Delegated Jurisdiction

One of the very few delights of the internet is the ready availability of classic television. With a few clicks, you can watch shows like Fulton Sheen’s Life Is Worth Living or the BBC productions of Tinker, Tailor, Soldier, Spy and Smiley’s People. Recently I turned my father on to old episodes of William F. Buckley’s Firing Line by insisting that the episode with a very belligerent Jack Kerouac is a highlight of American television. But, for me, the real jewel is Kenneth Clark’s Civilisation series. It is very easily described: an English art historian walks around Europe and talks about art and architecture from the Middle Ages through to the nineteenth century. But that description leaves out a lot, not the least of which is Clark’s personal charm and lightly worn erudition. 

My favorite episodes are the fourth and fifth, Man: the Measure of all Things and The Hero as Artist, which focus, in the main, on Italy during the Renaissance and Rome shortly before the Reformation. Clark’s love for the subject is, as the scholastics of the day would say, diffusive of itself. One easily can imagine strolling around the Pazzi Chapel or the cloisters of Santa Croce, discoursing in a very witty way about the various figures of the age. And the I Tatti Renaissance Library makes it remarkably easy to indulge this fantasy—up to a point. While I am proud of Saint Vincent de Paul Church in Bedford, Indiana, I have to admit that it is not, notwithstanding its many virtues, quite the Pazzi Chapel or Santa Croce. Even if I cannot find the same pleasure in the architecture of Bedford as Clark did in Florence, I can find, thanks to the I Tatti volumes, at least some pleasure in the monuments of the intellectual life of Florence. There are few figures that loom larger in that life than Politian.

Politian was, it is safe to say, one of the leading literary lights of Florence. He was born Angelo Ambrogini in 1454 in the Tuscan town of Montepulciano, from which he derived his nickname, Poliziano or Politianus. (We anglicize it to Politian.) After his father was murdered for taking the side of the Medici family in a political dispute, he fled to Florence where he eventually won the patronage of Lorenzo de’ Medici, known to history as Lorenzo the Magnificent. In his varied career, Politician served the Medici family in many different capacities: first as tutor to the young Piero de’ Medici and Giovanni de’ Medici (later Pope Leo X) and then, after a brief estrangement and a stint in Venice, as the chair of poetry and rhetoric at the University of Florence. There, he composed an impressive body of work that challenges the idea that we should see a great difference between law and culture.

Politian did not wear his erudition lightly. At the university he gave lectures on Quintilian and Statius, Vergil, and Cicero, for which he delivered prologues in verse, collected as his Silvae. Manto, his prologue to the study of Vergil, is a tour-de-force of Renaissance Latinity. Rusticus introduces Hesiod and Vergil’s Georgics. Ambra, named for a Medici villa that Lorenzo had praised in a similarly named poem, is an encomium to Homer. The fourth verse prologue, Nutricia, is a long meditation on poetry in general. And his verse output was much broader than the Silvae: he composed many shorter poems on many topics, some quite sacred (like Virgo prudentissima and Ecce ancilla Domini, two hymns to the Blessed Virgin Mary), some much less so (he wrote, for example, a Silva on Scabies, which was discovered by Kristeller only in 1952). But his academic Silvae are extraordinary. We have no expectation today that our great philologists are any kind of poets, much less that they will introduce their lectures on this or that author with verse prologues. Yet this was common for Politian. 

The academic Silvae would not be Politian’s greatest achievement as a Renaissance philologist. In 1489, Politian published the first century of his Miscellanies, a collection of short philological essays on an impossibly wide range of topics. Generally, Politian began by noticing something in a classical text. Usually it was a difficult phrase or something that seems out of place. He then set forth his own explanation of the problem, drawing upon a dizzying array of sources in Latin, Greek, and even Hebrew. 

The eightieth Miscellany is perhaps the best example of Politian at work. It begins with a couplet from an elegy of Propertius—magno Tiresias aspexit Pallada vates / fortia dum posita Gorgone membra lauat (“the seer Tiresias beheld the great Pallas / while, the Gorgon laid aside, she bathed her powerful limbs”)—and immediately points to Callimachus’s Fifth Hymn. He summarizes the story of Tiresias and Pallas, in which Tiresias was struck blind for seeing Athena naked but Athena made him a great seer in exchange for his physical sight. There is more to it than that, but that is the gist of it. Politian then traces the story through Abammon of Egypt, Proclus, Vergil, Homer, a couple of his own poems, and Nonnus.

