Law and Love in Ovid: Courting Justice in the Age of Augustus 2020942394, 9780198845140

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CL AS S I CS I N THE O RY General Editors brooke a. holmes  miriam leonard  tim whitmarsh

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CL AS S I CS I N THEORY Classics in Theory explores the new directions for classical scholarship opened up by critical theory. Inherently interdisciplinary, the series creates a forum for the exchange of ideas between classics, anthropology, modern literature, philosophy, psychoanalysis, politics, and other related fields. Invigorating and agenda-setting volumes analyse the cross-fertilizations between theory and classical scholarship and set out a vision for future work on the productive intersections between the ancient world and contemporary thought.

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Law and Love in Ovid Courting Justice in the Age of Augustus Ioannis Ziogas

1

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1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Ioannis Ziogas 2021 The moral rights of the author have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020942394 ISBN 978–0–19–884514–0 DOI: 10.1093/oso/9780198845140.001.0001 Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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For Daphne incipe, parua puella, patrem cognoscere risu

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Preface This book’s cover shows a wedding ring in the shape of a Möbius band. Such rings have become fashionable, though I am sure their popularity has nothing to do with the contents of this book. Nevertheless, the image illustrates one the main theoretical approaches of this monograph. Giorgio Agamben (1998: 37–8) mentions the Möbius strip in his attempt to represent schematically the essence of sovereignty. For Agamben, sovereign power is the very impossibility of distinguishing what lies inside and outside the law; rule and exception, nature and law, violence and justice pass through one another as in a Möbius strip. My argument is that the relationship between law and love in Latin love elegy creates a similar zone of indistinction between what lies inside (law) and outside (love) the juridical order. This is how Amor emerges as the sovereign legislator of elegiac love. At first sight, the relationship between law and love may look antithetical. Love falls outside or transcends legal boundaries—it is above or beyond the law. The law, by contrast, needs to suppress affection in order to operate objectively. We may represent love (extramarital and extralegal) and law (family and property law) with two distinct circles. When emotions (love or anger) enter the legal sphere, they signal a suspension of proper procedure, an exception to the rules. But instead of undermining the law, many exceptions are fundamental to the legal system (think of clementia1 or amnesty). The exception and the rule are mutually constitutive. Thus, in the next stage, the two circles of law and love are inside each other—they form two concentric circles that overlap in part. In the third stage, the exception (love) and the rule (law) merge in one circle. Marriage is a good example of how law and love may or 1  Clementia is the sovereign’s power to pardon someone who deserves to be convicted. In Seneca’s De clementia, it appears predominantly in contexts of imperial adjudication, but is an extrajudicial action. It is the power to suspend the law in the name of justice.

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viii Preface

should coincide in absolute indistinction. And the Möbius band is what illustrates the union of lex (‘law’) and amor (‘love’). This book argues that Ovid is obsessed with the interactions between law and love—the ways in which these concepts can be perceived as mutually exclusive but also mutually constitutive, as distinct and inseparable. My aim is to study what Ovid has to say about this dynamic dialectic. This does not mean that I necessarily endorse his ideas (and thus I hope that I will not be relegated to the margins of scholarship). Although I am passionate about Ovid, I intend to neither approve nor disapprove of his amatory jurisprudence. Between the roles of Ovid’s defence lawyer and prosecutor, I choose neither. Admittedly, this may be hard to achieve, given that the trial setting, where Ovid defends his life and poetry, is one of his main preoccupations. In Ovid’s case, a iudex is simultaneously a judge and a literary critic. Aesthetics and legality, like law and love, blend together at the moment of their separation. Ovid loves a good courtroom drama. But despite his burning desire to be part of legal procedures, he has been convicted, censored, or acquitted without trial from his to our times. There is something in his poetry that turns readers into judges, and, in my view, this is not coincidental, but lies at the heart of his oeuvre; his love poetry is essentially juridical, inviting readers to pass judgment on its principles. Is Ovid a sexist or a feminist? Does he support or undermine Augustus’ laws? Is he guilty or not guilty? Do his laws of love liberate or enslave? I do not have a straightforward answer to these questions other than that one can argue either side. The main point is that in Love’s sovereign rule, the identities of master and slave, moralist and adulterer, lawgiver and outlaw become indistinguishable. Once we put Amor in the dock, we realize that he is a very elusive god—he is both a lovely child and a venomous creature; he can reconcile or divide; he likes to live outside the law, but is fully versed in it. Amor in the Ovidian sense covers a great range of emotions and behaviours, a fact that made my research both challenging and fascinating. Love may aim to establish a harmonious society in which justice is so prevalent that crimes are non-existent and thus legal procedures are suspended indefinitely. The laws of love are the dream of a utopian

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Preface  ix

civilization. In its positive connotations, Ovid’s amor is not unrelated to the Christian meaning of love as the fulfilment of the law—I do not shy away from the tradition of a ‘Christian Ovid’ (Ouidius Christianus). In particular, I draw a connection between Ovid’s laws of love and the Judaeo-Christian tradition of the relationship between law and love (especially as it is expressed in Paul’s letter to the Romans). But this is not the whole story of amor in Ovid. Elegiac love is synonymous with crimen (‘accusation’ or ‘crime’). Amor can be tyrannical. His sovereignty thrives in a state of exception, which blends violence and justice, coercion and persuasion, nature (φύσις) and custom (νόμος). This coincidence of opposites casts a dark shadow on Amor’s regime. The very exceptionalism of the rule of Love takes us to the origins of totalitarianism. In particular, the ways in which Amor construes his sovereign jurisdiction uncannily reflect the ways in which the emperor Augustus established his autocratic rule, namely by simultaneously setting himself inside and outside the juridical order. The prince is primus inter pares (“first among equals”), both included in a legislative body as an equal member and standing outside it as the undisputable first in the hierarchy. My thesis is that Ovid deploys legal discourse throughout his works in conscious reflection on Augustus’ ongoing—and thoroughgoing— revision of the Roman legal landscape. To that end, I select representative case studies from the whole of Ovid’s oeuvre, from the Amores, Heroides, Ars amatoria, and Remedia amoris to the Metamorphoses, the Fasti, and the exile poetry. The passages I discuss are wideranging, but far from exhaustive. Ovid’s poetry is so deeply steeped in the language and rituals of law that it is hard to find a substantial passage that does not engage with legal theory or practice. I hope that my work will inspire further study on Ovid and the law, but also make a significant contribution to the interdisciplinary field of law and literature. This book is not the fulfilment of Ovid’s laws of love—it is just the beginning.

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Acknowledgements Parts of significantly revised versions of three of my previous ­publications are included in this book. The first part of ‘Stripping the Roman Ladies: Ovid’s Rites and Readers’, Classical Quarterly 64 (2014), 735–44 has been reworked for Chapter 6; ideas and arguments from ‘Love Elegy and Legal Language in Ovid’, in P. Mitsis, and I.  Ziogas, (eds.) Wordplay and Powerplay in Latin Poetry, De Gruyter, Berlin and Boston, MA, (2016) 213–40 are developed in Chapters 2, 4, and 6; Chapter 8 has substantial points of contact with ‘Orpheus and the Law: The Story of Myrrha in Ovid’s Metamorphoses’, Law in Context 34 (2016), 24–41. These publications are not simply reproduced—they have been thoroughly revised and integrated into the structure and overall approach of the monograph. Significant parts of these articles are not included in this book, and thus the publication of this monograph does not replace them. I would like to thank the editors of Classical Quarterly, Law in Context, and De Gruyter’s series Trends in Classics for permission to reprint revised parts of my previous work. I often consulted the Loeb translations of Greek and Latin texts. Several translations in the book are modified versions of Loeb translations. For the titles of Greek and Latin texts, I follow the abbreviations used in the Oxford Classical Dictionary. The idea of this book was conceived when I was working in the Australian National University. I am grateful to Renata Grossi for inviting me to contribute to Law in Context’s special volume on ‘Law and Love’. Desmond Manderson was incredibly supportive at the very beginning of my project. He has inspired a great part of my work, and I owe him more than he probably realizes. I thank Durham University for granting me a term of research leave to work on this book (Epiphany 2018). I am very grateful to Durham’s Department of Classics and Ancient History— their support and encouragement kept me going. I feel very lucky to be part

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xii Acknowledgements

of such a collegial group of scholars. I am particularly grateful to Jennifer Ingleheart, Zara Chadha, Peter Heslin, Roy Gibson, Erica Bexley, Amy Russell, Phillip Horky, Stuart McKie, and Ted Kaizer. I would also like to thank James McKeown for sending me a draft of his unpublished commentary on Amores 3. My students at Durham have been a source of inspiration for this project. I am grateful to all the students who took my module on Roman Law and Latin Literature and my MA seminar on Law and Literature in Ancient Greece and Rome. That was research-led teaching at its best. I presented various parts and versions of this book at the Universities of St. Andrews, Edinburgh, Cambridge, Belgrade, Newcastle, Boston, the Scuola Normale Superiore in Pisa, and the Florida State University. I am grateful to colleagues who invited me to present my work and to audiences for their responses. I am particularly grateful to Nikoletta Manioti, Aaron Pelttari, Goran Vidović, Athanassios Vergados, Leah Kronenberg, Hannah ČulíkBaird, Patricia Johnson, Gianpiero Rosati, and Celia Campbell. Many thanks to Oxford University Press and the series editors of Classics in Theory for being extremely supportive from the beginning till the end. I am particularly grateful to my OUP editors, Georgina Leighton and Karen Raith, and their excellent team. Many thanks are also due to the anonymous readers of the press for their perceptive, detailed, and challenging reports. I would also like to thank my friend George Gryllos, who took the picture of the book cover. If the book’s iudices discover any faults or misdemeanours in my work, I take full responsibility—ego feci!

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Contents 1. Introduction: Eros and Nomos1

I.  THE TRIALS OF LOVE 2. Love as a State of Exception

27

3. The Courtroom in the Bedroom

69

4. The Letter of the Law

142

II.  LEX AMATORIA 5. Poets and Lawmakers

203

6. Sexperts and Legal Experts

245

III.  THE LAW OF THE FATHER 7. Authors of Law and Life

303

8. Love and Incest

346

Epilogue384 Bibliography Index of Passages Discussed General Index

389 409 415

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1 Introduction Eros and Nomos

We may start by saying that law is the negation of passion. As Aristotle put it, ‘the law is a mind without desire’ (Politics 3.11.4 ἄνευ ὀρέξεως νοῦς ὁ νόμος ἐστίν). The legal system relies on dispas­ sionate objectivity in an attempt to put an end to the vicious circle of revenge. Personal desires and vendettas need to be controlled by the disinterested hand of the law. Subjective emotions undermine law’s rationality. Vengeance does not end crime but perpetuates it in a way that renders the distinction between crime and punishment indistinguishable. Reason is the source of the law and passion a regression to the primitive rules of the lex talionis (‘law of retaliation’). The representatives of the legal system need to be unrelated to their subjects. It is imperative for the effective administration of justice that the judge have no relationship with the defendant outside the strictly prescribed rituals of the courtroom. Yet we can also argue that desire is the ultimate source of the law. The legal system does not replace passions with reason, but creates an elaborate apparatus that conceals the very source of justice, which is none other than the will of the legislator. Law needs a pre­ ce­dent in order to establish its objectivity. Every law acquires author­ ity from past laws, a technical procedure designed to check the transgressive forces of personal urges. But once we strip law of all layers of referentiality, we are left with the arbitrary choices of the legislator or the will of a god. No rational explanation can justify the primary source of law, unless it includes the subjectivity of the legislating authority. If we push this argument further, we can even say that law is the division of passions into legitimate and illegitimate. Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0001

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2  Law and Love in Ovid

Similarly, love poetry is often a normative discourse that le­git­im­izes or outlaws desire. That the language of pleasure dominates love poetry may seem unremarkable. More surprising is that pleasure is explicitly related to the lawmaking procedures of the Romans. The legislative formula senatui placuit (‘it pleased the senate’) reveals an often well-hidden secret: that the ultimate source of law is the desire of the legislator. Under Augustus, this sovereign authority is trans­ ferred to the prince. Ulpian famously rules that ‘whatever pleased the prince has the force of law’ (Institutes 1.4.6; Digest 1.4.1 quod principi placuit legis habet uigorem). In the numerous constructions of placet (‘it is pleasing’) in Ovid, we should detect the poet’s claim to the authority of the sovereign legislator. Ovid exemplifies the confluence of lawmaking and lovemaking, an essential aspect of his poetry that has been overlooked in scholarship. Latin love elegy reaches its climax at the same time as Augustus introduces his moral legislation. This is not a coincidence. The pro­ duction of laws that revolve around the regulation of sexuality and the publication of love poetry that has the force of law are the two sides of the same coin. Augustus’ reforms were unprecedented in the history of Roman law. His legislation criminalized adultery, encouraged marriage, rewarded childbirth, and penalized celibacy.1 What was hitherto the business of the family and the pater familias now became the business of the state and the pater patriae. For the first time, a standing criminal court was created to punish adultery and criminal fornication by trial. The laws were primarily aimed at the upper classes, whose members, in the eyes of Augustus, had deviated from the good old ways of Republican morality. To this end, there were several legislative attempts: the Lex Iulia de maritandis ordinibus (18 bce), the Lex Iulia de adulteriis coercendis (16 bce), and the Lex Papia Poppaea (9 ce). This time span is indicative of Augustus’ persistence and struggle to enforce a particularly unpopular legislative agenda. Despite the immediate reaction from several groups (including the knights, Ovid’s social class), the laws remained valid for centuries. Yet they did not seem to be successful, if we trust 1 On Augustus’ moral legislation, see Csillag (1976); Raditsa (1980); Treggiari (1991); Edwards (1993: 34–62); McGinn (1998: 140–215).

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Introduction  3

Tacitus (Annales 3.25) and Dio (56.1–10).2 A particularly thorny issue was that Augustus himself suffered under his laws. The prince punished his daughter and granddaughter for committing adultery. His family life was too problematic to function as an authoritative example for his marriage legislation. Augustus (then Octavian) divorced Scribonia soon after she gave birth to his daughter Julia to marry a hastily divorced and heavily pregnant Livia. Rumours about Augustus committing adultery with Livia before their marriage would inevitably proliferate. Ovid (43 bce–17 ce) writes his love poetry during this period. Even though we are not sure about the date of the second edition of his Amores, it is beyond reasonable doubt that the love poet is aware of the Augustan legislation. The moral reforms loom large through­ out Ovid’s oeuvre, not only in his love elegies (the Amores, the Heroides, the Ars amatoria, and the Remedia amoris), but also in the Metamorphoses, the Fasti, and the exile poetry (the Tristia and Epistulae ex Ponto). The Ars amatoria is a turning point, since it is likely that it provided a reason for Ovid’s exile in 8 ce. On account of ‘a song and a mistake’ (Tristia 2.207 carmen et error), the poet was relegated to Tomis by a decree of Augustus. The measure is extraor­ dinary; the emperor was personally offended by Ovid. In his exile poetry (e.g. Tr. 5.12.67–8; Ibis 5–6), Ovid says that he was destroyed by his own art (meaning his poetic art but also his ‘Art of Love’)— his books are compared to children who turned against their father (see Chapter  7). There is an uncanny similarity here between Ovid, the author of love poetry, and Augustus, the author of moral ­legislation—the prince suffered under his own laws when his own child broke them. The similarities between Ovid and Augustus are a key aspect of this book. In my view, Ovid is essentially anti-Augustan not in his opposition to the prince, but in his attempt to be equal to Augustus (the other meaning of the Greek ἀντί). This is important for inter­ preting legal discourse in Ovid. The love poet does not simply ‘com­ ment on’ the laws of Augustus, but casts himself in the role of the sovereign legislator. And even if Ovid’s poetry simply reacts to 2  For the minority view that Augustus’ laws could be judged successful, see Reid (2016).

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4  Law and Love in Ovid

Augustan legislation, this is not a superficial reaction. To interpret the law was a legislative act in the age of Augustus. The in­ter­pret­ ations of influential jurists were instrumental for the production of law. As we shall see in this book (Chapter 6), Ovid casts himself as a jurist—the teacher of law and the teacher of love speak the same language. Far from reducing literature to a harmless parody of real law, we need to take seriously the ways in which Ovid’s love poetry is involved in the production of normative discourse. While scholars relegated Ovid to the realm of mockery and fri­ volity, my book aims to restore him to his rightful position in the field of law and literature. Contrary to Kenney’s (1969: 263) view that Ovid’s transference of legalisms into elegy is surprising and amusing, I argue that the language of law in Ovid is not incidental, but fundamental. If older critics may be excused, antiquitatis causa, for dismissing legal language in Ovid as superficial and incongruous (see, e.g. Daube 1966; Kenney 1969; 1970), the persistence of simi­ lar views in more recent scholarship shows that more often than not there is still no escape from the interpretative dead end of trivializing Ovid. In an otherwise fine and compelling article, Kathleen Coleman (1990: 572) suggests that Ovid imitates the pedantic locutions of jurists in order to trivialize the preoccupations of the bickering Olympians. For Coleman, legal jargon in Ovid contributes an atmosphere of incongruous pomposity to the divine comedy of the Metamorphoses. She notes that ‘[it] has been well observed that Ovid frequently employs legal terminology in contexts where it is either starkly incongruous or else pregnant with double entendre’. Coleman here subscribes to Kenney’s reading. Similarly, Alessandro Schiesaro (2007: 82), in his perceptive chapter on rhetoric and law in Lucretius, endorses Kenney’s view that legal terminology in Ovid points to little more than his training in eloquence. For Neil Coffee (2013: 85), the lover’s juridical discourse in Amores 1.10 is evidence that Ovid was more concerned with the rhetorical play of his poetry than with the representation of a real amatory situation (as if we could strip away from a ‘real amatory situation,’ whatever that means, all layers of rhetoric). ‘Few lovers’, he adds, ‘would have been clever enough to know something about the law and dull enough to  imagine that they could persuade their girlfriends with legal

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Introduction  5

analogies.’ Without further ado, the lover’s discourse is deemed alien to anything that has to do with the law. To introduce legal diction into love poetry is to highlight an absurd combination. This book argues against the widespread view that the language of law in Ovid is another glib affectation of our poet. In my view, the image of a superficial Ovid is the creation of superficial scholar­ ship. I do not mean to argue that Ovid’s poetry is not playful (far from that). Something can be fundamental and important—even, in sense, serious—but still amusing. Ovid’s playfulness should not prevent us from exploring the deep-rooted connections between law and love. Below the glimmering surface of Ovid’s wit there is an ocean of amatory jurisprudence.3 Even if the language of law in Ovid is another joke, this should not be the end but the starting point of our interpretations. We do not really get the joke, unless we figure out what is at stake in it. And what is at stake is much more than mockery of the Augustan legislation. What is at stake is a fear­ less exploration of the origins of law. My thesis is that the language and rituals of law in Ovid point to love as the source of the law’s emergence. This may sound like the sort of trendy legal theory that has little to do with Ovid. In fact, it comes from Ovid’s poetry. In Fasti 4, for instance, the book and month of Venus, Ovid includes an encomium of the goddess of love. Venus is praised as the lawgiver of the universe (Fasti 4.93 iuraque dat caelo, terrae, natalibus undis, ‘and she gives laws to the sky, the earth, and her native sea’). The goddess of love is thus the  primary legislator. For Ovid, Venus is the origin of human civilization: prima feros habitus homini detraxit: ab illa uenerunt cultus mundaque cura sui. primus amans carmen uigilatum nocte negata dicitur ad clausas concinuisse fores, eloquiumque fuit duram exorare puellam, proque sua causa quisque disertus erat. 3  Contra Miller (2004: 162): ‘What lies beneath the surface of Ovidian wit is precisely nothing.’

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6  Law and Love in Ovid mille per hanc artes motae; studioque placendi, quae latuere prius, multa reperta ferunt. Ovid, Fasti 4.107–14 That force first stripped man of his savage garb; from her he learned decent attire and personal cleanliness. A lover was the first, they say, to serenade by night the mistress who denied him entrance, while he sang at her barred door, and eloquence lay in winning over a harsh girl, and each man was a barrister pleading his cause. This goddess has been the mother of a thousand arts; the wish to please has given birth to many skills that were unknown before.

In the context of the laws of Venus, the passage quoted above evokes the setting of a trial: the primary meaning of causa is ‘a legal case’ (OLD s.v. A1) and disertus means ‘barrister/forensic orator,’ as in Ovid, Ars amatoria 1.85 (see Hollis  1977: 49–50 and cf. Ars 1.459–64). Readers familiar with Latin love elegy will recognize that Venus here features as the inventor of this genre. The lover’s serenade (109–10), the so-called paraclausithyron (‘lament by the door’), is a trademark of the elegiac lover. The role of Venus also clearly evokes the praeceptor amoris (‘the teacher of love’) of the Ars amatoria. Instructions about cultus (‘fashion style’) and munditia (‘cleanliness’) feature in the Ars amatoria. Winning over a girl is similar to wining over a judge (cf. Ars 1.459–64). The pursuit of pleasure, the aim of the Ars amatoria, is the origin of a thousand artes. These ‘arts’ are inspired by Venus and derive from the art of love. The art of rhetoric, ars oratoria, is cast as an imitation of the art of love, ars amatoria. This is important for understanding how Ovid conceives of the rela­ tionship between the lover’s and the lawyer’s discourse. Contrary to modern critics who see incongruity between the language of law and love, Ovid points to Venus as their common origin. For Ovid, foren­ sic rhetoric derives from the poetics of Latin love elegy. In Ovid’s history of human civilization, the art of courtship not only precedes courtroom rhetoric, but actually provides the model for winning a legal case. Fasti 4.111–12 is not a case of introducing the setting of a trial into the rituals of elegiac courtship, but exactly the opposite. The elegiac lover is the archetypal lawyer (disertus). From that

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Introduction  7

perspective, the current practice of pointing out Ovid’s borrowings from law is problematic. Ovid says that legal diction is a reflection of the lover’s discourse, not the other way around. Far from being an Ovidian peculiarity, the overlap between amatory and forensic discourse is as old as Homer and Hesiod.4 The end of Aeschylus’ Eumenides, to refer to a clearly serious case, is a good example for the confluence of legal and amatory persuasion. Nicholas Rynearson (2013) argues convincingly that Athena draws on the discourse of amatory persuasion in order to win over the Erinyes to give up their wrath. Through the erotic element of her seductive speech, the virgin goddess woos the Erinyes, casting them as the beloved objects. Her rhetoric of seduction has a transforma­ tive power over the Erinyes, just as amor is the driving force of metamorphoses. Critics have been puzzled by the fact that no less than one-third of the play takes place after the decision has been rendered. But Aeschylus seems to understand that the legal system does not depend on whether the winners accept the verdict, but on whether the losers do.5 To sustain the law, seductive persuasion is more fundamental than law enforcement. My work contributes to a current interdisciplinary trend in law and the humanities that examines the interactions between law and love.6 Peter Goodrich (1996; 1997; 2002; 2006) has been a pioneer in this field and one of the main inspirations for my project. Justice, Goodrich (2006: 7) notes, has always been tied to the jurisdiction of love. The law of Venus was the originary and thus higher law, because it allowed for settlement, and it furthered the community in mending itself. To proceed by love was to remain friends and to forestall law in its coercive and punitive forms (see Goodrich 2006: 8). We shall see that Ovid draws a similar distinction between the ­justice of love and the corruption of litigation, between love that resolves conflict and legalism that breeds dissent (see Chapter  5). 4  See Chapter 5. On amatory persuasion in antiquity, see Gross (1985). 5  Cf. Ovid, Tr. 2.95–6 (discussed in Chapter 5), in which the poet refers to his appoint­ ment as a judge and tells Augustus that even the losing side acknowledged his good faith. 6  See Bankowski (2001), who argues that law and love are entangled and even dependent on each other. See also Detmold (1996); Petersen (1998); Goodrich (1996); (2006); Manderson (2003); Meyer and Umphrey (2010); Nussbaum (2013); Grossi and Neoh (2016); Neoh (2019). On law and love in Shakespeare, see Kahn (2000); in Cervantes, see González Echevarría (2005).

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8  Law and Love in Ovid

While Goodrich mentions Ovid in passing, the Roman poet is at the centre of my research. The medieval tradition that Goodrich studies is not anomalous in time, unrelated to prior or succeeding legal discourses. In fact, a great part of it derives from the Ovidian jurisprudence of love.7 My work both builds on Goodrich and interrogates his approach. The key is that Goodrich treats the medieval courts of love as iso­ lated from the mainstream legal system and running by wholly independent norms. By contrast, my aim is to show that Ovid’s courts of love were not simply ‘other’ than Roman law but funda­ mentally connected to them in discourse, in principles, and in con­ cepts of jurisdiction. The engagement between love and law is  intimate rather than isolate, and this makes a contrast with Goodrich’s approach. Interdisciplinary work on law and the humanities has reopened questions of jurisdiction and the plurality of laws—nterior and exterior, emotional and rational, imagined and real. All these issues lie at the heart of Ovid’s poetry; yet Ovid is conspicuously absent from recent work on law and literature. By contrast, scholarship on Ovid rarely engages with current developments in legal theory. The common denial to take law in Ovid seriously is partly to blame for this. There are, however, some exceptions which hopefully suggest a paradigm shift. In his book on Latin love elegy, Paul Allen Miller (2004: 160–83) includes a chapter on ‘Law and the Other in the Amores’. He argues that Ovid’s Amores revolve around the double axis of law and transgression. His fascinating argument is relevant to my thesis that Ovidian elegy creates a zone of indistinction between following and breaking the law (see Chapter  3). Miller argues that Ovid violates the law in such a way as to require its pres­ ervation. For Miller, the poet ultimately reproduces the structures of the dominant regime. Without law there is no transgression, and vice versa. In my view, Ovid indeed avers that transgression is the fulfilment of the law. But the fulfilment of the law can be either its 7 Andreas Capellanus’ Rules of Courtly Love (twelfth century), Boccaccio’s Decameron (fourteenth century), Martial d’Auvergne’s Judgments of Love (fifteenth century), and Stephanus Forcadel’s Cupido Jurisperitus (sixteenth century) are deeply influenced by Ovid’s amatory jurisprudence.

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Introduction  9

preservation or its end. While imperial legislation crumbles in Ovid’s sovereign jurisdiction of love, the art of love cannot escape from the web of Augustan legislation. Micaela Janan (2001: 146–63) has a short, but perceptive analysis of the interdependence of law and desire in Propertius 4.11.8 Janan applies Lacan’s concept of the Law as ungrounded in any un­shak­ able foundation to her compelling reading of Livy’s Verginia and Propertius’ Cornelia. She notes that ultimately juridical reasoning comes to rest in the logical opacity of desire: something is made into law, because ‘it is the will of [the gods, Nature, emperor, people, senate]’. To the question ‘what does justify this’, no answer can be given (Janan 2001: 149). Janan’s chapter is relevant to my approach: desire is the ultimate source of law and love. That is why the lover and the legislator are the two sides of the same coin. Kathryn Balsley’s article on Ovid’s Tiresias (Balsley 2010), which partly derives from her unpublished dissertation (Balsley  2011), discusses Ovid’s presentation of the seer as an expert in law. Ovid brings together prophetic, poetic, and juristic discourse in an era that signals the emergence of the science of law (see Chapter  6). Balsley (2011: 44–100) studies the trial scene in Ovid’s Metamorphoses in a way that complements my work on the trial scene in the Amores, the Heroides, and the Ars amatoria. The trial setting also features prominently in Gebhardt (2009), the only recent booklength study of law in Augustan poetry. This monograph has been extremely useful, as it systematically identifies legal diction in Ovid and other Augustan poets. Yet, despite its usefulness, its scope is limited. Even though Gebhardt (2009: 3–4) mentions in his intro­ duction the field of law and literature, his analysis is mostly restricted to identifying legal terms in Augustan poetry. It is strik­ ing that the laws of Augustus do not concern his study. My book does not follow the common practice of identifying legal terminology in Augustan poetry and then moving on without interpreting its cultural significance. Dissecting legalisms in Ovid 8  I find her discussion of the law of the father in Metamorphoses 3 (Janan 2009: 53–86) less relevant to my approach. Her Lacanian concept of Law is too abstract in comparison to my historically grounded analysis.

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10  Law and Love in Ovid

for the purpose of collecting and evaluating historical data about Roman law is similarly not the goal of my research. Ovid’s poetry is not merely a reflection or distortion of Roman law but is involved in its production. If the majority of works on Roman law are to blame for studying law as a culturally isolated field, the literary critic who sees legal diction in poetry as appropriated in a closed literary universe falls into a similar trap. In my view, poetry does not borrow from law just to serve poetic ends. Law in literature is more than just another literary device. The language of law in Ovid declares the normative force of his art. The classicist whose work is most relevant to my project is Michèle Lowrie.9 Her work not only engages with the inter­dis­cip­ lin­ary field of law and literature, but also combines close readings with historically sensitive analyses. Key aspects of her work (author­ ity, performativity, and exemplarity) feature prominently in my monograph. As far as legal theory is concerned, the work of Giorgio Agamben (1998; 2005a) is key for my argument that both Ovid and Augustus, the love poet and the prince, define the boundaries of the law by excluding themselves from formal legal procedures. For Agamben, sovereignty consists in pronouncing what lies inside and what outside the juridical order. Agamben’s work is not only rele­ vant to Augustan Rome; it actually derives from his research on Roman law and the crucial shift from the Republic to the Principate. The titles of two of his most influential books (Homo Sacer and State of Exception) are concepts of Roman law. According to Pompeius Festus (De uerborum significatione 318), the homo sacer is a man whom anyone can kill without committing a crime. This is an important concept, because it describes a man who is not legally punished, but whom the law banned from the juridical order and thus reduced to what Agamben calls ‘bare life’, a life that does not concern the law. When Latin love poets exclude themselves from the juridical order or are banned from it by a domina (a mistress) or a dominus (Augustus), they bear more than fleeting similarities to the homo sacer (see Chapter 2).

9  See mainly Lowrie (2009: 327–82); (2016).

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Introduction  11

But they also bear more than fleeting similarities to the sovereign legislator. The homo sacer is a legal creation of tribunician law (see Festus, De uerborum significatione 318). This is important because the sacrosanctity of the tribunes has an uncanny similarity to the bare life of the homo sacer. Augustus solidified his sovereignty by assuming the tribunes’ powers and sacrosanctity (see Chapter 2). The prince becomes the sovereign ruler by creating for himself a state of exception. He simultaneously stands outside the juridical order and belongs to it by legally defining it. My argument is that Latin love poets play a similar game of sovereignty. The elegiac lover exemplifies the correspondence of sovereign power and bare life that lies at the heart of Agamben’s theory. The lover can effortlessly shift roles between an outcast from law and a sovereign legislator, because the homo sacer and the sovereign share a place outside the law. The elegiac poets exclude the sacrosanct lover from the jur­id­ ic­al order and thus create a sovereign exception that presupposes the juridical reference in the form of its suspension. In fact, Latin love elegy claimed this state of exception before Augustus. From that perspective, the elegiac constructions of sovereignty are not just a parodic reflection of Augustan politics. Quite the contrary— the prince seems to have copied from Latin love elegy, not the other way around. Not unlike sovereignty as defined by Agamben, love is included in cultural conventions by excluding itself from them. Love, like law, is a cultural construct that claims that its origins lie outside cul­ tural norms. Cultural constructs are most powerful when they pose as reflections of the natural order. Michel Foucault’s incomplete History of Sexuality (Foucault 1979; 1986; 1988) plays an important role in my research. His work has been both followed and criticized by classicists.10 Some of the criticism is relevant to this book. Foucault skips Augustan Rome, a period that is key for the emer­ gence of sexuality as an independent discourse (cf. Habinek 1997). Contrary to Foucault’s phallocentric approach, Ovid’s poetry and 10  See Hallet and Skinner (1997); Larmour, Miller, and Platter (1998); Nussbaum and Sihvola (2002); Ormand (2008); (2014); Blondell and Ormand (2015); Boehringer and Lorenzini (2016). On Foucault and Roman antiquity, see the collection of articles in Foucault Studies 22 (2017).

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12  Law and Love in Ovid

Augustan legislation exemplify how the creation of law is in­ex­tric­ably related to controlling female sexuality. Despite these differences, Foucault is important because he rightly argues that the construc­ tion of sexuality is inconceivable outside a legal framework. Ovid’s love poetry is a discursive artefact or more precisely a juridicodiscursive artefact.11 At this point, it is important to explain the meaning of ‘love’. In Ovid, amor refers both to a natural desire and to the discourse of sexuality. The meaning of amor in Ovid is debated in recent schol­ arship on the Ars amatoria. The issue is whether Ovid teaches love as a universal experience that applies to all peoples of all times or as a cultural construct restricted to specific social classes in Augustan Rome. In an influential edited volume on the Ars amatoria, Molly Myerowitz Levine (2006) makes the former case, while Katharina Volk (2006) the latter. This discussion is in turn related to the duplicity of amor, a word that usually means desire, but in the Ars amatoria seems to describe social norms of courting. As Volk (2006: 241–2) puts it: While the Latin word amor typically connotes a strong feeling of desire and affection, Ovid for most of the Ars Amatoria uses it instead to refer to the social practice of establishing and participating in sexual relationships. The Ars Amatoria is thus really something like the art of dating, the art of the love affair, and not the art of love. This, of course, is the reason why it is teachable in the first place: amor is for Ovid not a feeling but a mode of behaviour, and thus can be mastered by following the simple steps laid out in his didactic poem.12

The rather odd view that the Ars amatoria is not the art of love is at least as old as Hermann Fränkel (1945: 61–2), who notes that every­ one understands the playfulness of Ovid’s pseudoscientific project of teaching love, since everyone knows that consummate love amounts to something more than a bag of tricks. Similarly, Myerowitz Levine (2006: 259) states: ‘As all readers know, Ovid’s 11  On the lover’s discourse in Ovid, see Kennedy (1993: 64–82) and Chapter 4. 12  See also Volk (2002: 168–73).

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Introduction  13

subject is not love.’ Note how Fränkel and Myerowitz Levine ascribe their own views to everyone. There is something ironically Ovidian in casting a peculiar idea as universal consensus. Even though Myerowitz Levine and Volk support two different claims, they both build on the same premises: (a) that we need to distinguish between natural desire and sex education and (b) that the Ars amatoria is not about love. But I think we can do better than arguing that the Ars amatoria does not mean ‘the art of love’. The strength of Volk’s analysis lies in her focus on the ways in which Ovid continuously plays with the double meaning of amor as powerful emotion and social practice (Volk 2002: 168–73). In my view, Ovid does not sim­ ply play with the two different meanings of amor, but claims that his Ars amatoria has the power to make them inseparable. Love is simultaneously a natural emotion and a poetic construction. Critics often note that it is absurd to teach love, because this is something everyone knows without taking lessons (see Myerowitz Levine 2006: 261–2). In the opening couplet (Ars amatoria 1.1–2), Ovid identifies his target audience as any Roman who does not know the art of loving, but the joke is that nobody needs instructions on this topic. Volk (2002: 169–70) notes that the opening coup­let ‘already implies that in the opinion of most people, ars amandi is an oxymoron, love cannot be taught, and everyone already knows what it is to feel love and needs no teacher’. Similarly, Victoria Rimell (2006: 71) states that the Ars is actually ‘a joke on the rhetoric of knowledge which claims to teach the unteachable’. Either nobody needs instructions on something they already know or nobody can teach something that cannot be taught. In his exile poetry, Ovid seems to suggest this irony of teaching at Tristia 1.1.112 (hi quia, quod nemo nescit, amare docent, ‘because these books teach how to love, something that everybody knows’). These books here are the three books of the Ars amatoria. The line, which Myerowitz Levine (2006: 261) quotes as evidence that Ovid’s Ars taught loving (amare), a subject of which nobody is ignorant (quod nemo nescit), is more ambiguous, because it can be read as a reference to the popularity of the Ars amatoria. Everybody knows that the Ars teaches love, a reading that fits better in the context: Ovid’s books try to hide themselves in a dark place (Tr. 1.1.111), but

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14  Law and Love in Ovid

to no avail, since their contents are widely read and studied.13 Thus, two different readings of the line are possible: that the Ars teaches love, even though there is not anyone who does not know how to  love (Kennedy  2000: 173–4; Volk  2002: 169–70; Myerowitz Levine 2006: 261–2) or that the Ars amatoria cannot remain a secret since everybody knows that it instructs Romans in the art of love­ making. If there is not anyone who needs instruction in love, it is not because amor is a natural instinct that defies scientific training but because Ovid’s didactic work taught the art to everyone. The line’s ambiguity is important. Ovid’s games of amatory seduction have become universally known, and their sweeping popularity is in turn identified with amor as an instinct that all humans possess naturally without any need for instruction. Thanks to the dis­sem­in­ ation of the Ars, amor as a cultural construction becomes indistin­ guishable from amor as a natural phenomenon.14 The controversy about the universal or Roman character of the Ars is of limited value given that in imperial Rome what is Roman and what is universal merge together. For Ovid and his con­tem­por­ ar­ies, Rome is urbs (‘city’) and orbis (‘globe’) (see Fasti 2.683–4; cf. Ars 1.55–6). Rome is not just a part of the inhabited world, but the city that is identified with the universe, and by this ­identification it transforms even cosmogony from a natural event into a cultural construct. Amor is the mirror of imperial Roma, the sovereign and universal power that casts culture as nature. In other words, the issue of amor’s double identity as nature (φύσις) and custom (νόμος) brings up not only the contrast between natural law and cultural norms but also their interdependence. The two faces of Ovid’s amor (‘nature’ and ‘custom’) hark back to the controversy between the Sophists and Plato about the source

13  Cf. Wheeler’s Loeb translation (revised by Goold and based on a slightly different text) of Tristia 1.1.111–12 tres procul obscura latitantes parte uidebis,— / sic quoque, quod nemo nescit, amare docent. ‘But three at some distance will strive to hide themselves in a dark place, as you will notice—even so, as everybody knows, they teach how to love.’ 14  Cf. Kennedy (1993: 67): ‘If love can be viewed, and reflected upon, as a discursive arte­ fact, it is also a discourse which we inhabit, a discourse which “works” its “effects” in so far as it is internalized and reproduced as a “spontaneous” or “natural” expression of behaviour.’ See also his important discussion on the capacity for ‘nature’ to be conventionalized or ‘conven­ tion’ to be naturalized (Kennedy 1993: 77–82).

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Introduction  15

and nature of law. In Laws 690a–c, Plato aims at undermining the validity of the Sophists’ opposition of φύσις and νόμος (cf. Agamben 1998: 34–5). For Plato, the intelligent men should govern and the ignorant should follow the knowledgeable. This, Plato adds, does not happen against nature but in accordance with nature, that is, in accordance with the natural rule of law (Laws 690c). Thus, Plato does not counter the Sophists’ argument about the primacy of nature over law by supporting law’s supremacy over nature but by constructing law’s sovereignty as natural. The crucial point is that for both Plato and the Sophists, law’s sovereignty consists in the indistinction between φύσις and νόμος. The state of nature is nei­ ther anterior nor external to law. It is the norm’s self-presupposition as natural law (cf. Agamben  1998: 35–6). This is crucial in Ovid. Amor as a cultural construct is not just the aftermath or side effect of amor as natural desire. Quite the contrary—the social norms of lovemaking establish themselves as natural conduct. Towards the end of her chapter on the universal nature of Ovid’s Ars amatoria, Myerowitz Levine (2006: 274–5) acknowledges the interdependence of nature and culture, citing Ridley (2003) on nature via nurture. Building on research in evolutionary science that suggests the universality of selecting a mate across different human societies (e.g. Buss 1994), Myerowitz Levine concludes that not only sex but also sexualities can become case studies from a universalist perspective. While I agree that nature and nurture depend on each other, I disagree that cultural constructions ul­tim­ ate­ly reveal the homogeneity of human sexuality. My argument is the opposite of Myerowitz Levine’s thesis. While she argues that cultural particularities often reveal the universality of human nature, my thesis is that the point of Ovid’s Ars amatoria is that cultural constructions of sexuality are universalized by being pre­ sented as natural. But if the particular poses as universal, it does not ensue that there is universality in the particular. I am sceptical, for instance, that it is an evolutionary rule that applies to all human societies of all times that women bait with sex while men bait with investment.15 This seems to me like a socially constructed 15  Myerowitz Levine (2006: 255) quotes and approves of Buss (1994).

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16  Law and Love in Ovid

gen­er­al­iza­tion in the guise of scientific truth, but nonetheless an interesting one. By relying on some research from social and bio­ logical sciences, Myerowitz Levine is convinced that Ovid’s cultural games of love follow the universal commands of natural evolution. It appears that Ovid has succeeded in making his readers believe that the rules of his love games are the laws of nature. The test of truth is the level of deception. Ovid deconstructs the binary opposition of φύσις (‘nature’) and νόμος (‘custom/law’), showing that one cannot be perceived without the other. While nature is both the measure and object of law, the relationship is often reversed and the law becomes the measure of nature. As Paul Kahn (2000: 29) puts it, nature and law are cat­egor­ ies that appear only to each other. We judge nature by law and law by nature.16 This is particularly relevant to constructions of sexuality. Since antiquity sexual intercourse has been divided into natural and unnatural, but the unnaturalness of certain types of sex is nothing more than the projection of cultural norms onto the natural order.17 As a force of nature that shapes human customs that in turn refash­ ion the face of nature, Ovid’s amor exemplifies the mech­an­isms that produce the legal system. Love and law play the same game of normative constructions and natural deceptions. Alessandro Schiesaro (2007) argues convincingly that it was part of juristic discourse to construct a legal model for the universe. Interestingly, the first attested example of this practice is the didac­ tic poet Lucretius, whose work De rerum natura is one of the most important intertexts for Ovid’s Ars amatoria. As Schiesaro (2007: 81) puts it: Lucretius’ poem must stand as the first and foremost example of the extension of juridical concepts to the explanation and interpretation of the entire physical reality . . . Lucretius implicitly but effectively shows that legal thought can aspire to explain and regulate more than human 16  My reading of the Ars amatoria is here similar to that of Kahn (2000: 21–9), who examines the interdependence of nature and law in his study of law and love in Shakespeare’s King Lear. 17  On the cultural significance of the Romans’ rhetoric of nature in sexual relations, see Williams (1999: 231–44).

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Introduction  17 transactions, but can project its force onto the universe and provide a form of understanding for the whole cosmos.

It is not nature that dictated the law, but the other way around. Scholarship on law in Ovid ranges from pointing out legal ter­ min­ology in his poetry (Kenney 1969) to applying Lacan’s concept of Law to the narrative of the Metamorphoses (Janan 2009: 53–86). Kenney’s definition of law is very different from Janan’s. In order to explain what I mean by ‘law’ in this book, I start by discussing the methods of critics who identify legal language in Ovid. A common practice is to separate technical legal terms from the language of poetry. In her discussion of the word sententia (‘sentence’ or ‘judg­ ment’) in Metamorphoses 3.322, Coleman (1990: 573), for instance, distinguishes between the ‘metaphorical’ or ‘colloquial’ use of the word and its ‘technical’ sense in law. Similarly, Balsley (2010) follows Coleman’s lead in distinguishing between ‘popular’ and ‘precise’ use of legal terminology in Ovid. Coleman and Balsley are right to point out the technical meaning of sententia (‘verdict’) and doctus (the uox propria of a ‘learned jurisconsult’) as key to interpreting the story of Tiresias in Metamorphoses 3. Throughout this book, I often employ a similar method in identifying diction and imagery that refer to technical legal concepts and procedures. Ovid’s style is at times meant to reproduce the language of jurists, contracts, witness statements, etc. We need to be sensitive to the legal color of Ovid’s poetry in order to understand how it engages with legal discourse. But I also differ from scholars who study legalisms in Ovid. As I have already men­ tioned, I do not see legal terminology in Ovid as an extraneous or incongruous addition to poetic discourse. What is more, the line between the ‘colloquial’ and the ‘technical’ or the ‘metaphorical’ and the ‘literal’ in Ovid, as Duncan Kennedy (1993: 46–63) showed in a brilliant chapter, is much more blurred than it may seem at first sight. In Ovid, love is often described in terms also applicable to law (‘a lover’s blush is evidence of his guilt’). The tenor here is from law to love. But as Kennedy (1993: 53) notes, such tenors are open to reversal. Law can also be described in terms of love (‘we need to embrace justice’, ‘a passionate advocate of human rights’). In Auden’s

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18  Law and Love in Ovid

poem (‘Law, like Love’), law is compared to love, not the other way around. In other cases, we are in grey areas in which it is difficult and at times impossible to determine the ‘proper’ sphere of refer­ ence of a word. Does the word ‘consent’ belong to the area of law or love? Are ‘partners’ joined by law, love, or both? There is law in love and love in law, just as there is war in love and love in war. In this book, we shall see that the law in Ovid’s love poetry occupies a similar position to that of war. Legal discourse in Latin love elegy parallels the motif of militia amoris (‘military ser­ vice of love’).18 Martial and forensic pursuits are seemingly excluded, but fundamentally define the discourse of Latin love elegy. Similarly, amor is a key motivator on the battlefield and in the forum. Students of Latin poetry would easily identify the motif of militia amoris in Gallus’ tag omnia uincit amor: et nos cedamus amori (Vergil, Eclogue 10.69 ‘love conquers everything: let us too surrender ourselves to love’). As the elegiac poet Gallus ultimately accepts his fate, the lover becomes a prisoner of war in the camp of Amor. But there is more to it. The verbs uincere and cedere belong not only to military, but also to legal discourse. In Latin love elegy, uincere is used in the meaning of ‘winning a legal case’ (see Amores 2.5.7; 3.14.47–8 with Chapter 3) and cedere means ‘to become the property or pass into the possession of someone’ (OLD s.v. 15). With cedere, Gallus evokes the elegiac motif of seruitium amoris (‘servitude of love’), a concept of property law.19 When all his trials fail to win over Amor (Eclogues 10.64–8), Gallus rests his case with a sententia, a pithy maxim and a judicial pronouncement that estab­ lishes Amor’s sovereign jurisdiction. Interestingly, Gallus’ line is alluded to in the laws of Henry I of England (c.1108), which pro­ claim that ‘agreement supersedes law, and love court judgment’ (pactum legem enim uincit et amor iudicium; see Downer  1972: 164). Gallus’ aphorism sets a precedent not only in the literary universe of Latin love elegy,20 but also in the real world of 18  For the motif of militia amoris in Latin love elegy, see Gale (1997); Drinkwater (2013). 19  For the elegiac motif of seruitium amoris, see Lyne (2007: 85–100). 20  See Ovid, Am. 1.2.9–10; 3.11.34; cf. Ars 1.21–2; 2.197; Rem. am. 144 cedit amor rebus: res age, tutus eris, ‘love yields to business: do business; you will be safe’, where res means not only ‘business’ in general, but also ‘a lawsuit’ in particular (see Rem. am. 151).

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Introduction  19

legislation. Latin elegy is a trope of property law and, conversely, legal treatises reflect the poetics of Latin love poetry. Kennedy (1993: 54) notes that the distinction between the ‘proper’ or ‘literal’ and the ‘secondary’ or ‘metaphorical’ uses of a word provides, by virtue of being largely unquestioned, a frame­ work within which a hierarchy of values and assumptions can be articulated. Coleman (1990: 253), for instance, argues that sententia is primarily a technical term that belongs to the sphere of law. For Coleman, the colloquial or metaphorical meaning of sententia, albeit commonly used, should be secondary. This suggests a tech­nical term that loses its precise meaning, when it is com­ monly used. But this is far from clear. In the Oxford Latin Dictionary, for instance, the legal sense of sententia (‘a juryman’s vote; the col­lect­ive vote of a jury’) is listed fourth. The primary meaning of the word is ‘a way of thinking, opinion, sentiment’. It is likely that the ‘technical’ or ‘precise’ meaning of the word derives from its ‘popular’ use, not the other way around. My point is that the shift between the colloquial and technical use of language reveals not only the ways in which legal language pene­ trates everyday speech but also the potential of popular words to enrich legal terminology. Even the word lex has a technical and non-technical meaning. Lex can refer to ‘the laws of the state’ or to a ‘rule,’ (e.g. Varro, De lingua Latina 7.18 lege poetica ‘the law of poetry’) that is, not tech­ nically a ‘law’. Likewise, iure can mean ‘according to law’ or simply ‘with good reason’ (see Chapter 3 on Ovid, Am. 1.4.63–6). Just as amor can refer both to extrajuridical desire and to the juridical dis­ course of sexuality, lex means both ‘law’ and ‘rule’. The ways in which these key terms shift in and out of the juridical order will be at the heart of this study. The aim of my research is not to create a firewall between the ‘precise’ and ‘popular’ uses of the language of law. By contrast, my aim is to explore the ways in which the laws of the state become part of people’s everyday life, but also the ways in which literary norms and social customs influence the laws of the state. This is important for understanding Ovid, because his love poetry highlights the interdependence of Roman law and poetic justice.

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20  Law and Love in Ovid

When scholars point out the primarily technical meaning of a word to stress its incongruity in Ovid’s love poetry, they assume the primacy of the language of law over the language of love poetry. Thus, Ovid cheekily borrows or steals from law. But, in fact, Ovid points in the opposite direction, namely to forensic rhetoric as emerging in the aftermath of the lover’s discourse. Of course, we do not have to take Ovid at face value. His version may be the ultimate attempt at appropriation. But if we want to interpret his poetry on his terms, we need to take into account that he casts Venus as the originary legislator. We need to do justice to Ovid’s claim that his love poetry reproduces the primary act of legislation and is thus not just a mere reflection or distortion of the realities of Roman law, but their very source. That love poetry may be the source of law is not yet mainstream jurisprudence, but should not be controversial either. As Desmond Manderson (2003: 9) notes, the school of legal pluralism has done a lot to emphasize that law is learnt and practised in specific cultural contexts, in diverse and disparate fashions, and on an everyday basis. The interpretive battles over the meaning and functions of law take place not only in the courts of law’s empire, but also as daily events in the streets, in the bedroom, and in love poetry. Law, like love, conquers everything. When Ovid assumes the roles of an expert jurist, an eloquent advocate, a judge, a censor, or a sovereign legislator, he points to his art as a discourse through which we develop, test, and implement assumptions about the meaning, func­ tion, and interpretation of law. Legal issues are hotly debated in Latin love poetry and its courts of love, just as the Lex Iulia was fiercely debated in the treatises of jurists and in the courts of the Roman Empire. If we want to understand Roman law, we cannot afford to restrict our inquiries to the forum and dismiss Ovid’s courts as insignificant. The main body of the book is divided into three parts and con­ cludes with an Epilogue. Part I (‘The Trials of Love,’ Chapters 2–4) explores legal expression, imagery, and authority in Ovid’s earliest literary works (the Amores and Heroides), but also highlights the juridical nature of Ovidian elegy from the Amores to the exile poetry. Chapter 2 (‘Love as a State of Exception’) discusses passages

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Introduction  21

in which Ovid rejects a career in law for the sake of love poetry. Scholars take these as proof of his indifference to legal procedures. Yet the poet’s disavowal of law for the sake of love is couched in courtroom rhetoric and is thus both a denial and an appropriation of legal discourse. The elegiac recusatio is a version of the recusatio imperii, Augustus’ strategy for establishing his sovereignty by set­ ting himself outside or above formal procedures. Similarly, Ovid aims to control the juridical order by deciding what lies outside it. The chapter studies a number of key passages from Catullus, Tibullus, Propertius, and Ovid to show that the love poets antici­ pate Augustus’ claims to sacrosanctity and sovereignty. It further examines love elegy’s affinities with the Saturnalian spirit of Roman comedy in order to argue that the elegiac suspension of legal action affords space for the emergence of an alternative juris­ prudence of love. Chapter 3 (‘The Courtroom in the Bedroom’) compares the dis­ tinction between what lies inside and outside the rule of law with the blurring of public and private space in the age of Augustus. Love elegy blends private with public life, but also bars Roman law from the privacy of the bedroom. The secrecy of lovemaking is emblem­ atic of the autonomy of love poetry, an independent area governed by the sovereign laws of love. At the same time, love’s jurisdiction spreads from the privacy of the bedroom to occupy the spaces of public life. The bedroom in Latin love elegy is part of the discursive independence of sexuality, an autonomy that is the basis of sover­ eignty. Focusing on representative case studies from the Amores (1.4, 2.5, 2.7–8, 2.19, 3.4, 3.14), the chapter examines the shift to the privacy of the elegiac bedroom against the background of Augustus’ policy of making all aspects of his private life public. Chapter 4 (‘The Letter of the Law’) moves away from the Amores to explore the last of the double Heroides (20–1), the correspond­ ence between Acontius and Cydippe. While the extensive legal lexi­ con of these letters has been much discussed, its significance has been downplayed. By contrast, building on Goodrich (1997), I argue that Ovid highlights the fundamental confluence of the love letter with legal correspondence. The discussion ranges widely through comparative material from contemporary Latin elegy

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22  Law and Love in Ovid

(Propertius in particular) to its intertextual matrix (Callimachus’ Aetia) in order to spell out the dependence of both poetry and law on precedent. Core aspects of Heroides 20–1, such as the materiality of the text, iterability, performativity, and intertextuality are not only closely related to the predominance of legal diction in these letters, but also show that the invention of love is inextricably related to the invention of law. I further bring in the extrajudicial rituals and materials of magic, in the form of the curse tablet, to investigate the triangulated relations between magic spells (carmina), love poetry (carmina), and legal statements. The scripted authority of the law cannot always be segregated from the jurisdic­ tions of magic and poetry. In its historical context, the crucial role of epistolography in the production and communication of laws in the Roman Empire is important for understanding the legal force of Ovid’s love letters. Part II (‘Lex amatoria,’ Chapters 5–6) revolves around the Ars amatoria in order to demonstrate the importance of both literary tradition and historical context for Ovid’s self-presentation as a paragon of justice. Chapter  5 (‘Poets and Lawmakers’) starts by reassessing the common view that Ovid’s Ars amatoria is a frivolous parody of serious didactic poetry. I argue that Ovid’s didactic elegy should be studied in the tradition of the genre’s founding father, Hesiod. The close relationship between law and didacticism is encoded already in Hesiod’s Works and Days and continues there­ after in Greek elegy (Theognis and Solon). Ovid is part of this tradition. The courtroom setting, to which Ovid has repeated recourse in the Ars amatoria, reproduces the trial setting of the Works and Days. Not unlike Hesiod, Ovid aims at an out-of-court settlement in contrast with the litigiousness of corrupt lords. Hesiod and Solon cast themselves as champions of justice in a world dom­ in­ated by unjust rulers. Subtly but clearly, this is how Ovid envis­ ages the relationship between his poetry and the laws of Augustus. Chapter 6 (‘Sexperts and Legal Experts’) examines the expertise of the praeceptor amoris (‘teacher of love’) in the context of the rise of the Roman jurists in the early Principate. The autonomy of jurisprudence in the schools of law goes hand in hand with the independence of sexuality in Ovid’s school of love. The bulk of the

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Introduction  23

chapter explores the juridico-discursive nature of Ovid’s Ars amatoria and includes a discussion of Ovid’s account of Tiresias (Metamorphoses 3) that highlights the confluence of amatory and juridical expertise. Arguing against the view that the science of law was culturally isolated, I trace the deep interconnections between the didactic discourses of jurists and love poets. Since both Ovid’s innovative laws of love and Augustus’ legal reforms make female sexuality the centre of attention, the chapter focuses on the ways in which both Ovid and Augustus aim to fashion women in the image of their desires. Part III (‘The Law of the Father,’ Chapters 7–8) focuses on the connection between producing laws and fathering children. Chapter  7 (‘Authors of Law and Life’) examines the biopolitical force of Augustan legislation vis-à-vis Ovid’s love poetry. Ovid, the ‘father of poems’, pits himself against the prince, the ‘father of the fatherland’. Poet and emperor are involved in the production of normative discourse (legal or literary) that aims at generating bio­ logical or conceptual offspring. Their roles are both parallel and antithetical. Augustus’ laws aim to increase the population, while the elegiac legislator sees pregnancy as undermining attractiveness. Yet both poet and prince cast themselves as auctores, a word that can refer to a proposer of law, an author of poems, and a father. As auctores, Ovid and Augustus aspire to create a zone of indistinction between the biological and the political, between law and life. The capacity of Ovid’s art to become life parallels and contrasts with the power of Augustus’ laws to become flesh. Chapter 8 (‘Love and Incest’) takes up these themes in an ex­plor­ ation of Orpheus’ celebration of pederasty and denunciation of female passion, especially in the form of incest. The chapter starts by discussing Orpheus as a figure who combines the roles of the archetypal poet and lawgiver (Horace, Ars Poetica 391–401; Ovid, Metamorphoses 10–11). While in Horace the legendary bard insti­ tutes marriage laws, in Ovid he is the founding father of pederasty. Orpheus’ version of the myth of Myrrha (a daughter who fell in love with her father) revaluates the prohibition on incest as the origin of the law of the father. Myrrha’s love is an attempt to appropriate patria potestas by challenging the father’s power to say no to incest.

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24  Law and Love in Ovid

What is more, the myths of Orpheus and Myrrha resonate with Augustan Rome: Orpheus bears more than fleeting similarities to the teacher of the Ars amatoria; Cinyras and Myrrha recall Augustus and Julia, a resemblance that opens the gap between the intention of the law of the pater patriae and its undesirable effects. In the Epilogue, I outline my study’s links to Ovid’s reception in the Middle Ages in order to recapitulate the main theoretical approaches of my work. Ovid’s jurisprudence of love had a major impact on Forcadel’s Cupido Jurisperitus and Boccaccio’s Decameron. The current trend to simultaneously study and marginalize legal dis­ course in Ovid is a modern construction that this book aims to demolish. My comments on the juridico-discursive reception of Ovid are brief, but will hopefully open new avenues not only in Ovidian studies and the reception of our poet’s work, but also in the field of law and literature.

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PART I

THE TRIALS OF LOVE

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2 Love as a State of Exception Introduction In a book whose main argument is that Ovid’s love poetry lays down the law, it is important to discuss the passages in which Ovid and other love poets explicitly declare that they do not care about legal procedures. The recusatio of laws and courtrooms at Amores 1.15 or Tristia 4.10.17–22, 37–40 are salient examples that will be examined in this chapter. These passages feature in studies on legal language in Ovid. Kenney (1969: 263) concludes his article on legalisms in Ovid by quoting and briefly discussing Tristia 4.10.37–40. For Kenney, Ovid’s disavowal of forensic business is proof of the poet’s indifference to the rituals of the law. Despite Ovid’s distaste for the forum, his early and short experience with it, Kenney adds, ‘left a mark on him that cannot be wholly deplored’. After twentytwo pages of masterful identification of legalisms in Ovid, Kenney’s conclusion is rather anticlimactic. Ovid’s obsession with legal diction is perceived as ‘brushes with the law’; the law ‘may claim some small part’ in the formation of Ovid’s versatile poetry, reads the last sentence. After all, Ovid himself says he rejected a career in the forum for the pleasures of the Muses. Publishing twenty-four years after Kenney (1969), John Davis (1993) follows a similar methodology and draws similar conclusions. Focusing on Amores 1.4, Davis (1993) perceptively identifies Ovid’s future imperatives as the language of legal injunctions. He then quotes Amores 1.15.1–6, in which Ovid dismisses an education in law and a career in the forum, to conclude that it is clear that our poet had no taste for Roman law; he simply used legalese to mock it (Davis  1993: 68–9). Mockery, the ultimate interpretative resort of Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0002

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so many studies on Ovid, brings us to a conclusion. Ovid laughed at the law, so he did not care about it. These articles briefly discuss Ovid’s recusationes of the world and language of law in their concluding remarks. By contrast, my work takes them as the point of departure in an attempt to assess the full force of legal discourse in Ovid’s love poetry. My argument sharply contrasts with Kenney’s and Davis’ conclusions. To begin with, the rejection of a career in law is presented in the context of a trial, a court of love or a judgment of love poetry. The courtroom setting of the elegiac recusatio suggests that love poetry is not separated from legal action but fully integrated into the rituals and rhetoric of the forum. It is an illusion that love renders lovers indifferent to law. Quite the contrary, the elegiac recusatio reveals the juridical nature of the lover’s discourse. What is more, the recusatio defines a sovereign exception that is a prerequisite for the creation of the juridical order. Kirk Freudenburg (2014) draws an intriguing connection between the recusationes of Augustan poets and Augustus’ recusatio imperii, the emperor’s strategy for establishing his sovereignty by setting himself outside or above formal procedures. Building on Freudenburg and further drawing on the work of Giorgio Agamben (1998; 2005a), I argue that Ovid’s recusationes are enmeshed in imperial politics. Not unlike the prince, the poet proclaims a sovereign exception; he controls the production of law by deciding what lies outside it. Ovid does not close the door of the law. He opens it by standing outside the juridical order.

Recusatio: Elegy’s Sovereign Exception Latin love elegy is a literary genre that defines itself by denial. The so-called recusatio, the disavowal of epic war for the sake of love, shapes the profile and agenda of elegiac discourse. Yet this denial is simultaneously an appropriation.1 Roman elegy may apparently

1  Hinds (1998: 52–5) discusses Latin poets’ simultaneous appropriation and denial in the rather different context of the so-called primus motif.

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Love as a State of Exception  29

refuse to engage with the world of wars and men, but actually enlists martial epic in the service of love poetry. Elegy’s strategy is more aggressive than it looks at first sight; the genre conquers by feigning a retreat and transforms epic narratives into elegiac metaphors.2 From that perspective, elegy is more imperialistic than epic since it expands by dividing and conquering the martial and amatory aspects of epic poems. The denial of an active military and political life is a powerful political statement. By refusing actively to take part in Roman imperialism, the Roman elegists make a radical poetic and political choice. Elegy’s action is its pretence of inaction. A similar combination of denial and appropriation applies to elegy’s stance towards Roman law. Latin elegiac poets ostensibly reject a career in law for the pleasures of love poetry, but in fact employ the full force of legal discourse for amatory purposes. If every lover is a soldier and Cupid has his own barracks, as Ovid famously avers (Amores 1.9.1), every lover is also a lawyer and Cupid has and holds his own court. The shift from the interplay between love and war to the disavowal of law for the sake of love suggests itself, since any Roman man aspiring to a successful career would choose to serve the state either in the army or in the forum. If elegiac love contrasts with military action, it also contrasts with legal action. In the Remedia amoris, Ovid teaches that the end of leisure (otium) will be the end of love. Avoid leisure and you will be cured of your longing for pleasure: Sunt fora, sunt leges, sunt, quos tuearis, amici: uade per urbanae splendida castra togae. uel tu sanguinei iuuenalia munera Martis suscipe: deliciae iam tibi terga dabunt. Remedia amoris 151–4 There are the courts, there are the laws, there are friends for you to defend: march through the camps that gleam with the urban toga. Or undertake the youthful task of bloostained Mars: you will soon be routing pleasures. 2  E.g. the motif of militia amoris. On this elegiac motif and its ironies, see Gale (1997); Drinkwater (2013).

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The courtroom is presented in military terms (castra), anticipating the transition to martial pursuits that can be an antidote to amatory passion. This combination of military and legal discourse features at the beginning of the Remedia. The work starts with Cupid accusing Ovid of declaring war against him. Ovid retorts with a speech with which he begs Cupid not to condemn his bard of this crime, reminding the god how dutifully he served in his camp (Rem. am. 1–4). In other words, the Remedia starts with a trial scene. Ovid wins the case and Cupid lets him proceed with his project. His apologia for the Remedia convinces Cupid more than Tristia 2, with its defence of the Ars amatoria, ever moved Augustus to recall the poet from exile. Amor yields to legal action (Rem. am. 144) and is moved by forensic rhetoric (Rem. am. 39–40). The parallel between military and civil service is part of oratory’s self-definition: forensic pleading is often compared to martial ­activity— a young orator’s apprenticeship is a tirocinium (‘a soldier’s first ­service’). Cicero (Off. 1.71) states that military and civil offices (imperia et magistratus) are the only praiseworthy pursuits, and excuses only two categories of men who choose a different path: men of extraordinary genius who are devoted to learning and men of ill health. It is as if Cicero anticipated the persona of the elegiac lover, the outstandingly learned and frail poet who abstains from public service burdened with the onus of love and love poetry. Cicero has no sympathy for all other men who scorn a career in the army. For him, glory is earned on the battlefield or in the forum, while for the elegiac poets the eternal glory of poetic afterlife is pitted against the ephemeral pursuits of civil and military administration. Propertius, for one, classes forensic oratory alongside epic poetry as a discourse he should reject. At 4.1b.133–46, Apollo dictates the production of elegy and forbids the thundering rhetoric of the law courts: tum tibi pauca suo de carmine dictat Apollo et uetat insano uerba tonare foro. ‘at tu finge elegos, fallax opus (haec tua castra). Propertius 4.1b.133–5

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Love as a State of Exception  31 then Apollo dictates a little of his song to you and forbids you to bawl forth thunderous speeches in the madness of the forum. ‘But you, make elegies, a deceitful work (this is your camp).’

Apollo, the god of reason, contrasts with the insanity of the forum. In a twist of the Callimachean recusatio, the thundering noise of the courts joins the thunderbolts of epic as examples that Propertius, the  Roman Callimachus, should avoid.3 Courtroom rhetoric must be divorced from love poetry. Apollo’s speech (135–46) blends the motif of militia amoris with the rejection of martial pursuits. Epic wars and forensic battles appear as the two sides of the same coin. The recusatio of a soldier’s life often appropriates epic discourse. Likewise, Apollo assumes the pose of a legally powerful authority in order to bar forensic rhetoric from elegiac poetry. The verb uetat in particular is used of magistrates who issue a prohibitive order or of private persons (principals, masters, fathers) who have the authority to forbid persons depending upon them to do something.4 It commonly describes what is forbidden by law.5 The verb dictat also has a legal color. Ovid uses it in Heroides 20.29 to describe Amor’s dictation of a binding contract in a passage that casts Amor as Acontius’ jurisconsult (see Kenney  1996 ad loc. and Chapter  4). Apollo’s dictation in Propertius (de carmine dictat Apollo) and Amor’s dictation in Ovid (Am. 2.1.38 carmina . . . dictat Amor, ‘Amor dictates songs’) cast the divine order to compose love poetry as prescriptive legislation originating from powerful gods.6 Hence, the poetic manifesto of elegiac poetry becomes indistinguishable from a legal injunction. Law and poetry merge together in the very passage that aims to separate them. The recusatio dictates the sovereign laws of 3  Cf. Vergil, G. 4.559–62, in which the poet contrasts his didactic poem with great Caesar’s pursuits: Augustus thunders in war by the Euphrates, gives laws to defeated nations, and opens a path to Olympus (the last cheekily but appropriately evokes the giants Otus and Ephialtes in the context of a Callimachean recusatio); see Heslin (2018: 179) on anti-Callimachean poetical metaphors in this passage. 4  See Berger (1953) s.v. uetare. 5  See Cic. Phil. 8.28 istud uetat lex Caesaris, ‘Caesar’s law forbids this’; Hor. Carm. 3.24.58 uetita legibus alea, ‘gambling forbidden by law’; Sen. Clem. 1.18.2 commune ius animantium uetet, ‘the universal law of all living beings forbids’; Prop. 3.14.21 lex . . . uetat, ‘the law forbids’. 6  On the crucial word carmen, which exemplifies the confluence of law and poetry, see Chapters 4 and 6.

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elegiac love and thus creates an alternative space governed by its own legal code. Just as the rejection of martial epic in love elegy is both a denial and an appropriation of the epic world of men and wars, so the disavowal of legal actions is a legislative act dictated by divine authority.7 Similarly, Ovid’s Amores 1.15 begins with a recusatio of a legal career for the sake of love poetry. But Ovid’s refusal to pursue his studies in law is couched in forensic rhetoric: Quid mihi, Liuor edax, ignauos obicis annos, ingeniique uocas carmen inertis opus, non me more patrum, dum strenua sustinet aetas, praemia militiae puluerulenta sequi, nec me uerbosas leges ediscere nec me ingrato uocem prostituisse foro? mortale est, quod quaeris, opus; mihi fama perennis quaeritur, in toto semper ut orbe canar. Amores 1.15.1–8 Why do you, biting Envy, charge me with slothful years, and call my song the work of an idle wit, complaining that, while vigorous age gives strength, I neither, after the fashion of our fathers, pursue the dusty prizes of a soldier’s life nor learn garrulous legal lore nor set my voice for common cause in the ungrateful forum? It is but mortal, the work you ask of me; but my quest is glory through all the years, to be ever known in song throughout the earth.

While in Callimachus (Hymn to Apollo 105–13), the controversy between Apollo and Envy is about poetics, in Ovid the ­controversy is between writing poetry and having a career in the army or the forum.8 Livor, the Roman version of Envy, is critical of poetic pursuits in general, endorsing the Roman ideal of manliness as military or forensic success. The Roman man, not unlike the Homeric hero, has to be a speaker of words and a doer of deeds (Iliad 9.443). 7 Cf. Keith (2008: 19–44) for the lasting impact of oratorical and legal training in Propertius, despite his rejection of law and politics. 8  Cf. Barchiesi (1997: 39–43) on how Ovid politicizes Callimachus with a focus on Liuor.

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Love poetry is certainly out of the question. The poet does not deny the accusation that he did not pursue a career in the army or the law, but retorts that his literary pursuits will bring him eternal glory in contrast to the earthly ambitions of law and war. An intriguing aspect of the Ovidian recusatio is that the rejection of a career in law is presented as a legal dispute in the court of elegiac poetics. Ovid says no to Roman law while assuming the pose of a defendant countering the accusations of a plaintiff. As James McKeown (1989 ad loc.) notes, the first words of the poem recall the beginning of a declamation by Latro (Sen. Controv. 1.1.1 Quid mihi obicis? ‘Why do you charge me?’), the rhetorician whom Ovid most admired. The poet declares his indifference to the study of law by employing the rhetoric of controuersiae, that is, exercises that aim at preparing young boys for a career in law. Ovid will employ a similar construction (obicere + infinitive) in an elegy (Amores 2.7) that is structured as the lover’s defence speech against his mistress’s accusations of infidelity.9 Patricia Watson (1983: 95) notes that obicere is commonly found in propositiones (see Cic. Clu. 60.165; cf. Quint. Inst. 4.4.8), and this is how Ovid uses it in Amores 1.15 and 2.7. Just as in Amores 2.7 Ovid casts himself as a defendant in an adultery trial, the recusatio in Amores 1.15 is part of the poet’s defence speech against the accusations of the prosecution. In sum, there is a tension between the poet’s proclaimed rejection of forensic discourse and his employment of the formal diction of courtroom rhetoric. Ovid may have dropped out of law school, but he simultaneously assumes the voice of a trainee lawyer and an advocate who offer arguments in defence of certain accusations. The irony is hard to miss: Livor presses charges against Ovid’s indifference to a legal career, and Ovid defends his choice by resorting to forensic rhet­oric. The polyptoton quaeris . . . quaeritur (7–8) further contrasts and 9  See Ovid, Am. 2.7.17–18 ecce nouum crimen: sollers ornare Cypassis / obicitur dominae contemerasse torum, ‘Behold, a new accusation: Cypassis, the expert in styling hair, is brought as a charge against me, accused of having defiled the mistress’s bed’; cf. Propertius 3.19.1 obicitur totiens a te mihi nostra libido, ‘you often bring my desire as a charge against me’. Propertius responds to the mistress’s repeated accusations against male lust and summons witnesses (11 testis, 13 testis) to support his case.

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conflates Livor’s judicial inquiry with Ovid’s poetic pursuits.10 That is why the argument that Amores 1.15.1–6 shows that Ovid had no taste for law (Davis  1993: 68) misses the point. Ovid’s recusatio revolves around a tension between seemingly disliking Roman law and simultaneously displaying a talent in forensic oratory and knowledge of the law. The recusatio ultimately exposes Ovid’s fas­ cin­ation with legal discourse. Ovid creates a courtroom drama in order to cast the love poet as being not only in control of legal pro­ ced­ures but also above legalism. Thus, the love poet lays the groundwork for claiming the role of the sovereign legislator. Propertius similarly defended his elegiac lifestyle by dismissing an old-fashioned obsession with legalism. Prudish old men may press charges against Propertius’ partying, but the poet cares about light music, not serious laws: ista senes licet accusent conuiuia duri, nos modo propositum, uita, teramus iter; illorum antiquis onerentur legibus aures: hic locus est in quo, tibia docta, sones quae non iure uado Maeandri iacta natasti, turpia cum faceret Pallados ora tumor. Propertius 2.30.13–18 Let stern old men denounce this revelling of ours; just let us ­continue, darling, on the path we have begun. Let their ears be burdened with old-fashioned laws: this is the place for you, skilled pipe, to play, you who, unjustly cast down, floated upon the stream of Maeander, when swollen cheeks marred Pallas’ face.

Propertius’ refusal to engage with the accusations of old moralists is a version of the elegiac recusatio. In the prologue to Callimachus’ Aetia (fr. 1 Harder), the recusatio revolves around a contrast between heavy and light as well as young and old. Propertius adds a legal color to this tradition. The ancient laws of the old men should 10  For the procedural meaning of quaerere, see Berger (1953 s.v.); OLD s.v. 10 ‘to hold a judicial inquiry into, investigate (by process of law)’. For the verb’s legalistic meaning in Ovid, see Gebhardt (2009: 285, 316).

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burden their ears. The youth should follow a novel code of conduct. The defence of the poet’s lifestyle is not simply a statement that Propertius does not care about the law, but is actually a demurrer, an objection granting the factual basis of an opponent’s point but dismissing it as irrelevant or invalid. Given the legal meaning of recusatio (‘counterplea’, ‘demurrer’, ‘objection’), the term is particularly appropriate for describing Propertius’ and Ovid’s sim­ul­tan­eous appropriations and denials of the field of law. Legal language features prominently in the passage quoted above. Propertius admits and dismisses the right of old men to charge him for his life choices (licet . . . accusent) and burdens them with the onus of old laws (antiquis onerentur legibus). Old men and ancient laws suggest not that Propertius does not care about rules but that he follows a new or neoteric and thus superior code of conduct. This novel code is the Callimachean manifesto of Latin love elegy. His concern about doing justice (cf. non iure) to the music or nomos (‘melody’ and ‘law’) of elegiac love contrasts with an old-fashioned worry with propriety that is characteristic of old prudes. In Propertius, the duri senes play the role of the Telchines, the old wizards who mutter their criticism against Callimachus’ childish poetry (Aetia fr. 1.1–6 Harder). The severe old men further evoke another recusatio, Catullus’ ‘very stern old men’ (Catullus 5.2 senes seueriores), who disapprove of the poet’s countless kisses. In this poem, Catullus uses the language of accounting in order to confound malignant calculations of men that can cast an evil eye on his love (5.12 ne quis malus inuidere possit, ‘lest a malicious man cast an evil eye’). The whispering (5.2 rumores) of the elders and the envy of the spiteful provide the poem’s frame. The old and envious critics are a version of Callimachus’ detractors: the mumbling Telchines who are the offspring of the Evil Eye (Aetia fr. 1.1 Harder μοι Τελχῖνες ἐπιτρύζουσιν, ‘the Telchines mutter against me’; 1.17 Harder Βασκανίη⌋ς ὀλοὸν γένος, ‘the destructive offspring of Malignity’), and the personified Φθόνος (‘Envy’) in the recusatio of Callimachus’ Hymn to Apollo (2.105–13). What is primarily an issue of poetics in Callimachus becomes an issue of lifestyle and morality indistinguishable from neoteric poetics in Catullus.

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The legal aspect of the recusatio is already present in Catullus. As Thomas Habinek (1997: 39) argues, the strict old men in Catullus 5 evoke the image of aestimatores, or judges, of aristocratic display; only the poet turns the procedure around by proposing that the ­lovers assess their assessors (5.3. aestimemus). Love invests lovers with the authority of passing judgment and becomes the ultimate measure of justice. According to the value system of true passion, the judgment of the aestimatores is worthless. Catullus virtually takes their place in a poem that is obsessed with reckoning, calculations, and judgments.11 In other words, Catullus is not indifferent to legal procedures, but aims at appropriating them by becoming the judge. The lovers’ Supreme Court overrules the judgment of the aestimatores. The old wizards have no power over enchanted lovers.12 Propertius follows Catullus’ lead. In 2.30, the recusatio is cast as a legal dispute between old-fashioned morality and the new laws of elegiac love. Amatory justice objects to the cumbersome legalism of  old prigs and thus Propertius embeds his recusatio in the context of a legal dispute. The old-fashioned moralists are barred from the elegiac symposium, where the laws of love rule over the youth. What was rumours, whispers, and muttering in Callimachus and Catullus has become a public trial in Propertius. The poet defends his monogamous obsession with his mistress and thus keeps indulging in his courtroom fantasy: una contentum pudeat me uiuere amica? hoc si crimen erit, crimen Amoris erit: mi nemo obiciat. Propertius 2.30.23–5 Am I to be ashamed to live content with a single mistress? If this is a crime, it is Love’s crime. Let no one charge me with this.

The poet holds Love responsible for his wholehearted devotion to a single mistress. The irony of fidelity described as a crimen Amoris 11  Greene (1998: 23) notes that the poet/lover defeats the old men by making love learn to speak the public language. 12 On the competitive and complementary discourses of law, love, and magic, see Chapter 4.

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contributes to the force of the poet’s rhetorical question. Elsewhere (1.11.30), Propertius curses Baiae, calling it crimen amoris, ‘an offence against love’, because he suspects that the popular resort may encourage Cynthia to cheat on him; crimen amoris suggests infidelity rather than faithfulness. The accusations of the prosecution may be related to the extramarital nature of Propertius’ affair. Even though an affair with an amica is extralegal rather than illegal and would thus lie outside the scope of the law, a monogamous obsession with a mistress is reproachable if this passion defines the poet’s whole life and makes him forget his duty as a Roman citizen to marry and father legitimate children.13 That crimen commonly describes an elegiac relationship indicates that the poet’s affair with Cynthia may provide grounds for accusations. Still, Propertius’ rhetoric implies the absurdity of being charged with the crime of being faithful to his beloved. This is the very opposite of an adultery trial. The poet’s forensic oratory suggests the courtroom as an appropriate setting for his elegiac performance, a rather peculiar court that puts faithful lovers in the dock. It can hardly be considered a crime to be faithful in love, Propertius argues, and, if it is a crime, the personified Love, not the smitten poet, should be charged with it. As Ulrich Gebhardt (2009: 158–9) notes, Propertius here resorts to what Cicero calls ‘shifting of the charge’ (remotio criminis).14 The poet casts himself as a defendant falsely accused of an act for which someone else is responsible. The legal diction of crimen obicere (see Berger  1953 s.v. obicere; Gebhardt 2009: 159) further adds to Propertius’ imaginary trial. The remotio criminis makes the poet both exempt from crimes against love and subject to the sovereign laws of Amor. By declaring his passion a crimen Amoris, Propertius simultaneously denounces Amor as the culprit and exonerates lovers committed to the rule of love. Love both breaks the law and legalizes transgression. If we 13  Cf. Propertius 2.7, in which the poet celebrates the repeal of a law that allegedly threatened his affair with Cynthia. The language and themes of the elegiac recusatio (war vs love, epic Caesar vs elegiac poetry) feature prominently in this elegy (I discuss it in Chapter 6). 14  See Cic. Inv. rhet. 1.15 remotio criminis est cum id crimen quod infertur ab se et ab sua culpa et potestate in alium reus remouere conatur. ‘It is shifting of the charge when the defendant tries to shift to another the charge brought against him by transferring to another either the act or the intent or the power to perform the act.’

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read amoris instead of Amoris, the poet argues that no action instigated by desire should form the basis of an indictment. A crimen amoris cannot be included in the juridical order. What is more, the phrase crimen Amoris is ambiguous, depending on whether we take Amoris as objective or subjective genitive.15 As part of the remotio criminis, it means that Amor should be charged instead of the lover. But it can also mean that it is Amor’s and nobody else’s business to bring charges against a lover who breaks amatory laws. Readers are confronted with two antithetical images. On the one hand, the poet argues that the personified Amor should be prosecuted, on the other that erotic desire has independent jurisdiction. Following Propertius, Ovid employs the forensic connotations of obicere in his recusatio. As we have seen, Ovid’s Quid mihi, Liuor edax . . . obicis (Am. 1.15.1) is the poet’s rejoinder to Envy’s charges against elegiac poetics. The accusatives ignauos annos as well as the infinitives sequi, ediscere, and prostituisse (1.15.4–6) should be construed with obicis—they describe the accusations according to the legal idiom crimen obicere. Ovid assumes the pose of an advocate: he opens his refutation by summarizing the accusations and by wondering why Envy would prosecute him for being sluggish and indifferent to a military or legal career. Ovid’s opening couplet is powerful, implying that Liuor, who was often characterized as sluggish (cf. Met. 2.763; Pont. 3.3.101; Sen. Dial. 9.5.3), has the audacity to charge someone else with laziness (see McKeown 1989 ad 1.15.1–2). The reference to the mos patrum in the second couplet presumably echoes the moralistic tone of Liuor’s accusations.16 In the next couplet, Ovid’s refusal to memorize wordy laws (uerbosas leges ediscere) can be read as a version of Propertius 2.30.15 (antiquis onerentur legibus).17 Ovid recalls an elegiac intertext and thus

15  For the subjective genitive with crimen, see Ovid, Tr. 4.9.26 perpetuae crimen posteritatis eris, ‘you will be the indictment of everlasting posterity’. 16 In Rem. am. 361–2 (nuper enim nostros quidam carpsere libellos, / quorum censura Musa proterua mea est, ‘for lately some people reviled my little books and branded my Muse as shameless’), Ovid’s detractors base their accusations on moral rather than literary criteria, acting as censors. Liuor (365) and inuidia (397) follow shortly after this passage; cf. Barchiesi (1997: 41). 17 The mos patrum evokes the ancient laws that weigh down the elders’ ears in Propertius. Am. 1.15.5–6 also echoes Prop. 4.1b.134 et uetat insano uerba tonare foro.

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pits poetic memory against rote memorization of legislation. The law of the Amores resorts to Propertian precedent. While reiterating Liuor’s third charge, Ovid challenges its validity. Like a wily advocate, the poet undermines the value of the ac­cusa­ tions by summarizing them. The poet dismisses a career in law as ungrateful and unpleasant (ingrato foro), the very opposite of an elegiac lover’s perennial pursuit of pleasure and gratification. The harsh infinitive prostituisse denigrates the practice of advocates making money, presenting lawyers as prostitutes (see Davis  1993: 68; Miller 2004: 176). As McKeown (1989 ad 1.15.5–6) notes, ingrato (‘thankless’) denies gratia, the reward which an advocate might expect to receive from his clients. By contrast, prostituisse suggests payment for advocacy, which was illegal. Ovid may say that he could not be bothered with memorizing laws, but he is fully aware of the lex Cincia, which forbade advocates from accepting money for their services, and here he subtly but clearly evokes this law.18 In sum, his proclaimed refusal to deal with legal issues reveals that he is well-versed in law. Yet Ovid’s view of a legal career is grim. On the one hand, advocates receive no gratitude from their clients for their services; on the other, receiving money is illegal and reduces them to prostitutes. Advocates do not find gratification in the reciprocal exchange of favours between patrons and clients, and they have to avoid undignified commodity transactions for their legal service. From that perspective, the advocates are not unlike the elegiac lover who is torn between the greed and ingratitude of his beloved woman. The similarities between the socio-economic relationships of the elegiac and the forensic world are suggested at the moment of their denial. ‘Cash for sex’ is a commodity transaction outlawed in Latin elegy. The relationship between the poet and his mistress cor­res­ ponds to the value system of reciprocal exchange between patrons and clients.19 Only the poet/lover often complains that the puella does not reciprocate his poetic gifts with her love. The rejection of a 18  Augustus revived that law (c.17 bce); see Dio Cassius 54.18.2. See McKeown (1989 ad 1.10.39–40). 19  See Gibson (1996); cf. Platter (1995).

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career in law for the sake of love elegy reveals an overlap between legal and poetic pursuits. There are deep structural connections in the relationships between a patron and a client, on the one hand, and a lover and his mistress, on the other. Latin love elegy os­ten­ sibly denies but essentially reproduces the sociolegal hierarchies of the forum. In his discussion of Amores 1.15.1–6, Paul Allen Miller (2004: 176) notes that Ovid equated the practice of law with a form of prostitution in Amores 1.10.41–4. This passage juxtaposes a lawyer who accepts a fee from his clients with a free woman who prostitutes herself by using her beauty to add to the family fortune through a fortunate marriage. For Miller, marriage, the law, and prostitution are, if not directly equated with one another, at least figured as possible metonymic substitutions, occupying structurally analogous positions in the Amores. In his discussion of Amores 1.10.39–42, Roy Gibson (1996: 69–70) rightly notes that ‘Ovid draws a parallel between the disgrace of a lawyer charging for his services and the disgrace of his beloved making a profit from her favours. The proper relationship, Ovid implies, between puella and lover/poet, as between lawyer and client, is the amicitia bond with its exchange of officia.’ The lawyer was to receive gratia, but no payment from his client, since their relationship followed the social code of amicitia. The elegiac love affairs should comply with this norm.20 At Ars amatoria 3.529–34, Ovid compares the jurisconsult who gives legal advice to his client and the advocate who defends his amicus in court with the poet who offers carmina to his girlfriend (see Chapter 6). Depending on the lover, the puellae should expect either legal support or poetry in exchange for making themselves sexually available. The sequence (jurist, lawyer, love poet) draws a distinction between different professions, but also suggests the bond of amicitia between jurists, lawyers, and poets, on the one hand, and their girlfriends, on the other.21 The similarities between the praeceptor amoris and the jurisconsult in the Ars amatoria 20  On the similarities and differences between the relationships of client and patron, on the one hand, and lover and beloved, on the other, see Oliensis (1997). 21  Gibson (1996) builds on Saller (1982: 12–24) and White (1993: 13–34), who argue that the ideal relationship constructed for patrons and poets who hoped to make their living from poetry often closely resembled the ideal amicitia relationship constructed for lawyer and

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(see Chapter 6) make the deep links between legal experts and elegiac instructors surface more readily. The poet follows the positive example of patrons who heed amicitia’s reciprocal exchanges of services and favours. The elegiac code of conduct intrudes into the forum and vice versa. Lover and beloved are implicated in an affair that is modelled on the relationship between a lawyer and his client. Conversely, patronage is based on the reciprocity of love affairs. The elegiac recusatio defines and reproduces the sociolegal structures it rejects.

Autobiographical recusatio In the context of the recusatio, poetic style is indistinguishable from lifestyle and love is simultaneously a reflection and the origin of sociolegal hierarchies. As part of a poet’s life, the recusatio turns autobiography into a form of literary criticism, but also makes poetic choices the turning point in a poet’s life. The literary merges with the biographical and the aesthetic with the political. Ovid’s r­ ecusatio is not just about writing elegy instead of epic, but about f­ollowing a  career in poetry instead of a career in the army or law. The ­boundaries are simultaneously drawn and blurred due to the martial and legal nature of Latin elegy. In Ovid’s autobiography from Tomis, we observe again the confluence of military and forensic language. Ovid contrasts his attraction to poetry with his brother’s inclination towards courtroom rhetoric: frater ad eloquium uiridi tendebat ab aeuo,  fortia uerbosi natus ad arma fori; at mihi iam puero caelestia sacra placebant,  inque suum furtim Musa trahebat opus. saepe pater dixit ‘studium quid inutile temptas? Maeonides nullas ipse reliquit opes.’ Tristia 4.10.17–22

client. For Gibson (1996: 65), it is this same amicitia relationship which Ovid is trying to foster with women in Ars 3.533–8.

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42  Law and Love in Ovid My brother inclined towards oratory from a tender age, born for the strong weapons of the garrulous forum; but I, even as a boy, delighted in heavenly rites, and stealthily the Muse was pulling me into her work. My father often said, ‘Why do you try a profitless pursuit? Even Homer left no wealth.’

The eloquence required for a career in the forum is of epic dimensions; the strong weapons (fortia arma), an unmistakable symbol of martial epic, belong to the busy verbosity of the courtroom. The confluence of forensic prolixity and epic weapons sets up the tone of the recusatio. Ovid rejected this wordy and worldly career for the divine pleasures of the Muses. In this context, mihi . . . placebant may evoke the legislative formula senatui placuit (‘it pleased the senate’). Eventually, the emperor becomes the sovereign legislator, since ‘whatever pleased the prince had the force of law’ (Digest 1.4.1 quod principi placuit, legis habet uigorem). When Ovid writes that ‘there is no punishment worse to anyone in his right mind than to have displeased such a great man’ (Tr. 2.139–40 nulla quidem sano grauior mentisque potenti / poena est, quam tanto displicuisse uiro), he says that displeasing Augustus is in and of itself a punishment for the offender, but also points to the fact that actual punishments such as relegation are now meted out on the basis of whether the prince is pleased or displeased.22 With mihi . . . placebant at Tristia 4.10.19, Ovid evokes a formula common in both law and love. Pleasure and attraction signal a departure from the centre of legislative activity. But in its exemption from the juridical order, pleasure becomes the ultimate source of law. In addition, the father’s admonition can be read as an echo of Catullus’ senes seueriores or Propertius’ senes duri. It is thus in tune with the voice of the aged Telchines or Envy from the traditional recusatio.23 Ovid’s father embodies the mos patrum (Am. 1.15.3), 22  Ingleheart (2010 ad Tr. 2.140) notes that tanto displicuisse uiro hints at Augustus’ great powers: there can be no punishment more severe than displeasing the princeps, because he has the power to dispense whatever punishment he chooses. 23  Ovid mentions at Tr. 4.10.123–4 that Liuor’s biting criticism did not dent his work. In Pont. 4.16.52, he asks Liuor to stop attacking the wounded poet. Barchiesi (1997: 41) notes that by this point it is not possible to maintain a distinction between hostile literary critics and the moralists who caused Ovid’s exile by slandering his work.

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the old morality invoked by Envy, but overruled by the novel laws of elegiac love. Not unlike Callimachus in the prologue of the Aetia, Ovid in the Tristia remains true to his boyish poetics even in his old age.24 The pun on opus and opes at the end of two consecutive coup­ lets brings up the fundamental contrast between poetry and wealth in Latin love elegy. Ironically, Ovid’s father instructs his son in terms that evoke the old bawd of elegy who tells her protégée to care about cash, not poems (see Am. 1.8.57–62).25 But Ovid refused to prostitute himself in the ungrateful forum. He would rather plead in a court of love. Paternal advice has the force of law. This is particularly relevant in the age of Augustus, when the prince as a pater patriae becomes the incarnation of the sovereign legislator. But the relationship between the father and the law is, of course, deeper and older (see Chapter 7). Cato’s precepts (Ad filium), for instance, have the force of legal statements or sacramental formulas, as Alessandro Schiesaro (2007: 69) notes. Ad filium is referred to as a carmen by subsequent authors, and Cato refers to himself as a uates (Schiesaro 2007: 69). But in Ovid, the elegiac poet is the uates and his poem is a carmen. Elegiac discourse replaces the law of the father. In Tristia 4.10, Ovid quotes his father’s precepts only to expose the limitations of paternal injunctions in view of the su­per­ior laws of poetry and pleasure. Ovid implies a competition between two different kinds of carmina, the law of the father and the laws of love poetry. Following his father’s advice, the poet tries to abandon poetic pursuits but his prose becomes verse of its own accord (Tr. 4.10.25 sponte sua carmen numeros ueniebat in aptos, ‘of its own accord a poem would come upon suitable metre’). This seemingly draws a distinction between the prosaic verbosity of forensic oratory and Ovid’s poetry, but in fact the two antithetical discourses are united. Ovid does not say that legal discourse is not befitting his poetry. He says that his genius automatically turns legalistic language into poetry. While forsaking a public career for the sake of poetry, Ovid 24 Cf. puero with Callimachus, Aetia fr. 1.6 Harder παῖς ἅτ⌋ε. Morgan (2003) is relevant, even though it does not focus on the Tristia. 25  The procuress and Ovid’s father both mention Homer. A rich lover is greater even than Homer (cf. Am. 1.8.61–2), who left no wealth (Tr. 4.10.21–2).

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pointedly uses carmen, a word that not only refers to verse as opposed to prose, but is also closely associated with legal and magic­al statements.26 What Ovid describes here is a magical trans­ form­ation. While he is trying to write legalese in his attempt to forsake poetry and pursue a career in law (Tr. 4.10.23–4), the language of administration morphs into the language of poetry, just as his father’s banal precept is incorporated in the elegiac couplet. The crucial word carmen describes authoritative language (in prose or  verse) that has the inherent power to reify the author’s deeper wishes (cf. Putnam 2000: 131–2). The metamorphosis signals a disruption in the form of Ovid’s diction but also suggests continuity between the potent language of legal and elegiac carmina. True to the spirit of his Metamorphoses, Ovid’s carmen changes form while its nature continues to be essentially unchangeable.27 The poet manages both to disavow and to highlight the legal nature of his poetry. The transformation of prose into poetry or the language of administration into poetic diction is a self-reflexive comment on Ovid’s autobiography. Tristia 4.10 is an elegy that turns prose works, such as memoirs of public figures, into poetry. Autobiographical writing had a long tradition in Rome, but it was practised by major public figures (e.g. generals and senators), not poets. By writing his own elegiac autobiography, Ovid intrudes into political and military territory in a poem that is cast as a rejection of a military or forensic career. In particular, Ovid’s elegy deliberately echoes Augustus’ autobiography in its structure and diction. Janet Fairweather (1987) convincingly points out Ovid’s systematic attempts to parallel his life in Tristia 4.10 with that of Augustus.28 Ovid’s elegies become 26  See Putnam (2000: 131–2); Lowrie (2009: 327) notes that carmen is used to refer both to poetry and to law. The semantic range of the Greek νόμος (‘melody’ and ‘law’) corresponds to the Latin carmen (‘song’ and ‘law’). Svenbro (1993: 111–12, 116–17) argues that in Greece the law was originally sung out by the law-chanter. On carmen, see Pierre (2016). 27  Metamorphosis often highlights continuity rather than change. Feldherr (2002: 171) points out that human beings who undergo metamorphosis do not lose the enduring aspects of their being; rather, they take on a form that reveals them; cf. Anderson (1989: 97–8). 28 Parallels in personal life: Augustus and Ovid had two unsuccessful marriages and a happy third marriage. They both had a daughter who gave birth to grandchildren from different husbands. They were both bereaved at the age of 19; Ovid lost his brother, while Augustus lost his mother. There are also structural similarities. The division between private life and public achievements in Tristia 4.10 echoes the structure of Suetonius’ Augustus, which is most likely based on Augustus’ memoirs. There is also a striking verbal similarity between Tristia

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a reflection of Augustus’ de uita sua and the poet a reflection of the emperor.29 A crucial aspect of autobiographical writing that draws another connection between Ovid and Augustus is the link between auto­ biog­raphy and apologia. Most scholars agree that Augustus wrote his memoirs to excuse and defend himself, noting that his commentaries had a profound impact on definitive apologia (see Powell 2009: 174 for references). Anton Powell (2009) argues that the proportion of identified fragments in Augustus’ de uita sua which contain apologia is strikingly high. Ovid’s apologetic auto­ biog­raphy echoes the tone of Augustus’ memoirs. Tristia 4.10 can be read as an apologia, a vindication of the poet’s life, along similar lines to Tristia 2. The rhetoric of Ovid’s letter to Augustus becomes more powerful if we take into account that it resonates with Augustus’ apologetic autobiography. The exiled poet may want to make the emperor sympathize with him by composing a poetic version of the emperor’s prose.30 But, at the same time, he assumes a distinctly imperial pose as his autobiographical elegy becomes a mirror of the life and power of the sovereign ruler. I have argued that the recusatio in Amores 1.15 is couched in legal rhetoric and thus Ovid creates his own court of elegiac love as he simultaneously refuses to engage with the realities of Roman law. There is a similar effect in Tristia 4.10. The poet proclaims his lack of interest in legal disputes while he is actually involved in one. Ovid’s opponent is none other than Augustus, who relegated him with his own imperial intervention, without a senatorial decree and without a trial (Tr. 2.131–4). In his autobiography, Ovid apostrophizes his deceased parents and tells them that the cause of his exile is a mistake, not a crime (Tr. 4.10.89–90 scite, precor, causam (nec uos mihi fallere fas est) / errorem iussae, non scelus, esse fugae, ‘know, I beg you, that the cause of the exile decreed to me (and it is not 4.10 and Augustus’ Res Gestae; Augustus wrote that his career began after the death of two consuls in battle, which is exactly how Ovid describes his birthday in Tr. 4.10 (cf. RG 1 cum [cos. uterqu]e in bel[lo ceci]disset with Tr. 4.10.6 cum cecidit fato consul uterque pari). 29  On Augustus’ lost memoirs, see Smith and Powell (2009). 30  Turning prose or prosaic subjects into poetry further aligns Ovid with Hellenistic poetics (e.g. Aratus’ Phaenomena is the poetic version of Eudoxus).

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lawful for me to deceive you) is a mistake, not a crime’). The implicit addressee is the emperor, and Ovid’s couplet is an appeal to Augustus, who decreed his exile. The poet goes on to mention the wrath of the offended prince as the cause of his exile (Tr. 4.10.98), adding that he will not testify as a witness with evidence that would reveal the cause of his disaster (Tr. 4.10.99–100 causa meae cunctis nimium quoque nota ruinae / indicio non est testificanda meo, ‘the cause of my ruin, but too well known to all, must not be testified by my evidence’). His refusal to give the reason for his exile in his poetry implies that his elegies could function as evidence in a trial or as witness statements, like the legal documents which the poet composed in his youth and magically turned into poetry.31 Tristia 4.10 not only includes a statement that the poet’s early attempts at producing legal documents transformed prose into poetry but is also a simultaneous enactment of this metamorphosis. Against the background of Augustus’ prose memoirs, his apologia, and Ovid’s relegation, Tristia 4.10 is the poetic transformation of the defence of his life. Augustus never gave Ovid the chance to defend himself in the courtroom. His exile poetry creates the courtroom setting denied by the prince, just as the courts of love in the Amores claim the right of appeal to the sovereign rule of a dom­in­ eer­ing mistress. The courtroom setting of the exile poetry highlights the absence of a trial in the case of Ovid’s relegation. In his study of the recusatio in Horace’s letter to Augustus, Kirk Freudenburg (2014) argues that the recusatio of the Augustan poets reflects Augustus’ artful refusal of exceptional powers (recusatio imperii). This act of disavowal was so fundamental in imperial Rome that Wallace-Hadrill (1982: 36) rightly suggests that the pose of denial (recusatio) constitutes the dominant feature of imperial ceremonial. Of course, Augustus’ rejection of autocratic powers was political theatre at its best. It was the show of a man who seemingly refused to take on excessive powers but was in fact the absolute ruler of a new regime. The emperor’s denials mirror and are mirrored

31  On elegiac poetry and witness statements, see Chapter 4.

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in the poets’ recusationes since they appropriate by rejecting.32 In other words, Ovid’s recusatio is an imperial pose. While seemingly refusing to alter the legislative procedures of the Republic, the emperor decisively, albeit subtly, attempted to control and mon­op­ ol­ize the production and interpretation of law (see Colognesi 2014: 320–37). The recusatio of legal discourse has a similar effect in Ovid. The poet makes a show of rejecting the noise of the law courts, but this conceit can barely hide the legislative ambitions of the elegiac genre. Ovid and Propertius say ‘make love, not law’, but in order to make love, they have to make law. The recusatio ul­tim­ ate­ly highlights the juridical nature of Latin love elegy. And the significance of rejecting a forensic or military career by employing the emperor’s political histrionics is not to be missed. Augustus’ and Ovid’s attempts to appropriate and exercise legal authority by rejecting juridical powers are the very essence of sovereignty. Carl Schmitt (1922) famously defined sovereignty as the power to decide on the state of exception. This decision lies at the heart of the paradoxical nature of imperial power. As Giorgio Agamben (1998: 15) argues, the paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside and inside the juridical order. If the sovereign has the legal power of proclaiming a state of exception, then he stands outside the juridical order and at the same time belongs to it by legally defining it. The elegiac recusatio proclaims elegy’s exemption from Roman law, but it would be naive to interpret this decision as indifference to legal issues or merely as a cautious statement that love poetry does not oppose Roman law. The crucial point is the poet’s authority to make a decision on what lies outside the law. The very source of this authority, which is often Apollo, suggests the sovereign power of poetic diction, which simultaneously lies outside human law and defines it. The key is the way that the sovereign creates a state of exception in which he both constitutes a jurisdiction outside law and disavows legal responsibility for what happens within it. In Agamben’s (1998: 21) 32  For Freudenburg (2014: 121), these two types of refusal are not to be considered mere analogues, but structures built from one another, and into one another, as two facets of the same cultural structure.

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words, the sovereign exception is the presupposition of the juridical reference in the form of its suspension. This is precisely the function of the elegiac recusatio.

