Varro, the Name-Givers, and the Lawgivers: The Case of the Consuls

This essay aims at identifying a tradition of lawgivers in the political culture of the late Republic. It focuses on the antiquarian tradition of the second half of the first century BC, which, it argues, should be considered part of the wider quest for legal normativism that takes place towards the end of the Republic. By reconstructing the intellectual debates on the nature of the consulship, which at the time was carried out through the means of etymological research, this essay shows that, when set within its proper philosophical framework, ancient etymological studies acted as a search for philosophical truth and, in the case of Varro, identify the early kings as the first Roman lawgivers. In turn, the language of political institutions and its etymologies, conceived along philosophical lines, could become a weapon in the constitutional battles of the late Republic.


Introduction
As is well known, contrary to the Greek tradition, the Roman Republican system did not recognise a single Lawgiver. While Sparta could boast Lycurgus as the founder of its constitution, Athens Solon, and Crete Minos, Roman tradition did not assign the beginning of its public laws and institutions to a single individual, but rather to the contributions of many men throughout several However, another important moment should be considered, I argue, as part of this wider search for a coherent codification of the religious and political norms, the writing of the so-called antiquarians, which, composed in the second and first century BC, should be viewed as constituting an intellectual movement of innovative force.7 By adopting a philological method, these texts moved from the present to reconstruct the past. Their subject matters concentrated on political institutions and laws, religion, private life and customs, topography, and language. United by a family resemblance in the way they approached the past, they adopted a synchronic rather than chronological arrangement, and appeared prima facie to collect all evidence for a given phenomenon indiscriminately, without an explicit evaluation of its relevance to a particular problem.
In the second half of the second century, authors such as C. Sempronius Tuditanus in his libri magistratuum, L. Cassius Hemina in his de censoribus, I. Congus Gracchanus in his de potestatibus, or in the first century BC Nicostratus in his de senatu habendo, Varro in his Isagogicus ad Pompeum (an instruction manual on how to convene a session of the senate for Pompey), or L. Cincius in his de comitiis, selected customs and institutions, which, enshrined in their works, transformed patterns of customary behaviour into written rules and regulations that governed public life. The contemporary political and institutional uncertainties of the late Republic encouraged and, to a certain extent, drove intellectuals and politicians of the time to elaborate normative models, which, placed in a remote past, gained the auctoritas of the ancestors, while, at the same time, enabling changes for the future.8 The process of selection, Press, 2019); C. Smith, 'Leges Regiae and the Nomothetic World of Early Rome' , Cahiers des études anciennes 57 (2020), pp. 91-103. The so-called 'constitutions' of Romulus and Servius in Dionysius of Halicarnassus, the accounts of Cicero's De Republica Book 2, and Livy's narrative in Book 1 can be considered part of this wider intellectual movement. See Gabba, 'Tendenze all'unificazione normativa' , pp. 48-9. 7 For a discussion on the nature of Roman antiquarianism see A. Momigliano, 'Ancient history and the antiquarian' , Journal of the Warburg and Courtauld Institutes 13 (1950), pp. 285-315 and E. Rawson, Intellectual Life in the late Roman Republic (London: Duckworth, 2002). The works of the antiquarians have not survived in full and their fragments are currently scattered in number of rather outdated editions of Roman jurists, grammarians, and historians -although for the latter we are now much better served by the edition of Tim Cornell, who carefully distinguishes the antiquarian and the historical works. The first edition of the Fragments of the Roman Republican Antiquarians is currently in preparation by a team of scholars led by myself under the egis of the ERC. 8 Gabba, Italia Romana, p. 50. E. Gabba, 'Studi su Dionigi di Alicarnasso I' , Athenaeum 48 (1960) however, was not uncontested, and by asserting one version of the past over another as the most authoritative, each author established and re-defined possible courses of action in the present.

The Consul and His Name
In the second half of the first century BC, an intellectual debate took place on the exact nature and functions of the consulship, traditionally regarded as the highest magistracy in Rome, and its relation with other Republican magistracies and institutions. The debate focused on two main issues: first, the power relation between the consul and other magistrates, in particular the praetor, as well as the institutions of the senate and the comitia; second, the function fulfilled by the consul in the administration of the res publica.
