rhetoric.
Next, Viehweg analysed the concept of topica (§3). He assumed that a
problem is any question that seems to allow more than one answer, and that
only relevant questions need to be answered. The problem is brought into
the context of a more or less explicit and extensive deduction from which
the answer is inferred. This context can be called a system. In short, solving
a problem involves classing it into a system. If an attempt is made to solve a
problem by focusing on system A, then only some problems can be solved,
the others cannot: they will no longer be regarded as real problems. If, on
the other hand, an attempt is made to solve a problem by focusing on the
problem, systems A, B, C and so on may be taken into consideration. Topoi
are points of view that can help when choosing a particular system or way of
reasoning. Some topoi can be used to solve all sorts of problems; others are
particularly suited to solving legal problems.
Viehweg then turned to the Roman ius civile. ‘It is well known’, he wrote,
‘that ius civile [Roman law] is rather disappointing to deductive systematiz-
ers’ (§4). The texts in the Digest, for instance, belong to contexts that are
problem-oriented rather than system-based. Consequently, the concepts
and rules developed by the ius civile cannot be readily systematised; they
must be understood to form part of topical thinking. Topica tends to collect
points of view and summarise them in catalogues. Ius civile did the same, for
law. The jurists proceeded to formulate propositions that could be used as
topoi. According to Viehweg, the so-called regulae provide a good example of
such propositions. At times, they were collected and summarised. Viehweg
thought that the last section of the Digest, book D.50.17, constituted such a
catalogue.
Can Roman law be problem-oriented and still be qualified as a science?
Viehweg used the Aristotelian distinction between techne (art) and episteme
(science) to answer this question; he concluded that the Roman jurists
themselves regarded ius as an art. In his view, jurists and orators applied the
same method of working which derived from Aristotle’s dialectics. Viehweg
stressed that the latter had nothing to do with Stoic dialectics which were
closely connected to the mathematic intellectuality of Antiquity: in the
structure of the ius civile, no trace of the Stoic Chrysippus can be found.16
Viehweg went several steps further than Stroux in connecting law and
rhetoric. In our view, he demonstrated convincingly that Roman law was
characterised by a problem-oriented way of working, and that the jurists
and the orators applied the same topical approach. However, we have two

16
Viehweg may not have noticed that Cicero, in Topica 54, refers to the Stoic dialectics; see the
comment by H. M. Hubbell in his translation of Cicero’s Topica (1976), p. 422.

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 36 New Frontiers

points of criticism; both regard his connecting topica and Roman law. First,
Viehweg did not see that Cicero’s Topica cannot really be compared to that
of Aristotle, let alone be qualified as inferior. As Robert Gaines has demon-
strated, it contains various ways of finding arguments ordered in a systematic
way meant for legal practice.17 Secondly, Viehweg was wrong in qualifying
the regulae as topoi of Roman law. They are concrete precedents rather than
abstract ways of reasoning.18 In our view, it is certainly possible to find topoi
in legal sources like Gaius’ Institutes and Justinian’s Digest. In the following
two sections, we will apply Viehweg’s theory to these sources.

3. LEGAL SCIENCE AND RHETORIC IN GAIUS’ INSTITUTES

If the Roman jurists had created a legal science that was independent from
rhetoric, it must be possible to find traces of a scientific system in the legal
literature of the classical period. However, this is not so simple. Our main
source of information for classical Roman law is Justinian’s Digest, but the
framework of that source does not really correspond to what in modern
times is regarded as a system. We will return to the Digest in the next section.
There is, however, another source that did seem to reflect the system of
Roman law and to exclude rhetoric: the Institutes of Gaius.
Gaius’ Institutes, an elementary textbook of Roman law, was written in
the second century.19 It was structured in a simple way, dividing the law into
‘persons’, ‘things’ and ‘actions’. About the author, Gaius, we know next to
nothing. The textbook must have been popular because various later edi-
tions have been published and because sections have been quoted in the
florilegia of the fourth and fifth centuries and in Justinian’s Digest of the
sixth century. It was even used as a model by the Byzantine law professors
when Justinian ordered them to compose a new textbook, the (Justinianic)
Institutes. However, for many centuries after the fall of the Roman Empire,
the work itself was not available.
The first complete manuscript of Gaius’ Institutes was discovered in
Verona in 1816, by B. G. Niebuhr. Before that time, Roman law had been
studied for more than six centuries on the basis of Justinian’s Digest, Codex,
and Institutes.20 As was pointed out in the introduction to this chapter, the
sixteenth century had witnessed the rise of legal science based on the Corpus
Iuris Civilis. The rediscovery of Gaius’ Institutes, therefore, took place

17
Gaines (2002), pp. 445–80, particularly pp. 469–76.
18
For instance, the regula about expenses and assets of something (D.50.17.10) (Paul. 3 ad Sab.):
Secundum naturam est, commoda cuiusque rei eum sequi, quem sequentur incommoda) may form
a proposition in a specific form of reasoning, whereas topoi as presented by Cicero contain
general points of view like the argument of time, cause and effect, authority, and so on.
19
See Gordon and Robinson (1988), pp. 7–13.
20
As of the fifteenth century, these books came to be called Corpus Iuris Civilis, as opposed to
the Corpus Iuris Canonici.

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 Artes Urbanae: Roman Law and Rhetoric 37

after, in countries like France and Austria, the new codifications had been
introduced and, in the German Länder, Savigny had just begun to create ‘das
heutige römische Recht’. It will be clear that the rediscovery of Gaius’ Institutes
caused a shock among the Romanists. The text was partly familiar to them
through the Institutes of Justinian. However, it was also partly new because
it referred to legal concepts and procedures that no longer existed in the sixth
century and that had been left out of Justinian’s Institutes. Therefore, Gaius’
Institutes provided a lot of new information on Roman law and its history.
There were two major issues in Gaius’ Institutes that puzzled the
Romanists. First, the system of Roman law that had been developed over the
centuries and that was based on the division of rights in rem (dominium and
iura in re aliena) and rights in personam (obligations) could not really be recog-
nised in the work of Gaius. And yet, it should be there. Secondly, through-
out his textbook, Gaius mentioned approximately twenty controversies
between leading Roman jurists which referred to as many unsolved legal
problems. If the Roman jurists had created a system that could provide the
one correct solution for every legal problem, there could not have been con-
troversies, let alone in a law textbook. In the following, we will first analyse
how the Romanists have tried to solve the system-related problem and give
our comment. Then we will discuss the problem of the controversies and
show that it can be solved by connecting it to rhetoric.

The system of Roman law in Gaius’ Institutes

In his Römische Rechtsgeschichte, Max Kaser, one of the leading Romanists
of the twentieth century, described the essence of legal science. In his view,
it was the development of legal concepts that are well determined as to
content and clearly separated from each other, and that are ordered and
linked together in a logical system.21 Under the influence of the Greek dia-
lectical method, the Roman jurists had developed such concepts and such a
system, but their way of working had remained casuistic. The one exception
to this rule was Gaius. In his Institutes, he divided the subject matter into
personae and res, that is, into legal subjects and legal objects, or, into the law
of persons (including family law) and the law of property (Vermögensrecht).
The subdivision of things into res corporales and res incorporales gave the first
impulse to dividing the law of property into things, inheritance and obliga-
tions. This first step towards a system can still be traced in the codifications
of our day, according to Kaser.
It is clear that the essential element for Gaius’ Institutes is the subdivi-
sion of things into res corporales and res incorporales. In 2.13, Gaius describes

21
Kaser (1967), p. 164: ‘Zum Wesen einer solchen gehört die Entwicklung inhaltlich genau
bestimmter und von einander abgegrenzter juristischer Begriffe und ihre Ordnung und
Abstimmung aufeinander in einem von der Sachlogik bestimmten System’.