Bare Life and Sovereign Power The paradox of the inclusive exclusion of sovereign decisions can help us to better understand some fundamental paradoxes of Latin love elegy, such as the juridical nature of the elegiac disavowal of legal discourse. The creation of elegy as a force field which does not infringe on the domain of law ultimately validates the sovereign jurisdiction of elegiac discourse. The laws of love are constituted by reference to Roman law and yet stand apart from it. From a different, yet related perspective, we can interpret the elegiac recusatio as setting up a contrast between legal formalism (which it denies) and amatory justice (which it embraces). An important dimension of this distinction is the contrast between the objective and all-inclusive nature of legalism, on the one hand, and the subjective and situational nature of the laws of love, on the other. Once more the distinction is simultaneously drawn and blurred, since the exception presupposes the validity of juridical rules. Amatory just­ice is the sovereign power that passes judgment by dismissing and appropriating the letter of the law. To paraphrase Carl Schmitt (1922: 19), the law of love elegy is the exception that cannot be subsumed. Yet, by defying general codification, it reveals a specifically juridical formal. The legal nature of the elegiac recusatio revolves around this paradox. By creating a domain outside the jurisdiction of Roman law, the elegiac poet not only exercises sovereign power but also banishes himself to an area abandoned by the law. From that perspective, the elegiac lover is a version of Agamben’s ‘sacred man’ (homo sacer), a person who is banned and can be killed with impunity but not sacrificed.33 Our main source for the definition of the homo sacer is

33  See in particular Agamben (1998: 71–4).

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Verrius Flaccus,34 ‘a thinker in Augustus’ inner circle at a pivotal moment in changes in sovereignty’s construction’ (Lowrie 2007a: 33). Even though the explanatory value of the homo sacer should not be restricted to its historicity, it is certainly significant that it is a scholar in the service of Augustus who discusses the meaning of this concept. My argument is that the seemingly marginal category of homo sacer is key to understanding Latin love elegy’s relationship to the juridical order in the age of Augustus. The lover exists outside the law and is reduced to bare life, a pure existence without legal identity. In Agamben’s work, there is an intriguing symmetry between sovereign power and bare life, since both are included in the legal order by exclusion. Sovereignty, the highest power, parallels bare life, the most vulnerable existence. In Latin elegy, the lover is at the mercy of his mistress’s whims. He is banished from her bedroom and freezes outside her door in a no-man’s-land. Love’s tyrannical rule shapes the lover’s bodily experience by reducing him to an emaciated and pale—almost ghostlike—existence. Outside Roman law, the elegiac lover suffers from love’s sovereign lawlessness and becomes a homo sacer. Yet, at the same time, the lover often assumes the role of a legislator, a judge, or a censor. The elegiac world is a reflection of Roman law and the poet a supreme authority in jurisprudence. The shifting identities of the elegiac lover, his endless vacillation between impotence and omnipotence, aptly encapsulate the symmetry between sovereign power and bare life. The shift between the utter hopelessness of bare life and the absolute power of sovereignty in Latin elegy is at play in Ovid’s exile. When Augustus exercised his supreme authority, he cast the elegiac

34  Verrius Flaccus’ definition is attested in Festus, De uerborum significatione 318: At homo sacer is est, quem populus iudicauit ob maleficium; neque fas est eum immolari, sed qui occidit, parricidi non damnatur; nam lege tribunicia prima cauetur ‘si quis eum, qui eo plebei scito sacer sit, occiderit, parricida ne sit.’ Ex quo quiuis homo malus atque inprobus sacer appellari solet. The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man; yet he who kills him will not be condemned for homicide; in the first tribunician law, in fact, it is noted that ‘If someone kills the one who is sacred according to the plebiscite, it will not be considered homicide.’ This is why it is customary for an evil or impure man to be called sacred.

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poet as an outcast from law, relegating him to bare life and cutting his sovereign ambitions short. The exile poetry seamlessly con­tinues the poetics of love elegy, since the bareness of the lover’s existence is a distinctive feature of his self-presentation. The emperor catches Ovid in the traps set by elegiac discourse. No wonder that in Ovid’s exile poetry, the emperor corresponds to the elegiac domina,35 since the prince exercises his legal authority by excluding both himself and the poet from proper procedure.36 As Kaius Tuori (2016: 80) rightly points out, Ovid draws attention to the fact that Augustus was able to relegate him, not simply because he had official power to do so, or a clear reason and justification, but also because he had the power to make an exception, made possible by rules, the lack of rules, or the flexibility of such rules. The emperor embodies the sovereign power of the elegiac mistress, who can lock out her lover without justifying her decision. The exiled poet is a version of the exclusus amator (see Nagle  1980: 21), desperately knocking on heaven’s door. The unpredictability of im­per­ial whims, not unlike the mistress’s capricious behaviour, reduces Ovid to bare life, transforming him to living a pure animal existence banned from the political and legal structures of human society. In the Tristia, Ovid laments his relegation by referring to the lawlessness of Tomis (see Tr. 5.7.47–8; 10.43–4 with McGowan 2009: 133–6). Augustus is the embodiment of Roman law, while Ovid is relegated to a place that signifies the absence of the rule of Roman law. Agamben draws a connection between exile and bare life. The figure of the exiled man, who is not just outside the law but essentially abandoned by the law, can shed light on the close relationship between bare life and banishment.37 Related to the old Germanic term ban, which means both exclusion from the community and the command and insignia of the sovereign, the word ‘ban’ 35  Cf. Nagle (1980: 43): ‘In these elegies Ovid woos not a mistress but Augustus.’ 36  See McGowan (2009: 37–8) for Ovid implying that Augustus had not followed pro­ced­ure and thus suggesting that his relegation involved a significant breach of established practice; cf. Tuori (2016: 68–125, especially 76, 80); Bauman (1967: 244–5) on Ovid’s extrajudicial punishment. 37  Cf. Lowrie (2009: 360–82); she opens her perceptive reading of Ovid and the law in Tristia 2 by quoting Agamben (1998: 29).

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encapsulates the elegiac ambiguity between absolute power and bare life (cf. Agamben 1998: 28–9; 2015: 234–9), the impotence of law and the sovereignty of love. Not unlike the exile, the lover is entirely free from legal constraints, but that is why he becomes a slave of his desire. The reason why the genre of Latin elegy so appropriately expresses Ovid’s experience of living in exile is because the elegiac lover has already been cast as an exile from law. And the reason why the Amores, the Tristia, and Ex Ponto are obsessed with legal discourse is because the lover’s as well as the exile’s deepest desire is to be included in the juridical order. Years before Ovid’s relegation, Propertius cast the elegiac lover as an exile from law who longs for proper procedure. In 1.18, Propertius retreats to the wilderness in order to vent his frustration against Cynthia’s unjustified haughtiness. Once a happy lover, Propertius is now forced to wear the censorial mark of shame (nota) in the register of love (7–8). The poet wonders why he has to suffer this fate and whether the accusation is a new girl (9–10). We are in an imaginary courtroom in which Propertius defends himself against this alleged accusation. The poem is his defensio (see Gebhardt 2009: 148–54), in which he argues for his innocence and sees Cynthia’s cruelty as an act of injustice (23 iniuria). The lover summons witnesses (19 uos eritis testes), the trees that echoed his spontaneous confessions of love and on whose barks he had inscribed Cynthia’s name. The poem revolves around the following interplay: while the tyrannical rule of the mistress banished the poet to a lawless wilderness, the exiled lover has a legal fantasy in which he has the right to defend himself against specific accusations. The elegy opens by presenting the silence of a desert as necessary for the poet to express his legitimate complaints and object to Cynthia’s injustice with impunity (1–4). The poet has been deprived of his right to file a complaint for his unfair treatment. The mistress banned him from the juridical order and can further punish him if he attempts to resort to legal procedure. Her sovereignty consists in her power to condemn Propertius without giving him the opportunity to defend himself and without even justifying her decision. As a result, he gives

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a courtroom speech in the desert, testifying that he endured the commands of his mistress without complaining: omnia consueui timidus perferre superbae iussa, neque arguto facta dolore queri Propertius 1.18.25–6 Faint-hearted, I have accustomed myself to put up with every command of a haughty woman and not complain in shrill cries of what she has done.

While Cynthia exercises sovereign power by giving orders, the poet suffers without exercising his right to object to her haughtiness. Complaining is a defining feature of Latin love elegy. Of course, by saying that he is not used to complaining, Propertius is actually complaining about Cynthia’s imperious command, as he makes clear in the beginning (1 haec certe deserta loca et taciturna querenti, ‘these are certainly deserted regions and quiet for my complaints’). We are reading his moaning in a poetic genre particularly suited for it. What is more, in a poem that indulges in a courtroom fantasy, the legal meaning of queri (‘to make a formal complaint in a court of law’; see OLD 1e) further points to the lover’s desire to be included in the juridical order from which his mistress’s command banished him. Berger (1953: 666, s.v. queri) notes that queri is used, for instance, when a slave complains about bad treatment from his master to the magistrate. Propertius, the slave of love, implies that he had every right to bring charges against Cynthia, his tyrannical mistress. He never did it and finds himself now in the position of the defendant. This courtroom fantasy highlights both the lover’s banishment from the domain of law and his burning desire to be subjected to legal procedures. The wilderness as the setting of his trials symbolizes the lover’s exile from the juridical order, while the summoning of trees as witnesses in a desperate transference of a lawsuit to the solitude of trustworthy rocks, blowing winds, and twittering birds highlights the desire of those excluded from legal procedure to be reinscribed in it. Propertius lives in a state of exception, an outlaw who longs for justice.

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The poet continues his defence against charges of infidelity in 2.20: quidue mea de fraude deos, insana, fatigas? quid quereris nostram sic cecidisse fidem? Propertius 2.20.3–4 Or why do you exhaust the gods, crazy woman, with tales of my infidelity? Why are you complaining that my loyalty has thus fallen out?

Cynthia spelled out the accusation that Propertius suspected was the cause of her change of heart (1.18.9–10). Her complaint reiterates the confluence of elegiac and legal discourse. Like queri in 1.18.26, quereris, followed by the legal connotations of fidem, suggests a formal charge against Propertius’ alleged failure to honour his commitment. At the same time, it evokes a defining motif of elegiac poetry—the complaints of lovers cheated on by their partners.38 The domina here has been reduced to the status of a slave. The elegy opens with a comparison of Cynthia with Briseis and Andromache, female prisoners of war from the Trojan cycle (1–2). The powerful Cynthia is cast in the role of a captive, suffering from her lover’s alleged infidelity. While in 1.18 she has the power to banish her lover to a lawless wilderness, in 2.20 Propertius’ alleged betrayal has reduced her to the bare life of a prisoner of war. It is important to note that the source of Cynthia’s sovereign power and the reason for her captivity seem to be the same: her passion for Propertius, who is suspected of unfaithfulness. Love is the state of exception that has the power to exclude Cynthia from the juridical order, either as an imperious mistress or as a helpless captive of her passion. The elegiac state of exception is characterized by a blurring of the distinction between freedom and slavery. The poem that begins by comparing Cynthia to a slave also describes Propertius as her slave (2.20.20). The elegiac lover is a Roman citizen whom love has enslaved. But elegiac love is also a liberating force. In a passage that 38 Cf. 1.18.29 querelae and 2.20.5 querela, an elegiac lament with a legal color (see Berger 1953: 665–6 s.v. querela).

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blends the language of law and magic (9–12), Propertius declares that his passion gives him the right and the power to break free from physical bonds and legal constraints.39 No legal bonds can deprive him of his freedom, as long as he is the slave of Cynthia. The mistress’s ‘mild servitude’ (20 seruitium mite) can keep Propertius forever bound to her. Love endows Propertius with sovereign power that liberates him from the bonds of law and, at the same time, makes him a slave of his passion. What the love poet looks for in love is a feeling of absolute submission to an external force and yet absolute freedom over it (cf. Manderson 2003: 8).

Sacrosanctus and Homo Sacer Bare life and sovereign exception are two sides of the same coin. Under the Principate, this structural analogy is exemplified when Augustus’ inviolability is legally ratified: sacrosanctu[s in perp]etum [ut essem et q]uoad uiuerem tribunicia potestas mihi e[sset per lege]m st[atutum est. Augustus, Res Gestae 1.10 It was ratified by law that I should be permanently sacrosanct and that I should hold tribunician power for as long as I live. (translation Cooley 2009)

Augustus is first granted the sacrosanctity of the tribunes and subsequently the tribunicia potestas. Alison Cooley (2009: 148) rightly notes that sacrosanctity protected Augustus from physical or verbal violence (cf. Bauman  1967: 213–21). But there is more to it. Augustus’ life is inviolable because it is invaluable, in the sense that it is devoid of value. It thus constitutes a contrasting parallel with the life of the homo sacer. What bare life and sovereign power have in common is that they are never submitted to sanctioned forms of execution (cf. Agamben  1998: 102–3). The passage quoted above 39  For a discussion of the confluence of law and magic in Propertius 2.20.9–12, see Chapter 4.

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suggests the lex sacrata, which originally referred to a law that determined a homo sacer, an offender of inviolable sacrosanctity and thus a life that could be taken without trial (see Agamben 1998: 84). By defining a homo sacer, a man outside the juridical order, the lex sacrata simultaneaously defines sovereign power. At the same time, the lex sacrata suggests a parallel between the sacredness of sovereign life that is officially excluded from legal procedures and the bare life of the sacred man whose killing is legally justified but does not concern the law. Of course, the killing of the sovereign, unlike the killing of a homo sacer, may have severe consequences for the killer. But the important point is that the sovereign cannot be put in the dock and sentenced to death. That is why nothing indicates the transition from the end of the Republic to the prince’s absolute command better than Augustus’ assumption of the tribunes’ sacrosanctity (cf. Agamben 1998: 58). As Dio (49.15.5–6) notes in reference to the grant of sacrosanctity to Augustus, tribunician power protects emperors from outrage and if they considered themselves injured by deed or word, no matter how trivial, they can execute the offender without trial, like an outlaw (ὡς καὶ ἐναγῆ ἀπολλύναι). Dio’s ‘outlaw’ (ἐναγής) is the homo sacer. The tribunicia potestas establishes Augustus’ sovereignty by setting him and whoever offends him outside the juridical order. In turn, the tribunicia potestas is precisely what gave Augustus the power to introduce legal reforms. It is thanks to his tribunician power that his laws against adultery were brought to the senate. Once law renders him exempt from law, Augustus acquires the authority of introducing legal reforms that control his subjects’ sexuality. Augustus’ tribunician sacrosanctity and powers are the catalyst for his adultery laws. The emperor proposes a law that excludes non-adulterous extramarital affairs from the juridical order. In accordance with Augustan legislation, elegiac passion should be extralegal. Yet it is precisely the state of non-adulterous extramarital affairs as irrelevant to the rule of law that endows elegiac love with the status of the sovereign exception. To some extent, Latin love elegy anticipates the juridico-political milieu of the Principate. It is no coincidence that elegiac poets

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already described the lover as a homo sacer. In fact, Agamben (1998: 86) points out that: [w]hen the Latin poets define lovers as sacred . . . this is not because they are accursed or consecrated to the gods but because they have  separated themselves from other men in a sphere beyond both divine and human law. Originally, this sphere was the one produced by the double exception in which sacred life was exposed.

This is a fascinating interpretation of the ‘sacredness’ of the elegiac lover that is worth examining further. The elegiac lover is sacer in Tibullus 1.2.29–30 (quisquis amore tenetur, eat tutusque sacerque / quamlibet, ‘whoever is caught in love, he should go wherever he likes, safe and sacred’). The couplet resonates with the formulaic language of edicts and legal ordinances (cf. Digest 5.6.1 quisquis susceperit restitutam hereditatem ex senatus consulto . . . fideicommissaria hereditatis petitione uti poterit. ‘Anyone who receives an estate which has been delivered in accordance with a decree of the Senate . . . will be able to make use of the action for the recovery of an estate founded upon a trust’; 7.2.6.2.1 quisquis amiserit, ad proprietatem reuertetur, ‘if anyone loses the usufruct, it will return to the property’; 31.1.88.10.1 quisquis mihi heres erit, sciat, ‘whoever may be my heir, he should know’; 8.5.4.4.2; 28.2.3.2.4). Whoever is the property of passion (note that the ex­amples from the Digest refer to property and inheritance law) is free to go wherever he wants, since as an amator sacer he lies outside the constraints of human law. The unusual rhythm of Tibullus 1.2.29 with its four weak caesuras and the repetition of que adds to the solemnity of the line (see Maltby 2002 ad loc.). The poet virtually announces the edict that ratifies the lovers’ sacrosanctity. The motif of seruitium amoris is implied in amore tenetur and contrasts with the absolute freedom (quamlibet) of anyone possessed by love. At the same time, teneri with the ablative means to be caught in a situation of wrongdoing or to be convicted of a crime (see OLD s.v. teneo 6).40 What is more, the ablative with teneri can 40 Cicero, Part. or. 117 ne argumentis teneretur reus; Tacitus, Ann. 3.13 si teneretur maioribus flagitiis; Suetonius, Calig. 16.2 qui minore culpa tenerentur. See also Gebhardt (2009: 176, 317).

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refer either to the crime committed or to the law or statute under which one is liable (see Berger 1953 s.v. teneri).41 In other words, in quisquis amore tenetur, love can be both the crime and the legal code under which one is to be convicted. The level of indistinction between law and crime points to amor as the originary act of legislation. Those liable to amatory passion are safe and free to go wherever they like, and the lover is a homo sacer who lives in a state of exception. Tibullus is using legal language in order to emphasize the lover’s exemption from the juridical order as well as love’s sovereign power. Amatory jurisdiction frees the elegiac poet even from the laws of nature: the lover is not affected by cold, rain, or hardships, provided that his mistress opens her door (Tibullus 1.2.33–4). The simultaneous exposure and inviolability of the sacred lover exemplify the confluence of bare life and sovereign power. Similarly, Propertius 3.16 revolves around the ambiguities of the sacred lover and the interplay of sacrosanctity and bare life. The poem begins with a letter from Cynthia, a ‘midnight summons’ (Heyworth and Morwood 2011: 264), ordering Propertius to turn up without delay (1–2).42 Propertius is not sure whether he should risk travelling at night and facing the danger of assault or postpone the journey and face his mistress’s violence (5–10). When he sinned once in the past, the poet recalls, his mistress banished him for a year (9 peccaram semel, et totum sum pulsus in annum, ‘I sinned once and was banished for a whole year’). The fear of the bandits’ violence if he obeys the mistress’s commands parallels the fear of her violence if he disobeys.43 The lover’s life is exposed to the cruel­ty of his sovereign mistress or to the criminal activity of outlaws. Echoing Tibullus, Propertius then (3.16.11–20) refers to the in­viol­ abil­ity of lovers who can go everywhere without fearing criminals or the barbaric Scythians (see 3.16.11–12 nec tamen est quisquam sacros qui laedat amantes; / Scironis media quis licet ire uiam, ‘and yet there is no one to harm sacred lovers; they may walk in the 41 Tacitus, Ann. 3.30 si lege maiestatis teneretur; Gaius Inst. 4.116 ut quis iure ciuili teneatur. See also Vergil, Aen. 1.675 (Dido) magno . . . teneatur amore. 42  The love letter has the force of law. On this aspect of elegiac letters, see Chapter 4. 43 Cf. 3.16.6 ut timeam audaces in mea membra manus, ‘though I fear violent hands against my body’ with 10 in me mansuetas non habet illa manus, ‘she does not wield merciful hands against me’, with Heyworth and Morwood (2011: 266).

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middle of Sciron’s way’). It is allowed or it is lawful (licet) for them to approach the notorious bandit Sciron, who in this case will not harm them. The irony is that anyone can kill a homo sacer without even committing a crime. As a sacred man, the lover has separated himself from other men in a sphere beyond human law, an exclusion from law by the law initiated by the mistress’s summons (cf. Agamben 1998: 86). The law relegates the lover to a sphere outside legal boundaries and thus gives him absolute freedom and in­viol­abil­ity by excluding him from the juridical order. As an exile from law, the lover has paradoxically the right to travel safely wherever he wishes, but he can also be killed without any law being broken. At the same time, there is something fundamentally similar between an outlaw like Sciron or barbarians who live outside the jurisdiction of the Roman Empire and the elegiac lover. Bandits and lovers are often consigned to a lawless wilderness, and it makes sense if they do not harm each other. The thief, after all, is the reflection of the adulterer. The inviolability of sacred lovers brings together two complementary, albeit antithetical aspects of their legal status. Their sacrosanctity both protects them from crimes against them and exposes them to dangers that lie outside legal boundaries. The poem vacillates between the safety of sacred lovers and the possibility that Propertius may be killed in his attempt to follow love’s injunction. In the last part (21–30), Propertius indulges in a fantasy of his funeral. The contrast between the sacrosanctity of lovers and their exposure to life-threatening dangers contributes to Propertius’ indecisiveness, which is a main preoccupation of the poem. The lover is ordered to act without delay in response to Cynthia’s summons, but the very existence of Propertius 3.16 is evidence that he disobeys her orders. The elegy is the delay that breaks Cynthia’s rules—the mora that jeopardizes Propertius’ amor. But there is more to 3.16 than the poet’s wavering. Propertius perceptively points to the fundamental similarities between the sacrosanctus and the homo sacer. The lover is simultaneously above and under the law, but his life is in any case liable to the sovereign rules of extrajuridical desire.

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In Ovid, the sacrosanctity of the poet and that of the prince exist in parallel, if not in tension. On 5 February, Ovid begins his praise to Augustus as follows: sancte pater patriae, tibi plebs, tibi curia nomen hoc dedit, hoc dedimus nos tibi nomen eques Fasti 2.127–8 sacred father of the fatherland, the plebeians gave you this name, the senate gave it and we knights.

The reference is, of course, to the title pater patriae conferred upon Augustus (cf. Res Gestae 35),44 but sancta and plebs further evoke the prince’s tribunician sacrosanctity. The praise of laws flourishing under Augustus (Fasti 2.141 florent sub Caesare leges) and the mention of the marriage legislation (Fasti 2.139 castas duce se iubet esse maritas, ‘as a leader he orders wives to be chaste’) are also reminiscent of Augustus’ tribunicia potestas. But in the Ars amatoria, the adjective sanctus refers to the majesty of older poets in a way that evokes the power of the prince (Ars 3.407–8 sanctaque maiestas et erat uenerabile nomen / uatibus, ‘the poets had sacred dignity and a venerable name’).45 From 2 bce onwards, Augustus appropriated the maiestas populi Romani, the greatness of the Roman people whose infringement was a capital offence. With a process that was unclear but most likely related to his tribunician sacrosanctity and his status as pater patriae, Augustus became the embodiment of maiestas.46 An offence against the prince was an offence against the Roman people. By attributing sancta maiestas to the old poets, Ovid claims the primacy of sacrosanctity for the uates, not the emperor.47 Ovid’s Ars amatoria alludes here to Horace’s Ars poetica 391–401, a 44  Robinson (2011: 146–7) notes the similarity between Fasti 2.127 and Augustus, RG 35. On Ovid’s commemoration of Augustus as pater patriae in Fasti 2, see Dolanksy (2016) and Chapter 7. 45 The praeceptor, as Downing (1993: 48) points out, is redolent with Augustan allusions, casting himself as ultor (‘avenger’) at Ars 1.24 and dux (‘leader’) at 1.382. 46  See Bauman (1974: 1–24); cf. Bauman (1967: 171–92). Ovid’s Polyhymnia personifies and praises Maiestas in Fasti 5.11–52 against the background of the shift from the maiestas of the people to the majesty of the prince; see Mackie (1992); Pasco-Pranger (2006: 228–40). 47  Gibson (2003: 267) notes that Ovid is the first to use maiestas in reference to literary figures.

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passage that refers to legendary bards as the first marriage legislators.48 Horace mentions sacred Orpheus (391–2 sacer . . . Orpheus) in the context of marriage laws, drawing a clear parallel with Augustus’ sacrosanctity and his marriage legislation. Ovid, by contrast, claims the poets’ sacred majesty in a poem about the rules of extramarital affairs. Matthew McGowan (2009: 153–67) examines Ovid’s self-­presentation as a uates sacer in the exile poetry, arguing that the poet’s references to the sacredness of his role as a uates counterbalance the divine status of Augustus.49 For McGowan, the figure of the sacred seer is part of the exiled Ovid’s strategy to draw a distinction between divine poetic justice (fas) and the rule of law in imperial Rome (ius). This distinction elevates poetry to a status that is exempt from imperial legislation. An often quoted couplet from the Tristia declares the limits of Augustan law: ingenio tamen ipse meo comitorque fruorque Caesar in hoc potuit iuris habere nihil Tristia 3.7.47–8 But my talent is still my companion and my joy: Caesar could have no jurisdiction over this.50

By declaring a state of exception from Roman law, Ovid endows his poetry with legislative sovereignty. His references to the sacredness of his poetry should be read against the background of Augustus’ tribunician sacrosanctity. The poet is outside the juridical order and that is why his poetry can prescribe the limits of legality. In the exile poetry, Ovid occupies two antithetical, albeit complementary 48  I discuss this passage in Chapter 8. Gibson (2003), commenting on Ars 3.407–8, quotes Horace, Ars 400–1 honor et nomen diuinis uatibus atque / carminibus uenit, ‘honour and renown fell to divine bards and their songs’. 49 For sacer uates, see Hor. Carm. 4.9.28 uate sacro; Tib. 2.5.114 uati parce, puella, sacro, ‘Girl, spare the sacred poet’; Ov. Am. 3.9.17 at sacri uates et diuum cura uocamur, ‘but we are called sacred bards and the care of the gods’; Ars 3.403 sacris . . . poetis. 50  Roman (2014: 1–2) begins his book by quoting and discussing Tr. 3.7.45–8; see also his chapter on Ovid’s autonomist poetics (2014: 238–61). McGowan (2009: 121–67) quotes this couplet at the beginning of his chapter on space, justice, and the legal limits of empire. Tuori (2016: 80) notes that while Ovid demonstrates that Augustus can control his body but not his mind, he exerts power over Augustus by defining his public image.

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positions with respect to Roman law. On the one hand, he is physically removed to an area that lies outside Roman jurisdiction; on the other, he is mentally beyond the confines of imperial legislation. He is relegated to the lawless dystopia of Tomis, a traumatic banishment from the juridical order, but at the same time he celebrates the exclusion of his poetic genius from the laws of Augustus. In his exile from Roman law and order, he lives the bare life of a homo sacer; yet at the same time his exemption from imperial jurisdiction elevates him to the status of sovereign sacrosanctity. When the love poet suffers as an exile from Roman law, poetry is the key that gives access to a state of exception. We could barely find a case study from the Roman Empire other than Ovid’s exile that better exemplifies Agamben’s confluence of bare life and sovereign exception. Michèle Lowrie (2007a) examines Agamben’s concept of homo sacer and its relationship to sovereign power against the background of Republican Rome. She puts Agamben’s theory to the test (Lowrie 2007a: 55), arguing that: sovereignty was not a pre-existing entity at Rome in the Republican period, but rather emerged in this troubled period from the repeated states of exception. Augustus clearly holds sovereignty in the form delineated by Schmitt and expanded on by Giorgio Agamben in Stato di eccezione. Augustus may in fact provide the foundational model for this problematic.

By becoming sacrosanctus, Augustus is not just a paradigm of sovereignty in line with Schmitt’s and Agamben’s theories, but the ruler who defines sovereign power as the suspension of the juridical order. The sacrosanctity of the elegiac poets coincides with the constitution of sovereign authority by Augustus. As Lowrie (2007a) argues, while in the Roman Republic sovereignty was theoretically divided between the Senate and the Roman people (SPQR), but in practice had no stable location, it eventually crystallized in the person of Augustus. Elegy’s claims to sacrosanctity may suggest the fluid source of sovereignty in the Roman Republic, but it is for this very reason that the Roman elegiac poets upset the prince’s political plan to stabilize, monopolize, and embody sovereignty. The uates

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sacer precedes and to some extent pre-empts the prince’s imperial ambitions.

The Saturnalian Exception Roman elegy fills the gap created by the suspension of the juridical order. In the Roman calendar, days were divided depending on whether legal action could or could not happen. This is a distinction of fundamental importance in Roman elegy. The contrast between otium (‘leisure’) and negotium (‘business’) is ultimately a contrast between legal business and its suspension. The elegiac otium is thus a state of exception. Ovid’s Fasti is a case in point, even though with his elegiac calendar Ovid moves from love to aetiology. The title (Fasti) draws attention to the division of the calendar according to days on which legal action can take place and holidays on which legal action is suspended. Moving in and out of the legal system is one of elegy’s most salient preoccupations. The Fasti’s focus on festivals, on otium (‘leisure’) instead of opus (‘work’), draws attention to elegy’s obsession with the temporary suspension of legal ­procedures. But the focus on Roman festivals that suspend legal action does not render the Fasti indifferent to legal procedures. Quite the contrary—Ovid’s elegiac calendar, as Gebhardt (2009: 283–303) shows, is rife with legal diction and action. The suspension of legal procedure creates a vacuum that is inevitably occupied by law. Elegy’s affinities with Roman comedy are important for understanding the genre’s fundamental links to the suspension of legal action. Critics have studied the influence of Roman comedy on Latin love elegy (e.g. Konstan 1986; Yardley 1987; James 2012a), focusing mainly on gender, subjectivity, and characterization. But more work needs to be done on the ways in which elegy reproduces the Saturnalian spirit of Roman comedy.51 Since Erich Segal’s book (Segal  1968), scholars have been aware of the importance of the 51 Ovid draws attention to the Saturnalian spirit of his poetry in Tristia 2.491–6. Scheidegger Lämmle (2014: 341–5) argues that Martial incorporates Ovid’s work into the framework of his own Saturnalian poetics.

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suspension of legal action for the carnivalesque world of Roman comedy. Work in the forum comes to a standstill, so that festive merrymaking may begin. The interruption of legal procedures is a requirement for the production of comedy. Yet the world of Roman comedy is anything but devoid of legal issues, as it constantly reflects on the ambivalent role of love in breaking and making law.52 Comic action is the result of law’s creation of a state of exception. Law’s creation of a specific time that lies outside the law does not result in anomie, but creates space for the institution of the rule of comedy, the laws of leisure and pleasure. That pleasure rules during the suspension of legal procedures further relates the rule of comedy to sovereign power and originary acts of legislation. Netta Zagagi (1980: 106–31) studied the juridicization of amatory motifs in Plautus and further argued that Latin love elegy is inspired by Plautus’ innovation of introducing juridical elements to extramarital affairs. Her discussion of Plautus’ courts of love is certainly worth considering as a precursor to Ovid’s elegiac courtroom. Particularly compelling is her argument about the juridicization of seruitium amoris. For Zagagi, this motif existed before, but Plautus gave it a legal color. When the young Pistoclerus surrenders to the courtesan Bacchis, Plautus employs the technical language of mancipatio, the formal act of transferring property (Bacchides 92–3 mulier, tibi me emancupo: / tuo’ sum, ‘Woman, I transfer myself to your possession through mancipatio: I am yours’, transl. Zagagi). Amatory slavery is dressed in legal language. In the Pseudolus, Venus has her own law court in which she tortures enslaved lovers. The young Calidorus explains that his case is under Venus’ jurisdiction (13–15 CALI. misere miser sum, Pseudole. PS. id te Iuppiter / prohibessit! CALI. nihil hoc Iouis ad iudicium attinet: / sub Veneris regno uapulo, non sub Iouis, ‘CALI. How miserable I am, Pseudolus! PS. Jove forbid! CALI. This is not a case for Jupiter! It is under Venus’ jurisdiction that I am sentenced to servile flogging, not under Jupiter’s’, transl. Zagagi). The joke here depends upon the strictly defined spheres of judicial magistrates. Calidorus speaks of 52  On Roman law in comedy, see Karakasis (2003); Rosenmeyer (1995); Zagagi (1980: 106–31); Gunderson (2015: 87–93); Gaertner (2011); Ziogas (2016b: 219–20).

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Venus as of a praetor in charge of the administration of justice in cases involving lovers; it is in this capacity that she sentenced him to servile flogging (Zagagi 1980: 115). Ovid is certainly inspired by comedy’s juridicization of amatory motifs. The legal procedures of property law feature prominently in the elegiac seruitium amoris (e.g. Am. 1.4.39–40; 2.5.29–34; Her. 20.143–8), and Venus’s proximity to law courts is highlighted in Ars 1.79–88. Zagagi is concerned with establishing Plautus’ originality against the background of Greek New Comedy. The legal color of the lover’s discourse is thus a Plautine element in Plautus (Plautinisches im Plautus). The point of this innovation has to do with comedy and humour. For Zagagi, there is a tension between the emotive power of amatory discourse and the technical terminology of Roman law. This appealed to Plautus’ legal-minded audience (Zagagi  1980: 114). Zagagi is certainly right to relate Plautus’ juridicization of amatory motifs to comedy, but there is more to it than an incongruous addition of legal obligations to free love. Plautus’ laws of love are closely related to the Saturnalian suspension of legal action that enables a return to a prejuridical condition. His innovation, if it is an innovation, takes us back to the very roots of the Saturnalian spirit, which affords space for staging the birth of the juridical order by means of its suspension. In other words, this is an innovation that is not just funny, but further reveals that there is truth in comedy. Law is not added to love as an absurdity. Quite the contrary— love affairs can only be perceived in terms of law’s emergence, in terms of a juridical order that draws a distinction between master and slave, leisure and labour, or pleasure and pain.53 Latin love elegy elaborates on Roman comedy’s juridicization of amatory motifs. The elegiac lover resembles the adolescens of the comic plot, a young man driven by his extramarital love to defy the old laws and morality of strict old men. Catullus 5 or Propertius 2.30.13–18 clearly replays this comedic scenario. The tricks and deceits of the amator (the Ovidian amator in particular), in 53  On taking legal discourse in Roman comedy seriously, see Gunderson (2015: 89–93). See also Batstone (2009: 214), who notes that legalistic language in Roman comedy is more than parody. For Batstone, what we experience as parody is actually realistic illusion, because the ‘real’ world of legal agreements in Rome is flagrantly constructivist.

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com­bin­ation with the motif of seruitium amoris, further point to a less well-examined connection between the elegiac lover and the cunning slave of comedy. Love thus reduces the elegiac amator to the legally dependent position of a young man or the powerless position of a slave—the only way he could participate in legal pro­ ced­ures is by being tortured. But in the state of exception in which Roman comedy and elegy thrive, the slave turns the tables and rules over his masters and mistresses. The elegiac amator constantly shifts from the bare life of his enslaved existence to the sovereign power of his extralegal status. Elegy systematically empowers legally disabled individuals. The elegiac puella, for instance, has many similarities with the meretrix from comedy (see James  2006). Courtesans (meretrices) were branded with infamia and were thus legally powerless.54 The fact that the puella/meretrix becomes the domina of her enslaved lover and lays down the laws of love further draws attention to the intriguing relationship between sovereign power and exclusion from legal procedures. Pimps (lenones/lenae) were also branded with infamia. As McGinn (1998: 65) puts it, pimps and prostitutes felt the fullest brunt of the social and legal ramifications of infamia, suffering from every form of legal disability the Romans devised. From that perspective, the fundamentally juridical discourse of the elegiac lena challenges her legally powerless position in Roman society. The lena exemplifies the confluence of magic and law, discourses that use powerful language in order to shape and change the natural order and social relationships (see Chapter  4). Propertius’ Acanthis ‘boldly imposes her laws on the enchanted moon’ (4.5.13 audax cantatae leges imponere lunae). Ovid’s Dipsas instructs her young protégée, employing language that competes with the juridical discourse of the praeceptor amoris.55 Her future imperatives, for instance, or the verb caue (Am. 1.8.69–72, 85) are the language of legal injunctions or the advice of a legal expert.56 54  Cf. Strong (2016: 6, 15). On prostitution in Rome, see also McGinn (1998); Strump (1998); Faraone and McClure (2006). 55  On the lena as the elegiac poet’s alter ego, see Myers (1996); cf. O’Neil (1998); Fear (2000). 56  On the legal meaning of cauere and capi, see Ars 1.83–4 and the discussion in Chapters 4 and 6. On future imperatives as the language of legal injunctions, see Chapter 3.

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The procuress orders the girl to ‘burn the men she captured with her laws’ (Am. 1.8.70 captos legibus ure tuis). The lena knows that the law is potent language that can ‘burn’ men who are trapped in its meshes. In this context, captos means ‘caught in law’s traps’ (see Chapter 4 and 6). The instrumental ablative legibus should be construed both with captos and with ure (‘burn with laws those trapped by laws’). Burning a man in accordance with legal procedure further implies that the captivated lovers are reduced to the status of slaves. Being the slave to a girl makes the lover infamis, a social degradation which Ovid is happy to accept (see Amores 2.17.1–4). Pimps and prostitutes, people who are excluded from the structures of law and whose bodies can suffer violence that does not concern the law, have the power to enforce their laws in Latin love elegy. By contrast, the elegiac lover, a Roman citizen, is reduced to servitude and infamia. The reversal of social roles and hierarchies in Roman elegy (a woman dominates a man or a Roman citizen is the slave of a courtesan)57 as well as the double role of the lover as both a slave and a sovereign legislator results in an indeterminacy of subject and object that is crucial for understanding the links of Latin love elegy to the emergence of the law. As Agamben (2015: 36) notes, in the Saturnalia it is possible to see not only a state of suspension of the law but also, by means of this very suspension, the re-emergence of a sphere of human action in which not only master and slave but also subject and object, agent and patient are indetermined. The  Saturnalia is a return to the Golden Age of Saturn (see Dolansky 2011: 495–8). This was an age of justice before the existence of laws (see Ovid, Met. 1.89–94, with Chapter 5). Saturn’s reign was a happy era because, as Macrobius (Saturnalia 1.7.26) puts it, ‘no one was yet distinguished by servitude or freedom’ (nondum quisquam seruitio uel libertate discriminabatur). Elegy’s Saturnalian poetics aims to restore a golden age of justice. Building on Hegel (1977: 115–16), Agamben (2015: 36–7) argues that what is at stake in the relationship between master and slave is 57  Of course, the lover’s claim that he is the slave of his domina is a strategy for dominating the puella; see Greene (1998); Wyke (2002: 155–188); Fredrick (1997); James (2003: 184–210).

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enjoyment (Genuss). While the roles of master and slave are distinct in the juridical order, in the Saturnalian/elegiac world they tend to be interchangeable, if not undecidable. This indeterminacy is often accompanied by a collapse of the distinction between pleasure and pain. The masochism of the elegiac lover, for instance, exemplified in his voluntary servitude,58 entails a neutralization of the juridical order by blending pleasure with pain (cf. Agamben 2015: 36, citing Deleuze). For Hegel and Agamben, what makes it possible to break the intimate bond of master and slave and separate the two positions is a distinction between labour/pain and leisure/joy. That Latin love elegy is obsessed with both drawing and confounding the  boundaries between labour/suffering/servitude and leisure/ pleasure/freedom points precisely to the state of exception. Elegiac discourse revolves around the joy of sex (gaudia), which should ideally be mutual and thus turn lover and beloved into an inseparable item. In her analysis of Propertius 2.15.1–24, a clear description of lovemaking, Erika Zimmerman Damer (2019: 138–41, 143–4) shows how the lovers’ indissoluble embraces are a challenge to embodied subjectivity, but also how quickly elegiac sex moves from mutuality to domination. Zimmerman Damer (2019: 145–8) further discusses how lovemaking erases any separation of lover and beloved by erasing their distinct agencies.59 She considers the ways in which the elegiac poet obscures distinctions between bodies and actions as typical of elegy’s utopian moments, but I think there is more to it. Sex in elegy corresponds to what Agamben (2015: 36–7) calls ‘community of life’ (κοινωνία τῆς ζωῆς), a state in which the body of the master and that of the slave, distinct in the juridical order, tend to become undecidable. But the discourse of domination along with juridical definitions resumes right after the mutuality of sexual pleasure is inevitably succeeded by constructions of asymmetrical social roles. Enjoyment, Hegel’s Genuss, or sexual pleasure, elegy’s gaudia, is a return to a reality before the law, a condition that also lays the foundation of juridical hierarchies. 58  For the elegiac lover’s masochism, see, for instance, Tibullus 2.5.110 faueo morbo cum iuuat ipse dolor, ‘I favour sickness, while pain itself is joy.’ 59  She makes this point in discussing Tibullus 1.1, the poet’s programmatic exhortation to lovemaking.

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Conclusion The elegiac refusal to engage with the world of law has been interpreted as love’s indifference to legal structures and rituals. This chapter challenged this view. It started by noting that the poets’ rejection of the law is deeply embedded in forensic discourse and cast in a courtroom setting. It thus follows the pattern of recusationes that ostensibly deny but simultaneously appropriate. Just as poets often make a show of their ability to compose epic, while denying that they have the powers to sing of wars and men, Propertius and Ovid reveal the juridical nature of love elegy in their refusals to follow old-fashioned legislations. The simultaneous denial and appropriation of legal discourse follows not only the well-trodden path of recusationes, but is also related to Augustan politics and, more specifically, to the creation of law from the matrix of a sovereign exception. The elegiac poets not only reflect but also anticipate Augustus’ ostensible denial of exceptional powers, a dis­ avowal which is the foundation of the prince’s extraordinary authority. The elegiac recusatio of Roman law is defining a state of exception that constitutes sovereignty. This exclusion from the juridical order further highlights the similarities between two extremes: the lover/love poet, whose life, like the life of the homo sacer, does not concern the law, and the sovereign, whose sacrosanctity sets him outside the juridical order. Latin love elegy systematically confounds the distinctions between master and slave, man and woman, active and passive, sovereign exception and bare life. This indetermination points not only to the subversion of social and legal hierarchies, but also to the suspension of the juridical order. This suspension is a return to a prejuridical condition, to a state in which pleasure emerged as the mother of all laws.

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3 The Courtroom in the Bedroom Introduction Chapter 2 examined the ways in which Roman elegy creates a state of exception from law. This state of exception is related to the ­sacrosanctity of the elegiac poet/lover and functions as a foil for Augustus’ tribunicia potestas. The suspension of the juridical order is the foundation of sovereignty. By means of this suspension, the elegiac poets and the prince aim to control the production of law by setting themselves outside it. This chapter examines the distinction between what lies inside and outside the juridical order as a contrast between public and private affairs. Love elegy turns private life into public discourse but also claims that lovemaking should be protected from the prying eyes of Roman law. The privacy of the bedroom symbolizes the autonomy of love and love poetry, an independent area under love’s jurisdiction. At the same time, love’s jurisdiction spreads from the carefully prescribed privacy of the bedroom to occupy the city of Rome and all aspects of public life. The laws of Roma and Amor are seemingly opposed but actually mirror each other. The question is whether Roman law regulates love affairs or love gives birth to Roman law. In an important study of private life in the Roman Empire, Paul Veyne argues that the division between public and private life, as people living in the Western world perceive it, does not correspond to the sociopolitical structures of ancient Rome.1 For Veyne (1987: 105), 1  See Veyne (1987: 1–234), especially the chapter ‘Where Public Life Was Private’ (1987: 95–115). On the invention of private life in the age of Augustus, see Milnor (2005). On public and private in the Roman house and society, see Tuori and Nissin (2015). On the Roman Empire’s inward turn, see Rimell (2015). Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0003

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neither in Roman law nor in custom was there a clear dividing line between public and private life. The unclear distinction between private and public in family and friendship ties resembled more the world of the mafia or organized crime than modern sociopolitical systems in the West. The dividing line is drawn when philosophers, both Stoic and Epicurean, opt for a retreat from the busy world of the forum, a retreat that, in Stoic terms, has the power to elevate the self-sufficient individual to the status of the sovereign king. Thus, morality is internalized and becomes private and self-regulated (cf. Cicero, De officiis 1.69–70). The elegiac poets pick on this division and press their claim for the privacy and autonomy of a life devoted to love. Augustan legislation should be studied against the emergence of a private sphere in philosophy and poetry. A central aspect of the prince’s political agenda was to make all aspects of his private life public. Rome is the family of Augustus, the father of the fatherland, and all Roman citizens are children under his jurisdiction. The moral legislation constitutes a major intrusion into the family lives of Roman citizens at the time of the emergence of a private life.2 Before the lex Iulia, sexual offences were dealt with by a iudicium domesticum conducted either by the father of the offending woman (if she were in his potestas) or by the husband (if she were married with manus or if she were sui iuris). For the first time in Roman history, a standing criminal court (quaestio perpetua de adulteriis) was established to try adultery cases (see McGinn 1998: 141). What was previously a domestic issue under the jurisdiction of the pater familias or the husband became the business of the state. The edict with which Augustus condemned his daughter Julia for breaking the adultery laws shows that all private affairs, even those of the imperial family, are exposed to public scrutiny.3

2 Contra Matringe (1971: 208), who argues that the exceptional character of imperial intervention left practically intact the traditional patria potestas. In my view, it is precisely the exceptional character of imperial intervention that undermines and appropriates the trad­ ition­al patria potestas. 3  Cf. Seneca, Ben. 6.32.1 Diuus Augustus filiam ultra impudicitiae maledictum impudicam relegauit et flagitia principalis domus in publicum emisit. ‘The deified Augustus banished his daughter, who was shameless beyond the indictment of shamelessness, and made public the

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Ovid comments on the public openness of the imperial house in the following couplet from his exile poetry: gaudia Caesareae gentis pro parte uirili sunt mea: priuati nil habet illa domus Ex Ponto 2.1.17–18 The joys of the Caesarean family are mine as far as my manly part is concerned: this house has nothing private.

This couplet shows that Ovid was provocative even in the predicament of his exile. In Latin elegy, the plural noun gaudia commonly describes sexual joys and pars uirilis (which Wheeler and Goold translate in the Loeb as ‘to the extent of my capacity’ and Martelli 2013: 199 ‘for the most part’) means ‘male sexual organs’ (OLD uirilis 1b; cf. Adams 1982: 70). Interestingly, pars uirilis often refers to male organs in the context of castration (see Lucretius 6.1209 uiuebant ferro priuati parte uirili ‘They went on living after they severed the manly part with iron’; Seneca, fr. 43, p. 425 Haase; Columella, Rust. 7.11.2). Ex Ponto 2.1.17–18 alludes to Lucretius 6.1209. The end of the hexameter with parte uirili in Ovid echoes the end of De rerum natura 6.1209. The nominative plural priuati (‘severed’) in Lucretius seems identical to the partitive genitive priuati (‘private’) in Ovid. The words look the same but differ in number, case, and meaning. The Lucretian intertext suggests the plight of Ovid’s masculinity in the exile poetry. Like those who choose to castrate themselves because they are infected by the plague in Lucretius, Ovid suffers from the debilitating pestilence of his exile. The mention of his private parts against the Lucretian intertext implies that he is deprived of them, just as the prince’s house has no privacy. Ex Ponto 2.1 is about Tiberius’ Pannonian triumph (12 ce): these are Augustus’ household joys that Ovid shares thanks to rumour’s reports (see Lowrie  2009: 268–9). But the lack of privacy in Augustus’ household in combination with the sexual innuendo of

scandals of the imperial house.’ See also Velleius Paterculus 2.100.3; Pliny, HN 149; Suetonius, Aug. 65.1–4

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the couplet may recall less triumphal secrets of the imperial family that rumour publicized as well. Augustus, the Caesar who opened his house to public view,4 had to punish his daughter Julia, who was rumoured to have had sex with strangers in public, on the rostra on which her father had delivered his moral legislation (Dio Cassius 55.10; Seneca, Ben. 6.32). The sexual joys (gaudia) of the imperial family can be shared with Ovid, provided that his private parts are up to it. With diction full of double entendre, the couplet highlights the utter collapse of the public and private sphere. In the exile poetry, Ovid points out that the emperor’s house has become part of the public domain in the newly reshaped cultural landscape of the city, as McGowan (2009: 158) puts it. Blurring the distinction between public and private life is a crucial aspect of Ovid’s exile poetry (see Martelli 2013: 197–210). Ovid was punished for a private wrong in a public fashion. His letters are also presented as private correspondence, but have obviously been read and circulated widely (cf. McGowan  2009: 131). The relationship between Ovid and his addressees reproduces the relationship between the elegiac lover/poet and his mistress. The publication of Latin elegy, the medium of both communications, exposes private affairs to the limelight. Latin love elegy revolves around the tensions involved in striking a balance between public and private domains. The same tension lies at the heart of Augustus’ moral reforms. The laws of Augustus, while trying to regulate marriage and childbirth, were responding to the emergence of the distinctive discourse of sexuality, a discourse that dissociates sex from procreation (see Chapter  7). As Thomas Habinek (1997: 29) notes, Augustan moral legislation was an act of cultural appropriation, since it disembedded sexual behaviour from its familial context, where it had been traditionally regulated, and instead described it as a freely chosen activity between legal persons, one subject to the scrutiny and regulation in the public sphere. Similarly, Latin love elegy aims at regulating love affairs between legally independent persons. By stripping eroticism of all 4  See Dio Cassius 55.12.15 Ὁ δὲ Αὔγουστος τὴν οἰκίαν οἰκοδομήσας ἐδημοσίωσε πᾶσαν. ‘When Augustus had built his house, he made it entirely public.’

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family obligations,5 love elegy, not unlike Augustan legislation, ­disembeds sexuality from family ties. It thus creates an autonomous and private domain for sexual liaisons. This sociolegal shift is the key to what Habinek (1997) calls the invention of sexuality in the world city of Rome. As sex appears as a discrete area for exploration and regulation, it demands a private space for action (cf. Habinek 1997: 38–43). The privacy of the bedroom in Latin love elegy is closely related to the discursive independence of sexuality. The autonomy of the elegiac discourse needs to be studied against this social evolution. Building on Habinek (1997), Luke Roman (2014: 248–9) argues that Ovid’s organization of erotic discourse intensifies the autonomist self-preservation of elegiac poetry.6 We get the sense, Roman adds, that love is played like a game for its own sake. In his excellent book, Roman argues that ‘autonomy’ more accurately describes Ovidian elegy than subversion or resistance, but his focus on the metapoetic definition of autonomy deprives Ovidian elegy of its power to shape the sociopolitical and juridical order of Augustan Rome due to its autonomous status. Like the legal discourse about regulating sex in the Roman Empire, Latin love elegy not only reflects social evolution but is also an active attempt to reform sexual rules, roles, and mores. Poetic autonomy is key to understanding elegy’s juridical ambitions because the discursive independence of love elegy is not simply about securing a private space for writing love poetry just for the sake of it,7 but a statement of sovereign exception. Asking for a space that lies outside the law is the most powerful way of controlling the space that is ruled by law.

5  Barchiesi (2006: 99), who further points out how remarkable it was for Ovid to conceive a panoramic text about love in Rome (the Ars amatoria) without reference to family ties. On the polarity between love and the family in Ovid, see O’Gorman (1997); cf. Gardner (2010) on the ways in which Roman elegy configures the household (domus) as a response to the reconfigurations of the Roman family in the Principate. 6  On Ovid’s politics and poetics of self-sufficiency, see also Armstrong (2004); Sharrock (2002: 227). 7  Roman (2014) has a much more sophisticated and perceptive take on autonomy than this. Note especially his discussion of Adorno (1991: 39–40), who points out that art’s autonomy is the inverse image of the social phenomena from which it seeks to detach itself (Roman 2014: 7–8); cf. Lowrie (2009: 248); Platter (1995).

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The privacy of the bedroom, a sacred space that the prying eyes of the law should not penetrate, is at odds with the public aspect of Ovid’s courts of love. One of the paradoxes of Ovidian elegy is that, whereas it advertises an autonomous space for sexual intercourse, it gives more information about the private affairs of the bedroom than Tibullus and Propertius.8 Roman (2014: 243–5) notes that Ovid’s repositioning of elegy concerns the settings and milieu of erotic activity. The bedroom is no longer the snug, exclusive niche, kept out of the direct sight of readers. The disrobing of a thinly veiled Corinna in Amores 1.5 is a classic example, but the discussion of the private space of sexual activity in Amores 3.14 or at the end of Ars 2 and 3 is also a distinctly Ovidian addition to Roman love elegy. Of course, these passages reveal as much as they conceal and are prominent examples of Ovid’s endlessly playful attempts to tease his readers, but as readers we are still peeping into the secrecy of the bedroom in a way that was not the case in love elegy before Ovid. The privacy of the bedroom is excluded from judicial proceedings but this exclusion teasingly draws attention to the secrecy of the bedroom and thus compromises its privacy. In the end, the law intrudes into the bedroom, even though—or rather precisely because—sexual intercourse lays claim to autonomy. This chapter examines a selection of elegies from the Amores in order to show how Ovid’s courts of love expose the privacy of secret love affairs to the eyes of the law. I shall also focus on Propertius 1.18, 2.20, and 4.8, which are important models for the courtroom setting of Ovid’s Amores. While a study of legal discourse in Propertius is not the main focus of this book, it is important to show that the legal nature of Latin love elegy is not Ovid’s peculiar creation. Private affairs are simultaneously included in legal proceedings and excluded from Roman law. The paradox of the inclusive exclusion or the public dimension of privacy can shed light on how Latin love elegy sets out to conquer all aspects of public life by claiming a private, self-ruling space for love. 8  This is not to say that descriptions of sex are absent in pre-Ovidian elegy, but Ovid is significantly more explicit than his predecessors. On sexual activity in Roman elegy (Tibullus 1.1, 1.9; Propertius 2.14–16; Ovid, Am. 1.5, 3.14.), see Zimmermann Damer (2019: 113–19, 135–45, 148–68).

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It is my premise that we should read the autonomous status of love elegy vis-à-vis Augustus’ increasingly autocratic powers. Paul Veyne (1991: 57–87) argues that the internalization of morality in the first century ce is the reaction of the aristocracy to autocracy (cf. Edwards 1993: 32, 56–8). In his third volume of his History of Sexuality, Foucault (1988: 39–68) examines the role that philo­ sophers, such as Seneca, Epictetus, and Musonius Rufus, played in this major paradigm shift that opens the way to Christian morality (cf. Treggiari 1991: 215–24, 511–13; Nussbaum 2002; Milnor 2005: 239–84). State laws that are externally imposed are perceived as powerless in comparison with the internal regulation of sexuality. Self-regulating morality is the only meaningful way of preventing adultery. From this point of view, as Catharine Edwards (1993: 57) puts it, the terms of Augustus’ legislation were crude, indeed meaningless. Virtue could never be instilled through imperial legislation. Ovid has been overlooked in discussions of this shift to introspective legality. Yet his love poetry is obsessed with the distinction between the heteronomy of Roman law and the autonomy of in­tern­al­ized morality. This self-regulation of sexuality is not, at least in Ovid’s case, an inward turn that moves away from political concerns, as it is often argued (see Edwards  1993: 32). Ovid is not a philosopher of depoliticization—he is a poet who casts amatory law as superior justice against the background of Augustus’ moral legislation. The amatory jurisprudence of the elegiac poet is not an escape to an apolitical utopia, but a sovereign exception that competes with the prince’s attempts to regulate morality and mon­op­ol­ ize the production of law.

Amores 3.14 In the penultimate elegy of the Amores, the poet creates a court of love that passes judgment on his beautiful and unfaithful mistress.9 The accusation of infidelity resonates with Augustus’ adultery laws and thus the elegiac lover becomes the prince’s doppelgänger by 9  On the courtroom setting and legal language of this elegy, see Gebhardt (2009: 175–7).

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attempting to regulate female sexuality. In view of the lex Iulia, Ovid’s advice is quite provocative. In the poet’s judgment, the display of modesty and the lack of incriminating evidence are enough for establishing a woman’s innocence. The actual act of infidelity is beside the point. If there is no evidence, there is no crime. Such a radical statement is a side effect of the criminalization of adultery under Augustus. Inappropriate public behaviour could be construed as evidence of adultery. Ovid points out that a woman ran no risk if she wore the outward trappings of modesty and kept her adulterous affairs secret. As long as private acts remain private, there will be no incriminating evidence in a public trial. This elegy is an excellent case study for examining the ways in which legal discourse simultaneously defines and blurs the bound­ ar­ies of public and private spaces. By assuming the voice of a censor, the elegiac poet brings up the issue of judging private virtue by its public display. Similarly, the trial setting of this poem highlights the paradoxes of putting private affairs at the centre of public trials. The bedroom was already transformed into a courtroom in Catullus, and Amores 3.14 opens a dialogue with the Catullan corpus in order to highlight the crucial shift from the public display of love affairs to the privacy of the elegiac bedroom.

Ovid the Censor Amores 3.14 highlights the inefficiency of externally imposed regulations in an era that marks the emergence of sexuality and the internalization of morality. Ovid plays the role of a censor, a ­magistrate whose duties involved the supervision of morals in the community (Am. 3.14.3–4 nec te nostra iubet fieri censura pudicam, / sed tamen ut temptes dissimulare rogat, ‘my duty as a censor is not to order that you become chaste, but to ask that you attempt to feign’).10 As a guardian of the mores of Roman citizens, the censor 10  Barchiesi (1988) argues convincingly that Am. 3.11.39 sic ego nec sine te nec tecum uiuere possum, ‘thus I can live neither with you nor without you’ echoes the words of the censor Q. Caecilius Metellus Macedonicus, who, in his exhortation to marriage, said nec cum illis satis commode nec sine illis ullo modo uiui possit, ‘neither is living comfortably with them

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symbolizes the transgression of the boundary that separates public from private life. For Dionysius of Halicarnassus, the Roman office of the censor has no equivalent in Athens or Lacedaemon since the Greek cities draw a distinction between private and public domains:11 Ἀθηναῖοι μὲν δόξης ἔτυχον, ὅτι τοὺς ῥᾳθύμους καὶ ἀργοὺς καὶ μηδὲν ἐπιτηδεύοντας τῶν χρησίμων ὡς ἀδικοῦντας τὸ κοινὸν ἐζημίουν, Λακεδαιμόνιοι δέ, ὅτι τοῖς πρεσβυτάτοις ἐπέτρεπον τοὺς ἀκοσμοῦντας τῶν πολιτῶν ἐν ὁτῳδήτινι τῶν δημοσίων τόπῳ ταῖς βακτηρίαις παίειν: τῶν δὲ κατ᾽ οἰκίαν γενομένων οὔτε πρόνοιαν οὔτε φυλακὴν ἐποιοῦντο, τὴν αὔλειον θύραν ἑκάστου ὅρον εἶναι τῆς ἐλευθερίας τοῦ βίου νομίζοντες. Ῥωμαῖοι δὲ πᾶσαν ἀναπετάσαντες οἰκίαν καὶ μέχρι τοῦ δωματίου τὴν ἀρχὴν τῶν τιμητῶν προαγαγόντες ἁπάντων ἐποίησαν ἐπίσκοπον καὶ φύλακα τῶν ἐν αὐταῖς γινομένων.   Dionysius of Halicarnassus, Roman Antiquities 20.13.2–3 The Athenians gained repute because they punished as harmful to the state the indolent and idle who followed no useful pursuits, and the Lacedaemonians because they permitted their oldest men to beat with their canes disorderly citizens in any public place whatever; but for what took place in the homes they took no thought or precaution, holding that each man’s house door marked the boundary within which he was free to live as he pleased. But the Romans, throwing open every house and extending the authority of the censors even to the bedchamber, made that office the overseer and guardian of everything that took place in the homes.

Dionysius exaggerates when he describes the censor as someone who could freely enter citizens’ bedchambers. The Roman Republic did not have a Stasi-like surveillance apparatus. The censor was a public magistrate, not a spy, but that is why his office raises an important question. How could the censor evaluate Roman citizens’ possible nor is living without them in any way possible’ (see Gellius 1.6.1). While Metellus’ concern is with marriage and childbirth as opposed to pleasure, Ovid’s censorial voice is obsessed with his mistress’s beautiful body and her irresistible immorality. 11  On private and public spheres in Athens and the regulation of sexuality, see Cohen (1991: 70–97), who challenges the view that Athens knew of no ‘private sphere’ free from state regulation.

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behaviour towards their spouses, children, and slaves if he did not have access to their private lives? The result was that private virtue had to be assessed by its public display.12 Since pudor is an internal regulatory force, the censor makes sense only as its externalized embodiment (see Langlands 2006: 18). Ovid picks precisely on this issue and blows it out of proportion. How could a public official police internalized morality? The lover’s censorial pose corresponds to comparisons between the censor and the pater familias (see Edwards 1993: 31). The elder Cato was said to have recommended that men should behave like censors in scrutinizing the conduct of their wives (Gellius 10.23; cf. Cicero, Rep. 4.6.16). Ovid relies on this comparison, but at the same time dissociates it from familial relations in line with elegy’s strategy of disembedding sexual morality from its familial context. Still, the elegiac lover acts as a censor in a way that resonates with Augustus’ moral reforms. The activity of the censors was disrupted in the last century of the Republic (see Wiseman 1969; Edwards 1993: 31), but Augustus made a point of taking censorial responsibility, even though he was not elected a censor. Right after mentioning that Augustus received the tribunician power for life, Suetonius adds: Recepit et morum legumque regimen aeque perpetuum, quo iure, quamquam sine censurae honore, censum tamen populi ter egit, primum ac tertium cum collega, medium solus.   Suetonius, Augustus 27 He was also given the supervision of morals and of the laws for all time, and by virtue of this position, although without the title of censor, he nevertheless took the census thrice, the first and last time with a colleague, the second time alone.

Augustus exercises the duties of a censor without being a censor. Ovid is doing the same. The elegiac lover acts as a censor without being an elected magistrate. The poet and the prince claim cen­sor­ ial authority, bypassing the electoral procedures of the Republic.13 12 Langlands (2006) explores the contradictions in the idea that a woman’s pudicitia needed to be visible and at times proven in a public trial. 13  It is not clear exactly when Augustus acted as a censor; see Janka (1997 ad Ars 2.387–8). If he had not assumed censorial responsibility when Am. 3.14 was written, Ovid’s lover

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Ovid’s censura is pitted against autonomous sexuality and ­in­tern­al­ized morality. The tension between the secrecy of sexual affairs and the censorial branding of degraded citizens is suggested with a pun on nota. In a rhetorical question, Ovid asks why the marks of passion should be visible (33–4 cur . . . collaque conspicio dentis habere notam? ‘Why do I see the mark of a tooth on your neck?’). In an elegy that presents itself as the poet’s censura (2), nota, the punchline of the couplet, evokes the mark of condemnation placed by the censors against the names of citizens degraded by them (OLD s.v. 4).14 Amatory passion functions as a censor branding women with the scars of desire. The nota is the result of sexual activity that takes place in private, not an officially imposed mark of shame. Sex itself assumes the duties of the magistrate, while the censorial Ovid is paradoxically interested in covering the signs of immorality rather than stamping promiscuous women. The cen­sor­ ial nota of erotic passion is shameful only if it functions as a public disclosure of private affairs. The lover in Amores 3.14 casts himself as a censor, but it is love itself that ultimately wields censorial power. This is clearly suggested in Propertius, who laments the fact that his passion for Cynthia has degraded his status as a lover (1.18.7–8 qui modo felicis inter numerabar amantis, / nunc in amore tuo cogor habere notam, ‘I, who lately was reckoned among happy lovers, must now wear a mark of shame in the register of your love’). Once registered in a census of happy lovers (cf. numerabar), Propertius is reduced to infamia. In Propertius 1.18, the mistress is the sovereign judge and censor who condemns the lover to infamia, leaving him to wonder what crime he committed to deserve that humiliation (1.18.9).15 The censorial branding of the elegiac lover not only usurps the power of the Roman magistrate but also creates an alternative code anticipates the prince’s appropriation of the censorship. Ovid refers to Augustus’ censura at Fasti 6.647. 14  Barchiesi (1997: 91) sees a pun on the censor’s nota at Fasti 6.649. 15 For a discussion of Propertius 1.18, see Chapter  2. See Zimmerman Damer (2019: 231–7) on how Ovid (Am. 3.8) employs the legal discourse of infamia to marginalize the miles against the background of his elevated social rank thanks to Augustan legislation as well as her discussion of the relationship between infamia and the representation of elegy’s corporeally abject women.

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of honour, one that is defined by the standards of amatory passion, not by the moral criteria of Roman society.

The Trial Setting The condemnation of unfaithful women in public trials is in tension with the privacy of the bedroom. Against the background of the public display of female modesty and promiscuity, a crucial aspect of Augustus’ moral reforms, Ovid stresses that modesty can be easily displayed in public, but does not have to be performed in private: est qui nequitiam locus exigat; omnibus illum deliciis imple, stet procul inde Pudor. hinc simul exieris, lasciuia protinus omnis absit, et in lecto crimina pone tuo. illic nec tunicam tibi sit posuisse pudori nec femori impositum sustinuisse femur; .  .  .  .  .  .  .  .  .  .  .  .  . . . indue cum tunicis metuentem crimina uultum, et pudor obscenum diffiteatur opus. Amores 3.14.17–22, 27–8 There is a spot that calls for naughtiness; fill that with all delights, and let Modesty stay far away. Once you are out of there, straight away lay all wantonness aside, and leave your crimes on the couch. But there, be not shy of taking off your clothes and allowing thighs to be pressed upon thighs . . . Put on with your dress a face that shrinks from guilt, and let modesty deny the obscene act.

Ovid demarcates a private space which should be given to sexual pleasure and remain inaccessible to judicial inquiry. The denial of the crime evokes the setting of a public trial in which the defendant can repudiate her sexual misconduct thanks to the ­privacy of the bedroom. What remains secret in the trial is published in love elegy; nequitiam locus exigat plays with the textual meaning of locus (‘passage in a text’), especially since it introduces the locus nequitiarum

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(3.14.21–6), the description of sexual positions a woman should not be ashamed to indulge in in the ­privacy of the bedroom.16 In Amores 3.14, the poet/lover is in turns cast as a censor, a plaintiff, a defence lawyer, and a judge. The elegy opens with Ovid stating that he does not object to the infidelity of his beautiful mistress but to her confession (Am. 3.14.1–2 Non ego, ne pecces, cum sis formosa, recuso / sed ne sit misero scire necesse mihi, ‘That you should not sin, since you are good-looking, is not my plea, but that I be not compelled, wretched me, to know it’). The legalistic recuso (‘to put in an objection, demur’ OLD s.v. 1) evokes right from the beginning the setting of a trial. The trial scene in turn points to the transition from private experience to public order. As Paul Kahn (2000: 7) notes, every trial is a process through which private events are made to show themselves publicly so that they may be subject to law’s order. The trial gives a public meaning of law to what appeared at first to be merely private. But a similar tension between private and public spheres applies to love. Love can barely have a meaning if it is isolated from every aspect of social interaction and, what is more, it can in turn become the force that constructs social roles and hierarchies. In Amores 3.14, Ovid evokes the public aspect of a trial in order to emphasize the necessity of a private zone for lovemaking, a zone which law should not penetrate. At the same time he resorts to legal discourse in order to regulate both the private and public aspects of sexuality. The legislator excludes himself from the bedroom, defining a state of exception from law by law. Ovid is a prosecutor who longs to lose the case. He does not object to the crime itself, but to its confession: prona tibi uinci cupientem uincere palma est, sit modo ‘non feci!’ dicere lingua memor Amores 3.14.47–8 it is an easy palm for you to defeat one longing to be defeated; all you need is a tongue that remembers to say ‘I didn’t do it.’ 16  Martelli (2013: 64–6) has a good discussion on how Am. 3.14 develops the problematic of publication, as the poet is caught between the conflicting impulses of his puella’s desire to make known her erotic experiences and his own desire to publish them himself.

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In this context, uincere means ‘to defeat in court’ or ‘to win one’s case’ (OLD s.v. 5).17 As McKeown (1998: 88–9) notes, a palm crown (palma) was a reward for forensic success (cf. Cicero, De Or. 2.227), and ‘non feci’ is legal terminology for ‘not guilty’ (cf. Cicero, Inv. rhet. 1.10). Even if the lover catches his mistress in the act, he will pretend he is not seeing what he is witnessing, further urging her to deny what is happening (43–6). The injured lover has no desire to investigate or make any further judicial inquiries (41 nil equidem inquiram) into his mistress’s private affairs. The accuser tells the guilty party how to escape conviction. The split persona of the tormented lover (cf. 39–40) is highlighted by the shift between the roles of accuser and lawyer of the defendant. As a plaintiff, Ovid longs to lose his case and, like a iurisconsultus, gives advice to his mistress about what she should and should not say in court in order to win her case. The mistress is the defendant, and Ovid, the injured party, is simultaneously the defence counsellor who prepares his client for her appearance in court. The poet repeatedly instructs her not to confess but deny the crimes she has committed (3.14.5 negare,18 7 in luce fateri,19 12 commissi perages indiciumque tui, 15 negato, 37 pecasse fateris). Ovid’s persona is reminiscent of an unscrupulous lawyer who does not care whether the defendant is guilty or not but is only concerned with the acquittal of his client. The point here is that when public display counts so much towards morality, then being seen not to be guilty is the equivalent of not being guilty, just as seeming to be guilty may be taken as proof of guilt. Behind Ovid’s playfulness lies a philosophical debate. Cicero would be appalled by such behaviour, as he makes it clear in De legibus 1.50 (pudet etiam loqui de pudicitia. at me istorum philosophorum pudet, qui ullum iudicium uitare nisi uitio ipso uitato honestum 17 Cf. Am. 2.5.7–8 o utinam arguerem sic ut non uincere possem! / me miserum quare tam bona mea causa est! ‘Oh, if only my charge were such that I could not win! Wretched me, why is my cause so good?’; Her. 16.75–6; Met. 8.58–60, with Gebhardt (2009: 171–2). 18  Negare, ‘to deny’, in procedural language and with reference to the defendant, means ‘to deny a claim’; Berger (1953: s.v. negare). 19  McKeown (forthcoming) notes that in this forensic context, in luce fateri perhaps adds to the intensity of Ovid’s indignation that crimes were more severely punished if committed by night; cf., e.g., Cic. Tull. 50; Gell. 11.18.8; Macrob. Sat. 1.4.19.

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putant, ‘I am ashamed even to mention chastity. Or rather I am ashamed of those philosophers who believe it honourable to avoid condemnation for a crime without having avoided the crime itself ’). The text is uncertain at his point, but as Dyck (2004: 203) notes, Cicero’s ‘shame’ surely results from the attitude of the philosophers whom he has been criticizing. These philosophers posit that virtues should be cultivated with a view to external benefits and vice only avoided if it carries a penalty or stigma. What was a philosophical discussion in Cicero is an issue of legal proceedings in Ovid. At the end of Amores 3.14, Ovid is the judge in his court of love. The unfaithful mistress may not have a strong case, but she should win thanks to her partial judge, who is none other than the infatuated poet (50 etsi non causa iudice uince tuo, ‘if not through your cause, win through your judge’). As Gebhardt (2009: 177) notes, the situation is similar to that of Amores 2.2, in which the husband (maritus) plays the role of the judge and acquits his adulterous wife even if she is caught in the act (Am. 2.2.55–6 culpa nec ex facili quamuis manifesta probatur; / iudicis illa sui tuta fauore uenit, ‘Nor is an offence, however manifest, an easy thing to prove; she comes off unpunished, safe in the favour of her judge’). A judge trapped in the meshes of desire is a judge favourably disposed to his adulterous wife.20 The lover/poet becomes a lover/judge whose judgment is seriously impaired, but who still has the power to ignore the evidence and acquit his mistress. Amatory justice regulates love affairs in a period in which im­per­ ial legislation outlawed adulterous sex and excluded non-adulterous extramarital sex from the juridical order. Legal experts legislate in an area of influence claimed by elegiac poets, while love poets spell out the rules of extramarital affairs and are thus part of the discourse of the legal profession. The voice of the legal expert (iuris peritus) converges with that of the praeceptor amoris. By conflating 20  On the fauor of the judge, see Cic. Planc. 7 nam quod ad populum pertinet, semper ­ ignitatis iniquus iudex est qui aut inuidet aut fauet, ‘for as far as the people are concerned, d one who either envies or favours is always a partial judge of merit’; Quint. Inst. 3.7.25 maxime fauet iudex, qui sibi dicentem adsentari putat, ‘A judge who thinks the speaker agrees with him is most likely favourably disposed’; Ov. Fast. 6.71–2 remque mei iuris malim tenuisse precando: / et faueas causae forsitan ipse meae, ‘I would rather keep my rights of possession by entreating, and you yourself may favour my case’; Gebhardt (2009: 172).

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legal with erotic advice, Amores 3.14 anticipates Ovid’s persona of the teacher of love in the Ars amatoria.21 Amores 3.14 gives instructions about the secrecy of love affairs which Ovid reworks in the Ars (cf. Gebhardt 2009: 175). In Ars 2.409–10, Ovid advises his students to conceal their affairs and keep denying them even if they are revealed. Following the spirit of Amores 3.14, the praeceptor tells his students that it is better if they ignore their mistress’s infidelities and let her keep her secrets (Ars 2.555–60). A small, but telling stylistic feature that brings together legal prescriptions and amatory guidance is Ovid’s use of future imperatives (15 quae facis, haec facito; tantum fecisse negato; 45 bene uisa negato). In his article on Amores 1.4 and the law, John Davis (1993) notes that the future imperative is the language of Roman law and is attested in the Twelve Tables (e.g Tabula 1.1 si in ius uocat, ito. Ni it, antestamino: igitur em capito, ‘if one is summoned to court, he should go. If he does not go, a witness should be called in his stead: only then he should be arrested’); it is a long-term injunction, as opposed to the present imperative, which is an order. Amores 3.14.15 alludes to Propertius 2.18A.3–4 (si quid uidisti, semper uidisse negato; / aut si quid doleat forte, dolere nega, ‘if you see something, you should always deny having seen it; or if something should by chance cause you pain, deny that it causes pain’). Propertius here follows the construction of the Twelve Tables (a conditional with future imperative in the apodosis).22 The couplet is also packed with repetitions of verbs (uidisti/uidisse, negato/nega, doleat/dolere), thus drawing on another salient characteristic of legal language.23 Ovid’s penchant for future imperatives brings to the fore the legislative dimension of his elegiac persona. Future imperatives combined with repetition of verbal forms (15 quae facis, haec facito; tantum fecisse negato; 45 quae bene uisa mihi fuerint, bene uisa negato) clearly belong to the register of legal diction. Ovid is not simply ­giving advice—he is laying down the law. 21  On the praeceptor amoris as a jurist in the Ars amatoria, see Chapter 7. 22  See Meyer (2004: 45–8) for this type of conditional as distinctive of the carmen-style or ‘legal etiquette’ of the tabulae. 23  See Meyer (2004: 45–8, 50–1, 55, 58–9) for repetition as characteristic of carmen-style legal language. See also Wills (1996: 298) for the universalizing repetition of a verb in different tenses as common in legal or religious language.

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Amores 3.14 also evokes the sanctions of the adultery laws, when the poet suggests the infamia of convicted adulteresses whom the lex Iulia reduced to the status of prostitutes: non peccat, quaecumque potest peccasse negare, solaque famosam culpa professa facit. Amores 3.14.5–6 She does not sin who can deny her sin, and it is only the offence avowed that makes one notorious.

While famosam refers to the official disgrace of convicted adulteresses (cf. Gebhardt  2009: 175), culpa professa puns on the substantive professa, which refers to prostitutes, who had to give their names to the aedile.24 Should she openly declare her guilt, an adulteress would be degraded to the status of a prostitute (professa). Ovid further associates the confession of infidelity with prostitution in a couplet that evokes the judicial investigation (quaestio) of adultery: tu tua prostitues famae peccata sinistrae commissi perages indiciumque tui? Amores 3.14.11–12 Will you expose your sins to evil defamation and act as an informer of your misdeed?

While commissi perages indicium refers to judicial proceedings, prostitues implies that a woman’s confession can simultaneously reduce her to the dishonour of a prostitute ( famae . . . sinistrae). Ovid’s trial resonates with the realities of Augustan Rome, the quaestio perpetua de adulteriis. A side effect of criminalizing adultery is that unless proven guilty in a public trial, all adulteresses were innocent. Ovid makes this fit in the legal system of elegiac poetry. Sex that takes place in private is decriminalized. 24 See Ovid, Fasti 4.865–6 numina, uolgares, Veneris celebrate, puellae: / multa professarum quaestibus apta Venus, ‘Common girls, celebrate Venus’s divine power: Venus greatly favours the profits of working girls’.

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To some extent, Ovid’s court of love is a reflection of the adultery prosecutions in Augustan Rome. But it is more than that. The social and marital status of women was the most crucial aspect in defining criminal sex under Augustus. While an affair with a married or marriageable woman was a crime, sex with prostitutes was not. Ovid keeps the appearances of an adultery trial, but the status of the elegiac mistress, the most crucial factor in an adultery trial, remains deliberately unclear. If we assume that she is a prostitute, it is striking that the legal apparatus of the quaestio perpetua is applied to a woman who would not be liable to the adultery laws. The elegiac lover then casts himself as a legislator of women who are exempt from Augustus’ reforms, superimposing marriage legislation onto non-adulterous extramarital love. But the social identity of the mistress in Amores 3.14 is a mystery. Ovid refers to prostitution and infamia as something that can be avoided, if no sexual misconduct is confessed. But why would he mention all this to a woman who is already an infamis courtesan? There are two ways to answer this question. One is that the puella is actually a Roman matron who risks being reduced to the status of a prostitute if her adulterous affairs are revealed. Under the lex Iulia, convicted adulteresses were publicly identified as prostitutes by having to don the toga, the prostitute’s garb. The other answer is that the puella’s social status is not important in Ovid’s court of love. Amatory passion, not social status, now makes law. Lovers’ relationships—marital, extramarital, or adulterous—are under the jurisdiction of the autonomous discourse of sexuality. By keeping the puella’s social identity vague, Ovid highlights that such status cannot actually be discerned in the private context of the bedroom, that is, in a place where all the trappings of social standing have been removed. The naked bodies of lovers in the privacy of the bedroom cover up all sociolegal constructions.

Catullus in Amores 3.14 The creation of private space for sexual activity and its subsequent regulation are the outcome of the emergence of sexuality as an

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independent discourse in Augustan Rome. The autonomy of amatory justice as well as the indissolubility of sexuality from juridical constructions becomes even more conspicuous when Augustus decides to make sexual conduct the business of the state. The public trials of sexual crimes occur in parallel and tension with the privacy of secret affairs. Thomas Habinek (1997: 39–40) contrasts the public nature of sexual acts in Catullus with Ovid’s obsession with the ­privacy of sexual liaisons in order to support his argument about the invention of sexuality in Augustan Rome. Building on Habinek, who does not discuss the presence of Catullus in Amores 3.14, I shall argue that Ovid’s references to Catullus highlight the shift from the public displays of intimacy in the late Republic to the need for ­privacy in the rise of imperial Rome. The genre of Latin love elegy is the locus of this shift. Even within Catullus’ corpus, his longer elegies (65–8) foreshadow the importance of love’s private domain in contrast to his polymetrics. Amores 3.14 is one of Ovid’s most Catullan elegies. Catullus’ statement (76.23–6) that he does not wish Lesbia to be chaste (pudica) but himself to be healed from lovesickness (morbus) is echoed in Ovid, who does not ask his mistress to be faithful, just to imitate the chaste (Am. 3.14.13 imitare pudicas). The dramatic real­ iza­tion of Lesbia’s unfaithfulness (72.5 nunc te cognoui) contrasts with Ovid’s lighthearted advice that he wants to remain ignorant (Am. 3.14.2). The lover of the Amores prefers his mistress to lie. An awareness of the beloved’s infidelity would subject him to the tortures of Catullan passion. The feverish symptoms of lovesickness (Am. 3.14.38 perque meos artus frigida gutta fluit, ‘a cold drop flows through my limbs’) recalls Catullus’ translation of Sappho (51.9–10)25 and Ovid’s tunc amo, tunc odi frustra, quod amare necesse est (Am. 3.14.39 ‘then I love, then I hate in vain what I have to love’) elaborates on Catullus’ odi et amo (85.1 ‘I love and I hate’). Only Ovid, unlike Catullus, knows the cure for his passion. It is not the mistress’s fidelity, an impossibility already acknowledged by Catullus, but the poet’s ignorance of her 25  It also alludes to Sappho, fr. 31.13 κάδ δέ μ’ ἴδρως ψῦχρος ἔχει, ‘cold sweat takes hold of me’ without the mediation of Catullus.

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misconduct. Reading Catullus through the lens of Ovid, we see that the Republican poet is tortured because he does not allow space for the secrecy of extramarital affairs. Catullus’ Sapphic torture, for instance, is the outcome of witnessing one’s beloved chatting in public with a rival. In Catullus 5, the lovers’ kisses are fully exposed to the envious eyes of old prudes. The lovers are safe not because their kisses are secret, but because they are countless (5.12–13 ne quis malus inuidere possit / cum tantum sciat esse basiarum, ‘so that a wicked man may not be able to cast an evil eye when he knows that there are so many kisses’). In Catullus 7, the number of the kisses is compared to the countless stars that keep an eye on stealthy loves in the silence of the night (7.7–8 aut quam sidera multa, cum tacet nox, / furtiuos hominum uident amores, ‘or as many as the constellations, when the night is silent, watch the secret loves of men’). The diction draws attention to the almost contradictory image of secret affairs that take place in the open air. These pre-elegiac Republican lovers seem to have no private room for intimacies. Ovid points out that even a prostitute would not have sex in public (Am. 3.14.9–10 ignoto meretrix corpus iunctura Quiriti / opposita populum summouet ante sera, ‘even a prostitute about to unite her body with an unknown son of Quirinus first shuts out the crowd by slipping the bolt’). The unknown man and the crowd that is kept away suggest pavement prostitution.26 But even streetwalkers lock the door before sleeping with their customers. The solemn appellation Quiris, often attributed collectively to the body of Roman citizens (Quirites),27 suggests the promiscuity of the prostitute and the anonymity of her clients. At the same time, it recalls Catullus’ bitterly ironic mention of ‘Remus’ great-spirited descendants’ (58.5 magnanimi Remi nepotes) whom Lesbia gratifies sexually28 on 26 Cf. Ars 3.300 ignotos . . . uiros with Gibson (2003 ad loc). The streetwalkers who have sex with strangers in private recall Julia’s behaviour in the forum (Sen. Ben. 6.32.1 cum ex adultera in quaestuariam uersa ius omnis licentiae sub ignoto adultero peteret, ‘and she turned from an adulteress into a prostitute and sought the right to every indulgence with even an unknown adulterer’). 27  Quiriti . . . populum playfully suggests the formula populus Romanus Quirites. 28  The meaning of glubit (58.5) remains unclear. Most likely it refers to masturbation. McKeown (forthcoming) notes that Quiriti (Am. 3.14.9) is an incongruously grand term in this context, in much the same spirit as Catullus 58.5.

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street corners and in back alleys, thus behaving like, if not worse than, a common whore. While Catullus is tormented by the promiscuity of his beloved, who performs her sexual indiscretions in the street, Ovid advises his mistress simply to lock her door and shut her mouth in order to spare him the pain of Catullan infatuation. Catullus is obsessed with revealing the secret love affairs of his friends via his poetry. In 55, he goes around Rome in search of his friend Camerius, who has successfully escaped the poet’s notice. In his search, he corners some girls in Pompey’s portico, a popular place for picking up lovers (cf. Propertius 4.8.75; Ovid, Ars 1.67, 3.387). Catullus tries publicly to shame the girls into revealing Camerius’ whereabouts (55.9 sic usque flagitabam, ‘thus I kept demanding nonstop’). The implication of the flagitatio29 is that the girls stole Camerius from Catullus and must give him back to the poet. As in Catullus 42, the flagitatio bears no fruits. Slut shaming has no effect on shameless women. One girl bares her breasts and playfully declares that Camerius is hiding in her rosy nipples (55.11–12). Public nudity exemplifies the failure of Catullus’ flagitatio to solicit a confession by shaming women in public. The ex­pos­ ure of the girl’s sexy nipples points to love’s ability to disappear from the public eye. Catullus cannot stand this secrecy. If someone keeps his mouth shut, the fruit of love is wasted (55.18–20 si linguam clauso tenes in ore, / fructus proicies amoris omnes: / uerbosa gaudet Venus loquella, ‘If you keep your tongue in a closed mouth, you will waste all the fruits of love. Venus finds joy in wordy chatting’). Sexy talk in bed is one thing; the public discussion of sexual affairs another. Ovid will clearly contradict Catullus at Ars 2.607–8 (Cytherea iubet sua sacra taceri; / admoneo, ueniat nequis ad illa loquax, ‘Cytherea orders that her rites be kept quiet; I warn you, no chatty person should approach them.’)30 Discretion and secrecy are 29 The flagitatio was a way of shaming a debtor or a thief. A mob would surround the target in public, shouting and abusing him or her. The aim of this public shaming was to force the debtor to pay back. 30  Thomson (1997 ad Catullus 55.20) notes that there were two opposing views on this issue: Plato, Symp. 182d λέγεται κάλλιον τὸ φανερῶς ἐρᾶν τοῦ λάθρᾳ, ‘it is said that loving openly is more beautiful than loving secretly’, but also Prop. 2.25.29–30 quamuis te diligat illa, / in tacito cohibe gaudia clausa sinu, ‘even though she loves you, keep your joys shut in a silent lap’.

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requirements for being initiated into the rites of Venus, the goddess Cytherea, ‘who conceals love affairs’ (Etymologicum Magnum 543.40 ἡ κεύθουσα τοὺς ἔρωτας).31 The Catullan flagitatio is a form of popular justice that tries cases of love. In Catullus 6, the bedroom and the courtroom merge together in the poet’s attempt to transgress all private boundaries in order to praise his friend’s secret relationship. The poem exemplifies Catullus’ desire to use his art in order to publicize private love affairs. It is addressed to Flavius and is meant to provoke him to confess (cf. 6.5 hoc pudet fateri, ‘this you are ashamed to confess’) that he has a girlfriend. The structure and diction belong to courtroom rhetoric. As Thomson (1997: 221) notes, the prosaic and lo­gic­al manner of exposition, articulated by nam (6) and quare (15), evoke an orator’s speech. Catullus imagines that he is speaking in court, presenting evidence and pushing the defendant to overcome shame and confess. The poet seems to have access to his friend’s bedroom. The perfumed bedroom and the bedding that has traces of two people sleeping act as informers (7–10). However silent Flavius may wish to remain, his body posture is evidence of his excessive sexual activity (13–14). The personification of the bed adds to the imagery of a trial. Due to Flavius’ intense sexual activity, the bed shakes and makes incriminating sounds: 10–11 tremulique quassa lecti / argutatio inambulatioque (clamat), ‘the walking about and creaking of the shaken rickety bed (shout)’. While inambulatio is a clear reference to the courtroom orator’s activity (cf. Rhet. Her. 3.27; Cic. Brut. 158 with Thomson 1997: 222), argutatio, though not attested elsewhere, probably refers to a manner of rhetorical enunciation. As commentators point out (Quinn  1973; Thomson  1997 ad loc.), Catullus imagines the couch as a prosecutor mustering circumstantial evidence against Flavius. The bedroom, the private space par excellence, turns into the setting of a public trial, and the bed assumes the voice of the prosecutor. Ovid picks on the courtroom setting and rhetoric of Catullus 6, in order to criticize the exposition and publication of private affairs. 31 For this etymology of Cytherea in Ovid, see Metamorphoses 4.190–2, with Ziogas (2014a: 328–9).

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While giving legal and sexual advice to his girlfriend, Ovid ­encourages her to make the bed shake during sex (cf. Am. 3.14.26 spondaque lasciua mobilitate tremat, ‘and let the bed frame tremble with your naughty motions’, with Catullus 6.10–11), but make sure that no traces are left for him to observe (cf. Am. 3.14.32 cur pressus prior est interiorque torus? ‘why has your couch been pressed on every side?’ with Catullus 6.9–10 puluinusque peraeque et hic et ille / attritus, ‘pillows and cushions equally squashed’). The scar on the girl’s neck, the bodily evidence of her naughtiness, is the elegiac version of Catullus’ obscene 6.13 (cur? non tam latera effututa pandas, ‘Why? For you wouldn’t spread out thighs worn out from fucking’). Ovid’s anaphora of cur (Am. 3.14.31–4) echoes Catullus’ cur? While Catullus breaks down the boundaries between public and private, Ovid draws a sharp distinction. The impossibility of Flavius keeping his affair secret is countered by Ovid’s advice that his girlfriend should cover up all the evidence that exposed the affair of Flavius to his friend’s prying eyes.32 While Catullus urges his friend to confess, Ovid begs his girlfriend to remain silent. The shift to the privacy of extramarital sex that features prom­in­ ent­ly in Ovid is already anticipated in Catullus. We can trace the evolution from the public aspect of Catullus’ polymetrics to the emergence of a private domus in his longer elegies (65–8). In 68B, Catullus thanks his friend Allius for giving access to a house in which the poet and his mistress enjoyed their mutual love (68B.68–9). This elegy is in many respects the precursor, if not the creator, of the genre of Latin love elegy. For my purposes, it is worth noting that Catullus 68B draws attention to the privacy of a house as crucial for the pursuit of extramarital affairs. The poem also stands out for its simultaneous distinction and blurring of marital and extramarital sex. Catullus’ mistress (domina) is compared to Laodamia (73–131), a model of conjugal virtue, whose sexual appetite for her husband surpasses that of doves, whose shameless kisses in turn surpass even the most promiscuous woman (125–8). Laodamia’s lust for 32  What Ovid says here, in his role as a praeceptor amoris, contrasts with the procuress’s injunctions in Am. 1.8.97–8 ille uiri uideat toto uestigia lecto / factaque lasciuis liuida colla notis, ‘let him see a man’s traces all over your couch and your neck bruised with naughty marks.’ The procuress is the doppelgänger of the praeceptor amoris (see Myers 1996).

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Protesilaus is at odds with her matronly status as well as with the extramarital nature of Catullus’ affair. Catullus makes clear that he is not married to his mistress but shares her with her husband (143–8). In a way that sharply contrasts with his suffering from his mistress’s infidelities in other poems (e.g. 72), Catullus accepts that he is not the only man in her life (135–7 quae tamen etsi uno non est contenta Catullo, / rara uerecundae furta feremus erae, / ne nimium simus stultorum more molesti, ‘even though she is not content with Catullus alone, we shall bear the infrequent cheating of our modest mistress, lest we become too much of a nuisance in the manner of fools’). The fool is usually the cuckold (see Catullus 17; 83.2, with Thomson  1997 ad 68B.137; cf. Ovid, Am. 2.19.1–2), so that it is quite striking that not putting up with a woman’s infidelities appears here as the way of stupid men. The mores have changed and Catullus here anticipates a distinctly Ovidian attitude towards adultery (see Amores 3.4.37–8 rusticus est nimium, quem laedit adultera coniunx, / et notos mores non satis urbis habet. ‘He is too much of a boorish peasant whom an adulterous wife hurts and hardly acquainted with the manners of the city’). It is my contention that Catullus’ radical change of attitude towards his mistress’s promiscuity is related to the creation of a discreet zone for indulging in love affairs. Ovid’s references to Catullus reflect this major shift in the development of sexuality from the late Republic to the early Principate. In Ovid’s metropolitan Rome, the emergence of a specialized discourse on sex goes hand in hand with the need for a space that is shielded from the public eye and exempted from Roman law. In turn, sexuality becomes self-regulated.33 It is no coincidence that the emergence of an autonomous space for private affairs is accompanied by confusing comparisons between marital and extramarital affairs (Catullus 68B) or by a deliberate blurring of both (Ovid). Passion and erotic desire now lay down the law, simultaneously reflecting and replacing social roles and moral standards.

33  On love as constructing a self-sufficient world in Augustan elegy, see Labate (1990: 946–7).

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Amores 1.4 The indeterminacy of the elegiac woman’s social status (matron or courtesan?) is the driving force of love elegy’s juridical discourse. In Amores 1.4, the poet/lover is expected to encounter his mistress’s ‘husband’ (uir) at a dinner party. The unclear legal status of the uir, who can be either a husband or a boyfriend, is more than Ovid’s way of teasing his readers into arguing over whether he promotes adultery or not. The important point is not whether this anonymous man is married to Corinna34 or not, but that he symbolizes coercion as opposed to freedom of choice, heteronomy instead of autonomy. The marital or extramarital nature of his relationship with Corinna, the crucial issue from the perspective of Augustan legislation, thus becomes immaterial in Ovid. The uir’s legally ambiguous status enables the poet to highlight that the law is impotent in the absence of love and that love has independent jurisdiction to decide on the legitimacy or illegitimacy of relationships. The poem is addressed to the mistress and aims at establishing a code of conduct that would make her give the least possible pleasure to her ‘man’. Pleasure and free will become the criteria of legality. Once more, Ovid legislates in an attempt to come to grips with the tension between the public aspect of a marital or quasi-marital relationship and the privacy of his extramarital affair. The autonomy of amatory justice overrules the heteronomy of marriage laws,35 and the tables of this dinner party are turned, since the uir is cast as the intruder into Ovid’s private affair (see Tracy 1978: 59–60). The poem is rife with imperatives and jussive subjunctives that bring together the voice of a praeceptor amoris and legislator.36 How to behave at a banquet forms part of Ovid’s instructions to his female students (Ars 3.747–68) and traditionally constitutes an important 34  I call the puella of Amores 1.4 Corinna for the sake of convenience, even though the name Corinna first appears in Amores 1.5. 35  On the immediacy and autonomy of love as opposed to the mediation and heteronomy of law, see Neoh (2015), a reading of the biblical story of Abraham and Isaac that revolves around law and love as distinct modes of association. 36  On Ovid’s adoption of the role of praeceptor amoris in Am. 1.4, see McKeown (1989: 78–9).

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lesson of the elegiac savoir vivre.37 The structure of Amores 1.4, which moves from the dinner party (1–58) to the bedroom (59–70), anticipates the same sequence in Ars 3 (the banquet: 747–68; the bedroom: 769–808). Only in Amores 1.4, the poet is, to some extent, an instructor of anti-seduction, advising his mistress to fend off her husband’s advances as much as possible and have bad sex with him. The future imperatives in Amores 1.4 are not simply the orders of a jealous lover but also the formal prescriptions of amatory justice. John Davis (1993) argues that with three future imperatives, an unusually high number for a single poem,38 Ovid enjoins his mistress to behave according to his laws. The lover’s desire makes law, and the diction of his commandments implies legal power: (29) ‘thou shalt order (iubeto) your husband to drink what he has mixed for you’, (35) ‘thou shalt not allow him (nec sinito) to cuddle up’, and (65) ‘thou shalt have sex (dato) unwillingly’. As McKeown (1989 ad 1.4.91) notes, the archaic form of the imperative may lend the injunction an imposing legal color. Along similar lines, David Daube (1966) argued that Ovid’s Am. 1.4.38 oscula praecipue nulla dedisse uelis, ‘above all, you had better not wish to have given him any kisses’, is the rather rare form of decree ne quis fecisse uelit. This is the diction of a magistrate’s or­din­ ances that aimed at ensuring public order and decency or the language of a legal advisor.39 In this formula, the infinitive is a true perfect, in that it issues a warning about unpleasant consequences should the prohibition not be observed (see Daube 1966: 222–3; McKeown 1989 ad 1.4.37–8). It is also important to note that the formula aims at regulating what one wishes, highlighting law’s fundamental power to normalize or forbid desire. The law is the external ratification or prohibition of one’s innermost wishes.

37 Theognis’ erotodidaxis of Kyrnos includes detailed instructions about appropriate behaviour in the symposium. For the symposium in Latin elegy, see Yardley (1991). 38  Davis (1993) notes that there are six future imperatives in all of Tibullus and five in Propertius. 39  Cf. Gebhardt (2009: 19, 143). Propertius 4.3.70 hac ego te sola lege redisse uelim, ‘under this law alone should I desire you to return’ and 2.19.32, with Cairns (1974).

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Love’s Autonomy The formal and archaic legal diction of Am. 1.4.38 conveys an ­indeterminate threat in the event of transgression (Daube 1966: 222). The lover implies that he can resort to violence in order to enforce his laws. Behind the erotic interpretation of 1.4.10 (uix a te uideor posse tenere manus, ‘I seem scarcely able to hold my hands from you’) lies the lover’s threat of violence.40 Violence and desire converge upon the diction of legal injunctions. The poet’s enunciation of legal formulae with implicit threats is accompanied by the lover’s hint at his power to resort to corporal punishment should his mistress break his rules. If we define law as a command backed up by the threat of sanction, Amores 1.4 has the force of law in that it not only spells out the rules of amatory conduct but also threatens with punishment if the decree is not respected. As Miller (2004: 178) puts it, law, violence, and lovemaking momentarily become one in the act of laying hands upon another. In one of the most perceptive and theoretically informed readings of law and legitimacy in the Amores, Paul Allen Miller (2004: 160–83) argues that poem 1.4 constructs a dense web of ideo­logic­ al­ly charged signifiers, creating an all but impenetrable weave of gender, law, love, and violence that both deconstructs the values that characterize the Augustan settlement and demonstrates the impossibility of escaping them. Miller bases his discussion on the irresolvable ambiguity of uir, a word that can mean both husband and lover. If we take uir to mean husband, we can read Amores 1.4 as a poem that provocatively breaks Augustus’ adultery laws (cf. Davis 2006). But if uir describes the girl’s boyfriend, Ovid’s love triangle is extralegal rather than illegal; it belongs in a sphere in which the lover legislates as the prince, while the prince has no jurisdiction in the lover’s private universe. Thanks to the inherent ambiguity of uir, Corinna’s man is a person whose prerogatives are 40  Especially since Am. 1.4.7–8 refers to the Centaurs’ attempted rape and violation of hospitality. See Miller (2004: 177–8), who cites the exclusively violent meaning of Am. 1.8.110 at nostrae uix se continuere manus, ‘and my hands were scarcely able to restrain themselves’ (Ovid threatens the procuress Dipsas).

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guaranteed neither by natural law nor agreed-upon rights, but whose very definition evokes both categories (Miller 2004: 171). The crucial distinction that Ovid draws in Amores 1.4 is between the autonomy of extramarital or adulterous love and the heter­on­ omy of the uir’s rights. This distinction is both drawn and problematized. Ovid’s legal claims align the uir, on the one hand, with legalism and coercion and the amator, on the other, with legitimacy and free will. Yet the poet’s pose of a legislator constructs a juridical framework that prescribes and restricts the mistress’s movements and thus compromises the autonomy of love by imposing a novel set of rules. Ovid’s amatory regulations ultimately become a reflection of the legalism whose legitimacy the poet denies. The very moment the lover asserts his love as the basis of his claims, he initiates a procedure that will inevitably turn him into a ‘­husband’. 41 The uir and the amator are caught in a vicious circle of law and love. The poet/lover construes the uir’s legal coercion as illegitimate violence, but we know nothing about the woman’s desires. The irony is that Ovid’s edict presses her to follow certain strict rules, but whether or not the uir exercises his rights against her will is entirely unclear. In other words, the only coercion we can discern in Amores 1.4 comes from the lover, not the uir. The speaker is stuck between his idea of amatory justice as love given freely and willingly and his desire to impose the rule of law upon free love. But this is not simply the problem of the lover in Amores 1.4—it is a crucial balancing act of legislation, law’s attempt to regulate the will of the individual and transform it into the collective desires of society. The coexistence of the erotic and the legal is implied at the beginning of the elegy and will be at the centre of the lover’s claim of ownership. When the lover wonders at 1.4.6 iniciet collo, cum uolet, ille manum? ‘Will he throw his hands upon your neck whenever he wishes?’, the affection of the uir’s embrace is combined with the legal dimension of the manus iniectio. The framing of the verse with iniciet . . . manum conveys the image of an embrace, but the phrase

41  On the interchangeability of the uir and the amator, see Miller (2004: 172–4).

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also means ‘to lay legal claim to’.42 Ovid’s statement that he can hardly hold his hands from the girl (1.4.10) is a reaction to the uir’s legal claim (cf. Gebhardt  2009: 137). By laying his hands on the mistress, the lover claims ownership of her. The force of law joins the power of desire. The manus iniectio occurs before the praetor in the uindicatio (see Daube  1966: 227). According to this legal ritual, a man who claimed that another man was withholding his rightful property (including slaves) from him would seize the property and make a formal declaration that the res (‘chattel’) was his (see Gaius, Inst. 4.16; cf. Ulpian Dig. 11.7.14). The uindicatio is clearly suggested in the following lines: oscula praecipue nulla dedisse uelis. oscula si dederis, fiam manifestus amator et dicam ‘mea sunt’ iniciamque manum. Amores 1.4.38–40 above all, you had better not wish to have given any kisses. If you give kisses, I shall become a lover caught in the act and say ‘Those are mine’ and lay hand to my claim.

The declaration mea sunt echoes the formula of the uindicatio (cf. Gaius, Inst. 4.16 hunc ego hominem . . . meum esse aio, ‘I say that this man is mine’) and iniciamque manum clearly refers to the manus iniectio (cf. Am. 2.5.29–30; Her. 12.159–60; 20.143–58). Critics have examined the ironies of this passage’s juridical character. Ovid’s threat to become a manifestus amator cannot but recall a fur manifestus, an avowed robber or a thief caught in the act (see McKeown 1989 ad loc.). This is all the more likely since furtum (‘theft’) commonly describes an extramarital affair in elegy.43 By being caught in the act, the thief threatens to claim the property he stole as his own in

42  On the manus iniectio in Am. 1.4, see Daube (1966: 226–31); Kenney (1969: 254–8); McKeown (1989 ad 1.4.5–6 and 39); Miller (2004: 180–2); Gebhardt (2009: 136–7). 43  See Daube (1966: 228): ‘It is conceivable that, behind amator manifestus, we are to hear fur manifestus: henceforth, he will be an open, brazen, avowed robber.’ Cf. Gebhardt (2009: 136); McKeown (1989 ad loc.).

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the formal procedure of a uindicatio.44 The uindicatio inverts the elegiac motif of seruitium amoris, since the seruus amoris asserts a  legal claim to his domina (cf. Am. 1.4.47) for kissing her uir (cf. Miller 2004: 181). What is more, Ovid combines the manus iniectio with the meaning of manus in the context of marriage (cf. Miller 2004: 181–2). In fact, Ovid’s combination of the erotic and judicial aspect of manus iniectio appears in the marital contexts of Heroides 8.16 and 12.157–8.45 This is all the more likely because a variety of manus iniectio was related to seizing someone in one’s potestas (see Quintilian, Inst. 7.7.9; Valerius Maximus 5.4.5). Being under one’s potestas is also a distinctive aspect of a marriage cum manu, under which the bride passes from the potestas of her father to that of her husband (cf. Chapter 8). The lover claims his mistress as his wife in a passage that blends the uindicatio in seruitutem with a marriage cum manu. Marriage appears to parallel property laws concerning slavery. The paradox of a thief caught in the act as he claims legally to possess what he has stolen is more than a joke. Ovid draws attention to desire as primarily operating in a zone of indistinction between law and crime. What the lover is trying to do in this poem is to legitimize his love, to present amatory passion as the ultimate source of legality. Amor alone can judge whether an adulterous affair is legitimate or a marriage unlawful. We can say that Ovid playfully superimposed legal language onto love poetry, but it may be more accurate to say that legal discourse is the inevitable outcome of a lover’s desire to normalize his passion. Ovid’s legalisms are not out of place in this poetry of extramarital affairs. It is, rather, legislation that ignores love’s autonomy that would be an absurdity. The juxtaposition between the legitimacy of the lover’s theft and the illegitimacy of the uir’s rights is brought up towards the end of the poem. The lover realizes that his beloved will inevitably give more than kisses to her uir: 44  In Ovid’s world, an adulterer caught in the act can enjoy his illicit affair in the future without needing to hide it; see Ars 2.555–6, 589–92 45  See also Chapter 4 on uindicatio in Heroides 20.

