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ROMAN DECEIT: DOLUS IN LATIN LITERATURE AND ROMAN SOCIETY

James C. Abbot Jr.


Department of Classics
Emory University
N404 Callaway Center
Atlanta, Georgia 30322-2220

1997
James C. Abbot Jr.
ALL RIGHTS RESERVED

CONTENTS

Page
LIST OF ABBREVIATIONS................................................................................................4
INTRODUCTION.................................................................................................................9
I.

Dolus in All its Guises..............................................................................................22


Dolus as cunning.......................................................................................24
Dolus as trap.............................................................................................29
Dolus as deceit..........................................................................................34
Conclusion....................................................................................................40

II.

Aquilius Gallus and the Formulae de Dolo Malo: Dolus and Roman Law................51
The edict......................................................................................................51
Dolo malo, intending to do wrong.............................................................52
Dolo malo, deceitfully...............................................................................53
The jurist......................................................................................................58
The definitions of dolus malus: the question of ambiguity.............................61
The role of perspective.................................................................................63
Ciceros pro Tullio.......................................................................................66
A test case....................................................................................................68
Dolus and ethics...........................................................................................73

III.

Cui iniuria fit? Dolus and Ciceros Moral Philosophy..............................................89


Dolus malus and causation............................................................................89
Causation and responsibility..........................................................................91
Cicero and causation.....................................................................................97
Moral philosophy: Ciceros de Officiis.......................................................101
Ciceros formula.........................................................................................103
Cicero on buying and selling (first attempt).................................................106
Cicero on buying and selling (second attempt).............................................107

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Cicero on buying and selling (third attempt)................................................111
Cicero and the perspective of the deceived..................................................116
IV.

The Aeneid and the Concept of Dolus Bonus..........................................................129


Introduction: Dolus, armor, and the enemy.............................................129
Dolus malus and dolus bonus......................................................................135
The labyrinth as a dolus...............................................................................139
Lusus Troiae...............................................................................................141
Fraus armorumque doli..............................................................................145
Dolus malus in the Aeneid..........................................................................150
Conclusion: Obscuris vera involvens..........................................................154

V.

Seu dolo seu forte: The Suspicious Society of Tacitus Historiae and Annales.......165
Introduction................................................................................................165
Dolus in Tacitus..........................................................................................170
Fortuitusne militum furor an dolus imperatoris..........................................174
Dolus as historical cause and standard of care.............................................178
Otho reconsidered.......................................................................................182
Tacitus, Germanicus, and the concept of dolus bonus..................................185

VI.
VII.

EPILOGUE: Dolus, Moral Crisis, and Ethical Flux................................................205


BIBLIOGRAPHY..................................................................................................210

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LIST OF ABBREVIATIONS

In citing the names of ancient authors and their works, I have adopted the abbreviations of
the Oxford Latin Dictionary (OLD) and the Greek-English Lexicon9 of Liddell, Scott, and
Jones. Abbreviations for journals may be found in LAnnee Philologique. The following
books and articles are cited in the notes in abbreviated form:

ALBANESE, Sussidiarieta

Bernardo Albanese, "La sussidiarieta dell' actio de


dolo," ASGP 28 (1961) 173-317.

ALBANESE, Ancora

Bernardo Albanese, Ancora in tema di sussidiarieta


dell a. de dolo, Labeo 9 (1963) 42 ff., repr. Scritti
Giuridici I, ed. M. Marrone (Palermo, 1991) 333-347.

AUSTIN

R. G. Austin, Aeneidos Liber Primus (Oxford, 1971)


and Secundus (Oxford, 1964).

BERGER, Roman Law

Adolf Berger, Encyclopedic Dictionary of Roman Law,


in TAPhS 43.2 (1953) 333-808, cited by entry.

BOK, Lying

Sissela Bok, Lying. Moral Choice in Public and Private


Life (New York, 1978, repr. 1989).

BROTHERTON, Roman Comedy

Blanche Brotherton, The Vocabulary of Intrigue in


Roman Comedy (Menasha, Wisconsin, 1926; repr. New
York, 1978).

BRUTTI, Dolo processuale

Massimo Brutti, La problematica del dolo processuale


nell' esperienza romana, 2 vols., paginated
consecutively (Milan, 1973).

CARCATERRA, Dolus

Antonio Carcaterra, Dolus bonus/dolus malus. Esegesi


di D. 4 3,1,2-3 (Naples, 1970).

CHANTRAINE

Pierre Chantraine, Dictionnaire etymologique de la


langue grecque. Histoire des mots, 4 vols. (Paris, 1968,
repr. as 2 vols., 1983-84), cited by entry.

CHILVER

G. E. F. Chilver, A Historical Commentary on Tacitus


Histories I and II (Oxford, 1979).

