According to Horace, Orpheus and Amphion were the first legislators. They forbade casual sex, gave rights to spouses, and inscribed laws on wood (Ars Poetica 396-401). Orpheus, who is both the model of the devoted husband and the founding father of pederasty, simultaneously establishes and challenges the institution of marriage. His myth acquires a deeply political dimension at Rome after the emperor Augustus introduced laws that encouraged marriage and criminalised adultery. In the Metamorphoses, Orpheus attempts to regulate desire and is subsequently executed by married or marriageable women. He is a figure of Ovid, the poet who spelled out the constitution of the rules of conduct within the domains of sexual attraction in his Art of Love and was punished for subverting the institution of marriage. This article focuses on Orpheus’ story of Myrrha in Ovid’s Metamorphoses and reads the tale against the background of Augustus’ marriage and adultery laws. The myth of Myrrha is rife with legal language and courtroom rhetoric that provocatively conflate incest with marriage.
2 Peter Goodrich, Law in the Courts of Love. Literature and Other Minor Jurisprudences (Routledge, 1996); Peter Goodrich, The Laws of Love: A Brief Historical and Practical Manual (Palgrave Macmillan, 2006).
3 Zenon Bańkowski, Living Lawfully: Love in Law and Law in Love (Kluwer Academic Publishers, 2001).
4 See, for example, Austin Sarat, Matthew Anderson and Cathrine O Frank, Law and the Humanities: An Introduction (Cambridge University Press, 2009).
5 Study of legalisms in Ovid starts with Edward Kenney, ‘Ovid and the Law’ (1969) 21 Yale Classical Studies 241.
6 Luigi Capogrossi Colognesi, Law and Power in the Making of the Roman Commonwealth (Cambridge University Press, 2014) 320-337.
7 See Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ (Mary Quaintance trans) (1989-1990) 11 Cardozo Law Review 920.
8 On Ovid’s poetry as a response to current judicial developments under Augustus, see Kathryn Balsley, ‘Between two Lives: Teiresias and the Law in Ovid’s Metamorphoses’ (2010) 7 Dictynna 15; and ‘Truthseeking and Truthmaking in Ovid’s Metamorphoses I.163-245’ (2011) 23 Law and Literature 48.
9 See Sanford Levinson, ‘The Rhetoric of the Judicial Opinion’ in Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in Law (Yale University Press, 1996) 187-205.
10 Reva Siegel, ‘In the Eyes of the Law: Reflections on the Authority of Legal Discourse’ in Peter Brooks and Paul Gewirtz (eds) Law’s Stories: Narrative and Rhetoric in Law (Yale University Press, 1996) 225-231.
11 Metamorphoses 11.3. For a translation of the Metamorphoses, see Allen Mandelbaum, The Metamorphoses of Ovid (Harcourt Brac, 1995), while for the Latin text, see Richard J Tarrant, Ovidi Nasonis Metamorphoses (Oxford University Press, 2004). All translations of Ovid quoted in this article are my own.
12 On Ovid’s Orpheus and Augustan ideology, see, eg, Charles Segal, Orpheus: The Myth of the Poet (Johns Hopkins University Press, 1989) 54-72.
13 Metamorphoses 10-11.
14 On Augustus’ legislation that encouraged marriage and criminalised adultery, see Leo Ferrero Raditsa, ‘Augustus’ Legislation Concerning Marriage, Procreation, Love Affairs and Adultery’ (1980) 2(13) Aufstieg und Niedergang der römischen Welt 278; Susan Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian (Oxford University Press, 1991) 277-298 and 454-457; and Thomas AJ McGinn, Prostitution, Sexuality and the Law in Ancient Rome (Oxford University Press, 1998) 70-245.
15 Horace, Ars Poetica 391-401. The Latin text is from Niall Rudd, Horace: Epistles Book II and Ars Poetica (Cambridge University Press, 1990).