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The Courtroom in the Bedroom  99 oscula iam sumet, iam non tantum oscula sumet: quod mihi das furtim, iure coacta dabis. uerum inuita dato (potes hoc) similisque coactae: blanditiae taceant, sitque maligna Venus. Amores 1.4.63–6 He will soon take kisses; he will soon take not only kisses: what you give me secretly, you will give forced by law. But thou shalt give it without consent (you can do this) and like someone who is forced: let all sweet talk be hushed and the sex be bad.

What is willingly given to a thief (furtim), a husband forcefully exacts by law (iure coacta). The language of law coincides with the diction of elegiac love. The adverb furtim simultaneously refers to breaking the law by stealing and to the elegiac furtiuus amor. The passage creates an inextricable nexus of legal and elegiac commitments. As John Davis (1993: 67) notes, just as uir means ‘her man’, not necessarily ‘her husband’, iure means ‘by right’, not necessarily ‘by law’. These ambiguities are important because they suggest an overlap between Roman law and the code of conduct between two individuals in an extramarital relationship. As Susan Treggiari (1991: 270) notes, ius can describe law or the obligations and claims arising out of a particular relationship, the prerogative of the ­individual. Ovid suggests that the unwritten rules and rights that govern an extramarital relationship are of the same nature as the marriage laws of the Roman state. These laws can be externally enforced, but the very act of their enforcement undermines their legitimacy. Ovid delegitimizes laws imposed against one’s will and suggests that pure love without legal obligations is the only source of justice. This is highlighted as the passage inverts the relations of property to legal claims. The lover, who is cast as a thief, is making a claim to legitimacy on the fact that he has no proprietary claims to his mistress’s love and thus it is freely given to her (Miller  2004: 175). He legitimizes his theft and outlaws the ‘husband’s’ rights. The issue of free will is the key to legitimacy. Without consent, sex, whether marital or adulterous, is illegitimate. At the same time, a law without the power to coerce is void. The lover’s injunction

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(65–6) draws attention to this issue. Can Ovid really order his ­mistress to have sex unwillingly? Can the law dictate one’s wishes? The lover’s externally imposed sanction is in tension with the internal roots of his mistress’s desires. The parenthetic ‘you can do this’ actually problematizes the feasibility of what is asked. At least, the mistress can pretend that she is forced. Of course, in Ovid the line between faking and actually doing something is thin—the lover is probably satisfied with the performance of unwillingness rather than with unwillingness itself. Be that as it may, Amores 1.4 points out that legality is a rather challenging balancing act between individual desires and interpersonal agreements. Critics have astutely pointed out the subversive ironies of Ovid’s legal claims but refuse to take them seriously. Daube (1966: 228) argues that the passage quoted above shows how far Ovid is from seriously constructing the episode on a legal pattern. For Daube, the technical phraseology creates an atmosphere, producing a general effect. I find this analysis rather vague. Daube points out Ovid’s legal diction but offers very little in interpreting it (cf. Davis 1993: 69). Miller (2004: 181) talks about Ovid’s parody of legal formulae, adding that the irony of Ovid’s deployment of language designed to police morals in order to assert the legitimacy of his illegitimate demand is part of the fun. I do not wish to dispute the ‘fun’ aspect of Ovid’s poetry, which is a big part of his irreverent charm, but I think there is more in the lover’s legal discourse than fun. Irony, as Schlegel put it, is no joking matter.46 To be sure, Miller (2004: 135–6) is fully aware of the dialogic nature of parodic discourse. Building on Bakhtin, he argues that in parodic texts the voice of the parodied cannot be absolutely distinguished from the voice of the parodist. This is a crucial point when the target of parody is the voice of the law. The law by definition claims absolute authority, a monopoly that wishes to reduce any appropriations of legal diction to ‘mockery’ or ‘fun’. From that perspective, Ovid’s legal shenanigans are carnivalesque—a poet masquerading as a legal expert in order to temporarily transgress but 46  Schlegel (1800: 348): ‘Mit der Ironie ist durchaus nicht zu scherzen’. See also Fowler (2000: 5–33); Riley (2000: 148–9).

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ultimately reaffirm the absolute dominance of Augustan legislation. Yet Ovid’s ambiguities do more than this—they challenge the insularity of legal constructions. By blending legal and amatory diction, the ‘lover’ and the ‘husband’, Ovid highlights the fundamentally dialogic nature of law and love and thus underlines the interconnections between legal and elegiac discourse. His love poetry does not introduce law as a parodic or incongruous addition to love poetry, but points to love as an indispensable condition for the emergence of law. The uir can refer to a partner whose relationship with Ovid’s girlfriend gives him the right (iure) to possess her body or to a husband who has a legal claim (iure) on his wife.47 The private regulations of extramarital affairs overlap with marriage legislation. This confluence of marital and extramarital relationships establishes free will as the basis of legality. Ovid knows that legal authority is a com­bin­ ation of command and persuasion. A law that relies entirely on its power to be enforced cannot be legitimate and Amores 1.4 revolves around the contrast and balance between coercion and affection. The combination of these key factors is the essence of lawfulness. Ovidian elegy is no frivolous mockery of Roman law—it is, rather, the work of a poet who is fully aware of the importance of love in making law.

Love in Marriage If we now shift our focus from Ovidian elegy to Roman marriage laws, we can notice that the free will of the individual is as crucial for the legitimacy of marriage as it is in Amores 1.4 for the legality of extramarital relationships. Augustan legislation made marital affection the only requirement for establishing a married state between a man and a woman who had the legal right to matrimonium 47  If the uir is not a husband, what is the basis of his right to possess his mistress’s body? Such a right could come from payment, which then becomes a transactional right that is usually outlawed in Latin love elegy. Alternatively, it may be a right that arises from some kind of mutually accepted relationship, thus resembling the erotic-legal system of Latin love elegy. In any case, Ovid casts this right as the basis of coercion and thus delegitimizes it.

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(see Treggiari 1991: 43–7; Potter 1992). Conjugal affection was not an insignificant and at best coincidental feature of the arrangement,48 but, as Treggiari (1991: 52–7) shows, affectio maritalis (‘marital ­attitude’) was a necessary condition for marriage. Quintilian (Inst. 5.10.31), who uses the equivalent term mens matrimonii (‘marital intention’), notes that a marriage is valid by reason merely of the will of those who come together (mente coeuntium), even if a contract has not been ratified. By contrast, he adds, it is pointless to seal a contract (nihil enim proderit signasse tabulas) if there is no intention to marry. Augustus reduced the powers of the pater familias in his attempt to become the sole father of all Romans. A pater familias could no longer marry his children without their consent, and the magistrate could actually overrule the father who opposed the marriage of his children without legitimate reason (see Monier  1947: 254, 277; Videau 2004). Issues of affection, free will, and consent are now reflected in Roman law as indispensable requirements for the legality of matrimonium. In Amores 1.4, Augustus’ marriage laws legitimize Ovid’s adulterous affair. The lover has a legitimate claim on his mistress based on the voluntary nature of her affection towards him. The marital intentions of a man and a woman are the foundations of Roman marriage but affectio maritalis or mens matrimonii is not the only condition. The social status of the partners is crucial in making a marital relationship legally possible. In Amores 1.4, by contrast, the social positions of the uir and Ovid’s mistress are unclear and thus the marital or extramarital nature of their relationship impossible to determine. The effect of blurring the social standing of the main 48  See Veyne (1987: 40), who notes that ‘love in marriage was a stroke of good fortune; it was not the basis of the institution’. In the Roman Empire, love becomes the foundation of marriage; see Veyne (1991: 88–130). Saller (1994: 6–7, contra Foucault  1988), doubts that conjugal affection emerged in imperial Rome as a result of noble Romans’ construction of their subjective identity, rejecting what he calls the evolutionary story of Roman family life. Yet the prominence of affectio maritalis in Augustan legislation is highly significant in what seems to me a tectonic shift in family relations. Cantarella (2002) also questions the im­port­ ance of conjugal love in Roman law and society, but I find her argument that it was common and uncontroversial for Romans to lend their wives to their friends to function as surrogate mothers unconvincing. Her discussion of the primary sources is partial. Cantarella (2002: 279), for instance, thinks that Marcia’s emotive and embittered speech to Cato in Lucan, Pharsalia 2.326–49 supports her thesis, while it actually highlights the deeply problematic nature of Cato’s treatment of his wife.

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characters is that the legitimacy of love affairs is based entirely on the free will of those involved in the poem’s love triangle. Even though the beloved woman is cast as property disputed by two claimants, her willingness or resistance will ultimately establish the legitimacy of the claims. By rendering the social criteria of marriage legislation virtually irrelevant, Ovid brings to the fore the autonomy of erotic desire and its power to form the basis of an alternative jurisdiction that not only acts independently of established social hierarchies but also defines moral standards and social norms. While affection is one but not the only necessary condition for marriage in Roman law, love becomes the one and only requirement for a legitimate relationship in Ovid. Law and love simultaneously converge and diverge, in that each subsumes the other, while both claim exclusivity and self-sufficiency in defining and regulating personal relationships. Classicists are ready to trace parody of legal language in love poetry, but if we give credit to the autonomous jurisdiction of am­or­ous desire, the rules of the game may change. Elegiac poetry borrows from legal diction as much as the law is a reflection of the lover’s discourse. In an important study of family and love in the Roman Empire, Paul Veyne (1991: 88–130) argues that a major metamorphosis in the sexual relations of married couples takes place between the age of Cicero and the Antonines. A couple’s harmonious relations are no longer a welcome but unnecessary ingredient of marriage but become the main requirement. The laws of the heart define marital affairs.49 For Veyne (1991: 110), in Seneca and Lucan conjugal love becomes the norm for a harmonious marriage. But this major shift can be traced back to the importance of affectio maritalis in Augustan legislation. What is more, the power of poetry not only to reflect but also to be a catalyst of social change should not be underestimated. Latin love elegy plays a major role in establishing love’s autonomous power in judging the legitimacy of relationships. That, in the future, rights of matrimonium will be given to classes that 49  Veyne (1991: 108): ‘[D]ésormais le fonctionnement même du mariage est censé reposer sur la bonne entente et la loi du cœur.’

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were excluded by law from marrying is the result of making Amor the foundation of legality. As is often the case in the Amores, the coda deflates the drama. Ovid will not be separated for long from his mistress, since he will see her the day after the dinner party (Am. 1.4.69-70). Whether she had sex with her ‘husband’ or not is beside the point. Contrary to law’s obsession with finding the truth, Ovid’s system of justice refuses to penetrate the privacy of the bedroom in order to shed light on the facts. All the mistress needs to do is deny with a steady voice that she slept with her ‘man’. The last word of the poem is a procedural nega, which implies a court of love in which Ovid is the judge and his mistress the defendant (cf. Am. 3.14). The adulterer is the representative of justice, while marital sex may be a crime.

Amores 2.5 Amores 1.4 and 2.5 form a diptych. Both poems deal with a love triangle at a dinner party and, read in conjunction, they give the impression of a narrative progression in Ovid’s collection. In 1.4, Ovid was claiming a woman who was in a committed relationship with another man. By 2.5 he has succeeded and finds himself in the role of the uir. His girlfriend has also made progress and learned too well from Ovid how to deceive her ‘man’. The tricks the poet taught her in 1.4 are his undoing in 2.5. By the end of the elegy Ovid even realizes that Corinna has found a superior teacher in matters of lovemaking. The poet becomes the cuckolded uir and the new adulterer the teacher of love, a shift that stresses the fluid identities of ‘husband’ and ‘lover’ in Ovidian elegy. The instability of the poet’s role in the love triangle, which was already anticipated in 1.4, not only stages the collapse of the subject as a useful category of analysis in Roman life (Miller 2004: 172; cf. Mack  1988: 58–9; Stapleton  1996: 32), but also underscores elegy’s essentially juridical power of deconstructing and reconstructing social identities.

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The Court of Love in Amores 2.5 The setting of a private court of love that is concerned with the public exposure of illicit affairs constitutes the main legal fiction of 2.5 (see Gebhardt 2009: 171–7, 316). The key issue is the public nature of the mistress’s misbehaviour and the fact that the poet became an eyewitness of her indiscretions at a dinner party: non mihi deceptae nudant tua facta tabellae nec data furtiue munera crimen habent. o utinam arguerem sic, ut non uincere possem! me miserum! quare tam bona causa mea est? felix, qui quod amat defendere fortiter audet, cui sua ‘non feci’ dicere amica potest! ferreus est nimiumque suo fauet ille dolori, cui petitur uicta palma cruenta rea. ipse miser uidi, cum me dormire putares Amores 2.5.5–13 It is not a disguised letter that lays bare your deeds to me nor gifts given secretly that are open to accusation. Oh, if only my charge were such that I could not win! Wretched me, why is my case so good? Happy he who dares boldly defend his beloved, to whom his mistress can say, ‘I did not do it!’ Iron of heart is he, and too much favours his own pain, who would pursue a bloodstained palm by the downfall of the defendant. I saw your guilty acts my wretched self, when you thought I was asleep

Ovid is involved in a lawsuit in which he is the plaintiff or pros­ecu­ tor, even though he would much rather be the defence lawyer. The dramatic effect of Ovid’s forensic rhetoric is exemplary. The pros­ecu­tor casts himself as lenient and reluctant to accuse the defendant, a ploy that ultimately stresses the indisputable nature of the incriminating evidence. Even though he wishes to lose the case, the evidence makes it impossible to come up with unconvincing allegations. This manoeuvre is at home in courtroom rhetoric and

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attested in declamations (McKeown 1998 ad 2.5.7–8 quotes [Quint.] Decl. 5.5 me infelicem, quod bonam habeo causam, ‘Wretched me, I have a good case!’). The voice of a lover tormented by his mistress’s infidelity converges with the emotive histrionics of courtroom rhetoric. The aim is to pre-empt the defence’s attempt to create ill will against the prosecution.50 The lover/accuser does not bring charges against his mistress out of spite or jealousy. Instead, he dreams of a trial in which he could bravely defend his beloved’s innocence and she could declare ‘not guilty’.51 It is clear that the mistress is brought to a court of love and Ovid is winning the case to his detriment. The confluence of elegiac and legal diction is enriched by the typically Ovidian combination of martial and forensic imagery. The brave defence of the mistress (defendere fortiter) can apply both to a lawyer and a soldier.52 The pentameter cui petitur uicta palma cruenta rea is predominantly martial until the last word (rea) compels the reader to reread it in a legal context. The bloodstained wreath first evokes a military triumph and uicta suggests a conquered enemy. Yet palm crowns were given as a reward for forensic success (see McKeown  1998 ad 2.5.11–12), and uicta here modifies the defendant who was defeated in a lawsuit. Such a cruel pursuit of convicting an unfaithful mistress is simply a cause of grief for the victor. But Ovid did not really have a choice to turn a blind eye to his mistress’s offences, since she displayed her love for another man in his presence. The prosecution does not rely on the circumstantial evidence of coded notes (deceptae . . . tabellae)53 and secret gifts, but on the direct evidence of the poet, who happens to be the eyewitness of the woman’s crime. Ovid’s uidi is the testimony of an eyewitness in court.54 After a series of suspicious nods 50  See Watson (1983: 92–3). She cites Aristotle, Rh. 3.14.7; Cic. Inv. rhet. 1.16.22; Rhet. Her. 1.5.8; Quint. Inst. 4.1.14; and the exordium of Cicero’s Pro Caelio. 51  For the legal term non feci (‘not guilty’), see McKeown (1998 ad loc). Cf. Am. 3.14.15 and see also Cic. Inv. Rhet. 1.10, Lig. 30, [Quint.] Decl. 13.10, 281.2. 52 Cf. Tr. 4.10.18 fortia . . . arma fori; Cic. Fam. 12.29.1. 53  The text is problematic, but I take deceptae to mean ‘disguised’ (with McKeown 1998 ad loc.). See Ars 3.493–8 for strategies of concealing the message of a love letter (e.g. change of gender). 54  See Servius on Vergil, Eclogue 3.17 manifesti eum furti arguit dicendo ‘uidi’, ‘he accuses him of being a thief caught in the act by saying “I saw” ’; see also Juvenal 7.13 si dicas sub iudice ‘uidi’, ‘if one says before a judge “I saw” ’ and 16.30.

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and messages written on the table with wine, secret communication all too familiar to Ovid, the lover sees his mistress passionately kissing another man (23–4). The courtroom fantasy continues as Ovid repeats his testimony with an assertion that he speaks the truth and only the truth (23 tum uero . . . uidi, ‘then truly did I see’). The lover’s first-hand evidence turns his girlfriend’s amor furtiuus into a furtum manifestum. Her crucial error was that she did not take adequate precautions to conceal her tryst with another man. The erotic nature of legal discourse is a significant feature of Ovid’s court of love. The language that describes the evidence of a woman’s infidelity is itself erotically charged. The effect is that the legal procedure of revealing a sexual crime becomes intrinsically erogenous. The telling nudant tua facta tabellae employs an appropriately suggestive verb for exposing the naked truth of the mistress’s ‘deeds’. The use of facta in the meaning of ‘misdeeds’ and as a sexual euphemism (cf. McKeown  1998 ad loc.) is in play here. Playing the role of a uir, Ovid criminalizes illicit sex by relying on an essential overlap between the language of sex and crime. Line 2.5.6 further stresses the sexual connotations of legal evidence; data furtiue munera refers to the gifts lovers exchange (cf. Catullus 65.19). At the same time, munus is used of sexual services (see Adams 1982: 164) and dare of giving in sex (see Ars 3.462). The legal nature of furtiue and crimen habent, terms which commonly describe elegiac liaisons, adds to Ovid’s institution of a criminal court for his mistress’s affair. The convergence of the erotic and the legal is crucial. It reveals the sexual dimension of legal proceedings—law’s voyeuristic desire for the naked truth or a trial’s seemingly clinical procedures for removing all layers of privacy and exposing a defendant’s most in­tim­ate moments to public scrutiny. Desire lurks behind legal actions and elegiac diction alike. When Ovid sees his girlfriend kissing another man, he exclaims in an attempt to lay a claim to the ownership of pleasure: ‘quid facis?’ exclamo ‘quo nunc mea gaudia defers? iniciam dominas in mea iura manus! haec tibi sunt mecum, mihi sunt communia tecum:

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108  Law and Love in Ovid in bona cur quisquam tertius ista uenit?’ haec ego, quaeque dolor linguae dictauit; at illi conscia purpureus uenit in ora pudor Amores 2.5.29–34 ‘What are you doing?’ I declaim. ‘Why are you bestowing joys that are mine? I will lay my sovereign hands upon my rights. Those kisses are common to you with me, and common to me with you— why does any third attempt to share those goods?’ These were my words, and whatever pain dictated to my tongue; and ruddy shame came upon her guilty face.

The lover’s cry of exasperation introduces the procedures of a uindicatio. The phrase mea gaudia defers is legal terminology, recalling claims of inheritance.55 The repetition of the possessive adjective (mea) reproduces the formula of the uindicatio (cf. Am. 1.4.40 et dicam ‘mea sunt’ iniciamque manum, ‘and I shall say “those are mine” and lay hand to my claim’). The adjective dominas suggests the paradox of the lover who claims ownership of his domina (‘mistress’). The procedure of rei uindicatio is about claiming a slave but is here applied to the elegiac mistress. Once more we observe the eroticization of legal words and gestures. What is bestowed upon a claimant is not an inheritance but sexual joy (gaudia). The lover’s touch of his beloved highlights the sensual dimension of the gestures of property law. Desire claims the absolute ownership of the beloved’s body and is thus the legal basis of the lover’s uindicatio. The erotic nature of legal formulae is further stressed with in bona . . . uenit, which is the technical legal term for becoming en­titled to a property, usually an estate in the context of inheritance (see McKeown 1998 ad loc.; Gebhardt 2009: 173). Yet, in this case, bona refers to ‘sexual benefits’.56 The elegiac love triangle becomes a dispute over property. In this context, tertius is a juristic term, referring to the ‘third heir’ who had little prospect of benefit (see McKeown  1998 ad loc.). Here the property is not the girl but the 55 On deferre hereditatem in this passage, see Kenney (1969: 257 n. 51). 56 For sexual bona, see Tibullus 1.6.33–4; Ov. Am. 3.12.14, with McKeown  1998 ad 2.5.31–2.

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mutual pleasure of the lovers. Ovid and his mistress are the ­co-owners of their kisses, and there can be no third party with a legal claim to them. Having a share of these kisses without being one of the owners constitutes a theft, the very word that describes an elegiac love affair. Ovid makes the immaterial nature of kisses concrete by applying to them the language of property law. This is more than Ovid’s playful application of Roman law to love elegy. If desire is the basis of ownership, property law is already a version of the laws of love, a fundamental link that enables Ovid to present the claims of a lover as the basis of a legislative procedure. The legal act of becoming an owner derives from the fulfilment of a person’s wish to acquire the object of his or her desire. The lover’s mixed experience of pleasure and pain is played out against the courtroom setting of Amores 2.5. The blending of suffering and delight runs through the poem and is often interwoven with legal discourse. At the beginning of the elegy, the lover addresses his girlfriend as one born for his eternal suffering (4). In Ovid’s court of love, prosecuting the guilty woman is a source of anguish for the judge/prosecutor and a masochistic act of a lover who favours his pain (11). In the uindicatio, what is disputed is the ownership of sexual pleasure (29 gaudia). Pain plays the role of a iurisconsultus who prepares his client for an appearance in court (33 dolor . . . dictauit).57 The poet is tortured because of the outstandingly sweet kisses that the mistress gives him (53 torqueor infelix, ne tam bona senserit alter, ‘I am in wretched torment for fear my rival has tasted them as sweet’). Ovid suffers, because he fears that her kisses are a shared property (bona). Excessive pleasure results in pain (57 quod nimium placuere, malum est, ‘it is painful because they were too pleasing’). Passionate kisses are a source of pleasure and distress (59–60). The ‘misfortune’ (malum 4, 57) of the slave of love is a version of the beating of slaves (e.g. Plautus, Persa 361 eru’ si minatus est malum seruo suo, ‘if a master threatened his slave with a beating’). The lover’s servile tortures paradoxically coexist with his claims that he owns his mistress. 57  Ovid uses dictare in this sense in Her. 20.29, in which Amor is cast as a iurisconsultus giving Acontius legal advice (see Chapter 4).

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Amores 2.5 stages the crisis of the legal system as a collapse of distinctions between pleasure and pain and as a confusion of the roles of master and slave. This crisis is a return to a prejuridical condition in which the roles of master and slave had yet to be determined. What we see in the lover’s legal discourse is not a parody of courtroom rhetoric, but the birth of the juridical order from the creation of property rights on the basis of a distinction between the pleasure of the master and the pain of the slave.58 As Agamben (2015: 36) puts it, what seems so scandalous to us moderns—namely, property rights over persons—could in fact be the originary form of property, the capture (ex-ceptio) of the use of bodies in the juridical order. That Ovid claims the ownership of pleasure with words dictated by his suffering highlights the crucial role that the distinction between pleasure and pain plays in defining the legal procedure that distinguishes the master from the slave as well as the owner from the thief. By vindicating his right to possess his beloved’s body, the lover brings the legal system to life.

Catullus in Amores 2.5 In response to the lover’s uindicatio, the girl blushes, giving clear evidence of her guilt. The colour of her embarrassment (purpuREUS) puns on her status as a guilty defendant (reus), a nice touch of legal color in Ovid’s diction. As is the case in Amores 3.14, Ovid sets his court of love against a Catullan intertext which brings up the issue of privacy in love affairs. The reference to amatory gifts as evidence for infidelity (2.5.6 nec data furtiue munera crimen habent) recalls the fiancé’s secret gift in Catullus (65.19 ut missum sponsi furtiuo munere malum, ‘just as the apple sent as the fiancé’s secret gift’). The allusion to Catullus 65 is also suggested when Ovid compares Corinna with a girl blushing when her fiancé looks at her (2.5.36 subrubet, aut sponso uisa puella nouo, ‘she blushed like a girl seen by her newly betrothed’). 58  On the indistinction between the pleasure of the master and the pain of the slave as a return to a prejuridical condition, see Chapter 2.

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This is reminiscence with difference. In Catullus, the apple is sent by the fiancé, not by an adulterer, and is the reason why the girl blushes self-consciously when the apple drops from her lap at the arrival of her mother. In Ovid, there is no secret gift and no betrothal. The elegiac puella blushes when her lover catches her in the act of kissing another man. Ovid’s at illi / conscia purpureus uenit in ora pudor echoes the concluding pentameter of Catullus 65 (25 huic manat tristi conscius ore rubor, ‘a guilty blush trickles on her sad face’). Both the girl in Catullus 65 and Ovid’s mistress fail to keep their secrets. The disclosure of evidence of private affairs establishes the guilt of women in love. Yet the fiancé’s gift exposed to the girl’s mother contrasts with the rival’s kisses observed by the lover. What is a family business in Catullus is transposed to the symposium in Ovid, a social context in which love affairs are not only disembedded from family ties, but also openly displayed. Commenting on Amores 2.5.23 (improba tum uero iugentes oscula uidi. ‘Then I certainly saw you sharing shameless kisses’), McKeown (1998 ad loc.) quotes Catullus 68B.125–7 (nec tantum niueo gauisa est ulla columbo / compar, quae multo dicitur improbius / oscula mordenti semper decerpere rostro), which describes the shameless kisses of doves, which are more wanton than any woman, however promiscuous she may be. Ovid’s improba (23) echoes Catullus’ improbius (68B.126). Yet Catullus’ mistress gives passionate kisses to her lover in the privacy of Allius’ house, which provides a shelter for the poet’s adulterous affair, unlike Ovid’s mistress, who kisses another man in the social gathering of a symposium. As I argued in the section ‘Catullus in Amores 3.14’ above, in Catullus there is a contrast between the public display of affection in the polymetrics and the importance of Allius’ house for the privacy of the elegiac love affair of 68B. Given the Catullan aspects of 2.5, the issue of kisses further recalls Catullus 5 and 7, the ‘kiss poems’ of the polymetrics. In Catullus 5 and 7, the lovers’ kisses can be viewed and judged by malicious onlookers. Catullus 5 not only creates the setting of a public trial (see Chapter 2), but also uses the language of assessing the value of something by counting the wealth of the lovers’ kisses. Ovid’s reference to kisses in terms of property law is in line with the

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economy of passion in Catullus.59 The difference is that Catullus’ irreverent display of his countless kisses contrasts with the mistress’s failure to keep her passion secret in Ovid. As a cuckolded man, Ovid is reduced to playing the role of the judgmental old men in Catullus 5. He is a judge who puts lovers on trial for passionately kissing each other and casts affection in a financial and legal framework. While Catullus flaunted his kisses in public in defiance of old prigs, Ovid begs for privacy in expressions of affection between lovers.

Corinna as Helen and Phryne The self-conscious blush amounts to a confession of guilt. Ovid is about to inflict corporal punishment on his unfaithful girlfriend (2.5.45–6). Tearing a girl’s hair and attacking her cheeks are the typical reactions of hurt elegiac lovers. But in the context of Ovid’s court of love, these actions also add to the concept of love as ­having the force of law. The lover can put his mistress on trial and, if she is found guilty, she will have to suffer punishment as a consequence of her wrongdoing. Only in Amores 2.5, Ovid is incapable of exacting punishment. The reason for this failure is the mistress’s beauty: ut faciem uidi, fortes cecidere lacerti: defensa est armis nostra puella suis. Amores 2.5.47–8 When I looked on her face, my brave arms dropped; our girl was protected by armour of her own.

The couplet ironically echoes the μακαρισμός of the lover of an impeccable mistress: fortes . . . defensa est recalls line 9 defendere fortiter. Once Ovid sees the girl’s beautiful face (faciem), the evidence

59  Cf. Catullus 5.11 conturbabimus, ‘we will go bankrupt’, with Thomson (1997 ad loc). Catullus and Lesbia will go bankrupt by giving countless kisses.

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of her misdeeds (facta) becomes irrelevant for the outcome of the trial. Female beauty acts as a barrier that checks the punitive arm of the law. Ovid’s failure to punish his mistress recalls a famous mytho­ logic­ al precedent in exonerating an unfaithful woman. After the sack of Troy, Menelaus was about to kill Helen, but dropped his sword upon seeing her breast and forgave her.60 The dropping of Ovid’s punitive arms replays this myth from the Trojan Epic Cycle. Beauty is the best weapon for defending one’s crimes of love. The acquittal of Ovid’s mistress further recalls the trial of Phryne. In the story of Hyperides’ defence of the hetaera Phryne, the courtesan’s beauty is a catalyst in her trial (see Athenaeus 13.590d–e; Quintilian, Inst. 2.15.9; cf. 2.15.6). When Hyperides realizes that his rhetorical skills are failing, he disrobes his client. With his gesture, he lays bare, so to speak, strong evidence of Phryne’s innocence, which is none other than her naked body. At the sight of the woman’s breasts, the jurors decide that she is not guilty (see Athenaeus 13.590d–e; Ps-Plutarch, X Oration 849d–e). By exposing Phryne’s breasts, Hyperides stages a version of Menelaus’ exoneration of Helen at the sight of her divine beauty. There is a mythological and a legal precedent that play a crucial role in the acquittal of Ovid’s guilty mistress.61 The story of Phryne’s trial is often reported in the context of Hyperides’ love affairs (see Cooper 1995: 304–5). Athenaeus attests that in his speech in defence of Phryne Hyperides confessed that he was passionately in love with her, and pseudo-Plutarch says that he  became her advocate because he was her lover. Ancient bio­ graph­ic­al tradition views the trial as a quarrel between two lovers (see Alciphron, Ep. 4.5 and 5, with Cooper 1995: 309–11). Euthias is the scorned lover who accuses Phryne of impiety and takes her to court in order to avenge himself on her, while Hyperides is the new lover who defends his mistress. In the case of Phryne, the Areopagus 60  McKeown (1998 ad 2.6.47–8) mentions the myth. Ovid alludes to this myth in the letter of Paris to Helen (see Her. 16.249–54). In this passage, Paris peeks at Helen’s lovely breasts at a dinner party and drops his cup, an allusion to Menelaus dropping his sword. 61  See Ziogas (2017) on the importance of myth in the trial of Phryne. The myth of Helen is the precedent that guides the jurors’ verdict in the case of Phryne.

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turns into a court of love. The trial of Phryne bears more than ­fleeting similarities to Ovid’s court of love in Amores 2.5. Ovid is the scorned lover who puts his mistress on trial when he discovers that she is intimate with another man (see Ziogas 2017: 90–3). He plays the role of the prosecutor and the judge (cf. Gebhardt 2009: 172–5). Just like the jurors in the trial of Phryne, even though he is convinced of her guilt, he is incapable of convicting her when he is faced with her stunning looks. The legal apparatus, not unlike love elegy, aims at capturing bodies in its meshes. The judge is sim­ul­tan­ eous­ly empowered and debilitated by his desire to unveil the truth. In his obsession with material evidence, he becomes the slave of carnal knowledge, while the defendant asserts her position as the sovereign mistress at the very moment of her body’s subjection to the rule of law and love.

Amores 2.7 and 2.8 In the diptych of Amores 2.7 and 2.8, the poet first self-righteously defends himself to his mistress, who accused him of having an affair with the hairdresser Cypassis (2.7). We may be tricked into acquitting Ovid of this unfair charge—Ovid’s readers should know better, though. In the next poem (2.8), Ovid addresses Cypassis, and it becomes clear that he is indeed guilty of sleeping with her. Far from regretting, the poet blackmails the hairdresser into continuing this dangerous liaison.62 In 2.7, Ovid finds himself in the position his mistress was in 2.5. He is a reus, a defendant in a court of love. In the Amores, the poet plays the roles of a judge, prosecutor, witness, and defendant. But the variety of perspectives is deceptive, since we hear only one voice, that of the elegiac lover. In Ovid’s courtroom, there is no principle of audiatur et altera pars. What is revealed or concealed ultimately lies in the poet’s power to publish or censor his private affairs.

62  The most extensive analyses of Amores 2.7 and 2.8 are Henderson (1991) and (1992).

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Propertius in Ovid, Amores 2.7–8 Amores 2.7 and 2.8 are set against an overarching narrative in the corpus of Propertius (cf. Gebhardt  2009: 169–71). In particular, Ovid picks up Propertius 1.18, 2.20, 3.15, and 4.8 as the four pieces of a narrative puzzle. Propertius 1.18 is the poet’s defensio against his mistress’s possible allegations that he is involved with another woman. In 2.20, Propertius consoles Cynthia (see Chapter 2), who accused him of breaking his fides (‘faith’). This poem evokes courtroom procedures in order to stress the extralegal nature of amatory justice. The poet solemnly swears by the bones of his parents that he will remain faithful to Cynthia to his dying hour (15–17). If he forgets his devotion to his mistress, Propertius adds, he deserves to be persecuted by the Erinyes and condemned by Aeacus, the judge of the underworld (29–30). The courtroom fantasy is transferred to the kingdom of the dead, since elegiac crimes seem to lie outside the jurisdiction of Roman law.63 Dead or alive, the lover cannot escape legal procedure. The lover’s fidelity is once more the issue in Propertius 3.15. In this elegy, the poet assures his mistress that she has nothing to fear from her servant Lycinna, with whom Propertius once had an affair, although he has no interest in her any more. The poet urges Cynthia to ‘stop tormenting innocent Lycinna’ (43 at tu non meritam parcas uexare Lycinnam). The defence of Lycinna will simultaneously exonerate Propertius. Unlike Amores 2.8, in Propertius there is no immediate sign that the poet lies. But there is no proof that he tells the truth either. If we read the entire corpus of Propertius, we realize that in Amores 2.7 and 2.8, Ovid compresses a narrative progression that is spread out in the four books of his elegiac predecessor. In Propertius 1.18, 2.20, and 3.15, the poet assures Cynthia that he is faithful to her. But in 4.8, he is partying with two girls when Cynthia turns up unexpectedly.

63  Cf. the court of the underworld in Propertius 4.11, where Cornelia’s chastity is put on trial; see Janan (2001: 146–63); Lowrie (2009: 349–59).

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In Propertius 4.8, Cynthia catches the poet in flagrante and a brawl of epic proportions breaks out. After she despoils her rivals, the unfaithful lover begs for mercy like a defeated warrior. The ­mistress then pronounces her legal terms (4.8.74 formula legis). Propertius needs to follow Cynthia’s code if he wants her to forgive his crime (73 admissae si uis me ignoscere culpae, ‘if you wish me to pardon the offence you committed’).64 Propertius promptly accepts the mistress’s laws (81 legibus utar) and, after Cynthia performs a ritual fumigation, the conflict is resolved in bed (87–8). Propertius casts amatory conflicts as legal disputes. As readers we are invited to judge whether the elegiac lover is guilty or not. What we only retrospectively suspect in Propertius becomes immediately clear in Ovid: the lover is unfaithful and lies to his mistress. The comedy in Propertius begins when Cynthia catches him in the act, while the comedy in Ovid is related to his deceptive rhetoric. In Propertius, Cynthia is the voice of the law and the lover sheepishly agrees with her rules. In the Amores, the poet is a master of legal and amatory manipulation. The voice of his mistress is not heard, and she never catches him in the act. Ovid’s courtroom is set against the intertext of Propertius. In Ovid and Propertius, the court of love is a fantasy that takes place outside the juridical order. The wilderness of the banished lover becomes the setting of his imaginary trial (Propertius 1.18)—a trial that his sovereign mistress denied him (see Chapter 2). The dinner party is the locus of legislative action (Propertius 4.8; Ovid, Amores 1.4 and 2.5). The poet defends himself in his mistress’s figurative courtroom (Amores 2.7). A letter to a slave contains the projected performance of a speech in an imaginary court (Amores 2.8). The elegiac courtroom is, of course, a fiction anyway, but Propertius and Ovid repeatedly go out of their way to add additional layers of fictionality to their forensic fantasies. These fictional layers are not evidence that the love poet’s legal discourse is ridiculous. Instead, they point to the fact that the law is created through performative fiction. They further highlight that the lover inevitably daydreams 64  We may trace an echo of Propertius’ offence in Ovid’s oath of innocence (Am. 2.7.28 me non admissi criminis esse reum, ‘that I am the defendant of a crime I have not committed’).

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about the inscription of his desire in the juridical order. The poet’s wish to make love by writing poetry is intimately related to his legal fantasies.

Ovid’s Double Act Amores 2.7 is the speech of a reus and is addressed directly to his mistress, the plaintiff who pressed charges, and the judge who needs to be convinced of the defendant’s innocence (see Gebhardt 2009: 169–71; Watson 1983). Particia Watson (1983) argues convincingly that Ovid’s protestations of innocence in 2.7 are couched in the style of a formal speech in which the defendant answers the arguments of the prosecution. Ovid has found himself in this position many times and, even though he won his cases in the past, he finds the repetition of the charges tedious: Ergo sufficiam reus in noua crimina semper? ut uincam, totiens dimicuisse piget. Amores 2.7.1–2 Should I then always stand trial on new charges? Even though I win, I am tired of fighting my case so many times.

The prosaic ergo transfers us in the middle of the defendant’s formal rejoinder.65 The couplet is rife with legal terminology: sufficiam means ‘to meet the needs of a legal case’ (OLD s.v. 4d; Ulpian, Digest 9.2.27.19, 24.1.32.22, 38.5.1.22); reus and crimina suggest the setting of a trial right from the beginning. The pentameter blends the language of war with that of law, another case of Ovid’s familiar confluence of martial and legal imagery: uincam (‘I conquer in war’ and ‘I win a case’) is followed by dimicuisse (‘to fight in battle’ and ‘to contend’).66 The indignant tone of the rhetorical question turns the readers into the audience or rather the jurors of Ovid’s court of 65  For a detailed semiotic analysis of this opening couplet, see Henderson (1991: 40–50). 66  Watson (1983: 92 n. 7) points out that dimico is frequently found in legal contexts (e.g. Cicero, Sest. 1; Livy 3.44.11; Digest 9.1.5).

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love. As Watson (1983: 92–3) notes, Ovid expresses weariness at the habitual and unfair accusations in order to create ill will against his opponent, a standard method of winning the audience’s good will, which is the principal aim of the exordium (see Cic. Inv. rhet. 1.16.22; Rhet. Her. 1.5.8; Quint. Inst. 4.1.14). The poet wishes he had been guilty, since then he would have accepted the fairness of the punishment (11–12). The defendant thus attempts to win over the jurors by implying the injustice of the accusations. We are likely to sympathize with Ovid, especially since Corinna’s formal accusations are omitted. The arguments of the prosecution are presented through the distorting lens of the defence. Before addressing the current charge, Ovid describes the past accusations. Corinna previously brought charges (see 6 arguis, OLD s.v. 4) against Ovid whenever an attractive woman looked at him, arguing that the evidence lay in the facial expression (6 in uultu tacitas arguis esse notas, ‘you charge that in her face were silent signals’).67 Ovid gives Corinna legal advice by pointing out that the litigiousness of the prosecution undermines the validity of the accusations (13–14). He then presents the current charge: ecce, nouum crimen: sollers ornare Cypassis obicitur dominae contemerasse torum. Amores 2.7.17–18 Behold, a new accusation: Cypassis, the skilful hairdresser, is brought as a charge against me, accused of having defiled the mistress’s bed.

The legal term obicere, followed by the infinitive that describes the accusation, appears in a stylistically elevated couplet. Patricia Watson (1983: 100–1) notes that the accusation is presented in terms of a sacrilege. The strong and peculiar compound contemerasse refers to the violation of something sacred. Elsewhere, Ovid uses temerare to describe an adulterous affair (see Her. 5.101 lectum temerare; 16.285; Met. 15.501). Ovid’s extramarital relationship 67  See Henderson (1991: 86) for the semantic range of notae here (‘signs’, ‘marks of infamy’, ‘badge of shame’, ‘the torturer’s marks’).

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with Corinna is thus described in terms that evoke the sacredness of marriage and his alleged affair with Cypassis is presented as a serious crime of adultery. The elegiac court of love becomes a reflection of the emperor’s standing criminal court (quaestio perpetua de adulteriis). From that perspective, there is a significant gender inversion. Even if Ovid and Corinna were married, Augustus’ adultery laws would not prevent him from having sex with slaves.68 But according to elegiac law, a man who is not monogamously devoted to his puella commits a crime irrespective of the social status of his paramour. Elegy’s court of love reflects and transforms Augustus’ criminal court by making all genders and social classes liable to what applied to respectable women alone in the moral legislation. Note, however, that in the standing criminal court of Amores 2.7, the accused brings up the social gap between him (a Roman citizen) and Cypassis (a slave) as supporting evidence for his innocence. With a rhetorical question that blends the language of law and sex, Ovid aims to convince Corinna that a freeborn citizen cannot be attracted to a slave: quis ueneris famulae conubia liber inire tergaque complecti uerbere secta uelit? Amores 2.7.21–2 What free man would want to mate with a slave and embrace a back cut with the lash?

It serves the guilty lover’s rhetorical purpose to describe sex between a free man and a slave as having sex with an animal (cf. McKeown 1998 ad loc.), thus making Corinna’s accusation sound unreasonable. After all, from a legal perspective, slaves and animals were chattels (res). The phrase ueneris conubia comes from a passage in Lucretius that refers to the mating of animals (3.776 conubia ad ueneris partusque ferarum, ‘for the marriage and parturition of beasts’). In its sexual sense, inire is predominantly used of animal breeding (see Metamorphoses 10.327, with Reed 2013 ad loc.; Fasti 2.441, with 68  By contrast, if a married woman had sex with a slave, she committed adultery.

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Robinson  2011 ad loc.). The word terga commonly describes an animal’s hide. In this poem in particular, the lashing of Cypassis’ back resonates with the image of a donkey broken by constant blows (15–16 asellus / assiduo domitus uerbere, ‘a donkey b ­ roken by endless flogging’); uerbere after the pentameter’s caesura (22) echoes uerbere (16) in the same metrical position.69 As a slave of love, Ovid compares his suffering with the flogging of a poor animal, before he refers to his status as a freeborn citizen (liber) in contrast to the slave Cypassis. According to Roman law, Ovid is a free man and Cypassis a slave, but according to elegiac law both Ovid and Cypassis are the slaves of the same domina.70 The mistress cracks her whip not only against Cypassis but also against Ovid, presumably for the very same reason, because they are not loyal to her. Cypassis and Ovid have, in fact, a lot in common. The diction that implies the mating of animals is the same as the language of law. As McKeown (1998 ad loc.) notes, conubia inire has a strict legal sense. Slaves were incapable of contracting conubium, that is, they did not have the legal capacity to marry (Ulpian, Reg. 5.5 cum seruis nullum est conubium, ‘there is no intermarriage with slaves’; see Watson  1983: 102; Treggiari  1991: 43–9), and phrases such as coniugium, matrimonium, nuptias [uel sim.] inire are found almost exclusively in legal texts (see TLL 7.1.1297.9). Ovid says that intermarriage between a Roman citizen and a slave is legally impossible, but he also wants to present Roman law as the outcome of a man’s free will. Note that ‘marriage’ with a slave is ruled out on the basis of aesthetic criteria, since no one would find a body full of scars attractive. A slave’s wounded body is socially and aesthetically significant. Likewise, the crucial word liber describes both social status and free will, two factors that dictated whether a man and a woman had the right to marry. Ovid’s legal argument (or sophistry) is impressive. Consent and freedom of choice that are internally regulated appear indistinguishable from externally imposed marriage 69  Cypassis is a famula (21), but note that famulus is applied to animals in Vergil, Aen. 5.95 and Ovid, Met. 3.229, 8.272. 70  Note that 16 domitus (‘conquered’) falls into the same metrical position as 18 dominae (‘mistress’). The slave of love is like an animal broken by floggings. For the symbol of the donkey as applying not only to the lover, but also to the servant girl, see Mills (1978: 305).

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laws. The diction that describes the animal instinct of beasts that know nothing of sociolegal constructions is identical to the technical terminology of Roman law that relegates sexual affairs between masters and slaves to an area outside contractual conubium. The natural law of sexual attraction reflects and is reflected in Roman laws of intermarriage. In view of Ovid’s affair with Cypassis, this reflection is of course deceptive. The assimilation of Roman to natural law is an illusion. Ovid has no interest in marrying Cypassis, but is very keen on having sex with her. In 2.8, the lover makes clear that he is after sex with Cypassis: concubitus (2.8.6, 22), not conubium. Unlike ­conubium, concubitus has nothing to do with the right to marry (cf. Watson 1983: 102). Ovid contrasts his social status with that of Cypassis in an attempt to exculpate himself, but his poetry ul­tim­ate­ly highlights that the natural laws of attraction confound sociolegal constructions. Ovid, the seruus amoris, lusts after his mistress’s slave. In her important article, Patricia Watson (1983) contrasts the formal and legalistic style of 2.7 with the more intimate style of 2.8 and concludes that the difference is between responding to a charge (2.7) and aiming at seduction (2.8). I agree that there is some stylistic contrast between the poems, but I disagree that there is a clear distinction between the discourse of seduction and courtroom rhetoric. Ovid’s ulterior motive is to be able to sleep both with his mistress and her slave, so that both 2.7 and 2.8 employ forensic rhetoric for amatory purposes. Amores 2.7 and 2.8 exemplify the interdependence of forensic rhetoric and seductive persuasion. Both poems are part of the same legal discourse, and read together they give the impression, or rather the illusion, that we are listening to the arguments of the defence and the prosecution. While in 2.7 Ovid argues that it would be absurd for him to make a pass at his girlfriend’s faithful hairdresser, since her inevitable rejection would be followed by her incriminating information (26 indicio), in 2.8 he wonders who or rather what acted as an informer (5 index) of their affair. After firmly denying that he blushed or accidentally said something that could be used as evidence against their ‘theft’ (3 furto, 8 furtiuae ueneris), he berates Cypassis for blushing at her mistress’s enraged glares. The poet witnessed this, and 2.8.16

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(uidi te totis erubuisse genis, ‘I saw you blushing all over your cheeks’) suggests the testimony of an eyewitness in court,71 anticipating Ovid’s threat that he is ready to become an informer of their affair (25–6 index ante acta fatebor / et ueniam culpae proditor ipse meae, ‘I shall turn informer and confess all we have done before; I shall stand forth the betrayer of my own guilt’) should Cypassis refuse to gratify him sexually. Ovid blackmails his par­amour by saying that he will make an appearance in the court of love and speak not as a defendant but as a witness in support of the prosecution. While the female voices of both plaintiff (Corinna) and defendant (Cypassis) are virtually silenced, the lover plays the role of the defendant in 2.7 and threatens to join the prosecution in 2.8. We can read the diptych as a controuersia, since Ovid argues for and against himself. Amores 2.8 contains the refutation of the defendant’s arguments in 2.7. In particular, the argument that it would be absurd for a free man to fall in love with a lowly slave (2.7.19–22) is refuted with examples of famous heroes (Achilles and Agamemnon) who fell in love with captive women (2.8.9–14). Ovid’s dismissal of facial expression as evidence of infidelity (2.7.5–6) is countered by his testimony that he saw Cypassis blushing. The oath to Venus (2.7.27–8) is invalid (2.8.19–20). The threat of 2.8 is powerful, if we consider that the poem already sounds like a draft of Ovid’s courtroom speech against Cypassis. Not unlike an experienced sophist, the lover is a master of δισσοὶ λόγοι, capable of arguing both sides in order to have it both ways. The difference between 2.7 and 2.8 is that the former is presented as a defence speech in a public trial, while the latter can be read as private correspondence between lovers who are implicated in a crimen amoris. The tone changes but the courtroom drama continues. We just move from the public view of the court (2.7) to the privacy of out of court negotiations (2.8). Yet this is one, but not the only way of reading Ovid’s diptych. We are reading a controuersia, and both poems draw on forensic rhetoric. The elegies can easily provide material for a publically performed declamation. At the same time, both poems can be read as private correspondence between 71  See the section ‘The Court of Love in Amores 2.5’ above on Am. 2.5.13 uidi as the testimony of an eyewitness.

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Ovid and Corinna (2.7) and Ovid and Cypassis (2.8).72 The diptych revolves around and crosses the thin line that separates private disputes from public trials. The last couplet of 2.8 is a threat of confession in distinctly forensic terms (see McKeown 1998 ad 2.8.27–8): Ovid will appear in court as an informer (25 index) and confess to the mistress (domina) where he met Cypassis, how many times, as well as in how many and in what sort of sexual positions they had intercourse (28 quotque quibusque modis). The most intimate details of a secret love affair will be revealed in the context of a trial. Read together, Amores 2.7 and 2.8 exemplify the ways in which the law invades the privacy of the bedroom not only in the criminal courts of Augustus, but also in the elegiac courts of love. The law has intruded into the private sphere of love affairs, but this intrusion is an elegiac fantasy. John Henderson (1991: 51–2) notes that not only is there no real court case in these poems, but there is no courtroom, not even a metaphorical one. This does not downplay the significance of legal discourse in love elegy, but highlights the importance of performative fictions in legal procedures. For Henderson (1991: 51–2), the juridical patterns in Amores 2.7 and 2.8 are explained because the law is the discourse in which we irreducibly articulate all disputes. But we can turn this round and argue that the lover’s discourse is what we irreducibly employ to resolve all legal disputes. The juridical patterns of Amores 2.7 and 2.8 may simply activate a courtroom fantasy, but Ovid’s illusion of a public trial shows that in reality the law rules in the lovers’ most intimate zones, just as love plays a big role in public trials.

Amores 2.19 and 3.4 So far, I have focused on elegies from the Amores (1.4, 2.5, 2.7, 2.8, and 3.14) that are addressed to women with whom Ovid has an affair. The legal discourse of these poems aims to captivate or capture the poet’s beloved. In Amores 2.19 and 3.4, Ovid’s addressee is

72  The privacy of Ovid’s correspondence is, of course, compromised by the publication of the Amores.

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not his mistress, but her husband. Unlike the diptych of 1.4 and 2.5, in which the marital status of the uir is deliberately unclear, the pair of 2.19 and 3.4 is clearly about adultery. The terms ‘wife’ (uxor 2.19.46; 3.4.45) and ‘husband’ (maritus 2.19.51, 57; 3.4.27) leave little doubt that Ovid here is playing with fire (see Davis 2006: 81–3). In Amores 2.19, Ovid ironically supports Augustus’ law against husbands pandering for their wives (lenocinium; see Am. 2.19.57 lenone marito),73 because it guarantees the pleasure of breaking it. Peter Davis (2006: 81) is right to note that the lover’s injunction would be appropriate in the lips of a moralist urging husbands to watch their wives more carefully. The lover speaks like a censor; only his ul­ter­ior motive is the seduction of a wife, not the preservation of her chastity. In Amores 3.4, by contrast, Ovid encourages his mistress’s husband to be complaisant and thus profit from gifts given to his wife by her lovers. The poet not only encourages the husband to become a pimp against the lex Iulia but also argues that by being indifferent to his wife’s escapades, he will ultimately discourage adultery. A woman is desirable not because of her beauty but because of her husband’s love for her (3.4.27 amore mariti). Instead of guaranteeing that the rules are observed, draconian adherence to the law invites transgression. Transgression maintains the interdiction in order to enjoy its infringement. By imposing the law, the husband makes possible the delights of violating it. This is the main argument of Miller’s (2004: 160–83) fascinating reading of law in the Amores. For Miller, the Amores do not step out of the ruling ideology but remain its ironic reflection.

Law, Desire, and Transgression Desire is the coin, with law and crime its two sides. Ovid suggests that law kindles desire by denying it.74 Law is thus what makes 73  Men who procure lovers for their wives are liable to a charge of lenocinium (‘pandering’) under the lex Iulia. On lenocinium under the Augustan adultery laws, see Treggiari (1991: 288–90); McGinn (1998: 171–94, 216–47). 74  See Aristodemou (2010: 398): Furthermore, law not only does not hinder, but actually incites desire by creating a gap between the subject and the unattainable, impossible Thing. The gap

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crime possible. No one wants to have something unless it is forbidden (2.19.3–4 quod licet, ingratum est; quod non licet, acrius urit: / ferreus est, si quis, quod sinit alter, amat, ‘what is permitted is un­attract­ive; what is not permitted burns more fiercely: if one loves what another concedes, one has a heart of iron’). Augustus’ lex Iulia thus becomes the unexpected supporter of adultery, since it does not suppress forbidden affairs but provokes them. The law invites transgression by fanning the fires of passion. Ovid highlights the undesirability of legitimate liaisons, paradoxically describing his adulterous affair as concessus amor: lentus es et pateris nulli patienda marito; at mihi concessi75 finis amoris erit. Amores 2.19.51–2 You are slow and endure what a husband should not endure; it will be the end of my love, if it is conceded to me.

In Horace, concessa Venus refers to non-adulterous extramarital sex as opposed to adultery (Sat. 1.4.113–14 ne sequerer moechas, concessa cum Venere uti / possem, ‘I should not pursue adulteresses, while I might enjoy permissible sex’). The legal meaning of concessa in Horace is clear: sex with married women is a crime, while sex with prostitutes does not break the law. Interestingly, in the pseudoOvidian Consolatio ad Liuiam, the rare periphrasis concessus amor describes the ideal (or idealized) marriage of Drusus and Livia (305 tu concessus amor, tu solus et ultimus illi, ‘You were his lawful love, you his last and only love’).76 Peter Davis (2006: 81) notes that to between the subject and the Thing creates and sustains desire such that ­prohibition leads to more desire, and as the practitioners of courtly love well knew, the subject sustains her desire by obeying the law. Prohibition therefore serves desire because desire arises to fill the gap created by prohibition. Law transforms the inherent impossibility of satisfying one’s desire into ­prohibition. It thus secures our desire by avoiding confrontation with the impossibility of fulfilling it (see Dean 2004: 11). 75 With concessi, I follow Kenney’s OCT. McKeown (1998 ad loc.) defends concessa (­ablative absolute) as the lectio difficilior. Either way, this textual issue does not significantly affect my argument. 76 For concessus amor, see also Ciris 244 si concessus amor noto te macerat igni, ‘if lawful love wastes you with a well-known flame’; cf. Ovid, Met. 9.454.

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call adultery concessus amor is shocking and paradoxical. This is right, but I think there is more to it. In this couplet, Ovid describes the metamorphosis of an adulterer into a husband, a trans­form­ ation that the lover should resist at all costs. If the husband suffers what no husband should suffer, he virtually stops being a husband. By contrast, if an adulterer can have an affair with a married woman with the permission of her husband, he is not really an adulterer. In Ars 3.585–6, Ovid says that men are not in love with their wives because they are readily available. The lover fears that by having uninhibited access to his beloved, he will play the role of a husband and his passion will inevitably fade away. Passion comes to an end once it is legalized. By making love lawful, the law kills love. Ovid shows how permitting adultery not only discourages this crime but also makes it impossible. Once permission is granted for transgression, the distinction between following and breaking the law collapses. Law and crime, marriage and adultery are both concessus amor. What is striking in this couplet is that the husband seems to have the power to define the legality of an extramarital affair. This is clearly against the spirit of Augustan legislation, which gave no option to a husband to condone his wife’s loose morals. In the Amores, the legal framework of a love triangle is defined by the husband, the wife/mistress, and the lover. Or, more precisely, it is entirely controlled by the lover, who gives advice on law and love to all interested parties. Love appears as a private affair in the legal code of the Amores. Augustan law is excluded from it at the very moment of the law’s inescapable intrusion into the private zone. Ovid shows that passion does not exist without the law and, provocatively but accurately, that the legal system depends on its failure to eradicate violations. The poet and the prince, like crime and law, are two sides of the same coin. Augustan legislation postulates that sexuality must be subject to the law, and thus sexuality owes its very definition to the action of the law. As Foucault puts it, the result of submitting our sexuality to the law is that we have no sexuality except by subjecting ourselves to  the law (see Foucault  1979: 128). Adultery exists precisely because the law defines it and attempts to suppress it. The elegiac

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genre, with its forbidden passions and love triangles, will cease to exist in the absence of the law. Ovid owes his existence to Augustus, just as the moralist owes his existence to the adulterer. That is why in the Amores the adulterer employs the discourse of the moralist. Like, after all, recognizes like. The presence of human law implies the departure of justice from humankind.77 In the golden age, Ovid tells us (Metamorphoses 1.89–93), human beings lived without law, without punishment, and without judges. If everyone is trustworthy and does what is right, there is no need for law. A just society is the end of the legal system. But universal justice is also the end of amor. Law and love are born and die together. The golden age has no passions, no craving for new conquests. We meet ‘violence and the criminal passion for possession’ in the bronze age (Met. 1.131 uis et amor sceleratus habendi). Once desire creates the concept of possession, property law emerges in order to regulate the urges of mankind. Marriage and adultery belong to the originary regulation of the ‘passion for possession’ (amor habendi). Desire anticipates the definition of criminal behaviour and thus necessitates its correction with the establishment of a legal system. The iron age is characterized by the breakdown of family ties and the flight of justice from the earth (Met. 1.145–50). Augustus’ adultery laws seem to belong to the postlapsarian world of the iron age not to the harmonious society of the golden age.78 In the total absence of criminal behaviour, absolute justice rules without ever condemning or punishing men. In human society, the legal system needs to intervene in order to suppress offences by punishing crimes. While crime is the outcome of the departure of justice in the myth of the human races, Ovid reverses the precedence of offence over law in the Amores. Law does not correct an injustice but provokes it by acknowledging its existence. If the husband does not care about being cuckolded, if he does not take precautions so that the law is not broken, the law will not be broken. The criminals 77  Cf. Kahn (2000: xiii): ‘Law’s rule is the state peculiar to fallen man; it is of the flesh, not the spirit. The highest truth, and true freedom, exists beyond law.’ Kahn evokes the JudaeoChristian tradition, but Ovid’s position is similar. 78  On Ovid’s and Augustus’ golden age, see Chapter 5.

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disappear at the same time as the legal system loosens its grip on them. By contrast, draconian laws invite transgression and are incapable of eradicating crime anyway. Amores 2.19 and 3.4 show that the lover is an indispensable component of the legal system. The adultery laws exist because they are broken and their very enforcement invites their violation. A complaisant husband weakens an adulterer’s desire and threatens his existence. In the golden age, the law does not exist because there is no crime. In the sexual morality of the Amores, criminals will disappear if everyone can break the law. After Ovid, Seneca will explicitly declare that the punishment of crimes is the reason for their existence. While teaching Nero the virtue of clemency, Seneca argues that the more one punishes parricides, the more people commit this heinous crime (De clementia 1.23.1). As long as this outrage was not covered by law, it was committed very rarely. Seneca refers to wise men with deep knowledge of the nature of the universe (rerum naturae peritissimi), who refused to include parricide in the legal system, thus denying its existence in the natural order. The peritissimi here are specifically wise legislators or experts in law (iuris periti). By abstaining from defining this criminal act, these wise jurists effectively pre-empted it. Parricides come into being along with the law that punishes them, and it is punishment that advertises the monstrous crime (itaque parricidae cum ea lege coeperunt, et illis facinus poena monstrauit). Crime does not precede the law, but comes into being at the same time as the law to punish it is devised (see Braund 2009: 365). The law draws attention to the crime and thus encourages it. By briefly discussing Seneca, I hope at least to show that in the Amores there is more than Ovidian frivolity or mockery of the Augustan legislation.79 The prince may actually have something important to learn from the lover’s juridico-didactic discourse. Before Seneca attempted to teach Nero the importance of clemency for reducing criminal acts, Ovid suggested that Augustus’ adultery laws were responsible for the proliferation of the very crime they aimed to suppress. 79  An anonymous reader suggests that, given that it is unlikely that the lover gives genuine advice to the husband, Ovid’s legal theory looks more like a case of double bluffing.

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Read together, Amores 2.19 and 3.4 seem to contradict each other, but in fact Ovid’s point in both elegies is that in observing the law moderation is necessary.80 A husband should not care too much or too little about the lex Iulia. An obsession with law enforcement is no less detrimental than total disregard for the rules. Of course, Ovid is a shamelessly self-interested instructor. The adulterer instructs the husband for his own benefit (see 2.19.1–2 Si tibi non opus est seruata, stulte, puella, / at mihi fac serues, quo magis ipse uelim! ‘if it is not necessary for you, stupid, to watch the girl, make sure you watch her for me, so that I may want her more!’; 58 corrumpis uitio gaudia nostra tuo, ‘you spoil our joy with your vice’). The husband safeguards the adulterer’s enjoyment by enforcing the law. His failure to prohibit is not only the end of adultery laws, but also the end of the lover’s sexual pleasure (gaudia). The husband’s indifference to adultery threatens to confound the roles in the love triangle. When the law is not enforced, it is hard to tell the husband from the adulterer and the wife from the mistress. The legal system collapses in the absence of desire and passion dies in the absence of the law. By being moderately concerned with adultery laws, the husband has a lot to gain. Both 2.19 and 3.4 end by pointing out his benefits. The last line of the poem (2.19.60 me tibi riualem si iuuat esse, ueta! ‘if it is your pleasure to have me as a rival, forbid it!’) subtly suggests the interdependence of husband and adulterer, pleasure and pro­ hib­ition. A rival is a source of pleasure for the husband since competition renews a man’s interest in his wife. Thus, Ovid’s warning that he is about to lose interest in his mistress undermines conjugal pleasure. Ovid’s rival must behave like a husband because he needs Ovid to behave like an adulterer. By contrast, 3.4 ends by listing the material gifts that a husband can gain if he is not too strict with his wife’s misdemeanours. A husband who turns a blind eye to his wife’s affairs can enhance his social standing and benefit from gifts and invitations to the parties of the young (45–8). The jealous husband rediscovers his passion for his wife thanks to adultery, while the 80  This anticipates the key role of moderation in the Ars amatoria. See Gibson (2006); (2007: 71–114) and Chapter 5.

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pandering husband raises his social status and wealth. Either way, the husband gains socially, materially, and sexually. And either way, married men profit from Augustan legislation provided that it is broken.

Law and Morality A central concern of Amores 3.4 is the juxtaposition of the restrictions of externally enforced laws and the freedom of internally prescribed legality. Ovid problematizes the distinction between the body (5 corpus), which may break the law and is in turn subject to legal constraints, and the mind (2 ingenio, 5 mens) whose intentions cannot be controlled and whose liability to state laws is limited. The autonomy of internally regulated morality is pitted against the heter­on­omy of externally imposed restrictions: si qua metu dempto casta est, ea denique casta est; quae, quia non liceat, non facit, illa facit. ut iam seruaris bene corpus, adultera mens est nec custodiri, ne uelit, illa potest; nec corpus seruare potes, licet omnia claudas: omnibus exclusis intus adulter erit. Amores 3.4.3–8 If she is chaste when freed from fear, then she is chaste; she who does not commit a crime because she is not allowed, she commits a crime. Granted you have already watched over the body well, the mind is adulterous and cannot be guarded from not wanting; nor can you watch over the body, even if you shut everything out: with all shut out, the adulterer will be inside.

Ovid’s couplets belong to philosophical discussions on law and just­ ice. The elegiac poet here is in agreement with Cicero: quid uero de modestia, quid de temperantia, quid de continentia, quid de uerecundia, pudore pudicitiaque dicemus? infamiaene metu non esse petulantis an legum et iudiciorum? innocentes ergo et uerecundi sunt, ut bene audiant, et ut rumorem bonum colligant, erubescunt;

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The Courtroom in the Bedroom  131 pudet etiam loqui de pudicitia; at me istorum philosophorum pudet, qui uolunt aliorum iudicium uitare nec crimen uitio ipso notatum putant.81 Quid enim? possumus eos, qui a stupro arcentur infamiae metu, pudicos dicere, cum ipsa infamia propter rei turpitudinem consequatur? nam quid aut laudari rite aut uituperari potest, si ab eius natura recesseris, quod aut laudandum aut uituperandum putes? an corporis ­prauitates, si erunt perinsignes, habebunt aliquid offensionis, animi deformitas non habebit? Cicero, De legibus 1.50–1 But what shall we say of sobriety, moderation, and self-restraint; of modesty, self-respect, and chastity? Is it for fear of stigma that we should not be wanton, or for fear of the laws and the courts? In that case men are innocent and modest in order to be well spoken of, and they blush in order to gain a good reputation. I am ashamed even to mention chastity; or rather I am ashamed of those philosophers who want to avoid others’ judgment and do not consider it an offence to have been branded as infamous by the vice itself. And what shall we say of this? Is it possible for us to call those chaste who are kept from lewdness by the fear of disgrace, when the disgrace itself results from the inherent vileness of the deed? For what can properly be either praised or blamed, if you have disregarded the nature of the thing which in your opinion deserves praise or blame? Are bodily defects, if very conspicuous, to offend us, but not a deformity of mind?

Ovid and Cicero agree that following the law out of fear does not make a man or a woman chaste. For Cicero, justice is common and innate in all human beings (De legibus 1.29). Doing what is right is thus internally regulated and cannot be externally imposed. The ablative metu (Cicero, De legibus 1.51; Ovid, Am. 3.4.3) may evoke the technical meaning of metus (‘duress’). Metus was a private crime (delictum) and ‘came to the fore when a person was induced by threats of violence to enter into a legal act’ (Mousourakis 2015: 147; 81  The text here is problematic (qui + ullum iudicium uitare nisi uitio ipso mutatum + putant). I print Dyck’s (2004: 203) suggestion, who notes that ‘Cicero’s “shame” surely results from the attitude of the philosophers whom he has been criticizing, who posit that the virtues should be cultivated with the view to external benefits and vice only avoided if it carries a penalty or stigma.’

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cf. Berger  1953 s.v. metus). By analogy, Ovid and Cicero seem to suggest that if one follows the law under duress, fear delegitimizes law-abiding actions. Moral choices free from fear are the measure of a man’s or a woman’s virtue. In Propertius 4.11.47–8, the ghost of Cornelia claims that her chastity is the outcome of natural law, which is more potent than fearing a judge (mi natura dedit leges a sanguine ductas, / nec possis melior iudicis esse metu, ‘nature gave me laws drawn from my bloodline, and one cannot be better through fear of a judge’).82 Hutchinson (2006 ad loc) is right to point out that Cornelia here implies superiority to two courts in particular: the new quaestio of Augustus, which began public trials of adultery, and the very court in which she is envisaging her defence. A woman can prove her chastity only in the absence of legal sanctions. The distinction between the autonomy of morality and the heter­ on­omy of law enforcement is translated as a contrast between body and mind in Cicero and Ovid.83 Ovid further recalls the story of Lucretia here. When Collatinus and his companions see Lucretia after she was raped, they try to console and convince her that ‘it is the mind that sins, not the body’ (Livy 1.58.9 mentem peccare, non corpus). Lucretia is innocent because she had no desire to commit adultery but was forced to have sex without her consent.84 In Ovid, a woman has lost her chastity if she wants to have extramarital sex, irrespective of whether she actually sleeps with another man or not. The adulterer is in her body if he is in her mind. Seneca will quote Ovid in order to argue that a woman who does not commit adultery out of fear of marriage laws is not really chaste: Non dicam pudicam, quae amatorem ut incenderet reppulit, quae aut legem aut uirum timuit; ut ait Ouidius: Quae, quia non licuit, non dedit, illa dedit [cf. Am. 3.4.4]. Non immerito in numerum peccantium refertur, quae pudicitiam timori praestitit, non sibi. Seneca, De beneficiis 4.14.1 82  On the significance or insignificance of the Law in Propertius 4.11, see Janan (2001: 146–63); on law and performance in this elegy, see Lowrie (2009: 349–59). 83  Cf. Phaedra in Euripides, Hippolytus 317: χεῖρες μὲν ἁγναί, φρὴν δ’ ἔχει μίασμά τι. ‘My hands are pure, but my mind has a certain stain.’ 84  By contrast, the indignities suffered by a woman’s body are more pertinent than any intention of hers in Seneca, Controv. 1.2.3 (see Langlands 2006: 258–9, 262–4).

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The Courtroom in the Bedroom  133 I should not call that woman chaste who repulses a lover in order to inflame him, who is afraid either of the law or of her husband. As Ovid puts it, ‘She who sinned not because she could not—sinned.’ A woman who owes her chastity not to herself, but to fear, is very rightly put in the class of sinners.

Seneca is distinctly Ovidian in this passage. The husband appears as the embodiment of externally enforced legal constraints. Adultery laws and husbands thus undermine justice. The emphasis is on selfimposed morality as the only criterion of legality. Seneca evokes the censorial degradation of women (in numerum peccantium refertur; cf. Propertius 1.18.8), but social stigma is not inflicted on women who break the law but on those who wish they could break it. In Ovid and Seneca, social class, virtue, vice, marriage, and adultery are above all states of mind (cf. Edwards 1993: 57) and are thus dissociated from the laws of the state. The legal system is virtually deprived of its power to distinguish between the guilty and the innocent. Because legal restrictions are externally imposed, it is impossible to tell who wants to be chaste. The fear of the law does not allow a woman to make a moral choice, and without the freedom to choose there is no morality. No woman can be judged to be chaste in the presence of the law. The fear of punishment or the impossibility of sinning compromises the value of virtues. On the one hand, we have law, legalism, and constraint; on the other, love, legality, and freedom. The body is liable to legalism, while the law cannot reach men’s and women’s inner wishes. Only in the absence of law enforcement can one really tell the virtuous from the corrupt. The law rules over the flesh, and that is why its power is superficial. A closer reading of Amores 3.4 proves critics who judge legal discourse in Ovid as lighthearted and real Roman law as serious business to be wrong. Ovid turns the tables by suggesting that imperial legislation is shallow and the laws of elegiac love more profound. The former control the body, while the latter concern the spirit. Adulterous minds are not punished under the lex Iulia, only adulterous bodies. And this is where the limits of the prince’s laws lie, as well as their failure to cultivate high standards of morality. Ovid

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launches an incisive and provocative criticism of the lex Iulia, ­ultimately denying even the law’s power over the body. Nothing can stand in the way of a woman’s desire to cheat on her husband. Natural disposition is the only efficient guardian of chastity.85 Strict adherence to the law undermines morality by making it impossible to tell who would be chaste without fear of punishment. What is more, prohibition provokes transgression: cui peccare licet, peccat minus; ipsa potestas semina nequitiae languidiora facit. desine, crede mihi, uitia irritare uetando; obsequio uinces aptius illa tuo. Amores 3.4.9–12 She to whom erring is free, errs less; this very power makes less quick the seeds of sin. Ah, trust me, and cease to spur on vices by forbidding; with your indulgence you will defeat those vices more appropriately.

‘Licence to sin’ (peccare licet) exemplifies love elegy’s power to eradi­cate transgression by legalizing it. The language of law is transformed in the elegiac matrix. In this context, potestas evokes the power of a husband over his wife. The husband had the power and the duty strictly to prevent his wife from committing any extramarital affairs, but Ovid here suggests that the power to allow one’s 85 See Am. 3.4.2. ingenio est quaeque tuenda suo, ‘each woman should be guarded by her nature’. McKeown (forthcoming ad loc) quotes Euripides, fr. 1061 Nauck μοχθοῦμεν ἄλλως θῆλυ φρουροῦντες γένος· / ἥτις γὰρ αὐτὴ μὴ πέφυκεν ἔνδικος, / τί δεῖ φυλάσσειν κἀξαμαρτάνειν πλέον; ‘We waste our effort keeping guard on the female sex: when a woman is herself not naturally law-abiding, what use is there in guarding her, and compounding our error?’ It is likely that Ovid has Euripides in mind; cf. Am. 3.4.7–8 and 19–20 with Euripides, fr. 1063.9–14 Nauck: ὅστις δὲ μοχλοῖς καὶ διὰ σφραγισμάτων σῴζει δάμαρτα, δρᾶν τι δὴ δοκῶν σοφὸν μάταιός ἐστι καὶ φρονῶν οὐδὲν φρονεῖ· ἥτις γὰρ ἡμῶν καρδίαν θύραζ᾿ ἔχει, θᾶσσον μὲν οἰστοῦ καὶ πτεροῦ χωρίζεται, λάθοι δ᾿ ἂν Ἄργου τὰς πυκνοφθάλμους κόρας. The husband who keeps his wife safe by means of bars and seals, imagining that he is doing something wise, is a fool, and his thinking makes no sense; for any of us who has her heart abroad is off faster than an arrow or a bird on the wing, and would evade the clustered eyes of Argus.

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wife to sin will be a much more efficient guardian of her chastity. The poet reiterates the laws of elegiac love. The lover conquers by yielding and dominates by being servile. Strict prohibitions belong to the legal system, while compliant indulgence is the characteristic of the rules of love. The laws of elegiac love are more powerful than any official injunctions. Love, if flexible, conquers by yielding, while law, if inflexible, loses by forbidding. Ovid’s elegy evokes forensic oratory and in particular a controuersia of Latro, whom Ovid admired:86 Erratis uos, iudices, si non maius ad sollicitandam matronam putatis irritamentum spem corrumpendi quam faciem quamuis amabilem uenustam.  Latro in Seneca, Controuersia 2.7.3 You are mistaken, judges, if you think that the prospect of being able to seduce her is not a greater incentive to make proposals to a married woman than a face, however pretty and attractive.

The setting of Latro’s controuersia is an adultery trial and the quotation above belongs to the husband who pressed charges against his wife. In Amores 3.4, the adulterer twists the husband’s courtroom rhetoric (cf. irritare and irritamentum). In Latro the prospect of seduction is more attractive than a beautiful face, and in Ovid a married woman is attractive not because of her face but because her husband is in love with her (Am. 3.4.27 nec facie placet illa sua, sed amore mariti, ‘she pleases not because of her face, but because of her husband’s love’). Ovid’s readers would recognize that the lover’s private advice to his mistress’s husband evokes forensic discourse, in particular the adultery trials of controuersiae, exercises that meant to train an orator for a career in the forum and, more ­specifically, for speaking in real trials of adultery. The lover and the lawyer require the same education. 86  On this controuersia, see Langlands (2006: 275–9). Brescia (2016) argues that the rhet­ oric of the declamations undermines the patria potestas. These school exercises thus offer an alternative to strict social norms and laws, resembling the relaxation of strict rules in the Saturnalia. If Brescia is right—and I think she makes a compelling case— Ovid’s fascination with the legal discourse of declamation can be part of elegy’s affiliations with the Saturnalian spirit of comedy (see Chapter 2).

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In her discussion of Controuersia 2.7, Rebecca Langlands (2006: 279) concludes that the declamation suggests that a woman’s reputation should be guarded as closely as her body. In Amores 3.4, by contrast, Ovid is not concerned with the public display of chastity but with introspective morality. While in Latro’s controuersia the gossiping itself is almost as bad as having an affair, in Amores 3.4 the secret desires of an adulterous mind make a wife guilty even in the absence of extramarital sex. A public trial can judge the appearance of chastity, but the decisive evidence of wifely virtue can be found only in the very private world of a woman’s mind.

Slaves and Wives In the Amores, marriage and adultery as well as law and love are interdependent, interchangeable, and indeterminate. The conflict between legal constraints, which are externally enforced, and freedom to make moral choices, which is internally regulated, creates the paradox of the freeborn woman who becomes the slave of her guard. Ovid points at the injustice created by the husband’s attempt to have a slave guard his wife: nec tamen ingenuam ius est seruare puellam: hic metus externae corpora gentis agat. scilicet ut possit custos ‘ego’ dicere ‘feci’, in laudem serui casta sit illa tui. Amores 3.4.33–6 And yet it is not right to watch a freeborn girl: let this fear vex the bodies of a foreign tribe. Surely she should be chaste for your slave’s glory, so that the guard may say ‘I did it.’

The law defines who has the status of ingenua (‘freeborn citizen’), but at the same time the same law restricts the freedom of married or marriageable Roman women. The roles of citizen and slave are simultaneously defined and confounded.87 Ovid stresses the absurdity 87  Cf. the discussion of liber (‘freeborn’ or ‘having free will’) in Am. 2.7.21–2 in the section ‘Ovid’s Double Act’ above.

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of having a slave restrict the freedom of a freeborn woman. This fear should plague foreign bodies (e.g. slaves or prostitutes), not the free spirit of Roman women. Ovid implies a conflict between what is just and what is legal (nec ius est). While a husband is obliged by Augustan law to keep an eye on his wife, the social status of a matron renders the restrictions of her freedom an act of injustice. This not only creates a tension between the juristic and the nontechnical meaning of ius est (‘it is the law’ vs ‘it is right, fitting’), but also casts the lover/poet as a legal authority who decides on what is lawful and what is not. The passage quoted above re­appraises the legitimacy of Augustan law. The irony in the guard’s boast (‘ego. . . feci’) lies in the fact that these words suggest a confession of guilt, not a declaration that the law has been followed.88 The matron’s chastity does not enhance her husband’s reputation but contributes to the glory of his slave, another paradox, since we expect laus to be reserved for a Roman man or his wife. The law reduces freeborn citizens to bodies guarded by servants. It is striking that what is a distinctive characteristic of elegiac love, namely the demotion of a freeborn Roman citizen to the status of a slave, appears here as the result of following the lex Iulia. While Augustan law aimed at strictly defining the social and moral status of Roman women, Ovid points out that it is this very law that ul­tim­ ate­ly undermines a distinction between freeborn citizens and slaves, legitimacy and illegitimacy. There is a clash between the moral and the legal meaning of liberty, since having a slave guard a freeborn woman compromises her freedom. The slave becomes the em­bodi­ment of law enforcement, depriving a wife of the freedom to remain chaste without external coercion. The category confusion between freedom and servitude upsets the juridical order, since freeborn women can no longer choose without fear between breaking and following the law. In Chapter  2, I argued that the indeterminacy of master and slave in Latin love elegy is linked to the suspension of the juridical order. 88  Cf. Cic. Inv. Rhet. 1.10: constitutio est prima conflictio causarum ex depulsione intentionis, hoc modo: ‘fecisti’. ‘non feci’, aut ‘iure feci.’ ‘The “issue” is the first conflict of pleas which arises from the defence or answer to our accusation, in this way: “You did it.” “I did not do it,” or “I was justified in doing it.” ’ Cf. also Ov. Am. 2.5.10. For feci meaning ‘guilty’, see Juvenal 6.638 (with Courtney 2013: 302); Martial 9.15.2; Sen. Controv. 8.1.3, 4.12, 6.173, 14.185. The formula fecisse uidetur is used for giving a verdict (see Cic. Pis. 9).

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Augustan legislation now seems to be an uncanny reflection of the novel laws of elegiac love, a return to a prejuridical condition by means of confounding the roles of master and slave, law and crime.

A Poet between Two Worlds A wife’s enforced chastity is the guilty deed of a guardian appointed by her husband, while adultery is in harmony with the new moral standards of the city. Rome’s urbane mores demand that a husband should not be offended by an adulterous wife (Am. 3.4.37–8). Ovid seems to confound law with its transgression and to identify adultery with morality and law enforcement with injustice. Aside from the playful ironies and light treatment of imperial legislation, Ovid’s category confusion brings up a fundamental paradox in law’s sovereign power. For Agamben (1998: 57), in the state of exception, it is impossible to distinguish transgression of the law from execution of the law. What violates a rule and what conforms to it coincide without any remainder. This confluence brings to the fore the status of elegiac love as a state of exception (see Chapter  2). A man who sleeps with a consenting married woman is not transgressing the law more than a husband who deprives his freeborn wife of her freedom. An adulterer validates marital bonds by breaking them. However frivolous they may seem, Ovid’s laws of elegiac love reveal a deep and unsettling truth, namely that the law’s fulfilment is its transgression. Agamben (1998: 57–8) associates the fulfilment of the law by means of its transgression with the Jewish tradition of the arrival of the Messiah.89 Love is the new law that fulfils the old law by annulling it. 90 89  See Agamben (1998: 57–8): What is implied instead is that the fulfilment of the Torah now coincides with its transgression. This much is clearly affirmed by the most radical messianic movements, like that of Sabbatai Zevi (whose motto was ‘the fulfilment of the Torah is its transgression’). From the juridico-political perspective, messianism is therefore a theory of the state of exception—except for the fact that in messianism there is no authority in force to proclaim the state of exception; instead, there is the Messiah to subvert its power. 90  Cf. Matthew 5.17 μὴ νομίσητε ὅτι ἦλθον καταλῦσαι τὸν νόμον ἢ τοὺς προφήτας· οὐκ ἦλθον καταλῦσαι ἀλλὰ πληρῶσαι. ‘Don’t think that I came to destroy the law or the prophets; I did not come to destroy but to fulfil them.’ The old law is not destroyed when it is no longer followed, but fulfilled.

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The phrase ‘love is the fulfilment of the law’, a sententia that would aptly summarize the jurisprudence of Latin love elegy, actually comes from Paul’s epistle to the Romans (13.10 πλήρωμα νόμου ἡ ἀγάπη). In this epistle, Paul (Romans 7.7–10) raises the issue whether the law (νόμος) is actually a sin (ἁμαρτία). While he refuses to identify law with transgression, he adds that it is not possible to know what transgression is without law. For Paul, desire does not exist until the law forbids it. Sin is dead without the law.91 As Gesine Palmer (2016: 129) puts it, ‘the “nomos” as it steps in and points to the objects of desire, arouses desire in the very moment it comes to forbid desire’. This analysis of a passage from Paul’s epistle cor­res­ponds perfectly well with Ovid’s take on law and desire in the Amores (see, e.g., 3.4.9–12 in the section ‘Law and Morality’ above). For Ovid and Paul, ‘where there is no law, there is no transgression’ (Romans 4.15 οὗ δὲ οὐκ ἔστιν νόμος οὐδὲ παράβασις). Not only in Judaeo-Christian tradition, but also in Ovid, love is the catalyst for the convergence and interdependence of law and transgression. In his view of the laws of Augustus vis-à-vis the laws of elegiac love, Ovid is truly a poet between two worlds.92

91 Paul, Romans 7.7–10: Τί οὖν ἐροῦμεν; ὁ νόμος ἁμαρτία; μὴ γένοιτο· ἀλλὰ τὴν ἁμαρτίαν οὐκ ἔγνων εἰ μὴ διὰ νόμου· τήν τε γὰρ ἐπιθυμίαν οὐκ ᾔδειν εἰ μὴ ὁ νόμος ἔλεγεν, οὐκ ἐπιθυμήσεις. ἀφορμὴν δὲ λαβοῦσα ἡ ἁμαρτία διὰ τῆς ἐντολῆς κατειργάσατο ἐν ἐμοὶ πᾶσαν ἐπιθυμίαν· χωρὶς γὰρ νόμου ἁμαρτία νεκρά. ἐγὼ γὰρ ἔζων χωρὶς νόμου ποτέ, ἐλθούσης δὲ τῆς ἐντολῆς ἡ ἁμαρτία ἀνέζησεν. What shall we say? Is the law sin? May it never happen! But I would not have had know­ledge of sin, if not through the law; for I would not have known desire, if the law had not said: ‘You shall not desire.’ But sin, because of the commandment, produced in me every kind of desire; for without the law sin is dead. Now I was at one time living without the law. But after the commandment came, sin came to life. On this passage, as well as Paul on law and love, see Badiou (2003: 75–92); Agamben (2005b); Palmer (2016: 128–9); Neoh (2016:esp. 12–14). 92  The Middle Ages saw in Ovid a forerunner of Jesus. The tradition of an Ouidius Christianus informed Fränkel (1945), the monograph that marks the beginning of Ovid’s ­reappraisal in modern scholarship. But the fascinating relationship of Ovid’s poetry with the Judaeo-Christian tradition is a line of inquiry that has been abandoned in modern scholarship.

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Conclusion Augustan law and Ovidian elegy not only respond to but are also catalysts for the emergence of sexuality as an independent discourse in imperial Rome. This chapter argued that the discursive autonomy of sexuality is closely related to the tension between the public display of moral virtue and shame, on the one hand, and the cre­ation of a private sphere for love affairs, on the other. While Augustan law makes private affairs the business of the state, Latin love elegy excludes Roman law from the privacy of the bedroom. Law and love elegy demarcate the boundaries between public and private, but they also have the power to cross these boundaries. The private zone must be first defined and excluded and then captured in order to become the negative foundation of the sovereign powers of law and love (cf. Agamben 2015: 237–8). Though they may appear as polar opposites, Augustan law and Ovidian elegy have a lot in common. Notably, they both disembed moral behaviour from its familial context and attempt to regulate it. The emergence of sexuality as an independent discourse is the result of dissociating sexual affairs from their familial context. No longer regulated by the pater familias, private affairs are subjected to legislators who aim to fill the vacuum of the father as the em­bodi­ ment of the law. Augustus, the pater patriae, is the most obvious replacement, but the love poets also claim the right to lay down the law that controls sexual liaisons. The love poet casts himself as an authoritative legislator thanks to the juridico-discursive autonomy of sexuality. The creation of a private sphere that excludes Roman law from the rule of Amor is related to the shift to introspective morality. While Augustan law emphasizes the public display of sexual morality, Ovidian elegy draws attention to the superficiality of externally imposed regulations. The legitimacy of a love affair depends on consent and free will, while coercion and fear undermine legality. Love elegy is radical in blurring the social status of the mistress, the lover, and the husband. The point of this indeterminacy is that

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free love becomes the absolute basis of legality. By contrast, the social and moral status of women was a major part of Augustan reforms. Yet the laws of Augustus, not unlike love elegy, made the feelings and intentions of legal persons an indispensable requirement for the legitimacy of marriage. The importance of love in law is thus reflected not only in love elegy but also in Roman law. While Augustus makes all aspects of private life public, Ovid insists on the privacy of love affairs. Again, we may say that Ovid moves in a direction opposite to that of Augustus, but this is not the whole story. The elegiac poet first defines a private zone that lies outside the juridical order. In doing so, he partly relies on Roman law, which was not concerned with non-adulterous extramarital affairs. Once love affairs are excluded from Roman law, the love poet imposes his own rules, thus annexing the extralegal zone of amatory privacy to his area of jurisdiction. By first excluding private liaisons from imperial law and then capturing them in elegy’s juridical order, Ovid establishes the sovereign rule of his poetry. The laws of private liaisons are just the beginning of Ovid’s empire of love. Love elegy aims to rule over all aspects of public life by regu­lat­ing the privacy of the bedroom and by turning the exception into the absolute norm. From this perspective, the love poet is not just a reflection of Augustus, but the contender of Rome’s sovereign ruler.

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4 The Letter of the Law Introduction The last pair of the double Heroides has been a mine for the study of legal language in Ovid. Edward Kenney, a pioneer in identifying Ovid’s legalisms, accurately detects legal diction in the paired epistles of Acontius and Cydippe.1 While Kenney’s pinpointing of Ovidian legalisms is fundamental for my work, his interpretations are of rather limited value. For Kenney, Ovid’s legalisms are frivolous and lighthearted, simply the residues of his early studies in law which the poet had found so uncongenial to his youthful spirit. The presence of legal language in the letter of Acontius is perceived as ‘an occasional device freely used to add piquancy to a situation’ (Kenney  1970: 392) rather than as a crucial preoccupation. This observation hardly does justice to Kenney’s work, which traces most convincingly Acontius’ obsessive references to the law and his repeated evocations of legal procedure. The law is not incidental but dominates elegiac discourse. Following the scholarly trends of his era, which barely saw anything beneath the surface of Ovid’s playfulness, Kenney (1969: 263) finds Ovid’s transference of legalisms into elegy amusing and inventive. Frivolity and insincerity, those trademarks of Ovidian poetics, would make ser­ious legal discourse appear even more out of place. Even though the trend to interpret Ovid’s poetry as superficial is now less p ­ opular, this is an approach that has not been seriously challenged in recent studies of legal language in Heroides 20–1.

1  See Kenney (1970). Kenney (1996) includes numerous comments on legalisms. Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0004

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Anne Videau (2004) and Stella Alekou (2011: 387–506) have deepened our understanding of legal discourse in the letters of Acontius and Cydippe. In their important studies, they examine the interactions between elegiac conventions and legal terms, discuss Augustan legislation as the background to Heroides 20–1, and tease out the gendered basis of the legal controversy between Acontius and Cydippe. Yet, despite Videau’s and Alekou’s wealth of critical insights, it is still unclear why legal discourse is fundamental rather than ornamental in the letters of Acontius and Cydippe. This chapter aims to answer that question by focusing on the legal potential of this particular myth and by arguing for the confluence of the love letter with legal correspondence. The legalisms in the Heroides are a good example of the nature of Ovidian innovations; they are novelties that may at first strike readers as peculiar and facetious but simultaneously reveal a deep-rooted convergence of amatory messages and legal documents. The playfulness of Ovidian poetics should not distract us from the close connections between law and love. This chapter draws on the work of Peter Goodrich (1997), who argues that the epistolary art of the love letter was the means used to institute and express a separate jurisdiction appropriate to relationships, a justice and judgment that attended to the space between lovers. The love letter was the legislation and the writ of an alternative or oppositional public sphere. For Goodrich (1997: 266), ‘both legal writ and lover’s letter served to write the self as action or as passion, as deed or devotion within the separate jurisdictions of the public and private, the divergent domains of the political and af­fect­ ive spheres’. Goodrich’s research focuses on the republic of learned women (aka les précieuses) within the French monarchical state and their courts of love in which the love letter was a trope or writ of law (cf. Goodrich  1996). Amatory correspondence was the legal basis for the précieuses’ radical challenge to patriarchal norms and institutions. Interestingly, their courts have been summarily dismissed in terms recalling Ovid’s older critics. Their jurisdiction was considered amusing and unrealistic, their legal claims trivial and utopian (Goodrich 1997: 246–7). One of Goodrich’s main aims is to give a history of these minor jurisprudences, in order to restore the repressed affectivity of the

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law that lurks behind the précieuses’ courts of love. His work has a transhistorical aspect that is pertinent to my study. For Goodrich, the love letter precedes and dictates the form of state laws. The love letter governs the domain of relationships and of affective life. It expresses and institutes what was termed the law of the first Venus, of which positive law and secular writ were a divergent and secondary strand. However provocative, this thesis is stimulating. It is worth considering what it would mean for our interpretation of Ovid’s legalisms or, more broadly, for legal discourse in Latin love poetry. One major implication is that it would unsettle classicists’ mindset to see a one-way influence from law to literature. If the love letter takes precedence over state statutes, in fact, if the laws of men are the reflection of an older jurisdiction that is based on affective correspondence, then the legalisms in the Heroides are inherent to  the lovers’ epistolary art. Ovid is not borrowing from legal ­diction—it is rather the law that is based on the lover’s discourse. The myth of Acontius and Cydippe raises issues of divine versus secular law, the rules of love versus the laws of marriage. The story goes that Acontius fell in love with Cydippe as soon as he saw her at the festival of Artemis/Diana. The smitten youth then tricked her into marrying him: he inscribed on an apple ‘I swear by Artemis to marry Acontius’ and threw it at her feet. Cydippe picked it up and read the words aloud, which amounted to a solemn undertaking to carry them out. The problem was that Cydippe’s father had already arranged her marriage with another man. But because of her oath to Artemis, the heroine repeatedly fell ill before her wedding, which had to be put off three times. The solution to this problem came from the Delphic oracle, which declared the cause of her illnesses to be the wrath of the offended goddess. Hence her father consented to her marriage with Acontius and the young couple lived happily ever after.2 The myth revolves around a conflict between a father who arranges a marriage for his daughter and a young man who falls 2  Aside from Ovid’s Heroides 20–1, the myth is attested in Callimachus’ Aetia fr. 67–75e Harder and Aristaenetus’ Epistolae 1.10. In Ovid, Acontius corresponds with Cydippe after he has tricked her into taking an oath and while the young woman is seriously ill. For the myth in Callimachus, Ovid, and Aristaenetus, see Rosenmeyer (1996; 2001: 110–30).

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passionately in love with a beautiful woman. The validity of the father’s binding betrothal competes with the lover’s message, which binds Cydippe to marry Acontius in the eyes of Diana. The inscribed message and the enactment of its contents with Cydippe’s recitation evoke two crucial aspects of legal ratifications: the law had to be written down and it had to be read out, in order to be sanctioned. By successfully hitting its target, Acontius’ message creates an alternative space that is defined by the rules of love and is under divine jurisdiction. The institution of this parallel domain clashes with the commitments of Cydippe’s family. Ultimately, ­family law is subsumed under the jurisdiction of elegiac passion. While the father and the suitor vie for laying down the laws of love and marriage, the issue of Cydippe’s consent looms large.3 Acontius, probably more than her father, who arranges a marriage for his daughter, forces Cydippe to comply with his desire. As we saw in Chapter 3, the independent will of a marriageable woman is the key to the legality of marriage, a crucial factor of both Augustus’ marriage laws and Ovid’s laws of elegiac love. Yet Ovid’s Cydippe seems to occupy an ambivalent force field defined by her power to manipulate the male embodiments of the law (her father, her fiancé, and Acontius) and her powerlessness to defy the code of elegiac love. The force of law consists in both consent and coercion, in striking a fine balance between the two, if not in rendering them virtually indistinguishable. It thus resembles the power of desire, or more specifically of elegiac passion, which simultaneously liberates and enslaves lovers. Law and love objectify Cydippe, but at the same time they not only highlight her status as an independent legal person, but also endow her with the sovereign voice of the elegiac domina. The conflict between the divine laws of love and the secular laws of men was already inscribed in the myth—Ovid’s version highlights what lay latent in it. Cydippe’s recitation of Acontius’ message is a speech act (see Austin 1962), since the heroine’s oath results in her betrothal. However inadvertently, Cydippe effects the message’s 3  On the social dynamics of consent to marriage and sex (with a focus on Roman comedy), see Saller (1993).

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intended action by reading out its words.4 The key word carmen describes both Acontius’ initial message and his elegiac epistle. In legal contexts, carmen refers to the enactment of fixed texts irrespective of any other social or personal circumstances.5 Cydippe’s performative utterance has the force of law because it automatically results in a binding contract. The myth has a legal dimension, since turning words into deeds and construing statements as acts are a distinctive feature of legal discourse (cf. Hollander 1996). At the same time, the shift from the conceptual (persuasion) to the physical (enforcement) is a distinctive feature of the poetics of love elegy, a crucial aspect that highlights the force of law in elegiac discourse. The myth stresses the importance of the written word and its communication in falling in love. Love does not exist independently from written expressions and speech acts, but is created and survives in and through language—in love poetry and love letters.6 The lover’s discourse creates the rules that define love. Reading and writing are thus intimately connected in the production of law and love.7 In his power to use words that wound, Acontius is an elegiac poet par excellence. Towards the end of her letter, Cydippe highlights Acontius’ sharpness with an etymological wordplay: mirabar quare tibi nomen Acontius esset: quod faciat longe uulnus, acumen habes. Heroides 21.209–10 I was wondering why your name was Acontius: you have a point that deals wounds from afar. 4  For reading and the law in Augustan poetry, Lowrie (2009: 327–82) is indispensable. 5  Pierre (2016: 85) comments on Cicero, Leg. 2.23.59: ‘le mot carmen désigne ici la loi considérée dans son aspect intangible et quasi-divin. Il s’agit d’un texte qui fait autorité de lui-même par sa propre évidence. Ce type de texte, tombé selon Cicérone en désuétude, renvoie à des lois s’appliquant sans considération des circonstances.’ 6  See Barthes (1977); cf. Raes (1998: 27–9). Literature defines the meaning of love. Cf., for instance, the influence of Goethe’s Die Leiden des jungen Werthers on the construction and dissemination of the concept of romantic love in nineteenth-century Western culture with the strategies of seduction in Boccaccio’s Decameron or Ovid’s Ars amatoria that established amatory passion as essentially playful, carnal, and extramarital. On love as a cultural construct in Ovid, see Chapter 1. 7  Raval (2001) draws on Barthes (1977) to analyse the story of Byblis in Metamorphoses 9. Barthes also informs Rosenmeyer’s (1996; 2001: 110–30) reading of Acontius and Cydippe. See also Kennedy (1993: 64–82).

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Acontius was etymologized from ἀκόντιον (‘javelin’) and Cydippe draws attention to this etymology (see Kenney  1996 ad loc.; Michalopoulos  2014 ad loc.). Cydippe’s learning and wit match Acontius’ acumen. The Latin acumen has a literal (‘point’) and metaphorical (‘wit’) meaning (see Kenney  1996 ad loc.). What is more, acumen can mean ‘point of a stylus’, which thus reinforces Cydippe’s vulnerability to writing (see Hardie 2002: 112). The phallic connotations of Acontius’ sharp javelin that deals a sexual wound on the object of his desire are also in play here (cf. Rosenmeyer 1996: 25 n. 38; 2001 125 n. 57). The lover’s letter resembles the assault of a sexual predator. The figurative and the physical merge in this couplet; the effect is that Acontius’ written word is cast as an act of violence with serious consequences for Cydippe’s body and mind. Striking from afar with his venomous missive, Acontius is an example of toxic masculinity in its etymological sense.8 Acontius’ sharp stylus all but kills Cydippe. This markedly elegiac power of words to wound should be examined in conjunction with the legal color of Acontius’ letter. In an influential essay, Robert Cover (1986) argues that the judiciary has the power to enact violence through speech and injure through words (cf. Butler  1997: 47–51).9 For Cover, when a judge interprets a text, someone loses his freedom, property, even life. The reading, interpretation, production, and enactment of texts by the judiciary inflict pain through language. In their capacity to injure, Acontius’ words have juridical powers. But where does Acontius derive his power to wound with words? Drawing on Derrida’s reformulation of the performative (Derrida 1977: 191–2), Judith Butler (1997: 49–51) points out that the power of speech acts is not the function of an originating will, but is always derivative. For Butler, if the performative succeeds, it is 8  ‘Toxic’ derives from τόξα (‘bow and arrows’). Arrows were often smeared with poison. For Acontius’ poisonous actions, see Her. 21.52 ueneficiis . . . tuis, ‘your poisonous philtres’. For love letters as φάρμακα (‘drugs’) in relation to Ovid’s Heroides, see Spentzou (2003: 140–3). 9  I am aware of the irony of drawing on Judith Butler, who is concerned with hate speech, to interpret the effects of Acontius’ love letter. Cydippe also knows that Acontius’ love has the injurious effects of hate (21.56 quid facies odio, sic ubi amore noces? ‘What will you commit out of hate, when you injure thus out of love?’).

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not because an intention governs the action of speech, but only because that action echoes prior actions and accumulates the force of authority through the repetition or citation of a prior and au­thori­ta­tive set of practices. A performative utterance is thus a repetition of a ‘coded’ or iterable utterance. In other words, there is no felicitous or legally binding speech act without precedent. As we shall see in this chapter, Acontius’ message, as it is enacted by Cydippe, relies on mythological and literary tradition for its felicity. This is because, to quote Roland Barthes (1977: 136), ‘no love is original’. The lover’s discourse not only comes vested with literary authority that has the force of law, but actually consists of ‘the memory of the sites (books, encounters) where such and such a thing has been read, spoken, heard’ (Barthes 1977: 9).10 We fall in love by enacting a script that has been played out before us. The performance of precedent is how law and love operate. Thus, the enactment of a legal text or amatory message succeeds not because of intention, but because it replays prior actions (cf. Butler 1997: 51). This interpretative angle will hopefully shed light on why the lover’s discourse in Heroides 20–1 is virtually indistinguishable from the force of law.

Roman Law and the Laws of Roman Elegy The ‘code’ of the genre of Latin love elegy and Roman family law coexist. As I argued in the previous chapters, Roman law is disembedded from family ties and subsumed under elegiac discourse. In Heroides 20–1, the rules of extramarital amatory conduct that are spelled out in Roman elegy simultaneously overrule and contain Roman marriage laws. As a genre aiming to dictate the norms that regulate desire, Roman love elegy is an attempt to spell out and enact amatory legislation. The literary conventions of this genre both interact and exist in parallel with Roman law—love elegy is excluded from Roman law at the moment of love’s inclusion in the juridical order. 10  See Raval (2001). Byblis’ love letter is the embodiment of the lover’s discourse.

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The interaction between the rules of elegiac love and Roman law can been seen in the following passage, in which Acontius urges Cydippe to summon him in order to defend himself: Ignoras tua iura? uoca; cur arguor absens? iamdudum dominae more uenire iube. Heroides 20.79–80 Do you not know your rights? Summon me; why am I being accused in my absence? Order me to come immediately in the manner of a mistress.

Acontius imagines that he is charged with causing Cydippe’s illness and asks to defend himself. The imperative uoca refers to the in ius uocatio (see Kenney 1996 ad loc; Berger 1953 s.v. in ius uocatio). As Videau (2004) and Alekou (2011: 394–5) note, a procedure by default was not in iure. Acontius asks Cydippe to summon him in order to defend himself (in ius uocatio), as if there were a trial before a magistrate (cf. Her. 20.91 Nunc reus infelix absens agor. ‘Now I am on trial as an unfortunate defendant in absentia’). In his absence, Acontius’ letter functions as a legal document in a trial in which he imagines that he is the defendant. What is more, tua iura as a variant of sui iuris subtly suggests that, as a young bride, Cydippe was not in alieni iuris (see Alekou  2011: 407). Acontius wants to have Augustan legislation support his claim. Thanks to Augustus’ lex Iulia, a father could neither marry his children without their consent nor prevent his daughter’s marriage (see Saller 1994: 120; Videau 2004). Cydippe not only has the plaintiff ’s right to summon Acontius to court, but also the right to choose an eligible man as her husband, irrespective of her father’s wishes.11 Cydippe’s real power lies in Roman law as much as in the rules of Roman elegy. As a domina, an elegiac mistress, she is not only legally independent (sui iuris) but also able to enforce her own

11 In Her. 20.157–8, Acontius argues that Cydippe’s right to choose a husband overrules the marriage arranged by her father. This statement reflects recent developments in marriage legislation.

