A. Apollonius Cordus P. Memmio Albucio omnibusque sal.
I'm very interested in your interpretation of the
constitution, especially in light of what I've
recently been reading about interpretive techniques of
Roman law.
Your line of reasoning, as I understand it, is that
the constitution does not explicitly permit
discrimination between citizens. This is, of course, a
general statement, for you must be aware that the
constitution does mandate discrimination in certain
circumstances. It states, for instance, that there
must be discrimination
- between patricians and plebeians (IV.A.5 & 7;
III.C);
- between citizens over the age of 18 and citizens
under the age of 18 (II.A & B);
- between citizens who vote and citizens who do not
vote (II.E.1);
- between "those citizens who have shown the greatest
commitment" and those who have not (II.E.2);
- between people of different religious faiths (VI.A).
I suppose you could argue that any type of
discrimination *which is not explicitly commanded by
the constitution* is implicitly forbidden by it. But
how, then, do we explain other types of discrimination
which exist within Nova Roma - for instance, the fact
that the collegium pontificum does not allow
non-practitioners of the religio Romana privata to
become pontifices minores, and the fact that the same
collegium does not (currently) allow women to become
pontifices or flamines?
The answer (unless we are to hold these things
unconstitutional also) is, surely, that the
constitution, in giving the collegium pontificum the
authority to determine its own conduct, also
implicitly gives the collegium the authority to enact
discriminatory policies at its discretion? And if we
accept this, it is not far to travel before we can say
that the constitution, in giving the aediles the
authority to conduct public games, implicitly gives
them too the authority to enact discriminatory
policies.
Now, let me say that I am not trying to prove your
interpretation "wrong". I have merely tried to show
that there are other plausible interpretations. This
is important, because of the Roman approach to legal
interpretation.
And the Roman approach, as Alan Watson has admirably
demonstrated in his various writings, was quite
flexible. In general, Roman jurisprudentes of the
republican period tried to resolve problems of
interpretation in accordance with what they thought
was the intent of the author, but also in accordance
with the normal meanings of words. But sometimes they
indulged in rather extreme, even illogical,
interpretations, almost certainly with the deliberate
intention of extending the law in question beyond its
original intent in order to achieve an outcome which
they considered desirable or just. These extreme
interpretations fell into two sub-categories: the
extremely literal (such as Scaevola's argument in the
famous causa Curiana) and the extremely non-literal
(such as the interpretation which allows the word
"glans" (acorn) to signify any fruit or nut).
I think the interpretation I set out above would fall
into the category of interpretations aiming to follow
the intent of the document and the normal meaning of
words. The intent of the document surely cannot be to
forbid all discrimination, since it is rife with
discrimination itself, and also since its stated goal
is to establish the foundation of a Roman res publica,
which necessarily entails some discrimination. And as
for the normal meaning of words, I think it is fair to
say that in the normal meaning of words, silence does
not indicate prohibition - indeed in normal
circumstances silence is taken to indicate consent!
Your interpretation, on the other hand, falls within
the category of extensive interpretation, for it
extends the meaning of the constitution beyond what
seems to be its original intent in an effort (I
presume) to correct, as it were, the law to make it
more just and equitable. And within the category of
extensive interpretation, it is certainly not of the
extremely literal kind, but of the extremely
non-literal kind (since you interpret silence to mean
prohibition).
So your interpretation represents a legitimate, though
lesser, tradition of republican interpretation.
However, (as Watson, again, has shown), I remind you
that Roman jurisprudentes only indulged in this sort
of extensive interpretation when they felt that the
law as it stood was not sufficiently just or fair. In
short, they used their powers of interpretation to
achieve a desired outcome.
So what is the desired outcome here? On the one hand,
yes, it would be fair and equitable for non-English
speakers to be protected from discrimination in
general. But in this specific case, I rather suspect
that if the certamen cannot go ahead in English it
will not go ahead at all. I Know Dr. Lintott can read
the major European languages, but I very much doubt
that he can read all the languages which are spoken in
Nova Roma; and Dr. McCullough is probably in the same
position. So, unless our good aedilis is going to get
some different judges, it's likely that the
competition cannot occur at all without some
linguistic discrimination.
So what is the desired outcome here? Is it to stop the
competition, or to allow the competition to go ahead?
If it is to stop it, then your extensive
interpretation of the constitution is the one we
should adopt; but if the goal is to allow it to take
place, then the alternative interpretation is more
useful. Let's be like the jurisprudentes of the
republic, and choose the interpretation which seems to
us the one which most conduces to justice in the case
at hand.
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