H. P. GRICE E J. L. SPERANZA: LA CONVERSAZIONE -- I VERBALI: PAGANO

 G.: Let us begin where Pagano begins, with the title behaving better than the reader. S.: Politicum universae Romanorum nomothesiae examen. G.: Exactly. A title which says Rome and means, at once, Greece. S.: Because of nomothesiae. G.: Because of nomothesiae. Had he wished to reassure the Roman ear, he might have said de legibus, or some cognate less inclined to wear sandals. S.: Yet Romanorum is there to keep us from Athens. G.: Geographically, yes. Lexically, no. A Greek abstraction does not become Roman merely by taking a Latin genitive to supper. S.: Then your irritation is not with the subject but with the chosen word. G.: Precisely. Nomothesia is not lex. It is, if anything, the institution, positing, laying-down, or thesis of law. S.: Thesis as in onoma-thesis. G.: Very good. Plato already makes one hear the placing in the thing. Name-placing, law-placing. That is why the word matters. It has positio in its bones. S.: Whereas lex in Rome does not so obligingly disclose a lawgiver. G.: There is the awkwardness. If one asks, in the Greek philosophical manner, who posits law at Rome, the answer becomes a committee disguised as history. S.: Senate, assemblies, magistrates, decemvirs, custom, jurists. G.: Exactly. Rome has many ways of becoming legal and very few singular lawgivers. S.: Yet the Twelve Tables seem a beginning of sorts. G.: A beginning, yes. A simplicity, no. One is always tempted to say that Rome woke one morning, wrote twelve tables, and became legislative by inscription. S.: You deny the miracle. G.: I deny only its tidiness. The Tables are public fixation, reduction, ordering, memory, conflict-management, and constitutional theatre all at once. S.: Then Pagano’s universae Romanorum nomothesiae already promises more unity than Rome may have supplied. G.: Splendid. That is the first pressure-point. He wishes to examine the whole legislation of the Romans as if it formed one examinable object under one high act-type. S.: And you suspect that Rome did not so much legislate as accumulate forms of legality. G.: Very much so. Rome is an excellent civilisation for making law look older than the people who happen to be uttering it. S.: Which would already distinguish nomos from lex. G.: Yes. Nomos may spread itself over law, custom, ordinance, social norm, established arrangement, even convention. Lex is narrower, stiffer, more public, more enactmental. S.: So the Greek term has a wider philosophical radius. G.: Exactly. Philosophers use nomos where a Roman jurist would begin clearing his throat. S.: Yet Pagano was no fool. Why choose the Greek term for a Roman subject? G.: Because he wanted grandeur, perhaps, and because Naples had Greek enough in it to make such grandeur feel learned rather than merely decorative. S.: And because the work is dedicated to a Greek scholar-friend. G.: Quite. The title advertises the Hellenic side of the learned apparatus. One might say that Rome enters under Greek illumination. S.: Which still leaves the Roman question standing. Who posits a lex? G.: Not I, said the Roman. Certainly not one solitary nomothetes in the Attic style. S.: The Senate as a collectivity? G.: Sometimes one says so for convenience. But convenience is the enemy of legal history. A senate advises, an assembly passes, a magistrate proposes, a decemviral board inscribes, a jurist interprets, custom intrudes, and posterity tidies the shelf. S.: Then your distrust of the singular lawgiver is constitutional before it is philological. G.: Exactly. Rome is the wrong civilisation for easy singulars. S.: Yet the first law still tempts one. G.: It does. Every formalist is sooner or later lured by the first item of a list. S.: Including you. G.: Especially me. I confess a weakness for Law I of the Twelve Tables, partly because one law is often one law too many, and partly because a first law invites questions about form before content has had time to become heroic. S.: Then let us take Law I. G.: Gladly. If L be Law I of the Twelve Tables, what is its mode? S.: Imperative, one would think. G.: One would think so too quickly. That is precisely where the trouble starts. S.: Because if it is imperative, one must ask who is speaking. G.: Exactly. Every imperative needs a mouth, or at least the fiction of one. Who says this in Rome? The people? The