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rules. Acontius’ passion for her makes him her slave, an enslaved lover whom his mistress’s words can easily set in motion. Cydippe’s order (uoca, iube) is a directive that has the power to make Acontius turn up immediately. A message from Cydippe can force Acontius to act, like a slave responding to his mistress’s orders or a defendant summoned to court or a lover hastening to fulfil his beloved’s wishes. Propertius 3.16, for instance, opens with Cynthia’s letter (epistula), a midnight summons ordering her lover to appear without delay (see Chapter 2). The power of a summons to drag a defendant to court is comparable to the power of the beloved to move her lover towards her. Love letters have the force of judicial documents; they both contain powerful messages that set bodies in motion. The juridical power of the mistress features prominently in Roman elegy (see Gebhardt  2009: 105–84). In the Amores, Ovid asks Corinna to accept him under any conditions, comparing her power to that of a legislator (2.17.23–4 in quaslibet accipe leges; / te deceat medio iura dedisse foro, ‘accept me on whatever laws you please; it would befit you to dictate laws in the middle of the forum’). The last word of the pentameter is the punchline, a παρὰ προσδοκίαν (‘against expectation’) pun on foro/toro (‘forum’/‘bed’).12 The laws of sex in the bedroom extend to occupy the legislative activity of the forum. Ovid here follows Propertius’ lead, who had Cynthia dictate the terms of a legal contract to secure her lover’s faithfulness (4.8.73–4 accipe quae nostrae formula legis erit, ‘listen to the terms of my law’). Propertius readily accepts the conditions (81 indixit leges; respondi ego ‘legibus utar.’ ‘She proclaimed the laws; I responded “I shall follow the laws” ’).13 Likewise, Acontius reminds Cydippe that she should follow elegiac procedure in exercising her powers as an elegiac mistress. Ovid’s dominae more invites Cydippe to follow elegiac tradition, to act in character and behave as the domineering beloved of Roman elegy, a mistress with sovereign adjudication. Literary customs morph into sociolegal norms. While assuming the role of the compliant lover, Acontius instructs 12  Some manuscripts actually have toro. See McKeown (1998 ad loc), who further notes the whimsical paradox of a woman legislating in the male-dominated forum. 13  For the language here evoking a legal contract, see Gebhardt (2009: 141).

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Cydippe on the topic of legal rights and elegiac conventions (cf. Ignoras tua iura?). The sovereign power of the elegiac mistress converges with the rights of a marriageable Roman woman. Acontius simultaneously casts himself as a teacher of love (praeceptor amoris) and a jurisconsult (iurisconsultus), a combination that is fundamental to the elegiac poetics of seduction. Heroides 20, in particular, is a love letter that combines erotic instructions with legal doctrine. Acontius wants to play according to the rules of Roman elegy and that is why he fashions Cydippe in the mould of an elegiac mistress. His servile obedience is a strategy, first to construct Cydippe as the sovereign subject of elegiac poetry, and then to possess her as the object of his desire. Love is thus the subjection of bodies to the juridical order. Roman law is inevitably interwoven in elegiac discourse as Acontius deploys the jurisdictional force of the love letter.

Powerful Language: Love, Law, and Magic Legal diction is powerful language that has a concrete impact on the natural order. It thus resembles and antagonizes magic spells. Law and magic employ the effective force of words in order to carry out actions. In Athens, as Danielle Allen (2000: 147–8) argues, magic spells were treated as an extension of courtroom rhetorical efforts and legal punishment.14 Under Roman law, magic spells were extralegal and often illegal (see Rives  2003). Their powerful effects could be a substitute for legal action, but magical discourse was banned from the rituals of law. Magic is both outlawed and has the force of law. Ovid’s Ibis, a case of elegy as curse poetry, is a pertinent example. The exiled poet, a citizen banned from Roman law’s jurisdiction without a trial, resorts to poetry of curse (Ibis) in add­ ition to poetry of wooing (Tristia 2), in his attempt to restore himself to the juridical order; both discourses have the force of law in

14  For magic in Greek and Roman law, see Faraone and Obbink (1991); Collins (2008); Edmonds (2019).

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the absence of proper procedure.15 Wooing and cursing are what Latin love elegy is made of; that is why this particular genre ­constitutes an independent jurisdiction, even though—or rather because—it is excluded from legal procedures. More often than not, magic spells were associated with issues of love (see Faraone  1999; Pachoumi  2012;  2013). Faraone (1999: 69–80) argues convincingly that apples or quinces (μῆλα) in marriage rites and seduction scenes were designed to produce sexual desire in the female and were thus related to erotic magic. Acontius’ message on a malum (‘apple’ or ‘quince’) is a defixio amatoria, an erotic spell whose aim is to make Cydippe fall in love with him.16 But it further evokes another common category of magic spells, the defixio iudicaria (‘judicial spell’).17 Acontius’ missive is sim­ul­tan­ eous­ly a love letter and a judicial curse tablet, a regular feature of the legal process in the Graeco-Roman world (see Versnel  1991; Gager 1992: 117; Graf 1997: 120–1). These curse tablets were commonly commissioned by the defendants against the plaintiffs before an anticipated trial. As John Gager (1992: 118) notes, ‘the clients who commissioned the defixio saw themselves as threatened by the legal proceedings and consequently took extralegal measures in order to guarantee a favourable outcome’. Acontius imagines himself to be the defendant in a trial, and in this context his love letter functions as a judicial spell.18 Ovid is not the first poet to draw a link between judicial curses and the curse of love. Unrequited love has been described as wrongdoing at least since Sappho (fr. 1.20–1 τίς σ᾿, ὦ Ψάπφ᾿, ἀδικήει; ‘Who

15  It is tempting to identify Augustus as Ibis; see Schiesaro (2011). The elegiac lover often curses his rivals or the lena; on the amator’s curses, see Zimmernam Damer (2019: 89–96, 212–15). 16 On defixiones in Ovid, see Am. 3.7.27–30; Her. 6.82–4; Fasti 2.571–82, with Gager (1992: 250–2); cf. Tibullus 1.8.17–26. 17  For categories of defixiones, see Graf (1997: 119–34). For defixiones in sex, love, and marriage, see Gager (1992: 78–115); Pachoumi (2013); L. Watson (2019: 23–56); for defixiones in legal disputes, see Gager (1992: 116–50); cf. Versnel (1991); L. Watson (1991: 206–7); (2019: 57–98). For the confluence of magic and law in Apuleius, see Baker (2012); cf. Costantini (2019). 18  Chadha (forthcoming) argues convincingly that Heroides 6 draws on contemporary magic ritual. Hypsipyle’s letter forms a literary adaptation of a ‘prayer for justice’ (cf. Versnel 1991) which incorporates a διαβολή, a ritual slander against the target of the spell.

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wrongs you, Sappho?’).19 Those suffering from the injustice of unrequited love often resort to erotic magic. That is why there is a significant overlap between love charms and judicial prayers. As Versnel (1998: 264) puts it, ‘in both types of texts, judicial prayers and erotic magic, torture and punishment unequivocally presuppose that the practitioners are wronged, aggrieved, deprived of something they feel entitled to.’ Acontius’ letter to Cydippe needs to be interpreted in this context. The hero sees Cydippe’s unresponsiveness as an act of injustice. His missives attempt to restore justice by means of erotic magic. As long as Cydippe does not reciprocate Acontius’ love, the curse of his passion will condemn and torture her. This combination of the curse of law and love features prom­in­ ent­ly in Euripides’ Hippolytus. Melissa Mueller (2011; 2016: 170–8) argues convincingly that Phaedra’s writing tablet (δέλτος) is a ­judicial curse (defixio/κατάδεσμος) and that its main function is to ensure victory for Phaedra in the upcoming ‘trial’ over her reputation. The tablet that is bound to Phaedra’s corpse evokes the defixiones which aim to tie up an adversary’s tongue in a trial.20 Theseus curses and thus condemns his son to death, after taking Phaedra’s tablet as strong evidence that establishes Hippolytus’ guilt. The tablet is Phaedra’s testimony (see Mueller 2011: 152), a witness statement and a judicial curse that fatally injures her target.21 Phaedra’s tablet is emblematic of the rituals and objects shared by law, love, and magic. Hippolytus suffers as a consequence of not reciprocating Phaedra’s love. It is indicative that while Phaedra’s tablet (δέλτος) in Euripides is a judicial curse, Ovid’s Phaedra (Heroides 4) writes a love letter on her tablets (tabellae) in her attempt to legitimize her

19 ‘Die unerwiderte Liebe ist seit den ältesten Zeiten als Unrecht verstanden worden.’ (Petrovic 2004: 426, building on Versnel 1998). For unrequited love as wrongdoing, see also Theognis 1283; Eur. Med. 158; Pl. Phdr. 252c. 20  See Mueller (2011: 163, 166–7). In Cicero’s times, Curio accused his adversary Titania of having bound his tongue (Cic. Brut. 217). Pliny the Elder (HN 28.19) judges binding spells nearly omnipresent in his era. For these and other examples, see Graf (1997: 119). 21  On the importance of tabellae/δέλτοι for love letters and legal correspondence, see the section ‘Testatio’ below. On Euripides’ Hippolytus in Heroides 20–1, see the section ‘Cydippe Writes Back’ below.

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forbidden desire and seduce her stepson. Judicial and amatory ­missives aim to cast a powerful spell on their targets. The love letter as an object is an uncanny reflection of the phys­ ic­al materials of magic. In Amores 3.7, Ovid wonders whether his impotence is the result of witchcraft: sagaue poenicea defixit nomina cera et medium tenues in iecur egit acus? Amores 3.7.29–30 or did a sorceress inscribe my name onto purple wax and draw fine pins into the middle of the liver?

Ovid refers to the practice of sticking pins in small figurines, especially in curse tablets associated with love (see Gager  1992: 251). The act of writing (defixit nomina) is virtually the production of a defixio, a curse tablet. The witch’s magic spell (cf. Am. 3.7.28, 31 carmine) competes with elegiac poems (carmina). The curse of impotence is a foil for elegiac poetry that aims to stimulate desire. The sorceress’ pin (acus) that pierces the wax is not unlike Acontius’ stylus (acumen) with which he inscribes a potent message that binds Cydippe to his contract. While the saga’s needle attacks male potency, Acontius’ sharp stylus stands for his aggressive phallus. The love letter is written on wax tablets (see Ars 1.437 cera uadum temptet rasis infusa tabellis, ‘let wax spread over erased tablets test the waters’; cf. Met. 9.564–5) and sealed with wax. The poet’s waxen effigy in the witch’s ritual resembles the sphragis of the letter (see Pont. 2.10.1–2 ecquid ab impressae cognoscis imagine cera / haec tibi Nasonem scribere uerba, Macer? ‘Do you recognize at all, Macer, from the figure printed in the wax that Naso writes these words to you?’). The figurative bonds of the defixio are also a reflection of the physical bonds with which curse tablets or letters are bound. The exiled Ovid imagines that his addressee already knows the contents of his monotonous poetry without opening the letter (Pont. 3.7.5–6 nostraque quid portet iam nostis epistula, quamuis / cera sit a uinclis non labefacta suis, ‘and you already know what my letter brings, even though the wax has not been broken from its bonds’). Speaking

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to his letter, Leander pictures Hero opening it with her teeth, like a lover giving a passionate kiss (Her. 18.17–18 forsitan admotis etiam tangere labellis, / rumpere dum niueo uincula dente uolet. ‘Perhaps you will even be touched as she approaches her lips, when she wishes to break your bonds with her snow-white teeth’; cf. Tr. 4.7.7–8). The figurative knots and bonds with which Acontius ties Cydippe are a projection of the literal binding of his letter. In Latin love elegy, legal, amatory, and magical diction interact— the genre brings together three examples of powerful speech acts. The confluence of law, love, and magic is exemplified in the semantic range of the key word carmen, which primarily describes powerful language that can bring about a physical reaction that reifies the speaker’s wishes.22 That is why carmen can refer both to a ‘magic spell’ and a ‘legal formula’ (cf. Pierre 2016: 57–110, 144–64). When Augustan poets chose to use carmen to describe their poems, they made a statement about the potency of their poetic diction. The elegiac poets, in particular, draw attention to the magical and legal power of their songs. The love poets cast a spell with their elegies— a spell that has the power to trap the addressee in the meshes of amatory jurisdiction.23 The love letter thus resembles magic tokens and legal documents. The myth of Acontius and Cydippe is an excellent case study for legal, magical, and elegiac discourses as similar, yet competing kinds of speech acts. Ovid draws attention to the combination of legal constraints and the binding force of love spells in the following couplet: di faciant, possim plures inponere nodos, ut tua sit nulla libera parte fides. Heroides 20.39–40

22  See Putnam (2000: 132). See also Habinek (2005); Lowrie (2009: 14–16, 328–9); Lowrie (2016: 72–4); Pierre (2016). I discuss carmen in more detail below (see Her. 21.181–2 in the section ‘Cydippe Writes Back’) and in Chapter  6 (Ars 1.1–2, in the section ‘Law and Sexuality’). 23  The confluence of law and magic in elegiac diction is related to the demarcation of a state of exception for Latin love elegy. See my discussion about magic and law in the discourse of the lena (Chapter 2).

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156  Law and Love in Ovid May the gods give me power to lay more bonds on you, so that your pledge may nowhere leave you free.

Unsatisfied with the impressive results of his first message, Acontius invokes the gods to help him bind Cydippe with more knots. Kenney (1996 ad loc.) is right to point out that the familiar image of the bonds of love is given a legal flavour, since nodus has both amatory and legal connotations.24 What is more, as Barchiesi (1993: 356) and Rosenmeyer (1996: 24;  2001: 124) point out, Acontius’ deceptive messages activate the powerful effects of a binding oath, functioning as κατάδεσμοι, the technical term of love charms that can bind one’s object of desire in their knots. In Cydippe’s response, we learn that some suspect that her serious illness is due to Acontius’ sorcery (21.52 ueneficiis . . . tuis). Acontius’ messages are indeed toxic, since they have the deleterious effects of a κατάδεσμος. The legal dimension of Acontius’ enchanting bonds is also suggested by fides, which in this context refers to duties and obligations assumed by a legal agreement (see Berger 1953 s.v. fides).25 Issues of fides and loss of freedom (cf. libera) further evoke the rules of Latin love elegy. In the world of Roman elegy, amatory passion turns lovers into slaves and Acontius here brings up the distinctly elegiac and legalistic motif of seruitium amoris. The lover combines legal agreements, divine oaths, and love charms in order to make Cydippe a slave of his desire. Cydippe is trapped into an elegiac letter and thus constrained by the rules of Latin love elegy, a genre that can cast her both as a domineering mistress and a slave. Acontius’ desire and its expression should be read against the profile of the elegiac genre as a discourse of wooing (cf. Stroh 1971; Barchiesi 1993: 360–3; James 2003: 12–21). The hero’s letter, in fact, fulfils his wish to bind Cydippe more tightly. The medium is 24  For the bonds of love, see Her. 4.135–6 illa coit firma generis iunctura catena, / inposuit nodos cui Venus ipsa suos. ‘That bond of kinship is firm with a chain that Venus herself has imposed.’ Venus was etymologically related to uincire (see Maltby  1991 s.v. Venus), an etymology which is in play here. The couplet is about Venus’ ‘magic knot’ (see ­ C. Michalopoulos 2006: 202–3). For nodus in legal contexts, see Juvenal 8.50 qui iuris nodos et legum aenigmata soluat, ‘who may solve the knots of rights and riddles of laws’; cf. Horace, Sat. 2.3.69–70 adde Cicutae / nodosi tabulas, centum, mille adde catenas. ‘Add the tablets of Cicuta, who is full of knots, a hundred, add a thousand chains.’ 25  Cf. also Cydippe’s use of uincula (21.138 ‘bonds’) in her formal rebuttal of Acontius’ claims that his contract was binding.

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sim­ul­tan­eous­ly the expression of desire and its fulfilment. As a sequel to the potent message on the apple, Ovid’s epistle binds Cydippe with more knots. Relying on elegy’s strategic aim to charm, seduce, and capture, Ovid’s Acontius can chain Cydippe tighter. The interlocking word order of 20.40 (ut tua sit nulla libera parte fides) conveys the image of a knot (cf. Michalopoulos  2014 ad loc.), so that the knots Acontius is asking for are reflected in the diction with which he ties Cydippe. The laws of the elegiac genre provide him with the means for captivating and enslaving Cydippe. The communication of his desire is its own fulfilment, a powerful enactment that the love letter shares with legal injunctions and magic spells. In combining law, love, and magic, Ovid follows Propertius’ lead. In Propertius 3.20, the poet proclaims that he will write legislation for his new love. The promise of a legal code of love is integral to an elegy whose aim is seduction: foedera sunt ponenda prius signandaque iura   15 et scribenda mihi lex in amore nouo. haec Amor ipse suo constringet pignora signo, testis sidereae torta corona deae.         18 namque ubi non certo uincitur foedere lectus,     21 non habet ultores nox uigilata deos, at quibus imposuit soluit mox uincla libido: contineant nobis omina prima fidem. ergo qui tacta sic foedera ruperit ara . . . 26           25 Propertius 3.20.15–25 First the terms must be fixed, the conditions sealed, and the contract written for this new love of mine. Love himself will ratify these pledges with his signet: the plaited crown of the starry ­goddess is witness. For when a union is not bound by a fixed agreement, sleepless nights have no avenging gods, and passion soon loosens the fetters of those it has imposed on. For us, though, may first omens ensure faithfulness. So, whoever then breaks this agreement after touching the altars . . . 26  There is a bilingual pun here on ara (‘altar’) and ἀρά (‘curse’), activated by the subsequent curses (25–30).

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Critics note that Propertius here deploys the language of marriage contracts in the context of an extramarital relationship (see Keith  2008: 41–2; Gebhardt  2009: 139–41). The signing and ­witnessing of the wedding contract, the tabulae nuptiales (see Gardner 1986: 47–50; Treggiari 1991: 165), are here a legal action applied to elegiac love. The seal and binding of the contract are the physical reflection of the restrictions that amatory legislation imposes upon lovers. The language of binding (constringet, uincitur, uincla) points to the ways in which the materiality of legal docu­ ments extends to the tying together of lovers’ bodies. The bonds of passion (libido) need to be tightened up with the bonds of contractual law. What is more, the passage quoted above strongly evokes the binding spells of erotic magic. There is an overlap between marriage contracts and defixiones, law and magic. This is suggested not only by the vocabulary of tying, but also by the night-time setting and the avenging gods. The catasterized (or ill-starred) Ariadne is both a witness (testis) for the lovers’ contract and an avenging demon, ready to haunt those who break the laws of love. Twice abandoned by Theseus and Bacchus, Ariadne is the right heroine to be invoked in a defixio that is presented as a marriage contract.27 The Crown of Ariadne suggests that the signing of this pact takes place outdoors at night, thus evoking the setting of magical rites rather than contractual agreements. The curses against the lovers who break this holy agreement (25–30) overlap with the language of law (see Heyworth and Morwood 2011: 305). In 2.20, Propertius formally declares his fides to his mistress and vindicates his loyalty against allegations of infidelity. The poet solemnly swears to the gods that he will remain forever faithful to his mistress and ends his poem by invoking Aeacus, the judge of the underworld to convict him to eternal torture if he is lying (2.20.30–2). Propertius swears to tell the whole truth and nothing but the truth, urging his girlfriend to trust him when he says that the source of his fidelity is his love for her. The bonds of elegiac passion are the 27 ‘Unforturnate heroines’ (ἡρωίδες δυστυχεῖς) were invoked as avenging demons; see Papyri Graecae Magicae IV.1420–1, with Costantini (2019: 220).

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ultimate law that guarantees a lover’s loyalty. This elegy is a formal statement of the poet’s commitment to his mistress. Cynthia needs not send any more messages (tabellis), entreating Propertius to be faithful (33). The pact is permanent and sealed with love. In an inversion of the elegiac seruitium amoris, Propertius emphasizes the liberating force of his passion in a passage that evokes the interplay between legal and amatory diction: mi licet aeratis astringant bracchia nodis, sint tua uel Danaës condita membra domo, in te ego et aeratas rumpam, mea uita, catenas, ferratam Danaës transiliamque domum. Propertius 2.20.9–12 Even if my arms are bound in bronze knots and your body is ­imprisoned in Danaë’s house, for you, my life, I would break the bronze chains and leap over Danaë’s iron house.

Propertius refers to literal, albeit hypothetical bonds here. Yet, given that legal language has the power to affect physically those who are liable to it, the interplay between the literal and metaphorical meaning of nodi is inherent to the force of law. The power of legal and amatory discourse consists in bridging the gap between the figurative and the physical. Like nodi, astringere has a literal and metaphorical meaning: ‘to tie up tightly’ (OLD s.v. 1), but also ‘to bind by laws or promises’ (OLD s.v. 8) or ‘to commit to an obligation’ (OLD s.v. 9). Even if I am legally and literally chained as a slave, Propertius declares, love will set me free. While both nodus and astringere evoke the language of law and love charms, the lover who escapes from bronze fetters seems like the real magician (elegiac love makes Propertius a precursor of Houdini). His escape act brings up the simultaneous conflict and confluence of magic, law, and love. The power of elegiac passion to break real chains signifies the supernatural power of love to rise above the law and thus become the law. Love is an exception (­ex-ceptio) in the sense that it liberates the lover from captivity, namely from the grip of law enforcement. Passion breaks the chains of slavery just as easily as it can break the law. Thanks to the

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mythological example of Danae that is cited as a precedent to the power of love, Propertius corresponds to Jupiter, the sovereign lover par excellence. Still, Propertius’ readers are fully aware that the reason why the poet can escape from bronze shackles is because he is love’s slave. Love is not an emancipator, just a superior master. Ovid clearly employs the legal meaning of astringere in Paris’ letter to Helen: tunc ego iurabo quaeuis tibi numina meque adstringam uerbis in tua iura tuis Heroides 16.321–2 then I shall swear to you by whatever gods you wish, and bind myself to observe your laws in words which you shall dictate

Paris swears to follow the rules that Helen will set out, inviting her to exercise her power as an elegiac mistress. In Roman elegy, the conditions of the domina are the law. That was the point of Acontius reminding Cydippe of her rights (20.79 tua iura). Paris behaves likewise when he urges Helen to legislate, declaring that he is happy to be bound to her rules.28 A mistress’s words can tie an elegiac lover in knots, a power that is simultaneously legal, erotic, and magical. Andreas Michalopoulos (2006 ad 16.322) notes on adstringam that the element of ‘binding’ is central to religious or magic rites and quotes Acontius’ adstrinxit (20.28) as a parallel case of magic binding (κατάδεσμος) in love elegy. Both Paris and Acontius write to their beloved women and expect a response from them, a letter that will have the force of law. As documents that anticipate a response, cause a reaction, and form social bonds, the letters of Acontius and Paris reveal the inherently legislative structures of epistolarity. The invitation to a mistress to bind her lover with her rules invests the love letter with the right to institute cor­res­pond­ence as a form of amatory jurisprudence (cf. Goodrich 1997: 253). 28 For examples of a domina dictating her iura, see also Prop. 1.9.3, 3.11.2; Ov. Am. 2.17.23–4.

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The Intertextual Evidence In the Heroides, literary tradition functions as a precedent that ­ratifies the contents of love letters. The main intertext in Heroides 20–1 is Callimachus’ Aetia fr. 67–75e Harder. The Callimachean intertext is in play not just as part of a sophisticated literary game, but also as strong evidence that supports Acontius’ case. By echoing Callimachus’ authoritative work, Ovid’s Acontius makes literary sources a legitimizing force. The allusions to the Aetia are rife with legal diction, as is the case in the following passage: non ego natura nec sum tam callidus usu; sollertem tu me, crede, puella, facis. te mihi conpositis (siquid tamen egimus) a se adstrinxit uerbis ingeniosus Amor. dictatis ab eo feci sponsalia uerbis, consultoque fui iuris Amore uafer. Heroides 20.25–30 I am that cunning neither by inclination nor by practice; you, trust me, girl, make me wily. If indeed we played any part in the matter, ­ingenious Love joined you to me with words that he contrived. I made the betrothal with words he dictated and I became cunning in the law since Amor was my counsellor.

Love is the agent who binds Cydippe to Acontius with words: adstrinxit uerbis once more combines the binding spell of love charms with the constraints of legal agreements. Acontius takes legal advice from Amor, a counsellor learned in the law who prepares his client for his appearance in court.29 The passage evokes the technical

29  Kenney (1970: 394): ‘Ovid makes Acontius say that he has taken the best professional advice: the picture is that of a consultation, with Cupid as counsel learned in the law, sending his client away well primed for his appearance in court.’

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l­anguage of law. As Kenney (1996 ad 20.29) notes, dictare has a legalistic flavour appropriate to a iurisconsultus.30 The powerful ­carmina that Amor dictates to Ovid are programmatic for the ­confluence of legal and amatory diction (cf. Am. 2.1.38 carmina, purpureus quae mihi dictat Amor, ‘the songs that rosy Amor dictates to me’).31 The prosaic and legalistic ab eo feci sponsalia further conveys the formal tone of Amor’s dictation of the act of betrothal; iuris ingeniously applies both to Acontius, who becomes cunning in law (iuris . . . uafer), and Amor, who is Acontius’ jurisconsult (consulto . . . iuris).32 Elegiac and legal documents converge in their power to instruct and bind the beloved with words. Acontius’ amatory missive is cast as a sponsio (an oral betrothal) or a stipulatio, an oral contract (cf. Michalopoulos 2014: 158). The verb spondeo is used in the contractual formula of the stipulatio/ sponsio; it means ‘I give a pledge’ to do something in general or ‘I give a pledge to give in marriage’ in particular. According to trad­ ition­al Roman law, the stipulatio was binding even if it was the result of a trick; it was a contract of strict law (the promisor was still bound even if he had entered the contract as a result of fraud or extortion). This was remedied by praetors around 80 bce (see A. Watson 1995: 22; Mousourakis 2015: 148). Ovid’s Acontius takes part in a juristic dispute by claiming the validity of his contract, even though it was the product of dolus.33 Ovid here echoes De officiis 1.33, Cicero’s condemnation of shrewd and fraudulent constructions of law (Exsistunt etiam saepe iniuriae calumnia quadam et nimis callida, sed malitiosa iuris interpretatione. ‘Injustice often arises also through chicanery, that is, through a cunning but fraudu­lent construction of the law’). Cicero ends his chapter by advising that ‘shrewdness’ (sollertia) should be avoided by all means

30  See Suetonius, Tib. 22; Ner. 32. Juvenal’s educated women are ‘ready to dictate passages to Celsus’ (6.245 locos Celso dictare paratae). Juvenal here is thinking of a speech delivered in court (see Courtney  2013 ad loc.). Celsus is either a writer on rhetoric or a jurist (see Courtney 2013 ad loc. for his identity). 31  Cf. Propertius 4.1b.133 tum tibi pauca suo de carmine dictat Apollo, ‘then Apollo dictates a little of his song to you’, discussed in Chapter 2. 32  See Kenney (1996 ad loc.). 33 Videau (2004); (2010: 109–15) and Alekou (2011: 398–404, 448–50) argue that Acontius refers to the legal concept of dolus bonus.

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in legal agreements. Ovid’s Acontius, by contrast, relies on Amor’s sollertia in order to use the law as a trick that will bind Cydippe. Acontius’ plea to Cydippe to believe in what he says is a literary annotation; crede (‘trust me’) is an appeal to Callimachus’ text, which supports the hero’s claims:34 Αὐτὸς Ἔρως ἐδίδαξεν Ἀκόντιον, ὁππότε καλῇ ᾔθετο Κυδίππῃ παῖς ἐπὶ παρθενικῇ, τέχνην—οὐ γὰρ ὅγ’ ἔσκε πολύκροτος—ὄφρα λέγο..[ τοῦτο διὰ ζωῆς οὔνομα κουρίδιον. Callimachus, Aetia fr. 67.1–4 Harder Eros himself taught Acontius the art when the boy was burning for the beautiful maiden Cydippe—for he was not cunning—so that he might gain the name of husband for the rest of his life.

Ovid’s hero invites Cydippe to trust what he says, since he is faithful to literary tradition. Verbal echoes emphasize the intertextual connection: callidus, sollertem, and uafer translate, intensify, and gloss over the rare πολύκροτος.35 Likewise, sollertem, a compound of ars, alludes to Callimachus’ τέχνη. Acontius’ statement that he merely wrote down what Amor had dictated can be read as Ovid’s selfreflexive comment on his elegy as a version of the Aetia. Amor dictates the words of the pact to Acontius, and Ovid copies ­ Callimachus. At the same time, Ovid’s references to Callimachus underline the Roman poet’s innovations; imitation highlights difference. While the Greek text is devoid of legal language, the Latin text is rife with legalisms. In Callimachus, Eros taught Acontius the art of winning over Cydippe, a variation of the motif of Eros as a teacher of love poetry.36 Ovid builds on Amor’s traditional role as a teacher of 34 Here crede functions as an ‘Alexandrian footnote’, that is, it draws attention to the fact that the poet refers to a specific passage from literary tradition. 35  πολύκροτος in turn is a reference to Odysseus πολύτροπος (see Harder  2012: 550–1). The referentiality of sollers reproduces the referentiality of πολύκροτος, since, as Michalopoulos (2014: 154) notes, sollers describes Odysseus in Ovid (Ars 2.355; Pont. 4.14.35). 36  See Euripides, Stheneboea fr. 663 Nauck ποιητὴν δ’ἄρα Ἔρως διδάσκει, κἂν ἄμουσος ᾖ τὸ πρὶν, ‘but Eros instructs a poet then, even though he was songless before’; Theocritus,

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love and love poetry, and adds a legal dimension to this motif. The Roman poet enriches Callimachus’ version with legal nuances, but even though the Aetia passage has no legalisms, Ovid’s reference to Callimachus has a legitimizing force. By alluding to Callimachus’ authoritative text, Ovid’s Acontius evokes a literary precedent, not unlike lawyers who often rely on legal precedent and written statutes. From that perspective, intertextual references become a trope of legal evidence. The older tradition legitimizes the later version. Even though legal language is absent from Aetia fr. 67.1–4 Harder, legal diction is part of the lover’s discourse already in Callimachus. The narrator says that Acontius would not have swapped the first night he spent with Cydippe for the riches of Midas and then summons lovers to testify to the truth of his judgment: Aetia fr. 75.48–9 Harder ψήφου δ̣’ ἂν ἐμῆς ἐπιμάρτυρες ε̣ἶ̣ε̣ν̣ / οἵτινες οὐ χαλεποῦ νήιδές εἰσι θεοῦ, ‘and witnesses of my judgment will be those who are not unfamiliar with the harsh god [i.e. Eros]’ (translation Harder 2012). We can trace already in Callimachus the connection between legal evidence and amatory expertise that features prominently in Ovid. The experiences of lovers validate the poet’s judgment. What is more, Callimachus establishes his poetic authority by evoking literary tradition as evidence or testimony. His tag ‘I sing nothing without witnesses’ (fr. 612 Pf. ἀμάρτυρον οὐδὲν ἀείδω) is an authorization of his text, a declaration that produces previous sources as witness statements that can support a case in court. In Ovid, the Aetia becomes the hard evidence of Acontius’ claims. This is characteristically Ovidian. In the Fasti, for instance, a work whose very title is a reference to legal action, Ovid often casts his search for true causes (for true aetia or causae) as legal disputes.37 Aetiologies morph into legal arguments. The key word is causa, which can refer to the literary authority of Callimachus’ Aetia and Supplementum Hellenisticum 566 οἱ γὰρ Ἔρωτες ποιητὰς πολλοὺς ἐδίδαξαν τοὺς πρὶν ἀμούσους, ‘for the Erotes taught many poets who were songless before’; see also Plato, Symp. 196d. 37  This is argued convincingly in Gebhardt (2009: 283–303), which examines how the search for true aetiologies is cast as a legal procedure in the Fasti.

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the proceedings of a legal case.38 A case in point is when Acontius raises the issue of the true cause of Cydippe’s illness in a passage that activates an intertextual reference to the Aetia: ei mihi, Cydippe, timeo tibi dicere uerum, ne uidear causa falsa monere mea; dicendum tamen est. hoc est, mihi crede, quod aegra ipso nubendi tempore saepe iaces. consulit ipsa tibi neu sis periura laborat et saluam salua te cupit esse fide. Heroides 20.107–12 Woe to me, Cydippe, I fear to tell you the truth, lest I seem to lie for my cause. However, I should speak. This is the reason, believe me, why you often lie ill at the very time of the wedding. The goddess herself looks after your interests and takes pains so that you will not break your oath, and she wished you to be kept safe by keeping your faith.

Acontius’ plea to Cydippe to trust the rather hard to believe story of divine intervention is simultaneously a comment on the dubious credibility of myths and an appeal to Callimachus’ Aetia, the text that gives credit to Acontius’ claim.39 The mention of the repeated postponement of Cydippe’s wedding due to her illness (Her. 20.113–­20) summarizes Callimachus’ description of her wedding, which was prepared and cancelled three times (Aetia fr. 75.1–19 Harder). The fever that consumes the heroine (Her. 20.117 parce, precor, teneros corrumpere febribus artus, ‘stop, I beg you, consuming your tender limbs with fever’) was diagnosed in the Aetia (fr. 75.17 Harder ἑπτὰ τεταρταίῳ μῆνας ἔκαμνε πυρί, ‘she was sick for seven months with a quartan fever’). When Acontius speaks on behalf of Diana, provocatively arguing that the goddess takes pains to protect Cydippe from breaking her oath, his claim is once more

38  Michalopoulos (2014: 151–2) notes the frequency of causa as αἴτιον (20.56, 125, 238, 21.13, 53) or ‘legal case’ (20.92, 108, 156, 171, 21.152). 39 Cydippe’s causa latet (Her. 21.53) implicitly questions Callimachus’ version.

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supported in Callimachus. Ovid echoes Apollo’s oracle in the Aetia, which told Cydippe’s father that ‘a heavy oath to Artemis frustrates the girl’s wedding’ (fr. 75.22 Harder Ἀρτέμιδος τῇ παιδὶ γάμον βαρὺς ὅρκος ἐνικλᾷ). Callimachus’ Aetia buttresses Acontius’ causa. Ovid’s hero shares with Callimachus a concern about the true cause of Cydippe’s illness. The Alexandrian poet refers to historiographical sources in order to boost the credibility of his myth. Callimachus reveals that his source was Xenomedes, an old his­tor­ ian who was concerned with the truth of the tale of Acontius and Cydippe (fr. 75.76 Harder πρέσβυς ἐτητυμίηι μεμελημένος).40 In the Aetia, the reason for Cydippe’s illness is given by Apollo (fr. 75.22–37 Harder), an oracle that solves the mystery and is a catalyst for the success of Acontius’ plan. Apollo is proverbially a god of truth (Pindar, Pyth. 3.29–30, 9.42; Ovid, Ars 3.789–90) and his oracle straightforwardly explains that Cydippe is bound by an oath to marry none other than Acontius. The reason that Ovid’s Acontius gives (Her. 20.109–16) and explains the cause of Cydippe’s illness is a version of Callimachus’ Aetia (fr. 75.10–12, 16–37 Harder) and that is why the hero’s claim to truth (dicere uerum) needs to be taken seriously. A number of authoritative voices resonate in Acontius’ statement: Apollo, the prophet of truth, Xenomedes, the truthful historian, and Callimachus, the poet of the Aetia and ul­tim­ate source of Acontius’ letter. Callimachus becomes for Ovid what Xenomedes was for Callimachus: an authoritative source that is evoked as evidence for the story’s truthfulness. Ovid’s Acontius does not simply invent excuses for his own benefit (causa . . . mea),41 but appeals to an established tradition of history and aetiology in order to support his case in what he casts as a legal dispute.42 Ovid’s Cydippe is

40 Commenting on Callimachus’ citation of the historian Xenomedes, Rosenmeyer (1996: 11) notes: ‘By pointing to these historical origins, Callimachus subtly argues for the “truth” of his own writings. The direct reference to the historical source supports his claim to scholarly authenticity, as he builds his text on the foundation of yet another text.’ Historical documents confirm mythological narratives. 41  Kenney (1996 ad 20.108) notes that causa mea (‘for my own sake’) is a well-attested idiom, which, however, Ovid does not use elsewhere. 42  Causa can mean ‘the case (including the interests) of one side in a legal dispute’ (OLD 2).

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framed by the evidence of canonical texts, as Rimell (2006: 166) notes, and those texts acquire the status of legal precedent in Acontius’ letter. The hero makes a case that Cydippe should marry him, relying on literary tradition. He claims to tell the truth and nothing but the truth, since his statement is backed by the literary canon. Quotations from poetry were actually used in courts as legal evidence. Aristotle, for instance, recommends that orators cite poets as witnesses (Rh. 1375B 28).43 Perlman (1964: 167–8) notes that Attic orators quoted passages from poetry as evidence that supported their cases. Aeschines and Lycurgus use quotations from poetry as a substitute for proof from law and for evidence for witnesses. In the Pro Caelio, Cicero quotes several passages from comedy and tragedy in his attempt to influence the jurors.44 Quintilian (Inst. 1.8.11–12) notes that great orators, such as Cicero and Asinius, often quoted lines from older poets, such as Ennius, Accius, Pacuvius, Lucilius, Terence, and Caecilius, in order to support their cases and please the jurors. He concludes as follows: 12 Quibus accedit non mediocris utilitas, cum sententiis eorum uelut quibusdam testimoniis quae proposuere confirment. ‘There is considerable practical advantage in this also, because orators adduce the sentiments of the poets as a kind of evidence to support their own positions.’ Even the jurist Gaius in his treatise on the Twelve Tables quotes Homer (Odyssey 4.230) to support his definition of uenena (‘drugs’; see Digest 50.16.236). Paul (Ad edictum 33; Digest 18.1.1) says that Sabinus invoked Homer (Iliad 7.472–5) as a witness in discussing whether one can talk of sale if no money is involved. He then goes on to give his own interpretation of Homer (Iliad 6.234–5) to conclude that barter is different from sale. Paul does not dismiss the evidence of Homer, but challenges Sabinus’ reading of the Iliad. Poetry as legal evidence is not simply a conceit of Ovidian poetics, but reflects the decisive role that poetic tradition could play in the outcome of a trial and the reasoning of jurists.

43  See Canevaro (2015: 20). 44  For the crucial role of comedy in the Pro Caelio, see Geffcken (1973) and Leigh (2004).

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Love, Litigation, and Justice Acontius’ letter aims to create a court of love to judge his dispute with Cydippe’s fiancé. Such a court is under the jurisdiction of the imaginary. Acontius never confronts his rival and the arguments he presents in his letter exist in a fantasy trial. The love letter becomes the substitute for litigation—an expression of the lover’s yearning for courtroom procedures. Acontius starts imagining his encounter with Cydippe’s fiancé and develops his claims once he envisages his rival alone in a room with a bedridden Cydippe. The man, as Acontius pictures him, will have the chance to lay his hands on Cydippe (20.137–41), pretending to comfort her from the illness. This erotically charged image would make a lover jealous. What is more, Acontius is disturbed by the legal dimension of the gesture, which suggests that Cydippe comes under the power (in manu) of her future husband. The sensual dimension of the gestures of law is once more in play here as Acontius invades the privacy of the engaged couple with the fantasy of a public trial. Once more the bedroom is transformed into a courtroom (cf. Chapter 3). The rival’s gesture upsets Acontius because it suggests a marriage cum manu, in which the husband acquires full power over his wife.45 Acontius wants to claim Cydippe from the potestas of her father and pre-empt her fiancé’s attempts to put her under his manus. Exasperated and deluded, the hero orders his rival to take his hands off his beloved: Quis tibi permisit nostras praecerpere messes? ad sepem alterius quis tibi fecit iter? iste sinus meus est, mea turpiter oscula sumis; a mihi promisso corpore tolle manus. improbe, tolle manus: quam tangis, nostra futura est; postmodo si facies istud, adulter eris. elige de uacuis quam non sibi uindicet alter; si nescis, dominum res habet ista suum. 45  See Chapter 8 on Myrrha’s marriage cum manu with her father.

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The Letter of the Law  169 nec mihi credideris: recitetur formula pacti; neu falsam dicas esse, fac ipsa legat. alterius thalamo, tibi nos, tibi dicimus, exi. quid facis hic? exi: non uacat iste torus. nam quod habes et tu gemini uerba altera pacti,  non erit idcirco par tua causa meae. Heroides 20.143–56 Who gave you permission to reap my harvest? Who made a way for you to another’s fence? This lap of yours is mine; mine are the kisses you are shamelessly taking. Take your hands off a body that is promised to me. Wicked, take your hands off her: the woman you touch is about to be mine; if you do this a bit later, you will be an adulterer. Choose an eligible woman whom another does not claim. If you don’t know, this chattel has her master. No need to trust me: let us have the actual terms of the agreement read out; and lest you say it is false, make her read them. Get out of another’s bedchamber, I’m telling you. What are you doing here? Get out: this bed is not free. Even though you too have another agreement with identical words, your case will not be for that reason equal to mine.

Acontius’ arguments are a uindicatio of his property (cf. Kenney 1969: 254–6). In this context, uindicet is a technical term applied to defending one’s property by seeking its recovery in court (see Berger 1953 s.v. uindicatio). The reference to trespassing and reaping another man’s harvest adds a legal dimension to the common agricultural metaphors of sex: sinus meus est plays on the anatomical and topographical meaning of sinus (‘bosom’ and ‘fold in land’; cf.  Fowler  1987: 194–5). It further evokes a legal formula with which one claims something or someone as one’s property.46 In Pro Murena 25–6, Cicero criticizes the cunning of lawyers (iurisconsulti) who devise wordy expressions for simple formulas.47 The 46  See also Hollis (1994), who focuses on the legal meaning of Her. 20.143–4 and argues convincingly that Acontius is claiming ownership of Cydippe and denying that his rival is entitled to usufruct with access. 47  Cf. Cic. Mur. 25–6 uerba quaedam composuerunt with Her. 20.27–8 compositis . . . uerbis. The cunning Amor recalls Cicero’s shrewd iurisconsulti. Mur. 26 is briefly discussed in Gebhardt (2009: 123–4).

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straightforward formulas mentioned by Cicero can shed light on Acontius’ dispute: ‘Fundus Sabinus meus est.’ ‘Immo meus’, deinde iudicium. ‘ “The Sabine estate is mine,” “No, mine,” then a trial.’ Acontius’ meus est refers to the dispute of two litigants, each of whom claims the same property as his own. In the eyes of the Ovidian lover, the fiancé’s caresses exemplify the coincidence of the erotic with the juridical. Acontius sees this gesture as his rival’s attempt to possess Cydippe and summons him to a trial in order to settle their dispute. Acontius’ repeated tolle manus aims at undoing his rival’s manus iniectio, a gesture claiming a person under one’s ownership (manus). The manus iniectio would apply either to fathers exercising their patria potestas (see Quint. Inst. 7.7.9; Valerius Maximus 5.4.5) or masters claiming a person as their slave (see Livy 3.44.6).48 Acontius challenges his rival’s right to claim Cydippe as his own and casts himself as a uindex in an actio legis per manus iniectionem (see Berger 1953 s.v. uindex), that is, a person who intervenes on Cydippe’s behalf to deny that the manus iniectio was justified. The lover does not defend Cydippe’s freedom in order to liberate her from her master, but in order to claim her as his slave.49 He imagines himself involved in a rei uindicatio or a uindicatio in seruitutem.50 The hero claims that Cydippe is his res in the legal meaning of ‘chattel’ and that he is her dominus (see Kenney  1970: 396–7; Alekou  2011: 397–8, 470–2).51 By employing legal language that describes a master and a slave, Ovid’s hero simultaneously evokes the elegiac motif of seruitium amoris. Property law is the origin of elegiac enslavement. 48 On manus iniectio in Roman elegy, see Daube (1966: 226–31); Coleman (1990: 572); Miller (2004: 180–2); Gebhardt (2009: 112–15, 135–7); Alekou (2011: 108–9, 222). Medea uses the formula of the uindicatio in the context of love and marriage; see Her. 12.157–8 uix me continui, quin dilaniata capillos / clamarem ‘meus est!’ iniceremque manus. ‘I barely restrained myself from tearing my hair and shouting “he is mine!” and laying hold of you.’ See also Chapter 3, on Am. 1.4.39–40 and 2.5.30. 49  It is remarkable that, as a bride, Cydippe is cast as a chattel. Marriage and slavery are thus interchangeable, as they are both subsumed under the sovereign rule of Amor. 50  Livy 3.44–58 is a case of uindicatio in seruitutem. The decemuir Appius Claudius, who lusts after Verginia, has one of his clients claim that she is his slave rather than a free citizen in order to sleep with her. Appius has his client claim her with a manus iniectio, and a trial to decide Verginia’s social status follows. On law as a vehicle for desire in this story, see Janan (2001: 150–1). 51  uindicet and res at Her. 20.149–50 suggest a rei uindicatio.

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The erotic dimension of the manus iniectio in the motif of seruitium amoris features in Propertius 1.13.15–16 uidi ego te toto uinctum languescere collo / et flere iniectis, Galle, diu manibus. ‘I saw you pining away chained in your whole neck and crying, Gallus, for a long time with arms having been cast around you.’ Gallus suffers as a slave under the bonds of love, growing pale as he wastes away in passion. Propertius is an eyewitness of this social transformation that is effected through the juridical powers of elegiac passion.52 The interplay between the literal chains of slavery and the metaphorical bonds of love is the result of manus iniectio, a legal action with amatory undertones. The arms of the lover are the bonds that make the beloved a slave to desire. Acontius binds the object of his desire in legal knots in an attempt to institute a procedure that will grant him the ownership of his beloved. By creating the fiction of a trial with his love letter, he attempts to trap Cydippe in his fantasy, but is also himself immersed in, almost deluded by, his own imagination. In this court of love, Cydippe’s involuntary oath is presented as a legally binding contract, a pactum. Acontius muses that he is in a trial, demanding that the words of the contract be read out: recitetur formula pacti, as Kenney (1996 ad 20.151) notes, is the language of an advocate in court demanding the production of documents. Acontius’ seductive missile resurfaces as evidence of a marriage contract in a fantasy trial. As Steve Reece (2017: 30–1) notes, a pressing fear among Roman letter writers was that autographic documents might eventually show up as evidence in the law courts.53 This is what Acontius wants to do—to produce personal correspondence as evidence in a public trial. As we have seen in the section ‘The Intertextual Evidence’, an appeal to trust and trustworthiness (credideris) often functions as a literary annotation. An older tradition is evoked in order to add authority to a claim that may seem implausible. From an inter­text­ ual perspective, Ovid’s Acontius asks for the text of Callimachus to 52  See Propertius 1.13.14 and Chapter 3 for uidi as the language of an eyewitness testifying in court. 53  He cites examples from Cic. Phil. 2.8; Suet. Iul. 17.1–2; Plin. Ep. 3.9.13; Apul. Apol. 69; Plut. Vit. Sert. 27.3.

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be produced and recited as proof of his testimony.54 Acontius aims at repeating his deception and this time also involves his rival in his trick. His reference to literary past is an attempt to update it and bring it back to life. In order to counter any allegations of falsehood (cf. falsam), the hero invites his opponent to ask Cydippe to read out the terms of the agreement. Thus, he stages a reperformance of the mythological tradition, a re-citation that would verify the tale attested in Callimachus’ text. By reading the words of her oath, Cydippe would once more authenticate Acontius’ message and reenact the mythological scenario. The recitation of the oath will once more become its own verification. Its contents are powerful, not because of Cydippe’s intention, but because they would reperform prior actions.55 While confronting his rival in court, Acontius has to present his message to Cydippe as a legally binding pact and also render his opponent’s act of betrothal invalid. As Acontius argues, both his rival and he have identical contracts that claim the same woman, but Acontius asserts that his case (causa) is superior to his rival’s. The key word causa signals again a reference to Callimachus’ Aetia, highlighting the juridical dimension of literary annotations. Acontius’ case is stronger because Callimachus’ Aetia supports it. Literary sources are recast as evidence in a lawsuit and causa summons Callimachus as a witness in Ovid’s trial. Ovid’s Acontius ‘sings nothing without witnesses’ as he evokes literary sources in order to appropriate the object of his desire. But there is more to it. Besides the intertextual dimension of Acontius’ claim, the hero’s arguments why his case is stronger cast amatory passion as superior law. Acontius first contrasts the father’s contract with Cydippe’s oath (155–62). The word of Cydippe herself, he argues, should weigh more than her father’s, implying that a young woman had or should have the freedom to choose her husband. What is more, Cydippe’s father gave his word to men, while 54  The text of the oath does not survive in the fragments, but can be reconstructed from the Diegesis as μὰ τὴν Ἄρτεμιν Ἀκοντίωι γαμοῦμαι. ‘I swear to Artemis that I shall marry Acontius’ (fr. 75a.3–4 Harder= Dieg. Z 1–7, p. 71 Pfeiffer). Ovid’s Acontius and Cydippe coyly avoid repeating the oath. 55  On Cydippe’s intention as the crucial issue in Heroides 21, see Lowrie (2009: 232–4).

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Cydippe ‘testified in the presence of a goddess’ (160 haec est ­testificata deam). Human agreements should give way to divine law, while a father’s promise is inferior to an oath given to a lover (159 promisit pater hanc, haec se iurauit amanti, ‘her father gave promise of her; she swore herself to her lover’).56 Resorting to a topos of courtroom rhetoric, Acontius argues that the stakes are high for him, but low for his opponent (165–6). The reason is that Acontius is in love with Cydippe: tu petis ex tuto; grauior mihi morte repulsa est, idque ego iam, quod tu forsan amabis, amo. si tibi iustitiae, si recti cura fuisset, cedere debueras ignibus ipse meis. Heroides 20.167–70 Your suit is without risk; for me, rejection is heavier than death, and I already love what you, perhaps, will come to love. If you had cared for justice, or cared for what was right, you should have yielded to my passion of your own accord.

The passage opens with the by now familiar confluence of the language of wooing and law. The lawsuit is the business of a suitor; petis means both to ‘court’ or ‘seek the hand of a woman in marriage’ (see OLD 10 b, c) and to ‘sue’ or ‘lay claim to property’ (see OLD 11a; cf. Michalopoulos 2014 ad loc.). Acontius employed the legalistic and amatory meaning of petere at Her. 20.36 (teque, peti caueas tu licet, usque petam, ‘and I shall constantly court you, even though you make provisions against being courted’).57 With petere, the suitor simultaneously ‘sues for property at law’ and ‘woos’ Cydippe. The courtroom is thus the right place for courting the beloved. The rejection (repulsa), a major fear of the elegiac lover, 56  The line evokes the oral betrothal given by a father to his future son-in-law; cf. Plautus, Aulularia 219 filiam tuam mi uxorem posco. promitte hoc fore. ‘I ask your daughter’s hand in marriage. Promise that this will be.’ Megadorus asks Phaedria’s hand from her father, who in the end promises her to him. No one has asked the young woman whether she agreed with the betrothal. 57  See Kenney (1996 ad loc.) for the legalistic meaning of petere and the juristic diction of cauere + infinitive (‘to make legal provisions for or against’). On Ovid’s juristic use of cauere, see Chapter 6.

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here also has the legal meaning of ‘rejection of a claim’ (see Michalopoulos 2014 ad loc.). Property law is the language of elegiac seduction and vice versa. The convergence of elegiac with legal discourse brings us to the issue of amatory justice. Laws and contracts aside, the fact that he is in love with Cydippe should be enough for Acontius to claim her. His opponent made a pact with the heroine’s father, an arranged marriage, which Acontius casts as devoid of true passion. In this trial, Acontius’ rival risks losing a fiancée, while Acontius risks dying of love, if he loses his beloved. Anyone seriously concerned with what is right, Acontius avers, must recognize amatory passion as sovereign justice. The hero shifts from discussing technical details of contractual law to addressing more fundamental issues of jurisprudence. Readers might be amused by Acontius’ chicanery in presenting Cydippe’s involuntary oath as a legal contract but his claim that love is the heart of justice can hardly be dismissed as frivolous. The transactional and unemotional nature of arranged marriages clashes with love as the reason why a man would want to marry a woman. For the young lover, his rival’s contract is void because it is devoid of affection.58 Once more, Ovid evokes the affectio maritalis of Augustan law in order to claim the legitimacy of elegiac passion. Acontius’ pact, however deceptive, is based on love, and that is why it is superior to any legal commitment that ignores the rules of desire. On the one hand, the lover writes his letter in order to suggest a legal reform based on the justice of amatory passion. The love letter is an attempt to make love the basis of marriage legislation. On the other hand, his reform aims to restore the repressed affectivity of legal agreements (cf. Goodrich 1997). Acontius’ claim that love is the superior law is radical because it signals a return to the very roots of justice. Ovid’s hero is an expert not only in Roman law but also in amatory jurisprudence. Even his rival should acknowledge the superiority and universality of the laws of love. Acontius draws a distinction between justice (divine, universal, amatory) and law (human, conventional, unemotional), but also makes a point that human legislations are just only if they derive 58 Of course, we do not know whether Cydippe’s fiancé is in love with her, but this assumption suits Acontius’ argument.

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from the superior laws of love. In his discussion of the force of law and the mystical foundation of authority, Jacques Derrida examines the right of justice vis-à-vis the power of law, arguing that while law is deconstructible, justice, outside or beyond the law, cannot be subjected to deconstruction (see Derrida  2002: 230–98, especially 242–3). In his letter, Ovid’s lover refers to amatory justice as being above human law, in order to claim the ultimate legitimacy of his pact. From a Derridean perspective, the love letter of Ovid’s hero aims at deconstructing human law, a project that is made possible because the law is founded upon interpretable and thus transformable textual data. Acontius’ attempt at deconstruction sim­ul­tan­ eous­ly aims at reconstruction. By casting love as the ultimate source of justice, the lover claims amatory passion as the cornerstone of his legal claims. The intertextual levels of the epistle and the conventions of love poetry that are inscribed in it acquire legal authority because they are built upon the foundations of amatory justice. When it comes to his claims, Acontius presents evidence by appealing to literary precedent (deconstructible aspect of legalism). But in dismissing his rival’s contract, he appeals to the non-deconstructible nature of amatory justice. The lover has his cake and eats it too. His legalistic claims are legitimate because they can be traced back to his desire as the original and mystical foundation of authority. Desire is thus the non-deconstructible source of legality. The love letter’s legal force consists in the reunification of the social constructedness of love and legislation with the non-deconstructible nature of desire and justice.

Testatio Discussing the precedence of the love letter over legal codes, Goodrich (1997: 285) notes that the ‘[l]aw shares the lover’s concern with the structural significance of originals—with authenticity and the iconic status of written expression’. Acontius’ obsession with legal evidence intersects with Ovid’s love for literary texts. Not unlike Ovid’s intertextual authentication, law is a matter of ori­ginals because it is always bound to the inscription of prior forms. Legal

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writing is a correspondence, a writing that is always a rewriting of older sources, of precedents which repeat or customs which inscribe a prior superior or divine law (see Goodrich 1997: 286). The hero ends his letter with the fantasy of a dedicatory epigram that exemplifies the confluence of literary precedent and legal docu­ ments. Acontius imagines the dedication of a golden apple to Diana in imitation of the original fruit that compelled Cydippe to marry him. An elegiac couplet will be inscribed on a votive offering, the hero muses, acknowledging the ratification of the message on the original apple: aurea ponetur mali felicis imago causaque uersiculis scripta duobus erit: EFFIGIE POMI TESTATVR ACONTIVS HVIVS QUAE FVERINT IN EO SCRIPTA FVISSE RATA. Heroides 20.237–40 A golden image of the felicitous apple will be set up and the reason will be written in two little verses: WITH THE LIKENESS OF THIS APPLE ACONTIUS SOLEMNLY DECLARES THAT WHAT WAS WRITTEN ON IT HAS BEEN CERTIFIED.

Ovid’s Acontius is aware of the fundamental connection between elegy and dedicatory inscriptions. While tracing the origins of elegy, Horace (Ars Poetica 75–6) says that the metre was first associated with lamentations (querimonia) and then with uoti sententia compos (‘a thought expressed in possession of a prayer’, transl. Rudd 1989).59 Sententia refers to the epigrammatic brevity of dedicatory inscriptions and further suggests the judicial authority of elegiac statements (see OLD 5 s.v. ‘a judicial pronouncement, sentence, judgment’). Elegiac discourse is an authoritative sentence in fulfilment of one’s wishes. The sententia is not simply a thanksgiving expression but also the means by which a wish is granted, thus carrying the force of a judicial pronouncement: it is a thought expressed in possession of a prayer or a decree that fulfils a wish. 59  See Barchiesi (1993: 362).

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Acontius describes the deceptive message with which he bound Cydippe with an oath as a sententia: quod quia sit lectum sancta praesente Diana, esse tuam uinctam numine teste fidem ne tamen ignoret, scripti sententia quae sit, lecta tibi quondam nunc quoque uerba refer. Heroides 20.211–14 because this apple was read in holy Diana’s presence, you were bound by a pledge with a deity as a witness. For fear that after all she may not know the import of the writing, repeat now again to her the words once read by you.

Acontius stages a reperformance of his deception rife with legal overtones. Diana is a witness to Cydippe’s oath that binds her to be true to her word. The hero’s inscription was a sententia, an epigrammatic statement that became an official commitment once Cydippe pronounced it. Ovid’s hero confirms Horace’s definition of elegy; his original message, attested in the elegiac Aetia, is a sententia that enables the author to fulfil his wishes. Described as a sententia, a carmen, or a formula pacti (20.151), the original oath is never spelled out in Ovid, though the poet and his heroes repeatedly tease us with its impending repetition (cf. Her. 20.151–2, 213–14; 21.107–8).60 Instead of repeating the original oath, Ovid’s Acontius offers Cydippe the fantasy of a golden apple dedicated to Diana. The inscription on a replica of the original fruit reproduces the deceitful oath and its effects. In the replica, the language of prayer merges once more with the language of law. The votive apple attests that Acontius’ prayer to marry Cydippe or, rather, Cydippe’s involuntary oath to marry Acontius was granted fulfilment (rata). The addition of a dedicatory epigram is in tune with the elegiac genre. At the same time, the diction is distinctly legalistic. The phrase testatur Acontius evokes the language of a

60  On repetition of a fixed formula as the key to understanding the legal force of carmen, see Pierre (2016: 83, 85)

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testatio, the written declaration of a witness that was commonly taken into account in court. Witnesses often wrote these statements in the third person and attested or declared (testantur) that this or that had occurred.61 The statements commonly speak of obligations that have been discharged or contracts that have been fulfilled (see Meyer 2004: 177–8). Acontius’ couplet is precisely this sort of witness statement. The phrase in eo scripta fuisse rata is a declaration that the message on the original apple has been rendered legally valid.62 In this context, testatur means that Acontius certifies the message on the apple as authentic (see OLD s.v. testor 2b). A deceptive oath inscribed on a piece of fruit is treated as a legal document, and the fantasy of the golden likeness of this apple, the votive offering for the marriage’s fulfilment, authenticates the legitimacy of the original message. In a genuinely Ovidian manner, imitation validates deception. The written testatio of the imaginary apple seals the act of betrothal in the original fruit. The medium of witness statements played a crucial role in court, and it was their physical form that made them authoritative. A testatio had to be written on a tabula or tabellae, while other forms of documents, such as letters and testimonies on papyri, were an invitation to objections. As Meyer puts it, truth was embodied in tabulae; other forms of documents were bitterly contested ground.63 Given the importance of the physical form of legal statements, it is worth examining the material on which Acontius’ statement is inscribed. His first message is de­livered via an apple, a potent symbol of enchantment and temptation, but a medium that could hardly be accepted in a Roman courtroom. Yet the source of the apple is Callimachus’ Aetia. Ovid’s causa activates the reference to the Aetia and imago is a marker of an inter­text­ual echo.64 From an intertextual perspective, the story

61  There are several examples from Pompeii and Herculaneum; see Meyer (2004: 223–4). 62  Note the prosaic in eo that conveys the dry style of legal transactions. 63  On the importance of the physical form of the tabulae in legal statements, see Meyer (2004: 225–7). Other forms of letters were also cited by advocates (especially in the last ­century of the Republic), but their validity depended mostly on the authority of the sender. 64  See Barchiesi (1993: 355) for causa in Her. 20.238 as alluding to the Aetia as Ovid’s model. For imago as intertextual echo, see Barchiesi (2001: 129–40); cf. Hinds (1998: 5–8).

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of Acontius and Cydippe is inscribed on and prescribed in the Aetia, a work in which the poet draws attention to the fact (or the fiction) that he is writing on a δέλτος (fr. 1.21–2 Harder), the Greek equivalent of the Latin tabula. Callimachus brings up the material medium of his poetry in the famous epiphany of Apollo in the prologue: καὶ γὰρ ὅτ⌋ε πρ⌊ώ⌋τιστον ἐμοῖς ἐπὶ δέλτον ἔθηκα γούνασι⌋ν, Ἀ[πό]λλων εἶπεν ὅ μοι Λύκιος Callimachus, Aetia fr. 1.21–2 Harder And when I first put a writing tablet on my knees, Lycian Apollo told me

Ovid reworks this passage in the epiphany of Janus at the beginning of the Fasti (1.93–4 haec ego cum sumptis agitare mente tabellis, / lucidior uisa est, quam fuit ante, domus. ‘While I was pondering these after taking up my tablets, the house looked brighter than it was before’). Ovid translates δέλτον as tabellis and marks his allusion to Callimachus with a subtle wordplay on Λύκιος-lucidior. In the Fasti, Ovid becomes a scribe who writes down the authoritative words of the god Janus. In the episode of Acontius and Cydippe, Callimachus mentions the writing tablets of Xenomedes. The mythographer chronicled the history of Ceos in his δέλτοι (fr. 75.66 Harder γέρων ἐνεθήκατο δέλτοις, ‘old Xenomedes recorded in his writing tablets’). Callimachus’ writing tablets reproduce the work of Xenomedes of old, just as Acontius’ love letter relies on the Aetia. If we take into account the importance of the Aetia in Heroides 20–1, we realize that Acontius’ imaginary inscription works on two levels: within the fiction of the epistles, the hero refers to his original message on the apple, but, outside the fictional world, Ovid has Acontius certify the authoritative text of Callimachus’ Aetia, a work written on a δέλτος/tabula and thus carrying the significance of a witness statement. In the Heroides, fictional objects converge with intertextual real­ ities. Still, the division between wishful thinking and wish fulfilment is also crucial within the framework of the mythological tale.

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Even within the fictional world the likeness of the apple is merely a fantasy; yet its realization depends on Acontius marrying Cydippe, a happy ending known to the reader, who can thus entertain the realization of the golden apple by indulging in Acontius’ fantasy. Ovid’s readers can venture to predict the mythological future because they are aware of the literary past. Cydippe is bound to marry Acontius in mythological tradition. At the same time, the daydream of a votive offering is flimsy if we consider that it is a fanciful Ovidian innovation that has no basis in literary tradition. Ovid likes to draw attention to his belatedness by simultaneously alluding to literary traditions and inventing playful novelties. The future projection of another apple is an imitation of and an innovation on Callimachus’ original text; the second apple is a comment on Ovid’s Heroides as texts composed after the Aetia. The materiality of messages inscribed on apples should be examined vis-à-vis the writing tablets of Callimachus and Ovid. Both poets mention the δέλτος/tabellae on which they are writing. What is more, Ovid mentions the tabellae of love letters several times.65 In Amores 1.12.21–6, the poet contrasts and compares the lover’s writing tablets (tabellae) with a document read out by a lawyer, drawing attention to the media that law and love share.66 Once we suspend our disbelief and give credit to the mythological realities of Acontius’ letter, we realize that the hero’s imaginary authorization of his original message is actually written on tabellae sealed with his signature. From that perspective, the medium and diction of his inscription look more like a testatio and less like fanciful reverie. Acontius inscribes a votive epigram, a distinctive part of elegiac discourse, in his love letter, and the diction of this dedicatory inscription clearly suggests a witness statement. The confluence of votive epigrams and witness statements is further suggested by the shared medium of testationes and love letters. Thus, legal docu­ ments are seamlessly incorporated into amatory epistles. The 65 See Am. 1.11.7, 15, 24–5, 1.12.1–7, 2.15.5, 15, 2.19.41, 3.14.31; Ars 1.383, 2.395, 543; Met. 9.523, 571–5. 66  See Lowrie (2009: 198–9): ‘The suggestion that the unsuccessful tablets of poem 1.12 would be better used in courts (23–6) is an early intimation of the relationship between reading and the law Ovid develops later.’ For tabellae in a trial scene that is resolved by means of love, see Ov. Rem. am. 667.

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language and media of law are neither an extraneous addition to the love letter nor a playful intrusion into elegiac verse epistles. The overlap between witness statements and love letters reveals the material unity of legal and amatory correspondence. It is also important to bear in mind that witness statements were ratified by being read aloud. The reader embodied the voice of the witness, and his or her recitation was a simultaneous validation of the witness’ statement. Acontius wants to make Cydippe play this role (20.151–2, 213–14).67 At the end of his letter, Acontius attempts to deceive the heroine again with an inscription, which would trick her into certifying his fantasies in the act of reading his letter. Ovid inventively replays and Romanizes the Callimachean scenario. The authorization of witness statements depends both on textual materiality and on oral delivery. The myth of Acontius and Cydippe revolves around the controversial idea that the heroine’s recitation validates the hero’s message. Ovid repeatedly resorts to the realities of the Roman legal system in order to legitimize the Romanization of the Greek myth. While reading is etymologically grafted into Roman law (lex-legere),68 the erotic aspect of the author–reader relationship is essential to understanding Acontius’ success. According to Graeco-Roman perceptions of reception, the author penetrates the reader by means of a written message.69 Reading aloud someone else’s words is how an author enters the body of a reader. This sexualization of recitation is the key to understanding how Acontius manages to possess Cydippe by means of written words read aloud. As Cydippe finishes the recitation of Acontius’ letter, she embodies the imaginary inscription on a golden apple and thus represents the imaginary apple.70 An imagined inscription on a Cydonian apple is materialized through the oral recitation of a Cydonian 67  Cydippe tries to protect herself from the risk of reading Acontius’ words aloud and opens her epistle by saying that she read his letter silently (Her. 21.1–2). Ovid’s heroine does not want to repeat the mistake of her Callimachean counterpart. 68  See Lowrie (2009: 327–30, 360–1). 69  See Svenbro (1993: 187–216); Rosenmeyer (1996: 13). 70 The heroine’s name puns on the Greek word for quince (Κυδώνιον μῆλον), and Aristaenetus attests that Acontius deceived Cydippe with a Cydonian apple (Aristaenetus 1.10.27 Vieillefond); Cf. Call. fr. 75.12 Harder; Ov. Her. 21.15–16; 215–16. See Rosenmeyer (1996: 17 n. 22); Trumpf (1960). The colour of the quince would make the golden imitation look more like the original fruit.

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heroine, pointing to the interchangeability of the corpus of elegiac poetry and puella. Cydippe is the vocal embodiment of Acontius’ passion. The reception of Heroides 20 is further nuanced if we take into account that Ovid likes to draw attention to the language and ma­teri­al­ity of the letters in order to highlight their fictionality. In Heroides 3.1–4, for instance, Briseis apologizes for her broken Greek and the teary blots on her letter. We are invited to imagine Achilles reading a foreign woman’s clumsy Greek in a letter littered with misprints, but what Ovid’s readers actually face is the poet’s clear and fluent Latin.71 The involvement of the reader in the text (Achilles in Heroides 3 or Cydippe in Heroides 20) should be distinguished from the experience of the reader of the text (Ovid’s readership). From our perspective, a formal ratification of Acontius’ tabula is nothing more than part of Ovid’s insubstantial poetics. Witness statements, seals, and ratifications of authoritative docu­ ments belong to the Roman legal system, but become immaterial rhetoric at Ovid’s hands. Ovid’s critics are familiar with his poetics of illusion (see Rosati  1983; Hardie  2002), as well as elegy’s affair with the emergence of the real (see Miller 2004). But the creation of fictions that have the power to shape reality also defines the force of law.72 As Robert Cover (1986: 1064) puts it, law is the projection of an im­agined future upon reality. Acontius’ projection of his votive offering is imbued with legal diction because the imaginary is not only the realm of literature, but also dictates the poetics of legal constructions. Wishful thinking is the source of law and wish fulfilment its force. The textuality of law and literature is an attempt to flesh out subjects and contain their dreams. Only in the end, hard evidence fades away and illusion reasserts its power in matters of desire. 71  Similarly, Cydippe refers to her poor handwriting in Her. 21.28. See also Propertius 4.3.3–6, Arethusa’s letter to Lycotas. On Ovid’s presence in the Heroides, see Roussel (2008: 143–7). 72  Legal fictions were an important part of Roman law. As Lowrie (2016: 75) notes, legal fiction extended Roman law beyond the original scope of any individual source of law; see also Ando (2015a).

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Cydippe Writes Back The tension between the fantasy of desire and the materiality of powerful documents, as well as the convergence of amatory and legal fictions, is the key to interpreting the correspondence between Acontius and Cydippe. In her response, the heroine draws a sharp distinction between the letter and the spirit of the law. For Cydippe, her oath is void because she did not intend to take one. The reader of her epistle has to resolve the following contradiction: the heroine argues that she is not bound to marry Acontius because she did not wish to promise to marry him. Yet at the same time she gives in to his desires wholeheartedly. Towards the end of her letter she admits that she willingly offers herself as a slave to Acontius’ wishes (Her. 21.240). How are we to reconcile her rational resistance with her ultimate surrender? To answer this question, I shall argue that the more Cydippe tries to draw a sharp contrast between coercion and free will, legalism and legality, or the letter and the spirit of the law, the more it becomes clear that the force of law and love consists in blurring these distinctions. As I have argued in this chapter, Cydippe’s inadvertent recitation of Acontius’ message is powerful because it is based on the repetition or citation of a prior and authoritative set of practices (cf. Butler 1997: 51). The power of iterability or citationality compromises the importance of the subject’s intention. Upon receiving Acontius’ letter that construes her as the subject of elegiac poetry, Cydippe has no choice but to respond in terms that comply with elegiac procedures. Acontius’ missives injure by accumulating and dissimulating the force of law. In a perceptive analysis of Balzac’s short story ‘A Study in Feminine Psychology’, Maria Aristodemou (2010) argues that the love letter replaces the violence inflicted by the law with the violence of the signifier. Her semiotic reading of Balzac works even better with Ovid. The love letter always arrives at its destination because the real receiver is the Other. By receiving Acontius’ messages, Cydippe puts herself in a position determined by the signifier

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and thus suffers from its violence.73 As soon as the love letter comes into Cydippe’s possession, its meaning possesses her. Ovid shows that the coercion of the signifier is not just stronger than the law but it is the law. As subject to the rules of love elegy, Cydippe is determined by the inescapable laws of the symbolic. This does not mean that as the subject of elegy Cydippe is a power­less victim. Quite the contrary: she is construed as a powerful mistress. Cydippe is cast as a learned young woman, a docta puella who is well versed not only in literature but also in law. She is a competent elegiac poetess herself, a mistress of seductive persuasion. She expertly points out the holes in Acontius’ legal arguments and criticizes the clumsy way he chose to make a pass at her. Her elegiac letter is a tour de force of rhetorical manipulation and ironic detachment and thus devoid of sentimentality and full of reason. Cydippe is in control of the situation, a real domina of Latin elegy, but that is why she is controlled by the rules of elegiac discourse. The docta puella falls in love not despite but because of her doctrina. Her knowledge of elegiac conventions makes her susceptible to the rules and lures of a genre that aims to seduce the poet’s object of desire.74 Cydippe initially resists elegiac love because she is aware of elegy’s structures and pretensions but is ultimately lured into it because the poet or rather the poets (Ovid and Acontius) virtually construe her as the desirable other of elegiac discourse. The heroine follows Ovid’s advice in Ars 3.475–8 that when responding to a love letter, women should appear neither too easy nor too difficult and send mixed messages that simultaneously cause fear and give hope. Cydippe’s calculated resistance and flirtatious surrender make her a first class honours graduate from Ovid’s school of love. Cydippe falls in love by reading and is thus bound to follow the structures and patterns of a certain genre. Her sickness can be diagnosed as lovesickness. She has fallen in love by reading Acontius’ seductive messages and suffers from the typical symptoms of elegiac 73  Aristodemou (2010, esp. 410) draws on Lacan (1977: 67), who claims that the subject is the subject of the signifier—determined by it. See Lacan (2006: 29): ‘Such is the signifier’s answer beyond all significations: “You believe you are taking action when I am the one making you stir at the bidding of the bonds with which I weave your desires.” ’ 74  On the docta puella as the poet’s object of desire, see James (2003).

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infatuation. The quartan fever in particular, as George Kazantzidis (2014: 115) argues, appears in curse tablets and love magic. We are invited to tie Cydippe’s suffering with Acontius’ binding spell. The inscription on the apple with which Cydippe bound herself is an act of magic, an incantation designed to induce desire in a woman and overcome the resistance of an unresponsive target (see Faraone  1999: 69–78; Rynearson  2009: 341–3; Pachoumi  2012; Kazantzidis 2014: 115). In Callimachus, allusions to the symptoms of love spells and intertextual references to Sappho’s pathology of desire (fr. 31) invite the learned reader to diagnose the amatory causes of Cydippe’s almost fatal illness.75 Ovid elaborates on this. It should be clear to readers familiar with the conventions of Latin love elegy that the paleness of Cydippe’s near fatal disease and her wounds caused by Acontius’ sharp acumen evoke lovesickness and love’s injuries. Acontius and Cydippe are bound in love within the jurisdiction of Latin love elegy. The heroine plays according to the rules of elegiac seduction when she complains that her only sin was that she read Acontius’ message: nil ego peccaui, nisi quod periuria legi inque parum fausto carmine docta fui. Heroides 21.181–2 I have sinned in nothing except that I read a false oath and was instructed in a barely propitious song.

Kenney (1996 ad loc) takes docta to mean ‘literate’ and translates line 182 as ‘and chose an inauspicious text with which to prove I could read’. This interpretation may do justice to Cydippe’s pose of a foolish girl (cf. Her. 21.121–2) who falls into Acontius’ trap. For Kenney, Cydippe says that she read the message on the apple to show that she could read, the boast of a primary school student. Yet 75  Acosta-Hughes (2010: 81–2) notes that Callimachus expands on Sappho, who imported medical language and imagery into lyric. In Aetia fr. 75 Harder, these become an elegiac catalogue of illnesses: love and sight, pallor, and disorientation (75.12–14), fever (16–17), chills (18–19). Sappho’s seeming death is also echoed in Callimachus’ Cydippe (15).

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this is nothing more than the sly conceit of an extremely sophisticated woman. Ovid’s Cydippe is not only literate but also learned (docta). The reference to Acontius’ message as a carmen evokes the confluence of elegiac poetry and incantations. As Sharon James (2003: 17) points out, the lover/poet identifies his elegiac songs as virtually magic incantations designed to charm a girl into receiving him.76 Cydippe’s description of the act of reading Acontius’ message recalls the beginning of the Ars amatoria (1.2 hoc legat et lecto carmine doctus amet, ‘let him read this poem and by reading it let him fall in love as a learned man’), Ovid’s didactic poem that validates Latin love elegy’s claim to instruct and seduce. Cydippe falls in love by reading a charming poem and by acquiring expert knowledge in love elegy. Acontius becomes a praeceptor amoris, a teacher/lover who woos his beloved girl by means of enchanting songs.77 Falling in love by reading seductive poetry and being educated in love songs are distinctive and interrelated traits of the elegiac genre. At the same time, the motifs of instruction and incantation, as well as the issue of enactment by reading, establish a common ground between the world of Latin love elegy and legal discourse. As I mentioned above,78 carmen, the word which Augustan poets chose to describe their poetry, refers to a juridical formula or a pronouncement that can reify the speaker’s wishes. In Augustan Rome, doctus describes legal experts, the jurists whose legislative authority and status were significantly boosted in the age of Augustus.79 My point is not that the possible legal connotations of carmen and doctus, as well as the relationship between reading and enacting a law (legere and lex), add another level of interpretation to Cydippe’s words. What I would like to stress is the overlap between legal and elegiac discourse, not the introduction of legalisms into elegy. The language of the law is not insulated from the language of magic or the diction of love poetry. 76 Cf. Am. 2.1.27–8 carminibus cessere fores, insertaque posti, / quamuis robur erat, carmine uicta sera est. ‘Doors have yielded to songs, and the bolt in the doorposts, though it is of stout oak, has finally been conquered by song.’ On carmen as ‘poem’ and ‘charm’ in Ovid, see Sharrock (1994: 50–67); Boyd (2016). 77  Cydippe’s ironic magne poeta (Her. 21.110) also implies that Acontius was actually a poet of the lesser genre of elegy. 78  See the section ‘Autobiographical recusatio’ in Chapter 2 and the sections ‘Introduction’ and ‘Powerful Language: Love, Law, and Magic’ in this chapter. 79  On the interplay between the legal and poetic-amatory use of carmen and doctus, see my discussion of Ars 1.1–2 in Chapter 6.

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Cydippe is quickly transformed from a naive girl trapped unwillingly in a binding contract into an expert authority on the juridical discourse of love elegy. Her transformation reflects Acontius’ change into a lover cunning in law under Amor’s influence. The heroine fell into law’s traps due to her inexperience (Her. 21.121–2 uerba quid exultas tua si mihi uerba dederunt / sumque parum prudens capta puella dolis? ‘Why do you rejoice in your words if they deceived me and I, a girl barely prudent, had been captured with your tricks?’; cf. 20.66). In the passive voice, capi means ‘to be caught in law’s traps’.80 Given the legal color of Acontius’ tricks, parum prudens may refer to Cydippe’s lack of expertise in matters of jurisprudence.81 The couplet is a variation of Ars amatoria 1.458 (insciaque est uerbis capta puella suis, ‘the girl [i.e. Cydippe] was trapped unawares in her own words’), a mythological example right before Ovid tells his students that eloquent epistles can win over a serious judge as well as a girl (Ars 1.459–64). Love letters and legal correspondence thus adhere to the same rules of rhetoric in the Ars amatoria. The lover and the lawyer captivate their addressees with their ruses. In Heroides 21, it is Cydippe’s turn to instruct Acontius in matters of elegiac procedure. The heroine tries to draw a distinction between yielding to persuasion and being forced into captivity, implicitly challenging the value of Amor’s juridico-erotic instructions to Acontius: at fuerat melius, si te puer iste tenebat, quem tu nescioquas dicis habere faces, more bonis solito spem non corrumpere fraude;  exoranda tibi, non capienda fui. Heroides 21.125–8 But if that boy of yours was holding you, who you say has some sort of torches, it would have been better following the usual habit of good men not to spoil your hope with fraud. You had to persuade me, not capture me.

80 See Ars 1.83, with Pianezzola (1991: 198), and my discussion of his passage in Chapter 6. 81 See OLD s.v. prudens2 ‘a legal expert, jurist’.

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Cydippe distinguishes amatory persuasion (exoranda) from the traps of the law (capienda). But persuasion is the means by which an elegiac lover captures the beloved. Succeeding by entreating (exorare) is characteristic of the sermo amatorius (see Ovid, Am. 3.11.43, Her. 21.128, Fasti 4.111; cf. Pichon  1902: 139). The lover, not unlike an orator in the courtroom, courts his beloved with seductive rhetoric. In the Ars amatoria, one of the main tasks for Ovid’s student is to prevail upon the girl of his choice (1.37 proximus huic labor est placitam exorare puellam, ‘the next task is to win over the pleasing girl’). In this passage, Ovid conflates ars amatoria with ars oratoria. The job of the aspiring lover is similar to the homework of the student of rhetoric.82 Likewise, capere is common in elegiac discourse, a verb that brings together the military aspect of amatory conquests and the game of seduction as a hunting metaphor. Yet Cydippe does not combine the alluring persuasion of exorare with the captivating charm of capere but distinguishes between two verbs that often appear in similar contexts. In the Ars amatoria, for instance, the section that deals with how a man can obtain the woman he fancies by entreaty (exorare) begins with how one can capture the object of one’s desire;83 exorare and capere are virtually interchangeable. Cydippe uses capi in its legal sense (‘to be caught in law’s traps’), but the verb, like exorare, is erotically charged in Latin love elegy. The heroine’s statement is revisionist. Winning over a woman by means of persuasion is acceptable, but luring her into the snares of the law is to spoil true passion with deceit. Despite the contrast between exoranda and capienda, the important point is that both verbs are at home in both love poetry and forensic rhetoric. In declamations, exorare often appears in cases of carrying off a bride without parental consent.84 Ovid’s Cydippe here evokes the court 82  For the amatory and forensic connotations of exorare, see Ovid, Fast. 4.111–12 eloquiumque fuit duram exorare puellam, / proque sua causa quisque disertus erat, ‘eloquence lay in winning over a harsh girl, and each man was a barrister pleading his cause’. 83 See Ars 1.265–6 nunc tibi quae placuit, quas sit capienda per artes, / dicere praecipuae molior artis opus, ‘now I strive to show with what arts you should capture the woman you like, a work of extraordinary art’; 269–70 cunctas / posse capi, ‘all women can be captured’. 84  See Seneca, Controu. 2.3 raptor patrem non exorans, ‘an abductor not winning over a father’; 1.5.3; Quintilian, Declamation 349.6 ‘non exoro te,’ inquit, ‘cum rapuerim.’ ‘I do not

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cases of these rhetorical exercises, but this is imitation with ­difference. In the declamations, the object of exorare is the father, not the bride, and the issue is persuading a parent after a daughter has been abducted.85 In Cydippe’s case, the bride, not the father, had to be persuaded, while the contrast between exoranda and capienda reveals more similarities than differences between the rituals of law and amatory passion. Cydippe’s next use of capi further suggests the interplay between persuasion and coercion. This is a distinction between law enforcement without persuasion and persuasion without law enforcement. But Cydippe’s capi once more problematizes this distinction: cogere cur potius quam persuadere uolebas, si poteram audita condicione capi? Heroides 21.131–2 Why did you wish to compel me rather than persuade, if I could have been captivated by hearing a proposal?

After contrasting capienda with exoranda, the heroine asks Acontius why he did not captivate her with a marriage proposal, since, as Acontius argued, he is an attractive suitor. The elegiac force of capere is applied to Acontius’ reportedly seductive, though unde­ livered proposal, but, in combination with condicio (‘(marriage) contract’), the legal force of the passive capi is also in play. The ablative absolute audita condicione blurs the agent, and thus the pentameter could describe Cydippe’s recitation of Acontius’ message; once this was read out and heard, the young woman was bound to its conditions. The more Cydippe draws a distinction between legal traps and amatory persuasion, the more they are conflated. The win you over,’ he says [to the father], ‘when I have committed rape’; 10 aliquis, cum filia illius rapta sit, tam cito exoratus est? ‘Has anyone been won over that quickly, when his daughter was abducted?’ See Rosati (2009: 207). See also Digest 48.6.5.2 si pater iniuriam suam precibus exoratus remiserit, ‘if the father is won over by entreaty and pardons his crime’. 85  Cf. Ovid, Met. 5.415–16 non potes inuitae Cereris gener esse; roganda / non rapienda fuit. ‘You cannot be Ceres’ son-in-law without her consent; she had to be asked, not snatched’; 418 exorata tamen, nec, ut haec, exterrita nupsi. ‘But I married, obtained by entreaty, not, like her (i.e. Persephone), by fear.’

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heroine is caught in the snares of law and love. The level of indistinction between juridical and elegiac discourse exemplifies the complexity of her entanglement. Similarly, Cydippe elaborates on the difference between the letter and the spirit of the law, but her rebuttal will not release her from the bonds of law and love: quid tibi nunc prodest iurandi formula iuris linguaque praesentem testificata deam? quae iurat, mens est. sed nil iurauimus illa; illa fidem dictis addere sola potest. consilium prudensque animi sententia iurat, et nisi iudicii uincula nulla ualent. si tibi coniugium uolui promittere nostrum, exige polliciti debita iura tori; sed si nil dedimus praeter sine pectore uocem, uerba suis frustra uiribus orba tenes. non ego iuraui—legi iurantia uerba; uir mihi non isto more legendus eras. Heroides 21.133–44 What use to you are now the formal words of an oath, and the tongue that called on a goddess to appear as witness? It is the mind that swears, and I have taken no oath with that; it alone can add faith to words. It is counsel and the prudent decision of the mind that swear, and without the bonds of judgment, no obligations are valid. If I wanted to pledge my hand to you, exact the due rights of the promised marriage bed; but if I gave you nothing but sound devoid of sense, you possess in vain but words without real force. I did not take an oath—I read out words that formed an oath; that was no way for you to be chosen as husband by me.

As Kenney (1970: 400–2; 1996: 232) notes, Cydippe meets Acontius on the legal and legalistic plane, and rehearses a familiar exercise in declamation, which dealt with the difference between the letter and the spirit of the law (status ex scripto et ex sententia). Precise language (iurandi formula iuris) was important in Roman litigation, but Cydippe points out that even though she accurately recited the

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terms of Acontius’ message, she did not intend to. The ‘bonds of judgment’ (iudicii uincula), not the sound of words, make an oath binding. In this context, the mention of mens is a reference to mens matrimonii, a requirement for the legitimacy of a marriage (see Treggiari 1991: 54). Even though the contents of the contract were enacted with Diana as the witness, the pact is not binding because it was made without Cydippe’s agreement. The heroine’s arguments are a version of Cicero’s definition of perjury. Ovid here alludes to De officiis: Quod enim ita iuratum est, ut mens conciperet fieri oportere, id seruandum est; quod aliter, id si non fecerit, nullum est periurium . . . Non enim falsum iurare periurare est, sed quod EX ANIMI TVI SENTENTIA iuraris, sicut uerbis concipitur more nostro, id non facere periurium est. Scite enim Euripides:     “Iuraui lingua, mentem iniuratam gero”. Cicero, De officiis 3.107–8 For an oath sworn with the clear understanding in one’s own mind that it should be performed must be kept; but if there is no such understanding, it does not count as perjury if one does not perform the vow . . . For swearing to what is false is not necessarily perjury, but to take an oath “upon your conscience,” as it is expressed in our legal formulas, and then fail to perform it, that is perjury. For Euripides [Hippolytus 612] aptly says: “My tongue has sworn; the mind I have has sworn no oath.”

Ovid’s animi sententia iurat is the formula attested in Cicero (EX ANIMI TVI SENTENTIA), which is in turn related to the contrast between oaths sworn intentionally and vows performed as empty words. Cicero quotes Euripides in translation (Hippolytus 612 ἡ γλῶσσ’ ὀμώμοχ’, ἡ δὲ φρὴν ἀνώμοτος), and Ovid’s juxtaposition of mens and uox looks back to Euripides through the window of Cicero’s De officiis. The allusion to Euripides’ Hippolytus is im­port­ ant. Cydippe mentions Hippolytus at the beginning of her letter (21.10), inviting us to read her situation vis-à-vis Diana’s involvement in the affair of Phaedra and Hippolytus. Despite saying that

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he will not keep the oath of silence, Hippolytus never reveals Phaedra’s confession. The hero fails to defend himself by telling the truth when Theseus puts him on trial. His tongue is tied not least because of Phaedra’s tablet.86 Similarly, Cydippe will have to keep her promise, even though she says she does not have to. The power of Acontius’ messages consists in making the distinction between empty words and conscious agreements irrelevant. It is also important to note that, despite Cicero’s approval, Euripides’ line was notorious in antiquity (cf. Aristophanes, Thesm. 275–6; Ran. 101–2, 1471). It was actually used as evidence of the playwright’s immoral sophistry. Aristotle (Rh. 1416A 28–34) attests that a certain Hygiainon accused Euripides of being ἀσεβής (‘impious’) and used Hippolytus 612 as evidence in a trial. Dramatic debates on the binding force of oaths spill over into the realities of courtroom rhetoric. By quoting this line, Ovid’s Cydippe, not unlike Acontius, uses Cicero and Euripides as authoritative precedents that would support her case. But unlike Acontius’ case, these precedents are insufficient. Not only does Hippolytus fail to break his oath, but the line was also used as incriminating evidence against Euripides. The accusation of disrespecting the gods (ἀσέβεια) is what looms over Cydippe, since she wants to dismiss Diana as a witness. The heroine’s elaboration on Euripidean sophistry makes her a good match for Acontius’ legal tricks, but also exposes her to ac­cusa­tions of impiety. Cydippe is trapped in Acontius’ judicial fantasy. In the end, she is aware of the futility of her forensic rhetoric: Cum tamen haec dixi, cum me tibi firma negaui, cum bene promissi causa peracta mei est, confiteor, timeo saeuae Latoidos iram et corpus laedi suspicor inde meum. Heroides 21.151–4 Yet though I have said this, though I have firmly refused myself to you, though I have finished pleading the cause of my promise to

86  As I argued above in the section ‘Powerful Language: Love, Law, and Magic’, Phaedra’s tablet is a judicial curse, similar to Acontius’ love letter, which is cast as a defixio.

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The Letter of the Law  193 you, I confess that I fear the anger of Leto’s cruel daughter and suspect that she is the source of my body’s suffering.

Cydippe moves from forensic refutation (negaui) to personal confession (confiteor) and from reason to fear. Right after she declares that she has finished pleading her cause (causa peracta) to no avail, she goes on to describe her predicament (21.155–88) in a way that evokes the literary evidence attested in the Aetia.87 Callimachus elaborates on the preparations for and cancellations of the wedding ceremony (fr. 75.1–19 Harder). Ovid’s detail that the ceremony was cancelled three times (21.157) is taken from the Aetia (fr. 75.18–20 Harder). Cydippe’s fever (21.169 torrentur febribus artus, ‘my limbs are scorched from fever’) echoes Callimachus’ diagnosis (fr. 75.17 Harder τεταρταίωι . . . ἔκαμνε πυρί, ‘she was ill with quartan fever’); the paleness of her skin (21.15–16, 215–16) is also a symptom in the Aetia (fr. 75.12 Harder); and the seriousness of her almost fatal illness is acknowledged in the Greek and Roman elegy (cf. fr. 75.15 Harder; Her. 21.171–2). The closer Cydippe follows the script of the Aetia, the closer she comes to surrendering to Acontius. Alessandro Barchiesi (1993: 357–9) aptly examined the inter­text­ ual references to Callimachus when Cydippe mentions the oracle of Apollo that heals her by facilitating her marriage with Acontius: ne tamen ignores ope qua reualescere possim, quaeritur a Delphis fata canente deo. is quoque nescioquem, nunc ut uaga fama susurrat, neglectam queritur testis habere fidem. hoc deus, hoc uates, hoc ei mihi carmina dicunt;   at desunt uoto numina nulla tuo. Heroides 21.231–6 Yet, so that you are not unaware, enquiries are now being made from the god who prophesies at Delphi by what means I may recover. He too, as vague rumour whispers now, complains as a witness that somebody has been neglecting to keep faith. This is 87  Cf. 21.53 causa latet, mala nostra patent, ‘the cause is hidden; our suffering lies open’. Callimachus’ Aetia reveals the causa of Cydippe’s woes.

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194  Law and Love in Ovid what the god says, this the seer, this, woe to me, the oracle; surely, the wish of your heart lacks no support from the powers that be.

The uaga fama is a so-called ‘Alexandrian footnote’, a reference to Callimachus, who quotes Apollo’s words in full (fr. 75.22–37 Harder).88 The vagueness of rumour is ironic given the specific intertextual reference; quaeritur implies aetiological research and thus evokes the Aetia, an elegy itself concerned with the cause of Cydippe’s illness. Cydippe’s reualescere possim foreshadows the happy ending of her recovery (fr. 75.40 Harder κἦν αὖ σῶς, ‘she was well again’). The key words uates and carmina are emblematic of the confluence of Apollo and his oracles, on the one hand, and Callimachus and his poems, on the other (cf. Barchiesi 1993: 359). Yet what is missing from the Aetia but features in Cydippe’s letter is the legal dimension of the oracle. Apollo appears as a witness testifying about Cydippe’s broken fides. In Aetia fr. 75.28–9 Harder, the god tells Cydippe’s father that if he wants to have him as his counsellor (συμφράδμονα), he will fulfil his daughter’s oath, but it is unclear whether the Homeric hapax συμφράδμων had legal connotations. Ovid, by contrast, employs the language of judicial ­proceedings. The god is summoned as a witness objecting to the young woman’s neglecting of her oath. In this context, queritur means that Apollo ‘makes a formal complaint in a court of law’ (see OLD 1e and Chapter 3). His poetic and prophetic carmina are thus performed in a courtroom setting. Once more, the intertextual testimony of the Aetia is recast as legal evidence that supports Acontius’ case. Apollo and Callimachus lay down the law that binds Cydippe to marry Acontius. The happy ending of the myth is not included in the narrative frame of Heroides 20–1, but we know that Ovid’s Cydippe is destined to marry Acontius if we are aware of Callimachus. The future of Ovid’s heroine is written in Ovid’s literary past. In the conclusion of her letter, Cydippe says that she has done more than her share— the rest is Acontius’ business: 21.243 cetera cura tua est, ‘the rest is 88  Barchiesi (1993: 358) sees uaga fama as capturing the point of Callimachus’ obscure phrase ἐννύχιον ἔπος, ‘nightly word’ (fr. 75.21 Harder). On ἐννύχιον, possibly meaning ‘obscure’, see Harder (2012 ad loc.).

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your concern’ echoes Callimachus fr. 75.40–1 Harder λοιπόν, Ακόντιε, σεῖο μετελθεῖν / . . . ἐς Διονυσιάδα, ‘the rest, Acontius, was up to you . . .to go to Naxos’ (see Kenney 1996: 247; Harder 2012: 621). The shift from the Callimachean narrator to Cydippe is crucial here. Callimachus’ apostrophe to his hero corresponds to Cydippe’s address to the recipient of her letter. The voice of the Hellenistic narrator merges with that of the Ovidian heroine. What in the Aetia is a brief description that summarizes the inevitable sequence of events from Apollo’s oracle to Acontius’ wedding becomes in the Heroides the nudge of an elegiac mistress to her lover. As we have seen, the domina’s requests are commands for her lover. The heroine ends her epistle by willingly surrendering herself to Acontius’ wishes (240 doque libens uictas in tua uota manus, ‘and I willingly give my conquered hands to fulfil your desires’). This is a ­combination of seruitium amoris and giving one’s hand in marriage (manus marriage in particular). Yet, by subscribing to the motif of seruitium amoris, she simultaneously acquires the power of an elegiac domina. At the end, her love letter commands Acontius to take action in order to seal the consummation of his passion with marriage. The epistle moves from erotic emotions to legal motions, from enacting words to introducing action points. It thus demarcates a framework and prescribes a procedure to legitimize am­or­ ous passion. By consenting to give in to Acontius’ desire, Cydippe establishes herself as the sovereign mistress of Latin love elegy. This is precisely what Acontius wanted her to be.

Law, Love, and Letters before and after Ovid Propertius 4.3 is Arethusa’s letter to her absent husband Lycotas. The importance of this elegy for Ovid’s Heroides can hardly be underestimated. While an analysis of Propertius 4.3 vis-à-vis Ovid’s elegiac letters is beyond the scope of this study, it is important to point out that the crucial role of law in the articulation of desire features prominently in Arethusa’s love letter. The loving wife begins by referring to the contents of her letter as ‘injunctions’ (1 Haec Arethusa suo mittit mandata Lycotae. ‘Arethusa sends these

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injunctions to her Lycotas’). The Latin mittit mandata glosses over the meaning of the Greek ἐπιστέλλω (‘I send’ and ‘I enjoin’) and ἐπιστολή (‘a letter’ and ‘a command’). An epistle is by definition not just a message, but an order. Arethusa makes clear right from the beginning that her letter has the force of legal injunctions. Similarly, she closes her letter by laying down her law: incorrupta mei conserua foedera lecti; hac ego te sola lege redisse uelim: Propertius 4.3.69–70 Preserve the pledge of my bed without violating it; I want you to return only under this law.

The construction redisse uelim is the language of jurists.89 The expression of a wish (uelim) is an integral part of juristic formulae, just as the law is an attempt to express, regulate, and fulfil our desires. In her longing for her absent husband, Arethusa writes a letter that expresses affection and lays down the law. This is neither incongruous nor peculiar. The love letter is essentially the letter of the law. Love is the inscription and communication of desire within the legislative framework of epistolarity. In Imperial Rome, epistolography plays a crucial role in the production and communication of laws. Simon Corcoran (2014) examined the legal dimension of state correspondence in the Roman Empire. The new and unprecedented constitutional powers of the Roman emperor endowed all his oral or written pronouncements with the force of law. For Corcoran (2014: 173), that is why imperial letters and other forms of ‘missive’ so often survive as normative texts recycled in legal collections and divorced from their original context. Letters encompassing general legislation circulated around the empire. The Roman emperor often received petitions from office holders or private persons concerning legal problems for guidance or resolution. Letter writing lies at the heart of the production and dissemination of law in the Roman Empire. 89 See Gebhardt (2009: 143 n. 139); cf. Prop. 2.19.32 absenti nemo non nocuisse uelit, ‘every­one wishes to harm an absent person’, with Cairns (1974).

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Legislative correspondence revolves around the emperor’s ­sovereign jurisdiction. The emperor has the power to enforce the law, change the law, or make an exception. These letters deal with a number of legal issues that concern individuals or state, thus blurring the line between public and private, official and non-official (see Corcoran 2014). Ovid’s Tristia 2, an elegiac letter addressed to Augustus as an appeal against his relegation, highlights the legal dimension of epistolography both in Latin elegy and in the age of Augustus. The legal nature of Ovid’s Heroides also needs to be interpreted within this historical context. Not unlike imperial cor­res­pond­ence, the love letter aims at solving legal problems by resorting to Amor’s sovereign adjudication. The letter becomes the appropriate medium for resolving issues of law and love. It is not coincidental that Paul resorted to the genre of epistolography in his attempt to strike a balance between law and love. While Paul’s letters have only recently been studied in the context of Graeco-Roman epistolography (see Reece 2017), examining his obsession with issues of law and love is a particularly fruitful, albeit controversial field.90 His letter to the Romans is the main focus of this debate, and it may not be coincidental that he chose to deal with the tension between antinomian idealism and legalistic reality by addressing people familiar with the ambivalent nature of epistolography—a genre that can lay down the law, even if it lies outside the law. By drawing and blurring distinctions between just­ice and legalism as well as private and public, letters are the embodiment of a sovereign exception. That is why they serve the purposes of emperors and lovers so well.

Conclusion The ratification of the written word by means of an oral per­form­ ance is crucial for understanding the legal and magical dimension of amatory messages. Love letters, magical tablets, and legal docu­ ments share an obsession with textuality, materiality, and oral 90  See Badiou (2003: 75–92); Palmer (2016); Nathan (2016); Neoh (2016). On the simi­lar­ ities between Ovid and Paul in their views on law, see Chapter 3.

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enactment. The spell, like the legal formula, needs to be spelled out accurately. Legal, magical, and amatory incantations (carmina) share the power to use language in order to make a difference in the physical world. The confluence of these three potent discourses in Heroides 20–1 points to a fundamental intersection between love letters and legal correspondence. The epistolarity of the law is related to the fact that the law establishes its authority by referring to previous laws, patterns, and docu­ments. In Ovid’s Heroides 20–1, literary tradition converges with legal precedent; intertextual references become compelling evidence that establishes the truth of the myth in a disputed case. Repetition, one of the most distinctive stylistic features of the Heroides, is thus a trope of law’s iterability. Elegiac tradition and the conventions of Latin love elegy are the hard evidence in the court of love of Heroides 20–1. Cydippe falls in love by reading amatory messages and is thus framed in the world of elegiac jurisdiction. The lover’s discourse exercises the irresistible force of legislative correspondence. In the letter to Acontius, Cydippe raises the issue of consent and free will as keys to the legitimacy of binding contracts. As we saw in this chapter and Chapter  3, individual intention and consent become catalysts for the legality of elegiac love and Roman marriage laws in the age of Augustus. But Heroides 20–1 complicates the issue of intention in the enactment of contracts and in falling in love. The magic of law and love consists in creating the semblance of agency that is somehow free from the coercion of cultural, literary, and legal precedents. Yet free will is itself created within specific sociolegal parameters. The force of law consists in the reperformance of prior actions, not in the independence of the individual will. The myth of Acontius and Cydippe in Ovid points to this uneasy relationship between free will and external coercion. The words Acontius sent to Cydippe literalize the common Latin idiom uerba dare (‘to deceive’). In some manuscripts, Heroides 20 opens with this idiom (20.1a–2a Accipe, Cydippe, despecti nomen Aconti— / illius in pomo qui tibi uerba dedit. ‘Receive, Cydippe, the name of scorned Acontius who deceived/ sent you a message on his apple’). In her letter, Cydippe also uses the phrase (21.121 uerba quid exultas tua si mihi uerba dederunt? ‘why do you rejoice in your

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words if they deceived me?’). The pun on uerbum highlights the transformative nature and illusory appearance of the word. The Latin idiom implies that ‘to give words’ or ‘send a message’ is an inherently deceptive act—that all linguistic communications are based on distortion. Language can be perceived only in terms of misrepresentation and is thus always deceptive. From that p ­ erspective, the role of Acontius’ dolus (‘trick’) in the legality of his contract may become a moot point. The poetic justice of amatory correspondence defines the parameters within which erotic passion is legitimized. Heroides 20–1 exemplify Goodrich’s thesis that the love letter is both more than law and in breach of law (Goodrich  1997: 253). The love letter expresses the priority of desire over duty or rather the priority of desire that becomes duty. Whether it adds to current legislation or violates it, the love letter is fundamentally a legal action, because it casts love as a sovereign exception. The love letter is the means by which the subject is captured in the juridical order. It is not a glib Ovidian ploy that Acontius employs courtroom rhetoric in order to court Cydippe. With his love letter, Acontius makes love, but in order to make love he has to make law. I use here the idiom ‘to make love’ both in its old-fashioned sense (‘to court’) and in its current use (‘to have sex’), because this double meaning captures the power of love to move from the conceptual to the physical—to set out and employ the rules of a culturally constructed game in order to get access to bodies. In an imaginary trial with his rival, Acontius does not simply juridicize amatory disputes or eroticize litigation, but more im­port­ ant­ly points to the crucial role of amatory passion in the emergence of the law. Ovid’s perceptive take on the interdependence of law and love has a transhistorical value. But this transhistorical value comes out of a historical reading of Ovid’s elegies. This chapter focused specifically on the world of Augustan Rome, a period that signals a momentous paradigm shift in concepts of love’s legality. In Latin love elegy, law, love, and magic share similar diction, rituals, and materials. The love letter resembles a judicial curse, a magic spell, a binding contract, and a testimony. Within the context of the early Roman Empire, the legislative nature of Ovid’s elegiac letters coincides with the rise of epistolography in imperial adjudication.