16 Translation with occasional modifications from Horace, Satires, Epistles, The Art of Poetry (H Rushton Fairclough trans, Loeb Classical Library, 1926) 482-483.
17 By contrast, Augustus’ socio-legal statutes blend public with private matters by criminalising private affairs. For the first time, illicit affairs were punished by trial in a standing criminal court, the quaestio perpetua de adulteriis; see McGinn, above n 14, 141; Raditsa, above n 14, 329-334. On Ovid’s response to this issue, see Balsley, above n 8.
18 On the unity of law and love, see Michael J Detmold, The Unity of Law and Morality. A Refutation of Legal Positivism (Lawbook Co of Australasia, 1984); Bańkowski, above n 3; Goodrich, above n 2.
19 For Eros as law and the laws of the first Venus, see Goodrich, above n 2. For Goodrich, the ‘laws of first Venus’, the laws of nature, are opposed to the prudential rules of the ‘second Venus’, that is positive law.
20 Cf Horace, Ode 4.1.7-4.1.8; Ovid, Art of Love 1.709-1.710, 3.315-3.316, Metamorphoses 10.642. For text and translation of Horace’s Odes, see Horace, Odes and Epodes (Niall Rudd edition and trans, Loeb Classical Library, 2004). For text and translation of Ovid’s Art of Love, see Ovid, Art of Love. Cosmetics. Remedies for Love. Ibis. Walnut-tree. Sea Fishing. Consolation (JH Mozley trans, revised by GP Goold, Loeb Classical Library, 1929).
21 See Michael CJ Putnam, Horace’s ‘Carmen Saeculare’: Ritual Magic and the Poet’s Art (Yale University Press, 2000) 132; Thomas Habinek, The World of Roman Song (Johns Hopkins University Press, 2005); Michèle Lowrie, Writing, Performance, and Authority in Augustan Rome (Oxford University Press, 2009) 327 and passim.
22 Ovid claims that his exile was because of carmen et error. The potential legal overtones of carmen are further suggested by the legal arguments that Ovid employs in his exile poetry in order to imply the injustice that arises when we compare the mildness of his offence with the severity of his punishment. On this topic, see Matthew McGowan, Ovid in Exile: Power and Poetic Redress in the Tristia and Epistulae ex Ponto (Brill, 2009) 41-55; Lowrie, above n 21, 360-382.
23 Metamorphoses 10.83-10.84. Translated from Tarrant, above n 11.
24 See Ulrich Gebhardt, Sermo Iuris: Rechtssprache und Recht in der augusteischen Dichtung (Brill, 2009) 111; 328-329; cf Metamorphoses 15.34-15.35.
25 See Digest 126.96.36.199; 188.8.131.52; cf Cicero, De officiis 1.43. For text and translation of the Digest, see The Digest of Justinian (Latin text edited by Theodor Mommsen and Paul Krueger; trans Alan Watson, University of Pennsylvania Press, 1985). For text and translation of Cicero, see Cicero, On Duties (Walter Miller trans, Loeb Classical Library, 1913).
26 See Adolf Berger, Encyclopedic Dictionary of Roman Law (American Philosophical Society, first published 1953, 1991 ed) 740.
27 Augustus, Res Gestae 8.5. Translated from Alison Cooley, Res Gestae Diui Augusti: Text, Translation, and Commentary (Cambridge, 2009).
28 See Cooley, above n 27, 143; Lowrie, above n 21, 301-303, 360-361.
29 Metamorphoses 15.832-15.838. Translated from Tarrant, above n 11.
30 Lowrie, above n 21, 379-380.
31 Ovid’s Art of Love is a didactic poem in which Ovid assumes the persona of ‘the teacher of love.’
32 Patricia Johnson, Ovid before Exile: Art and Punishment in the Metamorphoses (University of Wisconsin Press, 2008); Barbara Pavlock, The Image of the Poet in Ovid’s Metamorphoses (University of Wisconsin Press, 2009).