CICERO THE PHILOSOPHER

Cicero the Philosopher. Twelve Papers, ed. J. G. F.


Powell (Oxford, 1995).

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DAUBE, Forms

David Daube, Forms of Roman Legislation (Oxford,


1956).

DETIENNE-VERNANT

Marcel Detienne and Jean-Pierre Vernant, Cunning


Intelligence in Greek Culture and Society, tr. J. Lloyd
(Atlantic Highlands, New Jersey, 1978, Chicago, 1991),
from Les ruses dintelligence. La Metis des grecs
(Paris, 1974).

DI SALVO, Lex Laetoria

Settimio Di Salvo, Lex Laetoria. Minore eta e crisi


sociale tra il III e il II a.C. (Camerino, 1979).

DOOB, Labyrinth

Penelope Reed Doob, The Idea of the Labyrinth from


Classical Antiquity through the Middle Ages (Ithaca,
1990).

DYCK

Andrew R. Dyck, A Commentary on Cicero, De Officiis


(Ann Arbor, 1996).

ERNOUT-MEILLET

Alfred Ernout and Antoine Meillet, Dictionnaire


etymologique de la langue latine. Histoire des mots4
(Paris 1959), cited by entry.

FRIER, Jurists

Bruce W. Frier, Rise of the Roman Jurists (Princeton,


1985).

FURNEAUX

Henry Furneaux, P. Cornelii Taciti Annalium ab


Excessu Divi Augusti Libri, The Annals of Tacitus2, 2
vols. (Oxford, 1896, repr. 1934).

GERBER-GREEF

A. Gerber and A. Greef, eds., Lexicon Taciteum, 2 vols.


(Hildesheim, 1962).

GOODYEAR

F. R. D. Goodyear, The Annals of Tacitus, Books 1-6,


vol. 1: Ann. 1-1.54 (Cambridge, 1972), vol. 2: Ann.
1.55-81, 2 (Cambridge 1981).

HART-HONORE, Causation

H. L. A. Hart and Tony Honore, Causation in the Law2


(Oxford, 1985).

HELLEGOUARCH, Vocabulaire

J. Hellegouarc'h, Le vocabulaire latin des relations et


des partis politiques sous la republique2 (Paris, 1972).

HENRY

J. Henry, Aeneidea, 4 vols. (Dublin 1878).

HENRY, Annals

Elisabeth Henry [= B. Walker], The Annals of Tacitus.


A Study in the Writing of History (Manchester, 1952).

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HEUBNER

Heinz Heubner, Die Historien: Kommentar, 5 vols.


(Heidelberg, 1953-).

HOLDEN

H. A. Holden, M. Tulli Ciceronis De Officiis Libri Tres


(Cambridge, 1899, repr. Amsterdam, 1966).

HORAK, Rationes

Franz Horak, Rationes Decidendi I (Innsbruck, 1969).

JOLOWICZ-NICHOLAS

H. F. Jolowicz and Barry Nicholas, Historical


Introduction to the Study of Roman Law3 (Cambridge,
1972).

KASER, Zivilprocessrecht

Max Kaser, Das romische Zivilprocessrecht (Munich,


1966).

KASER, Privatrecht

Max Kaser, Das romische Privatrecht2, 2 vols. (Munich,


1971-1974).

KOESTERMANN

Erich Koestermann, Cornelius Tacitus, Annalen, 4 vols.


(Heidelberg, 1963-1968).

KRUGER-KASER

Hugo Kruger and Max Kaser, Fraus, ZRG 63 (1943)


116-73.

LENEL, Edictum

Otto Lenel, Das Edictum perpetuum3 (Leipzig, 1927).

LONGO, Contributi

Gianetto Longo, Contributi alla dottrina del dolo


(Padua, 1937).

LUBTOW, Ursprungsgeschichte Ulrich von Lubtow, "Die Ursprungsgeschichte der


exceptio doli und der actio de dolo malo," Eranion G. S.
Maridakis I (Athens, 1963) 183-201.
LYNE, Voices

R. O. A. M. Lyne, Further Voices in Vergils Aeneid


(Oxford, 1987).

MACCORMACK, Simulatum

Geoffrey MacCormack, Aliud simulatum, aliud


actum, ZRG 104 (1987) 639-46.

MACCORMACK, Classical
Period

Geoffrey MacCormack, Dolus in the Law of the Early


Classical Period, SDHI 52 (1986) 236-285.

MACCORMACK, Republican
Law

Geoffrey MacCormack, Dolus in Republican Law,


BIDR 88 (1985) 1-38.

MRR

T. Robert S. Broughton, The Magistrates of the Roman


Republic, 3 vols. (I-II, New York, 1951, Supp. 1960; III,
Atlanta, 1984).