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PART II

LEX AMATORIA

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5 Poets and Lawmakers Introduction Critics often point out how odd it is for Ovid to write didactic poetry in elegiacs (see Gibson 2003: 8). Ever since Hesiod’s Works and Days, the tradition of didactic poetry is part and parcel of the epic hexameter, not the elegiac couplet. For Hollis (1977: xviii), the whole style and ethos of didactic poetry is unsuitable for Ovid’s Ars amatoria; the poet’s idea to write a didactic poem about love is considered simply incongruous (cf. Downing 1993: 17). This frame of mind in reading Ovid’s Ars amatoria, which is still the main­ stream approach, may partly explain why not many scholars have explored the ways in which the Ars is a true heir to Greek didactic and elegiac traditions rather than their parodic reflection.1 Critics tend to emphasize Ovid’s departure from didactic epic, while I shall draw attention to the continuity of didactic and elegiac traditions from Hesiod to Ovid. The close connections between didactic epic and elegiac ex­hort­ ation can be traced back to archaic Greece. Hesiod’s Works and Days is the most important influence on the elegies of the lawgiver Solon (see Irwin 2005: 155–98; Koning 2010: 172–7; Almeida 2018). In his elegiac poetry, Theognis, like Hesiod, is simultaneously a poet and an exponent of law (Nagy 1985: 40). Didactic and elegiac discourses coexist in harmony from the very beginnings of Greek elegy; the aim is to serve justice by giving instructions. As is often the case, there is nothing new in Ovid’s innovations. 1  Volk (2002: 157–95) is an exception in studying the didactic nature of the Ars amatoria. See also Kennedy (2000).

Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0005

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Hesiod, Theognis, and Solon exemplify the close affinities between the poet and the lawgiver (see Nagy 1985: 36–41). Going back to the very roots of Greek didactic and elegiac poetry, the praeceptor of the Ars amatoria assumes the voice of an authoritative legislator. Augustus’ adultery laws loom large in Ovid’s art of love; yet the significance of contemporary developments in the produc­ tion and interpretation of laws, a topic which is the focus of Chapter 6, may distract us from the fact that issues of justice and jurisprudence lie at the origins of didactic and elegiac poetry. The juridico-discursive nature of sexuality in the Ars amatoria needs to be examined against this background. Both Hesiod and Solon offer instructions about justice in a world governed by unjust leaders. As Elizabeth Irwin (2005: 165) puts it, Solon takes a stance characteristic of Hesiod, that of a poet remon­ strating with those in power and warning them of ensuing disaster if they persist in their unjust behaviour. Ovid’s stance on Augustan legislation is thus intriguing in view of the controversy between poets and rulers in didactic and elegiac tradition. In dealing with legal issues, the praeceptor amoris aligns himself with the old and authoritative voices of legendary bards and lawgivers. These poets/ legislators compete with powerful leaders who attempt to control the juridical order.

Law and Didactic Poetry: The Hesiodic Tradition In Plato’s Symposium (209c–e), Hesiod and Homer are compared to Lycurgus and Solon, the most famous lawgivers of Greece. The fact that Solon’s elegies are modelled on Hesiod’s Works and Days is related to the legislative authority of Hesiodic epic. A comparison between poetic and juridical discourse is already attested in Theogony 79–103, a passage that compares the lords (βασιλῆες) who settle disputes with the poets who are inspired by the Muses. The comparison not only promotes the poet to the status of a king law­ giver (Koning  2010: 72), but also draws attention to the inter­ changeability of poetic and juridical discourse in the resolution of conflict. As Michael Gagarin (1992: 65–6) argues, the passage

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provides no grounds for treating the description of the lord’s speech act any differently from that of the poet. The king/judge’s speech has the same powerful effect as the bard’s song. They both draw on the same rhetorical strategies, in order to put an end to litigation and soothe a great grief. The Muses ‘pour sweet dew upon his [i.e. the lord’s] tongue, and his words flow gently from his mouth’ (Theog. 83–4 τῷ μὲν ἐπὶ γλώσσῃ γλυκερὴν χείουσιν ἐέρσην, / τοῦ δ᾿ ἔπε᾿ ἐκ στόματος ῥεῖ μείλιχα). Poetic diction is described in similar terms: ‘and the man [i.e. the bard] is blessed, whomever the Muses love, for the speech flows sweet from his mouth’ (Theog. 96–7 ὁ δ᾿ ὄλβιος ὅντινα Μοῦσαι / φίλωνται· γλυκερή οἱ ἀπὸ στόματος ῥέει αὐδή). It is striking that the discourse of justice, whether of poets or lords, is associated with deception. Poets and judges ‘lead aside’ the listener (90 μαλακοῖσι παραιφάμενοι ἐπέεσσιν, ‘beguiling them with gentle words’; 103 ταχέως δὲ παρέτραπε δῶρα θεάων, ‘he was quickly diverted by the goddesses’ gifts’). As Gagarin (1992: 66) notes, deception does not undermine justice here. Just as the poet needs to present his ma­ter­ ial in such a way that is an effective diversion, so the judge may need to present his settlement of the issues with the proper slant to make it acceptable to the litigants. Any good settler of disputes, Gagarin (1992: 77 n. 18) adds, will stress the advantages of the settle­ment to each side and undermine or even conceal the disadvantages. While the discourse of the good lord is the same as the diction of the epic poet, the unjust ruler is described in terms that evoke a bad poet at Works and Days 262 (ἄλλῃ παρκλίνωσι δίκας σκολιῶς ἐνέποντες, ‘[the kings who] bend judgments to one side by pro­ nouncing them crookedly’). There is a fine line between giving a proper slant that satisfies both parties and distorting justice by ren­ dering partial judgment. Elizabeth Irwin (2005: 178 n. 62) draws attention to ἐνέποντες, a participle etymologically and semantically related to epic diction. The verb that describes the speech act of the judge is the verb that refers to the production of epic poetry. But there is more to it. The sweet deception that characterizes the language of poets and judges is also a distinctive feature of Aphrodite, whose birth is told of in the Theogony not long after the passage that describes the language of judges and poets.

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Accompanied by Eros and Desire, the mighty goddess receives as her lot ‘girls’ chatting and smiles and deceits and sweet pleasure and gentle love’ (Theog. 205–6 παρθενίους τ᾿ ὀάρους μειδήματά τ᾿ ἐξαπάτας τε / τέρψίν τε γλυκερὴν φιλότητά τε μειλιχίην τε). The importance of the discourse of seduction in the resolution of con­ flict is highlighted in Iliad 14, in one of the most Hesiodic episodes in Homer’s epic. In this book, Hera asks Aphrodite to grace her with love and desire (Il. 14.198 φιλότητα καὶ ἵμερον). Her plan is to seduce and deceive Zeus, but she first deceives Aphrodite by telling her that she needs to be endowed with erotic desire in order to resolve the conflict between Oceanus and Tethys, a married couple who abstain from sex on account of their quarrel (197–210). Duped by Hera, Aphrodite agrees to help her (211–23). The goddess of love lends Hera her κεστός, a sort of Wonderbra that figures ‘all loveli­ ness and desire and chatting up and beguilement’ (Il. 14.216–17 ἔνθ’ ἔνι μὲν φιλότης, ἐν δ’ ἵμερος, ἐν δ’ ὀαριστὺς / πάρφασις). This list not only resembles Aphrodite’s attributes in the Theogony, but also cor­ responds to the beguiling persuasion of the judges (cf. Il. 14.217 πάρφασις with Theog. 90 παραιφάμενοι). Hera claims that she should act as a judge in the marital conflict between Oceanus and Tethys. In order to resolve this dispute, she needs to be armed with seductive persuasion. Already in Homer, Aphrodite is an in­dis­pens­ able factor in settling a dispute to the satisfaction of both parties. Erotic desire is the catalyst in the resolution of a couple’s conflict. Ἔρως (‘love’) is the resolution of ἔρις (‘litigation’). The effective judge resorts to the discourse of seduction. The close affinities between the erotic and the juridical feature already in the Homeric and Hesiodic traditions, providing the most au­thori­ta­tive precedents to Ovid’s Ars amatoria. Sweet talk and deception are distinctive features of the lover’s discourse in Ovid. Yet, just as it is the case in Hesiod, beguiling persuasion does not necessarily undermine, but often serves justice. I would not hasten to conclude that the praeceptor’s strategies of seduction in the Ars amatoria subvert Hesiod. Ovid is fully aware that the resolution of conflict with a satisfactory compromise requires an expert judge who has the ability to soothe and divert. The good judge employs the rhetoric of seduction in the service of justice. The aim is to

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restore the bonds of love that the litigants have broken. That is why the job of the teacher of love in the Ars amatoria is essentially the same as the job of not only Hesiod’s bards but also his judges. A class on seduction is a class on amatory jurisprudence. In Chapter 4, I argued that Ovid evokes poetic tradition as evi­ dence in a legal case. Hugo Koning (2010: 74–5) points out the habit of appealing to poets as witnesses, adding that even though Hesiod and Homer were not the only poets thus appealed to, their appearances as witnesses are, nonetheless, most frequent.2 For Koning, that Hesiod can be summoned as a witness is closely con­ nected to his quality as a lawgiver. Law and legal documents could be treated in the same way as poetry, especially that of Hesiod and Homer (Koning 2010: 76). The prominence of Hesiod in legal issues is related to his status as the oldest and most authoritative didactic poet. It is his status as a wise educator that endows Hesiod’s advice with the force of law. Hesiod’s voice is thus the voice of a lawgiver and, as a didactic poet, Ovid draws on the lawmaking power of the Hesiodic tradition.3 The contrast between the morality of Hesiodic didactic and the immorality of Ovid’s Ars amatoria needs to be qualified. The elegiac poet is the inheritor of traditional male morality (see Gibson 2006: 127), often echoing the austere voices of a Hesiod or a Republican censor condemning the greed and loose virtue of women. The moral standards of Hesiod’s lessons, by contrast, were far from uncontroversial. In Republic 364c–d, Plato says that people justify injustices by summoning poets as witnesses (see Koning  2010: 75–6). Plato goes on to quote Works and Days 287–90 and Iliad 9.497–501 in order to show how some may defend their wrong­ doing by appealing to the testimony of poets. For Plato, citizens may produce Hesiodic poetry as evidence that justifies morally objectionable actions. The fact that poetic authorities such as 2  Koning (2010: 74 n. 59) notes that in the works of Plato, Xenophon, and Aristotle there are only four poets called μάρτυρες or μαρτύρια: Homer (10 times), Hesiod (4), Theognis (2), and Solon (1). 3  Schiesaro (2007) aptly examines the presence of rhetoric and law in Lucretius’ didactic epic De rerum natura. In my view, the importance of law in Lucretius should also be inter­ preted vis-à-vis the prominence of legal discourse in didactic poetry.

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Hesiod have the power to influence legal proceedings is problematic in the eyes of Plato, because Hesiodic poetry can function as ­testimony that legitimates transgressive behaviour. Thus, the evalu­ ation of the normative status of Hesiod was highly ambiguous (Koning  2010: 80). Xenophanes’ famous criticism of Homer and Hesiod (21 B 11 D-K), that they attributed to gods human vices such as theft, adultery, and mutual deceit, implies that men can in turn quote divine precedent in order to justify their immoral deeds.4 Ovid’s excursus on the adultery of Venus and Mars (Ars 2.561–98), for instance, is meant to be a model of behaviour for his students. In inheriting Hesiod’s authority, Ovid also inherits the controversy over the morality or immorality of poetic justice.5 The courtroom setting, one of the main preoccupations of the Ars amatoria, evokes the adultery trials under Augustus’ moral le­gis­la­tion, but also reproduces the litigation between Hesiod and Perses in the Works and Days. Issues of justice and just trials that feature prominently in Ovid’s Ars are closely related to didactic poetry’s preoccupation with justice and the fair settlement of ­disputes. 6 Hesiod’s Works and Days, one of the most important intertexts for the Ars amatoria, includes in its proem an invocation to Zeus and an appeal to his justice: κλῦθι ἰδὼν ἀιών τε, δίκῃ δ’ ἴθυνε θέμιστας τύνη· ἐγὼ δέ κε Πέρσῃ ἐτήτυμα μυθησαίμην. Works and Days 9–10 Give ear to me, watching and listening, and straighten the verdicts with justice yourself; as for me, I will proclaim truths to Perses.

The Works and Days is an attempt to resolve a dispute about property, presumably inheritance, between Hesiod and his brother Perses. Both the appeal to Zeus to preside over the verdict and 4  This is what Chaerea does in Terence, Eunuchus 583–606: he justifies his rape by quoting the mythological precedent of Jupiter and Danae. 5  Ovid was fully aware of Xenophanes’ criticism of the gods of Homer and Hesiod (see Ziogas 2013: 108). 6  Hesiod teaches about justice mainly at the beginning of the work and in 212–85, but the issue of just behaviour informs the Works and Days as a whole.

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Hesiod’s statement to tell the truth and nothing but the truth make clear that the primary setting of the Works and Days is that of a lawsuit. Hesiod’s ‘I shall tell the truth’ anticipates his warning of Perses against testifying under a false oath (282–4 ὃς δέ κε μαρτυρίῃσιν ἑκὼν ἐπίορκον ὀμόσσας / ψεύσεται, ἐν δὲ Δίκην βλάψας νήκεστον ἀάσθη, / τοῦ δέ τ᾿ ἀμαυροτέρη γενεὴ μετόπισθε λέλειπται. ‘But whoever wilfully swears a false oath, telling a lie in his testi­ mony, he himself is incurably hurt at the same time as he harms Justice, and in after times his family is left more obscure’). The later practice of summoning Hesiod as a witness in a trial is in fact an­tici­pated in the Works and Days, in which the poet appears to be testifying in a court. The following passage (11–26) of the two Strifes (Ἔριδες) pits the destructive struggle of wars against productive competition in peaceful pursuits. The good Strife is what inspires the poetry and the world of the Works and Days. The evil Strife, by contrast, is ­thematically associated with the violence of Homeric epic or the cosmic battles of the Theogony (cf. Koning 2010: 276–7). Thus, the beginning of the Works and Days anticipates salient features of Roman elegy. The two Ἔριδες can be read as an early form of a recusatio. The wars of martial epic are rejected for the sake of didactic poetry.7 What is more, the overlap between military and legal lan­ guage, which, as I have argued, is fundamental in Latin love elegy, can be traced back to Hesiod. The language of warlike conflict and litigation is virtually the same: the struggles on the battlefield and the disputes in the marketplace (ἀγορή)8 are drawn together (cf. 14 πόλεμόν τε κακὸν καὶ δῆριν ὀφέλλει ‘she fosters evil war and conflict’ with 33 κε . . . νείκεα καὶ δῆριν ὀφέλλοις, ‘you might foster quarrels and conflict’). The law’s relation to violence makes litigation a weapon of physical destruction. Hesiod’s confluence of litigation and war has a powerful rhetorical effect. Perses loots his brother’s estate like an army occupying foreign land.

7  From another perspective, the battles of the Theogony contrast with the peaceful theme of the Works and Days. 8  ἀγορή, as West (1978: 148) notes, is the scene of judicial disputes.

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Not unlike Latin love elegy (see Chapter 2), Hesiod’s proto-recusatio of litigiousness is simultaneously a rejection and an ap­pro­pri­ation of legal discourse. In his subsequent address to Perses (27), the poet identifies the evil Strife as the source of his brother’s litigiousness. Bad Ἔρις keeps Perses away from the good work of agriculture and thus away from the poetics of the Works and Days: ὦ Πέρση, σὺ δὲ ταῦτα τεῷ ἐνικάτθεο θυμῷ, μηδέ σ᾿ Ἔρις κακόχαρτος ἀπ᾿ ἔργου θυμὸν ἐρύκοι νείκε᾿ ὀπιπεύοντ᾿ ἀγορῆς ἐπακουὸν ἐόντα. ὤρη γάρ τ᾿ ὀλίγη πέλεται νεικέων τ᾿ ἀγορέων τε, ᾧτινι μὴ βίος ἔνδον ἐπηετανὸς κατάκειται ὡραῖος, τὸν γαῖα φέρει, Δημήτερος ἀκτήν. τοῦ κε κορεσσάμενος νείκεα καὶ δῆριν ὀφέλλοις κτήμασ᾿ ἐπ᾿ ἀλλοτρίοις. Works and Days 27–34 Perses, do store this up in your spirit, lest gloating Strife keep your spirit away from work, while you gawk at quarrels and listen to the assembly. For he has little care for quarrels and assemblies, whoever does not have plentiful means of life stored up indoors in good season, what the earth bears, Demeter’s grain. When you can take your fill of that, then you might foster quarrels and conflict for the sake of another man’s property.

The Works and Days both revolves around a legal dispute (9–10) and criticizes the marketplace as the scene of judicial quarrels. It simultaneously advises against resorting to the courtroom and reproduces a trial setting. The crucial distinction is between litiga­ tion, which Hesiod criticizes, and out-of-court settlement (cf. West  1978: 150), which he favours. A lawsuit threatens to break family ties. As Bruce Frier (1985: 37) points out, litigation typically provides a zero-sum outcome, with clear winners and losers, and is thus preferred by those involved in simple, short-term relation­ ships. By contrast, long-term relationships prefer negotiated settle­ ments with no absolute winners, since such settlements allow the relationships to continue. In Hesiod’s world, the good judge, like the good poet, aims at settling a dispute with a compromise that

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satisfies both parties, so that bonds of family or friendship are not broken. Hesiod wants to play the role of the judge who successfully settles a dispute, and thus avoid resorting to the crooked judgments of corrupt lords in the marketplace. Family disagreements should be resolved within the family, not in a public trial. Perses’ choice to resort to a public trial is emblematic of the breakdown of family ties that characterizes the race of iron, a time in which Hesiod is loath to live (Works and Days 174–6). In the past, Hesiod and Perses had divided their father’s property, but Perses appropriated more than what was fair. Hesiod presents the judicial procedures that interfered with the brothers’ agreement as the source of injustice: ἀλλ᾿ αὖθι διακρινώμεθα νεῖκος ἰθείῃσι δίκῃς, αἵ τ᾿ ἐκ Διός εἰσιν ἄρισται. ἤδη μὲν γὰρ κλῆρον ἐδασσάμεθ᾿, ἄλλα τε πολλὰ ἁρπάζων ἐφόρεις μέγα κυδαίνων βασιλῆας δωροφάγους, οἳ τήνδε δίκην ἐθέλουσι δικάσσαι, νήπιοι, οὐδὲ ἴσασιν ὅσῳ πλέον ἥμισυ παντός Works and Days 35–40 But let us decide our quarrel right here with straight judgments, which come from Zeus, the best ones. For already we had divided up our allotment, but you snatched much more besides and went carrying it off, greatly honouring the kings, those gift-eaters, who want to pass this judgment—fools, they do not know how much more the half is than the whole.

Zeus’s straight judgment reiterates Hesiod’s appeal to the god in the proem (9). The justice of the supreme god contrasts with the in­just­ice of the bribe-devouring lords. Hesiod declares that any differences Perses and he have about family property must be settled between the brothers. A public trial has no place in a family dispute. The rulers (βασιλῆες) who consider it appropriate to make a family matter their judgment are undermining the justice of Zeus. The poet, not the lords, should be in charge of settling a dispute with fairness. The Works and Days exemplifies the rivalry between poets and rulers in defining fair legal procedure. The lords claim Zeus, the

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god of justice, as the source of their authority. But Hesiod dismisses them as prone to bribery and ignorant (νήπιοι, οὐδὲ ἴσασιν), while presenting his poem as inspired by divine justice.9 It is Hesiod’s knowledge and wisdom that entitles him to pass judgment and give lessons about justice. The Works and Days aims to resolve a legal dispute and give instructions about law and righteousness. Hesiod’s poetic justice is polemical with the judicial interventions of rulers in private affairs. From the very beginnings of didactic epic, we see poets and judges, bards and rulers competing for the right to serve justice. Hesiod both is involved in a lawsuit with his brother and wants to settle their dispute without resorting to the lords who try similar cases. The Works and Days sets up the scene of a trial that will over­ rule the judgment of corrupt rulers. Thus, Hesiod is simultaneously a litigant and a judge, but above all he is a poet whose authority can put an end to detrimental litigation and restore justice. Similarly, Ovid in the Ars amatoria often appears to testify in court, while aiming at an out-of-court regulation of love affairs. There is a ten­ sion between the amatory justice of the didactic poet and Augustan law that interferes with family or private affairs. The didactic poet claims the power to overrule the lord’s or the prince’s adjudication. Even though Ovid, unlike Hesiod, is not interested in familial bonds, the contrast between public and private affairs features prominently in both poets. Hesiod argues that his disagreement with his brother should be resolved within the family. Yet the influ­ ence and public profile of his poetry endow his advice to his brother with the universal authority that has been applied as precedent or evidence to many other cases. Likewise, Ovid claims a private sphere that should be exempt from the litigiousness of the Roman forum. Yet his Ars amatoria aims at establishing universal laws of amatory conduct for all Romans. If people heed the legal system of didactic poetry, the lawsuits in the ἀγορή or the forum will be sus­ pended indefinitely.

9 With νήπιος (νη- ἔπος), Hesiod banishes the ignorant judges from the world of epic justice.

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At the beginning of the Ars amatoria, Ovid alludes to the proem of the Works and Days in a passage that sets up a trial scene: usus opus mouet hoc: uati parete perito; uera canam. coeptis, mater Amoris, ades. Ars amatoria 1.29–30 Experience sets this work in motion: obey the experienced seer; I shall speak the truth. Support, mother of Love, my initiative.

The key word opus is a nod to Hesiod’s Ἔργα and uera canam is a translation of ἐτήτυμα μυθησαίμην (Works and Days 10; see Hollis 1977 ad loc). The proem of the Ars reworks the proem of the Works and Days by drawing attention to the trial scene in Hesiod. Like Hesiod, Ovid declares that he will tell the truth and nothing but the truth. Ovid’s uera canam also translates Callimachus’ fr. 612 Pf. ἀμάρτυρον οὐδὲν ἀείδω, ‘I sing nothing without witnesses’ (see Harder 2012: 98), a programmatic statement that evokes a trial set­ ting. In this context, the poet’s self-presentation as a uates peritus suggests an expert in law, a iuris peritus (e.g. Hor. Sat. 1.1.9 iuris legumque peritus). By asking his addressees to obey the jurispru­ dent bard, Ovid further evokes Hesiod’s address to Perses to ‘give heed to Justice’ (Works and Days 275 καί νυ Δίκης ἐπάκουε; cf. 213 σὺ δ’ ἄκουε Δίκης). Ovid’s juridical reading of the Works and Days is particularly perceptive. As Pietro Pucci (1977: 77–8) notes, the analogy between true words and straight δίκη in Hesiod empha­ sizes the poet’s claim to a wider jurisdiction or expertise (cf. Irwin  2005: 178). The praeceptor’s legal expertise is thus aligned with Hesiod’s judicial authority. While Hesiod invokes Zeus to guide just judgments, Ovid sum­ mons Venus. In prayers or invocations to gods, adesse means ‘to give one’s blessing, be favourable to a process or action’ (see OLD 13). But given the intertext of the Works and Days and the following ­testimony (31–4),10 the meaning of adesse as ‘to give support by one’s presence in court’ or ‘to appear as an advocate for’ (see OLD 12) is in play here. Ovid uses the verb in this sense when describing 10  I discuss this passage in Chapter 6.

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the job of a jurisconsult or legal expert (Ars 3.531 ius qui profitebitur, adsit, ‘let the man who practises law, give legal aid’).11 He also uses it in its technical meaning of appearing as someone’s advocate at Remedia 663 (forte aderam iuueni. ‘I was by chance a young man’s advocate’). The young man here loses his case defeated by his love for his wife. Not unlike Hera’s tale in Iliad 14, amor is the reso­ lution of marital conflict. In the Ars amatoria, Ovid’s work is involved in a lawsuit right from the beginning, since Venus is sum­ moned to court to defend the Ars already in the proem. Thus, the legal expertise of the didactic poet (peritus) is followed by the legal colour of the invocation of Venus. Divine inspiration for love poetry means legal aid for the Ars amatoria. Against the background of Hesiod’s Works and Days, the praeceptor casts himself as a legal authority who speaks the truth as he invokes Venus to support his work in court.12 Ovid’s work is on trial in the Ars amatoria. But the poet’s op­pon­ ent is not his addressee but the laws of Augustus. This is almost prophetic, making Ovid a real uates (‘seer’). To the extent that the Ars amatoria played a role in Ovid’s relegation, the poet and his work concerned Augustan legislation, even though the prince pun­ ished Ovid without a trial. The courtroom rhetoric that features prominently in the exile poetry reiterates a salient aspect of Ovid’s love elegies and is thus a constant reminder of the absence of an actual trial. While Augustus is an implicit target audience, a critic and a judge of the Ars amatoria, he is the addressee in Tristia 2, an elegiac letter with a distinctly didactic nature. After the condemnation of the Ars and his relegation, Ovid defends his work, addressing the emperor in an attempt to instruct him with an elegiac epistle. In Tristia 2, the issue of resolving a legal dispute by means of didactic and elegiac persuasion reworks the setting of the Works and Days. In the Works and Days, not only Perses, but also the ­rulers are Hesiod’s addressees; their unjust practices are the poet’s

11  Gibson (2003 ad Ars 3.532) notes that adesse is a technical term for ‘be present [to help in court]’; he cites Cic. Top. 65; Hor. Sat. 1.9.38; TLL 2.923.30–79. 12 Cf. Ars 1.87–8 and 3.449–52, in which Venus oversees a trial.

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target. The poet addresses the lords and gives them a strict lesson about serving justice (263–4 ταῦτα φυλασσόμενοι βασιλῆς ἰθύνετε μύθους / δωροφάγοι, σκολιῶν δὲ δικέων ἐπὶ πάγχυ λάθεσθε. ‘Bear this in mind, kings, and straighten your discourses, you gift-eaters, and put crooked judgments quite out of your minds.’ Cf. 248–73). The rulers who pronounce crooked judgments, drag Justice (220–4), and finally banish her (224 οἵ τέ μιν ἐξελάσουσι) provide a vivid precedent for Ovid’s unjust relegation. Ovid presents us with a sub­ tler version of Hesiod’s openly polemical attitude towards rulers who think it is their job to pass judgment on family matters. His letter to Augustus is based on the elegiac poetics of wooing, not on Hesiod’s outspoken criticism of powerful lords. In Hesiod, litigation in the marketplace is to be avoided and fam­ ily disputes should be settled out of court. Didactic poetry is the locus of reconciliation. In the Ars amatoria, the tension between the justice of love elegy and the lawsuits of the forum is played out against the background of the Works and Days. Evil strife is charac­ teristic of lawfully wedded couples, while harmonious love rules over extramarital relationships: este procul, lites et amarae proelia linguae: dulcibus est uerbis mollis alendus amor. Lite fugent nuptaeque uiros nuptasque mariti, inque uicem credant res sibi semper agi; hoc decet uxores; dos est uxoria lites: audiat optatos semper amica sonos. non legis iussu lectum uenistis in unum: fungitur in uobis munere legis amor. Ars amatoria 2.151–8 Keep far away, quarrels and bitter-tongued brawls; soft love should be nourished with sweet words. With quarrels let wives drive off husbands and husbands wives, and in turn believe that one is always suing the other; this befits wives; the dowry of a wife is quarrelling: but let your mistress always hear pleasant sounds. Not by the law’s command have you come into one bed; for you love performs the duty of law.

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This passage revolves around the juxtaposition of ἔρις/strife or ­litigation (lites) and ἔρως/love (amor). Even though quarrels are common in elegiac affairs (e.g. Propertius 4.7.95–6), and Love is notoriously bittersweet, the praeceptor here draws a sharp contrast between the sweetness of extramarital love and the bitterness of marital conflict.13 In the context of litigation, the lover’s discourse corresponds to the rhetorical style of the good judge or poet. The sweet words that nourish tender love evoke Hesiod’s ‘divinely nour­ ished lords’ (Theog. 82 διοτρεφέων βασιλήων) on whose tongues the Muses pour sweet dew (Theog. 83–4). Thanks to their soft words (Theog. 90 μαλακοῖσι ἐπέεσιν; cf. Ars 2.152 dulcibus est uerbis mollis alendus amor), they persuade litigants, settling their disputes. Similarly, ‘the speech flows sweet from the bard’s mouth’ (Theog. 97 γλυκερή οἱ ἀπὸ στόματος ῥέει αὐδή). These parallels are not coinci­ dental. In ancient criticism, sweetness is a characteristic of Hesiodic poetry. Velleius Paterculus, for instance, notes that Hesiod was ‘memorable for the softest sweetness of his songs’ (1.7.1 mollissima dulcedine carminum memorabilis).14 This view of Hesiod is in tune with the poetics of Latin love elegy. Ovid’s soft and sweet-talking love exemplifies the juridical discourse of Hesiod’s good lord and poet. Bitter litigation, by contrast, evokes the unproductive strife of the marketplace. The lites simultaneously describe married couples’ private quar­ rels and their disputes in a lawsuit (cf. Janka 1997: 150). Ars 2.152 (res . . . agi) employs diction that describes the procedure of a trial. Quarrels and lawsuits are a wife’s dowry, a striking phrase that also blends the private with the legal aspect of lites. A woman’s large dowry can give her a sense of entitlement that is detrimental to her marriage. In the case of a divorce, she may demand that her hus­ band return her dowry.15 If convicted of adultery, by contrast, a 13  Note, however, the wordplay amarae-amor (Ars 2.151–2) that undermines the sweet­ ness of love. 14  On sweetness as a stylistic feature of Hesiodic poetry, see Hunter (2009: 253–8). For its relevance in Ovid’s poetry, see Ziogas (2013: 91–4; 193–4). 15  On the return of a dowry in divorce, see Treggiari (1991: 362–3); cf. Medea’s plea in Ovid, Her. 12.201–2 aureus ille aries uillo spectabilis alto / dos mea, quam, dicam si tibi ‘redde’, neges. ‘That golden ram, spectacular in its thick fleece, is my dowry, which, if I were to tell you “Give it back,” you would deny.’ Medea’s ‘redde’ describes legal action in a dispute over property (cf. Ars 3.449–50). Wives with large dowries can dominate their husbands

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woman would lose half her dowry and a third of her property under Augustus’ moral legislation (see Edwards  1993: 40, with Paul, Sententiae 2.26.14). Far from the harmonious marital bonds that Augustan legislation envisaged, Ovid views marriage as the source of irresolvable conflict in the privacy of the bedroom and the public sphere of the courtroom. The interplay between the private quarrels and public trials of married couples resonates with the trans­form­ ation of family affairs into the business of the state under Augustus. For Ovid, the source of marital problems is the legal basis of mar­ riage. Marriage laws are the source of conflict and litigation. The pressure of the law is thus incompatible with reconciliation and lovemaking. Marriage stands for coercion and heteronomy, while extramarital affairs for free will and autonomy. Law is sim­ul­tan­ eous­ly the foundation and ruin of marriage. In other words, mar­ riage and extramarital affairs become codes that are defined in relation to free will. Yet it is significant that Ovid does not say that marriage follows the law, while extramarital love is unregulated. Quite the contrary: love performs the duty of law. Amatory justice consists in bringing together lovers without external coercion. The legitimacy of the laws of love is pitted against the illegitimacy of a law that commands (legis iussu) and by commanding undermines love. The contrast is between the legality of amatory justice and the injustice of marriage legislation. Ovid’s legal thinking is distinctly Hesiodic. Augustan statutes are the source of the evil strife of law­ suits that signal the breakdown of family bonds. Love, on the other hand, guarantees harmony and justice, and is the sovereign law because it is autonomous and self-regulated. The praeceptor’s juris­ prudence of love is a version of Hesiod’s poetic justice.

The Golden Age The lords’ judicial meddling with family matters is a sign of the decadence of the iron age. The famous myth of the races (Works (see Treggiari 1991: 184, with Plautus, Aulularia 475–536; Edwards 1993: 54, with Juvenal 6.136–41).

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and Days 109–201) is not a digression, but an integral part of Hesiod’s instructions about justice. The degeneration of human races represents the decline of righteous behaviour. Only the race of heroes, an exceptional improvement in an otherwise deteriorating sequence, is more just (158 δικαιότερον) than the previous race of bronze. By contrast, the iron age is characterized by the breakdown of family ties. Justice and violence are the same for them (189–94). False oaths and crooked judgments force the maidens Aidos and Nemesis to flee from the earth. Their departure is the end of the myth of the races and the end of justice on earth. Hesiod lives dur­ ing this age and thus suffers from his brother’s unfair treatment. For Hesiod, justice is the opposite of violence (274–85). He thus encour­ ages his brother to abstain from force and give heed to what is fair, adding that the decline of the human races is related to unjust behaviour (282–5). Hesiod gives a lesson in jurisprudence to a race that banished Justice from the earth and replaced it with crooked litigation. The myth of the races plays a key role in Augustan propaganda. Vergil famously proclaims that the prince restored the golden age (Aen. 6.792–4).16 Ovid reworked Hesiod’s myth of the races in Metamorphoses 1.89–150 (see Van Noorden 2015: 204–60). Issues of fairness and legality open and close Ovid’s version in a ring composition that is tellingly silent about Augustus’ new golden age. The golden age is first and foremost described as lacking laws and litigation: Aurea prima sata est aetas, quae uindice nullo, sponte sua, sine lege fidem rectumque colebat. poena metusque aberant, nec uerba minantia fixo aere legebantur, nec supplex turba timebat iudicis ora sui, sed erant sine uindice tuti. nondum caesa . . . Metamorphoses 1.89–94 16  Barker (1996) discusses the inherent ambiguity of the golden race as morally superior due to its lack of greed and as corrupt due to its literal goldenness. He is right that the idea of the return of the golden race in Roman history is not as simple as it is often portrayed. The return of the age of gold was still a major preoccupation in the age of Augustus. See WallaceHadrill (1982); Feeney (2007: 112).

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Poets and Lawmakers  219 First to be born was the golden age, which, without claimants, ­without law, of its own free will, kept faith and did what was right. There was no fear of punishment, no threatening words were to be read on tablets of bronze; no suppliant throng feared their stern-faced judges; but without defenders they lived secure. Not yet cut . . .

The legal apparatus that is absent from the golden age is eminently present in Rome.17 The laws inscribed on bronze tablets and the uindices resonate with Roman realities more than with Greek myth. As scholars point out (Galinsky 1981: 200; Van Noorden 2015: 251), the detail of the laws written on bronze tablets recalls the quantity of Augustan legislation. In this context, nondum caesa teases the reader to think that Ovid will explicitly mention the absence of a Caesar as distinctive of the golden age.18 Of course, expectations are raised only to be flouted; caesa modifies pinus (Met. 1.95) and refers to the absence of navigation in the age of gold. But Ovid’s wordplay is political, as it creates a punning association between the intercon­ nected absences of laws and Caesars. Thus, in contrast to imperial propaganda, Ovid suggests that the age of Augustus is markedly different from the golden age. The proliferation of laws under Augustus is evidence of injustice and resonates with the quarrels and conflicts of the iron age. While the moral legislation aims at consolidating family ties, its similarities to the quarrelsome litiga­ tion in the race of iron links it with the collapse of familial just­ice.19 The justice that rules in the age of gold is defined by the absence of litigiousness, which is characteristic of the greedy rulers of the iron age. The threat of the law is the proof of its corruption. In fact, the mere presence of law is evidence of widespread crime. 17  Ovid here Romanizes Aratus, Phaen. 105–10, the description of Dike in the golden age. See also Vergil, G. 2.501–2 nec ferrea iura / insanumque forum aut populi tabularia uidit, ‘and he has not held iron laws and did not see the madness of the forum or the public archives’. While iron laws befit the iron age, the tabularia refer to the Hall of Records in the Forum Romanum. 18  I thank Tobias Torgerson for pointing out the pun on caesa/Caesar. Ovid’s iron age res­ onates with Roman history. The mention of gener (‘son-in-law’) and socer (‘father-in-law’) (Met. 1.145) recalls the civil war between Julius Caesar and Pompey. 19  The children who do not resemble their fathers (Works and Days 182) imply adultery, the target of the criminal courts of Augustan legislation.

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The age of gold is, of course, the age of Saturn (e.g. Met. 1.113). The prejuridical condition of this age is the definition of the Saturnalian spirit.20 This is another way in which references to Roman law and its suspension Romanize the Hesiodic myth of the age of Kronos. As I argued in Chapter  2, the Saturnalia afforded space not only for the suspension of legal action, but also for re­staging the emergence of the juridical order. Love poetry operates in a Saturnalian state of exception, not in a litigious society dom­in­ ated by the crooked legalism of the age of Jupiter. The contrast between the proliferation of laws in a corrupt society and the nat­ ural justice of the golden age aligns Augustus’ moral legislation with the vices of the race of iron. Adultery laws acknowledge and encourage the crime of adultery.21 Thus, Augustan legislation belongs to the postlapsarian world of the iron age. The justice of the love poet, by contrast, aims at restoring a golden age by dismissing the lawsuits of the forum. What is implicit in Ovid is explicit in Tacitus. In Annales 3.25, Tacitus mentions the lex Papia Poppaea, passed in 9 ce (cf. Dio Cassius 56.10) as a supplement to the lex Iulia. In his inimitably sharp and pithy style, Tacitus condemns the addition of a new and harsher law to Augustus’ already peculiar moral legislation (cf. Milnor 2005: 143–6, 183–5). The law failed to make marriage more popular. Childlessness and celibacy remained the vogue, and the multitude of lawsuits did not result in an increase in childbirths. Informers sought rewards via litigation but birth rates remained low. While Rome had suffered before from her vices, now she was in labour from her laws (Ann. 3.25 utque antehac flagitiis, ita tunc legibus laborabatur). The sentence concludes with laborabatur as the punchline. The verb not only alludes to labor as the curse of the iron age but also sarcastically suggests the childbirths that Augustus’ abortive legislation failed to produce. Tacitus offers a subversive reflection of Horace’s reference to the law’s fertility. In his Carmen 20  The Saturnalia was ‘a licensed restoration of the Golden Age’ (Gowers 1993: 27). Acro on Horace, Sat. 2.7 explains that the festival was instituted in imitation of the golden age (saeculi aurei imitatio). On the festival’s inception during the golden age, see Dolansky (2011: 495–8). 21  See Chapter 3 on law and punishment as inciting rather than eradicating crime.

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Saeculare, Horace praises the lex Iulia, which he describes as ‘­marital law productive of new offspring’ (19–20 prolisque nouae feraci / lege marita). In Tacitus’s view, the law spawns novel lawsuits, not children.22 The lex Papia Poppaea gives Tacitus the opportunity to discuss the origins of legislation and give a survey of legal history from its origins to the current state of countless statutes. Annales 3.26 evokes the race of gold, which was untouched by criminal passions and lived a life without penalties and coercion. Rulers and laws emerge ‘once fairness is cast away and violence and ambition replace mod­ esty and shame’ (Ann. 3.26 postquam exui aequalitas et pro modestia ac pudore ambitio et uis incedebat). The production of laws does not result in the correction of injustice. ‘When the state was more cor­ rupt, laws were more abundant’ (Ann. 3.27 corruptissima re publica plurimae leges). Augustus’ legislation is the primary example of law’s failure to reform morality by means of more legislation. The litigiousness of a state seizing part of the property of those con­ victed under the lex Papia Poppaea (Ann. 3.28)23 is a grim version of Hesiod’s iron age in which greedy judges are bribed. New laws neither increase birth rates nor guard morality but store up more wealth for the empire. This is truly the age of gold. The contrast between unjust litigation and poetic justice that lies at the heart of the Works and Days and the Ars amatoria is further explored in Tacitus’ Dialogus. In his response to Aper, Maternus sets out to praise poetry against courtroom rhetoric (Dial. 11–13). The key to understanding Maternus’ speech is that he both distin­ guishes and brings together forensic and poetic pursuits. Maternus argues about the superiority of vatic utterances over litigation. Even though, he argues, he can accomplish something as a lawyer in a courtroom, it was thanks to his dramatic recitations that he man­ aged to break the power of the usurper Vatinius (11.2). The details of this case are uncertain, but it is clear that Maternus’ point is that the recitation of his tragedies was more effective in condemning the 22  The image of the pregnant lawgiver is at least as old as Plato’s Symposium. On the biopolitics of Augustan legislation, see Chapter 7. 23  Under the lex Papia Poppaea more than a quarter of property would go to the ex­che­ quer (see Suet. Ner. 10).

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guilty than courtroom rhetoric. Poetry is the guardian of justice. The power of poetry in the guiltless society of the past is then con­ trasted with the greedy rhetoric of current litigation, the product of a corrupt society that exercises oratory as a weapon (12.2–3). Maternus assumes a Hesiodic voice as he goes on to mention the age of gold: ceterum felix illud et, ut more nostro loquar, aureum saeculum, et oratorum et criminum inops, poetis et uatibus abundabat, qui bene facta canerent, non qui male admissa defenderent. nec ullis aut gloria maior aut augustior honor, primum apud deos, quorum proferre responsa et interesse epulis ferebantur, deinde apud illos dis genitos sacrosque reges, inter quos neminem causidicum, sed Orphea ac Linum ac, si introspicere altius uelis, ipsum Apollinem accepimus. Tacitus, Dialogus 12.3–5 The age of bliss, on the other hand, the golden age, as we poets call it, knew nothing of either orators or accusations; but it had a rich crop of poets and bards to chant the praises of those who did well rather than defend the evildoer. And to none was greater fame or more exalted rank accorded than to them, first in high heaven itself; for they were the prophets, it was said, of the oracles of the gods, and were present as guests at their banquets; and thereafter at the courts of god-born and holy kings, in whose company we never hear of a pleader, but of an Orpheus, a Linus, and, if you care to go further back, Apollo himself.

The mention of the golden age evokes the Hesiodic tradition. The contrast between the lack of orators and accusations, on the one hand, and the abundance of poets, on the other, points to the true wealth of the golden age, which is its lack of litigation. The poets sang of praiseworthy facts instead of defending crimes. The basis of the juxtaposition of law and poetry is their similarity as au­thori­ta­ tive discourses. The reference to the common banquets of gods and mortals is another nod to the Hesiodic tradition by means of the ‘Alexandrian footnote’ ferebantur (see Theog. 535; Catalogue of Women fr. 1.5–7 M-W). Maternus’ twist on this tradition is that he specifies poets and seers as sitting at the gods’ tables. These ancient

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bards then quoted the word of gods.24 The key word responsa describes oracular responses, but is also the technical term for the legal decisions of a jurist.25 The poets of the golden age pronounce and interpret divine law and that is why their oracular diction rules in a just society. Orpheus, who appears as a counterexample to courtroom lawyers, features as one of the first legislators in Horace (Ars poetica 396–401). In Horace, the bards’ laws put an end to vio­ lence and helped people to live in harmonious societies (see Chapter 8), while the corrupt accusers of the iron age are re­spon­ sible for warlike and destructive strife. Maternus laments in Hesiodic tones the demise of the poetic justice of the past. The golden age gave way to the litigiousness of his era. In this context, augustior can be read as a snide remark on the return of the age of gold under Augustus. The honour of being augustus originally belonged to poets and seers, not rulers producing lawsuits. Maternus mentions a number of Augustan poets, whose work will outlive the speeches of orators: Vergil, Ovid’s Medea, and Varius’ Thyestes eclipse Cicero’s reputation or the orations of Asinius and Messalla (12.5). The argument that courtroom rhetoric is ephem­ eral, while poetry eternal, is found in Ovid’s response to Livor’s accusations (Am. 1.15.7–8). Maternus’ retort to Aper recalls the legal code of Latin love elegy and its Hesiodic background. Poetic justice is the cure for crooked judgments. The ‘gold’ of the golden race is metaphorical, not literal (cf. Plato, Cratylus 398a), and Ovid points out that the golden age knew noth­ ing about gold (Am. 3.8.35–6; Met. 1.89–112). Yet the potential of a literal reading of the golden age can easily undermine its values. As Barker (1996: 434) puts it, the golden race might be undesirable on account of its very goldenness. Before Ovid, Propertius implies the conflict between the literal and metaphorical meaning of ‘gold’:

24  The irony of the etymological figure proferre . . . ferebantur is that the source of this story is the poets themselves. The only way of proving that the words of the poets are divinely inspired is poetic tradition. 25  See my discussion (Chapter 6) on Tiresias’ responsa in Met. 3.340 with Balsley (2010: 28).

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224  Law and Love in Ovid aurum omnes uicta iam pietate colunt. auro pulsa fides, auro uenalia iura, aurum lex sequitur, mox sine lege pudor. Propertius 3.13.48–50 All worship gold with piety now defeated. By gold is trust expelled; with gold are rights bought; the law follows gold, soon shame without law.

Propertius adjusts Hesiod’s voice to an elegiac setting. Cash and gifts as the means of buying love signal the corruption of his age. The expulsion of faith recalls the banishment of Dike in Hesiod (Works and Days 224; cf. Aratus, Phaen. 127–8). The judgments that are on sale recall the unfair verdicts of Hesiod’s bribe-devouring rulers. The closure of the couplet with sine lege pudor alludes to the flight of Aidos at the end of the race of iron (Works and Days 192–3, 199–200). The phrase is tantalizingly ambiguous, since it can simul­ taneously describe a sense of modesty that exists without the fear of legal sanctions and lawless shamelessness. A sense of decency (pudor) that exists without the external coercion of laws, a charac­ teristic of the golden age, is now bought with gold as a result of the collapse of a fair legal system. The greed that plagues the iron age and undermines justice in Hesiod is transferred to the mercenary habits of contemporary women in Propertius. The anaphora of aurum/auro/aurum draws attention to the interplay on the literal and figurative meaning of gold. The desire for gold and the corrup­ tion of the law characterize the race of iron, not the age of gold. In his version of the myth of the races, Ovid echoes Propertius: aurum . . . colunt contrasts with Ovid’s golden age, which cultivates trust (Met. 1.90 sine lege fidem rectumque colebat. ‘without law, of its own free will, it kept faith and did what was right’). Propertius’ uicta iam pietate anticipates the moral collapse of Ovid’s iron age (Met. 1.149 uicta iacet pietas). The absence of law is the proof of true just­ ice in Ovid (cf. Prop. 3.13.50 sine lege with Met. 1.90 sine lege). Ovid acknowledges Propertius’ allusions to the myth of the races by echo­ing him in the reworking of the myth in the Metamorphoses. Propertius suggests a subtle interplay between gold as the symbol of

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current greed and the race of gold as the symbol of a bygone era that knew nothing of the corrosive influence of the precious metal. Building on Propertius’ appropriation of Hesiod’s voice for ele­ giac purposes, Ovid literalizes the age of gold: Aurea sunt uere nunc saecula: plurimus auro uenit honos: auro conciliatur amor. Ars amatoria 2.277–8 Truly now our age is golden: the greatest honour is sold for gold: love is procured with gold.

Ovid deflates the return of the age of gold in the age of Augustus by bringing up the luxury and corruption of his times and by alluding to the absence of greed and bribery in the race of gold.26 The praeceptor echoes the voice of the archaic Greek poet in his didactic Ars as he expresses his disappointment with the greed of his times. The Works and Days are adjusted to the amatory context of love elegy. While Hesiod suffers from the greed and injustice of his brother, the praeceptor bemoans the venal desires of elegiac mis­ tresses. Propertius and Ovid are specifically concerned with ama­ tory just­ice and its corruption by means of gold. The golden age of Augustus resembles more the crooked adjudications of Hesiod’s iron age than the race of gold with its pure justice that knew nothing of laws and litigation. The poets intervene in order to restore justice to a world that suffers under the burden of judicial corruption. Hesiod’s Works and Days is an important intertext for Ovid’s instructions on amatory justice in the Ars amatoria. From its very beginnings, the didactic tradition criticizes the judgments of rulers and sets out to correct injustice by means of teaching through poetry. By casting himself as part of this tradition, Ovid claims the right to pronounce the rules that should govern love affairs in opposition to Augustan legislation. Didactic poetry teaches justice and reconciliation as opposed to legalism and litigation. The 26  Cf. Feeney (2007: 134–6). See also Barker (1996: 444–5) for the fundamentally prob­ lematic issue of gold in the race of gold.

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self-presentation of the didactic poet as an authority who condemns the unfair judgments of rulers has been at the heart of didactic poetry since Hesiod. In a Roman sequel to the Works and Days, the laws and forensic quarrels of imperial politics are pitted against the legality and courtship of elegiac poetics. Hesiod’s sharply critical voice of the injustice of his times is a model for Ovid’s juridical authority vis-à-vis Augustus’ novel laws. Of course, Hesiod’s out­ spoken critique of bribe-devouring rulers contrasts with Ovid’s cautious confrontation of imperial legislation. Ovid lived under a regime that had stifled free speech; yet the Hesiodic background to  the Ars amatoria subtly but clearly brings up a fundamental antagonism between poets and rulers on matters of law and justice. The literary tradition of didactic poetry is the key to understanding the sociopolitical dynamics of Ovid’s Ars. The voice of the praeceptor comes vested with the authority of Hesiodic jurisprudence. That is why it has the power to condemn the unfair judgments of rulers.

Law and Elegy: Theognis and Solon The elegiac poetry of Theognis and Solon is the product of a thor­ ough study of Hesiod’s Works and Days. The poetics of instruction, persuasion, and exhortation that features prominently in Ovid’s Ars amatoria is what connects the elegies of Theognis and Solon with Hesiod’s Works and Days. Hesiod’s didactic poem shares with sym­ potic, exhortative elegy both moralizing themes and structures of teaching, such as the use of an addressee (see Hunter  2014: 126). Kyrnos, the young addressee of Theognis’ poetry, corresponds to Perses in the Works Days.27 But note that, unlike the brothers Hesiod and Perses, in Theognis the relationship between the elegiac instructor and his student is eroticized. Kyrnos is a desirable boy who is introduced to the social mores of his class by an older and experienced lover. Even though Ovid, unlike Theognis, is not 27  For a comparison of Kyrnos and Perses, see Lamberton (1988: 27); Selle (2008: 339–40). For the importance of Hesiod in Theognis, see Koning (2010: 141–2, 183, 187, 281); Hunter (2014: 125–39).

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particularly interested in pederastic love in his Ars, the profile of Latin love elegy as poetry of seduction and instruction is at least as old as Theognis (cf. Sharrock 1994: 30–2). At the beginning of his work (Ars 1.7–10), Ovid appears as the instructor of Cupid, a boy (1.10 puer) who evokes Theognis’ erotodidaxis of the boy (παῖς) Kyrnos. Ovid soon abandons this conceit, but the erotic nature of the relationship between the elegiac poet and his addressee is never far from sight in Ovidian elegy. In Ars amatoria 3, the praeceptor vacillates between teaching and seducing his female students. The book dramatizes Ovid’s conflict of interest as the teacher is amus­ ingly torn between arming women with his instructions and dis­ arming them with his charm. The homoerotic background to Theognis’ pedagogical elegy appears in its heterosexual version in Ovid. This is not the place to go on in detail about Ovid’s debt to Theognis, even though, in my view, this is a promising area that has been overlooked in scholarship. Suffice it to say that moderation is one of the most prominent learning outcomes in the course out­ lines of Theognis and Ovid.28 What Roy Gibson (2007: 71–114) calls Ovid’s new ‘middle way’ features prominently in Theognis (e.g. 1.220 Κύρνε, μέσην δ’ ἔρχευ τὴν ὁδὸν ὥσπερ ἐγώ. ‘Kyrnos, walk down the middle of the road, as I do’; cf. 331–2). Warning against excess is one of the most prominent overlaps between Theognis and Solon (cf. Theognis 1.153–6 with Solon fr. 8 G-P=6 W).29 Avoiding excess and extremities is the goal of didactic elegy, whose lessons elaborate on the Hesiodic theme of moderation (see Koning 2010: 183–6). In his advice about drinking moderately, Ovid takes his class to the drinking party, the very setting of archaic Greek elegy.30 Two substantial passages about proper behaviour in a conuiuium (Ars 1.565–602; 3.747–68) draw a clear link between the Ars 28 For the importance of moderation in the Ars amatoria, see Gibson (2006); (2007: 71–114). 29  Five passages in Theognis overlap with material in Solon; see Irwin (2005: 217–18; 2006: 52–72); Nagy (1983: 88–9;  1985: 46–51) attributes these doublets to the workings of oral poetry. 30  On the importance of the symposium in Greek elegy, see West (1974: 11–12, 15–19); Bowie (1986); Selle (2008: 352–7). On the performance of elegy in the symposium, see Budelmann and Power (2013). On the symposium in Roman elegy, see Yardley (1987).

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amatoria and the elegiac tradition of Theognis. The Greek poet warns against excessive drinking (Theognis 1.473–510). The golden mean is to be neither sober nor drunk (1.478), for too much wine is the cause of disgraceful words and actions: ὃς δ᾿ ἂν ὑπερβάλλῃ πόσιος μέτρον, οὐκέτι κεῖνος τῆς αὐτοῦ γλώσσης καρτερὸς οὐδὲ νόου. Theognis 1.479–80 Whoever exceeds his limit of drink is no longer in command of his tongue or his mind.

Likewise, Ovid prescribes the right dose of alcohol: certa tibi a nobis dabitur mensura bibendi: officium praestent mensque pedesque suum Ars amatoria 1.589–9031 I shall give you a fixed measure for drinking. Both mind and foot should be up to doing their jobs.

Ovid here adds an ingenious pun on MENSura and MENS to Theognis’ μέτρον and νόου. One needs to be mindful of drinking. What looks like a typically Ovidian zeugma (mensque pedesque) is actually found in Theognis (1.505–7 ἀλλ᾿ ἄγ᾿ ἀναστὰς / πειρηθῶ, μή πως καὶ πόδας οἶνος ἔχει / καὶ νόον ἐν στήθεσσι. ‘But, come, let me stand and find out whether the wine has hold of both my feet and the mind within me’).32 In Theognis and Ovid, moderate drinking is the key to enjoying the party. One should drink, but not get drunk. The poets’ addressees should refrain from the antisocial behaviour of drunkards who pick fights. The point of moderate drinking is to avoid ἔρις (Theognis 1.494 ἔριδας ‘quarrels’; cf. Ars 1.591 iurgia ‘quarrels’) and use wine for the sake of ἔρως instead. Too much wine results in conflict, while the right amount in love. The advice on controlled consumption of alcohol is part of the 31  Cf. 3.761–8. 32  Cf. 3.763–4 hoc quoque, qua patiens caput est animusque pedesque / constant nec, quae sunt singula bina uides. ‘This too, just as much as your head can take, so your mind and feet stay steady, and you don’t see double things that are single.’

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broader significance of moderation in the elegies of Theognis and Ovid. It is also related to the purpose of their poems: reconciliation and affection instead of feuds and violence. The advice about proper behaviour in a symposium is part of the civic function of Greek elegy. As Gregory Nagy (1985: 27) argues, the body of Theognidean poetry is inaugurated on a note of social integration (1.15–18). The opposite forces of social order and dis­ order are made parallel to the opposite forces of orderly and ­dis­order­ly behaviour at a symposium (Nagy 2010: 40; 1985: 59–60). Sympotic elegy aims at creating social order and, in that respect, the attitude of Theognis towards his community is that of a lawgiver (see Nagy 1985: 35–6). In his attempt to establish harmonious relationships, Theognis accepts that it is not easy to please all (1.24 ἀστοῖσιν δ᾽ οὔπω πᾶσιν ἁδεῖν δύναμαι. ‘But I am yet not able to please all citizens’). Theognis has not given up his attempt to please everyone (note the ‘not yet’), while Solon simply admits that ‘it is hard to please all in matters of great importance’ (fr. 9 G-P= 7 W ἔργμασι ἐν μεγάλοις πᾶσιν ἁδεῖν χαλεπόν). This pentameter from Solon is attested in Plutarch (Solon 25.6) as the lawgiver’s response to citizens who ask for changes to be made to his legislation. Gregory Nagy (1985: 28–32) and Maria Nousia-Fantuzzi (2010: 295) discuss this parallel in the context of Theognis’ sphragis (1.19–23), a signature with which the poet seals his work, so that no one will be able to change or forge it.33 The written laws of Solon thus correspond to the published poetry of Theognis.34 Theognis, like Hesiod, is a poet and a champion of justice (Nagy 1985: 36–41). The resolution of conflict is related to the poet’s ability to adjudicate and reconcile. The poet is a judge who is the cornerstone of a harmonious society. A successful settlement is part 33  Cf. Ovid’s seals (sphragides) at Ars 2.744 and 3.812 inscribant spoliis NASO MAGISTER ERAT, ‘let them write on the booty NASO WAS THE TEACHER’, with Theognis 1.22–3. ὧδε δὲ πᾶς τις ἐρεῖ· ‘Θεύγνιδός ἐστιν ἔπη / τοῦ Μεγαρέως· πάντας δὲ κατ᾽ ἀνθρώπους ὀνομαστός.’ ‘But everyone will say, “These are the verses of Theognis of Megara; and his name is known among all men.” ’ 34  Nagy (1985: 36–7) notes: Theognis actually assumes a moral authority parallel to that of lawgivers like Lycurgus and Solon. His declaration at verse 24 (quoted at §9) that he cannot yet be approved by all the ­citizens of Megara is framed in a context of the poet’s insisting on his poetry, just as Solon’s corresponding declaration (quoted at §11) is preserved in the context of the lawgiver’s insisting on his law code.

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of the poetics of moderation. The poet/judge needs to be fair to either side: χρή με παρὰ στάθμην καὶ γνώμονα τήνδε δικάσσαι, Κύρνε, δίκην, ἶσόν τ᾽ ἀμφοτέροισι δόμεν Theognis 1.543–4 I must pass this judgment by rule and square, Kyrnos, and give an equal share to both sides

Theognis follows the Hesiodic tradition, in which the poet takes on the task of passing fair judgment and putting an end to litigation: ἀλλ᾿ αὖθι διακρινώμεθα νεῖκος ἰθείῃσι δίκῃς, αἵ τ᾿ ἐκ Διός εἰσιν ἄρισται. Works and Days 35–6 But let us decide our quarrel right here with straight judgments, which come from Zeus, the best ones.

Hesiod contrasts the justice of the poet with the injustice of the ­corrupt lords ‘who want to pass this judgment (39 οἳ τήνδε δίκην ἐθέλουσι δικάσσαι). Theognis’ τήνδε δικάσσαι δίκην is a nod to Hesiod’s poetic justice. Likewise, Solon describes the fairness of his laws in Hesiodic terms: θεσμοὺς δ᾽ ὁμοίως τῷ κακῷ τε κἀγαθῷ εὐθεῖαν εἰς ἕκαστον ἁρμόσας δίκην ἔγραψα Solon fr. 30.18–20 G-P = fr. 36W I wrote down the laws for base and noble alike, fitting a straight judgment for each. (transl. Nagy)

The ‘straight judgment’ is a distinctly Hesiodic phrase (Works and Days 36 ἰθείῃσι δίκῃς).35 Like Hesiod, Solon pits the moderation 35  See Almeida (2018: 194–8). He rightly notes that ‘the most significant points of contact between Solon and Hesiod involve dikē, that is, “justice”, an idea of central importance to the work of both poets’ (Almeida 2018: 194).

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and fairness of his judgment against the crooked decisions of ­corrupt rulers. Hesiod, Theognis, and Solon present themselves as fair judges. Their works dramatize how ‘judgment’ (δίκη) evolves into ‘justice’ (δίκη). Nagy (1985: 40–1) discusses the role of these poets as lawmakers, but also comments on a paradigm shift that occurs with Solon. Whereas the frame of reference for the δίκη of Solon is the actual law code that lies behind the lawgiver’s poetry, the δίκη of Hesiod and Theognis is enacted by the poetry within which it is dramatized. Unlike Solon, Hesiod and Theognis have no separate law code that they could proclaim as δίκη within their poetry. To some extent, their poetry enacts the production of ­justice. As Nagy (1985: 40) puts it, ‘the sum total of Theognidean poetry, dramatizing the life of Theognis himself, amounted to the rendering of a lawgiver’s law code’. In this scheme, Ovid is closer to Hesiod and Theognis. Unlike Solon, the elegiac teacher of love is not credited with a written code that is distinct from his poetry. But like Hesiod and Theognis, what amounts to a personal ‘judgment’ inside the drama of the poet’s life is really ‘justice’ outside it. As Kaius Tuori (2016: 80) notes, Ovid was hardly the clueless poet with no knowledge of law and legal procedure.36 In his letter to Augustus, the exiled poet points out that he served successfully as a judge: nec male commissa est nobis fortuna reorum lisque decem deciens inspicienda uiris; res quoque priuatas statui sine crimine iudex, deque mea fassa est pars quoque uicta fide. me miserum! potui, si non extrema nocerent, iudicio tutus non semel esse tuo. Tristia 2.93–8 And it was not a mistake to entrust the fate of defendants to me and suits for examination by the hundred men; also as a judge I settled private cases without reproach, and even the losing side acknowledged my good faith. Wretched me! I could, if final events 36  For Ovid’s references to his involvement in the law, see also Tr. 4.10.33–4; Pont. 3.5.23–4; Fast. 4.383–4.

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Ovid here refers to his membership of the standing court of the ­centumuiri (93–4). Since Augustus transferred the centumviral court from ex-quaestors to the decemuiri stlitibus iudicandis, Ovid here implies that Augustus played a part (albeit indirectly) in his appointment (see Ingleheart  2010: 117). He then (95–6) refers to his legal authority as a judge in private cases, a iudex priuatus.37 The fact that even the losing side acknowledged Ovid’s fairness subtly reminds Augustus of the standard he must adhere to in judging Ovid (see Williams  1994: 163). Ovid’s judicial decisions are thus contrasted with Augustus’ iudicium in the case of the poet’s exile.38 On the one hand, we have the fair adjudication of the poet, on the other, the harmful judgment of the prince. This passage from Tristia 2 gives us important information about Ovid’s life and the case of his relegation.39 But, needless to say, pick­ ing historical information from Ovid is the least we can do with his poetry. Ovid’s self-presentation as an expert in law is linked not only to his biography but also to the history of literature. Following in the footsteps of Hesiod, Theognis, and Solon, Ovid proclaims himself a champion of justice. As a sine crimine iudex he aligns himself with the straight judgments of didactic and elegiac poets in contradistinction with the crooked decisions of rulers.

The Poet and the Tyrant Theognis (1.39–52) warns that the city may give birth to a tyrant as a result of the injustice of the leaders (ἡγεμόνες).40 In Theognis, 37  Kenney (1969: 248) notes that ‘Ovid would have been on a list of iudices selecti and was therefore liable for service as a iudex unus, the single iudex before whom many (perhaps most) private suits were tried, a service which might entail considerable responsibility.’ See also Bablitz (2008); Ingleheart (2010: 118). 38  On Augustus as iudex in the case of Ovid’s exile, see Tuori (2016: 68–125); McGowan (2009: 38–9, 59, 121, 128, 132, 137). 39  Unless one subscribes to the theory that Ovid’s exile is a fiction; see Fitton Brown (1985). 40  On the poet and the tyrant in this passage, see Nagy (1983).

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there is already ambiguity between the fearsome lawgiver, who in distinctly Hesiodic terms will be ‘a straightener of our vile violence’ (40 εὐθυντῆρα κακῆς ὕβριος ἡμετέρης), and the monarch or tyrant who comes to power as a result of base people (κακοί) passing judg­ ments in favour of the unjust. This overlap between the lawgiver and the tyrant features prominently in Solon. Elizabeth Irwin (2005: 205–82) argues convincingly that Solon uses tyrannical language to describe himself. For Irwin, courting a political language and orien­ tation shared with tyranny was a fundamental aspect of Solon’s political and poetic agenda. There is a fascinating paradox at the heart of Solon’s poetry as he exploits the language of tyranny, while he seems explicitly to reject it (Irwin 2005: 243). In fr. 29 G-P=32 W, for instance, Solon claims that his rejection of tyr­an­nic­al power actually made him more powerful. In other words, Solon achieved or even exceeded the power of a tyrant, while avoiding the reputa­ tion (κλέος) of a tyrant. Solon employs language and imagery appropriate for tyrants elsewhere. In fr. 30.20–3 G-P= 36.20–3 W, he wields the goad, the tyrannical instrument par excellence (see Irwin  2005: 228–9; Noussia Fantuzzi 2010: 480), in order to control the people. In the same fragment, Solon compares himself to a lone wolf (26–7). In  our ancient sources, the wolf was associated with the figure of the tyrant.41 In a fable of Aesop (348 Perry), the wolf becomes a lawgiver, a transformation which probably derives from the ancient belief that wolves shared their hunt equally (εἰς ἴσα) among themselves.42 In Aesop’s fable the emphasis is indeed on the isonomic wolf who lays down the law that whatever each animal took in the hunt should be shared by everyone. But when asked by the donkey to do the same, he refuses to share and dissolves the laws. Once the sovereign legislator is included in the juridical order, his law is rescinded. Solon the lawgiver has a lot in common with the isonomic and tyrannical wolf. As Irwin (2005: 258–9) notes, equal distribution and exceptional status for the distributor characterize the narrative 41 The locus classicus is Plato, Republic 565d-6a, but the link is certainly older; see Irwin (2005: 245–61). 42  See Irwin (2005: 255–6); Noussia Fantuzzi (2010: 484).

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of wolf, lawgiver, and tyrant. In other words, the tyrant/lawgiver lays down the law by excluding himself from it. Solon fits in this pattern. He is part of the collective, but is also exceptional; he talks about ‘our city’ (fr. 3.1 G-P= 4.1 W), but he gives laws to the people (fr. 7.1 G-P= 5.1 W), thus setting himself outside the δῆμος. The wolf, as Noussia Fantuzzi (2010: 483) notes, was an animal connot­ ing radical alienation from the human world, especially when pre­ sented, as in Solon’s poem, alone (cf. Alcaeus fr. 130b.8). Anhalt (1993: 131–9) argues that Solon placed himself outside the polis, beyond its protections, as a sort of a φαρμακός, an outcast whose exclusion from society has the function of promoting social ­cohesion. Solon departed from Athens after the completion of his legislative work.43 With his self-imposed exile, he set himself out­ side the juridical order in order to guarantee the stability of his laws. In his exemption from his laws’ jurisdiction, Solon has the power of a tyrant, but at the same time he refuses to become a tyrant by leaving Athens. As a lawgiver in wolf ’s clothing, Solon is simultaneously a sover­ eign legislator and a homo sacer.44 The coincidence of opposites in the simile of the wolf, an animal emblematic of the outlaw and the lawgiver, is the culmination of a number of dissonances in Solon, fr. 30 G-P= 36 W (cf. Anhalt 1993: 137–8). The lawgiver freed slaves and brought exiles back to the polis, either legally or illegally (9–10 ἄλλον ἐκδίκως / ἄλλον δικαίως). He did this by ‘blending together violence and justice’ (16 ὁμοῦ βίην τε καὶ δίκην ξυναρμόσας), thus combining two concepts that are polar opposites in the Hesiodic tradition.45 His law applies equally to lower and upper classes alike (18 τῷ κακῷ τε κἀγαθῷ), thus blurring established social distinc­ tions and their ensuing moral connotations (κακός ‘base/low-class’

43  For Solon’s departure from Athens, see Noussia Fantuzzi (2010: 8, 297–300). Lycurgus also voluntarily distanced himself from Sparta in order to avoid any changes to his le­gis­la­ tion. Interestingly, Lycurgus’ name (from λύκος ‘wolf ’) is quite appropriate for a wolfish legislator. 44  Cf. Agamben (1998: 104–11) on the wolf as exemplifying the zone of indistinction between the exile and the sovereign. 45 Cf. Pindar fr. 169, ‘law the king of all . . . makes just what is the most violent’ with Agamben (1998: 30–8). For Agamben, Pindar’s sovereign nomos is the principle that, joining law with violence, threatens them with indistinction.

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vs ἀγαθός ‘good/noble’). As the punchline of the poem, the wolf encapsulates the work of the sovereign legislator, which is to make law by setting himself above judicial procedure, and the outlaw, which is to undermine law and order with acts of violence. Solon’s actions signal a level of indistinction between freedom and slavery as well as crime and law. This is a necessary condition for the emer­ gence of the wolfish legislator. Solon introduces new legislation by breaking and thus destroying old laws. Solon takes a tyrannical stance in his battle against tyranny. His conflict with Peisistratus reveals an overlap between the careers of the legislator and the tyrant.46 The antagonism and convergence of the poet and the tyrant in the case of Solon and Peisistratus are an important case study for one of the main arguments of this book, namely the similarities between Ovid and the prince as the basis of their conflict.47 The production of law from an extralegal position lies at the heart of this argument. Augustus refuses to assume tyr­an­ nic­al powers and, as I argued in Chapter  2, his recusatio imperii becomes the foundation of his sovereign power. Like Solon, by eschewing the reputation of a tyrant, he becomes more powerful than a tyrant. As a princeps, Augustus is simultaneously the excep­ tion that proves the rule and the example that follows the norm, just as Solon includes himself in the citizenry, but stands outside the demos in laying down the law. Solon fights for democracy with the weapons of tyranny. Similarly, Augustus restores the Republic by establishing the Principate. The prince’s exclusion from the juridical order is its destruction and its reinforcement. When Ovid comes back to the fact that he has been relegated without proper judicial procedure, he reminds us of Augustus’ power to punish an offender without trial, as if he were a homo sacer (cf. Dio 49.15.5–6 and Chapter 2). Ovid is banished from the juridical order, because the prince has the power to declare an exception. But it is precisely Ovid’s banishment that puts him in an antithetical, albeit parallel position to Augustus, since poet and 46  Irwin (2005: 263–80) examines the parallel lives and careers of Solon and Peisistratus. 47  See Ziogas (2015); Feldherr (2010: 7) notes: ‘Ovid is not just writing about the emperor; he is, in this sense, writing as emperor.’

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prince stand outside the legal system as they pass judgments. The juxtaposition of the poet’s and the prince’s iudicia in Tristia 2 needs to be read in this context. In Tristia 2.93–8, Ovid may imply that as a judge he followed procedure in contrast to Augustus’ arbitrary decision to relegate him (cf. Ingleheart 2010: 116; Tuori 2016: 76). Tristia 2 follows the traditional rhetorical order of an advocate’s speech (see Focardi 1975: 87–105; Bablitz 2008: 34). The poem is a speech in a trial that never happened. The forensic nature of Tristia 2 highlights the absence of a real trial, but also points to the ­alternative jurisdiction of elegy as a means of resolving a dispute without litigation. In his exilic exclusion from the juridical order, Ovid attempts to correct an injustice out of court and thus competes with Augustus’ equally extralegal adjudication. His elegiac letter to Augustus is a request to the emperor to make an exception and revoke his first judgment. The epistolary drama of this elegy unfolds in an extrajudicial space in which the sovereign legislator and the legally disabled exile coexist. And the only way to describe this extrajudicial space is by evoking a trial setting. We need to read Ovid’s references to the legal system in his ele­ gies within the long tradition of the poet as the paragon of justice and, more specifically, within the didactic and elegiac traditions of the poet as a judge and lawgiver in competition with powerful ­rulers. Solon’s poetry, for instance, is distinct from his law code, but at the same time it complements his laws. His poetry is not tech­nic­ al­ly legislation, but, like his laws or even more than his laws, has the power to create social harmony and order. Just as Solon acquired more powers than a tyrant by not having the reputation of a tyrant, elegy has the force of law, or is even stronger than the law, because it is actually created in contradistinction with legal discourse. Solon is a maker and breaker of laws. According to ancient sources, he composed elegiac verses and performed them in the marketplace (ἀγορά) in order to annul a law according to which no one was allowed to propose that the city should lay claim to Salamis (see Plutarch, Solon 8.1–3; Diogenes Laertius 1.47). Solon feigns madness, breaks into the assembly, and performs his Salamis, the elegy with which he encouraged the Athenians to rescind the law. The lawgiver Solon is also a transgressive elegist, composing and

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performing his poetry in the marketplace in defiance of the law (see Irwin 2006). Just as Latin love elegy both rejects and appropriates forensic rhetoric, Solon’s Salamis substitutes the speeches in the ἀγορά (see Solon fr. 2. G-P= 1 W). The basis of Solon’s exhortation is Salamis’ desirability (fr. 2. G-P= 1–3 W ἱμερτῆς Σαλαμῖνος; νήσου ἱμερτῆς). His elegy thus relies on the Athenians’ desire to conquer Salamis, which is the basis of their willingness to break the law. In Ovid’s Ars amatoria 1.79–88, amatory passion controls legal action. Desire and elegiac discourse highjack the forum or the ἀγορά. Not only in Roman love elegy, but also in Solon, elegiac poetry aims at urging its addressees to conquer the object of their desire in defi­ ance of old laws. In Chapter 3 (in the sections ‘The Trial Setting’ and ‘Corinna as Helen and Phryne’), we saw several examples in which the elegiac poet casts himself as a judge or a legal expert in order to justify transgression. I hope this chapter makes clear that the elegiac poet’s self-presentation as an authority in legal issues is not an Ovidian whim, but is closely related to literary history and the biographical traditions of emblematic poets such as Hesiod, Theognis, and Solon. When Ovid refers to his judgment of a legal issue, his claim should not be dismissed out of hand as frivolous, because the voice of the elegiac poet is traditionally the voice of a fair legislator. In the Ars amatoria, for instance, the praeceptor declares that ‘an eye for an eye’ is a fair principle in the case of deception: iudice me fraus est concessa repellere fraudem, armaque in armatos sumere iura sinunt. Ars amatoria 3.491–2 In my judgment, deceit that repels deceit is legitimate and the laws permit bearing arms against armed men.

Deceiving a deceiver is justified as self-defence in Ovid’s court of love. The poet’s self-presentation as a iudex (‘judge’) is doubleedged: from a biographical perspective, it implies that Ovid actually served as a judge of private affairs (Tr. 2.95); from a literary per­ spective, the elegiac instructor has the authority to render judgment in disputed cases. As a good judge, Ovid here cites the law. Kenney

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(1990: 243) points out that what Ovid says appears as a general legal principle at Digest 43.16.1.27 (arma armis repellere licere ‘allowing to repel arms with arms’), but specific instances based on the prin­ ciple are attested in the Twelve Tables (Cicero, Pro Tullio 50; Pro Milone 6; Macrobius, Saturnalia 1.4.19). In this case, the elegiac instructor is a legal authority who quotes Roman law. The couplet reflects and inverts the praeceptor’s justification of deceiving women, who are described as mostly a fraudulent lot (Ars 1.645–6). As a legal authority, the praeceptor proposes a law accord­ ing to which men can trick women with impunity (Ars 1.643 impune), arguing that the law is just since it is based on reciprocity and self-defence. In his justification, Ovid offers as examples Thrasius and Perillus (Ars 1.647–54). Thrasius was a seer who advised the Egyptian king Busiris to sacrifice a stranger as a means of ending the drought. Busiris then sacrificed Thrasius. Perillus was a craftsman who constructed a brazen bull for Phalaris, a Sicilian tyrant. The cruel tyrant was burning his victims alive in the brazen bull. His first victim was Perillus. Ovid concludes: Iustus uterque fuit: neque enim lex aequior ulla est, quam necis artifices arte perire sua. Ergo ut periuras merito periuria fallant, exemplo doleat femina laesa suo. Ars amatoria 1.655–8 Both were just men: nor is there any fairer law than for craftsmen of death to die by their own craft. Therefore, so that perjuries will deservedly deceive perjurers, let a woman grieve injured by her own example.

To call the notoriously cruel tyrants Busiris and Phalaris just is pre­ posterous and may undermine rather than support the justification. While in Ars 3.491–2 Ovid backs his judgment by referring to Roman law, in Ars 1.655–8 the basis of his justification is punish­ ments meted out by tyrants. Like the isonomic wolf, the tyrants pronounce judgments that are fair (lex aequior). The lawmaking activity of the praeceptor relies on tyrannical precedent. Thus, the elegiac instructor sides with Busiris and Phalaris, while the puellae

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correspond to the artifices (‘craftsmen’) Thrasius and Perillus. In fact, Ovid described experienced women as artifices at Ars 2.676. Read from Tomis, this passage seems like an uncannily accurate prophecy. The artifex who is punished by a powerful ruler because of his art is, of course, Ovid, not the puellae.48 The praeceptor sets his legal traps in order to snare women but he will be caught in the grip of the lex Iulia when the emperor relegates him for his Ars amatoria. The poet will eventually resemble the jurisconsult from Ars 1.83–4 who warns others to be on their guard, but falls into the traps of love’s sovereign power. Only in Ovid’s case, the emperor, not Amor, claims to be the supreme authority on laws that govern marital and extramarital affairs. In the Tristia, Ovid identifies him­ self with Perillus (3.11.51, 5.1.53), but is understandably not inclined to justify Busiris’ actions. Even though he does not com­ pare Augustus with the cruel king Busiris, the parallel suggests itself (cf. Roman  2014: 260). In the Ars amatoria, the praeceptor lays down his law by endorsing the judgments of tyrants, while in the exile poetry he has become the victim of tyrannical law. In their relationship to the juridical order, the tyrant and the exile, the artist and the prince are two sides of the same coin. From that perspec­ tive, Ovid’s poetic justice resembles Solon’s appropriation of tyr­an­ nic­al discourse in his battle against tyranny. The legal expertise of Ovid’s elegiac persona is pitted against Augustan legislation. Of all the trials of adulteresses we know of, no woman accused under the lex Iulia is acquitted (see Marshall 1990). Within the context of adultery trials in the age of Augustus, Ovid’s exoneration of Helen at Ars 2.371–2 is exceptional. This is a typ­ic­ al­ly Ovidian case of Romanizing a Greek myth and its reception. The praeceptor draws on a long tradition of debating Helen’s guilt that goes back to Homer (Iliad 3 and Odyssey 4) and Stesichorus.49 Putting Helen on trial is as old as Homer. The debate between Hecuba and Helen in Euripides’ Trojan Women is an example of a 48 See Ars 1.7, where Ovid is the artifex. 49  Ovid mentions Stesichorus (Ars 3.49–50), when Venus encourages a reluctant praeceptor to instruct women. There is an implicit threat in Venus’ words. If a bard composes a misogynistic song, an offended goddess may blind him, just as Helen blinded Stesichorus. Ars 3 can be read as Ovid’s ‘recantation’ (palinodia) of Ars 1 and 2 (cf. Gibson 2003: 106–7).

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dramatic agon (‘contest’) against the background of the Sophists’ arguments about Helen’s innocence (Gorgias, Encomium of Helen).50 Isocrates’ Helen is another example of appropriating the myth in the context of forensic rhetoric. Against the background of the Greek tradition, Ovid’s version stands out as a Roman rhet­oric­al exercise, a controuersia that anachronistically engages with the lex Iulia (cf. Janka 1997: 282–3): Quis stupor hic, Menelaë, fuit? tu solus abibas, isdem sub tectis hospes et uxor erant. accipitri timidas credis, furiose, columbas? plenum montano credis ouile lupo? nil Helene peccat, nihil hic committit adulter: quod tu, quod faceret quilibet, ille facit. cogis adulterium dando tempusque locumque; quid nisi consilio est usa puella tuo? quid faciat? uir abest, et adest non rusticus hospes, et timet in uacuo sola cubare toro. uiderit Atrides; Helenen ego crimine soluo: usa est humani commoditate uiri. Ars amatoria 2.361–72 How stupid was this, Menelaus? You left alone; your wife and her guest were under the same roof. Crazy man, do you trust fearful doves to a hawk? Do you trust a full sheepfold to a mountain wolf? Helen did nothing wrong; this adulterer committed no crime: he does what you, what anyone would do. By giving both time and place, you are compelling adultery; what did the girl do but take your advice? What should she do? Her husband is gone; a guest, and no country bumpkin, is present; and she is scared to sleep in an empty bed alone. Let the son of Atreus see to it; I declare Helen not guilty: she enjoyed the courtesies of a gentleman.

The passage consists of the relatio (361–6), the remotio (367–70), and the sententia (371–2).51 The poet addresses Menelaus, an 50  See Worman (1997); Ziogas (2017). 51  See Janka (1997: 283); cf. Stroh (1979b).

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apostrophe that suggests an advocate referring to the plaintiff. The demonstrative hic points at the adulterer, a gesture towards the common practice of orators of drawing attention to the presence of those involved in a trial. We are in a standing criminal court (quaestio perpetua), and Ovid lays out the matter, arguing that neither Helen nor Paris is to be charged with a crime. His examples from the natural world and his appeal to the common behaviour of all human beings justify the defendants’ actions by evoking the laws of nature. The relatio’s conclusion that the adulterer committed no crime enables the smooth transition to the remotio criminis. Ovid argues that Menelaus instead of Helen and Paris should be put on trial. The fact that Menelaus provided the opportunity, the venue, and thus suggested that his wife sleep with the guest makes him a pimp, a leno maritus, thus a criminal under the lex Iulia.52 The lend­ ing of venues, here Menelaus’ palace (367), was an offence under the lex Iulia (see McGinn 1998: 240–3). In his rhetorical per­form­ ance as an advocate, Ovid refers to the adultery law in order to shift the charge from the lovers to the husband. The poet interprets the lex Iulia, paradoxically making it the basis for absolving adulterers. Ovid’s persona shifts from a lawyer to a juror. His judgment both resorts to and challenges the moral legislation. Viderit Atrides; Helenen ego crimine soluo first suggests that it is the husband’s busi­ ness to condemn or exonerate his adulterous wife, only to under­ mine this statement by claiming the praeceptor’s authority to judge a criminal case of adultery. To declare as a juror that it is the hus­ band who should decide how to deal with an unfaithful wife flies in the face of Augustan legislation.53 To exonerate adulterers in the guise of an exponent of Augustan law is even more intriguing. But is Ovid’s judicial voice really incongruous with his poetry? Parody

52  Stroh (1979a: 347) and Janka (1997: 288) point out the problems in Ovid’s argument. A husband was guilty of pandering (lenocinium) if he made a profit out of his wife’s affair or if he did not prosecute her after catching her in the act (cf. Digest. [Ulpian] 48.2.4, 5.2–7, 27, 30). Menelaus is presumably a plaintiff in Ovid; thus, he did prosecute his adulterous wife. And he certainly made no profit from her affair with Paris. On the contrary, he lost his wife and a great deal of his property. 53  Ovid’s learned readers knew that Menelaus was incapable of punishing Helen for her unfaithfulness. Acquitting her and handing her over to Menelaus to see to her case guarantee that Helen will never get punished.

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and comedy in Ovid’s sophistic defence of Helen are the usual interpretations (Janka  1997: 283; cf. Stroh  1979b; Weber  1983: 94–103; Steudel  1992: 162–3). But even if this is just funny and parodic, what is its source? How did Ovid come up with the idea of casting himself as a judge or legal expert, not only in the case of Helen, but also in numerous other cases in his poetry? The answer is that Ovid is the heir to a literary tradition in which the poet has the authority to render fair judgments that have the power to over­ rule the unfair adjudications of rulers. Ovid may at first look like an odd companion of Solon. Yet both poets share a passion for making law and rendering fair judgments. Both poets shift in and out of the roles of legislator and transgres­ sor. Erotic desire is the maker of laws not only in Ovid, but also in Solon. In Plato’s Symposium (208–9), for instance, Diotima tells Socrates that poetry and laws are the products of ἔρως. Solon is an example of the pregnant legislator who gives birth to laws, the off­ spring of his love for justice. Plutarch calls Solon ‘an index of the erotic man’ (Amat. 5.751b–e), quoting two couplets from his elegiac poetry. Plutarch compares the two passages, arguing that the first pederastic couplet (fr. 16 G-P=25 W) was composed when Solon was young and ‘full of semen’, while the second (fr. 24 G-P=26 W) when he was old and ‘had brought his life into the calmness of mar­ riage and philosophy’. Noussia Fantuzzi (2010: 391) warns that we should resist Plutarch’s biographical reading. Both fragments may refer to pederastic courtship and belong to the atmosphere of sym­ potic pleasures enjoyed by the elegiac poet/lover/legislator: ἔσθ᾿ ἥβης ἐρατοῖσιν ἐπ᾿ ἄνθεσι παιδοφιλήσῃ, μηρῶν ἱμείρων καὶ γλυκεροῦ στόματος. Solon fr. 16 G-P=25 W so long as one falls in love with a boy in the lovely flower of youth, desiring thighs and a sweet kiss. ἔργα δὲ Κυπρογενοῦς νῦν μοι φίλα καὶ Διονύσου καὶ Μουσέων, ἃ τίθησ᾿ ἀνδράσιν εὐφροσύνας. Solon fr. 24 G-P=26 W

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Poets and Lawmakers  243 But now the works of Aphrodite and of Dionysus and the Muses are dear to me; they bring men good cheer.

These couplets may seem to be closer to the poetics of Latin love elegy than the poetry of elegiac legislators. But should we distin­ guish the lover from the lawmaker? As we have seen, in his forensic intervention, Solon relies on the Athenians’ desire to conquer Salamis for rescinding an old law (cf. fr. 2 G-P= 1–3 W ἱμερτῆς Σαλαμῖνος with fr. 16 G-P=25 W ἱμείρων) as well as on the poetics of sympotic elegy. As Noussia Fantuzzi (2010: 339) notes, the issue of pederasty interested Solon in his activity as a legislator.54 The elegiac instructions about the proper enjoyment of erotic pleasures should thus be interpreted vis-à-vis Solon’s legislative activities. Here Solon once more meets Theognis and anticipates the poetics of law and love in Latin elegy.

Conclusion The poems of Hesiod, Theognis, Solon, and Ovid contain autobio­ graphical information and thus anticipate ancient traditions of the poets’ lives. At the heart of these biographical snapshots lies the controversy between poetic justice and the judgment of rulers. Hesiod attempts to resolve the dispute with his brother without resorting to the crooked judgments of lords. Theognis and Solon are champions of civic justice against the threat of tyranny. Ovid’s laws of amatory conduct compete with Augustus’ moral legislation. Didactic and elegiac poetry are thus the locus of an out-of-court settlement, a just alternative to public trials and standing criminal courts. Thus, the poetry of Hesiod and Ovid simultaneously keeps a distance from litigation and dramatizes judicial procedures. In Theognis, the symposium is distinct from public life; yet proper behaviour in the symposium becomes the measure of civic har­ mony. In Solon, the distinction between the elegiac symposium and 54  A law of Solon regulated the hours that the gymnasia could be open (Aeschines, Against Timarchus 10–12, 138–9).

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official business in the ἀγορά collapses when he appears in a wreath, a symposiast’s accoutrement, and performs an elegy in the ­marketplace that results in rescinding an undesirable law. Didactic and elegiac poetry are both excluded from and conquer the market­ place or the forum to become the catalysts of justice. Ovid, the poet legislator, is part of this long tradition. His poetry has the power to make and break law, just as Solon is both a law­ maker and a lawbreaker. This double and contradictory identity is what defines the sovereign ruler or poet who establishes a legal pro­ cedure by setting himself above the law. As a sovereign legislator, the elegiac poet does not simply oppose tyrannical rulers, but becomes their alter ego. In this state of exception, the making and breaking of laws are directly linked to the pleasures and desires of the sovereign, either the prince or the love poet.

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6 Sexperts and Legal Experts Introduction Ovid writes the Ars amatoria in an era of tectonic shifts in the ­landscape of Roman jurisprudence. The end of the Republic and the gradual consolidation of the Roman Empire coincide with the rise of Roman jurists, a powerful group of legal experts who played a crucial role in the emergence of the field of law as a science (see Frier 1985; cf. Schiavone 1992; 2012). The jurists aim to make the legal system autonomous and objective. At the same time, the prince attempts to control the production of law and become its ultimate source. The law schools that are founded under Augustus and thrive in the Roman Empire establish the discipline of law as an independent field of study. By contrast, Augustus’ strategy of employing the jurists for his own ends compromises the political independence of jurisprudence. Ovid opens his school of love at the same period as famous jurists founded their schools of law. This is not a coincidence. The professionalization of legal experts under Augustus (see Wallace-Hadrill 1997: 14–16; 2008: 253–4) is related to the emergence of specialized instructions on sexual relations. By assuming the persona of the praeceptor amoris, Ovid presents himself as a member of this class of experts. The Ars amatoria can be read as a contribution to a juridical discourse that is instrumental in the invention of sexuality in Augustan Rome (cf. Habinek  1997 and Chapter  3). The independence of sexuality goes hand in hand with the autonomy of jurisprudence. Law and love are now teachable disciplines, artes in constant dialogue with each other. The legal expert is the reflection of the sexpert. Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0006

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Augustus’ moral reforms highlight law’s obsession with defining and regulating sexuality. The praeceptor amoris is inextricably involved in the production and interpretation of legislation that prescribes the boundaries of sexual transgression and propriety. In the Ars amatoria, the trial setting is repeatedly suggested as the locus of amatory instruction. The courtroom, the schoolroom, and the bedroom merge together as matrices of law and love. In his didactic persona, Ovid gives the impression that he is involved in the adultery trials of Augustan legislation and the juristic in­ter­pret­ ations of the lex Iulia. Like a good counsellor or a wise jurist, the teacher of love defends his work not only by arguing that it does not break the moral legislation, but, more importantly, by interpreting old laws in new ways or by discovering old truths in new laws. The instructions to women in particular (Ars 3), like the injunctions of the lex Iulia, put female sexuality at the very heart of moral reforms. The praeceptor amoris is essentially a professor of jurisprudence, but not one who passively studies existing laws. He is a learned jurist whose job is not just to understand the laws, but to interpret them and by interpreting them to challenge them, to change them, and thus to make them stronger.

Law and Sexuality Foucault argues that sexuality is inconceivable outside the legal system.1 For Foucault (1979: 128), sexuality owes its very definition to the action of the law: it is not only submitted to the law, but comes into being only when we subject ourselves to the law. While Foucault is right that sexuality is constituted only through the law, I think its relationship with the legal system is more dynamic. Sexuality is not just created by law but is also involved in the production of law. The question whether sexuality is the product of the law or the other way around is a chicken and egg situation. Sexuality is both the subject and the agent of legislative procedures. The Ars 1  ‘There was no risk that sexuality would appear to be, by nature, alien to the law: it was constituted only through the law’ (Foucault 1979: 113).

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amatoria highlights this interdependence. Ovid’s didactic poem not only submits constructions of sexuality to Roman law, in particular to Augustan legislation, but also creates the rules of amatory conduct that give birth to law. While we need to read the Ars amatoria against the background of Augustan legislation, the poem aspires to establish a code of conduct that not only lies outside or beyond Roman law but also makes law. The creation of an art of love coincides with legal constructions at the beginning of the Ars amatoria. The poem opens with a coup­ let that seeks to establish the poet’s authority as the praeceptor addresses any Romans who may need instruction in love: Si quis in hoc artem populo non nouit amandi, hoc legat et lecto carmine doctus amet. Ars amatoria 1.1–2 If there is anyone in this nation who does not know the art of loving, let him read this poem and by reading it let him fall in love as a learned man.

Ovid’s diction suggests the beginning of a rhetorical speech and thus the poem opens by bringing together the art of loving and speaking.2 The address to the Roman people is characteristic of rhet­oric­al discourse—the praeceptor assumes right from the beginning an orator’s pose. The first words suggest the opening of a Ciceronian speech.3 In the Pro Caelio, for instance, Cicero imagines a certain stranger who might be ignorant of Roman law (1.1 Si quis, iudices, forte nunc adsit ignarus legum . . . miretur profecto. ‘If someone ignorant of our laws, jurors, were by chance now to be present . . . he would certainly be surprised’). The relevance of the Pro Caelio for the Ars amatoria has not been studied, as far as I know, but it is certainly worth examining, given that both works are

2  Ovid draws a parallel between ars amandi and ars orandi. Ars amatoria puns on Ars oratoria; see Stroh (1979b). 3  Several of Cicero’s speeches start with si quis: see Cael. 1.1; Div. Caec. 1.1; Sest. 1.1; de Prou. Cons. 1.1; Rab. Post. 1.1; cf. the rhetorical opening of the prologue in Terence’s Eunuchus 1–3.

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preoccupied with the legitimacy of extramarital affairs.4 Cicero and Ovid start with the hypothesis of an ignorant man and proceed to instruct this imaginary person. Ignorance commonly compels poets to write didactic poetry, but rendering the jurors open to teaching is also a distinctive characteristic of the rhetorical exordium.5 In  Cicero, the hypothetical foreigner would be surprised at the peculiarity of a law which ordered that certain cases had to be tried even on public holidays.6 Plato employs a similar hypothesis in order to provide critique in the Laws.7 Thus, Ovid not only assumes the pose of an orator beginning his speech, but opens his work with a rhetorical exordium that implies instruction on legal issues. Advice on love affairs under Augustus is legally fraught—Ovid’s instructions are inevitably entangled with legal statements. The opening couplet evokes an authoritative declaration. A condition marked by si quis in the protasis and the imperative or the jussive subjunctive in the apodosis is a distinctive stylistic feature of legal tabulae (see Meyer 2004: 45–8). Thus, the jussive subjunctives (legat, amet) in the apodosis suggest authoritative diction.8 Conditionals are also ubiquitous in the Twelve Tables and in the rulings of jurists.9 The opening couplet of the Ars performs a speech act structured as a legal statement. The participial resumption hoc legat et lecto carmine conveys the rapidity and efficiency with which reading and the practical application of what is read merge 4  Overall, the influence of Cicero on the Ars amatoria has been by and large ignored. Gibson (2007: 80–6, 95–6, 103–9), a study of the importance of Cicero’s De officiis in the Ars amatoria, is an exception. 5  Ignorance compels a poet to write didactic poetry: see Lucr. 1.112 (ignoratur enim quae sit natura animai, ‘for they ignore what the nature of the soul is’); Verg. G. 1.41 (ignaros . . . uiae . . . agrestis, ‘ignorant of the rustic way’); Grattius, Cynegetica 98 (ignarum perfudit lumine uolgus, ‘he enlightened the ignorant multitude’). The ploy is as old as Hesiod (see Works and Days 40–1, 456–7) and Empedocles (fr. 2 D-K). For the rhetorical doctrine that the exordium should render the jurors open to teaching (dociles), see Lausberg (1998: 263–88); Dyck (2013: 58–9). 6  Cicero does not openly criticize the law but rather its application to Caelius’ case. 7  Noted in Dyck (2013: 53). 8  Cf. Livy 1.24.8 si defexit . . . ferito; ILC 4907= CIL 3.1933 si quis . . . faxit . . . esto; Lex de imperio 3–9, 34–9 si quis . . . fecerit . . . esto; see Crawford (1996: 1.549–53); cf. Cato, Agr. 144.4 si quis aduersum ea fecerit . . . iurent omnes socii. ‘If someone has violated these rules . . . all the associates should take an oath.’ 9  See, for instance, numerous examples of conditionals from Labeo’s maxims (quoted and discussed in Bretone 1982: 151–72). A perusal of the Digest will make clear that conditionals formed an indispensable part of juristic discourse.

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to­gether.10 Ovid’s carmen defines the sociopolitical dynamics of love affairs. Its performative aspect, which breaks the boundaries between reading and doing, endows it with legal power.11 This is the very nature of a carmen: powerful language that changes the physical world. Both carmen and legere are closely associated with legal discourse.12 The etymological link between legere and lex in combination with the performative connotations of carmen point to the oral reification of powerful diction. Magdelain argues that lex is etymologically related to legere, because the law was read aloud in the Senate before it was ratified by oath.13 Along similar lines, Meyer (2004: 97–101) examines the interaction between writing, reading, and posting the law as a ‘unitary act’ for the law’s ratification. Ovid’s first couplet performs all the pro­ced­ ures of senatorial ratification. The author (auctor) writes down an authoritative statement (carmen), which needs to be read by his readers in order to be sanctioned. Once this speech act is ­performed, Ovid’s carmen has the power to fulfil the compelling statement that powerful diction would carry within itself.14 Ovid’s carmen is a spellbinding juridical formula of an authoritative professor of law (cf. Pierrre 2016: 82–96). To some extent, the praeceptor of the Ars also usurps the magical power of the procuress by employing her erotodidactic discourse.15 Ovid’s hoc legat et lecto carmine doctus amet (Ars amatoria 1.2) combines the legal and magical power of reciting a carmen. Since the reading of Ovid’s poem will transform the readers and turn them into learned lovers, the ablative absolute (lecto carmine) is an 10  For repetition as characteristic of carmen-style legal language, see Chapter 3. 11  On the performativity of Ovid’s legal statements in Tristia 2, see Lowrie (2009: 360–82). Lowrie (2009: 361) notes that Ovid sets the poet and the lawmaker in a contest as authors whose writings contradict each other. She further focuses on the interaction between Augustan poetry and Augustan law and examines the performative dynamics of literature and law; Lowrie (2009: 327–82). 12  See Lowrie (2009: 327–30, 360–1). 13 Magdelain (1978: 18–21). Svenbro (1993: 109–22) argues that a similar connection between reading and the law applies in Greek. For Svenbro, νόμος (‘law’) is etymologized from νέμω (‘I read’, not just ‘I distribute’), and Greek culture developed a conception of law inseparable from its conception of reading. 14  Cf. Lowrie (2009: 329); Pierre (2016: 81–110). 15 See Gibson (2003: 19–21, 109–10, 119–20); cf. Myers (1996); O’Neill (1998); Fear (2000) and Chapter 2.

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ablative of means. Ovid’s students will fall in love by reading his fascinating poem. The Ars amatoria is a charming poem and an authoritative law. The reading of such a work is a speech act that validates its contents and casts a spell on its readers (cf. Chapter 4). The end of the couplet brings together amatory passion and ­systematic learning: doctus amet looks forward to the learning ­outcomes upon successful completion of Ovid’s course. The learned lover (doctus) points to the Ars as a work of didactic poetry and to doctrina as a key feature of Latin love poetry since Catullus.16 But there is more to it. As Kathleen Coleman (1990: 573) points out, doctus is the uox propria of a learned and experienced jurisconsult.17 Coleman comments on the jurisprudential connotations of doctus in her reading of Metamorphoses 3.322–38 (cf. Balsley 2010). In this episode, Jupiter and Juno ask Tiresias to judge which sex feels more pleasure in lovemaking: placuit quae sit sententia docti quaerere Tiresiae; Venus huic erat utraque nota. Metamorphoses 3.322–3 It pleased them to seek the judgment of learned Tiresias; he had knowledge of both sexes.

As Coleman (1990: 573) notes, sententia is a technical term that describes the verdict of a single judge in an arbitration of two parties with conflicting interests. It also refers to the responses of jurists (Gaius 1.7 responsa prudentium sunt sententiae et opiniones eorum quibus permissum est iura condere. ‘The responses of jurists are the decisions and opinions of those who are authorized to define the law’). This is precisely the case in the dispute between Jupiter and Juno. In this context, doctus refers not just to Tiresias’ wisdom in general but also to his legal expertise, his credentials as a judge and jurist. Just as it is the case in Ars 1.1–2, carnal and legal knowledge 16  Catullus was known as doctus (Ovid, Am. 3.9.62 docte Catulle). For the importance of doctrina in Ovid, see McKeown (1987: 32–62). 17 See Digest 1.2.2.45–6 (Pompon.), TLL v.l. 1756.27–30, 1759.60. Likewise, Ars 1.29 uati parete perito, ‘obey the experienced bard’ encourages the students to obey an expert in the laws of love (cf. Digest 1.2.2.45–6 peritior); see Chapter 5.

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merge together. The reason why Tiresias is the expert in passing judgment on issues of sexual pleasure is because he lived both as a man and a woman and thus has knowledge of both sides of lovemaking. Sexual experience becomes indistinguishable from legal expertise. Juno sentences her judge to blindness as a result of his ruling in favour of Jupiter (Met. 3.335 iudicis aeterna damnauit lumina nocte. ‘She condemned the judge’s eyes to eternal night’). The reversal of the fate of a judge who is suddenly convicted as a guilty defendant is in line with Ovid’s poetics of transformation, which often revolves around changes of roles and perspectives. Just as Actaeon, for instance, suddenly turns from hunter to quarry or from viewer to spectacle, Juno and Jupiter suddenly pass judgment on the man they invited to resolve their dispute. It is tempting to see a parallel between Tiresias’ legal expertise in lovemaking and Ovid’s Ars amatoria. Both uates are unjustly punished as a result of their learning and experience in love affairs.18 When Juno condemns Tiresias, the narrator of the Metamorphoses passes judgment on Juno: the punishment she inflicted on the judge was more severe than what was just (3.333 grauius Saturnia iusto / nec pro materia fertur doluisse. ‘It is said that Saturn’s daughter grieved more than was fair and the matter warranted’).19 The playfulness of the dispute (3.332 lite iocosa) does not justify the severity of the sentence, a discrepancy that recalls the gap between the playfulness of the Ars amatoria and the harshness of Ovid’s relegation. In Metamorphoses 3, Jupiter alleviates the punishment by giving Tiresias the gift of prophecy. In Ovid’s case, Augustus, the Jovian emperor, never listened to the poet’s appeals to reduce his punishment by sending him to a better place of exile. Ovid and Tiresias

18  Tiresias subverts and eroticizes the Delphic oracle (‘know thyself ’) at Met. 3.348 (si se non nouerit, ‘if he [Narcissus] does not know himself ’). Similarly, the praeceptor playfully evokes the Delphic oracle at Ars 3.771 (nota sibi sit quaeque. ‘Each woman should be known to herself ’). 19  Note that Ovid makes sure he attributes this judgment to others. He is cautious about offending Juno, but at the same time he adds authority to what he says with his ‘Alexandrian footnote’ (fertur).