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 38 New Frontiers

corporeal things as tangible things, such as land, a slave, a garment, gold,

silver, and so on. In the next section, Gaius describes the incorporeal things:22
Incorporeal are things that are intangible, such as exist merely in court, for
example an inheritance, a usufruct, obligations however contracted. It does not
matter that corporeal things are comprised in an inheritance, or that the fruits
gathered from land (subject to a usufruct) are corporeal, or that what is due under
an obligation is commonly corporeal, for instance land, a slave, money; for the
rights of inheritance, usufruct, and obligation themselves are incorporeal [. . .]

In modern Romanist literature, it is assumed that the word res and therefore
also the distinction between res corporales and res incorporales refers to legal
objects. However, this distinction is commonly regarded as illogical. The
res corporales would be legal objects, that is, objects of ownership. However,
ownership is a right. Therefore, the right must be identified with the object,
and ownership must be regarded as a res corporalis. The res incorporales should
be legal objects, too, but then it would be unclear what the objects were.
This problem was solved by regarding the res incorporales as (subjective)
rights.23 Consequently, the phrase ‘quae in iure consistunt’ in the first line of
Inst. 2.14, is translated by most scholars as ‘that exist in a right’.24 With the
distinction between res corporales and res incorporales, Gaius was supposed to
have referred to the distinction between dominium and iura in re aliena. In
other words, he had done a bad job.
In our view, this interpretation is rather far-fetched.25 It goes wrong at the

22
Inst.Gai. 2.14: Incorporales sunt, quae tangi non possunt, qualia sunt ea, quae [in] iure
consistunt, sicut hereditas ususfructus obligationes quoquo modo contractae. Nec ad rem
per[tinet quod in hereditate res corporales con]tinentur, et fructus, qui ex fundo percipiun-
tur, corporales sunt, et quod ex aliqua obligatione nobis debetur, id plerumque corporale
est veluti fundus homo pecunia: nam ipsum ius successionis et ipsum ius utendi fruendi et
ipsum ius obligationis incorporale est: text edition by David (1964), p. 36. Our translation is
based on that by de Zulueta (1946), p. 69. The main difference is the translation of in iure in
the first line as ‘in court’. In the following, we will explain why we prefer this translation.
23
It is interesting to see how, in the past 100 years, this distinction has been dealt with in text-
books of Roman law. They all interpret res incorporales as (subjective) rights, but all have prob-
lems explaining the distinction. See, for instance, Salkowski (1898), p. 204; van Oven (1948),
p. 138; Arangio Ruiz (1960, repr. 1978), pp. 162–3; Jolowicz and Nicholas (1972), p. 412;
Villers (1977), p. 253; Kaser (1989), p. 90; Borkowski and du Plessis (2005), pp. 153–4, (2010,
4th edn), pp. 151–2). Some think it originated in Greek grammar and/or philosophy. Two do
not mention the distinction at all, namely Schulz (1951) and de Francisci (1968).
24
Some scholars translate it as ‘that exist in law’. This phrase caused a lot of discussion, partic-
ularly because it is not quite certain that the phrase contained the preposition ‘in’. According
to David and Nelson (1954–68), p. 240, it did. For an overview and renewed discussion, see
Nicosia (2009), pp. 821–35.
25
In this vein, see Tellegen (1994), pp. 35–55. According to Bretone (1999), p. 284, this inter-
pretation is ‘fantasiosa’. For us, however, it would be fanciful to explain that res means some-
thing other than ‘things’, let alone that Gaius would use it to refer to ‘legal objects’ as well as
‘subjective rights’.

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 Artes Urbanae: Roman Law and Rhetoric 39

very beginning, with the assumption that the concepts personae and res are to
be interpreted as referring to legal subjects and legal objects, respectively. We
think they do not. In the first book of his Institutes, Gaius describes the three
categories of status that refer to persons (freedom, citizenship and family)
and how a person’s status can change. He does not describe the capacity of a
person to perform a legally valid act or to have property. Consequently, the
word personae cannot mean ‘legal subjects’ but only ‘persons’.
In the second and third books, Gaius deals with the res. At the begin-
ning of book II, he mentions a number of distinctions of things, all the time
explaining why a particular distinction is relevant. He does not describe
what qualifies as a legal object. Gaius defines the res corporales as things that
can be touched, and the res incorporales as things that cannot be touched but
that exist in iure. The relevance of this distinction is explained in Inst 2.28:
incorporeal things cannot be transferred by tradition, the informal way of
transferring property, but only by means of in iure cessio. This legal concept,
however, originated in the law of procedure. For a proper understanding of
the distinction between res corporales and res incorporales, it must be borne
in mind that, in his Institutes, Gaius did not only deal with personae and res,
but also with actiones. In our view, this distinction can only be explained in
its context, that is, in connection with the in iure cessio as part of the Roman
law of procedure.
The in iure cessio begins like a normal procedure per formulas before the
praetor, when the plaintiff claims the usufruct (or another res incorporalis)
from the defendant. This phase of the procedure is called ‘in iure’. The
praetor asks the defendant whether he also claims the usufruct. The defend-
ant may keep silent or indicate that he does not do so. Then the praetor will
assign the usufruct to the plaintiff and a transfer of the usufruct will have
taken place. The defendant can also indicate that he does want to claim
the usufruct; then the praetor may grant a formula, and a regular trial (apud
iudicem) may follow. In short, res incorporales can be the object of a transfer
and of a procedure.
The procedure to claim the usufruct makes it clear that, in this connec-
tion, the word res cannot be taken to mean ‘rights’. The formula of a vindicatio
ususfructus was based on that of the reivindicatio (to claim dominium, prop-
erty) but it was slightly adapted. Let us compare both formulae. According to
the reconstruction of Lenel, the formula of the reivindicatio ran as follows:26
X must be judge. If it appears that the thing at stake belongs to Aulus Agerius
according to the ius Quiritium, and if this thing has not been restituted by the order

26
Lenel (1927), pp. 185–6. ‘Iudex esto. Si paret rem qua de agitur ex iure Quiritium Auli Agerii
esse neque ea res arbitrio iudicis Aulo Agerio restituetur, quanti ea res erit, tantam pecuniam
iudex Numerium Negidium Aulo Agerio condemnato, si non paret absolvito’. In the pattern
formula, the name of the plaintiff is always given as Aulus Agerius, and that of the defendant
as Numerius Negidius. The translation of this formula is our own.

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 40 New Frontiers

of the judge to Aulus Agerius, then the judge must condemn Numerius Negidius
to pay so much money to Aulus Agerius as this thing is worth. If it does not
appear, then he must absolve him.

The formula of the vindicatio ususfructus is:27

X must be judge. If it appears that Aulus Agerius has the right of usufruct on that
land that is at stake and if this thing has not been restituted to Aulus Agerius,
then the judge must condemn Numerius Negidius to pay so much money to
Aulus Agerius as this thing is worth, if it does not appear then he must absolve
him.

