ROME AND THE DARK SIDE OF THE LAW: AN EXCURSUS
Lacan's concept of Law as ungrounded in any unshakable foundation would at first glance seem to be foreign to ancient thought—particularly to Roman thought, given Rome's pride and confidence in its juridical tradition—yet in fact, more than a few ancient sources anticipate Lacan's skepticism on this point. For that reason, I have thought it worthwhile in the immediately following pages to sketch ancient conceptualizations of the Law parallel to Lacan's that would have been part of Propertius'
Modern jurisprudence exemplifies par excellence the principle of interdependence upon which Lacan's analysis of Law depends: it explicates any particular law's validity through reference to another law or principle (written or unwritten) as its embodiment, refinement, or supplement. As Bruce Frier shows, however, the roots of that procedure reach back to Propertius' own century, in the profound changes jurists and jurisconsults like Cicero wrought in late Republican and early Imperial juridical thinking. Frier notes in Cicero's treatments of the subject a determined effort to wrest the implementation of justice away from prevalent rhetorical relativism (which favored persuasive advocacy over dependence on statute law) toward the concept of “autonomous law,” legislation viewed as an independently existing and self-consistent set of rules to be applied in individual cases.[11] The shift is well-established by Propertius' own time, and evident, for example, in Livy's reverent reference to the Ten Tables (rather than, say, to offices or deliberative bodies or procedures) as ground and legitimation of all Roman justice:
Centuriatis comitiis decem tabularum leges perlatae sunt, qui nunc quoque, in hoc immenso aliarum super alias acervatarum legum cumulo, fons omnis publici privatique est iuris. (Livy 3.34.6)
A meeting of the Assembly by Centuries[12] was held and the laws of the Ten Tables were adopted, which even now are the fountainhead of public and private law, beneath the huge modern accumulation of laws piled on top of other laws.
Such a shift toward the notion of autonomous code envisions Law as a crossreferenced and mutually defining set of rules—that is, as exactly the system upon which Lacan bases his analysis. Any statute or principle cited to legitimate another, if called into question, requires in its turn reference to yet another rule behind it, and so on, in an infinite regress. Ultimately juridical reasoning comes to rest in the logical opacity of desire: such-and-such is law because “it is the will of [the gods, Nature, the emperor, the people, the senate].” To the question, “Why is it their will—why does that justify it?” no answer can be given beyond “it just is.”
Cicero, of course, ultimately moors legal rules in the rather amorphous concept “natural law”; but other schools of thought remove that anchor from Law's referential chain and thus bring it closer to Lacan's picture. The Skeptics and Epicureans, for example, regarded Law as without grounding in any transcendent realm of truth or being. The Epicureans believed Law, or in their terms, “justice” (to dikaion; dikaiosunê), to be purely conventional, based upon human weakness and
We need not refer only to the rarefied realms of philosophy, however, to locate suspicion of the Law as an ungrounded system of dicta. Among Propertius' contemporaries, Livy's story of Verginia and Appius Claudius the decemvir (3.44–58) portrays the Law as inherently vitiated by the impossibility of its own claims to transcendent, impartial truth, and thus an apt vehicle for particular desires—as Lacan would say, it reveals itself to be instinct with enjoyment ( jouissance). Ab Urbe Condita sketches explicitly the pattern of Law's partiality and cruelty hidden beneath an appearance of magisterial objectivity that, I shall argue, controls Propertius 4.11 implicitly. No sooner are the Twelve Tables of laws in place as the first codified foundation of Roman justice than all the vices of the decemvirs (the ten men commissioned to distill customary law into the Tables) emerge as they use the legal code to their own ends. The crowning example is Appius' lust after the beautiful young Verginia, which ultimately brings about the decemvirs' downfall. Appius invokes the machinery of justice to represent Verginia as a “runaway slave” who must be restored to her “master,” a client of Appius happy to serve as his patron's pimp.
Appius scrupulously observes both substantive and procedural codes in this story.[15] After staking his claim in the Forum, the client has Verginia summoned to court, over which Appius Claudius presides as judge; the young woman's advocates appeal to Appius to release her to the defendants' custody until her father Verginius (then on active military service) can be summoned to Rome. Her reputation can thus be protected while the case is mooted. Verginia, however, is a minor and not legally independent (sui iuris)—accordingly, only her absent father (as paterfamilias) can make a counterclaim regarding her freeborn status. Appius' client thereby claims her as his property (perfectly legitimately, if diabolically), the defense having gone by default—and Appius defends the judgment by saying that “ceterum ita in ea firmum libertati fore praesidium, si nec causis nec personis variet” (“the law will
Appius Claudius could be dismissed as a hypocrite who betrays the Law without impugning its validity—yet several details of the narrative resist that reading, among them Livy's emphasis on the strict legal protocol observed not only by Appius Claudius, but by all the decemvirs. They tyrannize not by breaking the Law, but by manipulating it to their own purposes, to which it is horrifyingly suited. The decemvirs gain power precisely because the Law must be articulated: during the period devoted to reducing customary legal precepts to a written code, the decemvirs are appointed as a government immune from appeal, that is, from the Law itself. Yet they are deemed just to the degree that they deviate from the Law. When, for example, strong evidence places the patrician Publius Sestus under nearly-irrefutable suspicion of murder, the decemvir Gaius Julius omits his own right, under the terms of his appointment, to pronounce summary justice, and allows Publius Sestus a trial. This is accounted ready and equitable justice, quasidivine[18] in its purity; the same probity is seen in the decemvirs' readiness both to soften one another's pronouncements and to honor these palliations.[19] The decemvirs become “ten Tarquins” precisely when they begin to exercise the Law in all its rigor, refusing appeals and expanding their powers rapidly by observing its minute conventions.[20] For example, they thwart the Senate's move to break their power with adroit maneuvers that observe the letter of legal procedure, but defer all action and foil independent judgment. The question of the decemvirs' proper term in office is referred to future debate—ultimately to Appius Claudius himself (!) as president of the assembly that created the present decemvirs.[21] Appius' attempt to satisfy his sexual appetites by cleverly manipulating legal procedure to entrap Verginia merely epitomizes the implacable exercise of power that earns the Decemvirate the Romans' hatred. Appius and his fellows are the Law in all its sadistic unreason and cruel enjoyment.
R. M. Ogilvie also makes it clear that the whole episode of the Decemvirate comments obliquely upon Roman history closer to Propertius' time, clothed as Livy's narrative is in the observances of late Republican and early Imperial politics; Ogilvie traces distinct parallels to Sulla's and Julius Caesar's careers, as well as to the Second Triumvirate.[22] Livy's historiographic anatomy of the Law thus speaks to the series of regimes leading up to his (and Propertius') own day, and to their capacity for juridical rigor equally suffused with sadism and caprice.
Livy fills out in greater detail the sinister relationship between Law and inhuman cruelty that Propertius himself unfolds definitively in the Cornelia poem— but not only there. Propertius 3.15, for example, recounts how Dirce maltreated her husband's former wife Antiope; eventually, Zethus and Amphion—Antiope's