33 Metamorphoses 10.300-10.303. Translated from Tarrant, above n 11.
34 See Joseph Reed, Metamorfosi 10-12 (Mondadori, 2013) 234.
35 See William S Anderson, Ovid, Metamorphoses 6-10 (University of Oklahoma Press, 1972); Gareth Williams, Banished Voices: Readings in Ovid’s Exile Poetry (Cambridge University Press, 1994) 206-207.
36 See Alessandro Barchiesi, Speaking Volumes: Narrative and Intertext in Ovid and Other Latin Poets (Duckworth Academic, 2001) 59. Orpheus theorises on the right way of interpreting poetic myths and touches upon the issue of believing in myths and their moral values. The question of believing in Ovid’s magically realistic world is a main preoccupation of the Metamorphoses. See, for example, Denis C Feeney, The Gods in Epic: Poets and Critics of the Classical Tradition (Clarendon Press, 1991) 188-249.
37 Kathryn Balsley, The Performance of Justice in Imperial Latin Literature (Dissertation, Stanford University, 2001) examines the ways in which Latin authors (Livy, Ovid, Seneca) cast the trial scene topos as the authors’ re-performance at the level of narrative. See also Gebhardt, above n 24, 283-303 on how Ovid presents his search for true aitia in the Fasti as a trial.
38 Art of Love 1.30-1.34. Translated from EJ Kenney, P Ovidi Nasonis, Amores, Medicamina Faciei Femineae, Ars Amatoria, Remedia Amoris (Oxford University Press, 1994).
39 Works and Days 10. For text and translation of the Works and Days, see Hesiod, Theogony. Works and Days. Testimonia (Glenn W. Most edition and trans, Loeb Classical Library, 2007).
40 Works and Days 9. In the Works and Days, Hesiod attempts to settle his dispute with his brother Perses out of court. As a didactic poem, it is an important intertext for the Art of Love. On the issue of truth in Ovid’s literary trial of Lycaon, see Balsley, above n 8, 48-70.
41 Cf Ovid, Remedia 663; see Oxford Latin Dictionary, adsum 12.
42 Metamorphoses 10.152-10.154.
43 Ioannis Ziogas, ‘Stripping the Roman Ladies: Ovid’s Rites and Readers’ (2014) 64(2) Classical Quarterly 735 argues that in his disclaimer Ovid removes the symbols of respectable women, namely their clothing, not necessarily the women themselves. Thus, the praeceptor is rendering his female readership socially unrecognisable rather than excluding respectable women from his audience. Such a daring move clashes with Augustan legislation, which enforced specific dress codes as a means of identifying and displaying the moral and social status of women.
44 Nurus Ciconum, Metamorphoses 11.3; nurus means ‘young married women’ (Oxford Latin Dictionary 2). Reed, above n 34, 395, argues that it refers to ‘young marriageable women’ who are offended by Orpheus’ lack of interest in marriage. In Vergil’s Georgics 4.520, matres (‘mothers’) tear Orpheus apart. For text and translation of the Georgics, see Virgil, Eclogues. Georgics. Aeneid: Books 1-6 (H Rushton Fairclough trans, revised by GP Goold, Loeb Classical Library 1916).
45 Art of Love 2.599-2.600.
46 Tristia 2.247-50. For text and translation of Tristia 2, see Jennifer Ingleheart, A Commentary on Ovid, Tristia, Book 2 (Oxford University Press, 2010).
47 Metamorphoses 10.311-10.315. Translated from Tarrant, above n 11.
48 On the interaction between literary and legal judgement in Ovid, see Balsley, above n 8.
49 For other mythological versions, see Reed, above n 34, 311-314.
50 See Hyginus, Fabula 58.1 with Reed, above n 34, 311-314. For text and translation of Hyginus, see Apollodorus’ Library and Hyginus’ Fabulae: Two Handbooks of Greek Mythology (R Scott Smith and Stephen M Trzaskoma trans, Hackett Classics, 2007).