In the first part of the reivindicatio, the thing that is claimed is referred to
as res, a res corporalis. In the vindicatio ususfructus, however, the thing that
is claimed is referred to as ius, that is, the right of usufruct that rests on
someone else’s land. In the latter part of the formula, the word res is used,
but then it indicates the thing at stake, the res incorporalis. Apparently, the
words ius and res are used as synonyms. By adapting the formula, it became
possible to claim a usufruct in court. Consequently, the word res in Gaius
Inst. 2.12–14 cannot be taken to mean ‘rights’.
Now the meaning of the phrase ‘quae in iure consistunt’ becomes clear:
it refers to the first part of the formulary procedure, before the praetor,
which is called in iure. The res incorporales only exist in iure, ‘in court’. Gaius
did a good job when he added this explanation: it helped to clarify a simple
distinction which he made for his elementary textbook.
The fundamental mistake made by modern Romanists is their assumption
that Gaius is dealing with subjective rights. This concept was unknown to
Gaius; it originated only between the fourteenth and sixteenth centuries.28
Gaius, and the other Roman jurists for that matter, had a completely differ-
ent way of thinking than present-day civil-law jurists. It must be concluded
that Gaius’ Institutes did not reflect the system of subjective rights of
modern civil law and that the system that was used does not qualify as legal
science in the modern sense.

The controversies in Gaius’ Institutes

The second issue that puzzled the Romanists was the twenty or so contro-
versies mentioned in Gaius’ Institutes. These controversies existed between
the two law schools that had emerged in Rome in the early Principate, the

27
Lenel (1927), p. 190: ‘Iudex esto. Si paret Aulo Agerio ius esse eo fundo qua de agitur uti
frui neque ea res arbitrio iudicis Aulo Agerio restituetur, quanti ea res erit, tantam pecuniam
iudex Numerium Negidium Aulo Agerio condemnato, si non paret absolvito’.
28
Villey (1946–7), pp. 201–27. According to the same author, it was William of Ockham who
first introduced the concept of subjective right. Feenstra (1989), pp. 111–22 suggests it was
Donellus.

DU PLESSIS PRINT.indd 40 19/12/2012 16:49

 Artes Urbanae: Roman Law and Rhetoric 41

Sabinian or Cassian school and the Proculian school.29 The leaders of these
schools defended opposite positions over several points of private law. How
could they do so, if there was only one correct solution to a legal problem?
Moreover, the jurists in question gave arguments to support their opin-
ions. Why would they do so if they normally did not because, according to
Schulz, stat pro ratione auctoritas? The leaders of the schools may have had
the ius respondendi ex auctoritate principis and will have had a lot of authority.
Finally, some of these controversies were solved by a compromise, a media
sententia. How could such a solution be fitted into a system that allowed only
one correct solution?
Ever since the discovery of the manuscript of the Institutes, dozens of
scholars have tried to solve the problem of the controversies. Most of
them did so from a dogmatic perspective on Roman law, trying to find one
overall interpretation that could bring the controversies within the system
of Roman law. However, they did not succeed in finding one interpretation
that could explain all the controversies. They have not adapted their way of
working until recently.
A few years ago, Tessa Leesen wrote a monograph about the controversies
in Roman law.30 She suggested that they could be explained by connecting
them to rhetoric. Her main thesis was that jurists, like orators and lawyers,
made use of the art of rhetoric, and of its argumentative theory, the topica
as developed by Cicero and Quintilian, to make their opinions persuasive.
By analysing the twenty-one controversies in Gaius’ Institutes, she was able
to demonstrate how, in these cases, the jurists used topical arguments to
support their view. There was not one correct solution, but the opinions
of both jurists could be defended without one of them losing his integrity.
We will give one example that is discussed by Leesen, namely, that of the
controversy on specificatio mentioned in Gaius, Inst. 2.79:31
On a change of species also, we have recourse to naturalis ratio. If, therefore, you
have made wine, or oil, or grain from my grapes, olives, or ears of corn, the ques-
tion is asked whether this wine, oil, or grain is mine or yours. In like manner, if
you have made some vase of my gold or silver or if you have constructed a boat,
or a cupboard, or a bench from my planks. In like manner, if you have made a
garment from my wool or if you have made mead from my wine and honey or if
you have a plaster or an ointment from my drugs, the question is asked whether
what you have thus made from my material is yours or is mine. Some think that
the material and the substance have to be taken into consideration, that is, the
manufactured article is considered to belong to the owner of the material. And

29
In modern literature, the very raison d’être of the law schools is also controversial, cf. Stein
(1999), p. 17, but see also Tellegen-Couperus (1990), pp. 95–7.
30
Leesen (2010).
31
Leesen (2010), pp. 70–90. For the Latin text here and in the following, see http://www.
TheLatinLibrary.com (accessed 13 February 2012) under Ius Romanum.

DU PLESSIS PRINT.indd 41 19/12/2012 16:49

 42 New Frontiers

this opinion is above all preferred by Sabinus and Cassius. Others, however, think
that the object belongs to him who created it; this is the view held above all by the
authorities of the other school. However, they also think that he who owned the
material and the substance has the actio furti against him who stole it and also a
condictio against the same person because, although it is no longer possible to bring
a vindicatio when things have perished, they may be the object of a condictio against
thieves and certain other possessors.

The text forms part of a discussion on the different means of acquisition

of ownership based on naturalis ratio. The first example has become classic:
When somebody (A) makes wine by processing the grapes of somebody
else (B) without mutual agreement, a problem of ownership arises: does
the owner of the grapes (B) or the maker of the wine (A) become owner of
the wine? The owner of the grapes will claim ownership of the wine from the
maker who is in possession, and he will do so by means of a reivindicatio. The
Sabinians supported B’s claim, the Proculians defended the view that A had
become the owner.
Gaius does not explicitly mention the arguments used by the Sabinians
and the Proculians, but they have come down to us via the Digest in the
second book of the so-called Res Cottidiana sive aurea, a fourth-century
version of Gaius’ Institutes. The relevant text, D.41.1.7.7, runs as follows:
When someone has made for himself something from another’s material, Nerva
and Proculus think that the maker owns that thing, because what has been made
previously belonged to no one. Sabinus and Cassius rather think that the naturalis
ratio requires that the person who has been the owner of the material also becomes
the owner of what is made from his material, since nothing can be made without
the material: if, for example, I make some vase from gold, silver or bronze, or a
garment from your wool, or mead from your wine and honey, or a plaster or an
ointment from your drugs or wine, oil or grain from your grapes, olives or ears
of corn. Nevertheless, there is also a media sententia of those who correctly think
that, if the thing can be returned to its material, the better view is that propounded
by Cassius and Sabinus. If it cannot be returned, Nerva and Proculus are sounder.
Thus, for example, a finished vase can be returned to its raw mass of gold or silver
or bronze. It is not possible, however, to return wine, oil or grain to grapes and
olives and ears of corn. Neither can mead be returned to honey and wine or plas-
ters or ointment to drugs. It seems to me, however, that some have said correctly
that there should be no doubt that the grain, shaken from someone’s ears of corn,
belongs to him whom the ears of corn have come from. For since the grain, that
is contained in the ears of corn, has its own perfect form, the one who has shaken
out the ears of corn does not make a new form. But he uncovers what already
exists.

This text shows that both schools base their claim on the naturalis ratio, so
there is no fundamental difference.

DU PLESSIS PRINT.indd 42 19/12/2012 16:49

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Fig. 15.—A painted wooden portrait bust of Nefertiti, wife of Akhenaton.

The form of the head in Akhenaton, his daughters and some of

the members of his family, more than half a century before his time,
raises a problem of great difficulty and complexity.
 Fig. 16.—The skull of Akhenaton seen from the left side.

