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Rolando Ferri, Dario Mantovani: Les juristes écrivains de la Rome antique. Les oeuvres des juristes comme littérature. in:

Gnomon, page 23 - 27

GNO, Volume 93 (2021), Issue 2, ISSN: 0017-1417, ISSN online: 0017-1417, https://doi.org/10.17104/0017-1417-2021-2-23

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Bibliographic information
R. Ferri: Mantovani, Les juristes écrivains de la Rome antique 119 Dario Mantovani: Les juristes écrivains de la Rome antique. Les œuvres des juristes comme littérature. Paris: Collège de France/Les Belles Lettres 2018. 358 S. (Docet Omnia.) 21 €. Mantovani (henceforward M.) has written a book of rare value, one which sits astride the divide between two closely and jealously guarded domains, Roman Law and Classics. He does so successfully, and, as in all cases when such sapere aude is accomplished with competence, toil, and intelligence, reading the book reaps rich rewards, certainly for people like the present reviewer looking from the literary side of the fence, and fosters greater awareness of a surprisingly neglected area — at least from the côté of Classics. This is also an elegant book, written with a taste for the mot juste, though never at the expense of learning and precision. The overarching purpose of the book is to chart the place of juridical sources, which means jurisprudential rather than Laws, in the discourse or discourses of Roman literature and culture. This is not done to eke out a space, no matter how small, in the narrative of Latin literature; more than that, M. aims at highlighting how jurisprudents mould Latin styles and words to suit their argument. In M.’s book, jurisprudents prove aware of the cultural discourse of their times and capable of appropriating the argumentative strategies of other discursive contexts in a manner which suits their needs and the reality they construct. This terrain is not entirely novel, because historians of various descriptions, especially in the United States, have laid out theoretical paths which could fit the above description, for example Clifford Ando in his 2011 ‘Law, Language, and Empire in the Roman Tradition’, or some of the contributions included in P. J. du Plessis, ‘New Frontiers. Law and Society in the Roman World’ (Edinburgh, 2013), but part of the originality of M.’s approach stems from his different background, that of a Continental Roman Law scholar rather than an ancient historian: from a different discourse, he has a different story to tell, and the result is illuminating. The first chapter is certainly the one most immediately appealing to Classical scholars, in particular those who are interested in the definition of the canon in antiquity and beyond. M. attempts to outline the place of jurisprudents’ writings in the spaces of literary production in ancient Rome: was there a readership for juristic writings? Were jurisprudents identified by a specific technical language in ancient Rome, and if so, what were its identifying features? M. starts from a passage in Petronius, an extract from the freedmen’s table talks in Satyricon 46.7, where the rag dealer Echion describes his prospects for his son’s education: he will buy his son ‘books with red headlines’, in Echion’s partly illiterate Latin libra rubricata, to read the Law; if he does not succeed in that, he can always fall back on some other lucrative but less demanding trade such as barber, public crier, or barrister. M., who is also able to benefit from the findings of an ERC-funded research project of which he was principal investigator, and musters an enviable command of paleographical and papyrological sources, starts from the striking color detail, the red title line, rubrica, which is introduced as an identifying feature of the book bought by Echion for his son. By comparing juridical inscriptions and legal papyri from very early periods, M. convincingly shows that such distinctive paratextual divisions were characteristic of legal literature and generally juridic GNOMON 2/93/2021 R. Ferri: Mantovani, Les juristes écrivains de la Rome antique 120 sources, in opposition to other book formats. Jurisprudential writings were rarely books read cover to cover, and the creation of such paratextual features made consultation and reference easier. Books written in prose in the ancient world tended to be a continuous block of written words with little or no punctuation and even less of what we call today ‘paratext’, and it was sometimes difficult to identify a given passage. As M. shows in this chapter and in the evidence collected in Appendix A (pp. 241–284), the richness and detail