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.

We have seen that the kind of legal study that returns to the Twelve

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 grammati­cal knowledge.^[49] 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.^[50]

Rightly or not, Gellius often makes the turn to philosophy for questions that arise from law.

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 pra­etorem 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 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.

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 combina­tion 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).^[55] 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 disci­plinary 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 interpreta­tion, 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.^[56] Gellius’s discussion here is lengthy, involved and assertive: he hunts down in Varro an Aristotelian explanation for the differing accounts in poetry (3.16.5­6, 3.16.13), goes toe-to-toe with known grammatical offender Caesellius 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 con­sulted the opinions of philosophers and doctors (as advertised by Gellius in his heading for the piece, cap. 3.16).^[57] 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.^[58] Gellius recalls another legal investigation, too, the ultimate judg­ment 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).^[59] 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.