Livy, writing at the very end of the first century BC, reports a discussion on the law passed, it seems, in 449 BC to protect the tribunes of the plebs.9 According to this law, whose main scope was to guarantee the sacrosanctity, that is the personal inviolability, of those magistrates perceived as defenders of the people's interests, those who violated the person of the tribunes of the plebs, of the plebeian aediles and of the decemviral judges, would have been forfeited to Jupiter and their possessions sold at the temple of Ceres, Liber, and Libera. The very lively debate, which Livy retrojects, at least partially, to the fifth century BC, focused on the aim of the law and its scope.10 There was, in fact, no consensus on whether the aim of the law was to establish that the magistrates were sacrosanct, or rather, as the iuris interpretes of the first century BC seemed to believe, that the offenders against those officials should have been considered sacer.11 Equally, there was no consensus on the magistrates whom this law included in its provisions and whether, alongside the plebeian aediles 9 Liv. 3.55.7-12. See also Zon. 7.19.1 (independent from Livy and also relating to 449). 10 The debate had a strong contemporary relevance as in 36 BC Augustus was granted the sacrosanctity of the tribune, a major move that required some justification. and the judicial decemviri, the law included the consuls and the praetors in its clauses too. There were some who argued that the law covered a class of officials called iudices, and, as the consuls were called iudices, it followed, they maintained, that the consuls were covered by the law. However, since the praetors were created under the same auspices as the consuls, their argument continued, it could only be deduced that the praetors were included too. The important point of this discussion for my present argument is that those who held this view argued that, since the law covered a group of officials called iudices and the consuls were called iudices, it followed that the consuls were included in the provisions of the law. However, Livy notes that this interpretation should be refuted, as in those (historically unspecified) times it was custom for a judge not to be called 'consul' but rather 'praetor' . At the kernel of this debate lies the important issue whether the titles 'consuls' and 'praetors' indicated two different functions assigned to the same individual or rather two distinct magistracies with their own individual remits and a hierarchical internal relation. In his de consulum potestate, L. Cincius, an antiquarian who lived in the second half of the first century BC, attests of a time when the two magistracies were distinct and the praetor was indeed the chief military and political authority.12 In a very obscure passage preserved by Festus, Cincius discusses the salutatio ad portam, the Roman custom to hail at the gate as praetor the general who was going to take charge of a province either as propraetor or proconsul (Festus 276L). In Pierre Sánchez's recent reading, Cincius states that the origin of this custom lies in the fact that, when Rome fought alongside the Latins under the foedus Cassianum, the command of the allied armies was entrusted to a magistrate of the Roman Republic. Before leaving Rome, the general took the auspices on the Capitol in order to obtain divine confirmation of his military powers, which had been conferred upon him by the people, and was greeted by the Latin armies at the gate of the city with the title of praetor. in the fact that in the past the praetorship was the chief office in Rome.14 The superiority of this magistracy over the consulship was also shown in an archaic inscription that attested a use, which too had attracted the attention of L. Cincius. This inscription, placed on the right side of the temple of Jupiter Optimus Maximus, where the temple of Minerva stands, attested, according to Livy, an ancient law (lex vetusta) that prescribed that, on the Ides of September, the praetor maximus performed the annual ritual of hammering in a nail.15 Cincius, described by Livy as diligens talium monumentorum auctor, claimed that this use, adopted to mark the passage of years, was also implemented at Volsinii, where nails could still be seen in the first century BC hammered in the temple of Nortia, an Etruscan goddess. By a direct observation of monuments and inscriptions, Cincius and other authors (Livy generically refers to a plural) attest of a time when writing was not widespread and the chief magistrate in Rome was called praetor maximus.16 He must have been replaced by the consul, or so Livy implicitly claims, as, in the year after the expulsion of the kings, the ceremony of driving the nail was then carried out by the consul Marcus Horatius, and then transferred from consuls to dictators, because theirs was, Livy comments, the higher authority.17 Cincius and the other authors to whom Livy refers were only some of the protagonists of this debate that took place in the second half of the first century BC. According to them, in Rome's ancient past the praetor and the consul were distinct magistrates -an idea, Livy comments, also based on the mistaken attribution of the name 'judge' to consuls rather than praetors. However, Cicero in his de legibus, composed too in the second half of the first century BC (approximately between 52 and 43 BC), claimed that these magistracies indicated distinct functions fulfilled by the same individual, who thereby received the name of praetor, judge, and consul. In the legal code for his res publica, Cicero gives the following law: 'there shall be two magistrates with royal powers. Since they lead, judge, and confer, from these functions they shall be called praetors, judges, and consuls (regio imperio duo sunto, iique praeeundo, iudicando, consulendo praetores, iudices, consules appellamino). In the field they shall hold the supreme military power; they shall be subject to no one; the safety of the people shall be their highest law' (Cic. Leg. 3.8.2.).