There is no doubt that the slight malformation of Akhenaton’s

head was due to pathological causes. It is equally certain that the
gross distortion of the heads of his daughters, represented in the
statues from Tell el Amarna which are now in Berlin, are the result of
artificial deformation such as was and still is practised upon young
children in Asia Minor and Northern Syria, with the royal family of
which Akhenaton’s family was linked by close ties. But in addition the
mummy of a boy in the tomb of Amenhotep II, which was certainly
embalmed in the reign of that pharaoh and is probably the body of
his son, has a skull which is exceptionally broad and flat, and when
viewed from the front presents an appearance curiously similar to
the portrait statues of Akhenaton’s daughters. The full significance of
these peculiarities cannot be interpreted until the royal mummies
now in the Cairo Museum are submitted to a thorough re-
examination.
 CHAPTER VI
THE STORY OF THE FLOOD

Just half a century ago[2] the proprietors of The Daily Telegraph

arranged with the Trustees of the British Museum to send Mr George
Smith to Mesopotamia to search in the ruins of the library of Ashur-
bani-pal at Nineveh for missing fragments of inscribed tablets to fill
the gaps in the Chaldean Account of the Deluge. The announcement
of the discovery (in December 1872) aroused an intense and world-
wide interest, and The Daily Telegraph provided the funds for the
new expedition. Although this version of the Story of the Flood was
discovered in an Assyrian library no older than the seventh century
b.c., Mr George Smith predicted that the future would reveal it to be
the survival of a more ancient version that had also indirectly been
the inspiration of that recorded in the Book of Genesis. The recent
discovery of the Sumerian prototype of this story, which was put into
writing more than twenty centuries before the record in Ashur-bani-
pal’s library, is a remarkable confirmation of George Smith’s
prediction.
It will come as a surprise to most people to learn that the Valley of
the Tombs in Egypt has provided the information which is destined in
time to afford the explanation of the early history of the Story of the
Flood, before it began to exert a strange fascination upon the minds
of men that led to its diffusion throughout the world.
Inscribed upon the walls of the tomb of Seti I in the Theban
necropolis—less than seventy years after the burial of Tutankhamen
—is the remarkable story of the Destruction of Mankind. In spite of
the fact that it was inscribed in this tomb as recently—in comparison
with the Sumerian story—as 1300 b.c., the strange confusion of
archaic references which has made it so unintelligible to most
modern scholars reveals the fact that its origin must be referred
back to the fourth millennium. Although in the narrative found in
Seti’s tomb the destruction is not brought about by the Flood, it is
clear that the Egyptian and the Mesopotamian stories have a
common origin and a common motive. For the essential incident in
the latter is not the Flood, but the Destruction of Mankind which it
brought to pass.
If it be asked why this venerable story should be inscribed in the
tomb of an Egyptian pharaoh, the answer is that its aim was to
secure for the dead king those boons the attainment of which was
the central motive of the tale. It records how old age began to affect
the king, upon whose strength and virility the welfare of the whole
community depended (see Chapter IV), and he became very sorely
troubled when his subjects began to murmur about the failure of his
powers, because in olden days the only way of safeguarding the
prosperity of the kingdom, which was supposed to be wholly
dependent upon the strength of its ruler, was to slay him when he
began to fail and put in his place one whose vigour was at its prime.
The essence of the story, which made it potent as a charm to
secure the continued existence of the king (and it was for this
reason that it was inscribed upon the walls of the king’s tomb) was
that it describes how the ageing king circumvented fate (and the
conventions of archaic society) by rejuvenating himself. The elixir of
life was the blood of his slaughtered subjects; and the crime that
was charged against them—the impiety and disloyalty, the original
sin—was that they were murmuring among themselves about the
king’s failing health. But when they had been slaughtered and the
king had attained a renewal of his youth, he was overcome by the
boredom of too prolonged an existence upon earth. So he mounted
upon the back of the Celestial Cow and thus reached heaven and
attained immortality.
This remarkable story, which was intended as a magical device for
securing the same fate for the pharaoh of the fourteenth century b.c.
as his remote prototype is said to have attained, also contains the
germs of most of the mythology that has lasted longest and spread
most widely in the early history of civilization. Although, so far as we
are aware, this story is not found in Tutankhamen’s tomb, there is no
doubt that it was current at his time, because it was inscribed upon
the walls of one of his successor’s tombs little more than half a
century later, and the narrative is obviously very old, being packed
with archaic allusions and forms of expression. I have referred to it
here because the symbolism expressed in some of the funerary
furniture in Tutankhamen’s tomb is explained by this mythical story
recorded in those of Seti I and Rameses III. The question of
interpretation I have discussed in another chapter, dealing with the
funerary couches, and I have mentioned the Destruction of Mankind
to call attention to the dominant motive—the Giving of Life and the
Attainment of Immortality—which inspires every feature of the
funerary ritual with tiresome persistence. For in the myth mankind
was destroyed to provide the elixir of life for the king so that he
might attain to the immortality, which was the distinctive prerogative
of a god. The blood of the slaughtered saints was the elixir by which
the mortal dweller on earth put on the immortality of a celestial
being. The motive assigned in the story for destroying mankind was
their sinfulness or disloyalty, which was more exactly defined by
accusing them of spreading rumours of the king’s increasing age and
weakness, a form of report to which the ruler was peculiarly
sensitive, because the admission that his strength and virility were
failing was tantamount to a capital sentence. In the remotely distant
age, from which the germs of this story came down to the time of
Seti I, the ageing king had to be killed to make way for a more
youthful and vigorous ruler. Hence one cannot marvel at the king’s
sensitiveness when his people murmured about his failing powers.
I have already referred to the fact that this accusation of disloyalty
was the earliest version of what theologians call “original sin,” and
the story itself the prototype of that which under a modified form
appears in the Book of Genesis. The primitive account of the slaying
of mankind became confused with the inundation of the Nile, and
the blood of the slaughtered human race and the blood-red
inundation of the river became identified the one with the other.
Though originally both events were regarded as beneficent and
identical in their results, that is renewing the king’s strength and the
country’s prosperity, when the story spread abroad to foreign
countries a certain element of confusion crept into the narrative, and
the destruction of mankind was attributed to the Flood. But it found
a place in religious literature, not because it exemplified the wrath of
the gods against sinful man, but because it explained how the king
rejuvenated himself and attained the status of a god. The evidence
provided by these Egyptian tombs gives us an insight into the
motives underlying the religious beliefs of every people who came