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were both irreprehensible iudices,20 but they both unjustly paid for their expertise in matters of law and love. In a perceptive article, Kathryn Balsley (2010: 29; cf. Balsley 2011) concludes by drawing a parallel between Tiresias and Ovid. This article is a major contribution to interpreting legal discourse in the Metamorphoses and the ways in which it resonates with Augustan legislation. Balsley starts by examining the legal language in Ovid’s tale of Tiresias, arguing that both the professionalization of jurisprudence at the end of the Republic and the morality laws of Augustus, two developments which represent significant boundary crossings for the history of Roman law, are manifested in this brief scene from Metamorphoses 3. The private business of marital sex turns into a public trial, a tale that evokes the quaestio perpetua of Augustus’ moral legislation. Ovid’s quaerere (Met. 3.323), which describes Jupiter’s decision to seek the expertise of a jurist (doctus) in matters of sex, alludes to the quaestio of Augustan laws that regulated sexual relations. The confluence of uates and jurist is further suggested in Ovid’s description of the seer’s prophecies as inreprehensa . . . responsa (Met. 3.340 ‘blameless responses’ or ‘responses not deserving of censure’). As Balsley (2010: 28) notes, responsum not only means a prophetic utterance but is the official term for the legal decision of a jurist.21 The word of learned jurists shares with the prophecies of esteemed seers the power to fulfil what is spelled out. Bruce Frier’s description of the jurists as ‘the oracles of the law’ (Frier 1985: 157) is to the point. In Cicero (De Oratore 1.200), the house of a great jurist is described as ‘the oracle of the entire state’ (oraculum totius ciuitatis). The ambiguous responses of the jurists were compared with the oracles of Apollo.22 The god of prophecy and poetry is a learned jurist (see Juvenal 1.128 iuris peritus Apollo). He was the custodian of the Palatine law library and the presiding deity at court hearings and juristic consultations (see Bauman 1989: 20  On Ovid as an irreprehensible iudex, see Tr. 2.93–8, with Chapter 5. 21  When Tiresias is consulted about Narcissus’ future (Met. 3.346 de quo consultus, ‘when he was consulted about him’), the participle consultus refers to consultation in divination, but it can also apply to consulting a jurist. 22 See Bauman (1989: 40–2) for the link between Apollo and the jurists in Augustan Rome.

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41–2). Associated with Apollo, seers and jurisconsults have the independent authority to decipher the will of the legislator, either human or divine. In the case of Jupiter vs Juno, Tiresias is a uates whose response carries weight not because it is divinely inspired but because he has personal experience of lovemaking as a man and a woman. This resonates with Ovid’s statement in the Ars that experience, not divine revelation, is the source of the praeceptor’s vatic authority. Not unlike Tiresias, the uates peritus (Ars 1.29) of the Ars amatoria is an experienced oracle of jurisprudence (cf. Chapter 5). The learning of a jurist intersects with the expertise of a lover. The story of Tiresias and Ovid’s didactic persona show that the professionalization of legal experts is inextricably related to the rise of sexologists. The doctrina of jurists and lovers is all about carnal knowledge. The learned jurist is indistinguishable from the experienced lover. From that perspective, the word order doctus amet (Ars 1.2) points to the interdependence of legal expertise and lovemaking. Far from tendentiously bringing together rational learning and irrational passion, Ovid suggests that the construction of sexuality is inconceivable without a systematic code of conduct. As Foucault (1979: 83) puts it, sex is to be deciphered on the basis of its relation to the law. Sexuality comes into existence through language, through the act of discourse that creates, from the very fact that it is articulated, a rule of law. Augustus’ moral legislation makes the regulation of sexual morality the legislator’s primary concern at the same time as Ovid’s Ars amatoria brings the juridico-discursive nature of sexuality to the fore.

The Jurists We know that the lex Iulia was the only special criminal law on which the jurists wrote monographs (McGinn  1998: 246). Ovid’s confluence of legal and amatory knowledge in his Ars amatoria should be read in this context. The compositions of elegiac poets and the documents of jurists may suggest two different worlds, but, as Michael Peachin (2001: 120) notes, the jurists saw themselves as

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contributing to similar fields of knowledge as other writers who opted for one of the genres included in Cornelius Celsus’ Artes: farming, medicine, military science, rhetoric, philosophy, or law. From that perspective, the jurisprudent and the didactic poet are engaged in similar intellectual pursuits. Both write for the purpose of giving expert advice and both teach an art. Besides interpreting and commenting on laws, jurists wrote works designed for teaching (institutiones, regulae, and sententiae). As Kristina Milnor (2007: 9) puts it, instead of imagining the Roman legal system as something entirely external to Roman literature, we should see the two as arising from many of the same cultural concerns and constraints, and try to understand how changes in one may reflect and be reflected in changes in the other. This part of my argument is important not only because it shows that poets and jurists may have more in common than appears at first sight, but also because I should stress that the disciplinary integrity of the science of law did not result in the cultural isolation of legal experts. As Jill Harries (2006: 12) puts it, the present sep­ar­ ation of legal discourse from the rest is not reflected in the intellectual approach taken by the Roman elite. Jurists were versed in poetry, just as poets were educated in law.23 Study of law and study of literature were indispensable parts of elite identity in the Roman Empire. This is one reason why literary and legal discourses are in constant dialogue. The emergence of specialized branches of know­ ledge does not mean that different fields or artes could not influence or inform each other. The Augustan jurist M. Antistius Labeo founded a renowned school of law that emphasized the study of liberal arts. Grammar, dialectics, literary criticism, and etymological analyses were keys to interpreting the law in Labeo’s school (see Bauman  1989: 47–8). Labeo is an eminent representative of a legal tradition from which many poetic etymologies derive (see Cairns 1991: 444; cf. Howley 2013: 14–16). 23  For Roman legal scholarship as part of the intellectual culture of the Roman Empire, see Wibier (forthcoming). This book challenges the traditional approach that divorces Roman jurists from their socio-historical context, arguing that they were in constant dialogue both with intellectual traditions and with changing social values and pressures. See also Howley (2013).

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For instance, the jurist etymologized furtum from furuus, a rare word that means ‘swarthy’ (Digest 47.2.1 furtum a furuo, id est nigro dictum Labeo ait, quod clam et obscuro fiat et plerumque nocte. ‘ “Theft” derives from “swarthy,” which Labeo says means “black,” because it occurs secretly and in darkness and mostly at night’). Ovid’s furtiuae noctis (Am. 1.11.3; cf. 2.19.39–40 furtim . . . nocte) suggests Labeo’s etymology, a derivation to which doctus Catullus also alludes (see 7.7–8; 68.145). Ovid’s obsession with etymological wordplay has been a fruitful research field, which is often considered part of the poet’s doctrina (e.g. McKeown 1987: 45–62). What is yet to be appraised is to what extent this doctrina is related to the poet’s legal studies and to an educational tradition in which a learned lawyer needed to know about the origins of words. Labeo deserves more attention not only because he was a leading jurist and professor of law under Augustus, but also because he resisted the prince’s grab of judicial powers. His devotion to the study of law is a story of opposition to the new regime (see Bretone  1978;  1982: 127–90; Bauman  1989: 31–54). In his commentary on Horace (Sat. 1.3.82), Pomponius Porphyrio notes that the jurist Labeo was so fond of the republican virtue of libertas that he did not refrain from insulting the emperor by word and by deed (Marcus Antistius Labeo praetorius, iuris etiam peritus, memor ­libertatis in qua natus erat multa contumaciter aduersus Caesarem dixisse et fecisse dicitur. ‘They say that Marcus Antistius Labeo the praetor, also a jurist, preserving the memory of the freedom in which he was born, defiantly said and did many things against Caesar’). The son of an anti-Caesarian jurist who chose to die after the defeat of his party at Philippi, Labeo did his best to preserve the juridical order of the Republic. The jurist Capito, the founder of another law school and Labeo’s big rival, also stressed Labeo’s excessive devotion to the old Republic and his opposition to Augustus. A passage from Capito’s letter is attested in Gellius: in quadam epistula Atei Capitonis scriptum legimus, Labeonem Antistium legum atque morum populi Romani iurisque ciuilis doctum adprime fuisse. ‘Sed agitabat’, inquit, ‘hominem libertas quaedam

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256  Law and Love in Ovid nimia atque uecors usque eo ut, diuo Augusto iam principe et rempublicam obtinente, ratum tamen pensumque nihil haberet, nisi quod iussum sanctumque esse in Romanis antiquitatibus legisset’ Noctes Atticae 13.12.1–2 In one of the letters of Ateius Capito we read that Antistius Labeo was exceedingly learned in the laws and customs of the Roman people and in the civil law. ‘But’, he adds, ‘an excessive and mad love of freedom possessed the man, to such a degree that, although the deified Augustus was then emperor and was ruling the State, Labeo looked upon nothing as lawful and accepted nothing, unless he had found it ordered and sanctioned by the old Roman law.’

The jurist refuses to accept Augustus as the ultimate source of law. It is not surprising that Augustus made a systematic attempt to control the jurists, whose power had increased due to the emergence of the highly specialized field of law. Unlike some modern demagogues who rose to power by attacking experts, Augustus created an exclusive group of accredited legal specialists as a means of controlling them.24 In the Republic, legal advice was not the prerogative of professionals. Pomponius attests that, before Augustus, anyone who was confident in his learning could give legal advice to those consulting him (Digest 1.2.2.49 ante tempora Augusti . . . qui fiduciam studiorum suorum habebat consulentibus respondebat).25 Cicero complains that the symbol of legal proficiency (LICET CONSVLERE) was abused by ignorant upstarts (see Orat. 145; Mur. 28). To some extent, Augustus attempted to correct the fact that unqualified persons would present themselves as legal experts (see Bauman 1989: 8–10). Pomponius says that Augustus’ auctoritas became the source of the jurists’ right to respond (Digest 1.2.2.49 Augustus, ut maior iuris auctoritas haberetur, constituit ut ex auctoritate eius responderent. ‘Augustus, so that he would be considered the greater authority of 24  Cf. Colognesi (2014: 320): ‘By singling out those who already had greater scientific authority, the princeps succeeded in absorbing into his own sphere of influence the entire hierarchy that had been developing among jurists.’ 25  For a detailed discussion of this crucial passage and the jurists’ ius respondendi, see Bauman (1989: 6–24).

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law, decided that they might respond on his authority’). Whether this means that Augustus created an elite of accredited jurists or introduced a licence as a requirement for practising law,26 the important point is that the jurists’ right to interpret the law and thus legislate derives from the prince. Augustus ultimately succeeded in making the jurists devote their legal expertise to supporting the Roman emperor’s sovereign jurisdiction. But this was hardly a smooth transition. The case of Labeo shows that one of the most prominent Augustan jurists vehemently resisted the new development that made the prince the supreme legal authority.

Ovid the Jurist The jurists were not only the propounders of law but also its professional critics (Frier  1985: 168). Their interpretations could give unexpected twists to seemingly fixed statutes. Their schools are ­evidence that the legal science remains alive only when the law is  subject to constant scrutiny and criticism. Ovid’s school of love  coincides with the foundation of law schools in the vibrant ­intellectual environment that surrounds the professionalization of jurisprudence.27 Gaius refers to the jurists who were in charge of these schools as auctores (4.79) and repeatedly calls their teachers praeceptores (1.196, 2.37, 2.123, 2.135, 2.200, 2.217, 3.87, 3.98, 4.114). The praeceptor amoris teaches at the same time as the praeceptor iuris acquires a prominent role. Cicero calls the profession of jurisconsults artificium (see Mur. 24–5 with Pierre 2016: 86–7), and the praeceptor amoris casts himself as an artifex. In Augustan Rome, law and love share the language and structures of education. The relationship between a jurist and his student is essentially a patrocinium, a relationship between a patron and his client (cf. Bauman  1989: 22–3). Similarly, the relationship between the ­elegiac poet and his addressee reflects the social conventions of 26 Bauman (1989: 10–13) examines in detail both cases. See also Colognesi (2014: 320–3). 27  On the law schools and their founders under Augustus, see Bauman (1989: 25–55).

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patronage/amicitia. The legal expert teaches law and prepares his protégés for an appearance in court, while the expert lover prepares his students for courtship. In the Ars amatoria, the supreme jurisprudential authority is ­neither Augustus nor Apollo, but Amor. We saw in Chapter 4 that Amor features as a iurisconsultus who makes Acontius an expert in the laws of love. Amor can captivate a counsellor in the forum: illo saepe loco capitur consultus Amori, quique aliis cauit non cauet ipse sibi. Ars amatoria 1.83–4 Often that’s where a lawyer is entrapped by Love, and one who drafts safeguards for others lets his own guard down. (trans. Hejduk 2014)

In this section, Ovid argues that even law courts foster love affairs. The confluence of the courts of law and love is signalled with capitur, a verb that can mean to be trapped in the snares of law and love (see Chapter 4 on capi). Commenting on this couplet, Hollis (1977: 49–50) notes that the first use of cauere is technical language referring to a iurisconsultus, while the second has the more general meaning of looking out for oneself. Cicero, as Hollis adds, teases his jurist friend Trebatius in exactly the same way (Fam. 7.6.2 tu, qui ceteris cauere didicisti, in Britannia ne ab essedariis decipiaris caueto. ‘Now you, who have learned how to enter caveats for others, enter one for yourself against the tricks of those charioteers in Britain’). Like Ovid, Cicero employs the technical meaning of ­cauere (‘to look out’), which refers to a jurisconsult’s instructions to his client about a certain form of procedure. Hollis is right to quote Cicero—this is one of Ovid’s distinctly Ciceronian moments.28 But I am less convinced that the shift between the juridical and generic meaning of cauere is as neat as Hollis presents it. In Cicero, the future imperative caueto appropriates the diction of a jurist. In other words, it sounds like a piece of legal advice to his friend, who is, ironically, a legal expert. In Ovid, the jurisconsult is caught in the 28 Ovid’s capitur further corresponds to Cicero’s decipiaris.

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snares of Amor and thus transformed from a teacher/patron to a student/client. The legal expert is outsmarted by Cupid, the ul­tim­ ate authority in jurisprudence. The point in Cicero and Ovid is that the technical and non-technical meanings of cauere are not distinguished but coexist. The lover’s discourse permeates the language of law imperceptibly, just as a jurisprudential Amor catches a legal expert off guard. According to Cicero, one qualifies as a learned iurisconsultus if one is an expert at announcing rulings on points of law (ad respondendum), at initiating legal proceedings (ad agendum), and at ­protecting a client at law (ad cauendum): Sin autem quaereretur, quisnam iurisconsultus uere nominaretur; eum dicerem, qui legum, et consuetudinis eius, qua priuati in ciuitate uterentur, et ad respondendum, et ad agendum, et ad cauendum, peritus esset.

Cicero, De oratore 1.212 If again the question were, who is rightly described as learned in the law, I should say it is the man who is an expert in the statutes, and in the customary law observed by individuals as members of the community, and who is qualified to advise, direct the course of a lawsuit, and ­safeguard a client.

In the Ars amatoria, Ovid often issues a response to controversial aspects of the moral legislation, directs the course of courts of love, and protects his students from legal traps. He is indeed an expert iurisconsultus. Ovid’s didactic poem is all about cauere and capere/capi, the very jobs of a lawyer and a law professor. The juristic use of cauere is in play when Ovid advises his student to take kisses by force, but make sure that he does not injure his beloved: tantum, ne noceant teneris male rapta labellis neque queri possit dura fuisse, caue. Ars amatoria 1.667–8 Only take care that kisses snatched the wrong way don’t injure her tender lips, that she can’t complain they were hard. (trans. Hejduk 2014)

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Ovid virtually gives legal advice to his student. Injured lips can be evidence of violence against the lover. In this context, queri implies making a formal complaint in a court of law (see OLD 1e and Chapter 3). In Book 3, the future imperative caueto (Ars 3.801) is more striking than the present imperative caue.29 Ovid’s recommendation of moderate force comes after his prohibition on violent acts caused by too much wine (Ars 1.591–2 iurgia praecipue uino stimulata caueto / et nimium faciles ad fera bella manus. ‘Be especially on guard against quarrels spurred on by wine and hands too easily stirred to savage wars,’ trans. Hejduk  2014). The future imperative caueto warns about an official ban on violence. Ovid assumes the voice of an authoritative jurist who lays down the law of what is permitted and what is forbidden: at non pectendos coram praebere capillos ut iaceant fusi per tua terga ueto. illo praecipue ne sis morosa caueto Ars amatoria 3.235–7 Yet presenting in public hair that needs combing, so that it falls loosely down your back—that I don’t forbid. Beware, especially, at that time that you are not grumpy. (trans. Hejduk 2014 modified)

The homoeoteleuton (ueto-caueto) highlights the legal colour of the injunction. The playfully commanding (non . . . ueto)30 is followed by and echoed in the solemnity of a future imperative (caueto). Ovid is here a legal authority, laying down the laws of natural beauty. At the end of the Ars amatoria, the praeceptor advises frigid women to fake it, but warns them not to be obvious: tantum, cum finges, ne sis manifesta, caueto: effice per motum luminaque ipsa fidem. Ars amatoria 3.801–2 29  On future imperatives as characteristic of legal diction, see Chapter 3. 30 The hyberbaton non . . . ueto turns the sentence into a positive injunction (see Gibson 2003 ad loc.).

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Sexperts and Legal Experts  261 When you are faking it, just beware you are not found out; your motions, your very eyes should make it believable. (trans. Hejduk 2014 modified)

Again, caueto is the language of a jurisconsult who instructs his ­client not to be caught in the act (manifesta).31 The closure of the coup­let with fidem adds to the legal colour of Ovid’s school of amatory deception. The praeceptor says that sounds and gasps of pleasure are arguments for a woman’s sexual satisfaction, but ­hastens to add that the female body can provide incriminating evidence that invalidates the testimony of false words and fake motions of pleasure (Ars 3.803–4 quid iuuet, et uoces et anhelitus arguat oris; / a pudet! arcanas pars habet ista notas. ‘Both the sounds and gasps from your mouth should show what you like. Ah, shame! That part has secret signs,’ trans. Hejduk  2014 modified). ‘That part’ is a euphemism for the vagina and ‘the secret signs’ for vaginal secretions, the proof of genuine sexual arousal. Unless she is wet, a woman cannot convincingly prove that she is having an orgasm. The rhetoric of moaning with pleasure is undermined by the hard evidence of a dry vagina. Ovid transforms the sexual action of the bedroom into the legal acts of the courtroom. As a lawyer, the praeceptor can teach his clients/students how to fake it, but he has to caution them about compelling evidence that will inevitably surface in the trial. Note that what is put on trial in Ovid’s court of love is not a woman’s faithfulness, but the genuineness of her sexual climax. Pleasure is the measure of sexual morality. Ovid is fond of the future imperative caueto (see also Rem. am. 579, 689). In Amores 1.8, the procuress advises her protégée to stir jealousy in her lover (1.8.95 ne securus amet nullo riuale, caueto. ‘Beware that he is not in love safe from a rival’). Her use of caueto is virtually the same as the praeceptor’s juristic instructions to his students—his female students in particular. As scholars note, the lena is the doppelgänger of the praeceptor amoris.32 One of the 31  See Chapter 3 on the legal connotations of furtum manifestum. 32  For the praeceptor as lena in Ars 3, see Gibson (2003: 19–21); cf. Myers (1996); Fear (2000).

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un­noticed, yet essential similarities between the elegiac poet and the procuress is that their erotodidactic discourse is fundamentally juridical (see Chapter 2). The independent jurisdiction of the professor of love needs to be studied vis-à-vis the professionalization of legal discourse. There is a significant overlap between the oracles of law and the uates of love poetry. Ovid relies on this intersection to cast the expert lover as a legal authority. Practical knowledge (peritia) and learning (doctrina) are the distinguishing markers of an outstanding poet, lover, and jurisconsult. Wisdom or foresight (prudentia) is another key feature that prophets and jurists share with the expert in love. Seers and legal experts are wise authorities who can foresee the consequences of certain actions. In a legal context, prudens specifically describes a jurist, a iuris prudens (see Gaius 1.2, 7; Digest [Pomponius] 1.2.2.12). In the exile poetry, Ovid admits that he was barely wise in foreseeing the consequences of his Ars amatoria: Naso parum prudens Artem dum tradit amandi, doctrinae pretium triste magister habet Ex Ponto 2.10.15–16 Naso, barely prudent when he passed on his Art of Loving, paid the grim price of learning as a teacher

Given his relegation, a punishment decided by the emperor, Ovid’s prudens and doctrina refer not only to foresight in general but to his failure to deal with the art of love as a iuris prudens in the service of Augustus’ moral legislation.33 The confession in Ex Ponto 2 contrasts with the praeceptor’s insistence that his proficiency and qualifications in love give him licence to interpret the law. Right before a passage suggesting a trial scene and clearly commenting on the lex Iulia (Ars 1.30–4),34 Ovid asks his readers to obey the experienced seer (Ars 1.29 usus opus mouet hoc: uati parete perito. ‘Experience sets this work in motion: obey the experienced seer’). As I argued in Chapter 5, peritus here 33  Cf. the legal connotations of parum prudens at Her. 21.122, discussed in Chapter 4. 34  I discuss the lex Iulia in Ars 1.29–34 in the section ‘The Dress Code’ below. For the trial scene in this passage, see Chapter 5.

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recalls a iuris peritus whose advice has the force of law. Personal experience is the key to Ovid’s skill (ars). Experience (usus) and skill (ars) were also requirements of a legal expert. In Brutus 152, Cicero says that while Scaevola and many others had great practical knowledge of civil law (iuris ciuilis magnum usum), the jurist Servius alone made of it an ars.35 A combination of usus and ars is the source of jurisprudential expertise and authority. Ovid composes his Ars amatoria at a time when the science of law has been established as an ars and private affairs have become the subject of legal studies. The praeceptor’s expertise is not only academic but also derives from his experience as a lover. As a veteran ladies’ man, he qualifies as an adviser of amatory law. Like Tiresias in Metamorphoses 3, the praeceptor amoris is a uates doctus or peritus, a learned authority in matters of sex and jurisprudence. Ovid casts himself as a learned jurist in the Ars amatoria at the time when Augustus recruited a group of legal professionals to support his regime. If we read the Ars amatoria as a response (responsum) to Augustus’ moral legislation, that is, as a jurist’s interpretation, Ovid’s work poses a major challenge to Augustus’ attempt to control an exclusive class of legal experts. Ovid does not give juristic opinions or responses ex auctoritate principis, but ex ­auctoritate Amoris. His insistence on juristic authority that defies Augustus’ sovereignty aligns him with Labeo. Augustus decisively, albeit subtly monopolizes legislation, but Ovid insists on the polyphony of the Republic’s legislative procedures. By claiming Amor’s inalienable right to legislate and the lover’s right to provide legal advice on love affairs, Ovid, like Labeo, resists Augustus’ attempt to make imperial auctoritas a requirement for valid juristic responses. Ovid’s credentials as an expert in lovemaking break the monopoly on the production and interpretation of moral le­gis­la­ tion. The Ars amatoria further challenges the insularity of legalism and claims a part of the legislative procedure for didactic poetry. But I suspect that Augustus and his designated jurists would not have welcomed interpretations of the moral legislation arising from sources they could not control. 35  Cicero wrote a non-extant work De iure ciuili in artem redigendo.

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Jurists, Orators, and Lovers As we saw in Chapter 2, Ovid refers to the training of a jurisconsult that involved the memorization of laws (Am. 1.15.5 leges ediscere) in a poem that draws on courtroom rhetoric. The memorization of laws refers to the education of a jurist, while forensic rhetoric to an orator. Ovid often brings together the legal expert and the orator, even though the iurisconsultus and the disertus had an antagonistic relationship. The jurists contributed to the bureaucratization of legal procedures and were thus considered responsible for the decline of oratory. By contrast, the power of orators could be seen as compromising rigorous jurisprudence. Orators appealed to emotions, jurists to reason. The age of Augustus marks the decline of forensic oratory and the rise of Roman jurists, a development that had already started at the end of the Republic (see Frier 1985). Yet the antagonism between jurists and advocates, which features prominently in Cicero (see Pierre 2016: 82–91), has been exaggerated. The dichotomy between the two legal professions is not as clear-cut as it is often assumed.36 The fact that Ovid is not particularly interested in this rivalry suggests that the two legal professions were viewed as the two sides of the same coin. Even though Ovid does distinguish the jurist from the orator, both often appear in the same context. What is more, we often find the lover in the same group as the legal professionals. In Amores 1.13, the lover resents the breaking of Dawn as much as lawyers and counsellors (21–2 nec tu consulto, nec tu iucunda diserto: / cogitur ad lites surgere uterque nouas. ‘You [i.e. Dawn] are unpleasant to the jurisconsult and the pleader: both are compelled to rise for new cases’).37 Nothing could signal the end of elegiac leisure (otium) better than the resumption of legal action. In the Ars amatoria, Ovid casts himself as an eloquent orator and a legal expert as he sets out to train his students in forensic speech 36 See Wibier (2016), who argues that the watertight separation between orators and jurists that Cicero himself posited collapses to some extent once we study Cicero’s reception in the juristic tradition of the early Roman Empire. 37  McKeown (1989ad loc.) notes the pun on surgere (‘to rise from bed’ but also ‘to rise to deliver a speech’).

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and jurisprudence. The art of loving (ars amandi) is essentially the art of speaking (ars orandi)—a lover’s discourse. Far from being just another case of Ovid’s glib punning, the confluence of ars amatoria and ars oratoria pointedly suggests the juridico-discursive nature of sexuality. The forensic orator and the lover rely on the discourse of persuasion to achieve their goals and fulfil their desires. The praeceptor is simultaneously a teacher of law and love. Ovid’s persona is not only that of a teacher of rhetoric but also that of a professor of law. Against the background of the foundation of law schools and the rise of influential jurists under the aegis of the prince, Ovid exercises his right to take part in legislative procedures on the basis of his credentials as an experienced lover and love poet. If legal authorities can prescribe the rules that control sexuality, an expert in love has the right to make law. For Ovid, the discourse of seduction is the origin of courtroom rhetoric (cf. Fasti 4.107–14). The praeceptor amoris teaches law and rhetoric. In his sustained confluence of ars amatoria and ars oratoria, Ovid points out that eloquence is how one wins over a judge or a girl: Disce bonas artes, moneo, Romana iuuentus, non tantum trepidos ut tueare reos; quam populus iudexque grauis lectusque senatus, tam dabit eloquio uicta puella manus. Sed lateant uires, nec sis in fronte disertus; effugiant uoces uerba molesta tuae. Ars amatoria 1.459–64 Roman youth, I advise, go learn liberal arts, not only to protect trembling defendants; like the people and the serious judge and the chosen senate, the girl will surrender defeated by your eloquence. But your power should lie hidden and you should not be obviously skilled in oratory. Your speech should flee from words that sound affected. (trans. Hejduk 2014 modified)

Oratory is included here as one of the liberal arts that can be employed in a variety of public and private affairs. Eloquence is how an advocate (disertus) protects defendants (reos) and convinces

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a stern judge. It is also a weapon for conquering a girl (uicta puella). The diction combines the elegiac motif of militia amoris with the forensic meaning of uicta (see Chapters 1 and 3). The girl loses her case and surrenders herself as property to the victorious lover. The caveat that the young man should conceal his skill in forensic oratory can apply both to lovers and counsellors. Seduction and persuasion are more efficient when what is part of a carefully planned strategy appears as unaffected sincerity. Ovid’s course on the ‘Art of love’ is cross-listed in the law school and in the school of rhetoric. In Ars 3.677–80, the poet advises his female students to pretend that they are hurt and cry, so that a man will be persuaded and take pity on them. The recommendation of these ­tactics overlaps with the education of an orator, who is advised to simulate emotion in order to convince a jury (see Cicero, De or. 2.190 and Gibson 2003: 355; cf. Stroh 1979b: 122–6). The strategy of seduction and forensic persuasion focuses on arousing strong emotions. The praeceptor explains that desire is the source of a lover’s eloquence: Non tua sub nostras ueniat facundia leges; fac tantum cupias, sponte disertus eris. est tibi agendus amans Ars amatoria 1.609–11 Your eloquence should not be subject to my laws: make sure you desire and you will be an orator on your own. You have to play the lover

Like a linguist explaining that the way we speak results in the formation of grammar rules more than grammar books define the way we speak, Ovid makes clear that desire, not rhetorical or amatory handbooks, regulates oratory. The success of a good advocate or lover relies on his convincing performance, on making his acting seem real (Ars 1.611–12). Ovid’s advice suggests the interdependence of forensic and amatory discourse. Desire in and of itself can teach a young man the art of pleading a lover’s cause. The praeceptor’s advice implies the precedence of passion over forensic discourse (cf. Fasti 4.111–12). The lover/orator does not simply follow the rules, but lets his love inspire his rhetoric and thus dictate the laws of eloquence.

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The lover and the forensic orator cross paths several times in the Ars amatoria. In the section that lists the places in which desirable women can be found, the praeceptor includes the forum: Et fora conueniunt (quis credere possit?) amori: flammaque in arguto saepe reperta foro: subdita qua Veneris facto de marmore templo Appias expressis aëra pulsat aquis, illo saepe loco capitur consultus Amori, quique aliis cauit, non cauet ipse sibi: illo saepe loco desunt sua uerba diserto, resque nouae ueniunt, causaque agenda sua est. Hunc Venus e templis, quae sunt confinia, ridet: qui modo patronus, nunc cupit esse cliens. Ars amatoria 1.79–88 Even the fora (who could believe it?) are conducive to love, and flame often blazes up in the noisy forum, where, placed beneath the temple of Venus, made of marble, Appias strikes the air with her jets of water. Often that’s where a lawyer is entrapped by Love, and one who drafts safeguards for others lets his own guard down; often that’s where the eloquent orator is at loss for words—he has to plead an unprecedented case pro se. Venus has a good laugh at this man from her temple nearby: he was just a patron; now he wants to be a client. (trans. Hejduk 2014 modified)

Who could believe that the forum, the locus of serious legal actions and business transactions, would host Ovid’s idle games of love? As we saw in Chapter  5, Hesiod dismissed the litigiousness of the market­place (Work and Days 29–30 ἀγορή, the equivalent of forum) for the out-of-court settlement he offers with his poem. Ovid’s plan is more ambitious. Amatory justice occupies the Roman forum. The praeceptor stresses the close relationship between the arts of law and love. The reference to the temple of Venus Genetrix, which was behind the Forum Iulium, highlights the proximity of the goddess of love to the lawcourts. The goddess oversees judicial proceedings; she actively intervenes and dominates the work of legal

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pro­fes­sionals. Amor is thus cast as the ultimate authority in law—a legal expert who can ensnare even experienced jurisconsults in his traps. The forum is under the jurisdiction of Venus and Cupid. While desire endows a lover with forensic eloquence at Ars 1.609–10, it leaves a lawyer dumbstruck at Ars 1.85–6. His case is briefly conducted before he even realizes it and new ones follow. The res nouae that appear unexpectedly are the trials of Venus. As Hollis (1977: 86; cf. Pianezzola 1991: 199) notes, in the language of jurisprudence, res noua describes a case for which there is no pre­ce­ dent (cf. Quintilian, Inst. 4.1.33; Digest 1.4.2 [Ulpian]). The counsellor is thus at a loss, faced with a legal situation of which he has no experience. The reference to the trials of love as a legal case without precedent further points to love as the primary source of law. What is more, res nouae is the standard term for revolution or rebellion— erotic attraction is here a radical return to the very roots of the legal system. As the origin of law, love has no legal precedent. Only Ovid’s lex amatoria can help the advocate with his predicament. Thus, love does not render legal expertise irrelevant but calls for a deeper study of the law. Love transforms patrons who would defend their clients in court into clients who are in need of legal support. Ovid is an authority in amatory law who can provide legal advice to inexperienced lovers and defend them in the court of Love. Venus, Julius Caesar’s ancestress, virtually owns the Forum Iulium. Elegiac love is first excluded from the forum and then occupies it as a sovereign exception. Amor imposes his superior laws upon the centre of legal action, while standing above it. The laws of Love both conquer the forum and keep their distance from it. In Ars 3.433–54, the praeceptor points out the types of men who should be avoided in order to keep his students away from litigation. The ultimate goal of a womanizer may be literally theft. The deceitful man is described as a thief in a passage that revolves around the confluence of the elegiac and legal meaning of fur (lover/thief) and crimen (extramarital affair/accusation):

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Sexperts and Legal Experts  269 forsitan ex horum numero cultissimus ille fur sit, et uratur uestis amore tuae. ‘redde meum’ clamant spoliatae saepe puellae, ‘redde meum’ toto uoce boante foro. has, Venus, e templis multo radiantibus auro lenta uides lites Appiadesque tuae. sunt quoque non dubia quaedam mala nomina fama: deceptae multi crimen amantis habent. Ars amatoria 3.447–54 It may be that the most refined of all from that crowd is a thief, and is burning with passion—for your clothes! ‘Give mine back!’ That’s what girls often shout when they’re robbed. ‘Give mine back!’ Their cries bellow through the whole forum. Venus, from temples gleaming with gold, you look unmoved upon such quarrels, and so do your Appian nymphs. There are certain wicked names, too, that have a certain reputation: many men bear the charge of deceiving a lover. (trans. Hejduk 2014 modified)

The formula redde meum clearly refers to legal process.38 The girls have been despoiled of their clothes and resort to the courtroom in order to reclaim their property. But Venus, like a bored judge, looks indifferently at the litigation. The golden temple of Venus literalizes the epic formula ‘golden Aphrodite’, suggesting that Venus herself is too greedy to support the petty claims of despoiled women (cf. Gibson 2003: 283). The goddess of love discourages litigiousness— ἔρως stands in opposition to ἔρις (cf. Chapter  5). While in Ars 1.79–88 we saw that Venus Genetrix imposes the laws of love on the forum and introduces novel trials, in Ars 3 she does not favour lovers who bring lawsuits to her forum. The laws of Venus may dominate the courtroom, but the Roman forum is not the place in which disputes between lovers should be settled. Lawsuits are 38 Cf. Her. 12.201–2, Medea’s plea for the recovery of her dowry (quoted in Chapter 5).

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subjected to desire but unable to regulate it. Ovid writes his Ars amatoria, because he does not want his students to end up in court. Ovid revisits the Forum Iulium in the Remedia. His advice is again that lovers or spouses must avoid litigation. Love resolves conflict independently. The legal procedures of the forum are power­less in comparison with Amor’s sovereign adjudication. Unlike the sharp distinction between the quarrels of marriage and the affection of extramarital affairs that is drawn in Ars 2.151–8 (see Chapter 5), the corresponding passage in the Remedia seems to apply the laws of love to all couples, married and unmarried. Litigation is useful in love only as a means of fanning the flames of the desire that is a prerequisite for a healthy relationship. The lawsuit is thus instrumental, a performance that can highlight the superior law of attraction: turpe uir et mulier, iuncti modo, protinus hostes; non illas lites Appias ipsa probat. saepe reas faciunt, et amant; ubi nulla simultas incidit, admonitu liber aberrat amor. forte aderam iuueni; dominam lectica tenebat: horrebant saeuis omnia uerba minis. iamque uadaturus ‘lectica prodeat’ inquit; prodierat: uisa coniuge mutus erat. et manus et manibus duplices cecidere tabellae, uenit in amplexus, atque ‘ita uincis’ ait. tutius est aptumque magis discedere pace, nec petere a thalamis litigiosa fora. munera quae dederas, habeat sine lite, iubeto: esse solent magno damna minora bono. Remedia 659–72 It is shameful for a man and a woman to be allies one minute, foes the next. The Appian herself disapproves of such lawsuits. Often men put them in the dock, then love them: where no strife has occurred, Love wanders off forgotten. By chance, I was acting as a legal counsel for a young man; his lady rode by in a litter; all his words were bristling with savage threats. He was about to sue her. He said, ‘Come out of the litter!’ She came. At the sight of his wife, he was struck dumb. His hands fell, and the folded tablet fell from

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Sexperts and Legal Experts  271 his hands; he took her in his arms and said, ‘You win!’ It is safer and more suitable to separate in peace, not head from the bedroom to the litigious forum. The gifts you gave—command her to keep them without dispute; that smaller loss tends to be for the greater good. (trans. Hejduk 2014 modified)

The Appian nymph does not approve of lawsuits between partners in love. Ovid gives an example illustrating that love resolves litigious conflict. In his story, a young man brings charges against his partner (the reference to the woman as both ‘mistress’ (domina) and ‘wife’ (coniunx) renders her marital status unclear).39 The beloved woman is the defendant (rea) and the young man the plaintiff. In the notebook (tabellae), there is the formula which the young man was planning to recite and thus summon her to court (cf. Am. 1.12.23–4 and Henderson 1979: 120–1). But the notebook falls from his hands once he sees his beloved lady. The sight of a de­sir­ able woman puts an end to legal procedures before they even begin. The man’s silence at the sight of his beloved recalls the dumbstruck lawyer in Ars 1.85. With the agreement of the prosecution, the woman wins the case and the man’s heart (‘ita uincis’). In this vignette, Ovid plays the role of the youth’s lawyer; aderam iuueni has the meaning of acting as a legal advisor for the young man (cf. Ars 3.531).40 Ovid’s advice is that the forum is not the right place for lovers and spouses to resolve disputes. If their differences are irreconcilable, they can decide to separate without recourse to law courts. The transference of marital problems from the privacy of the bedroom to the forum is discouraged.41 In fact, a man could summon his ex-wife to court to reclaim any gifts given to her during their marriage. This is because Roman law prohibited gifts between husbands and wives (see Digest 24.1.1, with Treggiari 1991: 39  On the ways in which Latin love elegy uses the lexicon of Roman marriage to describe relationships other than iustum coniugium, see James (2012b). 40  Henderson (1979: 120) points out that Ovid’s class must have undertaken the duty of supporting a friend in court (adesse amico in causa), but argues that Ovid is not acting as an aduocatus (‘advocate’) or testis (‘witness’) here, because the proceedings described are preliminary to a court hearing. Elsewhere in Ovid adesse describes the job of a jurisconsult or a legal expert (see Ars 3.531, with Gibson 2003 ad loc.). The young man of the story is in need of Ovid’s expertise in law and love. 41  Rem. am. 670 thalamis implies the bedchamber of a married couple.

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366–71; Coffee 2013: 77–81). In practice, it was common for husbands and wives to give each other gifts. The recipient would treat them as his or hers, but in law the gifts remained the donor’s. If divorce followed the gift, the donor might reclaim his or her property. Jurists seem to have spent a great deal of their efforts responding to the challenges of the prohibition on gifts between spouses and the issue of their restoration after divorce or death. There was disagreement, for instance, about whether a wife could acquire by usucapion after divorce what her husband gave her during their marriage (see Digest 41.6.1.2, with Treggiari 1991: 371). In view of lines 671–2, Ovid’s young friend presumably wanted to claim the gifts he had given to his ex-wife through an action propter res donatas (see Henderson 1979: 120), until he was overwhelmed by her beauty. In his capacity as a legal authority, Ovid advises against reclaiming gifts that were once given in love. The elegiac poet here engages with juristic discourse about the recovery of gifts given not only to wives but also to prostitutes. In his sustained attempts to tease his readers with the sociolegal nature of the relationship, the poet’s ruling on the ownership of gifts after the end of the affair further engages with the prostitutes’ right to keep the gifts they received. Under Roman law (see Digest 12.5.4.3 [Ulpian, Marcellus, Labeo]; 39.5.5 [Ulpian]), meretrices had the right to keep any donations and payment made to them. A case of a man suing for the recovery of gifts given to a prostitute would be a condictio ob turpem rem/ causam.42 In the condictio ob turpem rem, money given for dis­ honourable purposes could not be recovered by law. Turpitudo could taint both the giver and the receiver or either the giver or the receiver. When it comes to remuneration to prostitutes, recovery was excluded on the ground of the disgrace of both parties (turpitudo utriusque), until Labeo introduced a novel rationale which recognizes the turpitudo of the giver alone (turpitudo dantis):43 Sed quod meretrici datur, repeti non potest, ut Labeo et Marcellus scribunt, sed noua ratione, non ea, quod utriusque turpitudo uersatur,

42  See Zimmermann (1996: 885–8) for condictio ob turpem causam. 43  McGinn (1998: 324–5) argues that this rationale originates with Labeo.

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Sexperts and Legal Experts  273 sed solius dantis: illam enim turpiter facere, quod sit meretrix, non turpiter accipere, cum sit meretrix. Digest 12.5.4.3 [Labeo-Marcellus-Ulpian] On the other hand, what is given to a prostitute cannot be recovered, as Labeo and Marcellus write, but under a new rationale, not that which imputes disgrace to both parties, but one which attributes disgrace to the giver alone, for [they say] she does behave disgracefully, since she is a prostitute, while she does not accept money disgracefully, being a prostitute. (trans. McGinn 1998: 324)

Ovid’s advice not to seek the recovery of gifts given to a mistress by going to the law courts is thus the sound recommendation of a legal expert. The future imperative iubeto once more suggests the jurisprudential authority of the elegiac poet.44 Turpe (659) thus implies a condictio ob turpem rem, the legal context within which  jurists rule that money given to prostitutes cannot be recovered. But Ovid’s definition of turpitudo is not related to the disgrace of giving gifts to prostitutes or the ban on gift-giving between spouses. What is disgraceful for the elegiac poet is for a man and a woman, once joined in love, to resort to litigation in order to recover financial losses. If love is the motivation for giving gifts, those donations cannot be reclaimed by resorting to the law courts. Love thus guarantees the legality of giving. In this case, Ovid may anticipate the rationales of later jurists. Ulpian rules that gifts given out of affection are legitimate: Affectionis gratia neque honestae neque inhonestae donationes sunt prohibitae, honestae erga bene merentes amicos uel necessarios, inhonestae circa meretrices. Digest 39.5.5 [Ulpian]

When they are made out of affection, neither honourable nor dishonourable gifts are prohibited. Honourable gifts are those made 44  Henderson (1979: 120) points out that Rem. am. 671 alludes to the formula tuas res tibi habeto, ‘You should have your own possessions for yourself,’ which was used in compulsory divorce (repudium).

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274  Law and Love in Ovid to deserving friends and relations; dishonourable ones are those made to prostitutes.

It is extraordinary that honourable and dishonourable affairs fall under the same category, provided that affection motivates giving. Note, for instance, the etymological connection between deserving friends (merentes amicos) and prostitutes (meretrices) in the jurist’s text. In this passage, affectio, as McGinn (1998: 336) argues, falls under the regime of gifts made between spouses. Yet, as we have seen, these gifts were void in the eyes of the law.45 This is why Ulpian does not include gifts given to wives in his examples of ­honourable donations, even though issues of affectio and honour strongly suggest a husband’s gifts to his wife. What is more, the opposite of the meretrix is the matrona, not male friends (amici/ necessarii). In a reasoning that resembles the poetics of Latin love elegy, extramarital affairs correspond to the reciprocal bonds of amicitia. It is striking that affectio here not only applies to gifts given to prostitutes as well but also justifies the giving. The jurist acknowledges that there might be something more in the gift to a meretrix than a commodity transaction of cash for sex—an affective or emotional bond that motivates and legitimates giving. In Latin elegy, love overrules the moral and social segregation of women into honourable matrons and dishonourable prostitutes. We see that affectio has a similar effect in Ulpian’s reasoning. The jurist and the love poet are in agreement. Ovid is a jurist whose legal advice aims at settling disputes without resorting to the courtroom. His doctrine does not differentiate between the social and moral status of women, but applies to both married and unmarried couples. A husband who gives gifts to his wife should not ask her to return them, just as a man should not reclaim gifts given to his mistress. When Ovid distinguishes between a wife (uxor) and a girlfriend (amica), he defines those two categories with reference to the law but renders the social status of women irrelevant. A ‘wife’ is associated with litigation and coercion, 45  These gifts were void in accordance with the mores of the Republic and were forbidden by law possibly under the marital legislation of Augustus (see Kaser 1971: 331; cf. Henderson 1979: 120).

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while a ‘girlfriend’ with love and freedom (cf. Ars 2.151–8). In a passage that evokes the legalistic context of turpitudo, a woman who marries in order to increase her father’s property is presented as being no different from a prostitute who sleeps with a man for money: Nec bene conducti uendunt periuria testes, nec bene selecti iudicis arca patet; turpe reos empta miseros defendere lingua, quod faciat magnas, turpe tribunal, opes; turpe tori reditu census augere paternos et faciem lucro prostituisse suam Amores 1.10.37–42 It is not honourable for witnesses to make false oaths for gain, nor for the chosen juror’s purse to lie open for the bribe. It is base to defend the wretched culprit with purchased eloquence; the court that increases its wealth is base; it is base to swell a patrimony with a revenue from your bed, and to prostitute your beauty for a price.

Bribing a judge is a case of turpitudo utriusque (see Digest [Paul] 12.5.3, with Zimmermann  1996: 846).46 The corrupt juror is here the Roman version of Hesiod’s ‘gift-devouring lords’ (Works and Days 38–9). The poet’s obsession with what is ‘ugly’ or ‘disgraceful’47 is a main preoccupation of jurisprudential discourse; turpis and turpitudo in particular are commonly used to describe the promiscuity and social disgrace of prostitutes in the eyes of the law (see McGinn 1998: 107–9, 132–8; 324). That Ovid applies the law’s label of disgrace to married women who marry for profit is striking (at least as striking as Ulpian’s application of affectio to gifts given to prostitutes). A commodity exchange is the definition of prostitution, and thus the financial motives of certain marriages make them

46  Am. 1.10.39 refers to the lex Cincia, which forbade advocates from receiving payment for their services. Augustus revived this law; see McKeown (1989: 298); Coffee (2013: 85). See also Chapter 2 (on Am. 1.15.5–6). 47 Cf. Am. 2.17.1–2 Si quis erit, qui turpe putet seruire puellae, / illo conuincar iudice turpis ego. ‘If there be one who thinks it base to be a slave to a woman, before his judgment seat shall I be proved guilty of being base’; cf. Ars 3.367.

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indistinguishable from prostitution. Without love or affectio ­maritalis, a marriage is disgraceful. Elegiac love is based on the economy of reciprocity (see Coffee 2013; Strong 2016: 34–5). The commodification of sex is outlawed. The relationship between the elegiac lover and his beloved follows the protocols of amicitia—it is virtually a relationship between a patron and a client. Within these parameters, Ovid advises his female students who have an affair with legal pro­fes­sionals to take advantage of their lovers’ expertise: munera det diues: ius qui profitebitur, adsit: facundus causam nempe clientis agat. carmina qui facimus, mittamus carmina tantum: hic chorus ante alios aptus amare sumus Ars amatoria 3.531–4 The rich man should give gifts; the lawyer should give legal aid; the orator, of course, plead his client’s case. Those of us who do songs—we should send songs alone: this chorus, we are more suited for love than anyone. (trans. Hejduk 2014)

Elegiac poetry is here equivalent to the services of lawyers and advocates. The jurisconsult and the forensic orator are integrated in the economy of elegiac reciprocity (cf. Labate  1984: 78–89). In accordance with the etiquette of amicitia, a patron had to provide legal support to his client. In elegy, the poet/lover offers his services to his amica by immortalizing her in his carmina and expects sexual favours in exchange. The elegiac affair is construed on the model of patronage. The lover’s elegies (carmina) seemingly contrast but fundamentally converge with the services of legal professionals. In the Ars amatoria, Ovid is not only a love poet, but also a jurist and orator.

Love’s Autonomy The independent discourse of sexuality fleshes out a code of conduct that overrules the traditional distinctions between honourable

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and dishonourable affairs as well as the social segregation of women into matrons and prostitutes. While Augustan legislation enforced such sociomoral categorizations, the praeceptor amoris points to the autonomy of amatory law in defining sexual morality. A case in point is the first couplet of the Ars amatoria’s inuentio, which brings up a tension between what is permitted by Roman law and what by the laws of love: dum licet et loris passim potes ire solutis, elige cui dicas ‘tu mihi sola places.’ Ars amatoria 1.41–2 While it is permitted and you can go everywhere on a loose rein, pick a girl and tell her: ‘You alone please me.’

Ovid’s dum licet implies the legal restrictions on the carefree period of amatory pursuits. Emilio Pianezzola reads this couplet as drawing a distinction between the frivolous love affairs of youth and the serious commitments of a more mature age.48 The licence granted to young men’s playful affairs with prostitutes is counterbalanced by grown-up men’s legal obligations to marriage. The leisure of youth gives way to the business of adult life. This transition from youthful playfulness to adult responsibilities is a defining characteristic of Roman comedy. In Terence’s Adelphoe, for instance, the lenient father Micio says that young men should be allowed to have affairs with prostitutes (101–10). The rationale is that this licence should be given to youth, so that inappropriate love affairs do not occur at a more responsible age. Ideally, a young man will eventually get fed up with prostitutes and devote himself to the good old Roman values. Rules are thus most effective when they are imposed internally. Even the censor Cato approved of a young Roman whom he saw coming out of a brothel, since sex with prostitutes protected Roman citizens from committing adultery with respectable ladies (see Horace, Sat. 1.2.31–5). From that perspective, Ovid’s dum licet 48  Pianezzola (1991: XXIII and on Ars 1.41–2). For a similar approach, see Labate (1984: 34–5).

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refers to youthful extramarital affairs with prostitutes, that is, affairs that do not break adultery laws. As the slave Palinurus puts it in Plautus, Curculio 37–8: dum ted apstineas nupta, uidua, uirgine, / iuuentute et pueris liberis, ama quidlubet. ‘So long as you stay away from the married woman, the widow, the maiden, the youth, and freeborn boys, love whatever you fancy.’ Young men should make sure to choose eligible women for their playful loves. In his Pro Caelio, Cicero employs similar rhetoric. Caelius is cast as an adolescens from Roman comedy and Cicero reminds the jurors that licence to playful loves is traditionally granted to young men (Cael. 48). Cicero appeals not only to the licentia of his age but also to the customs of the ancestors (48 maiorum consuetudine atque concessis) when it comes to young men’s love affairs with meretrices. He thus makes sex with prostitutes part of the mos maiorum. Ovid’s Ars amatoria often gives the impression that it is addressed to jurors,49 and at this point it echoes the rhetoric of the Pro Caelio. Cicero’s licentia corresponds to Ovid’s dum licet and Cicero’s concessis parallels Ovid’s concessaque furta (Ars amatoria 1.33), the wittily subversive ‘legitimately illegitimate affairs’ that forms part of the legal language of the programmatic disclaimer.50 Ovid seems to subscribe to a long tradition of Roman comedy and rhetoric according to which it is permitted for young men to indulge in affairs with prostitutes. Such frivolous liaisons ultimately protect the chastity of Roman women and buttress traditional Roman morality. This interpretation is certainly legitimate, but there is another way of reading Ars 1.41–2, which renders the traditional concerns of Roman law and the Augustan legislation irrelevant. Ovid’s focus here is not necessarily on young age in general and its entitlement to playful love affairs in particular, but on a period when a man has not lost his freedom due to love’s constraints. Freedom does not follow the laws and customs of conventional morality but is subject 49  The disclaimers are the most prominent examples (e.g. Ars 1.31–4, 2.599–600). See Chapter 5 and the section ‘The Dress Code’ below in this chapter. 50  Cf. Seneca, Controu. 2.6.11 concessis aetati uoluptatibus utor et iuuenali lege defungor; id facio quod pater meus fecit cum iuuenis esset. ‘I am enjoying the playfulness granted to my age and taking advantage of the law for young men. I am doing what my father did when he was young.’

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to the constrictions of amorous passion—to the independent jurisdiction of Amor. Hollis (1977: 41) points out that dum licet implies that there might come a time when Ovid’s addressee is really in love and no longer a free agent. In the world of Roman love elegy, Cupid enslaves the lover and puts an end to his free will. Freedom is something one enjoys before one falls in love. Within the generic framework of Roman love elegy, Hollis’s reading makes sense, especially if we take into account another Ovidian couplet that begins with dum licet: dum licet, et modici tangunt praecordia motus, si piget, in primo limine siste pedem. Remedia 79–80 While it is permitted and moderate emotions touch your heart, even if it is unpleasant, stop your step at the edge of the threshold.

Here Ovid is not talking about the Roman legal system or the free rein given to youthful liaisons with prostitutes. Instead, the poet refers to the first symptoms of erotic desire. Not unlike a disease, love can be cured more easily and efficiently at the start, before the infection spreads throughout the body and the mind (cf. Lucr. 4.1068–72). Resist passion before it is too late and thus impossible to fight back, advises the poet of the Remedia. The message of Ars 1.41–2 is similar. Rational selection (elige) is possible at this early stage of looking for the right woman. The first stage of a conscious and calculated choice of the appropriate object of desire will in­ev­it­ ably end once the lover is entangled in the nets of monogamous obsession. The commitment of tu mihi sola places signals the beginning of the end of a lover’s freedom. To be sure, such confession is disingenuous, and the beloved’s uniqueness is undermined by the banality of the statement.51 In the Ars, the echo of the conventional statement of elegiac devotion is part of a self-conscious strategy of 51  Ovid here quotes and encourages his students to repeat the elegiac lover’s conventional declaration of faith to his exclusive beloved (see Prop. 2.7.19; [Tib.] 3.19.3; Ov. Am. 1.3.15–16).

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seduction, not a sincere confession of true love.52 Yet love comes to life when men or women follow the script of literary tradition. While the praeceptor urges his students to parrot a tag of Latin love elegy, there is always the danger that the man who plays the role of the lover will actually fall in love (see Ars 1.615–16). Feigned love becomes real and, as an antidote to true passion, Ovid recommends that men should have two or, if possible, more girlfriends (Rem. am. 441–2; cf. Lucr. 4.1068–78). An exclusive desire for a single woman can be the source of suffering that leads to loss of freedom. Ovid’s tu mihi sola places echoes a common elegiac dictum. This iteration suggests that we fall in love by reperforming the precepts of Latin love elegy (cf. Chapter 4). But there is more to it. In a coup­ let that brings up issues of love and lawfulness, Ovid’s advice activates a specific reference to Propertius’ tu mihi sola places (2.7.19). This intertext is significant because Propertius 2.7 celebrates the triumph of elegiac love over marriage legislation.53 Propertius begins his poem by stating that Cynthia is happy because a law that threatened their affair is now repealed.54 In a twist of the elegiac recusatio, Propertius declares that Caesar’s Jovian arms are mighty in war but have no power over love affairs (2.7.3–6). The nature of Propertius’ love is above the law of Rome and his Roman duty to father children. The confession of his exclusive love for Cynthia (tu mihi sola places) emphasizes that the uniqueness of his affair defies social norms and law’s categorizations (marital, extramarital, illicit, adulterous). Cynthia can rejoice in the repeal of a marriage law, but Propertius reminds us that imperial legislation has no power over true love anyway. In this context, the tag mihi places evokes the 52 Ovid will later advise his students to seduce the maid before seducing the lady (Ars  1.351–98) and instruct them on how to be successfully unfaithful to their girlfriends (Ars 2.373–466). 53  On Propertius’ stance on Augustus’ marriage law in this poem, see Cairns (1979); Stahl (1985: 140–56); Gale (1997: 86–90); Beck (2000); Miller (2004: 143–6). Heslin (2018: 193–6) argues that Propertius has tailored his depiction of Octavian’s legislative acts to the needs of his polemic with Virgil. 54  We do not know much about the legislation and its contents, and reconstructing the law from Propertius’ elegy is an unreliable method. On this issue, see Cairns (1979); Stahl (1985: 142–3); Beck (2000). Badian (1985) argues that this was not Augustus’ law but an old law repealed by Octavian in 28 bce along with other triumviral measures. He speculates that the repealed law was about taxation of bachelors. Badian’s theory is not supported by Propertius’ text, or actually by any other evidence, and did not find many followers; see Treggiari (1991: 59–60); Beck (2000), who offers the radical and rather unconvincing solution that the author of Propertius 2.7 was not Propertius and the poem was composed later.

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le­gis­la­tive formula senatui/principi placuit. Elegiac diction has the force of law and love is the sovereign legislator. Cynthia alone pleases the poet and sola pits the elegiac puella not only against other women but also against the Augustan ideals of fighting battles and fathering children for Rome.55 Ovid’s Propertian echo in Ars 1.42 reminds his readers that the love for a special woman matters more than anything else and that the shackles of elegiac passion are stronger than any legal constrictions. The reading of Ars 1.41–2 as referring to young men’s affairs with prostitutes that do not break the law is further problematized in view of another couplet that begins with dum licet and refers to young age as the right time for enjoying love. Ovid here instructs women: dum licet et ueros etiamnunc editis annos, ludite: eunt anni more fluentis aquae. Ars amatoria 3.61–2 While it is permitted and you can still declare your real age, have fun; the years pass like flowing water.

The diction refers to the professio, the formal declaration before a magistrate or official, in this case the statement of one’s age before the censor (see Gibson  2003: 112; cf. Cicero, Leg. 3.7; Ovid, Ars 2.663–4, with Janka 1997: 462–3). The censor did not simply note a woman’s age but also her social and moral status. From that perspective, dum licet may again imply the status of a prostitute that allows her to have fun in sex without fearing the law. But in this case, age, not sexual morality, seems to govern the laws of love. The praeceptor sounds like an old procuress instructing a young cour­ tesan to take advantage of her youth (cf. Am. 1.8.49–50). If these are lessons for prostitutes, no law is broken. But Ovid both echoes and denies the erotodidaxis of procuresses. At Ars 3.97, he declares that he does not wish to prostitute his students and at 75–6 he imagines a woman swearing that she has had grey hairs since maidenhood (quasque fuisse tibi canas a uirgine iures / sparguntur . . . comae, ‘and those grey hairs you swear you have since you were a maiden are 55  Cf. Rothstein (1966 ad loc.); Stahl (1985: 151–2).

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spreading’). The woman’s oath about her age creates an irresolvable conundrum about her social status, due to the key word uirgo. Does the word refer to young age without reference to a woman’s virtue or to respectable maidens who are supposedly excluded from the Ars? After all, all prostitutes were once virgins. The primary meaning of uirgo seems to refer to marriageable maidens, though there are some exceptions (see Gibson 2003: 117). The main point is that Ovid casts a woman’s age as the main criterion for her eligibility for love affairs and in doing so he blurs the social status of his female readers. The laws of love thus distinguish between women on the basis of young/desirable vs old/undesirable, not on the basis of prostitutes vs virgins/matrons. The natural and universal law of ageing is thus pitted against the conventional morality that was legally enforced under Augustus. In sum, there are two ways of reading Ars 1.41–2: one is concerned with Roman laws and customs, while the other refers to the laws of elegiac passion. Both of these readings deal with time and timing: the former refers to a transition from the frivolities of youth to the serious responsibilities of adulthood, while the latter refers to a transition from the playful affairs of a libertine to the dire ­constraints of monogamous passion. Both interpretations are valid and both should be taken into account, but it should be noted that they coexist in opposition. In Freudian terms, this is a case of Kompromissbildung, a semiotic manifestation which makes room, simultaneously, for two opposite meanings that stand in an irreconcilable relationship to one another.56 We can choose to interpret the couplet as Ovid’s subscribing to conventional morality and validating Augustus’ adultery laws, but we cannot ignore that an alternative reading trumps traditional Roman mores. The reader is presented with a similar puzzle in Ars 3.61–2. If Ovid instructs prostitutes, he is not breaking the law. But dum licet here refers to a woman’s young age, not to her social status. Youth, not imperial le­gis­la­tion, dictate the laws of love. The tantalizing ambiguity between the independence of amatory law and the reference to Augustan legislation ­suggests their interdependence. The language of heteronormative 56  See Casali (2004: 326) for Kompromissbildung in the Aeneid.

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morality and the lover’s autonomous discourse uncannily reflect each other.

The Dress Code The Ars amatoria revolves around a tension between law and sexuality. Both claim the power to define morality and legality, while each is construed in relation to the other. The emergence of sexuality as an autonomous discourse coincides with the prince’s le­gis­la­ tive attempts to link sexual behaviour with social identity. This is not a chance but the result of a fundamental interdependence and competition between legal and sexual constructions. Ovid at times refers to the lex Iulia in order to declare that he observes the law. Yet, by referring to Augustan legislation, he not only interprets it but also points to the juridico-discursive independence of sexuality. As I argue in this chapter, the disciplinary integrity of the jurists is to be examined vis-à-vis the autonomous expertise of the praeceptor amoris. The Ars amatoria is Ovid’s juristic intervention in Augustus’ moral legislation. For the first time in Roman history, Augustan law subjected ­sexual morality to public trials. By laying down the law that governs private love affairs, the praeceptor amoris becomes instantly entangled in the knots of Augustan legislation. The lex Iulia makes ­private and domestic matters part of the commonwealth’s agenda. As Kristina Milnor (2005: 153–4) notes, Augustus’ moral legislation creates a certain paradox, one born out of the attempt to construct private morality through the imposition of legislation. The ­marriage legislation violates the very domestic integrity it seeks to protect. Ovid’s laws of amatory conduct revolve around a similar paradox. In the Ars amatoria, the private spaces of love affairs are the public monuments of Augustan Rome, and the autonomy of amatory ­conduct is guaranteed by the rules of an instructor who dictates even the positions of lovemaking in the privacy of the bedroom.57

57  On the transformations of the public monuments of Augustan Rome in the elegiac cityscape, see Welch (2005); Keith (2015).

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Scholars have noticed that the emphasis on the moral and social status of women is an important aspect of Augustus’ moral legislation (McGinn  1998: 141–71, 208–9; Milnor  2005: 140–85). The sexual act of a married or marriageable woman with any man is what defines adultery and criminal fornication. By contrast, the social status of a sexually active man (married, unmarried, slave) is irrelevant. The lex Iulia aimed at polarizing Roman women into two social categories, prostitute and mater familias. It was an important part of the law that this polarization be publicly visible. Each group was to be identified with its own type of distinguishing dress: the stola and palla were the distinctive markers of respectable women, while prostitutes had to don the toga.58 A convicted adulteress had to wear the toga and was thus not differentiated from a prostitute. The public display of shame and modesty is an intriguing paradox of Augustan legislation. As Kristina Milnor (2005: 171) argues, the point of the law was to subordinate private, feminine needs to the public good, but in doing so it gave those needs a public visibility— a ‘place’ in the discourse of law. Augustan law aims at confining matrons in the realm of domestic virtue but it actually makes the social, marital, and moral status of women the centre of public attention. Because of the centrality of women in Augustan law’s moral and social constructions, I shall focus on the ways in which Ovid defines, instructs, and fashions his female readers in the Ars amatoria. Roy Gibson (2003: 32–5, 149–50, 162–3) showed that women who follow Ovid’s advice on dressing in Ars amatoria 3 will resemble neither the traditional matron nor the stereotypical whore. For Gibson, Ovid encourages his female students to choose their hairstyles and clothes according to aesthetic rather than moral criteria. This substitution clashes with the spirit of the lex Iulia, which attempted to polarize women into prostitutes and matrons. Gibson’s thesis is that Ovid’s women should be identified with the class of 58  See McGinn (1998: 141–71, 208–9), who argues that the polarity of meretrix and mater familias sought to restore a sense of order and clarity to women’s status. This hierarchy of status for women was sealed through the manipulation of clothing and symbols as unmistakable badges of honour and shame. For McGinn, Augustan legislation enforced a traditional social and moral division. See also Gibson (2007: 71–114).

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freedwomen (libertinae). This choice reflects the praeceptor’s stress on moderation. The extremes of virgins and matrons, on the one hand, and whores and slaves, on the other, should be avoided for the freedwomen, a sort of ‘middle class’ in the hierarchy of sexual availability and a grey area in Augustan legislation. I build on Gibson, but argue that Ovid’s target audience is not restricted to freedwomen. Ovid does not simply reproduce the social classes of women in accordance with Augustan legislation, but is actually constructing his own categories. This does not mean that Ovid’s puellae are literary devices unrelated to social realities.59 Ovid’s women reflect a society that follows a code of conduct that exists in parallel and in tension with Augustan legislation. There is a significant gap between the law’s desire to control female sexuality and the social realities of women who refused to be labelled as either matrons or prostitutes. Ovid’s Ars revels in this gap. What the law says women should do should not be confused with what women do. Anise Strong (2016) argues convincingly that Roman women of any status often defied the polarized stereotypes of respectable matrons or virgins and disreputable adulteresses or whores. The binary division of women into wives and prostitutes is a desideratum of Augustus’ patriarchal legislation, but it more often than not remained the legislator’s unfulfilled desire. As Strong shows, the life choices and sexual activity of Roman women reveal that the law’s attempt to polarize them with reference to sexual morality was not always successful. In Ovid, the blurred lines between prostitutes and matrons encompass the entire territory of sexual morality. The moral legislation fails if it coerces without acknowledging love’s sovereign jurisdiction. When the laws of the state aim to regulate internal morality, the love poet claims that freedom of choice is the foundation of legality. Ultimately, the praeceptor amoris employs an antinomian discourse in order to establish an amatory jurisprudence. In fact, his attempt to define and control women is at times no less paternalistic than Augustan le­gis­ la­tion. The independence of sexuality may liberate women from the 59  On the opposite—now mainstream—view that the elegiac puella is a ‘written woman’ (scripta puella), see Wyke (2002); (2006).

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constraints of the emperor’s laws, but it also sets a network of rules that may be equally prescriptive and coercive. Ovid’s laws blur the lines between prostitutes and matrons, but polarize women into attractive and unattractive. The clash between the praeceptor’s criteria and the emperor’s laws features in an oft-quoted passage that ostensibly declares Ovid’s obedience to imperial legislation: usus opus mouet hoc: uati parete perito; uera canam. coeptis, mater Amoris, ades. este procul, uittae tenues, insigne pudoris, quaeque tegis medios instita longa pedes: nos Venerem tutam concessaque furta canemus inque meo nullum carmine crimen erit. Ars amatoria 1.29–34 Experience sets this work in motion: obey the experienced seer; I shall speak the truth. Support, mother of Love, my initiative. Stay away, slender fillets, symbol of modesty, and you, long hem, who cover half the feet: we shall sing of safe love and permitted cheating, and there will be no wrong in my song.

As I have argued in Chapter 5, the allusion to the poet’s jurisprudential authority (peritus) and a declaration of speaking the truth suggest the setting of a legal dispute. Venus appears to defend the poet in a court of love that evokes the criminal courts of moral le­gis­la­tion. This disclaimer, which clearly refers to the lex Iulia, is thus presented as a testimony in a lawsuit. Scholars agree that Ovid here identifies married women by reference to their clothing (Hollis 1977: 37; Ingleheart 2010: 230; Gibson 2003: 31). This identification is in accordance with the letter of the lex Iulia, which established a strict dress code as the visual marker of social class and morality. Ovid testifies in court that he does not break the adultery laws by sending respectable women away. Yet critics also point out the ironies of the disclaimer. Jennifer Ingleheart (2010 on Tristia 2.247–50) notes that ‘[t]he disclaimer is a humorous attempt to advertise the racy nature of the Ars rather

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than a concession to conventional morality. Such a warning can act as a spur to take part in forbidden activities.’ Ingleheart is certainly right: her comment is in line with Ovid’s view that the prohibitions of the lex Iulia are an invitation to commit adultery (see Am. 3.4.11 desine. . . uitia irritare uetando, ‘cease to provoke vice by forbidding’ and my discussion in Chapter 3). Both Ovid’s ritual prohibition and Augustus’ moral legislation are an invitation to profanation and transgression. Roy Gibson (2003: 26) also comments on the am­bigu­ous nature of Ovid’s disclaimers, noting that they ‘appear in contexts which provoke scepticism about their seriousness, and frequently draw attention to, rather than resolve, issues of social and marital status’. This is the case with Ovid’s address to clothing. We can argue that Ovid warns off freeborn virgins and matrons, identified by reference to their clothes, but this is not the only way of reading the disclaimer. It is the clothes that are discarded, not the women, and this is significant. Ovid similarly dismisses a certain style of clothes by addressing them directly at Ars 3.169–70 (quid de ueste loquar? nec uos, segmenta, requiro / nec quae de Tyrio murice, lana, rubes. ‘What shall I say about clothing? I seek neither you, flounces, nor you, wool, who are purple with Tyrian shellfish’). Obviously, Ovid is getting rid of luxurious fabrics here, not of wealthy or greedy women. Thus, the apostrophe to clothes in Ars 3.169–70 has been read as Ovid instructing his female readers to avoid wearing certain clothes, while the similar address in Ars 1.31–4 has been read as excluding women rather than garments. But if we take into account Ovid’s fashion advice in Ars 3.169–70, then we can read his initial disclaimer as the praeceptor’s attempt to discourage his readership from adopting the evident symbols of the matronae. In other words, the praeceptor removes clothes, not female readers, and he thus renders women socially unrecognizable by discarding the outward trappings of chastity (see Ziogas 2014b; cf. Sharrock 2006: 251 n. 22). Ovid’s literary games have serious political consequences. If we follow the communis opinio and read the disclaimer as a metonymy (clothes=women), then Ovid excludes married women from the readership of the Ars amatoria. But if we read it literally (clothes=clothes), then Ovid strips Roman matrons of the

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distinguishing marks of their moral status. The shift between the literal and metonymical sense of the passage transforms Roman matrons into women eligible for Ovid’s playful love affairs. In his letter to the prince, the exiled poet reads the Ars’s initial disclaimer as adhering to the moral legislation and thus instructs the emperor about the right way of understanding his poetry: et procul a scripta solis meretricibus arte summouet ingenuas pagina prima manus. quaecumque inrupit, qua non sinit ire sacerdos, protinus huic dempti criminis ipsa rea est. Tristia 2.303–6 And far off from the ‘Art’, written for prostitutes alone, the first page debars the bands60 of freeborn women. Any woman who intrudes into a place to which the priest does not allow her to go is straight away herself the defendant of a charge from which he is exempted.

Ovid’s self-presentation as a sacerdos alludes to the diction of ritual initiation at Ars 1.31 (este procul). His holiness is innocent, and the guilt shifts to the women who trespassed on forbidden territory (cf. Milnor 2005: 53–8). The poet of the Ars amatoria pronounced the law, and if women did not follow it, they should stand trial. In an attack on jurisconsults, Cicero compares the ritual procedures of their legal actions with mystery cults (see Mur. 25 with Pierre 2016: 87–8). Ovid builds on this comparison, blending together the rit­uals of seers and jurists. In legal terms, Ovid here attempts a ‘shifting of the charge’ (remotio criminis; cf. Gebhardt 2009: 158–9), arguing that it is absurd to charge the pious jurisconsult instead of the transgressor. It is well known that, more often than not, legitimate readings of Ovid’s poetry readily present themselves in order to cover up more subversive subtexts.61 The very fact that Ovid gives a certain 60  ingenuas manus can, of course, mean ‘the hands of freeborn women’, but given the military connotations of invasion, it may refer to the ‘forces of freeborn women’ (see OLD manus 22). Note that summouere can mean ‘to drive off hostile forces, dislodge’ (OLD s.v. 3). 61  On the ways in which Ovid illustrates the open-ended nature of reception and meaning by offering tendentious readings of a wide range of texts in Tristia 2, see Gibson (1999); cf. Rimell (2015: 294) on transferring criminality from writer to reader in Tristia 2.

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interpretation of the disclaimer in his exile poetry should alert us to the presence of alternative readings. The onus of interpreting law and literature shifts from the author to the reader, in this case from the male poet/jurist to the female objects of law and love. But it was the ambiguities in the praeceptor’s disclaimer that gave his female readership the opportunity to remove clothing that excluded them from playful love affairs. The interplay between the literal and meto­nym­ic­al meaning of the disclaimer invites respectable women to Ovid’s adulterous affairs by ostensibly excluding them. It thus blurs the social and moral status of Ovid’s female readership by seemingly defining it. Several disclaimers take on added meaning once we realize that they apparently divide women into social categories, but in fact erase the very distinctions they delineate. Ars 2.599–600 (en iterum testor: nihil hic nisi lege remissum / luditur; in nostris instita nulla iocis. ‘Look, I testify again: nothing unless it is granted by law is in play here; there is no long hem in our games’) reiterates Ars 1.31–4. The setting of a trial in which Ovid testifies is clearly suggested with testor. Coming after Ovid approves of compliant husbands (2.545–6) and digresses on Venus’ notorious adultery with Mars (2.561–98), the statement sounds disingenuous. In contrast to Augustan legislation, Ovid favourably mentions husbands who act as lenones (‘pimps’) and criticizes Vulcan’s exposure of his wife’s adultery.62 In this context, his claim that he is following Roman law can hardly be taken at face value. The irony of Ovid’s declaration is all the more emphatic if we pay closer attention to the fact that he excludes the skirts of married women rather than married women themselves. Ovid’s games of erotic deception (cf. luditur, iocis) can barely square with the strict legal categorizations he is pretending to adhere to. After zooming in on the nudity of an adulterous couple (2.579–84), Ovid states that the long skirts of the matrons have no place in his cunning games of love. The poet’s mannered testimony that there is

62  On Ovid’s approval of men who procure lovers for their wives (cf. Am. 2.5; Ars 2.545–54), men that is, who would be liable to a charge of lenocinium (‘pandering’), see Davis (2006: 34, 82, 106–7) and Chapter  3. On lenocinium under the Augustan adultery law, see Treggiari (1991: 288–90); McGinn (1998: 171–94, 216–47).

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no instita in his love affairs has deceived readers into thinking that wives rather than their clothes are absent from extramarital sex. In his references to the lex Iulia, Ovid leaves open the social and moral status of his female readers. All women are invited to Ovid’s school of love. In Ars 3.27–8, for instance, the poet declares that he teaches his playful games of love to every woman (nil nisi lasciui per me discuntur amores: / femina praecipiam quo sit amanda modo. ‘I teach nothing but playful loves: I shall teach how a woman must be loved’). Various attempts to emend femina say more about scholars’ discomfort with the fact that Ovid invites all women and less about the text itself.63 The generic puellae in Ars 3.57–8 is equally vague: dum facit ingenium, petite hinc praecepta, puellae, quas pudor et leges et sua iura sinunt. Ars amatoria 3.57–8 While my poetic talent is creative, take lessons from here, girls, those whom shame, the law, and your own rights allow.

This is another reference to the lex Iulia, which barely clarifies the social status of the puellae. Roy Gibson (2003: 30–1) is right to note that in this passage ‘Ovid slyly shifts the responsibility for constructing the legal boundaries for the puellae onto the reader in the context of juristic uncertainty about those boundaries.’ In defining his audience here, Gibson (2003: 111) adds, Ovid takes advantage of the legal difficulties created by the phrasing of the law. The ambiguities of the jurists, the oracles of law, meet the playfully am­bigu­ ous poetry of Ovid, the jurisprudent seer. Ovid may say that certain women should not follow his lessons, but in fact it is up to any female readers to decide whether they are interested in playing Ovid’s game or not. The combination of pudor et leges brings together two concepts that are antithetical. Modest behaviour (pudor) is internally regulated, while the law, the lex Iulia in particular, is an external imposition of chastity. What is more,

63  Kenney (1992) reads non proba instead of femina; Mayer (1993) reads Thais. Gibson (2003) prints †femina†.

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defining women who are permitted to have extramarital sex by referring to their pudor is paradoxical. It is the lack of pudor rather than its presence that encourages love affairs. The prostitute is by definition ‘shameless’ (impudica), while pudor is the conventional characteristic of the matrona (cf. Gibson 2003: 111). In other words, the reference to pudor evokes respectable women in a couplet that claims to exclude them. The punchline of the couplet is sua iura sinunt. Gibson (2003: 111) interprets this phrase as referring to the traditional rights of certain women, such as freedwomen, that place them in classes exempted from the Julian law. This interpretation makes sense, but there is more to it: in the context of the lex Iulia, sua iura suggests respectable women who were sui iuris, that is, they were not under the potestas of their fathers or husbands. A young bride, for instance, was sui iuris when it came to choosing a husband (cf. Her. 20.79 with Chapter  4). The lex Iulia gave certain women (e.g. ­mothers of three children) social rights and privileges, such as freedom from male guardianship. This seemingly liberal aspect of the law was related to the legislator’s agenda of making domestic offences, such as adultery, the business of the state. A matron may no longer be under the potestas of her husband, but she may have to give evidence of her moral standards in a public trial. In other words, Ovid’s sua iura refers to women who were free from male guardianship and thus conflates the classes of the freedwomen (libertinae), on the one hand, and the freeborn women (ingenuae), on the other.64 The issue of negotiating the social and moral status of women in relation to the law is a main preoccupation of the Ars amatoria. Ovid’s initial reference to female readers (Ars 1.31–4), for instance, should be interpreted vis-à-vis Ars 3, and in particular Ovid’s fashion tips. The first disclaimer can be read both as an attempt to rid Roman women of the outward trappings of social status and as an implicit call to nudity. Such an approach is suggested again in Ars 64  This further suggests a legal paradox to which Ovid returns repeatedly, namely that prostitutes and ex-slaves enjoy freedom in love, while freeborn women are the slaves of legal restrictions and social norms (see Am. 3.4.33–6, with Chapter 3).

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2.576–600, in which a reference to Venus’ adultery and nudity is followed by a passage declaring that the distinctive clothes of married women have no place in Ovid’s games of love. At the beginning of Ars 3, Ovid’s women appear naked. In a distinctly elegiac twist, Ovid combines epic imagery with sexual innuendo, proclaiming that ‘it was not fair for naked women to run into armed men’ (Ars 3.5 non erat armatis aequum concurrere nudas). Here nudas can be interpreted not just as a pun on the double meaning of ‘unarmed’ and ‘naked’ but also as alluding back to the banished clothes in Ars 1.31–4. At the beginning of Ars 1, the praeceptor dismissed certain clothes for women, and now his female students appear naked at the beginning of Ars 3. Subsequently, one of Ovid’s first tasks is to dress them (3.169–92). Ovid’s section on fashion tips opens with an apostrophe to luxurious garments (169–70), a nod towards rereading and reinterpreting Ars 1.31–4. Thus, undressing and dressing women become part of the Ars’ narrative progression. The work opens with advice to women to take off apparel that would exclude them from playful love affairs. As a result, female readers first appear nude in Ars 3 and then Ovid offers sartorial instructions. If Ovid’s female students follow his instructions, they will resemble neither matronae nor meretrices. The praeceptor’s fashion tips follow aesthetic rather than moral criteria and thus stand in sharp contrast to Augustan legislation. The colour of the skin should be the criterion for picking a suitable colour of clothes, and the shape of the face should dictate the appropriate hairstyle. Beauty is the goal in and of itself, and thus Ovid’s aesthetic laws trump the dress code of Augustan legislation. Yet aesthetics is not necessarily the opposite of morality, since both are concerned with what is becoming. The issue of decus and decorum is the main preoccupation of the moralist and the fashion designer.65 In the end, Ovid and Augustus are two sides of the same coin. They both want to fashion Roman women according to their laws, laws that are closely related to promoting femininity and female virtue as a means of pleasing men. 65  On the importance of the key concept of decorum in the Ars amatoria, see Gibson (2007: 80–6).

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It is indicative of the confluence of the moral and the aesthetic in the Ars that Ovid’s section on clothing begins by enforcing a sumptuary law. As Gibson (2003: 162) notes, Ovid’s removal of gold and purple (Ars 3.169–70), common symbols of female luxury, evokes the provisions of the lex Oppia, which forbade women from having more than an ounce of gold or wearing colourful garments trimmed with purple (Livy 34.1). The repeal of the law as a consequence of women’s public protestations features prominently in Livy and Kristina Milnor (2005: 142–3, 155–85) has aptly showed how Livy’s narrative articulates certain ideas and anxieties about the gendered relationship between private and public life in the age of Augustus. It is telling that the voice of the praeceptor echoes the tribune Gaius Oppius, the author of the law, and the censor Cato, who vehemently defends the lex Oppia in Livy’s account. Both the lex Oppia and Ovid’s version of a sumptuary law aim at controlling women in order to serve male interests. Behind the praeceptor’s advice against luxurious garments lurks the voice of the poor elegiac lover who suffers from his mistress’s greed. Ovid’s fashion tips would be a welcome relief to his male students. But the main point is that the voice of a fashionista who gives advice about stylish and affordable clothes is indistinguishable from the voice of a legislator concerned with women’s morality and the virtue of frugality. The moral and the aesthetic, the serious and the frivolous, the holy and the profane coexist in Ovid’s school of law and love. The praeceptor’s doctrine establishes love as a sovereign exception that revels in the indistinction between following and breaking the law. The induction of Ovid’s female readers is first cast as a religious initiation (Ars 1.31–4). A recommendation to exclude the symbols of female modesty and an implicit call to nudity, the initial disclaimer appears in the context of a religious ritual.66 Nakedness stands for ritual purity and sex appeal.67 While examining the ironies of

66  Ars 2.599–600 (discussed earlier in this section) also has religious overtones since it appears within a section advocating the preservation of ritual secrets. 67  On Ovid’s double take on female nudity as the symbol of purity and sex appeal, see Ziogas (2014b: 742) on the Veneralia in Fasti 4.

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Tristia 2.247–50, which basically repeats Ars 1.31–4,68 Gareth Williams (1994: 206–7) draws attention to the ceremonial diction of the disclaimer. The ritual formula este procul dismisses the un­initi­ated and ceremonially unclean;69 only Ovid, by excluding the matronae, wittily suggests that the profani are his initiates. Again, this reading takes it for granted that Ovid’s address to the matrons’ insignia is the same as an address to the matrons themselves. But if we accept the address to clothing rather than women as meaningful, the effect of Ovid’s reworking of the initiation formula changes radically. Instead of excluding married women from his readership, Ovid inducts them into the art of adulterous love by taking off the symbols of their marital status. The disclaimer is an excellent example of Ovid’s using traditional motifs in order to take his readers by surprise. The ritual cry este procul is paradoxically inclusive rather than exclusive. In an introduction to a course on extramarital affairs, the initiates, quite appropriately, have to take off the clothes that signify chastity and marriage.70 Ovid seemingly excludes respectable women in a passage that transforms them into students eligible to take his course. The slender fillets as a ‘badge of modesty’ (Ars 1.31 insigne pudoris) suggests the paradox of displaying chastity, of making publicly visible a quality whose value depends on privacy. Against the background of the lex Iulia’s dress code, Ovid subtly brings up the superficiality of the moral legislation. It is significant that insigne can refer to outward trappings as opposed to reality.71 The dress code imposed by the lex Iulia guarantees nothing more than the appearance of virtue. What is more, it is grist to the praeceptor’s mill. No shame should remain once the symbols of shame that cover the female body are removed. The disclaimers of the Ars are in line with Ovid’s advice to his 68  The only difference is that Ovid writes nil nisi legitimum (Tr. 2.249 ‘nothing unless it is lawful’) instead of nos Venerem tutam (Ars 1.33). 69  Cf. Call. Hymn 2.2 ἑκάς, ἑκὰς ὅστις ἀλιτρός. ‘Away, away, whoever is sinful’; Verg. Aen. 6.258 procul, o procul este, profani. ‘Away, stay away, uninitiated’; cf Ars 2.151 este procul, lites et amarae proelia linguae. ‘Stay away, quarrels and fights of a bitter tongue.’ 70  A modern equivalent would be Ovid encouraging married women to take off their wedding rings. 71  See Cicero, Leg. agr. 2.32 insignia uidetis potestatis, nondum ipsam potestatem. ‘You see the symbols of power, not yet power itself ’; Seneca, Ben. 1.5.6 nihil horum honor est sed honoris insigne. ‘None of these things is an honour, but the badge of honour’; cf. OLD s.v. insigne 4b.

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­girlfriend in Amores 3.14.17–28 (see Chapter  3). Modesty should stay away from the privacy of the bedroom (Am. 3.14.18 stet procul inde pudor; cf. Ars 1.31 este procul . . . insigne pudoris). There women should not be ashamed of taking off their clothes. But they should make sure they leave their crimina in the bedroom. In public, women should put on a bashful face along with their dresses.72 The power of law to legalize crime is suggested in the oxy­mor­ on­ic ‘lawful thefts’ (Ars 1.33 concessaque furta) or ‘legitimately ­illegitimate affairs’. The law does not correct criminal behaviour but divides it into permitted and forbidden. And as Ovid pointed out (cf. Am. 2.19.31–2, 3.4.25–6), a permitted theft is absurd and barely enticing to the thief/adulterer. Pleasure derives from breaking the law (Am. 3.4.31 iuuat inconcessa uoluptas) and crimen rules in love poetry. The juxtaposition of carmen and crimen (1.34) draws attention to the close connection rather than distinction between the two. All the letters of crimen appear in CaRMINE, suggesting that sin is a major part of what Ovid sings. Crimen (primarily a ‘charge, accusation, or indictment’) commonly describes an extramarital affair, including adultery (see Pichon 1902: 116). Of course, Ovid’s Ars amatoria is full of crimina, both in the sense of extramarital affairs not punished under the lex Iulia and in the sense of criminal adultery. Like concessa furta, the use of crimen draws attention to the indistinction of lawful and illegal liaisons. Ovid’s carmen, a key word that has the force of law, is presented as lying outside the lex Iulia in a poem that systematically conflates non-adulterous extramarital affairs and punishable adultery. The praeceptor is the author of a powerful song that defines the rules and thus legalizes adulterous liaisons. Like Augustus, Ovid dictates what is permitted and what is not allowed in private affairs. But unlike Augustan legislation, the poet’s laws of love are not related to the marital or social status of women but to their attractiveness, a key quality carefully constructed by Ovid’s instructions. The law of the Ars amatoria is thus both autonomous and antinomian. Ovid breaks the law as he declares that he follows it. 72  Am. 3.14.17–28 is reminiscent of Herodotus, 1.8.3 ἅμα δὲ κιθῶνι ἐκδυομένῳ συνεκδύεται καὶ τὴν αἰδῶ γυνή. ‘A woman takes off her modesty along with her dress.’

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There is evidence that Roman women tried to find ways to avoid the moral polarization of the lex Iulia. Tacitus (Ann. 2.85.1–3) records the case of Vistilia, an upper-class matron who registered as a prostitute in order to avoid prosecution for adultery (see McGinn  1998: 216–19). Vistilia’s husband is then liable to the charge of lenocinium, since, given that his wife’s adultery was manifest (delicti manifesta), he had to pursue vengeance as ordained by the statute. The husband gains some time due to a statutory provision, and Vistilia is subsequently exiled to Seriphos as a convicted adulteress, a rather harsh punishment. Vistilia’s attempt to evade prosecution exploits a loophole in the lex Iulia. If a convicted adulteress is degraded to the status of a prostitute, a woman can preempt the law by registering as a prostitute and thus move to a class of women who could not commit adultery under the lex Iulia. In 19 ce, the Senate took action to close this loophole (Tacitus, Ann. 2.85.1) by passing a senatus consultum that banned the practice of prostitution by women of equestrian or higher orders. The Senate’s reaction suggests that the case of Vistilia was not an isolated instance (cf. Suetonius, Tib. 35, with Strong 2016: 2). The law provided a means of evading prosecution by its very strictness in identifying adulteresses as prostitutes. The loophole closes when the Senate makes a woman’s social status indistinguishable from her sexual morality. This is the spirit of the adultery laws and precisely what both Vistilia with her actions and Ovid with his poem undermine. The strict dress code also seemed to have backfired. If married women are identified by what they wear, then female social identity becomes rather fluid once the signs of chastity are taken off. Again, in its strict attempt to dress and thus polarize women into respectable virgins/matrons and prostitutes, the law provides an easy way of confounding these distinctions. It is beyond reasonable doubt that some Roman women refused to follow the dress code of the Augustan legislation. Horace (Sat. 1.2.95) mentions the matron Catia, who wore revealing dresses.73 In name and actions the very 73  In his commentary, Porphyrio explains that Catia had beautiful legs so wore her clothes hitched up and committed adultery with the tribune of the people in the temple of Venus in the theatre of Pompey. See Gowers (2012: 110–11).

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antithesis of Cato (see Gowers 2012: 111), Catia flaunts her lovely legs, thus challenging traditional morality and imperial legislation. If Horace spreads vitriolic gossip that distorts reality, the jurist Ulpian is less likely to be dealing with non-existent problems. Ulpian tries to solve the issue of the liability of men attempting to seduce respectable women who were not dressed according to their social and moral status: Si quis uirgines appellasset, si tamen ancillari ueste uestitas, minus peccare uidetur: multo minus, si meretricia ueste feminae, non matrum familiarum uestitae fuissent. si igitur non matronali habitu femina fuerit et quis eam appellauit uel ei comitem abduxit, iniuriarum tenetur.

Digest 47.10.15.15 (Ulpian [77] ad edictum) If someone accosts respectable young girls, even though they are in slaves’ clothing, he is understood to commit a lesser offence: a much lesser offence, if the women were dressed as prostitutes and not as respectable women. Therefore, if a woman has not been wearing respectable clothing and someone has accosted her or abducted her companion, he is not liable to the action on outrage.74

The text of the jurist is evidence that upper-class women not only did not follow the law’s dress code but also dressed like slaves or prostitutes, that is, women who were exempt from adultery laws.75 Ulpian is concerned with protecting men and shifting the blame onto women who are not dressed appropriately.76 Similarly, we can read Ovid’s fashioning of socially and morally unidentifiable women as a means of protecting men (himself included) and shifting the responsibility onto women. Thanks to the Julian law, if you 74  Text and translation from McGinn (1998: 332). 75  Even though there were no particular clothes for slaves, they were not entitled to the insignia of chastity and social status. Olson (2006) concludes her chapter on clothing and the definition of matrona and meretrix by noting that the social and sartorial definitions of women in Rome were not as sharply delineated as the exemplar demanded. On the ways Roman women fashioned themselves, see also Olson (2008). 76  Cf. Cicero, Cael. 38 si uidua libere . . .  meretricio more uiueret, adulterum ego putarem, si quis hanc paulo liberius salutasset? ‘If a widow were living without restraints . . . if a lustful one like a prostitute, should I regard any man guilty of adultery if he had greeted her rather freely?’ Ulpian may be influenced by Cicero here. See Wibier (2016) on Cicero’s reception in the juristic tradition.

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are not dressed like a respectable woman, you may be treated as a prostitute. The law’s rigidity bears the seeds of its subversion. Ovid’s reference to women’s clothes is embedded in the juristic discourse of interpreting the lex Iulia. After dressing his female students in clothes that suggest neither a prostitute nor a matron, Ovid encourages them to appear in public in order to attract potential lovers (Ars 3.417–32). A passage that unsettlingly suggests pavement prostitution (especially 419–22) ends on the note that a bereaved woman often looks for a husband/man at the funeral of her husband/man (431 funere saepe uiri uir quaeritur). The burning issue of identifying the marital status of women in public,77 which becomes even more pressing with the lex Iulia, remains unresolved. The praeceptor’s concern is making his women attractive, not socially identifiable. Roy Gibson (2006; 2007: 71–114) argued that the puellae of Ars 3 are effectively invited to pursue a middle path between the stereotypes of the revealingly and luxuriously dressed meretrix and the modestly dressed matrona. Gibson’s work is fundamental to my research, but the term ‘middle way’ sounds too mild and con­cili­ atory to convey Ovid’s juridical challenge of the Augustan le­gis­la­ tion. I would suggest ‘category confusion’ as a more appropriate phrase for describing the praeceptor’s deconstruction of sociolegal norms. Ovid does much more than conveniently encouraging his students to court libertinae. The real force of the Ars amatoria is that it makes exception the basis of inclusivity rather than exclusivity. The poet challenges Augustus’ familial ideology neither by opting for the socially and politically disruptive meretrix instead of the restrained and loyal matrona (cf. Wyke 2002: 132–3; 2006) nor by opting for the libertina as a compromise, but by actually throwing these very categories into utter confusion.

77  For Roman women in public, see MacMullen (1980); Culham (1997: 196–201).

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Conclusion The laws of love are built on the foundations and the ruins of im­per­ ial legislation. The praeceptor amoris is an authority who lays down the law both in reference to and in defiance of Augustan legislation. Ovid’s Ars amatoria not only follows a long literary tradition of didactic and elegiac poetry (see Chapter  5), but is also an active intervention in the sociolegal realities of Augustan Rome. Ovid makes love an art (ars) that can be taught in a period in which law is established as a teachable ars. The jurist enters into an intimate symbiosis with the sexpert. In this chapter, I argued that the specialization of the praeceptor amoris and the expertise of the iuris peritus result from and reflect the cultural revolution in the structures of knowledge and education in the age of Augustus (see Wallace-Hadrill 1997; 2008). The study and practice of love is not a silly joke of the study and practice of law, an inappropriate appropriation of legal discourse in love elegy. Ovid’s Ars amatoria deals with a field of specialized knowledge, and knowledge constantly creates power (see Foucault 1980: 51–2; Wallace-Hadrill 2008, esp. 213–15). In Ovid’s case, the lover’s specialized discourse has the power or the force of law. The juridico-discursive nature of sexuality lies at the centre of major sociolegal changes in the age of Augustus. This is because the prince’s moral legislation makes it clear that the regulation of sexual morality is the lawmaker’s burning desire. Against this historical background, it is impossible to read the Ars amatoria as a work that wisely, albeit playfully, avoids confronting the juridical challenges of the moral reforms. It is even more absurd to read it as a poem that takes the issue of law in love lightly. Knowledge becomes the catalyst of power, due to the autonomous structures of specialized discourses. The interdependence of law and love does not undermine but highlights both love’s independence from imperial law and Roman law’s dependence on the rule of Amor. When Ovid removes socially and morally fraught clothes from his women, nudity becomes a symbolic return to a prejuridical purity—a state of exception that is simultaneously a

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universal rule. In this originary state, what is permitted and what is forbidden are yet to be defined. Private and public domains, in­ter­ ior­ity and exteriority, freedom and coercion merge into a zone of indiscernibility that initially lies outside or before the order of the Roman Empire but ultimately encompasses all areas of its social and political life. Once all layers of Roman law have been removed, the expert seer stages the rebirth of the juridical order. Amor is the power behind this creation, and his legal system exists in parallel and in tension with Roman law. While Ovid’s laws of erotic attraction are beyond and above the sociopolitical morality of Augustan legislation, they at times reveal surprising overlaps between agendas that may at first seem mutually exclusive. Controlling female sexuality and fashioning women in the image of male desire are the main preoccupations of Augustan legislation and Ovidian didactic. Of course, we may argue that by inviting women to free themselves from the sartorial requirements of the lex Iulia, Ovid liberates them, joining or inspiring the cause of a Vistilia or a Catia. But when it comes to Ovid, we can never be sure whether we are dealing with a feminist or a sexist. Removing clothes, like stripping badges and insignia of honour, can be an act of humiliation rather than liberation. The unidentifiable sociomoral status of Ovid’s women makes it easy to shift the blame onto them, if the Augustan legislation is broken. The division of women into attractive and unattractive may be as oppressive as their polarization into matrons and whores. The public display of female beauty is an uncanny reflection of the public display of female chastity. The more we read Ovid, the more we come to realize that not only the love poet and the jurist, but also the adulterer and the moralist speak the same language. They are both driven by a desire to define and confine female sexuality within normative discourses, either the laws of Rome or the laws of Amor.

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PART III

THE LAW OF THE FATHER

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7 Authors of Law and Life Introduction In the last chapter of The Will to Knowledge, Foucault (1979: 135–59) examines how sex eventually became a crucial target of a power organized around the management of life rather than the menace of death. For Foucault, a major transformation in the essence of sovereignty occurs at the end of the eighteenth and the beginning of the nineteenth century. While the right to kill had been for centuries the core of law’s sovereign power, modernity begins when life itself becomes a political issue. As Foucault (1979: 143) famously puts it, ‘[f]or millennia man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics places his existence as a living being in question.’ Hence, we have the birth of biopolitics, that is, the acquisition of power over man as far as man is a living being. The so-called biopower puts the biological under State control. The regulation of life is thus what is now at stake in politics. Since sex plays an instrumental role in reproduction, it becomes a political or rather biopolitical issue of major importance. The history of sexuality is thus a history of politicizing bare life. Foucault’s thoughts on biopolitics, which are both prolific and underdeveloped, have been influential and controversial.1 Giorgio Agamben, to mention a legal philosopher who features prominently in this book, takes Foucault’s biopolitics as the point of departure in the last part of his Homo Sacer to argue that the concentration camp 1  See Foucault (1979: 135–59; 2003: 239–64; 2004; 2008). See also Nilsson and Wallenstein (2013).

Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0007

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emerges as the biopolitical paradigm of the modern (Agamben 1998: 119–88). Not unlike Foucault, Agamben here deals with a threshold to modernity. For Agamben, the political nature of bare life and its modern avatars (biological life and sexuality) signals a major shift from the juridico-political foundations of classical pol­it­ ics. While every society had its ‘sacred men’ who were banished from the juridical order, bare life is now not confined to a particular category of scapegoats, but dwells in the biological and thus biopolitical body of every living human being. The exception has spread to become the absolute norm. Given that biopolitics is viewed as a threshold to modernity, its value for examining the age of Augustus may seem limited.2 Yet the triangulation of law, life, and sexuality that lies at the heart of biopower is of the utmost importance for understanding the sovereign nature of Augustus’ moral legislation. While I do not wish to enter the theoretical debate on the concept of biopolitics, I would like to start by explaining what I see as the biopolitical aspects of Augustus’ reforms. For Foucault, the technology of biopower controls the ratio of births to deaths, the rate of reproduction, and the fertility of the population (e.g. Foucault 2003: 243–5). Encouraging childbirth was one of the main concerns of the laws of Augustus. New laws that aim to increase the population of Roman citizens in the aftermath of the civil wars exemplify the biopolitical nature of the moral reforms. Production of legislation results in biological reproduction, a convergence of law and life that is the essence of sovereignty.3 The Julian laws that penalized adultery and encouraged childbirth were closely connected with Augustus as the Father of the Fatherland (pater patriae). This title was officially conferred to him in 2 bce (see Ovid, Fasti 2.119–44), but was in the air for a while before then (see Fasti 2.129–30 and Dio 55.10.10, with Robinson 2011: 147). In Roman tradition, the father is the embodiment of law’s sovereignty, because he has power over life and death (uitae necisque potestas). Whether, when, or under what circumstances 2  See, however, Bhatt (2017), an excellent study of the importance of biopolitics in the age of Augustus. 3  Cf. the sovereign as ‘living law’ (ἔμψυχος νόμος). See Agamben (2005a: 69–71); Ramelli (2006).

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Roman fathers were actually allowed to kill their children is an issue less important for my purposes than the fact that the Roman father was the living symbol of sovereignty. The right to decide life and death is more often than not identified with the father’s licence to kill.4 The father’s right to put an end to his children’s lives springs from the fact that he is the origin of their lives. Just as he had given them life, he could take it away (cf. Foucault 1979: 135). In his role as the pater patriae, Augustus stresses the father’s power to give life by means of law. His role in shifting the essence of sovereignty from taking to giving, sparing, and protecting life has been overlooked in discussions of the origins of biopower.5 His much-advertised clementia (‘clemency’), for instance, is an extraordinary action that spares an enemy’s life. By refraining from killing his enemies, Augustus brings their lives under his control and thus makes the preservation of life the foundation of his power. Augustus received the corona ciuica for ‘saving Rome’. This honour, traditionally conferred on a Roman who saved the life of a fellow citizen from an enemy, brought the obligation to treat the saviour as a father. By saving the life of Rome from her so-called enemies, Augustus becomes a father responsible for the lives of all Romans.6 The prince politicizes life not by exercising the father’s right to take it (contra Agamben 1998: 87–91), but his power to give, protect, and control it. By passing laws that encourage population growth, Augustus aims at linking biology with legislation, law with life. Once more, the power of the law consists in bridging the gap between the conceptual and the physical. What is conceived in the mind of the father/legislator results in the conception of children. From that perspective, it is significant that the name Augustus is etymo­logic­ al­ly and semantically related to auctor, a key term that can describe a proposer of a law (auctor legis) and a father. Augustus is the embodiment of the law in the name of the father. But auctor, in the 4  See, for instance, Agamben (1998: 87–91). He traces the first foundations of political life in the Roman father’s uitae necisque potestas, arguing that a life that may be taken is politicized through its very capacity to be taken. 5  Bhatt (2017) is an exception. 6  See Robinson (2011: 145–6) on the link between the corona ciuica and the title of pater patriae.

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sense of a paternal lawmaker, is a key term not only for Augustus, but also for Augustan poets. Ovid and other poets of his age describe themselves as auctores, father figures of poetry that has the force of law. The books of love poetry are often cast as the children of an author (auctor) in love. Poetic production is presented in terms of reproduction and, as Ellen O’Gorman (1997: 117) notes, Ovid, as pater poematis, often invites comparison with Augustus as pater patriae. The auctor of love poetry often stands in opposition to the prince’s biopolitical agenda. While Augustus produced laws to boost birth rates, the elegiac legislator sees pregnancy as an obstacle in the pursuit of pleasure. In Latin love elegy, sexual pleasure is an end in and of itself. By contrast, pleasure was considered at best instrumental, at worst an obstacle in the conception of legitimate children. The divide between the childless but pleasurable affairs of love elegy and the fertile but pleasureless intercourse of married couples revolves around the emergence of sexuality as a discourse that dissociates sex from reproduction and disembeds the regulation of sexual behaviour from its familial context (see Chapter 3). The proliferation of pleasures is inextricably linked to the production of love poetry. The love poet fathers children— these children are not only the books of elegies, but also the men and women who are created in them and by them.

The Children of Law and Literature In Greek literature, the father’s fundamental function as a creator of law and justice is at least as old as Hesiod’s Theogony. In this epic, Zeus is literally the father of justice and just laws: Eunomia (‘Lawfulness’) and Dike (‘Justice’) are the daughters of Zeus and Themis (‘Righteousness’). As a father figure, the lawgiver does not simply impose his law on his children but begets the rules, just as Zeus fathers Justice and Lawfulness. The creation of the legal system is thus inseparable from the procreation of legitimate offspring. Augustus’ identification with Jupiter, the father of the gods, is related to the prince’s attempt to draw a close connection between fatherhood and justice.