In one of the rare passages of de legibus where he makes use of an etymological argument, Cicero supports the archaic equivalence between praetors and consuls, as these names show different functions of the same magistrates. These were called praetors, he explains, from prae-ire, to go first, to lead (the army), iudices, from iudicare, to pass judgment, and consuls from consulere, to advise or consult. Proposing the ideal law-code for his res publica, in line with Greek political theory and in accord with the historical reality of early Rome as he reconstructed in de re publica, Cicero adopts an archaising framework, which enables him to present innovations within a wider context aimed at reestablishing, or so he claims, the traditional Roman past.18 Cicero's position in the debate of the nature of Republican magistracies was far from isolated. His etymological argument that postulates (or shows, as the ancients would have said) the existence of a time when praetors and consuls were two functions of the same magistracy returns about ten years later in Varro's de vita populi Romani, composed in 43/2 BC.19 In this work, Varro states that 'the terms consuls and praetors indicated the same magistrates: as praetors led the people and as consuls gave advice to the senate (quod idem In the case of Cicero, as indicated by the reference to the safety of the people as the main political remit of the consuls, in the commonwealth the consuls were expected to give advice and take care of the people. In the case of Varro, in the de vita populi Romani, the consuls were presumed, in a remote past, to give advice to the senate. The two readings of course may well not be mutually exclusive, especially so in the case of the fragmentary work of Varro, but it might be interesting to observe that the absence of the senate in Cicero's formulation is counterbalanced by the absence of the people in Varro's. This observation gains a new dimension when we consider that just few years earlier, in his de lingua Latina, Varro had also dealt with the etymology of Roman magistrates.21 In this work, Varro took a different stance from the one he assumed a few years later in de vita populi Romani. In de lingua Latina, reviewing the etymology of the Roman Republican magistracies, the praetor and the consul are considered two distinct magistrates with separate functions: the praetor is associated with praeire and the consul with consulere. In the first case, Varro states that this magistrate derives his name from the fact that he leads the law and the army (praetor dictus qui praeiret iure et exercitu)an etymology rather uncontroversial in antiquity.  13-4 (1947-1948), pp. 7-140 argues in favour of an understanding of praetor as the official who leads in reciting a formula in the civil procedures of the legis actiones. Contra Brennan, The Praetorship in the Roman Republic, p. 20. two alternatives: the name of this magistrate, he states, may derive from consulere as the consul is the one who should consulere, 'ask the advice of' the people and the senate (consul nominatus qui consuleret populum et senatum).