of these visual aids increased with the passing of time, alongside the growing status of the jurisprudential literature as an authoritative source. The text of a legal document was subdivided into capita, highlighted by the use of ekthesis, the ‘projection’ to the left of the initial line of a new paragraph, and, as seen in Petr. Sat. 46.7, a system of titles or subtitles written in red ink and with a distinctive lettering. Greek school commentaries of Roman law texts such as the Scholia Sinaitica or the collection of legal definitions preserved by PSI xiii.1348 (both from the fifth century or slightly later) refer the pupil to specific κεφάλαια and τίτλοι of the source text. Another specific feature of Law books was the use of idiosyncratic sigla or abbreviations, which were common with inscriptions reporting decrees and edicts. M. illustrates different degrees of engagement with the jurisprudential and juridical literature. First, he deals with the experts who seek corroboration for a particular view of a case, share the tacit knowledge of many legal presuppositions and are not disturbed by the elliptical, compressed style such as that neatly exemplified by Ulpian in the extract from book 17 of his Digesta preserved in Fragmenta Vaticana 75.3 Mommsen, on usufructs (pp. 30–36). As M. reminds us, the relevance of a pre-justinianic source, the Fragmenta, resides in the fact that Justinian’s team of editors consistently removed controversy and debate in the extracts they drew from for inclusion in the Digesta, since Justinian wanted to represent current law and procedure as a compact and tightly closed body, not open to debate. M. then moves on to consider less narrow circles of readers for jurisprudents’ writings (37–46), such as the consultants of magistrates who needed expert help on controversial issues of public and private law, and finally rhetors engaged in declamation, and advocates who like Cicero probed into jurisprudential literature on given occasions and also enjoyed the flavor of antiquity associated with their language and way of arguing a topic. M. endeavors then to understand to what extent Roman high culture considered the writings of jurisprudents as a constituent part of its literary canon. M. starts by comparing and opposing ancient and modern notions of ‘literature’ (pp. 48–49): the effective and purposeful deployment of rhetorical linguistic artifice at one end, and the striving towards the representation of beauty at the other. The second pole of this opposition is in fact much more nuanced, and twentiethcentury notions, after Jakobson, center more on ‘literariness’ as the essential feature of literature: not so much the striving to create or capture beauty but the particular relationship established between language and the referents it describes, the re-invention of human reality through language in such a way as to emphasize original angles of meaning (cf. e.g. R. Scholes, ‘Toward a Semiotics of Literature’. Critical Inquiry, 4, 1977, pp. 105–120). M. charts judgements passed by Roman sources on linguistic and stylistic aspects of the writings of iuris GNOMON 2/93/2021 R. Ferri: Mantovani, Les juristes écrivains de la Rome antique 121 consulti. The writings of jurisprudents are mentioned in connection with ‘lack of rhythmic features’ by Quintilian, in principle a disqualifying feature, aligning them rather with technical than with literary prose. The same source, however, in Inst. 5.14.34, in a discussion of the appropriate language for probationes in courtroom speeches, praises jurisprudents for the apt deployment of figurative language, as in a quote from Aquilius Gallus (1st cent. BCE) where the shore, litus, is defined as qua fluctus eludit, ‘where the waves roll’. Iuris periti, Quintilian goes on, are admirable also for the painstaking precision of language, typically when providing definitions. M. questions the view, championed by Fritz Schulz (‘Geschichte der römischen Rechtswissenschaft’, Weimar, 1961, p. 332) and more recently by U. Gebhardt, (‘Sermo iuris’, Leyden, 2009, 21 n. 36), that Roman jurists wrote in the ‘humble’ style, the genus tenue, more appropriate for the casuistry and the ‘small matters’ with which they preoccupied themselves. Against this view, M. makes a convincing case for greater flexibility, for example by paying greater attention to the function played by the pragmatic situation and the performance of a text in determining its stylistic choices. He points out that the preference for an unadorned elocution does not always imply a flat, unemotional style, and neatly illustrates his point in some very perceptive and insightful pages devoted to