assembly? The legal order? A decemviral ventriloquist? S.: And if the law is not imperative? G.: Then it may be more like a standing form, a constitutive articulation, a public determination of what counts, what follows, what is to be done given certain conditions. S.: Which sounds much more like your own use of law in philosophical psychology. G.: It does. That is why I worry the distinction. My laws are not rules in the schoolmaster’s sense. S.: Not “Do this.” G.: Certainly not. The laws of philosophical psychology are not naturally in the imperative mood. One does not say to a rational creature, “Infer!” any more usefully than one says to a triangle, “Have three sides!” S.: Though Oxford sometimes came close. G.: Oxford had rules; I was after laws. Rules tell pupils what they ought to do. Laws state generalisations, constitutive connections, standing forms of explanation. S.: So your L is not a command but a generalisation. G.: Precisely. Symbolised by L if you like, but not barked by a proctor. A lex in my programme is a formal statement of how some psychological economy works. S.: Yet you borrow lex rather than nomos. G.: Deliberately. Partly because I am Roman enough to prefer a certain dryness, and partly because nomos has become too broad and philosophical in the wrong way. S.: But you have just said that lex does not strictly translate nomos. G.: Quite. That is one of the reasons it is useful. Borrowing lex lets me avoid the woollier reaches of nomos while retaining a respectable legal metaphor. S.: Though at the price of Roman complications. G.: All good metaphors should cost something. S.: Then if L is your law and Law I is Roman law, the comparison cannot be exact. G.: No. It is a comparison of formal pressure, not identity of institution. The Roman law belongs to public legal order. My L belongs to theoretical articulation in philosophical psychology. S.: Still, both raise the problem of mood. G.: Exactly. That is the hinge. If Law I is formulated as an imperative, it resembles a rule. If formulated otherwise, it begins to look constitutive or definitional. S.: And your reluctance is to formulate your own laws as imperatives because that would make them normative rules rather than explanatory forms. G.: Very good. The laws of philosophical psychology are not etiquette for the soul. They are not little sergeants. S.: They tell us what follows, not what to obey. G.: Just so. They state how certain rational transitions, recognitions, or explanatory patterns hang together. S.: Which returns us to nomothesia. G.: Nicely done. If nomothesia is the institution of law, then one must ask whether the institution institutes commands or forms. S.: In Rome, perhaps both. G.: Exactly the annoyance. The Roman legal text may order, permit, define, fix procedure, allocate standing, articulate remedy, or merely make publicly visible what had hitherto circulated more dimly. S.: Then Law I itself may not be a pure imperative even if schoolboys paraphrase it as one. G.: Precisely. Schoolboys love imperatives because they make law sound like a headmaster. Rome is often subtler than that. S.: Then what did Pagano hope to do by calling his work an examen? G.: He gave himself one escape route. An examen need not assume beforehand that the object is perfectly unified. It may test, inspect, sift, examine. S.: So the grandeur of universae Romanorum nomothesiae is moderated by examen. G.: A little. Not enough to save him from the title, but enough to save him from me. S.: Hardly anyone is saved from you entirely. G.: False. Many escape by refusing to read. S.: Pagano did not. G.: No. Poor man. And poor in more ways than one. S.: You mean his end. G.: Of course. One cannot discuss Pagano for long without the noose trying to become an annotation. S.: Yet you dislike melodrama. G.: Intensely. His death was tragic enough without historians adding upholstery. S.: Then how should it enter? G.: Soberly, and late. As a fact that clarifies the moral seriousness of his public reason without turning every page into martyrdom. S.: His intentions were good. G.: Better than good. An examination of the universality of Roman legislation, anti-torture sympathies, procedural reform, constitutional ambition. One may disagree with title and framework while admiring purpose. S.: So there is no sneer here. G.: None. Only pressure. One does not honour a