Alternatively, Varro continues, if one follows the use of Accius in his Brutus, the name consul derives from consulere as in 'to give advice' , so that the person who counsels right is called consul.23 If the derivation of the word consul from consulere is universally accepted in antiquity, Varro shows that there was a significant disagreement about its usage and thereby its meaning.24 According to the reading favoured by Varro in de lingua Latina, and, on the basis of our evidence, not widely shared by others, the word consul derives from consulere as understood when governing the accusative, 'asking for advice' . In this case, the consul is the magistrate who consults the senate and the people. In the second case, supported by Accius and fully illustrated by Varro himself in the de vita populi Romani, consulere stands for 'giving advice' , 'taking care of' , and is usually followed by the dative.25 What might appear prima facie a rather tedious discussion of antiquarian nature on the etymology of consul and praetor and their mutual relation was, in fact, an important debate on the constitutional arrangements of the Republic, a debate that was intellectually fought also through the means of etymological research. The kernel of the issue resided in two main points: first, in understanding the power relation between the consul and the praetor, second, and perhaps more pressingly, in establishing the role of the consul in relation to the other two institutional loci of power, the senate and the popular assemblies. This etymological research presented not only a case for the identity of the praetor and the consul, but also, reading Roman institutional arrangements within the framework of Greek political thought, for two conflicting interpretations of the power relation between the three main components of Roman political life, the magistrates, the senate, and the people. In one case, endorsed by Varro in de lingua Latina, in the remote past, the role of the consul was that of consulere senatum et populum, that is asking for the advice of the senate and the people; in the other, proposed by Accius in the Brutus, and endorsed by Cicero and Varro in the de vita populi Romani, the function of the consul was consulere senatui (or, in other attestations, rei publicae or civibus), that is giving Most interestingly, the role of the consul within the Republican political system was no longer only articulated in public debates, but was now recorded for the first time in the writing of the so-called antiquarians.28 The most striking feature of this intellectual battle is that it was fought through the means of etymological research. Contrary to modern phonology and the study of Indo-European derivations, ancient etymologies, as Ineke Sluiter puts it, 'are mostly put forward to corroborate a specific view of what a word "really" means, probably even where they are presented as a tool to find the meaning of a word' .29 It follows that ancient etymology are 'all about synchrony, even though it invokes a discourse that references the past. It is about the relationship between words and their semantic explanation or definition -it wants to know why anything is called what it is called, the reason for the name, and what motivates the namegiver -and the explanations it comes up with are not intended to give us insight into the past, into the historical processes and developments leading to the present situation; rather, and importantly, 26 In this context consulere with dative Cic. (ancient) etymology is about understanding the present' .30 As the case of consul shows, from these etymologies of consul and praetor we do not learn much about, or at least not primarily about, the early magistracies of Rome, but rather how they were perceived at the time of writing. As a form of 'anchoring' practice in the past, which provides orientation in the present, these different etymologies corresponded to different views of the role of the consuls in the contemporary constitutional framework of Rome.

Varro's Etymology and Early Kings as Lawgivers
Etymological reflections are also philosophical reflections.31 When set within the appropriate philosophical context, it is possible to see how those who first gave names to institutions and magistrates could be interpreted as de facto law-givers. The etymologist who was able to reach the same level of knowledge as that of the first name-givers could, therefore, claim that his view of, in the case under discussion, the consulship had a higher degree of validity than the other competing arguments.
In his de lingua Latina, Varro treats the nature of language as tripartite: the origins of names, their derivations and inflexions, their combination to express a complete thought, in other words it focuses on etymology, inflexional morphology, and syntax.32 In the preserved text on etymologies, Varro explains that words are divided into two groups, primigenia, those first imposed upon things, and declinata, those derived from the first words by either declinatio uoluntaria or declinatio naturalis, that is derivation and inflection.
The origins of words are therefore two in number, and no more: imposition (impositio) and inflection (declinatio); the one is as it were the spring ( fons), the other the brook (rivus). Men have wished that imposed nouns should be as few as possible, that they might be able to learn them more quickly; but derivative nouns they have wished to be as numerous 30 Sluiter, 'Ancient Etymology' , p. 898. 31 On the relation between philosophy and antiquarianism, whose central tool is etymology see P. as possible, that all might the more easily say those nouns which they needed to use.
Varro Ling. Lat. 8.5 At the fons, the origin, the men who first imposed names upon things were guided, Varro tells us, by the natura of the things named: 'for nature was man's guide to the imposition of names (de natura eorum: ea enim dux fuit ad vocabula imponenda homini [Varro Ling. Lat. 6.3.]).' Since in de lingua Latina Varro explicitly refers to the Stoics, naming explicitly Chrysippus and Antipater, it is not implausible to imagine with David Blank that Varro embraces their thought that the first name-givers imitated in sound what they found essential about the nature of the thing that they wished to name following an onomatopoietic model or the mode of its articulation.33 However, these men decided that these first words should be few in number and their act of name-giving was to be complemented by the process of declination, both voluntaria and naturalis. As Varro puts it, there are two kinds of derivation, voluntary and natural. Voluntary derivation is that which is the product of the individual person's volition, directing itself apart from control by others. So, when three men have bought a slave apiece at Ephesus, sometimes one derives his slave's name from that of the seller Artemidorus and calls him Artemas; another names his slave Ion, from Ionia the district, because he has bought him there; the third calls his slave Ephesius, because he has bought him at Ephesus. In this way each derives the name from a different source, as he preferred. On the other hand, I call that derivation natural, which is based not on the volition of individuals acting singly, but on general agreement. So, when the names have been fixed, they derive the case-forms of them in like fashion, and in one and the same way they all say in the genitive case Artemidori, Ionis, Ephesi; and so on in the other cases.
