Bryn Mawr Classical Review 2010.07.26
Ulrich C. J. Gebhardt, Sermo iuris: Rechtssprache und Recht in der augusteischen Dichtung. Mnemosyne Supplements 315. Leiden/Boston: Brill, 2009. Pp. viii, 420. ISBN 9789004176478. $200.00.
Reviewed by Katharina Volk, Columbia University (firstname.lastname@example.org)
In the 2001 movie Legally Blonde, fashion merchandising major and "dumb blonde" Elle Woods (Reese Witherspoon) supplements her unlikely application to Harvard Law School with a homemade video. In making the case that her expertise as sorority president and avid watcher of soap operas qualifies her for the study of the law, Elle proudly points out that she feels "comfortable using legal jargon in everyday life". The tape's next scene proves her point: as a male passerby provocatively pinches her behind, Elle exclaims in mock outrage, "I object!"
In his monograph based on his Freiburg dissertation, Ulrich C. J. Gebhardt sets out to show that Latin poets, too, felt comfortable using legal jargon in all sorts of contexts, some of them no less incongruous than those faced by Witherspoon's aspiring law student. With the avowed aim of opening up a hitherto largely neglected field of study, Gebhardt undertakes a far-ranging examination of the "poetic transformation of legal elements in Augustan poetry" (cf. p. 7), concentrating on linguistic structures (what he calls sermo iuris) and taking account of all major Augustan poets (Propertius, Tibullus, Horace, Vergil, and Ovid). Though somewhat uneven, the book succeeds in demonstrating the central importance of Roman legal discourse as a source of concepts and metaphors on which authors drew in order to structure the representation of a wide variety of situations and experiences. Presenting a treasure trove of material, the work also offers numerous interesting observations on a large number of individual issues and texts.
Gebhardt spends the first two chapters on preliminary considerations, a drawn-out discussion that establishes some fairly self-evident points. The Romans conceived of legal terminology as a "technical language" (Fachsprache) marked off from ordinary speech. Shaped by and associated with legal professionals, the iuris consulti, this jargon was nevertheless easily recognized and understood by members of the educated elite, most of whom had first-hand experience with legal matters and had appeared in court themselves. Gebhardt contrasts this widespread Roman familiarity with legal concepts--which he supports with ample reference to Ciceronian texts--with a contemporary view of legal language as an esoteric code accessible only to specialists. This may be more applicable to Germany than to, say, the United States, whose common-law system and jury trials ensure that the law plays a significant role in public life and, indeed, popular culture. Legally Blonde is a case in point.
As the basis for his analyses, Gebhardt provides detailed statistics for the use of 26 legal terms in his corpus of texts (printed in an appendix, pp. 369-79). He points out that the incidence of such terminology in the Augustan poets is considerably higher than in Catullus and Lucretius, but generally cautions against relying on mere distribution charts in drawing larger conclusions about the use of legal language in individual authors. Unsurprisingly, the employment of sermo iuris is greatly dependent on the content and context of each passage, as Gebhardt proceeds to demonstrate in the close readings contained in the following chapters. These treat, in turn, the use of legal concepts in love elegy (Ch. 3); Horace's Odes and Epodes (Ch. 4); the poems of Vergil (Ch. 5); and three sets of works by Ovid: the Fasti (Ch. 6), the Metamorphoses (Ch. 7), and the exile poems (Ch. 8). The book ends with a short conclusion.
Gebhardt's chapter structure betrays the work's origin as a dissertation. Apparently considering it his brief to treat all of Augustan poetry, the author dutifully discusses each author in turn, even though some of them yield considerably more, and more interesting, examples than others of the poetic adaptation of legal language. In love elegy, for instance, legal situations and metaphors abound. Gebhardt discusses the seruitium amoris and other ways of presenting an amatory relationship as governed by the law of things (Sachenrecht). These include the common view of the male lover as property owned by the domina as well as the opposing trope, by which the man lays claim to "his" girlfriend. What is owned can also be taken away, which accounts for the common metaphor of erotic theft or furtum; attempts to regulate such contentious relationships through formal agreements (foedera) are usually short-lived. As Gebhardt shows, many poems present the elegiac personnel in trial-like situations, which often revolve around the charge of infidelity and cast the lover and his puella variously in the roles of prosecutor, defendant, or judge.
Gebhardt's readings and especially his comparisons of the individual poets' different practices are perceptive; ultimately, though, little emerges from his discussion that is surprising or that would make us approach elegy in a different way. This is even more true for Horace and Vergil, who, as Gebhardt has to admit, use legal terminology only sporadically and in ways that do not add up to a consistent strategy. Nevertheless, there are interesting cases. Thus, for example, Gebhardt convincingly shows how Horace's Ode 4.7 (Diffugere niues) is composed around the economic and legal concept of damna: as is apparent from the cycle of seasons, nature is ever able to recover her losses, while human debt adds up and ultimately places men into eternal exile in the underworld. Gebhardt's most engaging legal problem from Vergil concerns the curious case of the semi-tame pet. As pointed out already by Donatus, the question of Ascanius' liability in shooting Silvia's stag in Aeneid 7 revolves around the issue of whether or not the animal can be considered "tame" (mansuetus), with the criterion being its (difficult-to-determine) intent to return (animus reuertendi, Dig. 188.8.131.52) to the house of the humans who tamed it in the first place.