reformer by pretending his title is philologically innocent. S.: Then perhaps Pagano’s universalising ambition is the point. He wanted Rome’s legal material to be made available to reason as a whole. G.: Yes. That is a handsome intention, and one easy for me to like. What I object to is not the aspiration to universality but the lexical route by which he reaches it. S.: Nomothesia instead of lex. G.: Exactly. He chooses the Hellenism where a Romanist might expect lex or leges. And because he does, he inherits all the Greek breadth of nomos, which is not always what Roman legal material gives back. S.: Yet perhaps he wanted that breadth. G.: Very possibly. Enlightenment jurists often like a wider sky than the archive alone permits. S.: Then your own choice of lex for philosophical psychology is almost the opposite move. G.: It is. I choose the Roman dryness against the philosophical vagueness of nomos, even while knowing that the Roman term brings institutional inconveniences. S.: Such as the absent singular lawgiver. G.: Such as that, yes. But in my case the metaphor is declaredly theoretical. I do not need an actual senate to pass my L. S.: Convenient. G.: One of the few comforts of philosophy. S.: Yet even you must say who, in some sense, posits the law. G.: The theorist, if you like, but not as legislator in the civic sense. He articulates, formulates, proposes. He does not command rational creatures as a magistrate commands citizens. S.: So your lex is closer to positio than to imperium. G.: Precisely. Another reason why thesis matters. The law in such a programme is laid down as a general explanatory articulation. S.: Which makes it more like a definition in action. G.: Sometimes. Though definition can be too static. I want something general enough to guide explanation without collapsing into mere stipulation. S.: A constitutive generalisation. G.: There you are. Dry enough to please me. S.: Then let us return to Rome once more. If the first law of the Twelve Tables is not simply an imperative, how should one hear it? G.: As publicly fixed legal form. That is the broad answer. More locally, one asks what legal relation it institutes, what standing or procedure it makes visible, what consequence it attaches, what public recognisability it secures. S.: So instead of hearing “Do this,” one hears “Under these conditions, this counts.” G.: Exactly. Or “This is the legally recognised next move.” Which is why legal language need not be exhausted by command. S.: Then modern jurisprudence has made us too imperative-minded. G.: Often. It likes the sovereign’s voice too much. Rome was never so acoustically simple. S.: Nor was your philosophical psychology. G.: Thank heaven. If every law in philosophical psychology had to be an imperative, one would spend one’s life shouting at concepts. S.: Some philosophers do. G.: Yes, but they call it ethics. S.: Then the real contrast here is rule versus law. G.: Precisely. A rule is naturally at home in the imperative mood. A law, at least as I want it, is more often indicative, constitutive, explanatory, or formal. S.: And Roman lex can shade between these. G.: Exactly. Which is why it is historically troublesome and philosophically useful. S.: While nomos shades further still. G.: Too far, often. Philosophers can make nomos mean almost any established normative arrangement once given enough wine and antiquity. S.: Whereas lex keeps the hem shorter. G.: A very Roman virtue. S.: Then perhaps Pagano’s title may be praised and distrusted at once. G.: That is the right posture. It is ambitious, learned, serious, and not quite the Roman thing it claims to survey in its own chosen noun. S.: Yet his moral and intellectual project remains admirable. G.: Entirely. Public reason, legal reform, universality of legislation considered as a rational field, and a life ending badly because his age was more murderous than his intentions deserved. S.: Then the conversation ends where his own did not. G.: Soberly, yes. He wanted law to answer to reason. That is already enough to earn respect. S.: Even from one who would have preferred lex. G.: Especially from one who would have preferred lex. S.: And Law I? G.: I should still have stuck with Law I of the Twelve Tables. One law too many is already a system; one law too few is merely a mood. S.: Dry enough? G.: Sufficiently Neapolitan, with Roman reservations.