51 Metamorphoses 10.524. For the Latin text, see Tarrant, above n 11.
52 Cupid appears as an expert in law (a iurisconsultus) at Heroides 20.29-20.30. In this love letter, Cupid’s legal advice is closely related to amatory deception. See EJ Kenney, Ovid: Heroides XVI-XXI (Cambridge University Press, 1996).
53 Metamorphoses 10.299-10.301. Translated from Tarrant, above n 11.
54 See Orestes’ wish that he would rather die childless (Aeschylus, Libation Bearers 1006). For text and translation, see Aeschylus, Oresteia: Agamemnon. Libation-Bearers. Eumenides (Alan H Sommerstein edition and trans, Loeb Classical Library, 2009).
55 Cf Reed, above n 34, 233. Kinura is a string instrument played with a plectrum. Its etymological association with Cinyras’ lamentable fate is relevant to Orpheus’ recital. We can imagine the bard playing his lyre in the plaintive tune of the kinura, while he is singing of Cinyras’ tragic tale. Ovid refers to Orpheus’ lyre and his key changes in Metamorphoses 10.148-10.154.
56 On the relevance of Orpheus’ new sexual orientation to his recital, see John F Makowski, ‘Bisexual Orpheus: Pederasty and Parody in Ovid’ (1996) 92 Classical Journal 25; Matthew Fox, ‘The Bisexuality of Orpheus’ in Mark Masterson, Nancy Sorkin Rabinowitz and James Robson (eds), Sex in Antiquity: Exploring Gender and Sexuality in the Ancient World (Routledge, 2015) 335-351.
57 Roman History 56.1-56.10. For text and translation, see Dio Cassius, Roman History (Earnest Cary trans, Loeb Classical Library, 1924) vol 7.
58 Roman History 56.4.
59 Roman History 56.8.
60 Metamorphoses 10.478-10.481.
61 Suetonius, Augustus 65.4. Translation from Suetonius, The Lives of the Caesars: Julius. Augustus. Tiberius. Gaius. Caligula, Volume 1 (JC Rolfe trans, Loeb Classical Library, 1914). Augustus quotes Homer, Iliad 3.40. For the text of the Iliad, see Martin L West, Homeri Ilias (Teubner 1998-2000). For a translation, see Richmond Lattimore, The Iliad of Homer (University of Chicago Press, 2011).
62 See, Gebhardt, above n 24, 321-334.
63 On Roman law and incest, see Philippe Moreau, Incestus et Prohibitae Nuptiae: Conception romaine de l’inceste et histoire des prohibitions matrimoniales pour cause de parenté dans la Rome antique (Les Belles Lettres, 2002).
64 Metamorphoses 10.304. Translated from Tarrant, above n 11.
65 See Reed, above n 34, 234.
66 Metamorphoses. 10.320-10.355.
67 Ovid thoroughly enjoyed inserting suasoriae in his poetry and has often been criticised for it by older scholars who perceived rhetoric as undermining poetry. Orpheus’ speech to Pluto and Persephone is another example of suasoria; see Russ VerSteeg and Nina Barclay, ‘Rhetoric and Law in Ovid’s Orpheus’ (2003) 15(3) Law and Literature 395. For rhetoric in Ovid, see Ulrike Auhagen, ‘Rhetoric and Ovid’ in William Dominik and Jon Hall (eds), A Companion to Roman Rhetoric (Blackwell Publishing, 2007).
68 Metamorphoses 10.321-10.322.
69 Metamorphoses 10.323-10.335.
70 Metamorphoses 10.323-10.325. Translated from Tarrant, above n 11.
71 On the importance of the audience, internal and external, in the Metamorphoses, see Stephen M Wheeler, A Discourse of Wonders: Audience and Performance in Ovid‘s Metamorphoses (University of Pennsylvania Press, 1999).