into relationship, directly or indirectly, with the arbitrary system of
explaining the means of attaining immortality devised by the ancient
priesthood of Egypt. It illustrates one of the ways in which these
investigations in Egypt can illuminate ancient Jewish literature.
One of the peculiarities of Egyptian customs and beliefs is due to
the fact that what the concrete-minded Egyptian naïvely did and said
is to be interpreted in the literal and obvious sense that he attached
to these acts. Among no other people can we similarly detect all the
stages in the logical development of the practices and beliefs of
civilization—and not only are the various stages preserved in Egypt,
but in so crudely childlike a guise that he who overcomes the
impulse to seek for some recondite or cryptic meaning in things
which are really simple can read their plain story as their inventors
intended it.
It is this fundamental fact that gives the study of Egyptian
customs and beliefs its tremendous importance. The essential
elements of civilization were originally invented by the Egyptians,
who gave them simpler and more obvious expression than other
peoples, who borrowed them ready-made without acquiring the
connecting stages in their development or the naïve explanation of
their meaning.
I have introduced this subject for consideration as an introduction
to the study of the funerary equipment of Tutankhamen’s tomb, to
which the next chapter will be devoted.
 CHAPTER VII
GETTING TO HEAVEN
It is not my intention to attempt to discuss the equipment of
Tutankhamen’s tomb. Readers of the daily papers and the illustrated
weeklies will already be aware of the vast quantity of furniture and
of the fact that even those who were already familiar with the
superb design and workmanship displayed in the objects from such
tombs as those of Thothmes IV, Yuaa and Tuaa, and Akhenaton
were amazed at the new revelation of Egyptian craftsmanship
revealed in scores of the things found in Tutankhamen’s tomb, the
throne, a superb work of art, the no less wonderful chariots, chairs,
couches, statues, sandals, textiles and jewellery, and above all the
impressive canopy or shrine. Archæologists familiar with all the
marvels of Egyptian art, now treasured in the museums scattered
throughout the world, have exhausted their vocabularies of wonder
and admiration in attempting to depict the splendours of
Tutankhamen’s tomb. The outstanding feature of the discovery is, in
fact, the recovery of so vast a collection of superb works of art and
the new revelation it affords of the dazzling brilliance of Egyptian
civilization thirty centuries ago.
But in this book I am concerned more especially with the cultural
significance of the funerary equipment.
In the first place the objects found in the tomb belong to two
distinct categories, those which were used by the deceased when
alive, and others specially made for funerary purposes. This
distinction seems to be brought out most clearly in the comparison
of the chariots in the vestibule and in the burial chamber
respectively.
I do not propose to enter into any further discussion of the
contents of the wonderful shrine or canopy which is to be
investigated next winter, nor to attempt to anticipate the result of
the examination of the so-called “canopic” chest, which is said to be
a unique example of the sculptor’s art. The experience gained in
investigating the contents of such chests in other tombs gives one
confidence in assuming that the heart of Tutankhamen will not be
found in it, as so many writers imagine, but that its four
compartments will contain respectively the liver, lungs, stomach and
intestines of Tutankhamen, his “heart and reins” being left in his
body.
From the cultural point of view the most interesting articles of
furniture found in Tutankhamen’s tomb are the three lofty couches
fashioned in grotesque shapes to represent conventionalized
animals, cow, lion, and hippopotamus respectively. Although such
couches are thoroughly Egyptian in design and are familiar in
pictures from Egypt and the Soudan, they have never been seen
before. They are worth discussing in some detail, because they
express the concreteness and naïvety of Egyptian belief mentioned
in the last chapter in a way that brings home to us the essential
distinction of the religion of the ancient dwellers in the Nile Valley.
The problem of getting to heaven after death was approached by
the Egyptian theologian as though it were essentially a physical
proposition. How was the dweller upon earth to reach the world in
the sky? What vehicle could he employ to reach the celestial realms?
Speaking recently of Christian Englishmen in the twentieth century,
Dean Inge is reported to have said that “a topographical heaven, so
impossible scientifically, was so difficult to dispense with as an aid to
the imagination.” But to the ancient Egyptian belief in such a
topographical heaven was a cardinal article of faith, and the
geography of the Elysian fields and the details of the path leading to
it were mapped out with all the meticulous precision of a modern
guide-book. The dead man was often provided with a chart to find
his way along the path that teemed with difficulties and dangers.
But although there were scores of different devices for securing a
safe transit to the celestial regions, there was one vehicle which
from the very beginning of Egyptian history enjoyed a special
reputation as the appropriate means of protecting the dead and
conferring life and immortality upon him by conveying him to the
other world. The Celestial Cow Hathor not only conferred life upon
mortals by giving them birth: she also sustained them throughout
life by giving them the divine milk, and at death she conveyed them
to the sky.
In the famous inscription upon the walls of the tomb of Seti I, to
certain passages of which I referred in the last chapter, there is a
remarkable story of the function of the Divine Cow Hathor or Nut as
a means of raising the dead king to the sky to reach the home of the
gods. After being rejuvenated by the goddess the king became
oppressed with the boredom of life upon earth amongst his tiresome
subjects, who had shown their disloyalty to him by referring to his
old age and failing powers. So he decided to leave the earth and
proceed to the sky. Hence he mounted upon the back of the cow
and got to heaven, where he assumed his godhead by becoming
identified with the sun.
This function of the cow in acting as a vehicle to convey the
mummy to its celestial home is one which was repeatedly depicted
in the ancient Egyptian monuments. But the cow’s solicitude for the
welfare of the dead was frequently shown in other ways. A favourite
motif for the Egyptian sculptor was the representation of the Divine
Cow, Hathor, protecting the dead king or permitting him to obtain an
elixir of life by drinking milk from her udder. In his book Egyptian Art
(1913) the late Sir Gaston Maspero devotes to this subject a whole
chapter (XI) illustrated with six beautiful photographic plates of such
cow-statues ranging from the time of Amenhotep II (1440 b.c.) to
more than a thousand years later. But we know that the protective
function of the Cow Hathor was portrayed in other ways as early as
the time of the Pyramid-builders (for example, the beautiful slate
statuettes found by Professor Reisner in the Pyramid Temple of
Mykerinus of the fourth dynasty, about 2800 b.c.), and the still earlier
representation of her upon the slate palette of King Narmer of the
first dynasty, about 3400 b.c. For several reasons this palette is a
historical document of unique importance. Engraved upon it is the
earliest example of writing that has come down from antiquity: but it
is of interest in connexion with the discussion in this chapter. For at
the upper corners of the palette the cow-headed Hathor is depicted
and as a further protection the king wears upon his belt four cows’
heads (Fig. 18) in place of the cowrie amulets of more primitive
peoples.