a comparison between Cicero’s Pro Caecina 60–61 and Ulpian’s Ad edictum in Dig. 43.16.3.2, where both writers dwell on the exact definition of the word arma in the pretorian interdict de ui armata. Both writers embrace a more inclusive definition of arma, extending to all kinds of tools used with a hostile and intimidating purpose, but Cicero does so in an agonistic adversarial manner which deploys to full effectiveness the rhetorical arsenal of the debating lawyer, whereas Ulpian contents himself with apophantic assertions, in keeping with his status of an unopposed authority. In the other chapters, the question of jurisprudents and the other discourses of Roman culture surfaces again, in a slightly modified form: what do we gain from treating extant writings of Roman jurisprudents as a class of literary texts, engaging with the other genres, but asking their own questions? A first, very satisfactory answer comes from chapter 2 devoted to jurisprudence and philosophy, and particularly from the analysis of an extract of Alfenus Varus using loaded philosophical language, in Dig. 5.1.76. This is a response to the question whether an empaneled jury should still be empowered, if one or more jurors ask to be excused when the trial is already in progress. Alfenus argues that the jury remains the same for the purposes of judging the cause; in arguing his point, Alfenus uses the language of a reconstructable tradition of Greek philosophy, in particular the ‘augmentation argument’ (ὁ αὐξόμενος λόγος) ultimately going back to Epicharmus, but in fact mostly tinged with the ethical implications of Democritean and, more crucially, Epicurean atomism (Alfenus speaks of particulae minimae which constantly accrue and detach from our bodies). But unlike philosophers, using the argument to deconstruct the notion of fixed human identity and even consciousness (and therefore undermining, in theory at least, responsibility), Alfenus reverses the argument to prove continuity and identity of a collective body. Alfenus’ response, with its careful selection of philosophical material, well proves M.’s case for the jurisprudents’ ability to appropriate philosophical concepts and ideas without losing sight of the necessity to formulate GNOMON 2/93/2021 R. Ferri: Mantovani, Les juristes écrivains de la Rome antique 122 norms to regulate human behavior. Of particular interest here is M.’s analysis of the idiosyncratic meaning acquired by the polysemic word species in jurisprudents’ texts (pp. 114–124, and also Appendix B, pp. 285–294), where it is used to mean ‘separate entity, specific being’ rather than ‘outward appearance’, as in more colloquial Latin registers, ‘species’ in scientific taxonomies, or even ‘essence’ in philosophical translations of Greek ἰδέα). The important contribution in this chapter resides in M.’s detailed exploration of the philosophical education possessed by Alfenus, and perhaps by other individuals who received training as jurisprudents. This is a very interesting observation, because the role of philosophy in Roman education is a disputed one: cf. C. Wolff, ‘L’education dans le monde romain’, Paris 2015, pp. 81–89 quoting educational Roman sources opposing philosophy at school level. Chapter three charts jurisprudents’ alleged attitude towards historicizing. Some secondary literature holds the view that jurisprudents had no interest for the past (p. 133), concerning themselves solely with the present, in as far as they expose their views on the law in current use. M. shows that this view, while to some extent also represented in ancient sources (he refers to the words of an unnamed jurisprudent in Gellius, Noctes Atticae 16.10.8, studium scientiamque ego praestare debeo iuris et legum vocumque earum quibus utimur), is mainly a distortion, promoted by the Digest, which explicitly cut down controversy and focused on contemporary law, raised above the passing of time for a politicalimperial purpose. When jurisprudential sources independent of the Digest can be compared, we can see that the committee empowered by Justinian cut out obsolete customs and laws; earlier jurisprudents did not refrain from illustrating older usage as a basis for understanding progress in the Law. M. goes on to argue his thesis in detail. Republican and early Imperial jurisprudents retained a cherished interest in history and custom, sometimes revealed simply by the choice of a constitutional subject which required delving into history (pp. 139–145). A long fragment of Pomponius’ Enchiridion preserved in Dig. 1.2.2, dwells on the origins and progress of Law in Rome from prehistoric times (before Romulus) to the Twelve Tables (pp. 149–154) and beyond, to the Imperial constitutions. Pomponius’ highly conceptualized and teleological sketch of juridic history is also interesting for its attempt to interpret the evolution of Roman civil law as a quasi-deterministic process. M. also shows that jurisprudents were not incapable of observing economic and societal changes as the drivers of legal change (pp. 155–158): they tend however to emphasize the mechanisms of law themselves as a self-propelling, forward-moving factor for advancement and improvement. Finally, in the fourth chapter, M. investigates the relationship between the Hellenistic-Roman didactic tradition, and the composition of legal handbooks. The teaching of Law seems to have become institutionalized at a later date than all other subjects of the ἐγκύκλιος παιδεία. Among the reasons for this, M. convincingly pinpoints both the lack of Greek precedent (unlike e.g. rhetoric where technai and egcheiridia had long been flourishing) and the peculiarity of the subject, in which the author, the jurisprudent, also partly made the norm — since a jurisprudent’s opinion often directed and dictated the effect and exact application of the norm (p. 188). There appear to have been no legal handbooks available before Gaius composed his Instituta sometime around the 160s CE. After being GNOMON 2/93/2021 R. Ferri: Mantovani, Les juristes écrivains de la Rome antique 123 for a long time the main reference text for the study of Roman private law, Gaius’ work was replaced and virtually obliterated by Justinian’s Institutiones, until by a stroke of luck a late-antique palimpsest with its text came to light in Verona’s Biblioteca Capitolare in 1816. M. takes the reader through a history of the conflicting interpretations of this text, culminating, from his assumed viewpoint, in Fuhrmann’s 1960 monograph ‘Das systematische Lehrbuch’, the first to do justice to Gaius by providing an exact term for comparison in the tradition of the didactic book. M. capitalizes on Fuhrmann’s discovery bringing into even sharper focus the educational role of the work in antiquity, of which we have evidence in the Greek marginalia found in an Egyptian papyrus fragment of books 3 and 4, PSI xi.1182, and in various abridgements and paraphrases (e.g. the Fragmenta Augustodunensia) and some stylistic features of its isagogic style (pp. 214–219), namely Gaius’ procedure of presenting in antithetical pairs a rule and its apparent, sometimes paradoxical, exceptions. Pisa Rolando Ferri * Christine Schmitz: Juvenal. Hildesheim/Zürich/New York: Olms 2019. 248 S. (Studienbücher Antike. 16.) 22 €. Dopo l’interessante volume del 2000, dedicato a un aspetto specifico dell’opera di Giovenale (= G.) (‘Das Satirische in Juvenals Satiren’, Berlin-New York 2000), Ch. Schmitz (= Sch.) torna con un agile saggio di carattere generale su questo autore, fornendone un ritratto aggiornato e di gradevole leggibilità. Il libro si articola in 6 sezioni. La prima (pp. 11–43) si suddivide in due capitoli strettamente connessi, relativi l’uno alla ‘persona-Theorie’ e l’altro alla ‘Juvenals Vita’ (si noti l’ordine della trattazione), nel tentativo di delineare un attendibile ritratto di G. sia «innerhalb» che «außerhalb seines Textes». a) Sch. sembra volersi ricavare una sua ‘terza’ via (pp. 25, 29) tra il biograficismo screditato di Highet e la concezione ‘estremistica’ della persona di Braund, che fa dell’ ‘Io parlante’ o del ‘Satirico’ un personaggio propriamente drammatico, da cui il lettore deve prendere le opportune distanze: Sch., pur inclinando con qualche aggiustamento per questa seconda opzione, concede che la situazione è più complessa (o più semplice?) di così e che bisogna tener conto anche della possibile presenza di elementi autobiografici (uno degli ‘ingredienti’ della ‘ricetta’ satirica; p. 25). In ogni caso, per Sch. non sono pochi gli ‘Ichs’ che appaiono nel testo, in un cangiante ‘Rollenspiel’ che apre alla lettura uno spettro di possibili «Perspektivierungen» (pp. 24 s. e 27–30): il Satirico è ‘proteiforme’ (cf. p. 45) e la satira è un «elusive genre», secondo la definizione di Classen (cf. p. 57). Resta in realtà da stabilire cosa si intenda con il termine ‘polivalente’ di persona (p. 19 ss.): il concetto in questione nasce dalla retorica, ma non è certo detto che l’Io che parla in primo piano o in superficie debba per forza essere un personaggio da cui si chiederebbe al lettore di distanziarsi criticamente. L’adozione della prima persona può essere anche (o soltanto) un modo di atteggiare i contenuti in modo da conferire loro particolare efficacia GNOMON 2/93/2021

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