At this point, Politian’s classical erudition was interrupted by Pico della Mirandola, who urged him to publish Callimachus’s Fifth Hymn, since it is “rarissima.” Politian professed to have been a little annoyed, since the Miscellanies were pretty far along in the printing process. But he relented: it is Pico who asked him, after all. So he printed the Greek text (in fact, the 1489 edition of the Fifth Hymn is the editio princeps, predating Lascaris’s edition of all six hymns in 1494). But he was not finished. He then printed a Latin translation of the Fifth Hymn purporting to be literal, not only in meaning but also in meter. 

Politian’s translation, unfortunately, was savaged by his first biographer, Friedrich Otto Mencke in 1736. In a more recent essay, Jaspreet Singh Boparai presents Mencke’s critique and acknowledges that it is, by and large, “difficult to dispute.” But Singh Boparai demonstrates that perhaps Politian’s various lapses (by Mencke’s lights) are in fact evidence that Politian “may have bound himself by even stricter rules than Mencke imagined.” Indeed, Politian may have been trying to render Callimachus’s difficult poetry more accurately than Catullus did when he translated Callimachus fourteen centuries earlier. 

Politian’s attempt to capture Callimachus extends beyond certain grammatical and metrical devices into the realm of style and tone. Callimachus’s Fifth Hymn is an allusive work that depends on the reader’s understanding of the works with which it is in dialogue. Politian attempts to create the same atmosphere. One particularly ingenious example suffices. Politian translates Herakles in Callimachus’s Greek original as Amphitryoniades in Latin. Hercules would not scan, but Politian had other options on the table. However, the epithet Amphitryoniades alludes to the very elegy of Propertius that set us off on the journey (it is the very first word, in fact). It also appears in Ovid and Vergil. 

Others had written works similar to the Miscellanies before Politian. Indeed, others had approached the same problems before. And Politian was very much in dialogue with these older scholars, particularly Domizio Calderini. Calderini is a major figure in the Miscellanies if for no other reason than Politian never misses an opportunity to criticize him. But I think his treatment of Calderini is revealing of Politian’s own character. The ninth chapter of the Miscellanies begins with a long, personal invective against Calderini: he had too high an opinion of himself, was too committed to the idea he came up with, and willing to be untruthful to maintain his fame. Plus, Politian says, everyone hated him. But a little later, in the nineteenth chapter, Politian proudly recounts an encounter with Calderini. Expounding upon aspirated consonants in Latin via an epigram of Catullus, Politian reports that he had on a couple of occasions previously discoursed on the poet to great acclaim. One of these was in Florence in the presence of Calderini, who applauded the younger man’s explanation and said that he had learned in a day as much from a student as he had learned in years from professors. The vignette gives a somewhat different cast to Politian’s incessant criticism of Calderini. Indeed, given Politian’s high opinion of himself and his willingness to assert his own opinions against the world, one wonders whether his assessment of Calderini was not what they call today projection. 

Politian’s readers certainly noticed the constant feuding with Calderini. The Milanese humanist Jacopo Antiquari chided Politian for spending so much time wrestling with the dead man’s ghost. Calderini, Antiquari says, did the best he could under the circumstances, even if he was no Politian. Politian was evidently stung by the criticism, defending himself by return post, marshaling a long (and frankly somewhat annoyed) list of classical authors who criticized their predecessors. (Antiquari responded in a no less annoyed tone: he did not need the history lecture.)

But a great deal of Politian’s readers—or at least his friends among his readers—were on the whole enthusiastic about the Miscellanies. Pomponio Leto declared that Politian “by a singular learning” to have summoned the ancients back “from the underworld.” Battista Guarini wrote to tell him that simply everyone was reading and talking about the Miscellanies. (Then as now music to an author’s ears.) Filippo Beroaldo praised Politian’s erudition. Niccolò Leoniceno wrote to praise not merely the depth but the breadth of his learning. Leoniceno thought that even though it was primarily a work of literature, Politian made no less valuable contributions to medicine and philosophy with the Miscellanies. Lucio Phosphorus, the bishop of Segni, wrote him a letter declaring that he surpassed all prior authors.

Bishop Phosphorus’s letters make for particularly amusing reading, since it is clear that he is a Politian superfan. He begged Alessandro Cortesi for an introduction, and his letters to his idol after getting the introduction are gushing. Not only does he praise Politian’s erudition to the heavens—ranking him with Lorenzo Valla and Domizio Calderini before declaring he surpassed his predecessors—but he professes to be outraged at Politian’s critics, of whom there were not a few. One does not typically associate such worshipful, not to say fawning, praise with the Italian bishops of the Renaissance. 