Varro Ling. Lat., The prime function that, according to this thinking, the natural declination fulfils is to enable men to learn as quickly as possible an enormous amount of words. After the first act of impositio, when the name-givers imposed few original names, by virtue of derivation and inflection, an infinite number of things could be named (Varro Ling. Lat. 8.3). According to Cosconius, Varro reports, the primitive words were about one thousand, 'from the inflections of these words the different forms can be five hundred thousand in number for the reason that from each and every primitive word about five hundred forms are made by derivation and inflection' (Varro Ling. Lat. 6.36). Thus, from the original fons, a rivus of words came to be formed. However, searching for 'from what thing and to what thing' a name is imposed, Varro finds his quest hampered by numerous obstacles: first, not every imposed name survives since the passage of time has destroyed some of them; second, not every imposed name which survives does so without inaccuracy of some kind; third, not every correct imposed name remains unaltered, as many have their letters changed, while, fourth, others have kept the same forms, but changed their meaning, and, finally, others derive from a foreign language .
'These words [of origin, the first imposed]' , Varro tells us, 'are covered up … by lapse of time, [and] I shall try to dig [them] out as best I can (quae obruta vetustate ut potero eruere conabor)' .34 However, as the fons, the originating source, of the words primigenia is about seven hundred years old, as attested, for example, by the words of the carmen Saliorum, it is unreasonable to expect that anyone who studies these issues may always succeed in identifying the causa of the words (Varro Ling. Lat. 7.3). Therefore, he claims, since the origin of all words (causa omnium verborum) cannot invariably be stated, one should not blame the person who has been unable to reach it, but rather appreciate that many interesting and important things can still be learnt by the etymological research.
Just as it cannot be stated how and why a medicine is effective for curing; and that if I have no knowledge of the roots of a tree, still I am not prevented from saying that a pear is from a branch, the branch from a tree, and the tree from roots which I do not see. For this reason, he who shows that equitatus 'cavalry' is from equites 'cavalrymen' , equites from eques 'cavalryman' , and eques from equus 'horse' , even though he does not 34 Varro give the source of the word equus, still gives several lessons and satisfies an appreciative person.
Varro Ling. Lat. 7.4 Thus, according to Varro, the inability to state the ultimate origin of a word should not be considered a failure, since, by unearthing how the other nouns have developed from the primitives, the author has undoubtedly shed some significant light on a variety of important issues. By highlighting the transitional relation between the words equitatus and equus, to take Varro's own example, but ceasing his search once the latter is reached, Varro thinks something important has been uncovered about the Roman institution of cavalry, which would not necessarily be further enriched by a full understanding of the origin of equus. However, Varro's aim remains to establish the words primigenia, that is words like lego 'I gather' , scribo 'I write' , sto 'I stand' , sedeo 'I sit' , 'and the rest which are not from some other word, but have their own roots' . The main reason for this quest, it seems, is of a pragmatic nature: by discovering the origines of approximately one thousand primitive words, he would reveal the sources of five hundred thousand new words. However, if without showing the origin of a single primitive word he has shown how the rest have developed from the primitives, he will have said quite enough about the origins of words, since the original elements from which the words are sprung are few and the words which have sprung from them are countless.
Varro Ling. Lat. 6.37 To achieve this very ambitious aim, that is to reach the causa of the primitive words first imposed on things, Varro states that he will need to resort not to the ars of etymology and its rules on how to inflect words, which will not bear any fruits in this context, but rather to historia.
In connexion with the first class [the impositicia verba] historia is necessary, for except by outright learning such words do not reach us (ad illud genus, quod prius, historia opus est: nisi discendo enim aliter id non pervenit ad nos); for the other class, the second [declinata verba], a grammatical treatment is necessary, and for this there is need of a few brief maxims. For the scheme by which you have learned to inflect in the instance of one noun, you can employ in a countless number of nouns.