Matters become more interesting once the discussion turns to Ovid. As it happens, Gebhardt argues (pp. 86-8) against the notion--widespread since E. J. Kenney's seminal 1969 article1--that Ovid employs legal language more frequently than his contemporaries, pointing out that this is true only in absolute terms (unsurprisingly, given the length of Ovid's oeuvre) and cautioning in particular against biographical explanations (the poet's attested legal activities were nothing out of the ordinary for a man of his social status). Nonetheless, it seems to this reviewer that Gebhardt's own interpretations do show that Ovid's use of legal language is indeed something special. While, statistically, terms of sermo iuris may occur in his work no more often than in other Augustan poets, Ovid uses legal terminology in an unusually sustained and systematic way. Indeed, as Gebhardt is able to demonstrate, legal concepts provide veritable leitmotifs that offer keys to the interpretation of entire Ovidian works.
In the Metamorphoses, Ovid employs a multiplicity of legal notions and terms. Already the creator god is depicted as settling a cosmic lis when separating the elements (1.21), and trial-type situations occur again and again in the course of the poem. These range from such more obviously legal contests as the armorum iudicium to the monologues of Myrrha and Byblis, who in pondering their incestuous desires present arguments for both the prosecution and the defense, as it were. Gebhardt suggests that with both heroines' appeal to animal behavior (as justification for their wish for sex with father and brother, respectively) Ovid may be alluding to contemporary discussions of the concept of natural law.
According to Gebhardt's attractive reading, the Fasti presents a series of contentious causae, all of which concern, indeed, causae, that is, the "origins" of names and rituals that the aetiological poem aims to elucidate.2 Playing the role of the judge, the poet shows himself to be increasingly reluctant to pass judgment, especially in those cases that concern the etymologies of the individual months. These "trials" become more heated from one book to the next, until in the prologue to Book 6, the iudex refuses point blank to decide among the three goddesses who all claim June as their eponymous month: res est arbitrio non dirimenda meo (6.98). Gebhardt offers some interesting speculations about what this breakdown of legal/aetiological decision-making might mean for the question of the Fasti's unfinished state. It is indeed hard to see how Ovid could have continued his series of contested etymologies, especially with the next two months, the all-too-unambiguously named July and August.
Gebhardt's most successful chapter, in my opinion, is the last one, in which he discusses how in the exile poetry Ovid appears in the role of defendant in more than one case. Not only is the poet charged with the mysterious and ill-defined wrongdoing that led to his banishment, but he also has to defend himself against the accusation of poetic deterioration. Strikingly, his strategy is the same in both "trials", namely the so-called concessio per purgationem: rather than dispute the charge, Ovid concedes his guilt but appeals for mercy with reference to attenuating circumstances. In the case of the error, these include bad luck and the absence of malice aforethought; in that of his failing talent, the unpropitious time and place offer valid excuses. Using all the legal and rhetorical expertise at his command, Ovid is continually pleading to be restored not only to his former social and civil status, but also to his previous poetic estate. Recognition of this legal theme thus significantly contributes to the interpretation of the exile poems, works that in this respect, too, are typically Ovidian.
Gebhardt's book is not particularly user-friendly, featuring extensive Latin quotations without translation and occasionally without much discussion of the context either. Legal concepts as well receive only the most bare-bones explanation: the reader is apparently expected to have the requisite knowledge, or to be able to construct what is going on from the discussion itself or from the (again, untranslated) primary sources cited in the small print of the numerous footnotes. Woe to him who does not already know about mancipatio per aes et libram (pp. 339-40)! Not that this is a debilitating problem--after all, Gebhardt, is concerned not with legal questions per se but with largely figurative language--but the book is certainly not for the lazy. It is largely well-produced, though the only occasional indentation of the pentameters in elegiac passages makes for a somewhat disconcerting Latin reading experience.
It is Gebhardt's great achievement to have drawn attention to a promising avenue of scholarly inquiry into a corpus of texts that is otherwise already well studied and to have collected a large repertory of passages and motifs. As the author himself avows at the end of his discussion, learnedly quoting Seneca (Ep. 64.7), there is much more that needs to be done and there will be ample opportunity for future contributions to the topic. No one will object to that.3
1. "Ovid and the Law." YCS 21 (1969), 241-63.
2. Ovid's easy play with the aetiological and non-aetiological meanings of causa may lend further support to scholars who have, conversely, posited allusions to aetiology in non-aetiological occurrences of the word in other Augustan poets, such as Propertius 2.1.12 (see J. K. King, WJA 6b , 63 and n. 9; J. E. G. Zetzel, Critical Inquiry 10 , 92; K. Volk, MD 61 , 79) and Vergil, Aeneid 6.849 (see Volk, ibid.).
3. The reviewer wishes to thank her jurisconsults, David Ratzan and Jim Zetzel.