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In Plato’s Symposium, the law is the product of love. The lawgiver begets laws and is thus a father figure. Diotima (Symp. 208–9) argues that in their desire for immortality, human beings give birth either with their bodies or with their souls. For Diotima, the products of a pregnant soul guarantee immortality more than biological offspring. As examples of parents who conceive in their souls, Diotima (209a) mentions poets and creative inventors, who are the begetters (γεννήτορες) of prudence (φρόνησις) and virtue (ἀρετή), adding that by far the highest and fairest part of prudence is that which concerns the regulation of cities and is called justice (δικαιοσύνη). Poets and lawgivers are parents of immortal children. Diotima mentions the enviable offspring of Homer and Hesiod, before adding the examples of the lawgivers Lycurgus and Solon, who are highly esteemed ‘for fathering laws’ (209e διὰ τὴν τῶν νόμων γέννησιν). In Diotima’s speech, justice is the child of a man in love. Poets and legislators beget prudence, the cornerstone of lawfulness. Diotima contrasts biological with intellectual offspring (Homer’s and Hesiod’s poems, Lycurgus’ and Solon’s laws), concluding that the production of law and literature is far superior to siring children. While in Plato the enamoured and ‘pregnant’ lawgiver is compared and contrasted with the biological parent, in the age of Augustus biological children are directly linked to the moral le­gis­la­tion, the law of the Father of the Fatherland. In his Carmen Saeculare, a poem commissioned by Augustus in 17 bce, Horace praised the lex Iulia de maritandis ordinibus (18 bce) in a stanza whose main effect lies in drawing a close connection between fathering laws and children: diua, producas subolem patrumque prosperes decreta super iugandis feminis prolisque nouae feraci lege marita Horace, Carmen Saeculare 17–20 O goddess, be pleased to rear our young, and to grant success to the fathers’ edicts on the yoking together of men and women and on a marriage law fertile for a new crop of children

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Horace here apostrophizes the goddess of childbirth (Ilithyia or Lucina), incorporating the official production of law into the reproduction of offspring. The fathers in the context of begetting children suggest biological reproduction until we realize that patrum is a subjective genitive with the prosaic decreta (‘the fathers’ edicts’). These fathers are the senators and their offspring is the Augustan legislation. The adonic tag (lege marita) is the stanza’s punchline. This is an exceptional use of the adjective feraci (‘fertile’, ‘fruitful’), because ferax with a genitive (prolis) here modifies an incorporeal noun (lege).7 Once the senate ratifies the marriage legislation, the law becomes flesh. The new crops of children are the result of a crop of new laws. Fertility is transferred from the bodies of the parents to the body of the senate. In Chapter  5, I discussed briefly how Tacitus deflates the sort of Augustan propaganda we find in the Carmen Saeculare. Instead of forging an inseparable bond between law and life, Augustan legislation bred novel lawsuits, while failing to meet its demographic targets. Virtually identifying vices with Augustan law, Tacitus says that Rome was now in labour under her laws (see Tacitus, Ann. 3.25 legibus laborabatur).8 The city is a mother impregnated by the marriage legislation. But instead of delivering Roman citizens, she spawns litigation and corruption, the offspring of the iron age. In his Res Gestae, Augustus tells a different story. The prince refers to his marriage legislation in a way that draws attention to the confluence of the biological with the political: patriciorum numerum auxi consul quintum iussu populi et senatus. 2. senatum ter legi, et in consulatu sexto censum populi conlega M(arco) Agrippa egi. lustrum post annum alterum et quadragensimum fec[i], quo lustro ciuium Romanorum censa sunt capita quadragiens centum millia et sexag[i]nta tria millia 3. tum [iteru]m consulari cum imperio lustrum [s]olus feci C(aio) Censorino [et C(aio)] Asinio co(n)s(ulibus), quo lustro censa sunt ciuium Romanorum [capit]a quadragiens centum millia et ducenta triginta tria m[illia. 4. et te]rtium consulari cum 7  See Thomas (2011: 69). The only other case is in Livy 9.16.19. 8  For the failure of Augustus’ moral legislation, see also Suetonius, Aug. 34, with Langlands (2014).

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Authors of Law and Life  309 imperio lustrum conlega Tib(erio) Cae[sare filio] m[eo feci], Sex(to) Pompeio et Sex(to) Appuleio co(n)s(ulibus), quo lustro ce[nsa sunt] ciu[ium Ro]manorum capitum quadragiens centum mill[ia et n]onge[nta tr]iginta septem millia. 5. Legibus noui[s] m[e auctore l]atis m[ulta e]xempla maiorum exolescentia iam ex nostro [saecul]o red[uxi et ipse] multarum rer[um exe]mpla imitanda pos[teris tradidi.] Augustus, Res Gestae 8 I increased the number of patricians by command of the people and the senate when consul for the fifth time [29 bce]. 2. I revised the membership of the senate three times, and in my sixth consulship [28 bce] I conducted a census of the population with Marcus Agrippa as my colleague. I  performed the ceremony of purification forty-two years after the last one; in this census 4,063,000 individual Roman citizens were registered. 3. Then for a second time I conducted a census on my own with consular power in the consulship of Gaius Censorinus and Gaius Asinius [8 bce]; in this census were registered 4,233,000 individual Roman citizens. 4. And for a third time I conducted a census with consular power with Tiberius Caesar my son as colleague in the consulship of Sextus Pompeius and Sextus Appuleius [14 ce]; in this census were re­gis­tered 4,937,000 ­individual Roman citizens. 5. By new laws passed under my authorship I brought back into use many exemplary practices of our ancestors which were disappearing in our time, and in many ways I myself handed down to later generations many exemplary practices for them to imitate. (Cooley 2009 text and translation modified)

Chapter 8 of the Res Gestae begins with auxi and ends with me auctore. Augustus points to the etymological connection of augere, auctor, and Augustus in a passage that suggests the emperor’s crucial role in the production of laws and the reproduction of Roman citizens. Subtly but clearly, the prince suggests a link between his censorial activities and his marriage legislation. The marriage laws were introduced in 18 bce, between the first (28 bce) and the second (8 bce) census, and resulted in higher birth rates: in the first census, 4,063,000 Roman citizens were registered, in the second 4,233,000, and in the third (14 ce) 4,937,000. The transition from the increasing population of the three censuses to the new laws implies the success of Augustan legislation in encouraging population growth

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(cf. Nicolet 1991: 127; Cooley 2009: 143). Augustus, the Father of the Fatherland, is inseparable from Augustus, the proposer of innovative legislation. The author of the law (auctor) is the father (auctor) of all Roman children. Res Gestae 8 revolves around an interplay between biological and political offspring. Augustus can increase the number of patricians just as he can boost birth rates. Augustan legislation restores the genealogical thread of ancestral examples and passes them down to posterity, a continuity that is guaranteed by means of a law that encourages childbirth. The prince points out that the third time he conducted a census, his son Tiberius was his colleague (8.4 conlega Tib(erio) Cae[sare filio] m[eo feci]). The mention of his adoptive son in the context of law’s power to beget children is significant. The father and son relationship between Augustus and Tiberius has a legal, not a biological basis, but this does not mean that its foundation is weaker. The mark of Augustus’ sovereign biopolitics is the level of indistinction between authoring laws and fathering children, between encouraging childbirth and forging family bonds. The prince breathes life into law and law into life. The name of Tiberius appears in the context of posterity and exemplarity. Augustus’ Res Gestae can be read as a father’s instructions to his son (cf. Ramage 1987: 115; Lowrie 2007b: 111). In the context of the Res Gestae’s monumental erection after the death of Augustus, the voice of a father teaching his son from the grave how to be a good prince would be one of the most significant aspects of the work. These are the injunction (praecepta) of a father inscribed and displayed on bronze in Augustus’ Mausoleum. The use of bronze, as Cooley (2009: 3) notes, sets the Res Gestae on a par with legal documents and evokes ideals of sacrosanctity. Tiberius is encouraged to follow the law of the father. As the new Caesar, he needs to live up to the example of Augustus. The importance of exemplarity in the age of Augustus has been the focus of recent scholarship.9 Michèle Lowrie (2007b: 103–12) 9  See Lowrie (2007b); (2009: 302–8); Langlands (2014); Gunderson (2014); Lowrie and Lüdemman (2015); Bexley (forthcoming). On exempla, monuments, and memory, see Hölkeskamp (1996). Two major monographs on Roman exemplarity came out in the final stages of this book’s revisions; Roller (2018) and Langlands (2018).

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in particular gives a perceptive reading of the importance of ex­em­plar­ity in Res Gestae 8. Drawing on Agamben (1998: 21–2), Lowrie (2007b: 92–3) argues that the Augustan Principate is the extreme form of both adherence to precedent (exemplum) and the making of exceptions. The essence of the exemplum consists in its ambivalent nature, since it refers both to the ordinary—an example of the ablative absolute in a grammar book, for instance, shows the rule, not its exception—and the extraordinary—heroes, for instance, are examples to be followed because they stand out from the crowd, while villains are examples of deviant or abnormal behaviour that should be avoided. As Lowrie (2007b: 104) puts it, exemplum is either the most representative or the most singular instance (cf. Gunderson 2014: 131). It stands both for the norm and the exception. Its etymology from eximere (‘to remove’) implies both what is taken out as an irregularity and what is taken out as a sample. The essence of Augustus’ exemplarity is captured in the phrase primus inter pares (‘first among equals’); the prince’s exceptional status is not anomalous, since it derives from the concentration of honours well established in the Roman Republic (see Lowrie 2007b: 104). Exemplarity is thus the key to Augustan sovereignty because it operates in a zone of indistinction between the rule and the exception, the constitutional and the extraconstitutional.10 Lowrie (2007b: 107) notes that auctor has a special connection to exemplum in the Latin rhetorical tradition as the person whose word or action is cited to back up what the speaker is saying (cf. Lowrie and Lüdemann 2015: 8). In their function as precedents, both auctores and exempla are instrumental in the administration and production of law.11 What is more, auctor and exemplum forge a close connection between exemplarity and paternity, a crucial link that has been overlooked in recent scholarship. Lowrie (2007b: 112) ends her chapter by mentioning Hitler’s reaction after Mussolini took him to see the great exhibition of Augustus. Hitler said that he could compare Mussolini’s profile with that of the Roman busts, which made him realize that the Duce was indeed one of the 10 On exemplum and exceptio, see Möller (2015). 11 On exempla in Roman law and forensic rhetoric, see Möller (2015) and Ando (2015b).

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Caesars. Lowrie briefly concludes that Mussolini was following Augustus’ example in a way that his predecessor might have appreciated. This is indeed the case. What is at stake here is a combination of exemplarity and genealogy, sovereign law and consanguinity. Mussolini not only models his regime on Augustus’ but also claims that he is the heir of the Roman emperors. Exemplarity is thus biopolitical, since it depends on imitating an ancestor. Hitler is fascinated with this combination of race and regime. The busts from the Roman past prove in his eyes that the blood of the Roman emperors runs in Mussolini’s veins, a biological continuity that legitimates his claim to be the heir of the Roman Empire. Augustus himself drew a link between exemplarity and paternity. In the outcry over his marriage legislation, a Roman knight insistently demanded the abolition of the law in a public spectacle. In response, Augustus displayed Germanicus’ children, putting some of them in his lap and some in their father’s, thus showing that they should imitate this young man’s exemplum.12 This story shows not only the key role of exemplarity in upholding the marriage laws in the age of Augustus, but also the interdependence of exemplarity and paternity. The exemplum that Augustus displays in order to support his laws is a young father and his children. Imitation guarantees the dissemination of normative discourse and the growth of the Roman people. The biopolitical nature of Roman exemplarity can be traced in the parade of imagines at aristocratic funerals. Professional actors impersonated the deceased’s ancestors by wearing wax masks (im­agines maiorum) in the funeral procession. The genealogical structure of the parade of heroes in Aeneid 6, for instance, clearly evokes a pompa funebris.13 Augustus implies a similar link between ex­em­plar­ity and genealogy. He brought to life exemplary behaviour that was dying out and handed himself down as a model to be imitated. The inscription that transmits the words of the deceased Augustus invites the readers in general and Tiberius in particular to revive Augustus by copying him. Reading his text is a good start. 12  For this story, see Suetonius, Aug. 34, with Langlands (2014: 117–20). 13 On exempla and the pompa funebris, see Hölkeskamp (1996: 320–3).

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In the funeral procession and in the Res Gestae, dead ancestors are coming to life as role models that should be imitated and reproduced by the family who survives the deceased. From that perspective, Erica Bexley’s (forthcoming) work on exemplarity is particularly relevant for my purposes. In her study of exemplarity and identity in Senecan drama, Bexley demonstrates exemplarity’s close links to genealogical reproduction. For Bexley, since exempla rest upon principles of imitation, they encourage the production of copies, and this very act of replication affords easy analogies with biological lineage and artistic mimesis. Exemplarity displays af­fi n­ ities with intertextuality, as emulation of laudable deeds slides into literary aemulatio.14 In the exemplum, we often encounter a conjunction of biological and mimetic repetition (cf. Bexley  2017: 167–70). Intertextual emulation can be presented in terms of a son competing with a father—Vergil is, for instance, the successor of father Ennius, who in turn cast himself as Homer reincarnated. Barbara Boyd (2017: 75–180) argues that Ovid encodes his identification as Homer’s ‘son’, worthy heir to the creative aspiration and immortal achievement of his poetic ‘father’. Thus, the auctor as an author of law or literature merges with the auctor as a father figure. In Metamorphoses 15, Ovid draws attention to the confluence of paternity and exemplarity. Jupiter’s speech to Venus resembles Augustus’ Res Gestae: Pace data terris animum ad ciuilia uertet iura suum legesque feret iustissimus auctor exemploque suo mores reget inque futuri temporis aetatem uenturorumque nepotum prospiciens prolem sancta de coniuge natam ferre simul nomenque suum curasque iubebit. Metamorphoses 15.832–7

14  See Bexley (forthcoming); cf. Goldschmidt (2013: 149–92). On the bookish valence of exemplar, which may refer to the copy of an original, in relation to the multiple copies of the Res Gestae, see Gunderson (2014: 136–8). The copy of a text converges with imitating the life of an exemplary ancestor—only in the age of Augustus, the imitation both follows and produces the original.

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314  Law and Love in Ovid When peace has been given to the lands, he will turn his attention to civil legislation and as a most just author carry laws and rule morals by his own example, and looking to the age of future time and of grandchildren to come, he will order the offspring born of his holy wife to bear at the same time his own name and cares.

The similarities cannot be reduced to coincidence.15 The author of the Metamorphoses bears an uncanny resemblance to the author of the Res Gestae. Given that the Metamorphoses was published before Augustus’ posthumous Res Gestae, it even looks as if Augustus were copying Ovid rather than the other way around. Ovid thus becomes the exemplum and the auctor of Augustus’ Res Gestae. Since Ovid records Jupiter’s prophetic words, Augustus seems to have fulfilled the supreme god’s divination by replicating its contents.16 In fact, Jupiter is the mouthpiece of the real auctor, who is none other than Ovid. The verbal echoes of Res Gestae 8 in Metamorphoses 15.833–4 (leges, auctor, exemplo correspond to legibus, auctore, exempla) are combined with thematic similarities. Law, paternity, and ex­em­plar­ ity are closely connected. The production of moral legislation is tellingly followed by the birth of Tiberius, the child of Augustus’ sacred wife. The holiness of marriage and the care of legitimate offspring are inseparable from the laws of the iustissimus auctor. While Augustus refers to Tiberius as filio meo, Ovid subtly points out that Tiberius is the son of Livia, not the son of Augustus. The adoption is the outcome of the emperor’s supreme command or, as Lowrie (2009: 380) puts it, it produces an heir through performative discourse. The interplay between the production of laws and the fathering of children that is crucial to Res Gestae 8 is both anticipated and problematized in the Metamorphoses. The main genealogical links 15  For the parallels between Res Gestae 8.5 and Met. 15.832–7, see Bömer (1969–86: 477); Hardie (1997: 192); Scheid (2007: 41). The problem, of course, is that the Res Gestae was published after the Metamorphoses. But Ovid seems to be aware of versions of the emperor’s monumental work. In her discussion of the striking similarities between Tristia 4.10 and Res Gestae 1, Fairweather (1987) suggests Augustus’ autobiography (Commentarii de uita sua, now lost to us) as Ovid’s source. 16  Cf. Hardie (2015: 608); Feldherr (2010: 73–5). Jupiter, in turn, read all this in the massive archive of the Fates, a text inscribed on bronze and iron tablets (Met. 15.807–10).

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of Jupiter’s speech (Julius Caesar–Augustus–Tiberius) are due to the politics of adoption, not the biology of childbirth. By drawing attention to the biopolitics of Augustan legislation, Ovid may point to its legal fictions and limitations. No amount of moral legislation could produce Augustus a biological heir or chaste daughters and granddaughters (Lowrie 2009: 379). The feminine participle natam (Met. 15.836) that refers to Livia’s son is intriguing, since it more readily suggests Julia, the daughter (nata) of Livia and Augustus, until the next line restricts the reference to Tiberius by referring to the prince’s successor.17 On the one hand, Augustus’ role as an auctor, the proposer of legal reforms, is in tension with his role as a bio­logic­al father or progenitor, the other meaning of auctor; on the other hand, his sovereignty consists in his power to annul the distinction between biological and adopted offspring, between life and law. It is significant that the speaker of Metamorphoses 15.832–7 is Jupiter. The passage implies a parallel between the father god and Augustus’ Jovian regime. The shift from civil wars to civil laws replays the transition from Jupiter’s battles to his marriages and the birth of Lawfulness and Justice in Hesiod’s Theogony. After Jupiter’s speech, Ovid compares Jupiter with Augustus (Met. 15.857–60). Just as Saturn is inferior to Jupiter, Augustus will surpass Julius Caesar. Both Augustus and Jupiter are identified as fathers and r­ ulers (860 pater est et rector uterque). Augustus’ unprecedented power has Jupiter as its exemplum. The close link between auctor and exemplum features prom­in­ ent­ly in Latin elegy. The elegiac poet (auctor) provides exempla in his attempt to persuade and seduce. It is not an overstatement to say that exempla (mythological, historical, and genealogical) lie at the heart of the poetics of Latin love elegy.18 Exemplarity is precisely what gives life to Latin elegy as readers are invited to follow or avoid the examples of the past. Given the importance of exempla in formal schooling, it is not surprising that they feature as an essential

17  This is not the only time that Ovid refers to Tiberius, but evokes Julia. See my reading of Pont. 2.1.17–18 (Chapter 3). Note also that in this speech Jupiter addresses his daughter (Met. 15.808 nata). 18 On exemplum and exemplarity in Propertius, see Gazich (1995).

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pedagogical tool in the educational kit of the praeceptor amoris.19 Elegiac exempla often revolve around family ties. Paris encourages Helen to follow the example of her mother Leda and have an affair with him. Helen retorts that the example does not work (Her. 17.43–8; cf. 16.293–4). Oenone, by contrast, wishes Paris had followed the example of his brother Hector and remained faithful to his wife (Her. 5.107–10). A genealogical thread often runs through exemplary catalogues. In a catalogue of deceptive men, for instance, Demophoon (Ars 3.35–8) succeeds his father Theseus; the father abandoned Ariadne and the son Phyllis. The apple did not fall far from the tree. The poetics of exemplarity is often embedded in forensic rhet­ oric. The beginning of Ars amatoria 3 suggests the setting of a trial. The female race is put in the dock and the praeceptor amoris is the women’s advocate. In his defence speech (Ars 3.9–24), Ovid argues that examples of unfaithful women had been used unfairly to condemn the female race in its entirety. Agamemnon and Menelaus may have had charges to press against their wives, but it is a mistake to take such examples as the rule instead of the exception. The praeceptor offers a catalogue of virtuous heroines (Penelope, Laodamia, Alcestis, Canace) to prove that women are not guilty. Ovid is aware of the ambiguous status of exempla, which vacillates between the particular and the general. Exempla can function as the antithesis of the norm, but can also produce the norm.20 Ovid is also aware of the function of an exemplum as a precedent in a trial as he cites the typical parade of virtuous heroines as evidence of female virtue in general. Latin love elegy produces the exception and the norm by ma­nipu­ lat­ing exemplarity. The instrumental function of exempla in fleshing out the laws of love in Latin elegy is a highly significant, albeit overlooked aspect of a genre that is deeply involved in the production and reproduction of normative discourse. By providing models 19  On the educational importance of exempla, see Gunderson (2014: 131, 140–1). On praecipere per exempla (‘teaching through examples’) and the praeceptor amoris in Propertius, see Gazich (1995: 235–6). 20  On the normative power of exemplarity, see Hölkeskamp (1996: 316–20); cf. Lowrie and Lüdemann (2015).

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of behaviour that are to be imitated, the elegiac poet is an auctor, an exemplary man, who, not unlike Augustus, both revives exempla from the past and casts himself as an authority whose words and actions should be followed by posterity. What is more, the paternal meaning of auctor that plays a crucial role in the biopolitical discourse of the Res Gestae features in Ovid’s poetry. The author is a father figure and his books are his children (see Davisson  1984; Boyd: 2017: 75–180). Augustus becomes the father of all Roman citizens by becoming the auctor of marriage legislation. Ovid is an auctor of poetry that lays down the laws of love. The interplay between fathering children and producing laws that is inherent in Augustan politics cor­res­ponds to Ovid’s recurring description of his books (libri) as his children (liberi). Even though the comparison of written works to offspring is certainly not new (see Plato, Symp. 208–9; Aristotle, Eth. Nic. 1168a; Propertius 3.1.9–10), Ovid seems particularly fond of it.21 In the first poem of Tristia 1, Ovid asks the personified book to call the Ars amatoria Oedipodes and Telegoni (Tr. 1.1.114 Oedipodas facito Telegonosque uoces, ‘thou shalt make sure you call them Oedipodes and Telegoni’). The books of the Ars are thus assimilated with mythological sons who killed their fathers. In Tristia 3.1, the book speaks and explains that the sons/books share the misfortunes of the author/father: nec me, quae doctis patuerunt prima libellis, atria Libertas tangere passa sua est. in genus auctoris miseri fortuna redundant, et ferimus nati, quam tulit ipse, fugam. Tristia 3.1.71–4 And Liberty did not allow me to touch her halls, which were first open to learned books. The fate of our wretched sire overflows upon his offspring, and we the sons bear the exile he bears. 21  See Davisson (1984: 111). Ovid casts himself as the father of his books in Tr. 1.1; 1.7; 3.1; 3.14.11–12; Pont. 1.1.21–2; 3.9.9–10; 4.5.29. Cf. Spentzou (2003: 159), who argues that Ovid becomes motherly in exile poetry. Spentzou (2003: 155–7) further argues that in Canace’s letter (Her. 11) we are encouraged to link the written word and the newborn baby and that Cydippe’s letter (Her. 21), the product of hard labour, nestles in her bosom like a baby. On maternity in Ovid, see McAuley (2016: 114–66).

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Ovid’s offspring is banned from the library in the temple of Libertas. Libertas, a Republican ideal associated with freedom of speech, features here in a scene of censorship.22 Ovid’s offspring (genus) is elegiac poetry, and auctor simultaneously refers to a father and an author. Ovid’s sons (nati) are his books. In Ex Ponto 3.9.9–10, an author (auctor) admiring his work is compared with a father (Agrius) praising the beauty even of a proverbially ugly son (Thersites). Ovid adds that he does not fall into this trap and does not love whatever he begets (12 nec quidquid genui protinus illud amo). Again, poetic creation appears in terms of procreation. Ovid brings up the crucial interplay between law and literature, between authors of marriage legislation and love poetry, in his letter to Augustus: et tamen ille tuae felix Aeneidos auctor contulit in Tyrios arma uirumque toros, nec legitur pars ulla magis de corpore toto, quam non legitimo foedere iunctus amor. Tristia 2.533–6 And yet that fortunate author of your Aeneid brought arms and the man to Tyrian beds, and no part from the whole corpus is read more than the love united in an illegitimate pact.

The possessive adjective tuae stresses Ovid’s provocative point that Vergil is the author of Augustus’ Aeneid. The passage evokes Vergil’s life and the role of the auctor Augustus in saving and thus appropriating Vergil’s epic in defiance of the poet’s deathbed wish (see Donatus, Life of Vergil 39–41). With his authoritative intervention, Augustus becomes the first pro-Augustan reader of the Aeneid (see Ziogas 2015: 118–22). By contrast, in the passage cited above Ovid reads the Aeneid in his own terms. The programmatic beginning of Vergil’s epic (arma uirumque) appears in the elegiac pentameter, embedded in Tyrios . . . toros. As scholars note (Barchiesi  1997: 28; 22  In the exile poetry, Ovid suggests a punning nexus of liber (‘book’), liber (‘free’), and liberi (‘freeborn children’).

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Ingleheart 2010: 385), arma uirumque is an obscene hendiadys for uirum armatum, an aroused man in Dido’s bed. This playful appropriation of Vergil’s epic in Roman elegy is set against the confluence of reading poetry and interpreting the law. The legitimate liaisons (cf. Tr. 2.249 nil nisi legitimum) of the Ars amatoria contrast with the popularity of Aeneas’ adultery. The passage suggests interdependence between auctores of laws and poetry. Vergil is an auctor who offers a well-read exemplum of illegitimate love and Augustus calls himself an auctor in the description of his moral legislation. The etymological figure legitur/legitimo is ‘a formal feature inviting comparison of the law and literature as texts, particularly their ability to effect things in the world’ (Lowrie  2009: 361). The reading of Aeneas’ adultery in Vergil’s influential text may not break the law but have the power to le­git­ im­ize transgression.23 Behind this dynamic interchangeability of authors of laws and poetry lie the biopolitics of legislation and poetic creation. It is no coincidence that Vergil features as a felix auctor in the context of Augustus’ legislation that encouraged childbirth. In Res Gestae 8, as I have argued in this section, Augustus evokes the double meaning of auctor as ‘progenitor’ and ‘proposer of law’. The adjective felix (‘fortunate’ but also ‘fertile’) glosses over auctor, casting Vergil as a productive poet and father. Vergil’s cre­ ative ‘fertility’ appears in the context of Dido’s affair; felix contrasts with Dido infelix (cf. Aen. 4.68; 450; 529; 596), the unfortunate Carthaginian queen. Part of Dido’s misfortune is her childlessness, her unfulfilled desire to become the mother of Aeneas’ son. The reference to father Aeneas’ childless extramarital affair in the context of Augustus’ marriage laws brings up the demographic preoccupations of the legislation. Vergil is the productive author of a barren heroine. The most popular part of his Augustan epic is a distinctly elegiac affair that breaks the law. For Ovid, Vergil’s creative prod­ uct­iv­ity exists in tension with the procreative mandates of imperial legislation.

23  See the section ‘The Birth of Authority’ below on auctor criminis and auctor legis.

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The Crops of Pleasure If love poetry is the child of an auctor, Ovid and Augustus occupy parallel, albeit antithetical positions. The prince is the father of laws that regulate marital affairs and encourage childbirth, while the author of love elegy sanctions the laws of Amor. The elegiac poet is the father/lawgiver, and his work is his offspring/law. Unlike Augustus’ marriage laws, the production of elegiac offspring does not encourage the reproduction of legitimate children. The auctor fathers libelli that give exempla of appropriate behaviour. In the pursuit of this exemplary behaviour, childbirth often appears as an obstacle to elegiac love. The interplay between the poetic and paternal connotations of auctor features in the very first lines of Ovid’s Amores. In the epigram that introduces the revised collection of love elegies, the personified books (libelli) speak to the reader and refer to their author/father: Qui modo Nasonis fueramus quinque libelli, tres sumus; hoc illi praetulit auctor opus. ut iam nulla tibi nos sit legisse uoluptas, at leuior demptis poena duobus erit. Arma graui numero . . . Amores Epigram, 1.1.1 We who were five slim books of Naso are now three; the author preferred this work to the previous one. Even though you may still take no pleasure in reading us, yet with two books taken away the punishment will be lighter. Arms in weighty numbers . . .

The speaking voice of the personified books draws on the tradition of Hellenistic epigrams (see Anth. Pal. 9.63 for Antimachus’ Lyde; Anth. Pal. 9.239; Callimachus, Epigram 6; more in McKeown 1989: 1–2). The voice of the books that survived the reduction of the second edition ironically recalls the speeches of deceased children in funerary epigrams or rather the grateful voice of survivors in

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votive offerings. The key word auctor adds to the presentation of the poet as a father figure. Ovid is a paradoxical auctor because he reduces the number of his books instead of increasing them.24 An auctor eliminating two of his books/children and producing three evokes a father’s uitae necisque potestas over his children. The parricide that features in the exile poetry (the books of the Ars amatoria killed the author) is a sequel to the infanticide with which Ovid introduces the second edition of the Amores (the auctor killed two of his books/children).25 The three books (libelli) may playfully allude to Augustus’ ius trium liberorum (‘right of three children’); yet the reduced number goes against the demographic concerns of the moral legislation.26 By ‘fathering children’, Ovid and Augustus lay down the laws that regulate desire, but lead to opposing demographic results. The crucial difference is between the production of pleasure/love poetry and the reproduction of legitimate offspring. An auctor proposes a law or writes love poetry. Reading a legal proposal or love elegy in turn is how speech is enacted and thus becomes the law or acquires the force of law. The importance of the connections of auctor, legere, and legitur in the performativity of law and literature, which Lowrie (2009: 360–82) aptly discusses in Tristia 2, features already in the epigram to the Amores.27 The effect in the Amores is more striking, given that we hear the voice of the personified books. Literature has taken life and is a speaking corpus. The proximity of legisse and uoluptas is crucial. Ovid resembles an auctor legis, not just an author of poetry but also a proposer of laws whose ratification by reading results in either pleasure or punishment. Ovid’s work is autonomous since its recitation sim­ul­tan­eous­ly ratifies its contents by imposing their laws in the form of joy or penalty. 24  Cf. McKeown (1989 ad loc). Even though we do not know the exact date of the second edition, it is beyond reasonable doubt that the Amores react to the moral legislation. 25  Cf. the epigram to the Metamorphoses (Tr. 1.7.35–40), in which the book rolls of the Metamorphoses appear as orphans (Tr. 1.7.35 orba parente . . . uolumina). 26  Thanks to the ius trium liberorum (‘right of three children’), a freeborn woman with three legitimate children could enjoy independence from male guardianship and receive an inheritance. 27 Both Tr. 2.533–6 and the epigram to the Amores pit Ovid’s work against Vergil’s Aeneid. Am. 1.1.1 (arma graui numero) echoes the beginning of the Aeneid (arma uirumque cano). The programmatic reference to the Aeneid is further suggested by the introductory epigram. The epigram, followed by arma, reworks the pre-proemium of the Aeneid, which is also followed by arma; see Conte (1986: 84–7); Farrell (2004: 46–62); Ziogas (2015: 127–9).

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Reading love poetry is its own reward or retribution. The contrast of uoluptas and poena is peculiar (cf. McKeown 1989: 6). The opposite of pleasure is suffering and the opposite of punishment is reward. But this is a peculiarity with significance, because it marks a crucial transition from the extralegal or prelegal uoluptas to the legal poena. The shift from uoluptas to poena dramatizes in nuce the emergence of the legal system. The auctor brings to life the juridical order by imposing a distinction between the pleasure that in a legal framework becomes reward and the pain that is meted out as punishment (cf. Chapter 2). If the number of the books of Ovid’s Amores is an allusion to the ius trium liberorum, there is a similar effect in the number of books of the Ars amatoria. Ovid is an auctor who begets three children, the books of the Ars amatoria, which nonetheless encourage pleasure and subtly discourage procreation. In Chapters 3 and 6, I argued that the juridico-discursive autonomy of sexuality is the reason why Ovid’s love poetry has the force of law. In Latin love elegy, pleasure is the very source of legality, and that is why the love poet features as a legislator. But sexual pleasure is dissociated from procreation. Childbirth is undesirable because it undermines attractiveness, a necessary quality for the consummation of love.28 The praeceptor amoris deals with childbirth as he lays down the laws of love. In his instructions about sexual positions, for instance, Ovid advises women with stretch marks to adopt the ‘reversed position’ as a means of concealing them: tu quoque, cui rugis uterum Lucina notauit ut celer auersis utere Parthus equis Ars amatoria 3.785–6

28  There is surprisingly very little about contraception in the Ars amatoria. The reference to douche water as a postcoital contraceptive measure at Ars 3.96 is cryptic and made in passing. Even though Ovid sees childbirth as deforming the female body, he advises against abortion (Am. 2.13–14). The elegiac poet writes poetry in an attempt to preserve the lives of his mistress and her unborn baby. Elegiac discourse is thus actively involved in biopolitics. On the puella’s fear of pregnancy in Latin love elegy, see James (2003: 173–83).

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Authors of Law and Life  323 You as well, whose belly Lucina has marked with wrinkles, ride the horse turned backward, like the swift Parthian. (trans. Hejduk 2014)

The verb notauit at the end of the hexameter is striking. It does not simply refer to applying a distinguishing mark but to branding as a sign of disgrace. In particular, it is used of the activities of censors, who socially degraded citizens by putting a mark of disgrace (nota) against their names (see Cicero, Clu. 119, 129; Horace, Sat. 1.3.24 stultus et improbus hic amor est dignusque notari, ‘this is a foolish and shameless love and deserves to be censured’). If childbirth is the badge of a woman’s honour in Augustan legislation, it is a humiliating scar in amatory law. The ugly and the shameful, aesthetics and morality are drawn together. The fact that a woman has to conceal the marks of childbirth in sex suggests her shame. Other than childbearing that deforms the body, there is nothing shameful in the sexual act. The allusion to the censorial branding in the context of sex brings up the interplay between the public and private aspect of femininity (see Chapters 3 and 6). The public display of maternity is awkwardly exposed in the bedroom. Public virtue is a private scar. The goddess of childbirth (Lucina) puns on lux (‘light’) (see Maltby 1991 s.v. Lucina): she brings to light not only children but also stretch marks. Note also the pun on uterum (‘womb’) and utere (‘use’). In Ovid, the verb uti often implies the usus uenerius (e.g. Ars 3.65) and is used here to describe the sexual position of the mulier equitans. In this context, the womb gives birth to sexual joy, not children.29 A woman’s body is a source of pleasure especially if it has not been burdened with childbirth. References to maternity appear in contexts that barely suggest motherhood. The praeceptor encourages his students to loosen their hair and bend their necks so that their tresses go wild during sex (Ars 3.783–4). The exemplum for this behaviour is the Phylleia mater, that is, a Thracian maenad.30 Both mater and matrona describe 29  Cf. Plato, Ti. 91c, who refers to the womb as ‘a creature desirous of childbearing’, which suffers from various diseases if ‘it remains without fruit long beyond the due season’. 30 For Phylleia mater standing for ‘Thracian maenad’, see Gibson (2003 ad loc.).

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bacchants in Latin (see Vergil, G. 4.520–1; Aen. 7.392, with Gibson 2003: 395); yet their presence as examples of wild sex in a work that supposedly excludes matrons is striking. This is matronly sex that stands in sharp contrast with motherhood. Agave, for instance, the most famous of the Thracian maenads, is known not for giving birth, but for dismembering her son in her Bacchic frenzy. When her husband Demophoon abandoned Phyllis, she turned into a bacchant (Ovid, Rem. am. 593–4) before killing herself. If Phylleia mater is a reference to this particular heroine, it is a reference to a ‘childless mother’. In the context of teaching women sexual positions, maternity appears as a synonym of maenadic libido that is markedly divorced from childbearing. The independence of sexual joy from childbirth lies at the heart of the Ars amatoria. The final instructions on sexual positions (Ars 3.769–808) revolve around a tension between the views of austere moralists who would recommend a particular position as conducive to conception and erotic manuals that recommend sexual fi­gurae that give more pleasure. Lucretius (4.1263–77), for instance, mentions the more ferarum (‘doggy style’) position with reference to impregnating wives. According to Lucretius, lascivious movements during sex are discouraged, because they reduce the chances of conception. The Epicurean draws a distinction between wives, who have procreative sex, and prostitutes, who indulge in such motions for the purpose of pleasing men and avoiding pregnancy. For Lucretius, sexual pleasure is a method of contraception and thus wives have no use for it. Lucretius’ advice echoes and contrasts with Greek erotodidactic manuals authored by famous courtesans (see Parker 1992; Gibson 2003: 15–17, 388), in which the pursuit of pleasure was the learning outcome of sexual instruction. Ovid stands in the middle of this tradition (cf. Gibson  2003: 387–9). His concern with decorum aligns him with the moralists, while his focus on women pleasing men in bed continues the trad­ ition of erotodidactic manuals.31 In any case, childbirth is out of the question. What is more, unlike Lucretius or the courtesans’ 31  Ovid’s instructions on sexual positions stand out because they are equally concerned with the pleasure of men and women (see Ars 2.682, 727–8, 3.794, 799–800; cf. Am. 1.10.35–6).

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man­uals, the social and moral status of Ovid’s women is notoriously hard to pin down. Is he giving advice to prostitutes, to freedwomen, to matrons, to all of the above? The references to marital sex from Greek mythology as examples of appropriate sexual positions (Milanion and Atalanta, Hector and Andromache, Ars 3.775–8) add to the impression that Ovid here instructs all women from all social classes. The praeceptor starts his sexual instructions by declaring that not all positions befit all women (Ars 3.772 non omnes una figura decet). His emphasis on decorum would suit a moralist’s concern that some positions are appropriate for wives, others for prostitutes. The next couplet refers to ‘the missionary’ and ‘doggy style’ positions, that is, to figurae mentioned by austere moralists as natural to human beings (see Artemidorus 1.79=94.13 Pack for the ‘missionary position’) or conducive to conception (see Lucretius 4.1263–8 for the more ferarum position). But Ovid avoids prescribing one position for all women, while emphasizing that sex is for pleasure, not childbirth: quae facie praesignis erit, resupina iaceto; spectentur tergo, quis sua terga placent. Ars amatoria 3.773–4 One who has an exquisite face should lie face up; those to whom their behind is pleasing should be seen from behind.

The beauty of parts of the female body, not the chances of conception, dictates the appropriate sexual position. The future imperative iaceto is significant in this context because it juridicizes the praeceptor’s discourse. In contrast with the demographic concerns of the lex Iulia and the didactic tradition of Roman moralists, Ovid asks women to assume certain positions in order to flaunt their beauty. According to the laws of Venus, sexual intercourse produces pleasure, not children. The second use of the future imperative in the final section of Ars 3 is more closely associated with legal discourse. As I argued in Chapter  6, in Ars 3.801–2 (tantum, cum finges, ne sis manifesta, caueto: / effice per motum luminaque ipsa fidem. ‘When you are

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faking it, just beware you are not found out; your motions, your very eyes should make it believable,’ trans. Hejduk 2014 modified), Ovid speaks as a jurisconsult who gives legal advice to his client. What is on trial in Ovid’s court of love is neither a woman’s fidelity nor her fertility but the genuineness of her orgasm. The failure of the womb to give birth to pleasure is its true sterility. The couplet that bemoans women’s frigidity is also framed by two words that suggest infertility and fertility: (infelix, cui torpet hebes locus ille, puella, quo pariter debent femina uirque frui.) Ars amatoria 3.799–800 (Unfortunate the girl for whom that place is blunt and numb, where woman and man ought to get equal enjoyment). (trans. Hejduk 2014 modified)

The primary meaning of infelix is ‘unproductive’. As an agricultural metaphor, it applies to childless women.32 Likewise, the primary meaning of frui is ‘to enjoy the produce of something’. Ovid uses agricultural diction not as metaphor of reproduction but with reference to the crop of pleasures that stands in stark contrast with childbirth. A woman’s private parts are a field from which both women and men ought to reap the fruits of joy. Both sexes should benefit from the equal distribution of erotic products. In Amores 1.3.19, Ovid asks his mistress to give herself to him as fertile subject matter for his poems (te mihi materiem felicem in carmina praebe). Modified by the adjective felicem, materiem puns on mater (‘mother’).33 Ovid wants his mistress to become the mother of his poems, the children of an author in love. Female fertility will bless Ovid with poetic productivity. One of the striking aspects of Ars 3.799–800 is that the diction of the hexameter more appropriately suggests an impotent man than a 32  As I mentioned in the section ‘The Children of Law and Literature’ above, in the Aeneid, Dido’s characterization as infelix (Aen. 4.68, 450, 529, 596) is closely related to her failure to have a child. 33  On the ancient etymological connection between materies and mater, see Maltby (1991: 371). Cf. Lucretius’ wordplay on terra mater and materies, on which, see Nugent (1994: 183).

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frigid woman (see Habinek 1997: 36–7). The adjective infelix can be both masculine and feminine and cui torpet hebes ille more readily evokes a man’s flaccid penis than a woman’s unresponsive clitoris or vagina. The end of the hexameter with puella forces us to reinterpret the line as referring to female private parts. But the employment of diction that can describe the dysfunctional private parts of both men and women drives Ovid’s point home: both sexes should feel equal pleasure. Sex is not the locus in which the gendered distinction between male and female is drawn but a zone of indistinction in which male and female form an inseparable unit. In the Ars, there is no qualitative or quantitative discrimination between sexes in the anatomy of pleasure. In ancient medicine, female pleasure is almost always discussed in the context of conception (see Laqueur  1990: 43–52; DeanJones  1992;  1994: 148–224). A woman’s sexual health was closely associated with childbearing (see King  2013; Kazantzidis  2014: 120–3). Virgins who put off marriage and sexually active but barren women suffer from life-threatening diseases (see Plato, Ti. 91b–d, with Dean-Jones  1992: 76–7; De uirginum morbis = 8.466–71 L, with Kazantzidis 2014: 120–2). Against the background of ancient medicine, which focused on the relationship between childbirth and female sexuality, Ovid makes pleasure an autonomous goal, further suggesting that childbearing undermines sexual joy, because it makes the female body less attractive. Ovid uses the language and arguments of ancient scientists to deny the instrumentality of orgasm and establish the maximization of shared pleasure as an end in itself (Habinek 1997: 36). The independence of sexual joy is the key to understanding Amor’s sovereign jurisdiction vis-à-vis Augustus’ biopolitical agenda. In the context of the pathology of love, the praeceptor amoris casts himself as an expert doctor. In ancient medicine and Latin love elegy, amor is a disease that needs to be cured. Ovid’s Ars amatoria and Remedia amoris draw repeatedly on the medicalization of amatory passion. Yet, for the physicians, orgasm is a clinical problem of fertility or infertility. In exemplary reproductive sex, both partners reached orgasm at the same time (see Hippocrates, On Generation 4.2, with Laqueur 1990: 48–51). Ovid also emphasizes the importance

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of mutual orgasm (Ars 2.681–3, 727–8, 3.793–4, 799–800), but the goal here is to maximize pleasure (plena uoluptas), not have babies. Ovid’s insistence that a man and a woman should feel equal pleasure in sex contrasts with the Hippocratic author, who claims that a woman feels much less pleasure than a man during intercourse, even though her orgasm lasts longer. This appears in a passage that discusses what happens when a man and a woman climax simultaneously (see On Generation 4=VII 474.14–476.8 Littré).34 The topic of the Hippocratic treatise is offspring (γονή), so that discussion of sexual pleasure is in the context of conception. By contrast, the issue of conception is conspicuously absent in the Ars amatoria. The revolutionary nature of this approach can hardly be overestimated. Against the background of ancient medicine, which drew a close link between female sexuality and fertility, Ovid dissociates a woman’s sexual pleasure from conception. Ovid evokes medical discourse to emphasize that he belongs to this scientific field, and suggest the extent to which he differs from other physicians. Similarly, the background of didactic poems and manuals on agriculture is crucial for understanding the tradition to which the Ars amatoria belongs as well as how Ovid’s work differs from it.35 By using the future imperative for legally sanctioning a sexual position, Ovid echoes the voice of Cato, who often uses imperatives in –to in his De agri cultura.36 The archaic feeling of this form adds to the solemnity of Ovid’s injunction. Fertile women are traditionally compared to fertile fields (see DuBois  1988: 39–64). In Ars 1.755–8, for instance, Ovid compares the various temperaments of women with different soils that support different plants. The section on cultus (Ars 3.101–34) plays with the agricultural meaning of the word, recasting it in the urban setting of Roman elegy. Ovid’s women are fields in need of cultivation. The praeceptor draws a clear comparison between refined looks and cultivated soils (Ars 3.101–2). There is, of course, tension in this parallel. The rustic world of agriculture stands in sharp contrast with the 34  Cf. Tiresias’ judgment that women enjoy sex more than men (Met. 3.316–38). 35  On georgic imagery in the Ars amatoria, see Leach (1964). 36  Gibson (2003: 180–1) notes that the future imperative is common in utilitarian popular prose, but generally absent from literary didactic.

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sophisticated manners of the city. Rusticitas is anathema in the Ars amatoria. But there is another, equally striking, incompatibility in the comparison. While women are commonly compared with fields in the context of childbirth, Ovid brings up the crops and cultivation of didactic poetry (cf. Vergil, G. 1.102, 2.1, 35, 51) to stress that the culture of his female students has nothing to do with procreation. Agricultural labour as parallel to childbearing is the exception in the Ars amatoria. When Ovid brings up this comparison, he reminds his female readers that childbirth is the enemy of their looks, because it ages them faster: adde quod et partus faciunt breuiora iuuentae tempora: continua messe senescit ager. Ars amatoria 3.81–2 Furthermore, childbearing too makes the season of youth even shorter; the field wears out through continual harvests.

The concern about time (tempora) is Hesiodic, and the allusion to the Works and Days adds to the agricultural imagery. Just as a field loses its fertility after continuous harvesting and needs to lie fallow (cf. Vergil, G. 1.71–2), childbirth ages a woman and thus makes her unattractive. The discrepancy in the comparison is subtle but significant. It is the loss of attractiveness, not the loss of fertility, that is related to the ageing effect of repeated childbirths. Unlike rich fields, the desideratum of Hesiodic and Vergilian didactic, female fertility is a necessary evil in Ovid. Labor, in the sense of childbirth, is the curse of Ovid’s age. The warnings about the brevity of youth contrast with the instructions about the advantages of mature women (cf. Ars 3.79–82 with 2.665–8). Ovid advises his male students to pursue women with recently greying hair or even older, employing an agricultural metaphor (Ars 2.668 iste feret segetes, iste serendus ager, ‘that field will produce crops, that field should be sown’). If the field is the woman and the sowing is sexual intercourse, what do the crops stand for? The agricultural metaphor typically stands for offspring (see Aeschylus, Sept. 754–5; Sophocles, OT 260, quoted in Janka

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1997: 46; see also Plato, Ti. 91c–d), but Ovid brings up the parallel to highlight his divergence. Old age produces pleasure, not children. The less fertile the female body is, the more productive of sexual joy. The adjective laetus exemplifies the tension between fertility and pleasure. At the beginning of the Georgics, Vergil announces that he will sing of ‘what makes the crops flourish’ (1.1 Quid faciat laetas segetes). The adjective commonly describes rich or fertile soil and is used in this sense by Cato (Agr. 61.2) and Vergil (G. 2.252). By contrast, a woman’s cheerful demeanour (Ars 3.518 femina laeta) is attractive to men who seek to enjoy lovemaking, not to father children. The reference to female joy contrasts with the grim matrons of Greek mythology, Andromache and Tecmessa (Ars 3.517–24). The praeceptor says that if they had not given birth, he could hardly believe they ever slept with their husbands (Ars 3.521–2 credere uix uideor, cum cogar credere partu, / uos ego cum uestris concubuisse uiris. ‘I hardly believe, even though I am forced to believe by childbirth, that you slept with your husbands’).37 Childbirth is ridiculous evidence of sexual intercourse. By eroticizing agricultural didactic, Ovid gives a new and crucial twist to an old metaphor. Work, labor, for instance, a key term of didactic poetry, acquires connotations of childbearing in the Ars amatoria.38 After the advice about the appropriate position for leaving stretch marks out of sight, the praeceptor recommends ‘halflying on the side’ (Gibson 2003: 396) as a simple position and one that requires the least labour (Ars 3.787 simplex minimique laboris). The last word of the hexameter describes the ‘job’ of lovemaking in the context of avoiding the unpleasant effects of giving birth.39 Women in labour both evoke and contrast with women who labour in bed. In his didactic poem, Ovid does not encourage hard work, but teaches how one can avoid it.

37  It may be part of Ovid’s sneering remark that Andromache and Tecmessa gave birth to only one son each. If childbirth is the only proof of sexual intercourse, the evidence seems rather scanty. 38 In Metamorphoses 9, Alcmene in labour replaces Hercules’ labours (see McAuley 2016: 124–6). 39  Ovid’s repeated references to his work as labor also imply that the books of the Ars amatoria are his children; cf. Spentzou (2003: 155–9).

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Lilah Grace Canevaro (2015: 122–3) points out that procreation in the Works and Days is seen in terms of productivity, analogous to planting or rearing animals. The fundamental interaction between agricultural labour and reproduction can be traced back to the origins of didactic poetry. Hesiod marks the right day for getting married (784, 800) and the appropriate days for the birth of male and female offspring (783–800). Issues of marriage and procreation are grafted onto the right time for sowing and taming animals. Hesiod himself provides Ovid with the basis for combining the works of farming with the works of love, but this is imitation with a difference. Childbirth is replaced with the crops of pleasure in Ovid. As a self-fulfilling goal, pleasure is the key to the juridico-discursive autonomy of sexuality in the Ars amatoria. In Chapter 5, I argued that the legal expertise of the praeceptor Amoris is founded in a long tradition of didactic and elegiac poetry, in which the poet is a paragon of justice. Solon, the elegiac legislator par excellence, passed a law prescribing that a husband should have sex with an ἐπίκληρος three times a month (see Plutarch, Solon 20.3).40 The legal requirement of marital sex is meant to help the ἐπίκληρος to have a son that will guarantee the continuation of her father’s line (see Dean-Jones  1992: 80–1). By contrast, the legal framework of female sexuality in Ovid has nothing to do with inheritance and childbirth. The elegiac separation of the laws of sexuality from procreation poses a major challenge to Augustus’ biopolitical agenda. The offspring of an auctor in love is love elegy, a genre that has the power to reward its readers with the pleasure of reading.

The Birth of Authority An essential ambiguity of auctor is that it can describe both the instigator of a crime (auctor criminis)41 and the proposer of a law (auctor legis). Those seemingly antithetical meanings bring up the 40  Ἐπίκληρος is the daughter of a man without male heirs. She had to marry her father’s nearest relative in order to keep her father’s property in the family. 41  e.g. Myscelus’ prayer to Hercules at Ovid, Met. 15.40 tu mihi criminis auctor (‘you are the instigator of my crime’).

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unsettling issue of law’s origins many centuries before Lacan argued that neither does law derive from objective and universal truths nor is it grounded in unshakable foundations. If anything, desire, retrospectively defined as transgressive or legitimate, is the source of law. The power of an auctor consists in inscribing or transforming the extralegal or prelegal into a legal code. As Desmond Manderson (2003: 4) puts it, all law must have a foundation in non-law, in il­legal­ity or violence, which is often capable of being legitimated after the fact. In her study of Propertius 4.11, Micaela Janan (2001: 146–63) argues convincingly that this concept of law is not born out of the modernist disillusionment of Lacanian theory but deeply informed the works of Livy and Propertius. The auctor, whether it is Apollo, Augustus, or Ovid, is involved in the vital struggle of legitimizing or criminalizing desire. By proposing new laws, an auctor exercises extraconstitutional authority in order to legalize what was hitherto illicit or extralegal behaviour. Propertius confronts his readers with this ambivalence when he describes Romulus, the founding father of Roman law, as an instigator of a crime: cur exempla petam Graium? tu criminis auctor, nutritus duro, Romule, lacte lupae. tu rapere intactas docuisti impune Sabinas; per te nunc Romae quidlibet audet Amor. Propertius 2.6.19–22 Why am I seeking precedents from ancient Greeks? You, Romulus, nursed on the harsh milk of a she-wolf, were the instigator of the crime. You taught us to rape the Sabine maidens with impunity. Because of you now Amor dares whatever he likes at Rome.

The rape of the Sabine women was Romulus’ solution to the problem of celibacy that plagued his men. An act of violence is sanctioned as marriage, and desire legalizes crime. Here criminis auctor plays with the elegiac meaning of crimina as extramarital affairs.42 42  Cf. Caunus’ threatening address to the servant who delivered Byblis’ love letter at Met. 9.577 uetitae scelerate libidinis auctor (‘oh criminal instigator of forbidden desire!’).

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Romulus is simultaneously the instigator of illicit sex and a marriage broker. Since the Sabine women marry their rapists and give birth to their children, Romulus’ authority is that of a father sanctioning the marriage of his children. As an auctor who teaches crimina that are not punished by law, and thus establishes the sovereign rule of Amor, Romulus is appropriated in the elegiac discourse and bears uncanny similarities to the elegiac praeceptor amoris. The archetypal Roman lawgiver is a reflection of the teacher of love, just as Roma is a reflection of Amor. But this is similarity with a difference. The elegiac teacher neither urges men to rape virgins nor brokers marriage. Once more, we see a close connection between exemplum and auctor. Romulus is a precedent that legalizes transgressive desire. The Greek examples that in turn precede Romulus’ acts include the Centaurs who attempted to carry off the bride at the wedding of Pirithous (Propertius 2.6.17–18). This act of violence, a fundamental example of anomic and uncivilized behaviour, appears as comparable to the conduct of Romulus and his men. Nursed by a she-wolf, Romulus appears as beastly as the Centaurs. He is indeed a wolfish legislator, because he exemplifies the indistinction between law and crime.43 The auctor criminis can be either a lawless beast or the founding father of Roman law. In his radical solution to the problems of celibacy and childbirth, Romulus also bears more than fleeting similarities to Augustus. In Dionysius of Halicarnassus (Ant. Rom. 2.24–5), Romulus features as an exemplary legislator who first and foremost passed laws that guaranteed the stability of marriage and the chastity of women. Scholars (Milnor 2005: 147–8) note the similarities between Dionysius’ praise of Romulus’ laws and Augustan ideology, particularly the ways in which the historian links the endurance of the Roman state to morality, and morality to a stable household. As Kristina Milnor (2005: 148) puts it, Romulus as a social lawgiver provides a history for Augustan legislation, so that the prince’s moral reforms appear not as innovations, but as the restoration and renewal of laws passed under the original Roman king. In other words, Romulus is the exemplum that boosts Augustus’ legislative authority. Every lawmaker, 43  On the wolf as an animal emblematic of the outlaw and the legislator, see Chapter 5.

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especially a new one, needs to find or invent a precedent, and Romulus plays the role of the ur-Roman lawgiver. Even though composed before the lex Iulia, Propertius 2.6 subversively anticipates Augustus’ self-presentation as an auctor who proposes moral legislation that follows the virtuous exempla of the past, such as Romulus, the father of Roman marriage laws.44 In Propertius, Romulus authorizes transgressive desire and thus ­fulfils his role as an auctor, that is, an extralegal power that grants legitimacy (cf. Magdelain  1990: 685–6; Agamben 2005a: 78). Romulus, the first pater patriae, sanctions the marriage of his ‘children’ by sanctioning the violence of Amor. Just as auctor conflates criminal behaviour with legislation, exempla, followed by impune, evokes its meaning as ‘exemplary punishment’ (OLD 3b). Far from being a deterrent or warning example for criminals, Romulus’ encouragement of rape establishes the rule of Amor’s violence in Rome. The instigation and validation of violent desire create a precedent and have two antithetical, albeit interconnected consequences; the proliferation of Romulus’ example in Rome and the procreation of offspring. Even though the children of Romulus’ men and their Sabine wives are not mentioned in Propertius 2.6,45 Romulus still represents the close link between exemplarity and reproduction in the act of legislation. He was indeed an appropriate exemplum for Augustus. Ovid celebrates the conferral of the title of pater patriae on Augustus in Fasti 2.119–44. The prince is the earthly version of Jupiter, the father of the gods and the divine incarnation of justice. The moral legislation could not be absent from the praise of the pater patriae (cf. Chapter  2) —Ovid mentions it as he compares Augustus with Romulus to highlight the superiority of the prince:

44  It may be significant that the following elegy, 2.7, celebrates the repeal of a marriage law. Note also that at the end of 2.6, Propertius says that a stern guard over an unwilling woman is a futile precaution (36–40). This not only anticipates Ovid, Amores 3.4, but also resonates with Dionysius’ criticism of foreign laws that strictly guarded women as inefficient (Ant. Rom. 2.24.6). 45  The children are mentioned elsewhere. Thanks to the sons of Romulus’ men and the Sabine women, the impending war between ‘fathers-in-law’ and ‘sons-in-law’ is avoided (see Ovid, Fasti 3.217–28).

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Authors of Law and Life  335 tu rapis, hic castas duce se iubet esse maritas: tu recipis luco, reppulit ille nefas. uis tibi grata fuit, florent sub Caesare leges. tu domini nomen, principis ille tenet. Fasti 2.139–42 You [i.e. Romulus] rape brides; he [i.e. Augustus] commands them to be chaste under his leadership: you admit sacrilege in your grove; he banished it. Violence pleased you; laws flourish under Caesar. You bear the name of a master, he of a prince.

Ovid contrasts Romulus, who represents violence and tyranny, with Augustus, who exemplifies lawfulness and leadership. But just as, despite the common contrast between violence (uis/βία) and law (lex/νόμος), a law without the power to marshal force is virtually no law,46 Romulus and Augustus have more in common than what the passage may suggest at first sight. Antithesis is based on similarity. The word order castas . . . maritas suggests a reading that makes Augustus similar rather than dissimilar to Romulus; instead of encouraging married women (maritas) to be chaste (castas), Augustus forces chaste women to marry, setting the example himself by snatching a pregnant Livia from her husband and marrying her. Enforced marriage is the violation of chastity.47 Suetonius calls his marriage an abduction (Aug. 62.2 abduxit Liuiam). Likewise, Tacitus reports rumours according to which Livia was abducted from her husband. Some thought that the foundation of Augustus’ marriage was a travesty of legality.48 Caligula will later quote the precedent of Romulus and Augustus (Suetonius, Calig. 25.1 exemplo Romuli et Augusti) to justify his taking of Calpurnius Piso’s wife Livia, but Ovid already implies a similarity between the ‘wife-snatchers’

46  Cf. the contrast and conflation of violence (βία/ὕβρις) and justice (δίκη) in Hesiod and Solon (see Chapter 5). 47  Readers of Amores 3.4 will also recall that enforced chastity is futile. The law cannot simply order wives to be chaste (see Chapter 3). 48 Tacitus, Ann. 1.10 Nec domesticis abstinebatur: abducta Neroni uxor et consulti per ludibrium pontifices an concepto necdum edito partu rite nuberet. ‘His domestic adventures were not spared: the abduction of Nero’s wife, and the farcical question to the pontiffs, whether, with a child conceived but not yet born, she could legally wed.’

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Romulus and Augustus, while seemingly contrasting rape with marriage legislation (cf. Robinson 2011: 153). Instead of replacing violence, the law divides it into legitimate and illegitimate. Readers of the Fasti should know that Romulus, the first pater patriae, was Augustus’ ideological prototype, an ancestral exemplum on which the prince modelled his marriage le­gis­la­tion. The contrast between Romulus and Augustus prob­lem­atizes the Augustan propaganda of ancestral exemplarity. As Stephen Hinds (1992: 133) puts it, in Res Gestae 8.5, ancestral practices lend authority to the Augustan programme; in Fasti 2.133–44, they threaten to deconstruct it.49 Nor does the comparison of Augustus with Jupiter do any favours to the prince in this context. As Fanny Dolansky (2016: 48) points out, the concluding lines of the panegyric for the pater patriae compare Augustan legislation with an act of rape, and the subsequent narrative of Jupiter’s rape of Callisto furthers this connection (cf. Boyle  1997: 9). Has Augustus put an end to the transgressions of the past with his laws or sanctioned them by making the dubious acts of Rome’s founding father the foundation of moral reforms? Does the law check violence or normalize coercion? The antithetical meanings of auctor, an authoritative proposer of laws and a person at whose instigation a crime is committed, are explained if we consider that auctoritas is the power that suspends the law or grants legitimacy. The confluence of law and crime in the figure of an auctor lies in the extraconstitutional nature of auctoritas. Agamben (2005a: 77) points out that the auctor’s act is not founded upon some sort of legal power vested in him to act as a representative, but springs directly from his condition as pater. The juridical system of the Romans is founded on a double structure formed by two heterogeneous, yet coordinated elements: one (potestas) that is normative and juridical in the strict sense and one (auctoritas) that is anomic and metajuridical (Agamben  2005a: 49  Boyle (2003: 200) points out that Ovid’s tribute to Augustus uses the prince’s self-defining virtues to expose them for their rhetorical and political fiction. On subversive elements in Ovid’s praise for the pater patriae in Fasti 2, see Wallace-Hadrill (1987: 228); Hinds (1992: 132–4); Barchiesi (1997: 141–4); Boyle (1997: 9); Dolansky (2016). For an overview of different interpretations (‘supportive’ and ‘subversive’) of the encomium, see Robinson (2011: 138–9).

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85–6). An auctor’s authority simultaneously lies outside strictly prescribed legislation and has the power to influence, sanction, break, or reform the rule of law. The auctor is the father figure who creates the law and, as the archetypal creator of legislation, stands outside the juridical order. Agamben (2005a: 74–88) further argues that the pre-eminence of auctoritas in relation to potestas becomes a figure of law’s immanence to life. The biopolitical tradition of auctoritas springs from the figure of the father (auctor) as the originary legislator. The importance of auctoritas in Augustus’ regime can hardly be underestimated and has justly been the focus of a number of perceptive studies.50 The key and much discussed passage that establishes a dialectic between auctoritas and potestas under Augustus comes from the last part of the Res Gestae: 1. in consulatu sexto et septimo, postqua[m b]el[la ciuil]ia exstinxeram, per consensum uniuersorum [po]tens re[ru]m om[n]ium, rem publicam ex mea potestate in senat[us populi]que R[om]ani [a]rbitrium transtuli. 2. quo pro merito meo senat[us consulto Au]gust[us appe]llatus sum et laureis postes aedium mearum u[estiti] publ[ice coronaq]ue ciuica super ianuam meam fixa est, [et clu]peus [aureu]s in [c]uria Iulia positus, quem mihi senatum pop[ulumq]ue Rom[anu]m dare uirtutis clement[iaequ]e iustitiae et pieta[tis caus]a testatu[m] est pe[r e]ius clupei [inscription]em. 3. post id tem[pus a]uctoritate [omnibus praestiti, potest]atis au[tem n]ihilo ampliu[s habu]i quam cet[eri, qui m]ihi quoque in ma[gis]tra[t]u conlegae f[uerunt]. Augustus, Res Gestae 34 1. In my sixth and seventh consulships, after I had put an end to civil wars, although by everyone’s agreement I had power over everything, I transferred the state from my power into the control of the Roman senate and people. 2. For this service, I was named Augustus by senatorial decree, and the doorposts of my house were publicly clothed with ­laurels, and a civic crown was fastened above my doorway, and a

50  See Galinsky (1996: 10–41); Agamben (2005a: 74–88); Lowrie (2009). Rowe (2013) disputed the importance of auctoritas (contra Galinsky). Galinsky (2015) gives, in my view, a compelling response to Rowe (2013).

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338  Law and Love in Ovid golden shield was set up in the Julian senate house; through an inscription on this shield the fact was declared that the Roman senate and people were giving it to me because of my valour, clemency, justice, and piety. 3. After this time I excelled everyone in influence, but I had no more power than the others who were my colleagues in each magistracy. (text and translation Cooley 2009)

Augustus emphasizes that he was the legitimate owner of absolute power after he put an end to civil war. The phrase potens rerum omnium combines the idea of owning property and being a de facto monarch, a ruler of the universe.51 The diction nicely juxtaposes universal consensus with universal command. The potens prince is the centre around which the world revolves. Cooley’s translation of potens as a concessive participle should be correct. Even though Augustus would have been totally justified in becoming the absolute monarch, he surprisingly decided to transfer the state to the senate and the Roman people. The diction of 34.1 is significant because it describes the work of an auctor. Transferre commonly describes the transference of rights or property (see Cicero, Off. 1.43–4; Digest 4.3.7.8, 4.7.4.3 [Ulpian]), a transaction that is guaranteed by an auctor (see Chapter 8, with Gebhardt 2009: 111, 328–9). The transference of the possession of the state from Augustus to the senate and the Roman people is sanctioned by Augustus, the auctor in the legal meaning of the term. Augustus approves of the rights rendered to the senate and the people, just as in mancipation the auctor guarantees the possession of the transferred object (cf.  Magdelain  1947: 57; Agamben  2005a: 82). Augustus becomes the auctor of the Republic at the very moment of transferring the state to the senate and the people, a transaction that is legitimate because the state really belonged to Augustus, the auctor/guarantor. In other words, Augustus exercises supreme authority by giving up le­git­im­ate power. The prince subtly presents himself as an auctor in the very action of disavowing his potestas. This gesture of imperial recusatio is a 51  Cooley (2009: 257) refers to the expression rerum potiri (cf. Tacitus, Ann. 1.5.4), which comes to denote the position of a de facto monarch.

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simultaneous denial and appropriation of the juridical order (cf. Chapter 2 on recusatio imperii as the foundation of sovereignty). The title Augustus, which is etymologically related to auctor, is conferred right after Octavian completes the transference as a guarantor. The prince opts for auctoritas instead of dominium. Even though he could be the owner/master of the res publica (with the ‘Commonwealth’ being his own res ‘property/chattel’), he chose to transfer ownership and free the Republic. Suetonius (Aug. 28.2) quotes an edict in which Augustus expresses the hope that he will be called by posterity optimi status auctor, a phrase that is similar to the prince’s claim that he surpassed all in auctoritas. Once Augustus sets up a politically charged semantic nexus of auctor, Augustus, and auctoritas, he concludes his monumental work by mentioning that he was hailed as the Father of the Fatherland by the senate, the equestrian order, and the Roman people (Res Gestae 35). The prince’s auctoritas is inextricably related to his title of pater patriae (cf. Galinsky  1996: 16). The narrative thread of Res Gestae 34–5 moves seamlessly from the negation of potestas to Augustus’ supreme auctoritas, which elevates him to the status of the Father of the Fatherland. The transition from the end of civil wars to Augustus’ auctoritas in the Res Gestae corresponds to the narrative sequence of Metamorphoses 15.832–7 (discussed in the section ‘The Children of Law and Literature’ above). The end of civil strife is followed by the acknowledgment of Augustus’ justice right after he disavows what legitimately belongs to him. By this act of disavowal, he becomes the father of the Roman commonwealth. There is a contrast between potestas (that is, power that is based on law) and auctoritas (that is, authority that is based on extralegal influence). Octavian’s undisputed potestas is the result of his victories in civil wars, while Augustus’ auctoritas establishes peace and supreme justice. From that perspective, potestas is the power of the law, while auctoritas is the source of justice. While potestas is a father’s legally sanctioned power over life and death, auctoritas is the rule of paternal love. The two concepts both contrast and complement each other. If auctoritas stands for the transcendental origin of justice and potestas for the legal code, it

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follows that one cannot exist without the other. The Roman father has both auctoritas and potestas. In Derridean terms, the origin does not exist independently of its institution, but exists only through its functioning within a classification and therefore within a system of differences (see Derrida  1997: 109; cf. Derrida  2002: 230–98). That is why Augustus’ auctoritas is always defined with reference to his potestas. While the prince’s authority was closely related to powers conferred by law (cf. Levick  2010: 12–15), the crucial point is that law-based offices are not the ultimate origin of auctoritas. Auctoritas is defined with reference to the law or to what lies outside it. Its extraconstitutional nature is the definition of sovereignty as the source of justice, but is also the reason why Augustus can hardly monopolize it. The poets (auctores) have their own authority and are thus the prince’s doppelgängers; the source of their influence is divine, thus supreme, and extraconstitutional. Poetic justice is a major challenge to Augustus’ unique authority as an indispensable component of his supremacy. From a historical perspective, the tension between poetic and imperial authority is played out against the shift from the Republic to the Principate. While the legislative procedures of the Roman Republic were decentralized, Augustus attempted to control the production and interpretation of law without seemingly interfering with the legal legacy of the Republic (see Colognesi  2014: 320–37). Augustus monopolizes legislation, but Augustan poets insist on the polyphony of the lawmaking procedures (cf. Chapter 6). Ovid’s attempts to cast his works as his legitimate children resonate with the biopol­it­ics of Augustan legislation as well as with the literary and philosophical tradition that describes law and literature as the offspring of authors in love. In the autonomous world of Latin love elegy, in which desire is divorced from family ties, the praeceptor Amoris becomes a father figure. In didactic and wisdom literature, the authoritative role of the father figure is implicated in the production of normative discourse. The Ars amatoria belongs to the tradition of didactic elegy, in which the older lover (ἐραστής) teaches a younger beloved (ἐρώμενος) civic virtue (see Chapter 5 on Theognis). This pederastic affair is expressed in terms of a father-son relationship (cf. Sharrock

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1994: 31–2). In Roman tradition, Cato’s precepts to his son (Praecepta ad filium) have the force of law (see Schiesaro 2007: 69). Cicero’s De officiis, an important intertext for the Ars amatoria (see Gibson 2007: 105–47), is addressed to his son Marcus, but is also meant to instruct the Roman youth for whom Cicero, the pater patriae, would be a father figure. As an auctor of didactic poetry, Ovid assumes the role of a father who lays down the law. But the figurative father is often in tension with the biological parent. The voice of Ovid’s father in Tristia 4.10.21–2, for instance, antagonizes the value system of Latin love elegy (see Chapter 2). Cato’s paternal precepts teach about resisting pleasure in sharp contrast to the elegiac manifesto. The eroticization of education on the model of a father-son relationship goes back to Socrates and Theognis. While paideia and pederasty are two sides of the same coin in ancient Greece, they do not really go together in Rome (cf. Sharrock  1994: 32). Yet the transformation of this Greek system of aristocratic education in Roman elegy is highly significant. The confluence of the father figure and the lover is particularly striking in Ars amatoria 3. As any good teacher knows, the most effective way of teaching is putting to practice or bringing to life the contents of one’s syllabus. Ovid teaches seduction by seducing his students. His female students in particular are the objects of his love, a love that is simultaneously paternal and erotic. In an elegy addressed to his daughter Perilla (Tr. 3.7), the exiled poet virtually constructs her as the mistress of his earlier love poetry.52 In this poem, Perilla occupies the position Corinna had in the Amores.53 She also plays the role of the female students of Ars amatoria 3. As her father, Ovid was her teacher (24 magister) and judge (24 iudex) of her passion for poetic creation. In a typically Ovidian fashion, Ovid first advises Perilla to abstain from composing an 52  On Perilla as the scripta puella of Latin love elegy (Wyke 2002), see Ingleheart (2012); Boyd (2017: 175–80). 53  See Ingleheart (2012: 229–35). Note that the scansion of Corinna and Perilla is identical. The etymologies of their names also suggest that they may stand for any woman. Corinna is etymologically related to κόρη (‘girl’) and Perilla puns on illa (‘that girl’). Donald Watt (per litteras) points out that Perilla suggests puella and thereby parallels Corinna/κόρη.

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Ars amatoria (31–2), only to undermine in the next couplet what he just said. His invitation to Perilla to return to the noble arts and her sacred rites (32 inque bonas artes et tua sacra redi) urges the docta puella to compose her own Ars amatoria (Ingleheart 2012: 236–7). This is further suggested by what follows. The passage about the brevity of youth, which will inevitably deprive Perilla of her beauty (33–8), reiterates the praeceptor’s advice to his female students (Ars 3.59–82) to be mindful of old age. Both Perilla and the readers of Ars 3 are warned against being ‘inactive’ (Ars 3.60, Tr. 3.7.22 iners ‘without art’). The father of Perilla and the praeceptor amoris transform inexperienced girls into doctae puellae. Of course, we can read Tristia 3.7 as part of the exiled poet’s agenda to de-eroticize Latin elegy and transform extramarital into familial love. But we can also trace the fundamental similarities between Ovid’s elegies of love and exile.54 The erotic aspects of Ovid’s elegy to his daughter correspond to the paternal characteristics of the love elegist. In Tristia 3.7, Ovid is a father and a leader (18 pater natae duxque), who, not unlike the Father of the Fatherland, lays down the law not only to his only daughter, but also, through her (per illam), to all women. Ovid’s self-presentation as pater natae duxque could be a description of Augustus himself, the leader of the Roman people and father of an only daughter. Ovid comes out as a loving father, an auctor who employs the discourse of Latin elegy in order to educate his daughter. The contrast with Augustus, the auctor of strict laws that his daughter Julia ostentatiously defied, could not be sharper. Perilla follows the exemplum of her father in her poetic pursuits, while Julia breaks the laws of her father. The auctor legis and auctor elegiae compete, collude, and collide. Tristia 3.7 ends with Ovid’s defiant declaration that Caesar has no jurisdiction over his talent (47–8, discussed in Chapter 2). This famous couplet sets poetry above the laws of the Roman Empire. Ovid, the father of Perilla, a daughter who exemplifies the confluence of the poetic with the biological, is more power­ful than

54  Ingleheart (2012) argues convincingly that the exile poetry’s break with erotic elegy is not as decisive as Ovid claims.

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the pater patriae as a biopolitical author. Poetic talent is the extralegal and thus sovereign source of auctoritas. Ovid is an auctor who produces a text that in turn fashions women in the image of his desire. Perilla is simultaneously the poet’s daughter and the scripta puella of love elegy. The level of indistinction between the poetic and the biological parallels the biopolitical aspirations of Augustan legislation. The praeceptor amoris resembles Pygmalion, an artist and a father figure whose love for his creation verges on incest (Met. 10.243–97).55 Like a father/god, Pygmalion breathes life into his ivory daughter and then marries her with the help of Venus. The artist’s love for his own artefact transforms it into the living body of a woman. From that perspective, not only the books of the Ars amatoria but also the readers who follow their precepts become Ovid’s children, the offspring of an author in love. The common interplay between the body (corpus) of the text and the body of the elegiac mistress drama­tizes the crucial transformation of the written word of love into the physical presence of the beloved.56 The artefact morphs into flesh and blood, and thus love poetry claims the biopolitical force of law.

Conclusion The sovereign legislator begets children by creating new laws. The laws are children who in turn produce offspring. Thus, the law erases the distinction between word and flesh. The interdependence of word and flesh is crucial not only for Augustan law, but also for the poetics of Latin love elegy. While Augustus’ marriage legislation is closely linked with biological reproduction, the law may be more important than biology in producing legitimate offspring. Unless a 55  Downing (1990) argues that whereas Pygmalion brings a lifeless statue to life, Ovid aims at transforming living women into artefacts. His analysis is compelling, though I see more similarities between the praeceptor and Pygmalion than differences, since the ideal woman for both is a hybrid of the natural and the artificial. For the similarities between the elegiac Ovid and Pygmalion in their artistic creations of women, Sharrock (1991) is important. 56  Cf. Downing (1990: 245, 250) on how Ovid’s students are to become, to incorporate, the praeceptor’s book by a process of imitative citation.

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father picks up a newborn baby in an act of formal recognition (tollere), the child may be reduced to bare life, exposed to an inevitable death that does not concern the law. The Roman father is the embodiment of sovereignty because he can decide whether a child’s life should be inscribed in the juridical order or abandoned outside the shelter of the law. Ovid’s poetics reflect law’s power to control life by including it in the juridical order. The praeceptor amoris is an auctor who fathers children through the performative discourse of powerful poetry. In contrast to the demographic programme of the Augustan legislation, the confluence of law and life in Latin love elegy is often dissociated from biological reproduction. The Roman father has power of life and death from the moment of his child’s birth. An auctor can refer to a patriarch (e.g. at Met. 12.558 Neptune is Nelei sanguinis auctor, ‘the forbear of Neleus’ bloodline’) or to a father figure responsible for his child’s death. Dido, for instance, tells Aeneas that he will be responsible for the death of his unborn son (Ovid, Her. 7.136 nondum nato funeris auctor eris, ‘you will be the cause of death to your unborn son’)57 in a line whose effect relies on the paternal connotations of auctor. Dido implies that father Aeneas does not live up to his name. In the Metamorphoses, when Phaethon asks the Sun to let him drive his chariot as a proof of his paternity, the god is concerned that this wish may be the cause of his son’s death (Met. 2.88–9 at tu, funesti ne sim tibi muneris auctor, / nate, caue, dum resque sinit, tua corrige uota. ‘But you, son, beware lest I be the source of a funeral gift to you, and while the case allows it, amend your wish’). The juxta­pos­ition of auctor and nate draws attention to a father’s fear that from being a giver of life he may become the source of his son’s death. Within the Sun’s speech, the advice of a father to his son and the instructions of an expert about the laws of nature to an amateur cast the god as an auctor, an influential adviser or authoritative teacher. The diction (caue, dum resque sinit) suggests a jurist who gives legal advice to his client (cauere) about a particular case (res). Paternal love is the

57 Cf. Met. 10.199 ego sum tibi funeris auctor. ‘I [i.e. Apollo] am the cause of your [i.e. Hyacinthus’] death.’

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origin of the law, while obeying the law of the father is a matter of life and death. An auctor can be the source of life or the cause of death, just as he can be the proposer of a law or the perpetrator of a crime. The coincidence of opposites in the figure of the auctor exemplifies his ability to be in and out of the legal system, to beget the juridical order by excluding himself from it. The extraconstitutional nature of authority that defines what lies inside and outside the law is where Augustus, as auctor legum, and Ovid, as auctor carminum, meet and ineluctably collide. The Father of the Fatherland aims to control life by regulating the sexual affairs of his ‘children’. The aspirations of the praeceptor amoris are no less ambitious. Ovid systematically styles himself in Augustan terms; he is an ‘avenger’ (Ars 1.24 ultor), a ‘leader’ (Ars 1.382 dux); he claims sacrosanctity and majesty for bards long before Augustus (Ars 3.407–8, with Chapter 2). Above all, he casts himself as an auctor, a father figure and the ultimate source of law, life, and love.

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8 Love and Incest Introduction Towards the end of Chapter 7, I argued that a combination of paternal and erotic love inspires Ovid’s didactic poetry. This com­bin­ation revives the pederastic model of archaic Greek elegy and raises the praeceptor amoris to the status of a father/legislator. This chapter focuses on the figure of Orpheus as a lawgiver and a pederast, in order to further explore the relationship between law and life. As a result of his failure to bring Eurydice back to life, Orpheus turns from heterosexual to homosexual, from instituting marriage laws (see Horace, Ars Poetica 391–401) to becoming the founding father of pederasty (see Ovid, Met. 10.83–4). Orpheus sings of boys loved by gods (Jupiter and Ganymede, Apollo and Hyacinthus) and girls struck by forbidden passions (Met. 10.152–4). The tale of Myrrha (Met. 10.298–514) is an exemplum of the latter. While the lover is a father figure in Orpheus’ pederastic tales, Myrrha’s passion for her father breaks the incest taboo and thus undermines the role of the father as the embodiment of law. Scholars studied the ways in which Orpheus in the Metamorphoses is a figure of Ovid (Segal 1972; Johnson 2008: 96–116; Pavlock 2009: 89–109). Orpheus’ ritual cry before he tells of the scandalous story of Myrrha’s incest reiterates the initial disclaimer from the Ars amatoria. As a praeceptor amoris, Orpheus introduces novel laws of love that undermine marriage, and pays with his life for legalizing extramarital affairs. Ovid’s Orpheus belongs to the age of Augustus. Even though the myth of Myrrha takes place in a temporally and spatially remote land, it is rife with allusions to Rome, the prince, and his marriage legislation. Myrrha’s fulfilment of her incestuous Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020) © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0008

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passion is the result of challenging and appropriating the patria potestas. The myth can be read as a warning against compromising the father’s power to decide on the issue of marrying his children, thus commenting on the fact that Augustus’ marriage legislation weakened the Roman father’s right to have the final say on this matter. A clear sign of the myth’s Romanization is Myrrha’s soliloquy, which stylistically and thematically evokes a declamation. The genre of declamation is crucial here. As Erik Gunderson (2003: 13) puts it in his compelling book on Roman declamation and pater­ nity, ‘declamation struggles to formulate the rules for a critique of the unassailable sovereignty of the law of the father’. Myrrha’s agenda is precisely this. Not unlike declamatory law, Myrrha’s love for her father exposes a paradox wherein obedience to one prin­ ciple conflicts with acceding to another (cf. Gunderson 2003: 22). Incest, love, and sexuality constitute the thematic core of Roman declamations. This genre brings up unresolved issues about the source of legality. Its topics put the law of the father to the test.

Marriage Legislation and the Origins of Law The regulation of desire is not simply one aspect of legislation but exemplifies the foundation of the legal system as the transition from violence to justice. The institution of marriage and the prohibition of adultery mark humanity’s evolution from wild life to civilized society. The crucial distinction between ζωή (‘bare life’) and βίος (‘political life’) that lies at the heart of Foucault’s and Agamben’s analysis of biopolitics should be examined against the foundation of the legal system in the regulation of sexual affairs. The laws that govern physical attraction transpose sexual desire from the instincts of animal life (ζωή) to the needs of political communities (βίος). The regulation of desire is the beginning of the rule of law that sig­ nals the shift from unregulated sex to the juridical discourse of sexu­al­ity. From that perspective, Augustus’ moral reforms are nei­ ther unprecedented nor novel in criminalizing adultery and encouraging marriage, but restore the very origins of a harmonious society that outlaws transgressive passions and gives rights to

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spouses. The shift from the violence of animal urges to the peace of marital bonds is the turning point not only of Augustan history but also of the history of humanity. By putting an end to civil strife that cost the lives of numerous Romans and by establishing peace and laws that encourage childbirth, Augustus resembles originary legis­ lators who put an end to brutal violence by regulating social and sexual intercourse. I offer this summary of the relationship between the origins of law and the regulation of desire not as an impartial account but as an overview seen through the lens of Augustan Rome.1 When Horace traces the origins of human civilization in the prohibition of promiscuity and the establishment of marriage laws, his version of the transformation of human life from bare to political resonates with Augustus’ moral reforms: Siluestres homines sacer interpresque deorum caedibus et uictu foedo deterruit Orpheus, dictus ob hoc lenire tigris rabidosque leones. dictus et Amphion, Thebanae conditor urbis saxa mouere sono testudinis et prece blanda ducere quo uellet. fuit haec sapientia quondam, publica priuatis secernere, sacra profanis, concubitu prohibere uago, dare iura maritis, oppida moliri, leges incidere ligno. sic honor et nomen diuinis uatibus atque carminibus uenit. Horace, Ars Poetica 391–401 While men still roamed the woods, Orpheus, the sacred prophet of the gods, made them shrink from bloodshed and foul food;2 hence it is said that he tamed tigers and ravening lions; hence too it is said that Amphion, builder of Thebes’ citadel, moved stones by

1  Law and violence, for instance, are not mutually exclusive. The law divides violence into legitimate and illegitimate (see Chapter 7). 2  ‘Foul food’ suggests not only the killing of animals in connection to Orpheus’ vege­tar­ ian­ism, but also cannibalism (see Rudd 1989: 214).

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Love and Incest  349 the sound of his lyre, and led them wherever he would by his ­supplicating spell. Once this was wisdom, to discern public from private affairs, sacred from profane, to check casual sex, to give rights to spouses, to build cities, to inscribe laws on wood. So honour and renown fell to divine bards and their songs.

For Horace, marriage legislation lays the foundation of human society. The laws that control sexual intercourse lie at the heart of human civilization. The first step is to separate public from private rights, the second the sacred from the profane, and then the wis­ dom of the bards managed to regulate sex and institute marriage.3 The foundation of cities and the inscription of laws become possible only after these three steps. Thus, the rules that regulate human intercourse precede state laws. Law is born out of the necessity to curb unrestrained libido and out of the desire to bring people together harmoniously. Turning desire into the cornerstone of a peaceful society is the very basis of the legal system. The songs of Orpheus and Amphion are keys to putting an end to the brutality of primitive men. Song has the force of law in its ability to civilize human beings and, in Orpheus’ case, even wild animals. The power of Orpheus’ and Amphion’s songs to tame wild ani­ mals and set stones in motion is related to powerful diction that can transform the face of nature. Language that reflects and reshapes the natural order has the force of law. The key word carminibus (‘charms’, ‘incantations’, ‘songs’, ‘poems’) describes powerful verse that can bring about a physical reaction that reifies the speaker’s wishes.4 The foundation of a city, the construction of city walls, and the establishment of laws are the work of divinely inspired bards. Poetry is thus cast as the very source of political life. A bard’s ­carmen transforms ζωή into βίος. It is significant that in a passage that resonates with Augustan legislation, bards, not rulers, feature as the first lawgivers, while 3  The first step is interesting in view of Augustan politics. Augustus’ sociolegal statutes blend public with private matters by criminalizing private affairs. Dio Cassius (55.12.15) attests that Augustus made his house public (see Chapter 3). Unlike the wise bards of the past in Horace, the prince blurs the distinction between public and private. 4  Putnam (2000: 132). On carmen as related to law, poetry, and magic, see Chapter 4.

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originary legislation is implemented by means of song. Interestingly, the songs of the bards are described in terms that belong to the dis­ course of seduction in Latin love poetry (cf. Horace, Ode 4.1.7–8; Ovid, Ars 1.709–10, 3.315–16, Met. 10.642), in which the lover commonly tries to move the beloved with flattering words.5 The poetic force that built cities and made people organize themselves in civilized societies relies on the poetics of love poetry. A song that has the power to move (mouere) even rocks lies at the heart of Latin elegy, a genre that employs poetry in order to charm and move a mistress who is often presented as hard and harsh as a rock. A mov­ ing song that can change the dynamics of human relations is a song with legislative power. As a civilizer and legislator, Orpheus is described in terms that put him in an intermediary position between the human and the divine; he is sacer interpresque deorum. As a spokesman or messen­ ger of gods, Orpheus is a uates in the role of an expositor of divine laws and omens. The word interpres describes an intermediary who interprets oracles or laws (see OLD s.v. 3c), bringing together the vatic and legal authority of Orpheus’ diction.6 In the context of bards as interpreters of the gods, it is significant that Orpheus is described as sacer. The word order (homines sacer) as well as the context of prejuridical and thus extralegal slaughter suggests a homo sacer.7 Orpheus’ sacrosanctity institutes the juridical order by putting an end to uncivilized brutality. As a homo sacer, Orpheus is outside the law because he lives before the emergence of the jur­id­ ic­al order. Yet the very reference to him as sacer suggests his in­viol­ abil­ ity and sovereign authority as an originary lawmaker. It is thanks to his exceptional status and his proximity to the divine that Orpheus tames the animal nature of humanity. The old bards lived in prejuridical times and were thus instrumental in bringing the juridical order to life. 5  On love and persuasion in antiquity, see Gross (1985). 6  See Chapter 6 on the confluence of oracular and legal diction. 7  Note also that sacer, a word that can refer to a sacrificial animal or to a person who may be killed but not sacrificed (homo sacer), appears in the context of Orpheus’ avoidance of animal sacrifice implied in uictu foedo (cf. Aristophanes, Frogs 1030–6, with Graziosi 2018: 183, 192–3).

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In Satire 1.3.99–110, Horace gives a similar outline of human evolution from the brutality of animal life to the rule of law. Laws against adultery are again the turning point in human civilization. The transition from animal to civilized life is first marked by the invention of language. Once human beings are able to communi­ cate verbally, they build cities and institute laws against theft and adultery. Language is thus the source of law, and law is the renunci­ ation of violence: Cum prorepserunt primis animalia terris mutum et turpe pecus, glandem atque cubilia propter  unguibus et pugnis, dein fustibus, atque ita porro pugnabant armis, quae post fabricauerat usus, donec uerba, quibus uoces sensusque notarent, nominaque inuenere; dehinc absistere bello, oppida coeperunt munire et ponere leges, ne quis fur esset, neu latro, neu quis adulter. nam fuit ante Helenam cunnus taeterrima belli causa, sed ignotis perierunt mortibus illi, quos uenerem incertam rapientis more ferarum uiribus editior caedebat ut in grege taurus. Horace, Satire 1.3.99–110 When living creatures crawled forth upon primeval earth, dumb, shapeless beasts, they fought for their acorns and lairs with nails and fists, then with clubs, and so on step by step with the weapons which need had later forged, until they found words and names wherewith to give meaning to their cries and feelings. Thenceforth, they began to cease from war, to build towns, and to lay down laws that none should be a thief or bandit or adulterer. For before Helen’s day a cunt was the foulest cause of war, but deaths unknown to fame were theirs whom, snatching fickle love in wildbeast fashion, a man stronger in might struck down, like the bull in a herd.

Once language gives humans the ability to describe someone as a thief, a bandit, or an adulterer, the legal system is born as a means

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of defining and forbidding transgression. Theft and adultery are described in terms of property law, thanks to the common use of fur as a synonym of adulter. Adultery laws do not appear as a pri­ vate matter, but are related to wars, to the Trojan War in particular, the ancient equivalent of a world war. Marriage laws are thus asso­ ciated with peace in a passage that resonates with the agenda of Augustus’ moral reforms. The absence of adultery laws is related to bestial brutality, while the regulation of sexual intercourse to civ­il­ iza­tion and peace.8 Unregulated sex would inevitably cause the col­ lapse of human society and signal the end of civility. Horace’s narrative of the origins of language, law, and culture recalls current views that associated adultery with the collapse of the Republic and Augustan legislation with its restoration.9

Orpheus in the Metamorphoses The association of Orpheus with marriage legislation in Horace is politically charged. The peculiarity of his version highlights even more the fact that Horace tailors Greek myth to suit the needs of Augustus’ reforms. Traditionally, Orpheus has little, if anything, to do with marriage, since he features as the initiator of pederasty.10 The myth of Orpheus and Eurydice, which is first attested in Euripides (Alcestis 357–62; cf. Plato, Symp. 179d), is most likely a later addition to the bard’s mythology. In the Metamorphoses, Ovid gives us a biography of Orpheus that combines the two aspects of the myth, the devoted husband and the founding father of peder­ asty. The bard’s homoerotic desire is linked to his rejection of women after his failure to bring Eurydice back to life. Orpheus shuns heterosexual intercourse either because his marriage ended up badly or because he promised never to have an affair with a woman other than Eurydice (Met. 10.79–81). The rejection of 8  Interestingly, Horace’s more ferarum (1.3.109) suggests not only animal sex but also a particular sexual position. 9  For adultery and the collapse of the Republic, see Edwards (1993: 42–7). 10  See Graf (1987); Bremmer (1991).

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heterosexual sex and marriage is the beginning of Orpheus’ end.11 In a fit of Bacchic or pseudo-Bacchic frenzy, the Thracian women tear him apart.12 According to the Hellenistic poet Phanocles, Orpheus’ homosexu­ al­ity is the reason for the Thracian women’s murderous violence.13 At the beginning of Phanocles’ Erotes, a mock-Hesiodic catalogue of homoerotic affairs, Orpheus occupies primary pos­ition as the archetypal lover of a beautiful boy (Kalais)—the bard sings of his passion for him. Orpheus’ execution at the hands of the Thracian women is directly related to his sexual orientation:  Τὸν μὲν Βιστονίδες κακομήχανοι ἀμφιχυθεῖσαι ἔκτανον, εὐήκη φάσγανα θηξάμεναι, οὕνεκα πρῶτος ἔδειξεν ἐνὶ Θρῄκεσσιν ἔρωτας ἄρρενας, οὐδὲ πόθους ἤινεσε θηλυτέρων. Phanocles, Erotes fr. 1.7–10 Powell But the Bistonian women of evil devices poured around Orpheus and killed him, after sharpening their keen-edged swords, because he was the first to show male loves among the Thracians and did not recommend love of women.

Phanocles’ version omits the myth of Eurydice. No mention of the bard’s heterosexuality is made, as if Orpheus’ marriage was incom­ patible with his homoeroticism. Ovid clearly alludes to Phanocles in his version of Orpheus (see Segal 1972: 477; Barchiesi 2001: 56–7 with note 20; Gärtner 2008; Ziogas 2013: 150–1), but combines the myth of the loss of Eurydice with the bard’s institution of pederasty. 11  I am using the terms ‘homosexual’ and ‘heterosexual’ for the sake of convenience. These terms do not quite correspond to Roman constructions of sexuality, which defined the male as the active and the female as the passive partner in sex. See, for instance, Parker (1997). On Roman homosexuality, see Williams (1999); Ingleheart (2015). 12 According to a version of the myth (followed by Aeschylus in his lost Bassarides), Orpheus was killed by women under the spell of Bacchus because of his preference for Apollo to the cults of Dionysus. Ovid both acknowledges and rejects this version in Metamorphoses 11. The Thracian women who kill Orpheus are described as Maenades (Met. 11.22) but also as sacrilegae (41). Bacchus punishes them for killing his priest (67–70). 13  The link between Orpheus’ homosexuality and the women’s cruel execution of the bard is older than Phanocles. See Lissarrague (1994) for the visual evidence.

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The song of Orpheus begins as a catalogue of gods in love with boys à la manière de Phanocles (Met. 10.155–219). The bard’s program­ matic declaration that he will sing of the love of boys and the transgressions of female desire is in line with Orpheus in Phanocles fr. 1.9–10 Powell. The construction of a locus amoenus in Ovid (Met. 10.86–90) dramatizes the static description of the shady grove in which Orpheus sings of his homoerotic passion (Phanocles, fr. 1.3–4). The women of Thrace who kill Orpheus are punished for their crime both in Phanocles and in Ovid: in the Erotes, the men of Thrace tattoo their wives so that their heinous crime will not be for­ gotten (1.23–8),14 while in the Metamorphoses Bacchus avenges the killing of his bard by turning the murderesses into trees. Besides thematic and structural parallels and transformations, there are also verbal allusions. The passage below is a case in point: ille etiam Thracum populis fuit auctor amorem in teneros transferre mares Metamorphoses 10.83–4 He was the first in the people of Thrace to transfer love to tender boys

The diction clearly refers to Phanocles and the enjambment of amorem / in . . . mares reproduces the effect of ἔρωτας/ἄρρενας (see Gärtner 2008: 31–2). But, as is often the case, the intertextual lens is a magnifying glass for Ovidian innovation. Unlike πρῶτος, auctor has paternal connotations and thus casts Orpheus as a founding father of pederasty. As a father figure of the love for boys, Ovid’s Orpheus reflects the structural similarities between the relationship of an older lover and a younger beloved, on the one hand, and a father and son, on the other. What is more, auctor in combination with transferre implies a legal transaction or transference of rights or property.15 Orpheus is an auctor in the sense that he is a 14 There may be an echo of the punitive tattoo in the song of Ovid’s Orpheus (Met. 10.198–9), when Apollo’s guilt is inscribed in his right hand as an unforgettable sign of Hyacinthus’ death. 15 Cf. Met. 15.34–5 with Gebhardt (2009: 111, 328–9).

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guarantor who gives his approval in transferring the rights of amatory passion to tender boys. These meanings of auctor and transferre are commonly found in the texts of the jurists (see Digest 4.3.7.8, 4.7.4.3, 9.4.27.1; cf. Cicero, Off. 1.43–4). In a legal context, transferre also means to apply a legal principle to an analogous case (see Berger  1953: 740). In Orpheus’ case, the bard transfers the rules that govern heterosexual desire to homoerotic affairs. In the context of Orpheus’ performance in the Metamorphoses, the bard is also the author (auctor) of tales that praise the loves of gods for boys and thus establishes a mythological precedent that legalizes pederasty. The gods are the exempla who sanction the desire of Orpheus’ sexual orientation.16 As the founding father of homoerotic affairs, Orpheus resembles an auctor legis, a proposer or ratifier of a statute that governs extramarital love. From that perspective, his agenda parallels that of Augustus. In Res Gestae 8.5, Augustus refers to himself as auctor in the context of his moral le­gis­la­tion (see Chapter 7). Orpheus and Augustus are both auctores of reforms that govern human morals and desire, and they both rely on authority and exemplarity. Even though his love for Kalais is not mentioned explicitly in Ovid, Metamorphoses 10.83–4 implies that, as an auctor, Orpheus is the originary pederast in Thrace and thus sets an influential precedent that normalizes love for boys. But while one of the aims of Augustus’ laws was the production of legitimate children, Orpheus’ new customs of homosexual love rule out the possibility of biological reproduction and thus go against the grain of imperial legislation. Men’s and gods’ affairs with young boys are a substitute for relationships between fathers and sons, but do not produce biological offspring. In Phanocles, the leitmotif of homoerotic love has a striking effect in the structure of his catalogue. The Erotes draws on the Hesiodic tradition of the Catalogue of Women, which combines the motif of women loved by gods with heroic genealogies. The off­ spring of the gods’ sexual liaisons with women is the structural 16  Cf. Byblis (Met. 9.497–501), who tries to justify her love for her brother by referring to divine marriages between brothers and sisters, only to add that gods have their own laws (Met. 9.500 sunt superis sua iura), which are different from human customs.

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backbone of the Catalogue. Phanocles’ shift to pederasty excludes salient features of Hesiod’s Catalogue: the focus on marriage, women, and childbirth. Ovid throws this into sharper relief. The Metamorphoses overall plays down its genealogical progression and highlights the motif of metamorphosis rather than childbirth, an issue that is prominent in the tales of Orpheus but appears as a con­ trast between homosexual and heterosexual affairs. While the issue of death and immortality links the tales of gods in love with boys (Jupiter and Ganymede, Apollo and Hyacinthus; Met. 10.155–219), the stories of Pygmalion, Myrrha, and Adonis (Met. 10.243–739) follow a genealogical structure.17 The song of Orpheus reflects his new sexual orientation. Pederasty is praised and established as a superior substitute for heterosexual affairs and biological offspring. Immortality is achieved not by means of genealogical continuity but via song and metamorphosis. This further reflects Ovid’s own poetics of transformation. The two parts of Orpheus’ song (gods in love with boys and girls punished for their forbidden passions)18 are linked by the motif of a relationship between a parent or parent figure and a child. The bard begins with the love of the father of the gods for the boy Ganymede. Pygmalion’s love for his ivory maiden is the love of a father for his daughter, in the sense that the artist is a father figure of his cre­ ations (cf. Hardie  2004). The incest implicit in Pygmalion’s story becomes explicit in the tale of his grandson Cinyras, who is seduced by his daughter Myrrha. The offspring of the incestuous affair of Cinyras and Myrrha is Adonis, the object of Venus’ desire. Venus’ love for Adonis is related to the motif of pederasty (a goddess in love with a young man)19 and incest. Adonis is described as a uir when Venus falls in love with him (10.523, 529), but what drives 17  Cinyras is Pygmalion’s grandson, Myrrha the daughter of Cinyras, and Adonis the son of Cinyras and Myrrha. The transition from Jupiter and Ganymede to Apollo and Hyacinthus also subtly suggests a move from a father (Jupiter) to a son (Apollo). 18  Orpheus announces his topic at Met. 10.152–4, but only the story of Myrrha clearly fits this description. No satisfactory answer has been given to this inconsistency. 19  Note, for instance, the similarities between the story of Apollo and Hyacinthus, on the one hand, and Venus and Adonis, on the other; cf. Met. 10.167–73 (Apollo abandons his cult places for Hyacinthus) with 10.529–33 (Venus abandons her cult places for Adonis). Both Apollo and Venus change their lifestyles (e.g. they both go hunting) in order to appeal to Hyacinthus and Adonis respectively (cf. 10.170–3 with 10.533–41). Both youths die

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Venus’ passion for the young man is his resemblance to her son, the puer Amor. The baby Adonis is compared to pictures of naked Cupids (10.515–18), and Venus falls in love with him while kissing her son (10.525–8). As Hardie (2004: 9) puts it, ‘the mythological mechanism of this infatuation is an accidental prick from an arrow of Cupid himself, inflicted while the boy-god was kissing his mother. Kiss and arrow-prick hint at an incestuous act between mother and son, and it is appropriate that the object of Venus’ desire should be Cupid’s double.’ Throughout his series of tales, Orpheus is obsessed with the issue of the legitimacy of explicit or implicit incest. Parental and erotic love are getting dangerously close. Critics who studied the motif of incest in Ovid read it as a figure of poetic self-referentiality. Micaela Janan (1991: 9) notes that the Metamorphoses ‘replicates itself . . . limiting creative options to the already known— the literary realization of incest’. Hardie (2004: 13), who both builds on Janan and finds her approach limited, invokes Freud and explores possibilities of incest as a figure for poetic creation. For Hardie, incest reflects the relationship of an art­ ist with his work, a relationship which might be described as a metamorphosis of natural procreation into a world of art. Hardie’s point about the conversion of the other, as an object of desire, from biological reality into a work of art is relevant to my approach to the biopolitical power of poetic diction. But the transformation of Pygmalion’s statue as well as the biopolitical ambitions of Ovid’s poetry actually point in the opposite direction, namely to the trans­ mutation of a work of art into flesh and blood. Ovid’s art of love, like Augustan law, aims to create a new generation of Roman men and women (cf. Chapter 7). Janan’s and Hardie’s analyses of incest as metapoetic self-reflexivity are valuable, but, in my view, the scope of such metaliterary approaches is limited, because they are ul­tim­ ate­ly indifferent to the sociopolitical context of Ovid’s work. My focus, by contrast, is on the ways in which Orpheus as an auctor, an author and a father figure, is involved in the production of norma­ tive discourse that regulates desire in the age of Augustus. The tragically, turn into flowers, and are memorialized in annual rituals (cf. the epitaphic addresses of Apollo in 10.196–208 and Venus in 10.724–31).

