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).

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 disquisi­tion. His criticisms of the obscure cruelty of the Twelve Tables compel the famously learned (20.1.1) Sextus Caecilius to defend their continued rel­evance; 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 inter­vening 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.^[60] Caecilius’s speech wins the approval of all (20.1.55), an unusu­ally explicit endorsement for the Noctes.^[61] 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 jurispru­dence goes with it) will necessarily know much about the history of Roman customs and practice.^[62]

The other jurist at 16.10 proves a corollary.^[63] 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.

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 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.

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.