One does wonder whether the testimonials to Politian’s genius and the value of the Miscellanies were altogether sincere. Certainly Bishop Phosphorus’s fan letters may be taken as sincere. But many of Politian’s letters were evidently written with a wide circulation in mind, and shortly before he died he told the unhappy Piero de’ Medici that he was preparing an edition of his letters. At some point, he composed a dedicatory letter to Piero. It was, however, not until 1498, when Aldus Manutius included a couple hundred letters in his edition of Politian’s works that they were published. Politian’s correspondents may well have had the sense (or even the certain knowledge) that they were writing for the record. Their professions of enthusiasm and admiration might, therefore, have been for posterity as much as they were for Politian.

While most readers will be interested in Politian’s erudite explorations of purely literary questions, his exploration of legal questions is no less interesting. Indeed, the application of his philological method to legal texts is in and of itself fascinating. We are not today accustomed to approach legal texts in the same way that we approach literature. There are books like Kevin Ring’s Scalia Dissents and Scalia’s Court, collecting opinions written by the late justice, and Corey Brettschneider’s Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, which is exactly what it sounds like. But these are not fundamentally literary texts: they are books for fans. 

Perhaps there is no need for a literary approach to legal texts today. In the United States, our statutes and regulations are written in an appalling technical style. Most judicial decisions are not far behind. Even supposed stylists like Scalia are notable mostly for displays of wit fresh from the seminar rooms at Harvard. And of course there are few serious textual questions: electronic dissemination of laws and judicial decisions makes alternate readings unlikely. This was not always the case, however.

In the forty-first chapter, Politian tackles the problem of the terminology in the Digest for what today would be called a continuance—diffisio. This chapter also reveals Politian’s great interest in a particular copy of the Digest. Politian notes that, by his time, most texts read diffusum. Politian, however, invokes two authorities in favor of his reading. First, he cites the copy of the Digest maintained in the Florentine Senate (obtained as part of Pisan plunder), which he believed was the archetype of the text of the Digest. (This copy is also sometimes referred to as the Florentine Pandects.) Lorenzo, of course, had condescended to give Politian leave to peruse the state copy. Politian also cites a similar corruption in the text of Aulus Gellius, based on a good copy of an old codex of Gellius. 

Writing over two hundred years later, Edward Gibbon observes that the critical consensus was that the existing codices of the Digest were descended from one original, prepared in Constantinople at the beginning of the seventh century. From Constantinople, it traveled through Amalfi and Pisa. Gibbon is not so impressed with the story of its discovery, allegedly in Amalfi in 1137, observing that the first time the story is told is 1501. But he acknowledges that the book was in Pisa no later than 1406 and transported to Florence in 1411. There it was held by the Florentine government with the greatest honor, “new bound in purple, deposited in a rich casket, and shown to curious travelers by the monks and magistrates bareheaded, and with lighted tapers.” He calls Politian “an enthusiast” for the book but denies that it reflects Justinian’s authentic text. 

Later, Politian finds a negation added mistakenly in an important provision of the Digest: A legate with delegated jurisdiction has the right of naming a judge. However, in many codices there is a slip of the pen: A legate with delegated jurisdiction does not have the right of naming a judge. (The error is subtler in Latin than English.) Once again, Politian turns to his beloved Florentine Digest to solve the problem: in the Florentine text, there is no negation. 

Next, he investigates the difference between ad alium and ad album. This Miscellany is awfully short, and, as such, it requires quite a bit of explanation. There are two important facts. One: in his work on the Edict, later collected in book two of the Digest, Ulpian explains that someone who wants to bring a claim has to give notice to the defendant, so the defendant can decide whether and how he wants to contest the claim. Two: the praetor put up in the forum bulletin boards (for lack of a better term) setting forth his edicts, the formulae for the actions, and other remedies. These bulletin boards were called the praetor’s album. 

Politian observes that the version of Ulpian in the codices of the Digest in circulation all stated that someone could publish a claim by bringing the defendant ad alium—to another—and pointing out the claim he is bringing or intends to bring. Politian, relying once more on the Florentine Digest, insists that the correct reading is ad album—to the praetor’s album. The difference, of course, is significant: it is the difference between dragging your adversary in front of a stranger and telling him that you are going to sue him and bringing him to the official statement of causes of action and pointing out specifically what the cause of action is. 

