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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
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Ioannis Ziogas
1
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1
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For Daphne
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 popu-
larity 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 distin-
guishing 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
viii Preface
Preface ix
Acknowledgements
xii Acknowledgements
Contents
Bibliography 389
Index of Passages Discussed 409
General Index 415
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1
Introduction
Eros and Nomos
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
OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/12/20, SPi
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
2 For the minority view that Augustus’ laws could be judged successful, see Reid (2016).
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Introduction 5
3 Contra Miller (2004: 162): ‘What lies beneath the surface of Ovidian wit is precisely
nothing.’
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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.
Introduction 7
Introduction 9
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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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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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 rela-
tionships. The Ars Amatoria is thus really something like the art of dat-
ing, 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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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
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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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
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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Introduction 23
PART I
THE TRIALS OF LOVE
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2
Love as a State of Exception
Introduction
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
OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/12/20, SPi
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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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:
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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Language: French
SOUS
L’ÉTOILE DU MATIN
Stella Matutina
Ora pro nobis.
PARIS
LIBRAIRIE LÉON VANIER, ÉDITEUR
A. MESSEIN Succr
19, Q U A I S A I N T- M I C H E L , 19
1910
DU MÊME AUTEUR
A LA MÊME LIBRAIRIE
Hommage filial.
A. R.
PRÉAMBULE