Fig. 17.—Cow carrying a dead man to heaven.

The Celestial Cow, Hathor, was a divinity of the dead, for she was
the Giver of Life who was supposed to be able to prolong existence
beyond the grave, and as she was also identified with the sky she
became the appropriate vehicle to convey the dead to the celestial
regions where the sun-god dwelt.
 Fig. 18. Narmer’s belt
with four Hathor cows’
heads, circa 3400 b.c.

The most bizarre objects found in the vestibule of Tutankhamen’s

tomb are the three ceremonial couches, one representing the
Celestial Cow, Hathor, the second the same goddess in her lioness
form, or more probably her son and representative Horus in the form
of a lion, and the third Tauert, the hippopotamus goddess, who was
the divine midwife.
In the numerous accounts of these remarkable monstrosities that
have appeared, I have not seen any attempt to explain their
significance. Although such grotesque examples of mortuary
furniture have never been seen before, the bas-reliefs upon the walls
of tombs in Egypt and Ethiopia, and the pictures illustrating the Book
of the Dead inscribed on papyri, have made us familiar with them.
Moreover, the chapters of the Book of the Dead relating to “the
raising of the funeral bed” leave no doubt as to the ritual significance
of these couches.
The sides of the Hathor couch are grotesque models of the Divine
Cow, the earliest of the Great Mothers who were believed to have
bestowed life and prosperity on mankind. It may seem strange that
the artists of Tutankhamen’s time should have perpetrated such a
monstrosity as this Hathor couch. When religious motives impelled
the designers to fashion a piece of furniture in imitation of so
uncouchlike a creature as a cow, the artist was set a task which was
almost impossible of realization unless he sacrificed his artistic
ideals. There can be no doubt that in this case he escaped the
dilemma by repressing his æsthetic feelings and abandoning himself
whole-heartedly to the task of devising a model which was almost
wholly religious in conception.
To understand why the cow, of all creatures, should have been
selected for this purpose, we must remember the relentless logic
and persistency that inspired all the preparations of the tomb and its
furniture. The mummification of the body and the elaborate
arrangements for protecting it and ministering to its wants were due
to the belief that the continuance of the deceased’s existence had
been secured by these preparations. But to make doubly certain, no
device that would contribute to the attainment of this aim was
neglected. Inscriptions were made on the walls of the tomb, on the
sarcophagus and coffins, and on papyri to ensure the identification
of the deceased king with Osiris, so that he might be made to share
the god’s fate. A figure of Osiris was made, as I have explained
elsewhere (p. 61), out of the sacred barley, every grain of which was
regarded as a model of the life-giving Great Mother, and as such a
supply of vital essence to maintain the deceased’s existence. From
time to time dramatic ceremonies were held at the tomb (or in the
temple associated with it in far-off Thebes) to reanimate the dead
and help him to persist.
Fig. 19.—Pictures of three couches represented on the walls of the tomb
of Seti I, from Belzoni’s sketches.

For, once the ancient Egyptians had persuaded themselves that

they could work out their own salvation, and that the kingdom of
heaven could be attained by certain physical and magical
procedures, they spared no pains to pursue this train of thought and
action with tiresome persistence to the most surprising ends.
The Great Mother was originally nothing more than the
personification of an amulet, like a cowrie shell or a grain of barley,
that was supposed to be able to exert the essentially maternal
function of life-giving. Then, when cattle were domesticated and
mankind discovered for the first time that cow’s milk could be used
for feeding human children, people were profoundly impressed with
this revelation of the cow’s kinship with the human family. They
regarded her as the foster-mother, and then as the actual mother of
mankind, and identified her with the Great Mother Hathor, whose
earliest form was (even sixty centuries ago) that of a Divine Cow.
But if the Great Mother was at one and the same time a cowrie, a
grain of barley, and a cow, she was also identified with the moon,
which in a very special sense was supposed to control the life-giving
powers of womenkind.
Hence the belief developed that if the Great Giver of Life and
Immortality was both a cow and the moon, she was the appropriate
vehicle to convey the dead king to the celestial realms in the sky.
And so, as the nursery rhyme puts it, “the cow jumped over the
moon.” That the cow represented in the couch is a symbol of the sky
is shown by the stars on the under surface of the body. The height
of the couches also was an additional indication of their identification
with the sky. In all periods of Egyptian history painters and writers
were fond of depicting this episode of the conveyance of the dead
king to heaven on the cow’s back. This incident is shown and
explained in the inscriptions on the walls of Seti I’s tomb, to which I
have already referred (p. 95). But in later times it became common
to represent the Divine Cow (or its lioness surrogate) conveying the
dead man or his actual mummy to the sky, and in pictures of
funerals to find the mummy borne on just such couches as have
actually been found in the tomb of Tutankhamen. The object of the
cow-shaped couch was to ensure by magical means this translation
of the deceased to heaven. The story of the Destruction of Mankind
gives the Egyptian’s own interpretation of the incident. The influence
of this Egyptian conception of animal “vehicles” for gods spread far
and wide throughout the world in ancient times, for if such a
creature could convey the dead king to the celestial regions and
confer upon him the means of attaining immortality, which was the
distinctive attribute of divinity, such an animal vehicle was an
appropriate symbol and pictorial determinative of a god. The
identification of the Great Mother with the cow was the beginning of
the social system known as totemism.
The explanation of the lioness form of the Great Mother is also
given in the inscription in Seti I’s tomb. When the goddess was
called upon to rejuvenate the ageing king, the only elixir of life
known in her pharmacopœia was human blood. Hence, she was
driven to the necessity of slaying a human being, and her murderous
action was compared to that of a man-slaying lioness, with which
she was identified. But as the lioness was a particularly appropriate
form to symbolize the Great Mother’s ability to protect the mummy
from the perils that lurked in the pathway to the other world, it
became an even more favourite form of the funerary vehicle than
the gentle cow. At any rate, in the pictures of funerary couches the
lioness form is much commoner than the cow-form. The same
grotesque form of the lion has survived in modern heraldry.
But other ideas found expression in the lion-symbolism. For
example, on some of the beautiful pieces of furniture found in
Tutankhamen’s tomb the king himself is represented as a human-
headed lion trampling on his foes, and many of his predecessors
before him, Thothmes IV for example, were similarly represented.
Even as far back as the time of the Pyramids was not Mykerinus
(2800 b.c.) represented as a human-headed lion in the gigantic
Sphinx at the Giza Pyramids?
This representation of the king as a lion, which typifies his
identification with Horus, is inspired by another chain of ideas.
Although at the time of Tutankhamen, and in fact throughout the
whole history of Egypt in dynastic times the sun-god was dominant
in Egypt and Horus himself was a sun-god, the rôle that he took as
the guardian of the dead was inspired by the more ancient Osirian
faith. It was the living king Horus who was responsible for tending
the dead king Osiris; and it was believed that the continued
existence of the god (the dead king Osiris) was wholly dependent
upon the services rendered by Horus. Thus it was Horus who
performed the divine function of conferring immortality upon Osiris,
and also upon the dead king Tutankhamen, who was identified with
Osiris. Presumably the act of being borne upon the lion-couch was
symbolically equivalent to being put into the care of Horus, not the
Horus represented upon the furniture in the tomb, the lion-avatar of
Tutankhamen who tramples his enemies under foot, but the son of
Osiris, who holds out the promise of conferring upon the dead king
the boons that he is credited with having given to Osiris—eternal life
and protection. The confusion between these two aspects of Horus
is brought out very clearly in a very interesting picture recently
discovered by Professor George A. Reisner (and reproduced in The
Illustrated London News, 10th February 1923, p. 204), engraven
upon a monument in the Soudan several centuries later than the
time of Tutankhamen. The lion-couch is represented supporting the
mummy of King Ergamenes, whose head is portrayed in the form of
the falcon of Horus. Above the mummy is the star-spangled sky,
below which is seen the sun’s disc emitting five streams of life-giving
emanations to the dead king. In the Book of the Dead Chapter
LXXVIII is called that “whereby one assumeth the form of the Sacred
Falcon” and the deceased is represented as saying “I display myself
as the Sacred Falcon whom Horus hath invested with his soul for
taking possession of his inheritance from Osiris” (Renouf). The
possibility suggests itself whether the lion-couch was intended to
symbolize, as the cow-couch unquestionably was, the transference
of the dead king to the sky to be united with the sun and identified
with the solar deity Re. If so, perhaps the five streams of V-shaped
emanations pointing to the disc were meant to represent the sun
drawing the mummy, the dead Horus, to the sky.
In his monograph of the Tomb of Amenemhēt Dr Alan Gardiner
reproduces a text (Plate XXX A) including a pictorial arrangement of
hieroglyphs in the form of stars above the mummy borne on the
lion-couch, which he translates as a statement that the dead man
“wishes to be placed among the stars in the firmament” (p. 119).
The same design occurs in the pictures illustrating the Book of the
Dead. The funerary couch is usually represented in the lion-form, the
cow- and hippopotamus-varieties being much less frequently
adopted.
In the pictures of funerals it is not uncommon to see the mummy
borne upon a lion-shaped couch placed within the funerary canopy
or shrine (as in the first of the pictures from the Book of the Dead,
Fig. 20). Good examples are given by Dr Alan Gardiner and Mrs de
Garis Davies in The Tomb of Amenemhēt (1915), Plates XII and
XXIV, of the reign of Thothmes III, a century before Tutankhamen.
No doubt this is due partly to the significance attached to the
conception of Horus as the guardian of Osiris, but also possibly to
the idea that Horus fought the enemies of Re and was the best
protector of the deified dead.
Fig. 20.—Three vignettes from different papyri of the Book of the Dead,
representing the lion-couch bearing the mummy within its canopy, a
mummy lying on its funerary couch with three solar emanations
coming down from the sky, and a third where the bird-soul is
bringing to the mummy the symbol of eternity.
 But underlying the whole of the lion-symbolism are two
fundamental ideas which gave meaning to it. In the very ancient
story of the Destruction of Mankind, which in a relatively modern
and much distorted form was inscribed upon the walls of the tombs
of several of Tutankhamen’s successors, the goddess Hathor (the
Divine Cow) is reported to have made a human sacrifice in order to
obtain the blood wherewith to rejuvenate the senile king (in the
story Re, the king upon earth who had not yet been elevated on the
cow’s back to the sky to become the sun-god). Hence she acquired
the reputation as a slayer of men and was identified with a lioness,
and called Sekhmet, the Destroyer. Thus the lioness and the cow
were both forms assumed by the Great Mother Hathor. But in the
development of the myth of the Destruction of Mankind the god
Horus takes the place of his mother Hathor, and the bull and the lion
take the place formerly occupied by the cow and the lioness. In the
case of the funerary couches the Cow of Hathor is found alongside
the lion of Horus, but occasionally one finds in late tombs the
mummy represented as being conveyed to the celestial realms by a
bull instead of the more usual cow. A good example of this is to be
seen in the Museum of the Society of Antiquaries in Edinburgh.
The third couch is modelled in the form of a grotesque caricature
of a hippopotamus, Tauert, another representative of the Great
Mother Hathor. But her special duty was to act as a midwife at the
births of gods and kings. In pictures she is often associated with the
Hathor Cow at the door of the tomb in the Mountain of the West;
and presumably her function was to preside at the rebirth of the
dead king by which a new lease of life beyond the grave was
conferred upon him.
If it seems far-fetched to regard the hippopotamus couch as
symbolizing rebirth, it should not be overlooked that in the so-called
“Birth Terrace” of the temple at Deir el Bahari[3] lion-headed couches
are represented in the birth scene of Queen Hatshepsut. As I have
pointed out already all three animals, cow, lioness, and female
hippopotamus, represent primarily different forms of the same
goddess Hathor.

