Zachary R Herz
This paper addresses an odd and relatively unexplored passage from Pomponius’ Ad Mucium (preserved at Dig. 34.2.33) on the philosophical problems that arise when a cross-dressing senator (quendam senatorem muliebribus cenatoriis uti solitum) leaves a legacy consisting of women’s clothing (legaret muliebrem vestem): does he mean his own clothes, which resemble those traditionally worn by women, or whatever clothes he happens to own that are, in fact, exclusively for women’s wear? Neither Pomponius nor Mucius offers a satisfactory answer to the question, but I show that the passage illustrates the literary potential of Roman legal writing, and the power of literary analytic frameworks to illuminate it.
My talk begins by explaining the basic meaning of the passage, which purports to illustrate the role of testatorial choice in interpreting Roman wills. However, as I show, the example illustrates nothing: neither Pomponius nor Mucius offer actual evidence of the primacy of intent, but both simply state intention to be the relevant criterion. Contra Tuori 2009 (the only other sustained treatment of the passage), who claims that 34.2.33 “uses this example to enlighten the reader on the classical [text v. intention] question of inheritance law”, I demonstrate that the structure of the passage makes no sense as a legal argument. Pomponius claims that intention ought to be the primary testamentary criterion, and offers in support that Mucius claimed to have known a cross-dressing senator who appeared to have intended his clothes not be legated (videretur de ea sensisse). A does not follow from B. Instead, the Mucian anecdote provides texture to Pomponius’ hypothetical, demonstrating its stakes and human interest.
The question, however, remains: if Mucius’ account does not function as evidence, what is its point? The goods described above (stakes, human interest, social texture) are not ones traditionally associated with juristic writing, after all. I argue instead that Pomponius employs the Mucian narrative in a self-consciously literary fashion; he shows Mucius knowing about, and reporting on, something marvelous (ait scire se quendam . . .), in a similar fashion to the paradoxographies of imperial writers like Martial, Pliny, or Statius (Myers 2000, Coleman 2006). The cycle of oddity, knowledge, reportage, and citation visible in this passage is unusual in a legal setting, but perfectly intelligible as a literary trope. The paradox, particularly in imperial literature, assimilates the foreign or extraordinary into the cosmopolitan ‘world city;’ Pomponius’ legal paradox, by reducing fantastic events—a senator in a ballgown!—to a standard legal problem, shows how legal thought can assimilate even the strangest event. In doing so, Pomponius underlines the importance of literary modes of storytelling for Roman jurists more generally, and shows how the boundary between law and literature is not always as clear as modern scholars imagine.