Drawing near the end of the Century, Politian sets forth to restore an elegans adagium to the Digest. In Ulpian’s work on the duties of the proconsul, collected in the first book of the Digest, there is a letter from the Emperors Severus and Antoninus regarding the best policy for proconsuls about gifts. The emperors quote a Greek proverb: Not everything, nor at every time, nor from everyone. (It sounds much better in Greek than in English or even in Latin, with a repetition of words beginning pan-.) Politian informs us that the proverb had been excised from most of the copies of the Digest in circulation, but he implies that the Florentine Digest preserved it. He presents it for no better reason than to restore it to the lawyers’ favor.

But not all of Politian’s legal examinations were simply comparing the widely circulated versions with the older, purer Florentine Digest. Politian engages in an interesting discussion of the etymology of dediticii, a certain kind of freedman. According to Politian, Justinian’s Institutes are terse on the subject, and he set out to expand upon the definition. Some freedmen were simply freed, and went on to become Roman citizens. One can read in almost every age of the Roman state stories of freedmen who, despite the circumstances of their early years, rose to considerable prominence and wealth. For example, Marcus Antonius Pallas began his career as a slave of Antonia, Mark Antony’s daughter and Claudius’s mother. When Antonia died, he was manumitted and became a close aide to Claudius, becoming effectively the chief financial official of the empire under Claudius. Naturally he became stupendously wealthy. But money cannot buy everything, and Pallas became one of Nero’s victims. 

Not all freedmen were so lucky—if you can call Pallas’s career lucky—and the dediticii were decidedly less lucky than freedmen like Pallas. According to Politian, the dediticii were slaves who committed some crime. The punishments for such slaves were severe: branding, prison, the arena, or gladiatorial school. If a slave in such an unhappy state were later freed, they were, according to Politian, given the status of dediticii when freed. This was, according to Politian, according to analogy: the original dediticii were prisoners of war (the term’s literal translation) who had surrendered to the Roman forces. The Romans kindly let them go free, but branded them with the infamy of surrender. 

Politian’s application of philological methods to legal texts suggests that, at least for him, the difference between legal texts and cultural texts was not so great as it is for us today. While he might have spent more time writing an allusive translation of Callimachus’s Fifth Hymn than restoring an elegans adagium unfairly purged from the majority of copies of the Digest, the fact that he presents them, so to speak, side by side suggests that there is no clear distinction between the two projects for him. One can find similar interest in Callimachus and Ulpian, and the lawyers can take the fruits of his efforts as well as Pico della Mirandola can. 

Politian forces one to ask whether books like Scalia Dissents should exist. Books written for lawyers—and, one shudders to think, fans of career appellate judges—serve fundamentally to re-inforce a distinction that has not always existed. The same may be said for the depressing technical style of statutes and regulations. This is not to say, of course, that judicial opinions and the Treasury Regulations ought to be conceived predominately for their literary merit. The one-time administrator of the Social Security Administration was famously a poet, and there is nothing stopping the literary lawyers of today from, for example, trying their hand at translating Callimachus. 

I note that there have been moments in history where the lawyers did in fact compose their statutes with literary merit in mind. The Constitutiones of Frederick II include a provision explaining how the Roman people, by the Lex Regia, conferred their sovereignty onto the Caesars. The Latin, no doubt inspired if not composed by Frederick’s chancellor Piero della Vigna, is obviously intended as a display of erudition and style. Unlike Politian’s polished Latin, however, the display falls somewhat short, verging on incomprehensibility. But that is a story for another time. 

Setting to one side the question of composing legal texts for literary merit, considering legal texts—judicial opinions, statutes, regulations—as part of the culture, to be read and appreciated not merely by judges and lawyers, clerks and scriveners, but by educated people generally, which is precisely what Politian did in his examinations of the Digest, would serve more than merely literary purposes. If one believes, as Saint Thomas suggests, that the law is an ordinance of reason intended to serve the common good and lead the people to virtue, then it does not make sense to treat the law as a sterile subject, only to be treated by experts. And anyway, it is unlikely that the law will be received by a people and that it will act on that people if the law is not considered as part of their culture.

The very modern distinction—law for lawyers, literature for philologists—ensures that, bit by bit, one realm becomes unreachable to the other. There is a price to be paid for this distance. Indeed, from the perspective of the classical legal tradition, especially as mediated through the Church’s thinkers, the price is far too high to pay. The separation of law from other spheres of activity represents a fracturing of the state and society, two realms that were not intended to be so separate. Politian, however, shows that one need not accept this distinction. 

Patrick Smith blogs at Semiduplex.