Fig. 21.—Scene from The Book of the Dead (Papyrus of Ani) in which the
three givers of divinity are seen, the cow at the entrance to the
tomb, the hippopotamus with her, and Horus on guard.

The Egyptian custom of making these grotesque animal-shaped

couches to symbolize the transference of the dead to the celestial
regions and the conferring of immortality and deification upon them
exerted far-reaching and manifold effects as it was diffused abroad
among other peoples. I shall mention three examples of these
diverse influences. The belief implied in such symbolism that a king
borne by such an animal vehicle was transformed into a god led to
the use of such designs in the representations of gods. Hence it
became common in Syria and Mesopotamia, in Greece and India,
and far away in outlying parts of the world where the influence of
these civilizations played some part, directly or indirectly, to find
gods and goddesses represented on animal vehicles, such as the bull
or cow, the lion or lioness, or some fantastic composite monster,
dragon or makara. The whole conception of animal vehicles, which
plays such a large part in the religious symbolism of India, Eastern
Asia and Central America, is a purely Egyptian fancy that finds such
grotesque expression in Tutankhamen’s funerary couches, no less
than in the borrowed symbolism that was spread abroad from Egypt
to Asia and America.

Fig. 22.—The goddess Astarte borne on her lioness, symbolizing the

attainment of immortality, which was the distinctive attribute of a
deity.