Varro Ling. Lat. 8.6 Thus, according to Varro, it is possible to reach the origins of the impositicia verba by historia and erudite learning, that is by research of each particular coinage, its context, and its reasons.35 This will be the highest level of the investigation of the word origins, which Varro calls the fourth gradus, where, he says, the adytum et initia regis are located:36 The fourth level is where the sanctuary and the mysteries of the highpriest are. If I do not arrive at full knowledge there, at any rate I shall hunt after an informed opinion, which even in matters of our health the physician does from time to time when we are ill.37 Varro Ling. Lat. 5.8 However, he wishes to reach the highest level that he possibly can: But even if I do not reach the highest level, I shall nevertheless surpass the second, because I spent my nights studying not only by the lamp of Aristophanes, but also that of Cleanthes. I wanted to surpass those who explain only how the words of the poets were created. For it did not seem appropriate that I should seek the source in the word which Ennius had It seems, therefore, that, according to Varro, the first name-givers were the early kings of Rome, who understood the nature of the thing to which they imposed the name of the origins.38 Guided by the natura of things, these extraordinary men, such as Latinus, Romulus, or Numa, whom Varro cites as the name-giver of religious institutions (Varro Ling. Lat. 7.3;7.45), applied their ratio, their rational observation, to the reading of the world around them to which they gave names.39 'The useful service for which names were set upon things' , Varro argues, 'is that names should signify those things' (Varro Ling. Lat. 8.27).40 It is the natura of the things of the world that first informed language,41 which, in turn, makes the knowledge of the world possible (Varro Ling. Lat. 6.60). This is the reason why, although the words invented by the poets give Varro more pleasure, those created by the early kings of Rome are more useful, as they capture the essence of the things. These early kings, the impositores nominis, who crafted the names also of the first Roman institutions being guided by their natura, were therefore the first Roman law-givers. Knowledge, on the other hand, they deemed to exist nowhere except in the notions and reasonings of the mind; and consequently they approved the method of defining things, and applied this 'real definition' to all the subjects that they discussed. They also gave approval to derivation of words, that is, the statement of the reason why each class of things bears the name that it does -the subject termed by them etymology and then they used derivations as 'tokens' or so to say marks of things, as guides for arriving at proofs or conclusions as to anything of which they desired an explanation.

Conclusion
'Since ancient etymology' , as Sluiter shows, 'is not about the reconstruction of the single, historically accurate, route from word form to word form, but about using language as a tool for thinking about contemporary reality, this intellectual framework does not require just one single and accurate etymology for each word' .51 Several etymologies of the same word can co-exist, each corresponding to a different view of the underlying reality. When articulated by a prominent politician of the late Republic, these etymologies could also become a powerful tool to ascertain different positions in the debate on the political structure of the commonwealth. By claiming that consul derives from consulere senatum et populum, that is from 'asking the advice of the senate and the people' , Varro is making a very important constitutional point. By adopting the framework of Greek political thought, arguably in response to the uses and abuses of the consulship by Caesar and his followers, he affirms the subordination of the consuls to both the senate and the people. This very important statement gains further significance when set within the contemporary intellectual debate on the etymology of Roman magistrates, which was very lively at the time. While all other intellectuals argue for a derivation of consul from consulere senatui (or rei publicae or even civibus), that is 'giving advice to the senate' (or even 'taking care of the interests of the res publica' or 'of the citizens'), and by doing so assert the superiority of the Roman chief magistrate over the advisory power of the senate as well as his role as primary interpreter of the need of the res publica, Varro makes an important intellectual move that inverts this prevalent position, conceivably responding to the inappropriate, in his view, use of the consulship by Caesar.52 However, in his eyes, and in eyes of those who shared his philosophical outlook, his stance should prevail as ontologically superior. When set within its proper philosophical framework, in fact, Varro's etymological research confers to his reading a sense of higher Varro was an agent of rationalization, to be sure, but this was not a rationalization separate from politics, nor did it belong in an ivory tower, but it was a deliberate stance in an ongoing struggle about whose past -and whose state -was at stake.' 56 I would like to thank Dimitri El Murr and the other conference participants for the most stimulating discussions and Richard Marshall, Antonino Pittá, and Jessica Clark for important comments on this paper. This research has been conducted under the aegis of the project The Fragments of the Roman Republican Antiquarians (FRRAnt), ERC, consolidator grant866400.