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auctor’s speech act breathes life into its subjects. Ovid’s Orpheus is not simply a metapoetic reflection of the self-indulgent Ovid, but also a mirror of Augustus, the father and author of moral reforms. Ovid’s Orpheus, who introduces the practice of pederasty to Thrace with his song and life, is a foil for Horace’s Orpheus, who gives rights to married couples. The institution of pederasty is viewed as a challenge to the rights of married or marriageable women. Orpheus pays with his life for rejecting marriage and trans­ ferring his amatory passion to tender boys.20 In the bard’s tales, marriage and childbirth seem hardly appealing. Pygmalion, a ­double of Orpheus, rejects women altogether, disgusted at the pros­ titution of the Propoetides, and decides to remain single (Met. 10.245 sine coniuge caelebs), a life choice punishable under the lex Iulia. As a result of his loathing for women, he falls in love with his own artistic creation, the ivory statue of a maiden. Pygmalion is indeed a foil for the praeceptor amoris (cf. Downing  1990 and Chapter  7). In Ars amatoria 3.9, Ovid warns about judging all women from the transgressions of a few in a line that contrasts with Pygmalion’s rejection of all women because of the vices of the Propoetides (Met. 10.243–5). The praeceptor then goes on to fash­ ion his own model of ideal femininity, a progression that replicates Pygmalion’s life. In the Metamorphoses, Venus, the inspiration of Ovid’s Ars amatoria, brings the sculptor’s artefact to life. Given that most tales in the Metamorphoses end up in some sort of nightmarish disaster, the story of Pygmalion is surprising in its seemingly happy ending. Orpheus’ tale compensates for his failed attempt to revive Eurydice.21 Unlike Orpheus, Pygmalion manages to bring the object of his desire to life. Yet the story is rife with dark undertones. Ovid’s learned readers would notice the striking sani­ tiza­tion of Pygmalion, who before Ovid was a pervert who had sex

20  Orpheus’ barren loves (both marital and pederastic) clash with the fertile mothers who kill him. See Segal (1989: 48); Graziosi (2018: 191). Orpheus is killed by matres (‘mothers’) in Vergil, G. 4.520. 21  Hardie (2002: 65) argues that Orpheus’ stories (Apollo and Hyacinthus, Pygmalion, Venus and Adonis) refigure his forbidden desire, and thus allusively re-present Eurydice both for Orpheus and for the reader.

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with a statue of Aphrodite.22 Ovid shows how Orpheus’ carmen has the power to transform sacrilegious passion into legitimate love by manipulating mythological tradition. For Orpheus, legitimizing transgressive desire is a matter of life and death. Far from being an ideal of pure artistic love, Pygmalion’s delusional passion verges on incest and necrophilia. His marriage to a mute and nameless statue is hardly a fairy-tale ending with two lovers who marry and live happily ever after.23 The sense of incest and insanity that lurks beneath the surface of the story of Pygmalion anticipates the sheer disaster of Cinyras’ marriage, whose daughter is the cause of his tragedy. The story of Atalanta and Hippomenes, who after marrying are punished for having sex in a holy precinct, suggests that even mari­ tal sex can be outlawed. At the beginning of the tale of Atalanta, an oracle actually warns the young woman that she should avoid mar­ riage (Met. 10.564–6); otherwise, she will end up living without herself. This not only foreshadows Atalanta’s animal transformation as a punishment for sleeping with her husband, but also suggests the social metamorphosis of a young woman from virgin to wife. The oracle’s take on marriage is rather grim: it is an institution that will result in Atalanta’s loss of identity. A wife walks on earth as a living dead person.24 It is also striking that the only explicit refer­ ence to marital sex in the songs of Orpheus presents it as transgres­ sive. Atalanta and Hippomenes break divine law when they mate in Cybele’s temple (686–704). Surprisingly, punishment is reserved for the consummation of marriage. This contrasts with the nobler love of young boys in which there is no explicit mention of ­sexual intercourse.25 Orpheus’ song questions the value of marriage, 22 See Clement of Alexandria (Protrepticus 4.57.3) and Arnobius (Aduersus Nationes 6.22). They both cite Philostephanus of Cyrene (third century bce), most likely one of Ovid’s sources. On the ways in which Ovid subtly suggests Pygmalion’s perverted sexuality, see O’Bryhim (1991: 118–59). 23  On less flattering aspects of Ovid’s ivory maiden (Elephantis), see Ahl (1985: 254–5). The story further evokes Hesiod’s Pandora, a ‘beautiful evil’ for men. 24  On the ways in which marriage is construed as a type of death, see Rehm (1994); Swift (2010: 201, 251–3). 25  There is no sign that the pederastic affairs praised by Orpheus are consummated. This contrasts with the prostitution of the Propoetides (Met. 10.238–42), the rather graphic description of Myrrha’s carrying her father’s semen in her womb (Met. 10.469–70), and the

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pro­cre­ation, and heterosexual intercourse in his attempt to promote and legitimize homoerotic desire. As a result, the love for boys becomes a major source of anxiety for married and marriageable women. Ovid’s Orpheus undermines marriage and is punished for choosing to normalize non-procreative love.

The story of Myrrha: Orpheus, Ovid, and Augustus Ovid’s Orpheus challenges the institution of marriage by establish­ ing a doctrine of extramarital desire. In his tales, myth becomes the exemplum that sets up the norm. From that perspective, he is a ‘teacher of love’ (praeceptor amoris), Ovid’s alter ego, and is eventu­ ally punished for his poetic wanderings into forbidden territory, not unlike Ovid, who was exiled partly, it is thought, because his Ars amatoria could have been read as an encouragement to illicit liaisons. Recent scholarship on Ovid has examined the similarities between the recurring motif of art and punishment in the Metamorphoses and the fate of Ovid himself (see Johnson  2008; Pavlock 2009: 89–109). In these studies, Orpheus features prom­in­ ent­ly as a figure of Ovid, and I would like to examine further some of the aspects of Orpheus’ narrative that make this mythological figure relevant to the realities of Ovid’s Rome. My focus will be on the story of Myrrha, which revolves around a fundamental contrast between incest and the law of the father.

Myrrha and Augustan Law The transition from Pygmalion to Myrrha suggests a link between Orpheus and Ovid, on the one hand, and Cinyras and Augustus, on the other:

marital but forbidden sex of Atalanta and Hippomenes (Met. 10.689–90). It is unclear whether Venus and Adonis have sex.

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Love and Incest  361 Editus hac ille est, qui si sine prole fuisset, inter felices Cinyras potuisset haberi. dira canam; procul hinc natae, procul este parentes Metamorphoses 10.298–300 Born from her [i.e. Paphos] is Cinyras, the man who, had he been without offspring, could have been counted among the fortunate. I  shall sing a dreadful song; stay away, daughters, stay away, parents.

The passage employs the ritual cry (‘stay away!’) that excludes the uninitiated and ritually unclean. The formula befits Orpheus, a mythic figure closely associated with mystery cults and their rituals of initiation (Reed 2013: 234). The exclusion of daughters and par­ ents evokes the initial disclaimer of the Ars amatoria (1.31–4) and its ironies.26 In the Ars amatoria, childbirth undermines beauty (see Chapter  7). Orpheus’ tale, though not primarily concerned with attractiveness, also cautions about the negative aspects of having children. Cinyras, we are told right from the beginning, would have been happy had he not been a father.27 The meaning of felix (not only ‘fortunate’ but also ‘fertile’) emphasizes the paradox of the claim. While a man is considered felix when he has c­hildren, Cinyras is doomed precisely because he fathered a daughter. Orpheus’ daringly revisionist statement that a man would have been happy had he not had children befits a bard who recently renounced women and thus gave up any hope of begetting children. We can trace here the voice of the homosexual Orpheus.28 For Ovid’s contemporary readers, Orpheus’ opening statement raises a particularly sensitive issue. Augustus’ marriage legislation rewarded married fathers and penalized the childless and unmar­ ried. According to Dio Cassius (56.1–10), when the knights, the social class to which Ovid belonged, were seeking the repeal of the law regarding the unmarried and the childless, Augustus assembled 26  See Johnson (2008: 103–4); Gebhardt (2009: 328–9); cf. Chapter 6. 27  The opening statement evokes the genre of tragedy. See Orestes’ wish that he would rather die childless (Aeschylus, Cho. 1006). 28 On the relevance of Orpheus’ new sexual orientation to his recital, see Makowski (1996); Fox (2015).

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the Roman citizens in two groups: the married and the unmarried. Upon seeing that the latter far outnumbered the former, he gave two speeches. He praised the married men and harangued the childless. The emperor elaborates on the blessing of having children and warns the unmarried as follows: ‘You introduce customs/laws (νόμους) and practices which, if imitated, would lead to the exter­ mination of all mankind, and, if abhorred, would end in your own punishment’ (Dio Cassius 56.4). The emperor’s speech admonishes those who refuse to marry and have children, implying that those who introduce customs that go against imperial legislation will not escape from the grip of his laws. Orpheus’ institution of novel principles that undermine marriage leads to his punishment within the narrative of the Metamorphoses. Outside the narrative, Orpheus’ statement is a rebuttal of the emperor’s praise for begetting children. Augustus admitted that ‘there are disagreeable and painful things incident to marriage and the begetting of children’ and added that ‘we do not possess any other good with which some unpleasantness is not mingled, and that in our most abundant and greatest blessings there reside the most abundant and greatest evils’ (Dio Cassius 56.8). The tale of Cinyras highlights that begetting children might be not a mixed blessing, but pure disaster. As the voice of the bard converges with the voice of those who objected to Augustus’ marriage laws, the tale of Myrrha is introduced as a myth illustrating the misfortunes of having children. In other words, Myrrha is an excellent myth if the aim is birth control, but Augustus’ demographic concerns were exactly the opposite, and he needed myths with a different moral. We can actually push this line of argument further, if we con­ sider that Augustus, like Cinyras, had an only daughter who made her father unhappy. The reportedly shameless behaviour of the adulterous Julia deeply distressed the emperor, who finally exiled her, a punishment that is reminiscent of the wandering Myrrha (Met. 10.478–81). Despite his burning desire for a successor, Augustus, not unlike Cinyras, would have been more fortunate had he been childless. Suetonius attests that Augustus would sigh every time he heard the name Julia, referring either to his daughter or granddaughter:

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Love and Incest  363 Atque ad omnem et eius et Iuliarum mentionem ingemiscens proclamare etiam solebat: Αἴθ᾽ ὄφελον ἄγαμός τ᾽ ἔμεναι ἄγονός τ᾽ ἀπολέσθαι. nec aliter eos appellare quam tris uomicas ac tria carcinomata sua. Augustus 65.4

and at every mention of him [i.e. Agrippa] and of the Julias he would sigh deeply and even cry out: ‘Would that I never had wedded and would I had died without offspring.’ And he never referred to them except as his three boils and his three ulcers.

Orpheus’ introduction of Cinyras echoes the words of Augustus (cf. ἔμεναι ἄγονος with sine prole fuisset), merging together Greek myth and Roman reality. Dio Cassius, as Adam Kemezis (2007) argues, contrasts the emperor’s sanctimonious public moralizing with the disastrous state of his family life. Suetonius’ narrative has a similar effect, as it exposes the gap between the intention of Augustan le­ gis­ la­ tion and its effects (see Aug. 34 and 65, with Langlands 2014: 120–3). The emperor fails to produce his family as an exemplum that would validate his moral legislation, ending up bitterly confessing that he would have rather been childless in sharp contrast to the mandates of his laws. The emperor paraphrases Iliad 3.40 (αἴθ᾽ ὄφελες ἄγονός τ᾽ ἔμεναι ἄγαμός τ᾽ ἀπολέσθαι. ‘Would that you had never been born and had died unwedded’).29 Part of the striking effect of this quotation lies in the semantic shift of ἄγονος, which means ‘unborn’ in the Iliad, but ‘childless’ in Augustus’ version. This is an excellent example of the ways in which the appropriation of poetic tradition has the power to break Roman law. The Homeric quotation virtually supersedes Augustan legislation.30 Ovid may even allude to rumours about the nature of Augustus’ relationship with Julia. Caligula will later declare that his mother Agrippina was born in incest, which Augustus had committed with 29  Here Hector rebukes his brother Paris. 30  On the poetry of Homer as having the force of law, see Chapter 5. On intertextuality as a trope of legal practice, see Chapter 4.

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his daughter (see Suetonius, Calig. 23.1). The reason for this claim was Caligula’s shame at the low birth of his grandfather Agrippa, but this sort of slur, which Caligula perversely turned into a badge of honour, may not have been the invention of the mad emperor, but the sort of gossip that would circulate to explain Julia’s harsh punishment.31 The discrepancy between the law and the life of Augustus is thus thrown into sharper relief. This contrast, which features in Suetonius, is already suggested in the Metamorphoses. The tapestry of Arachne, which is a response to Minerva’s pro-Jovian/Augustan artefact (cf. Met. 6.73 augusta grauitate), represents a lurid panorama of gods’ sexual transgres­ sions in a way that recalls the rumours about Augustus’ novel debaucheries (see Suetonius, Aug. 68–70). Though Suetonius says nothing about Augustus’ affairs with Julia in this section, Ovid’s Arachne depicts the incest between Jupiter and his daughter Proserpina (Met. 6.114) in one of the most politically charged epi­ sodes of the Metamorphoses. Like Orpheus, Arachne is an Ovidian artist who is punished after depicting an act of incest between a father and a daughter in an episode that revolves around the pol­it­ ics and poetics of artistic creation under Augustus. Ovid’s artists seem to imply that Julia broke the law of the father by having sex with him. Ovid’s Orpheus takes part in current debates on Augustan le­gis­ la­tion but also raises fundamental issues about the origins of justice and the legal system. The story of Myrrha, in particular, can be read as the rejection of paternal authority. Myrrha denies her father the power to impose a law that bans incest, aiming to establish her own rules instead. In her confusion, she wishes but is unable to comply with the laws of the fathers (Met. 10.321 iura parentum), because of amor, which in this case is a primordial urge that simultaneously instigates crime and claims the force of law. It is significant that Orpheus stresses the transgressive nature of Myrrha’s incestuous desire. The myth of Jupiter’s sexual union with his daughter 31  For fanciful attempts to connect Ovid’s exile with alleged incest between Augustus and Julia, see Thibault (1964: 70–2). The only source responsible for this theory seems to be Suetonius’ Caligula. On Augustus as a convenient model of immoral and tyrannical behav­ iour for Caligula and Domitian, see Langlands (2014: 111–12).

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Proserpina is closely related to Orphism (see Bömer 1969–86 on Met. 6.114). The offspring of this incestuous affair was Dionysius Zagreus, a god worshipped by followers of Orphism. Readers should notice the discrepancy between Orpheus’ disapproval of Myrrha’s passion for her father and the Orphic myth of divine incest between a father and a daughter. What is a crime in one narrative is a sacred union in another. Incestuous marriage between a father and a daughter was pro­ hibited under Roman law.32 Myrrha’s desire breaks not only the incest taboo but also Augustan legislation. Orpheus’ version repeat­ edly suggests that Myrrha’s passion is on trial. Courtroom rhetoric brings Orpheus’ myth closer not only to Roman realities, but also to the trial setting of the Ars amatoria.33 Orpheus prefaces his myth with a disclaimer that evokes a ritual initiation and a trial scene: dira canam; procul hinc natae, procul este parentes aut, mea si uestras mulcebunt carmina mentes, desit in hac mihi parte fides, nec credite factum, uel, si credetis, facti quoque credite poenam. Metamorphoses 10.300–3 I shall sing a dreadful song; stay away, daughters, stay away, ­parents, or, if my songs please your minds, do not trust me in this part, do not believe that it happened, or, if you believe, also believe the punishment of the deed.

The first line excludes daughters and parents, but the second admits that the forbidden story may please them, thus commenting on the likely failure of this warning or rather on its function as an invita­ tion to enter forbidden territory. Should you listen to my story, Orpheus adds, do not believe it. In the context of his ritual cry, this statement is peculiar, since the initiates were supposed to be 32  On Augustan legislation against incestum, see Treggiari (1991: 38, 281). On Roman law and incest, see Moreau (2002). 33 For the trial scene in Ovid’s Metamorphoses, see Balsley (2011: 44–100). See also Gebhardt (2009: 283–303) on how Ovid presents his search for true aetia in the Fasti as a trial.

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enlightened by the truth, not by false tales. Then, by adding that if they believe the story, they should also believe the punishment, he immediately undermines what he said before. Ovid’s Orpheus asks us to believe the implausible fantasy (that is, Myrrha’s trans­form­ ation) and dismiss the believable (that is, that a daughter can be sexually attracted to her father). As Barchiesi (2001: 59) puts it, the transgression is realistic, the expiation pure fantasy. As he recants his suggestions one after another, Orpheus undermines the validity of his warning. His disingenuous invitation to disbelief is an inver­ sion of the typical statement to tell the truth and nothing but the truth in court (cf. Ars 1.30 uera canam, which is echoed in Met. 10.300 dira canam). The audience should give credence to his tale only if they also believe in the penalty for the deed. The bard prom­ ises a narrative of crime and punishment, and his disclaimer pre­ pares his audience for a tale rife with courtroom rhetoric. In this scenario, Orpheus’ audience play the role of jurors who should judge what is true and who deserves punishment. Cupid’s cameo appearance in the tale takes place in a trial setting. The god is summoned to explain Myrrha’s passion and denies any involvement in this affair: Ipse negat nocuisse tibi sua tela Cupido, Myrrha, facesque suas a crimine uindicat isto; stipite te Stygio tumidisque adflauit echidnis e tribus una soror. Metamorphoses 10.311–14 Cupid himself denies that his missiles harmed you, Myrrha, and absolves his torches from this crime of yours. One of the three sisters breathed on you with a Stygian firebrand and swollen vipers.

Cupid’s negare suggests a defendant who denies the claims of the prosecution (see Berger  1953 s.v. negare and Chapter  3). Cupid pleads not guilty in instigating Myrrha’s criminal affair (a crimine uindicat) and claims that one of the Furies was responsible for the daugh­ ter’s hideous passion. The technical term for this forensic manoeuvre is remotio criminis, which, as Cicero explains (Inu. rhet. 1.15),

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is the defendant’s attempt to shift onto another the charge brought against him.34 Once more, Love is on trial.

Myrrha’s Declamation Courtroom rhetoric features prominently in Myrrha’s soliloquy (Met. 10.320–55), a dramatic monologue that draws on the trad­ ition of tragic heroines who are torn between their personal pas­ sions and family duties (Euripides’ Phaedra or Medea, for instance).35 The speech is simultaneously a tragic soliloquy and a declamation (controuersia), a classroom exercise on a mythical or imaginary legal dispute that aimed at preparing Roman schoolboys for a career in the forum. Myrrha’s soliloquy sounds like a rehearsal of her speech in court.36 In fact, that was precisely the aim of declamatory training—to train young Romans for a forensic career. But Myrrha’s courtroom rhetoric further points to another im­port­ ant aspect that transcends Roman culture, namely the lover’s desire to justify her passion in the setting of a trial, her longing to include transgressive love in the juridical order. The importance of declamation in Ovid hardly needs justifica­ tion, but it would require another monograph to study how the plots and rhetoric of declamation inform Ovid’s engagement with Roman law. Still, a couple of observations need to be made, because the relationship between declamation and proper courtroom rhet­oric is relevant to central issues of this book. Not unlike the legal color of Ovid’s poetry, declamation is often dismissed (by ancient and modern critics alike) as unreal, ludic, and puerile. As a

34 Cf. Propertius 2.30.23–5 with Gebhardt (2009: 158–9) and Chapter  2. On why we should distrust Cupid’s testimony, see Ziogas (2016b: 34). In Pont. 3.3.67–92, Cupid defends himself from the accusation that he is responsible for Ovid’s exile. For Cupid’s uindicatio in this elegy, see Gebhardt (2009: 229, 345–7). Gebhardt (2009: 346) notes that accusations against Amor have been a motif of Latin love elegy since Tibullus 1.6. 35  On the soliloquies of Ovid’s heroes and heroines as evoking the genre of tragedy, see Curley (2013: 136–41). On rhetoric in general and declamation in particular as an integral part of Roman tragedy, see Curley (2013: 26–7, 36–7). 36  Cf. Gebhardt (2009: 322) ‘Myrrhas Selbstgespräch trägt daher die Form einer prozes­ sualen Situation für ein erst beabsichtigtes, in der Zukunft liegendes Verhalten.’

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genre, it is construed in contradistinction to real courtroom cases. Yet recent scholarship has been taking declamation seriously and questioning the value of reductive distinctions between real and unreal ora­tory.37 The role playing of forensic orators and the theat­ ricality of trials are not superficial reflections of the illusory repre­ sentations of the Roman stage. Instead, they are the inevitable result of the fact that the world of the law is essentially constructivist. If the law is by and large a fiction, it is hardly fair to dismiss dec­lam­ ation for its fictive nature. A great deal of truth about the origins of law is to be found in the fantasy lands of controuersiae. There is actually a rhet­oric­al tradition at least as old as Gorgias (see Plutarch, Moralia 348c) that makes fiction—performative fiction in particular—the key to getting at the truth.38 Mary Beard (1993) argued that declamation took the place of myth at Rome. Its relationship to real laws and trials is as profound and fascinating as the relationship between myth and reality. The complex interactions between truth and fiction in Greek myth and Roman declamation are also a major preoccupation of Ovid’s poet­ ry.39 Just as Greek myth is often a window on Roman reality in Ovid, so the fictive world of declamation offers insights on Roman law. As Rebecca Langlands (2006: 250) puts it, declamation, not unlike myth, is a key medium for dealing with important social issues in a systematic and detached manner, through rhetorical treatment of situations set in a fantasy world close to and yet apart from that of contemporary Rome. Similarly, Orpheus’ myth of Myrrha evokes Augustan Rome, despite its displacement to a far­ away land. Ovid and Orpheus tell stories from exotic countries, but the more the myth of Myrrha is defamiliarized, the more it touches upon Augustus’ family laws.40 37  See, e.g., Gunderson (2003); (2016). Declamation is slowly taking the place it deserves in the field of law and literature. See, e.g., Amato, Citti, and Huelsenbeck (2015). 38  See Gunderson (2016: 190). 39 See Feeney (1991: 188–249); Feldherr (2002) for fiction and reality in Ovid’s Metamorphoses. 40 See Met. 10.306 gratulor huic terrae quod abest regionibus illis. ‘I congratulate this land on being far away from these regions.’ There are two levels of displacement here. From an extradiegetic perspective, Orpheus is in Thrace, a region far away from Rome and often stereo­typed as degenerate. From an intradiegetic perspective, Orpheus announces that the story is exotic and foreign to Thracian customs.

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The declamatory character of Myrrha’s speech is further suggested by its topic. Incest was a common subject of controuersiae (Gunderson 2003: 191–226; Langlands 2006: 249–50). Gunderson (2003: 25) points out that declamation is an ideal medium for the exploration of the topic of incest, about which there neither was nor could be a clear, authoritative position. By exposing the fact that the law frequently produces impossible and contradictory situations, declamation denies that there is a closed and monolithic voice of authority. Above all, Roman declamation questions the validity of the law of the father.41 Building on Gunderson, Langlands (2006: 247–80) argues that the discipline revels in ethical complexities and conundrums, and seeks to explore the furthest corners of their para­doxes.42 Why does a daughter have to love her father but is not allowed to fall in love with him? The myth of Myrrha both deals with typical declamatory scen­ arios and stands out as exceptional. Common cases of declamations were Oedipal incest between sons and mothers, not daughters and fathers. Myrrha’s case is even more remarkable since she is the insti­ gator, not the victim, of incest. Part of the striking effect of her dec­ lam­ation is related to her gender. Myrrha excels in a rhetorical exercise regularly assigned to Roman schoolboys with aspirations for a career in the courtroom.43 What is more, while the controuersiae were neither about real cases nor about real people, Myrrha’s soliloquy is a mythological reality. The heroine deals with the real and personal problem of her burning desire, not with routine homework. Her masterful arguments on a legally disputed case exemplify the profile of Amor as a teacher of love, law, and rhetoric. Myrrha’s sexual desire for her father turns her into a summa cum laude student of rhetoric, reminding us that Amor is the source of forensic discourse. The simultaneous inclusion of conflicting arguments combines the performance of classroom exercises (controuersiae) with the 41  Cf. Lentano (2015), who focuses on parricide in Roman declamation, arguing that this common declamatory topic sheds light on the contradictions and pathologies of the Roman family. 42  On law and ethics in declamations, see Amato, Citti, and Huelsenbeck (2015). 43  On the close association of rhetorical education with masculinity, see Connolly (2007).

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dramatic effect of the vacillating heroine. In her soliloquy, Myrrha wavers between condemning and justifying her incestuous love, shifting between the roles of defendant and prosecutor (cf. Gebhardt 2009: 322). This combination of drama and declamation is hardly surprising. The stock characters, plots, and rhetoric of declamation have deep affinities with both tragedy and comedy.44 Declamatory cases overlap with dramatic fabulae. What is more, the ludic aspect of declamations puts them in the same context as dramatic per­ formances that took place in festivals (ludi) defined by the suspension of legal action. The Saturnalian spirit of Roman dec­lam­ations is the key to understanding their importance in Ovid.45 Graziana Brescia (2016) argues convincingly that the rhetoric of the declamations undermines the patria potestas, offering an alternative to strict social norms and laws and thus resembling the relaxation of strict rules in the Saturnalia. The Saturnalian aspect of Ovid’s love poetry and declamatory discourse is not simply a trivialization of serious legal business.46 Instead, it is a suspension of legal action that affords space for staging the emergence of an alternative jur­id­ic­al order (see Chapter 2). Myrrha yearns for this Saturnalian exception in order to question the origins of legality in the paternal prohibition on incest. She articulates her desire in forensic rhetoric not out of Ovid’s puerile fascination with declamation, but because the law of the father can be questioned only in a state of sovereign exception, in the Saturnalian fantasy land of declamations, which expose to public scrutiny the deepest truths about the fictions and desires that lurk behind the origins of law. It is no coincidence that Myrrha’s incestu­ ous love is consummated during an annual festival (Met. 10.431). The festival of Ceres conveniently removes her mother from the stage, affording space for extramarital sex (cf. Reed 2013: 251). The rites of mothers in the festival of Ceres resonate with Orpheus’ 44 See Gunderson (2016); cf. Langlands (2006: 250–1); Lentano (2015: 147); Breij (2015: 223). 45  On the Saturnalian spirit of Latin love elegy, see Chapter 2. 46  On the profound connections between the serious and the ludic in Roman dec­lam­ ations, Gunderson (2016) is important. His approach could be applied to Ovid and his crit­ ics, who took mockery in Ovid as evidence that the love poet has nothing important to say about law.

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ritual exclusion of mothers from his tales (cf. Reed 2013: 252). Note also that Orpheus sings his myths of extramarital love in an extrajur­id­ic­al wilderness. His audience consists of animals that live outside the legal culture of human beings. Orpheus and Myrrha live or long to live before the law, because this is their only chance to establish their alternative jurisprudence of love.

Myrrha before the Law The return to a prejuridical stage is suggested by the invocation of natural law as the basis of legality.47 Myrrha begins her speech by praying to the gods and to the sacred ancestral laws to forbid her unholy passion and stop the unspeakable crime (Met. 10.321–2). But once she utters the word scelus (‘crime’), she starts wondering whether her love for her father is indeed a crime. With her de­clama­ tory rhetoric, she attempts to justify her desire on the basis that piety does not separate sexual attraction from filial affection: sed enim damnare negatur hanc Venerem pietas: coeunt animalia nullo cetera delicto. Metamorphoses 10.323–5 But they say that piety refuses to condemn this Venus: other ­animals mate without offence.

Again, note the procedural use of negatur and the legal terms damnare and delicto. Myrrha is pleading her case in an imaginary courtroom (cf. Gebhardt 2009: 321–4). The following part of her speech (324–35) examines the legitimacy of her love according to ius naturale, ius gentium, and ius ciuile (cf. Gebhardt 2009: 321–34). Myrrha gives the example of animals and birds, which do not shy away from fathering children with their offspring. Her arguments about the 47  On nature and natural law in Roman declamations, see Citti (2015). For natural justice in Myrrha’s conflict, see Gebhardt (2009: 323–6).

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superior laws of natural attraction would appeal to Orpheus’ audience of animals and birds, the living exempla of her rhetoric. For the heroine, laws against incest are merely a product of human spite.48 In fact, besides the world of birds and animals, sev­ eral human societies, Myrrha avers, allow incest. The issue of nat­ ural law goes back to the Sophists and also plays a crucial role in Epicurean and Stoic theories about the origins of human law.49 Aside from philosophical discussions, the origins of law in nature concerned Roman jurists. Ulpian’s discussion of ius naturale, which human beings share with animals, and ius gentium, which is com­ mon in all human societies (Digest. 1.1.1.3–4), is the blueprint for Myrrha’s arguments. For Myrrha, her incestuous love does not break the laws of nature and, since there are human nations that allow incest,50 it does not break the ius gentium either (see Met. 10.330–3 quod natura remittit, / inuida iura negant. gentes tamen esse feruntur, / in quibus et nato genetrix et nata parenti / iungitur. ‘What nature allows, envious laws deny. But they say that there are tribes among whom both a mother mates with a son and a daughter with her parent’). The only law that is broken is that of her country. The legal conventions of certain places seem weak in comparison with the universality of the ius naturale and ius gentium. The law’s legitimacy is compromised, unless legal conventions (consuetudo) are projected back to the natural order (natura). The interdependence of law and nature features prominently in Metamorphoses 10. The law aims to describe or, like Orpheus’ song, even bend the will of nature, while the natural order makes sense only if it is conceived in terms of a legal system. Our idea of law does not exist without the concept of nature and vice versa. Whatever happens in nature can be either legitimated or outlawed, depending on the agenda of legislators. Nature can be used either as a justification of an act or as an illustration of criminal behaviour 48 When arguing for the illegitimacy of her love, she changes her mind (see Met. 10.352–3). 49 See Diogenes in Dio Chrysostom 10.29–30; Chrysippus in Sextus Empiricus, Pyr. 3.246, with Gebhardt (2009: 321–4). 50  Ovid’s Roman readers were familiar with incestuous marriages in Roman Egypt.

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that separates civilized human beings from animals. This ambivalence is nicely encapsulated in Metamorphoses 10.304 si tamen admissum sinit hoc natura uideri. Depending on whether we take admissum as a noun (‘crime’, ‘wrong’) or a participle (‘permitted’), we are faced with two contrasting translations: ‘but if nature allows this crime to come to light’ or ‘but if nature allows this deed to seem permissible’.51 Does nature permit the perpetration of a crime or does she legitimize incest by allowing it to occur? And is there a difference between the two? Concepts of legality and illegality are simultaneously reflected on the face of nature. Natural law and crime are in the eye of the beholder. Myrrha’s declamation recalls Byblis’ internal monologue, with which she attempts to justify her sexual desire for her brother Caunus (Met. 9.474–516).52 But Myrrha does not repeat Byblis’ mistake in writing a love letter and thus revealing her forbidden passion. As the narrative of the Metamorphoses progresses, Ovid’s heroines are getting better at the game of incestuous seduction. Unlike Byblis, Myrrha succeeds in sleeping with her father. While within the world of the Metamorphoses Myrrha is a sequel to Byblis, on an intertextual level her story draws on Euripides’ Hippolytus (see Bruzzone  2012). Again, Myrrha avoids Phaedra’s mistake in sending a letter (see Heroides 4), but shares with Byblis and Phaedra an obsession with justifying her passion. Myrrha perceives incestu­ ous sex as part of a daughter’s family duty, pointing out that there are tribes which allow these unions ‘so that piety may grow by means of a doubled love’ (Met. 10.333 ut pietas geminato crescat amore). The heroine tries to resolve the irreconcilable tension between pietas and amor. The justification of incest by redefining pietas recalls Phaedra’s letter: 51  Cf. Reed (2013: 234). See also Williams (1999: 236), who discusses the phrase scelera or scelere naturae in Pliny, HN 10.172, which refers to ‘sexual deviations’ (deuerticula ueneris). Williams notes that rather than ‘crime against nature’, the phrase is most obviously translated as ‘crime of nature’, that is, a crime perpetrated by nature. 52  The incestuous passions of those heroines are often examined in parallel. See Nagle (1983), who examines the shift from the primary (Byblis) to the secondary narrator (Myrrha). On the language of law in Byblis and Myrrha, see Gebhardt (2009: 321–34).

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374  Law and Love in Ovid ista uetus pietas, aeuo moritura futuro, rustica Saturno regna tenente fuit. Iuppiter esse pium statuit, quodcumque iuuaret, et fas omne facit fratre marita soror.  Heroides 4.131–4 Such old-fashioned piety, about to die in the age to come, was ­rustic even in Saturn’s reign. Jupiter decreed that whatever brought pleasure was pious, and a sister married to a brother makes ­everything lawful.

Phraedra redefines pietas as a contrast between old-fashioned and modern concepts of family love. Marriage between step-relations was outlawed under Augustan legislation, which rendered any sexual alliance between stepmother and stepson incest (see McAuley  2016: 229–30; cf. Gardner  1986: 35–7, 126; Treggiari 1991: 38, 281; McGinn 1998: 140–7). Interestingly, Phaedra’s justi­ fication of incest is similar to the elegiac legitimization of adul­ tery. In Amores 3.4.37–8, Ovid dismissed the rusticitas of a husband who disapproves of his wife’s love life (see Chapter  3). The distinction between the crudeness of old-fashioned morality and the licence of modern times is a familiar motif in Ovid (Ars 3.121–2; Fasti 1.225–6). In Phaedra’s letter, it appears as a change of epoch of Hesiodic proportions. Yet both the ages of Saturn and Jupiter permit incestuous liaisons, since both gods married their sisters. From that perspective, the incest taboo seems to have no divine precedent. Incestuous love appears to be simultaneously ancient and modern. Jupiter, the father god of justice, lays down the new meaning of pietas. Iuppiter statuit describes the authoritative ruling of a jurist or a judge.53 The supreme god rules that pium is whatever is pleasing and Ovid here alludes to the etymology of Iuppiter from iuuare and pater.54 It is easy to dismiss Phaedra’s argument as perverse rhetoric 53  Cf. Gebhardt (2009: 52): ‘Ganz ähnlich ist statuere vox propria sowohl für die Kundgabe der Meinung eines maßgeblichen juristischen Gutachters (vgl. ius statuere §) als auch für das richterliche Urteil im Privatprozess.’ 54  See Cicero, Nat. D. 2.64 Iuppiter—id est iuuans pater, ‘Jupiter— the name means ‘the helping father’’, with Maltby (1991 s.v. Iuppiter). Note that Phaedra’s iuuare means ‘to give

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or shallow sophistry. Yet her learned etymology astutely points to pleasure as the foundation of the juridical order. In the end, family duty derives from whatever pleases the father. His desire is the source of justice.

Myrrha’s potestas Like Phaedra, Myrrha links incestuous love with pietas in her attempt to justify her passion—her aim is to legalize forbidden love. But unlike Phaedra, who evokes father Jupiter’s marriage with his sister in order to justify incest, the consummation of Myrrha’s sex­ ual desire for Cinyras is the annihilation of the father as the em­bodi­ ment of the law. Myrrha relies on the power of her love in order to build an alternative construction that shakes the foundations of patriarchy. The heroine launches an attack on the normative prin­ ciples of patriarchy as a result of her passionate love for her father. She aims to erase the name of the father in order to sleep with Cinyras. Her radically revisionist laws of love would undermine the patria potestas. While Myrrha would be under the potestas of Cinyras, her desire to impose a novel set of norms is related to her attempt to possess her father, to have him under her potestas. Her frustration at what she perceives as the absurdity of having Cinyras as her father, but not actually having him, is expressed in terms of property law: nunc, quia iam meus est, non est meus, ipsaque damno  est mihi proximitas; aliena potentior essem. Metamorphoses 10.339–40 Now, because he is mine, he is not mine, and our close relationship is my loss; I would have more power as a stranger.

A father ‘possesses’ his daughter, but a daughter does not possess her father. Myrrha wants to change this. The diction (meus est) pleasure to, delight’ rather than ‘to help, assist’. For other instances of this etymology in Ovid, see Am. 2.1.19, with McKeown (1987: 49); Michalopoulos (2001 s.v. Iuppiter).

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evokes the formula of the uindicatio, which features prominently in the poetics of amatory ownership of Latin love elegy (see Chapters 3 and 4). Likewise, damno, which refers to losses suffered by the owner, belongs to the language of property law (see Gebhardt 2009: 221–2, 326). The phrase aliena potentior is the culmination of Myrrha’s dizzying oxymora; the comparative potentior signifies hav­ ing power through possession. Myrrha imagines she could have her father under her potestas if she were not under his. Ovid puns on the meaning of aliena as ‘unconnected by blood’ (OLD s.v. 5a) and ‘belonging to someone else’ (cf. OLD 1).55 What is more, aliena potentior suggests the family status of a daughter alieni iuris, that is, a daughter under patria potestas. Myrrha employs and twists the terms of Roman family law. If she belonged to someone else, she would be able to make Cinyras hers. One way or another, her ul­tim­ ate ambition is to become the domina of her father. The nurse reiterates the interplay between family ties and ama­ tory possession when she agrees to help her foster child to consum­ mate her incestuous love: certa mori tamen est, si non potiatur amore. ‘uiue’ ait haec, ‘potiere tuo’— et non ausa ‘parente’ dicere conticuit Metamorphoses 10.428–30 But she is determined to die, if she were not to possess her love. ‘Live,’ she says, ‘possess your’— and fell silent, not daring to say ‘parent.’

The nurse echoes the diction of the heroine as she agrees to help her. The aposiopesis, nicely emphasized by the distinctly Ovidian elisions between the end of a character’s speech and the resumption of Orpheus’ narrative (‘uiue’ ait . . . tuo’—et), brings up the paradox that tormented Myrrha in her soliloquy. Without parente, the 55  Cf. Reed (2013: 242): ‘In meus . . . meus l’idea si impernia su quella di possesso, come anche in aliena (condizionale: “se io fossi la figlia di un altro uomo”) potentior essem, dove il compara­ tivo ha il senso di “avendo più grande possesso su” (OLD, s. u. “potens” 1b; cfr. potior).’

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possessive tuo is substantive; by stopping before adding parente, the nurse ends up saying ‘you will possess what is yours’ (cf. Met. 10.464). Her hesitation results in Cinyras’ social metamorphosis from a parent to a lover or husband; without parente, tuo would modify either amore from the line above or uiro (‘man’ or ‘hus­ band’). But Orpheus adds what the nurse did not dare say, and thus his audience and Ovid’s readers are confronted with the extent to which Myrrha’s passion upsets the social hierarchy of Roman fam­ ily law: ‘potiere tuo . . . parente’ is the promise of usurping the patria potestas, since Myrrha’s love, expressed in terms of property law, will result in the physical possession of her father. A redefinition of filial love based on sexual attraction turns a father into a lover, even a slave of love. Deprived of the symbolism of the father as the embodiment of the law, Cinyras will become the subject of his daughter’s passion. The nature of love (paternal, filial, or incestu­ ous) inevitably dictates the nature of the law. Myrrha’s attempt to justify and consummate her incestuous passion is an appropriation of the father’s power to flesh out and impose a legal code. A daughter was under the potestas of her father, unless a father freed her by emancipation or married her cum manu. In the latter case, the father ‘handed over’ the legal control of his daughter to the husband, who had his wife under his potestas. From a legal perspec­ tive, the marriage cum manu made the relationship between a daughter and a father similar to that of a wife and husband (see Gaius, Inst. 1.108).56 A wife was to her husband what a daughter was to her father. By Ovid’s times, the marriage cum manu was rare; a daughter would commonly remain under the potestas of her father even after her marriage. But Ovid’s Orpheus clearly evokes this old-fashioned form of marriage in order to stress that, thanks to Roman law, a daughter could assume the legal position of a wife. Ovid suggests not only love’s power to create an alternative legal order, but also the power of laws and customs to inspire passion. 56  A.  Watson (1991: 27) notes: ‘The older, marriage cum manu, put the wife under the power of her husband . . . she was said to be in the legal position of a daughter, and any prop­ erty she owned became his.’

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The story of Myrrha is a comment on the legally equivalent pos­itions of daughters and wives. The customary ages of a bride and a groom are also in play. A Roman bride often faced the prospect of marrying a husband of an age similar to her father’s. Ovid’s Orpheus draws attention to this when he speculates that, due to their age, Myrrha and Cinyras may have called each other ‘father’ and ‘daughter’ in bed (Met. 10.467–8).57 Since teenage girls were often handed over to a father figure, ancestral laws and customs can be held respon­ sible for the category confusion that torments Myrrha. Paternal law aims at pre-empting incestuous desire by deflecting and chan­ nelling it towards a father figure. But, in the case of Myrrha, the model of the husband as a reflection of the father breaks down. Pygmalion’s great-granddaughter refuses to give up the archetype for an imitation and thus destroys the legal constructions of patriarchy. The consummation of Myrrha’s passion is presented as a perverse wedding ceremony (see O’Bryhim 2008; Reed 2013: 255), led by the old nurse, who has telling similarities with an old procuress58 and a pronuba, the woman who conducts the bride to the bridal chamber. Once more, marriage and prostitution share similar characteristics (cf. Chapter  3). Cinyras lies in darkness, not realizing that he is about to sleep with his daughter. As she approaches her father’s bedroom, Myrrha’s identity is covered by a starless night, a dark shroud that perversely functions as the veil of the Roman bride: nutricisque manum laeua tenet, altera motu caecum iter explorat. thalami iam limina tangit, iamque fores aperit, iam ducitur intus .  .  .  .  .  .  .  .  .  . cunctantem longaeua manu deducit et alto admotam lecto cum traderet ‘accipe’ dixit, ‘ista tua est, Cinyra’ deuotaque corpora iunxit. Metamorphoses 10.455–7, 462–4 57  Lowrie (1993) sees a transgression of a religious taboo here. 58  Like the decrepit bawds of comedy and elegy, the nurse advertises the charms of the girl she is offering to a drunken Cinyras (Met. 10.437–43).

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Love and Incest  379 And she holds the nurse’s hand with her left hand; with the other hand she gropes her way in darkness. Now she touches the threshold of the bedchamber; now she opens the door; now she is led inside . . . The old woman leads the hesitant girl by her hand, and, after moving her to the high bed and handing her over, she said ‘Take her, Cinyras; she is yours’ and joined the accursed bodies.

While holding her nurse’s hand and groping her way in darkness, Myrrha is led (ducitur) into Cinyras’ bedroom, pointedly described as thalamus (‘bridal chamber’). The crossing of the chamber’s threshold (limen), the leading of the bride (ducitur), and the hand­ ing over of the bride to the groom allude to the Roman wedding and the institution of marriage cum manu (manu deducit evokes a marriage cum manu).59 When Myrrha hesitates and the nurse pushes her, the language of wedding customs becomes highly ironic. The young bride’s hesitation is typically attributed to virginal fear (cf. Met. 10.466), but in this case it springs from the horror of incest. The nurse’s tua est, as she hands over Myrrha to an oblivious Cinyras, reinforces the dramatic irony. Myrrha belongs to Cinyras because she is a daughter under the potestas of her father; yet the ritual set­ ting suggests a daughter soon to be a ‘wife’ under the manus of her ‘husband’. From a legally perverse point of view, Myrrha symbolically marries cum manu and remains in the potestas of her father. Incestuous sex that breaks Augustus’ moral legislation is veiled in the diction of the old-fashioned rituals of marriage cum manu. When Cinyras discovers the identity of his mistress, his first reac­ tion is to draw his sword from his sheath to kill Myrrha (Met. 10.475). The recognition of his daughter is followed by an act aiming to reassert his identity as her father. Cinyras’ attempt to kill his daughter recalls the ius occidendi of the Roman father. Under the lex Iulia, a father who caught his daughter committing adultery60 in his household had the right to kill her, provided he caught her in 59  For the Roman wedding, see Hersch (2010). 60  A marriageable girl (uirgo) who had an extramarital affair and a man who had an affair with a uirgo were technically committing stuprum (‘criminal fornication’), but the lex Iulia conflates stuprum with adulterium; see McGinn (1998: 144–52).

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the act and killed her on the spot. But he had to kill both the daughter and the adulterer, either both or neither.61 Cinyras’ attempt to kill his daughter is bitterly ironic, since it implies that next he had to kill himself as a father killing an adulterer. The narrative abandons the king and follows the wandering Myrrha, but Ovid’s learned readers would know that in some versions of the myth (see Hyginus, Fabulae 242.4) Cinyras commits suicide after realizing that he had had sex with his daughter. Aside from Ovid’s masterful com­bin­ ation of Roman law and allusions to mythological tradition, his Orpheus does not tell us what happened to Cinyras after failing to kill Myrrha. The act of incest seems to have erased his identity as a father. He disappears from the narrative as if the awareness of his crime had obliterated him. Cinyras’ failure to exercise patria potestas resonates with the lex Iulia’s attempts to reduce the power of the Roman father to exact punishment from his children. The ius occidendi, for instance, was meant to discourage fathers from taking the law into their own hands. Augustus’ marriage legislation limited the absolute power of the father. A young woman had to consent to her marriage and her father could not force her to marry against her will (see Videau 2004 and Chapter 4). The issue of a daughter’s consent is raised in Ovid’s story. Instead of choosing a husband for her daughter, Cinyras is at a loss in the face of numerous suitors and asks his daughter to choose whom she wants to marry (Met. 10.356–66). It is Myrrha’s freedom of choice that ultimately destabilizes Cinyras’ paternal power. A daughter’s required consent is the beginning of the end of patriarchal institutions. In her reluctance to choose a husband, Myrrha acts as a young girl who loathes leaving her parents, a virgin afraid of marriage (cf. Met. 10.361). In granting his daughter freedom of choice, Cinyras acts as a loving father who is unwilling to exercise patria potestas and relies instead on his authority. He asks his daughter to choose, but does not force her. Once Myrrha says she wants to marry someone like him (Met. 10.364), Cinyras

61  For the father’s ius occidendi (‘right to kill’) and Augustus’ lex Iulia, see McGinn (1998: 202–7).

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rejoices.62 The discussion is over and the choice of a husband put off indefinitely. In the tale of Myrrha, filial love annuls the law of the father. From a transhistorical perspective, the myth exemplifies the tension between family law and love. From the perspective of Ovid’s times, it may be read as a warning about the emperor’s policy of limiting the Roman father’s legal power. Myrrha’s love is a desire to possess her father. In her urge rad­ic­ al­ly to revise the nature and legitimacy of filial love, Myrrha is simultaneously an innovator and an archetypal legislator: an in­nov­ ator, because she wants to undermine the established morality of ancestral law, and an originary lawgiver, because she puts carnal desire in a legal framework. The sylleptic pun on concipere is crucial for understanding Myrrha’s shift from mentally conceiving a justifi­ cation of incest to carnally conceiving a child as a result of having sex with her father. Myrrha first uses concipere to describe the incestuous conceptions of birds (Met. 10.327–8 ipsaque, cuius / semine concepta est, ex illo concipit ales. ‘A bird herself conceives from that seed from which she was conceived’). She then urges her­ self to stop conceiving a love in her mind while her body has not suffered the unspeakable deed (351–2 at tu, dum corpore non es / passa nefas, animo ne concipe. ‘But you, as long as your body has not suffered the unspeakable, don’t conceive it in your mind’). The distinction between body and mind foreshadows the interplay between Myrrha’s mental and physical conception. The line that graphically describes the consummation of Myrrha’s criminal pas­ sion implies her pregnancy (470 semina fert utero conceptaque crimina portat. ‘She bears the seed in her womb and carries the con­ ceived crime’). Myrrha conceives an illegitimate son upon fulfilling her criminal plan (cf. Reed  2013: 257) or consummating her transgressive love (crimina). Her unborn baby is described as male conceptus (503), ‘badly conceived’ in Myrrha’s mind and Cinyras’ bed.

62  Cinyras may not be as innocent in his paternal love for Myrrha as he looks at first sight. He is happy to put off his daughter’s marriage once Myrrha expresses his love for him by saying she wants someone like him. He also consents to committing adultery with a virgin (uirgo) as soon as the nurse says the girl is Myrrha’s age (Met. 10.440–1).

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Gebhardt (2009: 327) is right to point out that Ovid alludes to the legal concept of furtum conceptum.63 Given that furtum and crimen are both used to describe extramarital affairs in love poetry, Myrrha’s concepta crimina is another example of Ovid’s interplay of erotic and legal discourse. Myrrha’s progression from the conceptu­ alization of her love to the birth of her child is uncannily similar to the biopolitical apparatus of paternal law. Adonis is the issue of Myrrha’s criminal love or the offspring of her novel laws of love. Her transgressive desire does not simply break the law but aims at becoming the law. Myrrha’s love highlights the power of amatory passion to give birth to law and life.

Conclusion In Augustan poetry, the myth of Orpheus opens a window on Roman reality. The legendary bard is created in the image not only of the Augustan poets but also of Augustus. As the archetypal legis­ lator, Orpheus is emblematic of the ways in which poetic and im­per­ial authority can overlap or collide. In Horace, Orpheus fea­ tures as the original proposer of marriage legislation, providing a precedent for Augustus’ moral reforms. In Ovid, the bard intro­ duces customs that are at odds with heterosexuality, marriage, and procreation. His exempla of extramarital love have the power to establish an alternative jurisprudence of love. That is why he is fun­ damentally a figure of Ovid whose love poetry has the power to break, reform, and make law. Orpheus’ focus on pederasty and incest may seem radically different from Ovid’s fascination with playful loves. Yet what Orpheus and Ovid have in common is that they deploy the power of their carmina in order to sanction extra­ marital desire, be it adulterous, pederastic, or incestuous. Love that lies outside the law thus becomes the source of moral reforms.

63 Gebhardt (2009: 327) cites Gaius, Inst. 3.186 conceptum furtum dicitur, cum apud aliquem testibus praesentibus furtiua res quaesita et inuenta sit. ‘It is called furtum conceptum when stolen property is sought and discovered on a man’s premises in the presence of witnesses.’

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Orpheus’ retelling of the myth of Myrrha, in particular, exemplifies the ways in which illicit desire signals a re-evaluation of the origins of law. Myrrha’s love is a return to a state before the father emerged as the symbolic embodiment of the law against incest. Lacan famously traced the foundations of the law in the name of the father who says no to children’s incestuous attractions and normalizes their desires by channelling them into socially acceptable alternatives.64 Myrrha denies the father’s power to ban incest as she consistently attempts to erase his name. In Roman declamation, a field in which Myrrha excels, a father claims that this name is greater than the law.65 Yet declamation is the genre that, like Roman comedy, restructures the hierarchies in the family and in particular undermines the patria potestas. Myrrha takes us back to a prejur­id­ic­al utopia in order to legitimize her love. The patria potestas is put to the test in the Saturnalian fantasy lands of Roman declamations. What is more, the Augustan le­gis­la­ tion aimed to restrict the father’s power over his children. In this chapter, I have argued that Orpheus’ myth of Myrrha in Ovid draws on the fictional legal system of declamations but also comments on Augustan family laws as well as Augustus’ family. My study can be read vis-à-vis interpretations of Ovid’s Romanization of Greek myth—his unique way of bridging the gap between legendary past and present, reality and fiction. But it can also—and probably more interestingly—be read as a case of mythologizing Roman law. This mythologization reveals a well-hidden secret, namely that the legal system is built on the foundations of fiction.

64  Lacan puns on nom (‘name’) and non (‘non’); the father’s name is his power to pro­ nounce a prohibition. For a Lacanian analysis of the law of the father in Ovid, Met. 3, see Janan (2009: 53–86). 65  See [Quintilian] Declamationes maiores 6.14 pater iussi. hoc nomen omni lege maius. ‘I ordered as a father. This name is greater than the law.’

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Epilogue It is proverbial that sovereign power cannot be shared. ‘Kingship does not have room for two’ (non capit regnum duos), as Thyestes puts it in Seneca (Thyestes 444). In Ovid’s version of this motif, political and erotic sovereignty appear as a couple laying equal claims to undivided ownership: ‘Kingdoms and Venus don’t get along with partners’ (Ars 3.564 non bene cum sociis regna Venusque manent). As if taught by Ovid, Seneca’s Clytemnestra adopts the praeceptor’s sententia. When her husband, King Agamemnon, returns home with Cassandra, Clytemnestra reminds us that ‘neither kingdoms nor wedding torches know how to endure a partner’ (Agamemnon 259 nec regna socium ferre nec taedae sciunt). Ovid’s advice supposedly concerns playful extramarital affairs, but Seneca’s Clytemnestra shows how readily it can serve a wife hurt by her husband’s infidelities. In Seneca, ‘kingdoms’ and ‘wedding torches’ are separated by means of word order, while in Ovid erotic and pol­it­ical power are joined together. Ovid’s line may at first suggest that ‘kingdoms’ and ‘Venus’ are two different things, but the phrase regna Venusque actually makes better sense as a hendiadys (regna Veneris ‘Venus’ kingdom’)– a hendiadys that draws attention to the monarchy of Venus. The political is thus subsumed under the rule of the goddess of love. Her power is absolute and cannot be divided.1 In this book, I argued that love’s sovereign power in Latin love poetry is closely related to the ways in which amatory passion defines and controls the juridical order by standing outside it. Venus and Amor—and the love poet as their mouthpiece—feature prominently as autonomous legislators who establish and enforce 1  On Venus’ imperial rule in Ovid, see Johnson (1996); Barchiesi (1999). Law and Love in Ovid: Courting Justice in the Age of Augustus. Ioannis Ziogas, Oxford University Press (2020). © Ioannis Ziogas. DOI: 10.1093/oso/9780198845140.003.0008

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the universal laws of love in Rome. But the love poets are not the only Roman citizens to claim an alliance with Venus. Augustus’ family descends from the goddess of love, and the prince’s sovereign rule is intimately related to his legislative reforms. Ovid and Augustus, like law and love, reflect each other, complement each other, but above all compete with each other. In the throne of law and love, there is no room for two rulers. The juridical nature of Ovid’s love poetry plays a major role in his reception in the Middle Ages. Peter Goodrich (2002: 107, 113–14) is right to note that the tradition of courts and judgments of love originates in the reception of Ovid’s Ars amatoria in mid-twelfthcentury northern Italy and southern France. Andreas Capellanus’ De amore records twenty-one judgments delivered by women’s courts in twelfth-century France. These women’s courts applied a set of precepts and rules drawing on the reception of Ovid’s Ars amatoria. The earliest medieval courts and judgments of love coincide not only with the reception of Ovid, but also with the rediscovery of Roman law. Latin love poetry and Roman law are thus intimately connected in the history of Ovid’s afterlife. Lawyers taught a branch of rhetoric, and they often wrote on love. The gloss­ator Bonocompagnus wrote ‘The Wheel of Venus’ (Rota Veneris), a treatise on the rules of composition of documents, on letters and desire. The constitutional theorist Stephanus Forcadel wrote Cupido iurisperitus and collated all the fragments of written law that dealt with amatory matters. Benoît de Court’s Commentaires juridiques et joyeux may appear playful, but is extraordinarily erudite in Roman law. These works are indicative of one of the main arguments of this book, namely that the law borrows from the lover’s discourse as much as love poetry borrows from legal language. Law and love demand autonomy and exclusivity, but one cannot stand without the other. In the Decameron, Boccaccio’s reception of Ovid is inextricably related to the juridico-discursive nature of love poetry. The Decameron is a tour de force of transforming the entire corpus of Ovid.2 The ways in which Boccaccio structures a plethora of stories 2  On Boccaccio’s reception of Ovid, see Smarr (1987); Hollander (1993); Rossi (1993); Marchesi (2004: 17–27); Labate (2006); Barchiesi and Hardie (2006: 78–88); Rosati (2014).

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under a strict chronological scheme as well as the interplay between internal and external narrators and audiences make the Decameron a worthy successor to Ovid’s Metamorphoses. The importance of time and timing, the shift between leisure and storytelling, as well as the emphasis on what one may say or when and to whom one may speak, align the Decameron with the Fasti, Ovid’s elegiac calendar that revolves around times for legal action and times for its suspension or time to speak up and time to remain silent (cf. Feeney 1992). The defence of the Decameron in the Introduction to Day IV resonates with a number of Ovidian intertexts, from the defence against Envy in the Amores to Ovid’s letter to Augustus in Tristia 2, as well as with the poet’s attack on his detractors in the exile poetry. Not unlike Ovid, Boccaccio defends his work by resorting to courtroom rhetoric. In his attempt to vindicate his literary pursuits, he argues that love is the law of nature and thus the superior legislator. His forensic rhetoric is thus concerned with love’s legality and the origins of justice. The author’s voice merges with that of his characters as he employs a combination of seductive and forensic discourse in the service of amatory jurisprudence. Boccaccio’s persona mirrors the praeceptor amoris of the Ars and the Remedia. The author is a veteran lover who managed to tame love and is willing now in his old age to instruct women who suffer from lovesickness how to cure themselves. The lovelorn addressees of the Decameron clearly evoke the target audience of Ars amatoria 3. Yet, not unlike Ars 3, readers may be at times justified in suspecting that the female-oriented approach of the Decameron may be the facade of a work that serves male interests. In any case, Boccaccio subtly but clearly aligns his work with the tradition of Latin didactic poetry. The plague that provides the frame for the storytelling is, of course, a historical event, but its vivid description in the Introduction to Day I further evokes the description of the plague at the end of Lucretius’ De rerum natura, a work with which Ovid’s Ars amatoria is in constant dialogue. The deadly plague is a foil for love, a potentially fatal virus which both Ovid and Boccaccio claim to be able to cure with their works. The plague also signals the collapse of the juridical order. As Boccaccio puts it, ‘[i]n the midst of so much affliction and misery

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Epilogue  387

in our city, the respect for the reverend authority of the laws, both divine and human, had declined just about to the vanishing point  .  .  .  Thus, people felt free to behave however they liked’ (Decameron, Introduction to Day I).3 By liberating people from legal constraints, the deadly plague curiously invites many to enjoy life. Some ‘maintained that the surest medicine for such an evil disease was to drink heavily, enjoy life’s pleasures, and go about singing and having fun, satisfying their appetites by any means available, while laughing at everything and turning whatever happened into a joke’ (Decameron, Introduction to Day I). Even in the dire conditions of a plague that reduces citizens and foreigners as well as masters and servants to bare life, the suspension of legal action inevitably summons the Saturnalian spirit of comedy. Pleasure rules in the aftermath of the collapse of property law (‘Most houses had thus become common property, and any stranger who happened upon them could treat them as if he were their rightful owner,’ Decameron, Introduction to Day I). The plague is thus an in­dis­pens­able condition for staging the re-emergence of the juridical order through the loves and love stories of the Decameron’s protagonists. We need to read the roles, rules, and storytelling of the Decameron’s heroes (the seven young women and three young men) within the work’s frame of the suspension of the rule of law. Boccaccio’s heroes establish an alternative jurisprudence of love in a state of exception caused by the disastrous effects of the plague.4 Only the sweeping force of amatory passion can be compared to the deadly pestilence. For Boccaccio’s young heroes, the downfall of the city of Florence is not an invitation to revel in anomie and anarchy, but gives them the unique opportunity to found a kingdom of love and rule in it as sovereign kings, queens, and legislators. It is no coincidence that many stories feature characters, motifs, and structures that clearly draw on the carnivalesque spirit of comedy. The work’s obsession with forensic rhetoric as well as with issues of love’s legality is particularly powerful; Boccaccio’s heroes reperform the birth of the juridical order from the matrix of a state of exception. 3  Translations of the Decameron are from Rebhorn (2015). 4  On law, friendship, and gender in the Decameron, see Sherberg (2011).

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388  Law and Love in Ovid

Like Boccaccio’s Decameron, Latin love elegy takes us back to the origins of law through the time window of a Saturnalian state of exception. We need to study law in Latin elegy within this framework, just as we cannot ignore the importance of the plague for the external and internal narratives of the Decameron. Latin love poets embrace the Saturnalian spirit of Roman comedy in order to establish the laws of love as the originary act of legislation. The im­port­ance of elegy’s comedic nature may seem, but should not be, at odds with my thesis that we need to take Ovid’s laws of love seriously. As Horace (cf. Sat. 1.1.24–5) put it, nothing forbids a person from telling the truth as he laughs. And I hope to have shown that we have an awful lot to learn about law from Ovid. We may still not find the truth about law in Ovid, but it is certainly worth looking for it in his love poetry, especially in what is often dubbed his ‘parody’ or ‘mockery’ of Roman law. The juridical force of Ovid’s poetry lies at the heart of his reception in the Middle Ages. Yet, despite the current revival of Ovidian scholarship, we seem to have lost the crucial link between law and love that animates a great part of Ovid’s genius. I hope that this book will contribute to re-evaluating the affective bonds of law in Ovid and thus encourage our aetas Ouidiana to pick up an im­port­ ant thread that ran through the medieval aetas Ouidiana, but has long since been abandoned. In this case, a return to the Middle Ages may be the most progressive movement.

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Bibliography  403 Rehm, R. 1994. Marriage to Death: The Conflation of Wedding and Funeral Rituals in Greek Tragedy. Princeton, NJ. Reid, C. J. 2016. ‘Law Reform in the Ancient World: Did the Emperor Augustus Succeed or Fail in his Moral Legislation?’, William & Mary Journal of Women and the Law 22: 165–202. Ridley, M. 2003. Nature via Nurture. New York. Riley, D. 2000. The Words of Selves: Identification, Solidarity, Irony. Stanford, CA. Rimell, V. 2006. Ovid’s Lovers: Desire, Difference, and the Poetic Imagination. Cambridge. Rimell, V. 2015. The Closure of Space in Roman Poetics: Empire’s Inward Turn. Cambridge. Rives, J. 2003. ‘Magic in Roman Law: The Reconstruction of a Crime’, Classical Antiquity 22: 313–39. Robinson, M. 2011. A Commentary on Ovid’s Fasti, Book 2. Oxford. Roller, M. 2018. Models from the Past in Roman Culture: A World of Exempla. Cambridge. Roman, L. 2014. Poetic Autonomy in Ancient Rome. Oxford. Rosati, G. 1983. Narciso e Pigmalione: Illusione e spettacolo nelle Metamorfosi di Ovidio. Florence. Rosati, G. 2009. Ovidio. Metamorfosi. Volume III (Libri V–VI). Milan. Rosati, G. 2014. ‘La forma impossibile: Le genealogie e la tradizione mitografica antica’, in A.  Ferracin and M.  Venier (eds.), Giovanni Boccaccio: Tradizione, interpretazione e fortuna. In ricordo di Vittore Branca. Udine, 3–17. Rosenmeyer, P. 1995. ‘Enacting the Law: Plautus’ Use of the Divorce Formula on Stage’, Phoenix 49: 201–17. Rosenmeyer, P. 1996. ‘Love Letters in Callimachus, Ovid and Aristaenetus or the Sad Fate of a Mailorder Bride’, Materiali e discussioni per l’analisi dei testi classici 36: 9–31. Rosenmeyer, P. 2001. Ancient Epistolary Fictions: The Letter in Greek Literature. Cambridge. Rossi, L. 1993. ‘Presenze ovidiane nel Decameron’, Studi sul Boccaccio 21: 125–37. Rothstein, M. 1966. Die Elegien des Sextus Propertius (3rd edn) 2 vols. Dublin. Roussel, D. 2008. Ovide épistolier. Brussels. Rowe, G. 2013. ‘Reconsidering the auctoritas of Augustus’, Journal of Roman Studies 103: 1–15. Rudd, N. 1989. Horace. Epistles, Book II and Epistle to the Pisones (‘Ars Poetica’). Cambridge. Rynearson,  N. 2009. ‘A Callimachean Case of Lovesickness: Magic, Disease, and Desire in Aetia frr. 67–75 Pf.’, American Journal of Philology 130: 341–65. Rynearson, N. 2013. ‘Courting the Erinyes: Persuasion, Sacrifice, and Seduction in Aeschylus’s Eumenides’, Transactions of the American Philological Association 143: 1–22. Saller, R. P. 1982. Personal Patronage under the Early Roman Empire. Cambridge. Saller, R.  P. 1993. ‘The Social Dynamics of Consent to Marriage and Sexual Relations: The Evidence of Roman Comedy’, in A.  Laiou (ed.), Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies. Washington DC, 83–104.

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406 Bibliography Watson, L. 1991. Arae: The Curse Poetry of Antiquity. Leeds. Watson, L. 2019. Magic in Ancient Greece and Rome. London and New York. Watson, P. 1983. ‘Ovid, Amores 2.7 and 8: The Disingenuous Defence’, Wiener Studien 17: 91–103. Weber, M. 1983. Die mythologische Erzählung in Ovids Liebeskunst: Verankerung, Struktur und Funktion. Frankfurt am Main and Berne. Welch, T. 2005. The Elegiac Cityscape: Propertius and the Meaning of Roman Monuments. Columbus, OH. West, M. L. 1974. Studies in Greek Elegy and Iambus. Berlin. West, M. L. 1978. Hesiod: Works and Days. Oxford. Whitby, M., Hardie, P., and Whitby, M. (eds.) 1987. Homo Viator: Classical Essays for John Bramble. Bristol and Oak Park, IL. White, P. 1993. Promised Verse: Poets in the Society of Augustan Rome. Cambridge, MA. Wibier, M. 2016. ‘Cicero’s Reception in the Juristic Tradition of the Early Empire’, in P.  du Plessis (ed.), Cicero’s Law: Rethinking Law in the Late Republic. Edinburgh, 100–22. Wibier, M. forthcoming. Legal Scholarship and the World of Learning: An Intellectual History of Roman Jurisprudence in the Early Empire. Oxford. Williams, C. 1999. Roman Homosexuality: Ideologies of Masculinity in Classical Antiquity. Oxford. Williams, G. 1994. Banished Voices. Cambridge. Wills, J. 1996. Repetition in Latin Poetry. Oxford. Wiseman, T. P. 1969. ‘The census in the First Century bc’, Journal of Roman Studies 59: 59–75. Worman, N. 1997. ‘The Body as Argument: Helen in Four Greek Texts’, Classical Antiquity 16: 151–203. Wyke, M. 2002. The Roman Mistress: Ancient and Modern Representations. Oxford. Wyke, M. 2006. ‘Reading Female Flesh: Amores 3.1’, in P.  Knox (ed.), Oxford Readings in Classical Studies: Ovid. Oxford, 169–204 [= A. Cameron (ed.) 1989. History as Text: The Writing of Ancient History. London, 113–43]. Yardley, J.  C. 1987. ‘Propertius 4.5, Ovid Amores 1.6 and Roman Comedy’, Proceedings of the Cambridge Philological Society 213 (New Series 33): 179–89. Yardley, J. C. 1991. ‘The Symposium in Roman Elegy’, in W. J. Slater (ed.), Dining in a Classical Context, Ann Arbor, MI, 149–55. Zagagi, N. 1980. Tradition and Originality in Plautus: Studies of the Amatory Motifs in Plautine Comedy. Göttingen. Zimmermann, R. 1996. The Law of Obligations: Roman Foundations of the Civilian Tradition. Oxford. Zimmermann Damer, E. 2019. In the Flesh: Embodied Identities in Roman Elegy. Madison, WI. Ziogas, I. 2013. Ovid and Hesiod: The Metamorphosis of the Catalogue of Women. Cambridge. Ziogas, I. 2014a. ‘The Topography of Epic Narrative in Ovid’s Metamorphoses’, in M. Skempis and I. Ziogas (eds.), Geography, Topography, Landscape: Configurations of Space in Greek and Roman Epic. Berlin and Boston, MA, 325–48.

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Index of Passages Discussed Aristotle Politics 3.11.4  1 Augustus Res Gestae 1 44n.28 1.10 54–5 8  308–10, 314–15, 319, 355 34 337–9 Boccaccio Decameron Introduction to Day I  386–7 Callimachus Aetia fr. 1 Harder  34–5, 42–3 fr. 1.21–2 Harder  178–9 fr. 67.1–4 Harder  163–4 fr. 75a.3–4  172n.55 fr. 75.17 Harder  165–6, 193 fr. 75.21 Harder  196n.89 fr. 75.22 Harder  165–6 fr. 75.28–9 Harder  194 fr. 75.40–1 Harder  194–5 fr. 75.48–9 Harder  164 fr. 75.66 Harder  179 fr. 75.76 Harder  166 fr. 612 Pf.  164, 213 Hymn to Apollo 2.105–13 35 Catullus 5  35–6, 88, 111–12 6 90–1 7.7–8 88 51.9–10 87–8 55.9–12 89–90 55.18–20 89–90 58.5 88–9 65.19  107, 110 65.25 111 68B.125–7 111 68B 135–7  91–2 72.5 87

76.23–6 87 85.1 87–8 Cicero Ad familiares 7.6.2 258–9 Brutus 152 262–3 De inuentione rhetorica 1.10 137n.88 1.15 37n.14 De legibus 1.50–1  82–3, 130–2 2.23.59 146n.5 De natura deorum 2.64 374n.54 De officiis 1.33 162–3 1.69–70 69–70 1.71 30 3.107–8 191–2 De oratore 1.200 252–3 1.212 259 In Pisonem 9 137n.88 Pro Caelio 1.1 247–8 38 297n.76 48 278 Pro Murena 25–6 169–70 Pro Plancio 7 83n.20 Digest 1.1.1.3–4 372 1.2.2.49 256–7 1.4.1  2, 42 5.6.1 56 12.5.4.3 272–3 18.1.1 167 39.5.5 273–4 50.16.236 167

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410  Index of Passages Discussed Digest (cont.) 7.2.6.2.1 56 31.1.88.10.1 56 43.16.1.27 237–8 47.2.1 254–5 47.10.15.15 297–8 Dio Cassius 49.15.5–6  55, 235–6 55.12.15 72n.4 56.1–10 361–2 Dionysius of Halicarnassus Roman Antiquities 20.13.2–3 76–8 Euripides fr. 1061 Nauck  134n.85 fr. 1063.9–14 Nauck  134n.85 Hippolytus 317 132n.83 612 191–2 Festus De uerborum significatione 318  11, 49n.34 Gaius Institutiones 1.7 250–1 3.186 382n.63 4.16 97–8 Gellius Noctes Atticae 13.12.1–2 255–6 Herodotus 1.8.3 295n.72 Hesiod Theogony 82–4  205, 216 90  205–6, 216 96–7  205, 216 103 205 205–6 205–6 213 213 224 214–15 263–4 214–15 275 213 Works and Days 9–10  208–9, 213 14 209 27–34 210–11 33 209 35–40  211–12, 230–1

262 205 282–4 208–9 783–800 331 Homer Iliad 3.40 363 14.198 205–6 14.216–17 205–6 Horace Ars poetica 75–6 176–7 391–401  59–60, 222–3, 348–50 Carmen Saeculare 17–20  220–1, 307–8 Satirae 1.3.24 323 1.3.99–110 351–2 1.4.113–14 125–6 2.3.69–70 156n.24 Juvenal 1.128 252–3 6.245 162n.31 6.638 137n.88 7.13 106n.54 8.50 156n.24 Livy 1.58.9 132 Lucan 2.326–49 102n.48 Lucretius 3.776 119–20 4.1263–77 324–5 6.1209 71 Macrobius Saturnalia 1.7.26 66 Matthew the Apostle 5.17 138n.90 Ovid Amores Epigram 320–2 1.1.1 321n.27 1.3.19 326 1.4.6 96–7 1.4.10 95 1.4.29 94 1.4.35 94 1.4.38–40  94–5, 97–8, 108

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Index of Passages Discussed  411 1.4.63–6 98–100 1.4.65 94 1.4.69–70 104 1.8.69–72 65–6 1.8.95 261–2 1.8.97–8 91n.32 1.8.110 95n.40 1.10.37–42 274–6 1.15.1–8  27–8, 32–4, 38–40, 222–3, 264 1.10.39–42 40 1.11.3 254–5 1.13.21–2 264 2.1.19 374n.54 2.1.27–8 186n.77 2.1.38  31–2, 161–2 2.2.55–6 83 2.5.5–13 105–7 2.5.6 110 2.5.7–8 82n.17 2.5.9 112–13 2.5.10 137n.88 2.5.23 111 2.5.29–34 107–11 2.5.36 110 2.5.47–8  112–14, 113n.60 2.5.53 109 2.5.57 109 2.5.59–60 109 2.7.1–2 117–18 2.7.15–16 119–20 2.7.17–18  33n.9, 118–19 2.7.21–2 119–21 2.7.28 116n.64 2.8.6 121 2.8.16 121–2 2.8.22 121 2.8.25–6 121–2 2.17.1–2 275n.47 2.17.23–4 150–1 2.19.1–2 129 2.19.3–4 124–5 2.19.39–40 254–5 2.19.51–2 124–6 2.19.57 123–4 2.19.60 129–30 3.4.2 134n.85 3.4.3–8  130–3, 134n.85 3.4.9–12  134–5, 139 3.4.19–20 134n.85 3.4.27  124, 135 3.4.33–6 136–8

3.4.37–8  91–2, 138, 374 3.7.29–30 154 3.11.39 76n.10 3.14.1–2 81 3.14.3–4 76–7 3.14.5–6  82, 85 3.14.7 82 3.14.9–10 88–9 3.14.11–12  82, 85 3.14.13 87 3.14.15 82–4 3.14.17–28  80–1, 294–5 3.14.26 90–1 3.14.31–4 90–1 3.14.32 90–1 3.14.33–4 79 3.14.37 82 3.14.38–9 87–8 3.14.45 83–4 3.14.47–8 81–2 3.14.50 83 Ars amatoria 1.1–2  13, 185–6, 247–50, 253 1.7–10 226–7 1.29–30  213–14, 250n.17, 253, 262–3, 365–6 1.29–34  286–9, 291–5, 361 1.37 188 1.41–2 276–83 1.79–88 267–8 1.83–4 258–9 1.437 154–5 1.458 187 1.459–64 265–6 1.589–90 228–9 1.591–2 260 1.609–11 266 1.643–6 238 1.655–8 238–9 1.667–8 259–60 2.151–8 215–17 2.599–600  289–90, 293n.66 2.607–8 89–90 2.277–8 225 2.361–72 239–42 2.668 329–30 2.744 229n.33 3.5 291–2 3.27–8 290 3.57–8 290–1 3.61–2 281–3

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412  Index of Passages Discussed Ovid (cont.) 3.75–6 281–2 3.81–2 329–30 3.101–2 328–9 3.169–70 293 3.235–7 260 3.300 88n.26 3.340 252–3 3.407–8 59–60 3.431 298 3.447–54 268–70 3.491–2 237–9 3.518 330 3.521–2 330 3.529–34  40–1, 213–14, 271–2, 276 3.564 384 3.763–4 228n.32 3.771 251n.18 3.772 325 3.773–4 325 3.775–8 324–5 3.783–4 323–4 3.785–6 322–3 3.787 330 3.799–800 326–7 3.801–2  260–1, 325–6 3.803–4 261 3.812 229n.33 Epistulae ex Ponto 2.1.17–18  71–2, 315n.17 2.10.1–2 154–5 2.10.15–16 262–3 3.7.5–6 154–5 Fasti 1.93–4 179 2.127–8 59–60 2.139–42  59–60, 334–6 4.93 5 4.107–14  5–7, 188n.83 6.71–2 83n.20 Heroides 3.1–4 182 4.131–4 373–5 4.135–6 156n.24 7.136 344–5 8.16 98 12.157–8  98, 170n.49 12.201–2 216n.15 16.249–54 113n.60 16.321–2 160

18.17–18 154–5 20.1a–2a 198–9 20.25–30 161–4 20.27–28  160, 170n.48 20.36 173–4 20.39–40 155–7 20.79–80  149–51, 160 20.91 149 20.107–12 164–7 20.117 165–6 20.143–56 168–72 20.157–8 149n.11 20.159–60 172–3 20.167–70 173–4 20.211–14 176–8 20.237–40 176–82 21.52 147n.8 21.53 194n.88 21.56  147n.9, 156 21.110 186n.78 21.121–2  187, 198–9, 262n.33 21.125–8 187–9 21.131–2 189–90 21.133–44 190–2 21.151–4 192–3 21.169 193 21.181–2 185–6 21.209–10 146–7 21.231–6 193–4 21.240  183, 194–5 21.243 194–5 Metamorphoses 1.89–94  127, 218–20, 224–5 1.131 127 1.145–50  127, 219n.18, 224–5 2.88–9 344–5 3.322–3 250–3 3.335 251 3.346 252n.21 3.348 251n.18 6.73 364 6.114 364–5 10.83–4 354–5 10.243–97 343 10.298–300  360–1, 363 10.300–3 365–6 10.304 372–3 10.306 368n.40 10.311–14 366–7 10.323–5 371

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Index of Passages Discussed  413 10.327–8 381 10.330–3 372–3 10.339–40 375–6 10.351–2 381 10.428–30 376–7 10.455–7 378–9 10.462–4 378–9 10.466 379 10.467–8 377–8 10.470 381–2 10.475 379–80 10.503 381 12.558 344–5 15.832–7  313–15, 339 Remedia amoris 79–80 279 144  18n.20, 30 151–4 29–30 361–2 38n.16 659–72 270–3 663 213–14 Tristia 1.1.112 13–14 1.1.114 317 1.7.35 321n.25 2.93–8  231–2, 235–6 2.139–40 42 2.247–50  286–7, 293–4 2.303–6 288–9 2.533–6  318–19, 321n.27 3.1.71–4 317–18 3.7 341–3 3.7.47–8  60–1, 342–3 3.9.9–12 318 4.10.6 44n.28 4.10.17–22  27, 41–3 4.10.25 43–5 4.10.37–40 27 4.10.89–90 45–6 4.10.99–100 45–6 4.10.123–4 42n.23 [Ovid] Consolatio ad Liuiam 305  125–6 Paul the Apostle Romans 4.15 139 7.7–10 139 13.10 139

Phanocles Erotes fr. 1.7–10 Powell  353–5 Pindar fr. 169  234n.45 Plato Laws 690a–c 14–15 Republic 364c–d 207–8 Symposium 182d 89n.30 208–9  307, 317 Plautus Aulularia 219 173n.57 Bacchides 92–3 63–4 Curculio 37–8 277–8 Persa 361 109 Pseudolus 13–15 63–4 Pliny the Elder Naturalis historia 10.172 373n.51 Porphyrio Commentum in Horati Sermones 1.3.82 255 Propertius 1.13.15–16 171 1.18 51–2 1.18.7–8 79–80 2.6.19–22 332–4 2.7  31n.3, 280–1 2.7.19 280–1 2.15.1–24 67 2.18A.3–4 83–4 2.19.32 197n.90 2.20  53–4, 158–60 2.20.9–12 158–60 2.25.29–30 89n.30 2.30.13–18 34–5 2.30.23–5 36–8 3.13.48–50 224–5 3.15.43 115 3.16 57–8 3.19.1 33n.9

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414  Index of Passages Discussed Propertius (cont.) 3.20.15–25 157–8 4.1b.133–5  30–2, 162n.32 4.3.1 195–6 4.3.69–70  94n.39, 195–6 4.5.13 65–6 4.8.73–4  116, 150–1 4.8.81  116, 150–1 Quintilian Declamationes Maiores 5.5 105–6 6.14 383n.65 Institutio oratoria 1.8.11–12 167 3.7.25 83n.20 5.10.31 101–2 Sappho fr. 1.20–1  152–3 fr. 31.13  87n.25 Seneca the Elder Controuersiae 2.6.11 278n.50 2.7.3 135–6 Seneca the Younger Agamemnon 259 384 De beneficiis 4.14.1 132–3 6.32.1  70n.3, 71–2, 88n.26 De clementia 1.23.1 128 Thyestes 444 384 Solon fr. 2. G-P= 1 W  236–7, 243 fr. 3.1 G-P= 4.1 W  233–4 fr. 7.1 G-P= 5.1 W  233–4 fr. 8 G-P=6 W  227–8 fr. 9 G-P= 7 W  229 fr. 16 G-P=25 W  242–3 fr. 24 G-P=26 W  242–3

fr. 29 G-P=32 W  232–3 fr. 30 G-P=fr. 36 W  230–1, 233–5 Suetonius Augustus 27 78 62.2 335–6 65.4 362–3 Caligula 23.1 363–4 25.1 335–6 Tacitus Annales 2.85.1–3 296 3.25–8  220–1, 308 Dialogus 12.3–5 221–3 Theognis 1.22–3 229n.33 1.24 229 1.39–52 232–3 1.153–6 227–8 1.220 227–8 1.479–80 227–9 1.505–7 228–9 1.543–4 229–30 Tibullus 1.2.29–30 56–7 Twelve Tables 1.1 84 Ulpian Regulae 5.5  120–1 Velleius Paterculus 1.7.1 216 Vergil Eclogues 10.69 18–19 Georgics 1.1 330 2.501–2 219n.17 4.559–62 31n.3

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General Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. Acontius  21–2, 31–2, 142–57, 160–87, 189–95, 198–9. See also etymology adultery  2–3, 33, 37, 55, 75–6, 83–6, 91–3, 95–6, 98–100, 102–4, 111, 118–19, 123–33, 135–6, 138, 168–9, 207–8, 216–17, 220, 239–42, 246, 277–8, 280–9, 291, 293–8, 300, 304–5, 318–19, 347–8, 351–2, 361–2, 374, 379–80, 382. See also lex Iulia, lex Papia Poppaea, quaestio perpetua de adulteriis Aeschylus 7 aesthetic  41, 120–1, 284–5, 292–4. See also morality aetiology  62, 164–7, 194. See also Callimachus, causa affectio maritalis  101–4, 174, 274–6 Agamben, Giorgio  10–12, 14–15, 47–51, 54–6, 60–2, 66–7, 110, 138–40, 303–5, 310–11, 334, 336–8, 347–8. See also auctoritas, ban, biopolitics, exception, homo sacer, life, sacrosanctity, sovereignty agriculture  210, 326, 328–31 amicitia  40–1, 274, 276. See also client, patron, reciprocity, women Amor, see also Cupid, Eros crimen of  36–8, 332–4. See also crimen laws of  69, 263, 299–300, 320, 332–4, 384–5 legal action and  30, 258–9, 267–8 as legal expert  31–2, 109n.57, 157–8, 161–4, 187, 258–9, 263, 267–8, 369 as Ovid’s pupil  226–7 rule of  140, 334 as sovereign  14, 18–19, 170, 197, 239, 268, 270, 327 anti-Augustan 3–4. See also Augustus

Aphrodite  205–6, 269–70, 358–9. See also Venus Apollo  179, 332 Hyacinthus and  346, 354n.14, 355–6 jurists and  252–3, 258. See also jurists oracle of  165–6, 193–5, 252–3 recusatio and  30–3, 35, 47–8. See also recusatio apple  110–11, 147, 152, 176–82, 184–6 Arethusa 195–6 Aristotle  1, 167, 192, 303, 317 Artemis  144, 165–6. See also Diana Atalanta  324–5, 359–60 auctor Augustus as, see Augustus as author of law  257–8, 305–6, 309–10, 313–15, 321–2, 331–2, 334, 336–7, 345, 355 as author of poetry  23, 249, 306, 316–21, 331–3, 340–5 criminis  331–3, 336–7, 345 exempla and  311–14, 316–17, 332–4, 355 as father  305–6, 309–10, 314–22, 336–7, 342–5, 357–8 as guarantor  338, 354–5 auctoritas  256–7, 263, 336–40, 342–3. See also auctor, potestas Augustus­ auctor  23, 305–6, 308–20, 331–2, 334, 337–40, 342–3, 345, 355, 357–8. See also etymology censor 78 family of  2–3, 23–4, 70–2, 308–15, 335–6, 362–4, 383–5. See also Julia, Livia, Tiberius Jupiter and, see Jupiter jurists and  245, 255–7, 262–3

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416  General Index Augustus­ (cont.) moral legislation  2–3, 70, 72, 75–6, 80, 86–7, 95–6, 101–3, 118–19, 123–5, 127–8, 131–2, 140–1, 145, 149, 198, 204, 208, 219–21, 246, 252–3, 281–7, 298–9, 304–15, 320–1, 333–4, 343–4, 346–8, 351–2, 355, 361–8, 379–82. See also adultery, morality Ovid and  3–4, 10, 22, 42, 44–50, 60–1, 68, 122–3, 126–7, 139–41, 197, 214–19, 225–6, 231–2, 235–6, 239, 243–4, 251, 292, 295, 320–1, 342–3, 384–5 pater patriae  2–3, 23–4, 43, 59–60, 70, 140, 304–6, 308–15, 334–6, 339, 342–3, 345 private life  21, 71–2 sacrosanctus  20–1, 54–62 sovereign  2, 11, 20–1, 46–8, 54–62, 69, 235, 327 tribunicia potestas  11, 54–5, 69 autobiography 41–8 autonomy  21–3, 69–70, 72–5, 86–7, 93–101, 103, 130, 132, 140–1, 217, 245, 276–83, 322, 331, 385 ban  10, 48–52, 151–2, 296, 318 Barthes, Roland  146, 148 biopolitics  23, 303–6, 310–12, 314–17, 319, 327, 331, 336–7, 340, 342–3, 347–8, 357–8, 382 Boccaccio, Giovanni  24, 385–8 bonds, see also knots amatory  53–4, 156, 158, 171, 190, 206–7 legal  53–4, 156, 158–9, 171, 190 magic and  154–6. See also magic Butler, Judith  147–8, 183 Byblis  146n.7, 355n.16, 373 Caligula  335–6, 363–4 Callimachus  21–2, 31–6, 42–3, 161, 163–7, 171–2, 178–81, 184–5, 193–5, 213 Capellanus, Andreas  385 Capito 255–6. See also jurists carmen crimen and  295. See also crimen law and  43–4, 84, 145–6, 155, 177–8, 186, 248–50, 295 magic and  43–4, 155, 185–6, 249–50 poem as  3, 43–4, 145–6, 155, 185–6, 358–9 causa  164–7, 172, 178–9, 193. See also aetiology

censor  38n.16, 49, 51, 76–81, 123–4, 133, 207–8, 277–8, 281–2, 293, 323. See also Augustus childbirth  2–3, 72–3, 220–1, 304, 308, 310, 314–15, 320–31, 333–4, 347–8, 355–6, 358, 361. See also fertility, pregnancy Cinyras  23–4, 356–63, 375–82 client  39–41, 109, 161–2, 257–9, 261, 267–8, 276, 325–6, 344–5. See also amicitia comedy  20–1, 62–6, 116, 167, 241–2, 277–8, 369–70, 383, 386–8 commodity transaction  39–40, 274–6 complaint  51–3, 194, 260 consent  17–18, 99–102, 120–1, 132, 138, 140, 145, 149, 188–9, 194–5, 198, 380–1 contract  17–18, 31–2, 101–2, 120–1, 145–6, 149–50, 154, 157–8, 162–3, 171–5, 177–8, 187, 190–1, 198–9 controuersia  33, 122–3, 135–6, 239–40, 367–70. See also declamation Corinna  74, 93, 95–6, 104, 110, 112–14, 118–19, 122–3, 150–1, 341–2. See also etymology Cornelia  9, 131–2 crimen as accusation  117–19, 268–9, 295 amoris, see Amor carmen and, see carmen as extramarital affair  36–7, 107, 268, 295, 382 remotio  37–8, 240–1, 288, 366–7 cuckold  91–2, 104, 111–12, 127–8 cultural construct  11–16, 199 curse 157n.26. See also bonds, defixio, magic judicial  152–4, 199 poetry  151–4, 158 tablet  21–2, 152–5, 184–5 Cupid, see also Amor, Eros Adonis and  356–7 court of  29–30, 267–8 as defendant  366–7 as legal expert  161–3, 258–9 as Ovid’s pupil  226–7 custom  14–16, 19, 69–70, 175–6, 255–6, 278–9, 282–3, 355, 361–2, 377–8 Cydippe  21–2, 142–57, 160–99 Cynthia  36–7, 51–4, 57–8, 79–80, 115–16, 149–51, 158–9, 280–1 Cypassis 114–23

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General Index  417 declamation  33, 105–6, 122–3, 135n.86, 136, 188–91, 347, 367–71, 373, 383. See also controuersia defixio  152–4, 158. See also bonds, curse Derrida, Jacques  147–8, 174–5, 339–40 Diana  144–5, 165–6, 176–7, 190–2, See also Artemis didactic poetry  13–14, 16, 22–3, 31n.3, 185–6, 203–17, 225–8, 232, 236, 243–4, 246–50, 253–4, 259, 263, 299–300, 328–31, 340–1, 346, 386 Dido  318–19, 344–5 docta puella  184–6, 341–2. See also women doctus  17–18, 185–6, 247, 249–55 domina  10, 49–50, 53, 65–6, 66n.57, 91–2, 97–8, 118, 120, 122–3, 145, 149–51, 160, 184, 194–5, 270–1, 375–6 dominus  10, 170. See also domina, master dowry 216–17 Envy  32–3, 35, 38–9, 42–3, 386. See also Livor Eris  209–11, 228–9 Eros and  206, 216, 228–9 as litigation  205–6, 209–10, 216 Eros  163–4, 205–6. See also Amor, Cupid, Eris etymology Acontius 146–7 Augustus  305–6, 309–10, 338–9, See also Augustus, auctor Corinna 341n.53. See also Corinna Cytherea 89–90. See also Venus exemplum 310–11 furtum 254–5. See also Labeo, furtum Iuppiter 374–5. See also Jupiter lex  181–2, 249, 319 materies 326 meretrix 274 Venus 156n.24. See also Venus Euripides  153–4, 191–2, 239–40, 352–3, 373 exemplarity  10, 310–17, 323–4, 333–4, 336, 346, 355, 360, 363. See also etymology, exception exception exemplum and  310–11, 316–17 state of  10–11, 47–8, 52–4, 56–7, 60–9, 81, 138, 220, 244, 299–300, 370–1, 387–8 exile from law  49–52, 58, 60–1, 151–2, 233–6

poetry  3, 13–14, 20–1, 46, 49–50, 60–1, 71–2, 151–2, 214, 239, 262–3, 288–9, 320–1, 386 without trial  46, 49–50, 151–2, 214, 235–6 father, see auctor, Augustus, incest, pater familias, potestas Ovid’s 41–6 fertility  220–1, 304, 308, 319, 325–30 flagitatio 89–90 Forcadel, Stephanus  24, 385 Foucault, Michel  11–12, 75, 126–7, 246–7, 253, 299, 303–5, 347–8. See also biopolitics, sexuality furtum  97–9, 106–7, 254–5, 278, 295, 382. See also etymology gifts corruption and  224, 275–6 between husband and wife  270–5 lovers’  106–7, 124, 270–5 pandering husband and  129–30. See also lenocinium poetic 39–40 to prostitutes  270–5 golden age  66, 127–8, 217–26 homo sacer  10–11, 48–9, 54–62, 68, 234–6, 303–4, 350 Helen  112–14, 160, 239–42, 315–16 Hesiod  22, 203–35, 237, 243–4, 267–8, 275–6, 306–7, 315, 329, 331, 355–6 heteronomy  75, 93–4, 96, 130, 217. See also autonomy Homer  7, 41–2, 43n.25, 167, 204–9, 239–40, 307, 313, 362–3 homosexuality  346, 352–7, 361 Horace  23–4, 46–7, 59–60, 125–6, 176–7, 220–3, 296–7, 307–8, 348–52, 358, 382, 388 immorality  79, 207–8. See also morality infamia  65–6, 79–80, 85–6, 130–1 initiation  288, 293–4, 361, 365 intertextuality  21–2, 38–9, 71, 110, 116–17, 161–8, 171–5, 178–80, 184–5, 193–4, 198, 213–14, 225–6, 280–1, 313, 340–1, 354–5, 373, 386 iterability  21–2, 147–8, 183, 198

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418  General Index iurisconsultus  82, 109, 151, 161–2, 169–70, 258–9, 264 ius. See also women gentium 371–2 naturale 371–2, See also natural law occidendi 379–80 trium liberorum 320–2 uocatio in 149 Julia  2–3, 23–4, 70–2, 88n.26, 314–15, 342–3, 362–4 Julian law, see lex Iulia Jupiter, see also Zeus Augustus and  306, 313–15, 336, 364 etymology of  373–5 as father  305–6, 313–15, 364 incest and  364, 373–5 Ganymede and  346, 355–7 as sovereign  159–60, 373–5 Tiresias and  250–3. See also Tiresias jurists, see also Capito, Labeo, Ulpian amicitia and  40–1, 257–9, 276. See also amicitia Augustus and, see Augustus Cicero and  258–9, 262–3, 264n.36, 288 doctrina of  250, 253–5. See also doctus etymologies of  254–5 expertise of  20, 22–3, 128, 250–1, 253, 256–7, 262–3, 283, 299 independence of  245–6, 283 interpretations of  3–4, 20, 162–3, 167, 272–6, 288–9, 297–8 language of  4–5, 9, 17–18, 108–9, 136–7, 196, 248–9, 258–9, 290, 300, 344–5, 354–5 law schools of  245–6, 253–5, 257–8 legal advice of  161–2, 261, 271–2, 274–5, 344–5 Lucretius and  16–17 natural law and  372 oracles and  9, 252–3, 262, 288. See also Tiresias orators and  264–76 responsa of  222–3, 250–3, 256–7, 263 knots  154–7, 159–60, 171, 283. See also bonds Labeo  254–7, 263, 272–3. See also jurists Lacan, Jacques  9, 17, 183–4, 331–2, 383 lena, see procuress lenocinium  123–4, 240–1, 289–90, 296

letter, love  21–2, 143–4, 146, 149–57, 160–1, 168, 171, 174–6, 179–81, 183–4, 187, 194–9, 373 lex Cincia  39, 275–6 lex Iulia  2–3, 20, 70, 75–6, 85–6, 124–5, 129, 133–4, 137–8, 149, 220–1, 239–41, 246, 253–4, 262–3, 283–4, 286–7, 290–6, 298, 300, 307, 325, 334, 358, 379–80 lex Oppia 293 lex Papia Poppaea  2–3, 220–1 libertas  255, 317–18 life, see also Agamben, biopolitics bare  10–11, 48–58, 60–1, 64–5, 68, 303–4, 343–4, 347–8, 386–7 political  23, 28–9, 299–300, 303–5, 347–9 Livia  2–3, 314–15, 335–6 Livor  32–4, 38–40, 222–3. See also Envy Livy  9, 132, 293 Lucretia 132 Lucretius  4–5, 16–17, 71, 119–20, 324–5, 386 magic  21–2, 43–4, 53–4, 65–6, 151–61, 184–6, 197–9, 249–50. See also bonds, carmen, curse, defixio maiestas 59–60 manus iniectio  96–8, 170–1. See also marriage, uindicatio marriage contract, see contract cum manu  70, 98, 168–70, 194–5, 377–80. See also manus iniectio law, see adultery, Augustus, lex Iulia,, lex Papia Poppaea, women masochism  66–7, 109 master  52, 64–8, 109–10, 120–1, 137–8, 159–60, 168–70, 176–7, 338–9. See also dominus materiality  21–2, 158, 180–3, 197–8. See also tabella matron, see women medium  156–7, 178–81, 197, 368 meretrix, see women metaphor  17–19, 123, 147, 159, 169–70, 188, 223, 326, 329–30 militia amoris  18–19, 29n.2, 31, 265–6 morality, see also Augustus, immorality aesthetics and  292, 323 internalized  69–70, 75–9, 130, 136, 140, 285–6 law and  64–5, 130–6, 138, 221, 252–3, 281–3, 286, 293, 299–300, 333–4

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/12/20, SPi

General Index  419 old-fashioned  36, 42–3, 64–5, 278, 286–7, 296–7, 299, 374, 381 Republican  2–3, 278 sexual  78, 127–8, 140, 261, 276–7, 281–2, 285–6, 296 Myrrha  23–4, 346–7, 355–6, 360–83 natural law  14–16, 95–6, 120–1, 131–2, 281–2, 371–3 nudity  89–90, 289–94, 299–300 orators  30, 167, 188, 222–3, 240–1, 247–8, 264–76 forensic  6–7, 30, 33–4, 37, 43–4, 135, 264–7, 276 jurists and, see jurists orgasm  261, 325–8 Orpheus 346–83 parody  3–4, 11, 22, 64n.53, 100–1, 103, 110, 203, 241–2, 388 pater familias  2–3, 70, 78, 101–2, 140 patron  39–41, 257–9, 267–8, 276 Paul the Apostle  139, 197 pederasty  23–4, 226–7, 242–3, 340–1, 346, 352–65, 382 performativity  10, 21–2, 249, 321 Perilla 341–3 Phaedra  153–4, 191–2, 367, 373–5 Phryne 112–14 Plato  14–15, 204–5, 207–8, 242, 247–8, 307 Plautus 63–4 potestas auctoritas and  336–40. See also auctoritas marriage and  98, 134–5, 168, 291, 377 patria  23–4, 70, 98, 135n.86, 168, 170, 291, 304–5, 320–1, 339–40, 347, 369–70, 375–82 property and  98, 338–9, 376–7 tribunicia, see Augustus precedent  1, 18–19, 21–2, 38–9, 112–13, 147–8, 159–61, 163–4, 166–7, 174–6, 192, 198, 206–8, 212, 214–15, 238–9, 268, 310–12, 316, 332–6, 355, 374, 382 précieuses 143–4 pregnancy  23, 220–1, 242, 306–8, 322, 324, 381. See also childbirth, fertility privacy  21, 69–74, 76, 80–1, 86–7, 91–4, 104, 107, 110–12, 122–3, 139–41, 168, 216–17, 271–2, 283, 294–5

procuress  65–6, 249–50, 261–2, 281–2 property  18–19, 56, 63–4, 97–9, 102–3, 108–12, 127, 169–70, 173–4, 208–11, 216–17, 221, 265–6, 269–72, 274–5, 338–9, 351–2, 354–5, 375–7, 386–7. See also auctor, manus iniectio, potestas, seruitium amoris, slave, uindicatio prostitutes, see women pudor  77–8, 80–1, 111, 224, 290–1, 294–5 puella, see women Pygmalion  343, 355–60, 377–8 quaestio perpetua de adulteriis  70, 85–6, 118–19, 252–3, 366–7. See also adultery reciprocity  39–41, 238, 274, 276 recusatio  20–1, 27–48, 68, 210, 235, 280–1, 338–9 relegation  42, 45–6, 49–51, 197, 214–15, 232, 235–6, 251, 262. See also exile remotio criminis, see crimen Republic, Roman  10, 46–7, 55, 61–2, 77–8, 86–8, 92, 235, 245, 252–3, 255–6, 263–4, 310–11, 318, 338–40, 351–2 Romulus 332–6 sacer, see homo sacer sacrosanctity  11, 20–1, 54–6, 58–62, 68–9, 310, 345, 350. See also Augustus Saturnalia  20–1, 62–8, 135n.86, 220, 369–71, 383, 386–8 Schmitt, Carl  47–8, 61–2 Seneca the Younger  75, 103–4, 128, 132–3, 313, 384 sententia  17–19, 139, 176–8, 190–2, 240–1, 250–1, 253–4 seruitium amoris  18–19, 53–4, 56–7, 63–5, 97–8, 156, 158–9, 170, 194–5 sexuality  12, 15–16, 55, 75, 81, 126–7, 246–7, 303–4, 347. See also Foucault female  11–12, 22–3, 75–6, 246, 285, 300, 327–8, 331 independence of  11–12, 21–3, 72–3, 79, 86–7, 92, 139–40, 245, 276–7, 283, 322, 331 invention of  72–3, 76–7, 86–7, 245, 306 juridical discourse of  11–12, 19, 204, 245, 264–5, 283, 299, 322 law and  2–3, 246–53, 331 sexual positions  122–3, 283, 322–5, 330, 352n.8

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/12/20, SPi

420  General Index slave  50–4, 63–8, 77–8, 97–8, 108–10, 113–14, 116–22, 136–8, 145, 149–50, 156, 159–60, 170–1, 183, 234–5, 278–9, 284–5, 297–8, 376–7. See also  seruuitium amoris Solon  22, 203–4, 226–37, 239, 242–4, 307, 331 sovereignty  10–12, 14–15, 20–1, 28, 47–52, 55, 60–2, 68–9, 263, 304–5, 310–11, 314–15, 338–40, 343–4, 347, 384 speech act  145–8, 155, 204–5, 248–50, 357–8 Suetonius  44n.28, 78–9, 296, 335–6, 338–9, 362–4 symposium  36, 93–4, 111, 227–9, 243–4 tabella  153–4, 178–81, 271. See also materiality Tacitus  2–3, 220–3, 296, 308, 335–6 Terence 277–8 testatio 175–82. See also witness Theognis  22, 203–4, 226–33, 237, 243–4, 340–1 Tiberius  71–2, 308–10, 312, 314–15. See also Augustus Tiresias  9, 17–18, 22–3, 250–3, 262–3 turpitudo 272–6 tyrant 232–43 as wolf  233–5, 333 uindicatio  97–8, 108–10, 169–70, 375–6. See also manus iniectio Ulpian  2, 120–1, 272–5, 297–8, 372. See also jurists Venus  89–90, 286, 313, 343, 358, 384–5. See also Aphrodite, etymology Adonis and  355–6, 359n.25 adultery of  207–8, 289–92 concessa 125–6 court of  63–4, 267–70

invocation of  213–14 jurisdiction of  63–4 as lawgiver  5–8, 143–4, 325 oath to  122 Vergil  218, 222–3, 313, 318–19, 330 Vistilia  296, 300 wedding  144, 193, 378–9 witness  45–6, 51–2, 105–7, 114, 121–2, 157–8, 164, 167, 172, 190–4, 207–9, 213, 275 statement  17–18, 45–6, 153–4, 164, 175–83. See also testatio women. See also sexuality adulteress  85–6, 125–6, 239–40, 284–6, 296. See also adultery alieni iuris  149, 375–6 amica  36–7, 274–6 clothes and  283–300 elegiac  39–41, 65–6, 86, 93, 111, 118–19, 181–2, 184, 238–9, 265–6, 280–1, 285, 290, 298, 341–3. See also domina ingenua  136–7, 288, 291 libertina  284–5, 291, 298 marriageable  86, 136–7, 145, 150–1, 281–2, 284, 358–60, 379n.60 matron  86, 91–3, 135–7, 274, 276–7, 281–2, 284–94, 296–300, 323–5, 330 meretrix  65–6, 88–9, 272–4, 278, 288, 292, 297–8 polarization of  284–6, 296, 300 prostitute  39–40, 42–3, 65–6, 85–6, 88–9, 125–6, 136–7, 272–9, 281–6, 290–1, 296–8, 324–5 sui iuris  70, 149, 291 uirgo  277–8, 281–2, 284–5, 287, 296–8, 332–3, 359–60, 379, 379n.60, 381n.62 uxor  123–4, 215–17, 274–5 Zeus  205–6, 208–9, 211–14, 230, 306. See also Jupiter