Another expression of the essential meaning of these couches was

the belief that the placing of the corpse or mummy on a raised stage
was magically efficacious in transferring the deceased to the sky-
world. The use of such raised platforms is practised over a very wide
geographical area, and for the reasons given in my pamphlet The
Migrations of Early Culture (1915). There can be no doubt that it
gives expression to the same belief as the lofty and uncouth
funerary beds in Tutankhamen’s tomb have forced upon our
attention.
Another wave of diffusion of culture is represented in the adoption
by European furniture-makers of the Egyptian method of designing
legs for chairs, beds and couches. In Egypt itself such a practice can
be traced back to the first dynasty 3400 or more b.c. But the lion
paws were adopted in Europe as a design for legs of chairs, etc.
almost as soon as the Egyptian craft of carpentering and joinery was
introduced. Long after the Queen Anne period Chippendale
introduced the Chinese variant, the dragon’s feet grasping the moon-
pearl symbol. But as I explained in The Evolution of the Dragon
(1919) the dragon is really a blending of Horus’s falcon (eagle) and
lion into one composite beast.
Thus the study of these couches has revealed the development in
Egypt of a very peculiar but distinctive series of symbolic
expressions, each of which is so arbitrary and unexpected that one is
able to recognize it and refer it to its true source, in whatever part of
the world and at whatever historical period it manifests itself. Hence
we are able to use the evidence provided by these three distinct
aspects of one essential idea to demonstrate different waves of
cultural diffusion which spread from Egypt throughout the world
both in ancient and modern times.
 CHAPTER VIII
THE ETHICS OF DESECRATION
With the awakening of a world-wide interest in the tomb of
Tutankhamen there has been a good deal of not altogether relevant
discussion about the ethics of desecration, which is none the less
unfortunate because it is inspired by ignorance of the real facts of
the case. By inflaming feeling it may help to defeat the object
everyone concerned is doing his utmost to achieve, that is, to secure
the adequate protection and reverent treatment of the dead pharaoh
and his fellow-sleepers. Hence it is necessary to put the issue in its
true light.
It seems to have been overlooked by those who write about
leaving the royal mummies in their own tombs that in the past only
one of them was actually found in his own tomb, and that this
pharaoh, Amenhotep II, was left there reposing in his own
sarcophagus. It is equally important to note that it was Mr Howard
Carter, who is in charge of the present work for the late Lord
Carnarvon, who was at that time Inspector of Antiquities at Luxor
and was largely responsible for this decision. Nor is it any secret that
those responsible for the present work propose to leave the mummy
of Tutankhamen in the tomb, provided that the risk of damage can
be guarded against.
The issue raised by the oft-repeated protests against desecration
is complicated by the fact that in every case the mummies of the
pharaohs were plundered and grossly maltreated by their own
subjects more than thirty centuries ago; and, except in two or three
instances, were unceremoniously removed from their own tombs
and hidden away in any place that happened to be convenient.
If archæologists did not open and examine these tombs there is
no doubt that in time the native tomb-robbers of Luxor, the most
experienced members of their craft to be found anywhere, would in
time discover the hidden tombs, plundering them and destroying the
historical evidence. There can be no question that the work of the
archæologist when conscientiously done saves the ancient tombs
from wilful destruction and gives the mummies and the furniture a
new lease of assured existence. So long as these tombs are left
alone there is always the risk that they will be desecrated at any
moment.
The problem which the archæologist has to solve, once he has
opened a tomb, is what is the proper course to take with reference
to the mummies and the funerary equipment. It is claimed by many
writers to the Press that at any rate the bodies of the kings ought to
be restored.
But even if it were possible to replace the royal mummies in their
own tombs, and to persuade the museums of the world to return
their sarcophagi and funerary equipment, it would still be a moot
point whether such procedures would save them from desecration.
For, unless large sums of money are spent in equipping the tombs
against the attacks of robbers and providing guards, such measures
would defeat the purpose that prompted them. For the mummies
would become the lure for the greed of the Theban population,
which for sixty centuries and more has been habituated to tomb-
robbing, and has shown little respect for the mummies of even the
most famous of its rulers. In fact, the most powerful sovereigns of
Egypt have suffered worst at the hands of the people of their own
metropolis. The mummies of the greatest emperors and wisest
statesmen of the eighteenth dynasty, such as Thothmes III and
Amenhotep III, were stripped and badly mutilated; and it is more
likely than not that the mummy of the famous Hatshepsut, the
Queen Elizabeth of Egyptian history, was totally destroyed. Even
when Amenhotep II (together with the mummies found with him)
were left in his own tomb, it was not long before the tomb was
entered by plunderers and wanton damage inflicted on the bodies
left in it. In my volume of the Official Catalogue of the Cairo
Museum, dealing with the royal mummies, gruesome evidence is
given of the mutilation effected upon the bodies of a prince and two
princesses in this tomb, both by ancient and modern robbers.
The moral of all this is that unless the tomb is rendered burglar-
proof, and in addition is protected by adequate guards, it is inviting
desecration to leave the mummies in them. Everyone immediately
concerned with the problem of Tutankhamen’s mummy agrees that,
if it is feasible, it should be left in its own tomb and adequately
protected there after a thorough examination of it has been made,
and all the information as to age and infirmities which the X-rays can
afford has been obtained. The late Lord Carnarvon was strongly in
favour of this course of action, and Mr Howard Carter has always
been in favour of leaving the mummies in their tombs. But if this is
done they must be adequately guarded. For it is not an exaggeration
to claim that in the past the removal of the royal mummies to the
Cairo Museum saved them from destruction, or from being broken
up for disposal to tourists, as in former centuries some of them were
sold to druggists. For, as Sir Thomas Browne expressed it two and a
half centuries ago, “The Egyptian mummies, which Cambyses or
time hath spared, avarice now consumeth. Mummy is become
merchandise, Mizraim cures wounds, and Pharaoh is sold for
balsams.”
But, apart from such considerations, the fact has not received due
acknowledgment that the archæologists who are investigating the
tomb of Tutankhamen are clearly not engaged in a work of
destruction or of desecration, but are striving to preserve his
remains and his treasured possessions, and to secure his name and
his record from the oblivion which he himself and his representatives
strove so hard to avert.
The relatively slight disturbance of the antechamber holds out the
prospect that the mummy also may have been spared that wanton
destruction which was the fate of so many pharaohs of his dynasty,
although it is to be expected that the valuable gold objects upon the
body are not likely to have escaped the plunderers.
 If the mummy is found, an examination of it by means of the X-
rays will be made; but, whatever measures are adopted for wresting
from it the story it has to tell, no one need be anxious about its
desecration. No damage of any sort will be inflicted upon the body;
but every precaution will be taken to assure that prolongation of its
existence within its own sarcophagus which the embalmer of thirty-
two centuries ago aimed at achieving.
In the commentary on the discoveries in Tutankhamen’s tomb I
have dealt mainly with aspects of the new revelation of Egyptian
customs and beliefs that to most readers may seem less impressive
than the dazzling display of artistic treasures which has aroused in
them an interest in archæology.
But to the student who is interested in tracing out the origin of the
customs and beliefs which have shaped the fabric of civilization and
influenced the trends of even our own thoughts, the objective
expression of ancient beliefs displayed in Tutankhamen’s tomb is the
most important outcome of Mr Howard Carter’s discovery.
For it enables us to realize more vividly than before the relentless
and persistent logic with which the ancient Egyptian theologian
strove by any and every device he could think of, to make as certain
as any physical or magical procedure could make it, to give a new
lease of life or existence to the dead. Many modern scholars object
to the use of the word logic to apply to a series of procedures
inconsistent the one with the other except in their ultimate aim, and
are constantly emphasizing and marvelling at their lack of cogency
and consistency. But the modern psychologist has recently been
insisting that we ourselves, and, in fact, all mankind, are just as
illogical as the Ancient Egyptian priesthood. In our everyday life we
are hourly doing things as glaringly inconsistent the one with the
other as anything that the Egyptians ever did. It is merely that our
wider acquaintance with the nature of matter and the properties of
living creatures enables us the more readily to hide our
inconsistencies and rationalize our statements so as to hide our
ignorance and lack of cogency.
 In this connexion it is important to try and put ourselves in the
position of the theologians of Tutankhamen’s time, and ask whether
it is likely that they really imagined the ceremonial couches to be
potent to transfer the dead king to the sky. They knew perfectly well
that the couches could not effect this physical transference to a
topographical heaven. But long usage had accustomed them to
attach a definite symbolic meaning to the ceremonial practice of
placing the mummy of the king upon such couches. This was
supposed to confer upon the dead king immortality and divinity, to
identify him with the sun-god Re in the sky.
The problem which is perhaps responsible for most disagreement
between Egyptian scholars to-day is the relationship of the two gods
Osiris and Re, with both of which the dead king was identified as a
means of attaining immortality. The obvious connecting link between
them is the rôle assigned to Horus, who, as the son of Osiris, is
charged with the function of securing for the dead king the same
boons which he was able to confer on Osiris. Yet as a sun-god,
intimately associated with Re, Horus could also secure for him the
solar heaven and enable him to dwell with Re, if not be identified
with him, in the sun.
There is a profound difference of opinion whether Osiris or Re was
the earliest god. Philologists like Professor Breasted and Dr
Blackman, who derive their knowledge from the literary texts (which,
however, were not put into writing until all thought and expression
were dominated by the sun-cult and the Pyramid Texts were actually
written by Heliopolitan priests) insist on the priority of the sun-god
Re.
Ethnologists who know how relatively recent is the belief in a sky-
world and in sun-worship insist upon the priority of the god Osiris,
who was originally a king on earth. To my mind the whole
conception of deity and the attributes of the earliest gods can be
understood and explained only if we admit that Osiris was the first
god and that Re acquired his reputation secondarily from Osiris.
 In Tutankhamen’s tomb the one idea that informed the funerary
ritual and equipment was this identification with Osiris, and the solar
embellishments are clearly additions to the more ancient practices. I
have entered in detail into the interesting problems of the funerary
couches in order to bring out in a definite and concrete form the
essential meaning of the whole equipment of Tutankhamen’s tomb.
What renders the obtrusiveness of the Osirian element in
Tutankhamen’s ritual additionally significant is the fact that he had
been a worshipper of the sun’s disc, the Aton, and had just been
converted to that denomination of the Re-cult which was associated
with Amen. But although these different forms of the sun-cult were
in turn his confessed beliefs, it is a striking demonstration of the
fundamental nature of the Osirian cult that it dominates the
ceremonies of Tutankhamen’s death and burial.

Footnotes:
[1] Ancient Records of Egypt, Vol. II. pp. 420-427.
[2] This was written in January 1923.
[3] See Egypt Exploration Fund publication, Deir el Bahari, II,
Plate LI.

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