72 Incest and sexual transgressions were common topics of controuersiae.
73 Goodrich, above n 2, 10, 21, 51, 177, employs the portmanteau neologism ars rectorica, in order to highlight the confluence of the rules of love (rectus) and the art of rhetoric (ars oratoria).
74 On the close association of rhetorical education with masculinity, see Joy Connolly, ‘Virile Tongues: Rhetoric and Masculinity’ in William Dominik and Jon Hall (eds), A Companion to Roman Rhetoric (Blackwell Publishing, 2007).
75 A woman would be under the potestas of her husband in the case of a marriage cum manu. For the legal aspect of the manus marriage, see Treggiari, above n 14, 27-32; Karen H Hersch, The Roman Wedding: Ritual and Meaning in Antinquity (Cambridge University Press, 2010) 23-27.
76 See Gaius, Institutes 1.108 (WM Gordon and OF Robinson trans, Duckworth, 1988). Alan Watson, Roman Law and Comparative Law (University of Georgia Press, 1991) 27 notes: ‘The older, marriage cum manu, put the wife under the power of her husband …; she was said to be in the legal position of a daughter, and any property she owned became his’. Ovid refers to this older form of marriage, in order to stress that according to Roman law’s legal fictions a daughter is indistinguishable from a wife.
77 Metamorphoses 10.467-10.468. Michèle Lowrie, ‘Myrrha’s Second Taboo: Metamorphoses 10.467-68’ (1993) 88(1) Classical Philology 50 sees a transgression of a religious taboo here.
78 See Anne Videau, ‘L’écriture juridique d’Ovide des élégies amoureuses (Amours et Héroïdes) aux Tristes de l’exil’ (2004) 2 Ars Scribendi.
79 Metamorphoses 10.356-10.366.
80 Makowski, above n 56; Rachel Bruzzone, ‘Statues, Celibates and Goddesses in Ovid’s Metamorphoses 10 and Euripides’ Hippolytus’ (2012) 108(1) Classical Journal 65 interpret Orpheus’ stories as misogynistic.
81 Metamorphoses 10.428. Translated from Tarrant, above n 11.
82 Metamorphoses 10.429. Translated from Tarrant, above n 11.
83 Potestas (‘power’) is etymologically related to potior (‘I have power’, ‘I possess’).
84 See Shawn O’Bryhim, ‘Myrrha’s Wedding (Ov Met 10.446-10.470)’ (2008) 58(1) Classical Quarterly 190.
85 Like the decrepit bawds of comedy and elegy, the nurse advertises the charms of the girl she is offering to a drunken Cinyras (Metamorphoses 10.437-10.443).
86 Metamorphoses 10.455-10.457.
87 Metamorphoses 10.456; cf Catullus 66.17. Translated from Tarrant, above n 11. For text and translation of Catullus, see Peter Green, The Poems of Catullus (University of California Press, 2007).
88 Cf manu deducit, Metamorphoses 10.462. When Myrrha hesitates, the nurse pushes her and the language of wedding customs becomes highly ironic; cf Franz Bömer, P Ovidius Naso Metamorphosen Buch X-XI (Carl Winter, 1980) 157.
89 A marriageable girl (virgo) who had an extra-marital affair and a man who had an affair with a virgo were committing stuprum (‘criminal fornication’), but the lex Iulia conflates stuprum with adulterium; see McGinn, above n 14, 144-152.
90 For the father’s ius occidendi (‘right to kill’) and Augustus’ lex Iulia, see McGinn, above n 14, 202-207.
91 Ovid does not tell us what happened to Cinyras after Myrrha escaped, but in some versions of the myth he commits suicide after realising that he had sex with his daughter; see Hyginus, Fabulae 242. For text and translation of Hyginus, see Smith and Trzaskoma, above n 50.
92 Myrrha’s subsequent exile alludes to the punishment for adultery; see McGinn, above n 14, 143, 166.