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NAF-HOFMANN, Ausweitung

Marlies Naf-Hofmann, Zur objektiven Ausweitung der


actio de dolo im romischen und gemeinem Recht
(Winterthur, 1962).

NICOLAS, Roman Law

Barry Nicholas, An Introduction to Roman Law


(Oxford, 1962).

NORDEN

Eduard Norden, P. Vergilius Maro Aeneis Buch VI4


(Stuttgart, 1926).

NORR, Rechtskritik

Dieter Norr, Rechtskritik in der romischen Antike


(Munich, 1974).

PEASE

Arthur Stanley Pease, M. Tulli Ciceronis De Divinatione


Libri Duo (Urbana, 1920-23, repr. Darmstadt, 1963).

PELLING, Germanicus

Christopher Pelling, Tacitus and Germanicus, Tacitus


and the Tacitean Tradition, ed. T. J. Luce and A. J.
Woodman (Princeton, 1993) 59-85.

PERNICE, Labeo

Alfred Pernice, Marcus Antistius Labeo. Das romische


Privatrecht im ersten Jahrhunderte der Kaiserzeit I
(Halle, 1873), II1 (1878), II2 (1895-1900), III2 (1900),
repr. in entirety, Aalen, 1963.

PHILOSOPHIA TOGATA

Philosophia Togata. Essays on Philosophy and Roman


Society, ed. M. Griffin and J. Barnes (Oxford, 1989).

PUTNAM, Interpretation

Michael C. J. Putnam, Virgils Aeneid. Interpretation


and Influence (Chapel Hill, 1995).

PUTNAM, Poetry

Michael C. J. Putnam, The Poetry of the Aeneid (Ithaca,


1965).

RAWSON, Intellectual Life

Elizabeth Rawson, Intellectual Life in the Late Roman


Republic (Baltimore, 1985).

RE

A. Pauly, G. Wissowa, and W. Kroll, RealEncyclopadie der klassischen Altertumswissenschaft


(Stuttgart, 1893-) cited by author and entry.

RICCOBONO, Fontes

Salvatore Riccobono, Fontes Iuris Romani


Antejustiniani2 (Florence, 1940-43).

SCHULZ, Legal Science

Fritz Schulz, History of Roman Legal Science (Oxford,


1946).

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SVF

Stoicorum Veterum Fragmenta, ed. H. F. A. von Arnim,


4 vols. (New York, 1986).

WACKE, Dolus-Begriff

Andreas Wacke, Zum dolus-Begriff der actio de dolo,


RIDA 27 (1980) 349-86 = Iura 28 (1977) 11 ff. (Italian).

WACKE, Circumscribere

Andreas Wacke, Circumscribere, gerechter Preis und


die Arten der List, ZRG 94 (1977) 184-246.

WALDE-HOFMANN

Alois Walde and J. B. Hofmann, Lateinisches


etymologisches Worterbuch (Heidelberg, 1938-1954),
cited by entry.

WATSON, Law Making

Alan Watson, Law Making in the Later Roman Republic


(Oxford, 1974).

WATSON, Obligations

Alan Watson, The Law of Obligations in the Later


Roman Republic (Oxford, 1965).

WATSON, Actio de dolo

Alan Watson, Actio de dolo and actiones in factum,


ZRG 78 (1961) 392 ff.

WHEELER, Stratagem

Everett L. Wheeler, Stratagem and the Vocabulary of


Military Trickery (Leiden, 1988).

WIEACKER, Rechtsgeschichte

Franz Wieacker, Romische Rechtsgeschichte I.


Quellenkunde, Rechtsbildung, Jurisprudenz und
Rechtsliteratur (Munich, 1988).

WILLIAMS

R. D. Williams, The Aeneid of Virgil, 2 vols. (London,


1972, 1973).

INTRODUCTION

Paul Radin begins his now classic study The Trickster: A Study in American Indian
Mythology,1 with tales of Wakdjunkaga, an important figure in the mythology of the
Winnebago Indians. Among them is an episode that speaks to the problem I explore in this
book. In the action preceding the episode that I wish to consider, Wakdjunkaga employs a
ruse to capture and kill some ducks (12). After setting these ducks to roast, some on sticks
and some under the ashes of his fire, he decides to sleep, and he gives the job of safeguarding
the roasting ducks to his anus, his younger brother. Despite vigorous efforts,
Wakdjunkagas anus does not succeed in driving off some hungry foxes (13), who devour the
meat and then cleverly place the carcasses back under the ashes. Waking to find his food
eaten by foxes, Wakdjunkaga punishes his younger brother by burning the brothers
mouth, that is, his own anus (14). Sensing the pain, he reflects, Is it not for such things
that they call me Trickster [i.e., Wakdjunkaga]? They have indeed talked me into doing this
just as if I had been doing something wrong!
Subsequently, Wakdjunkaga finds and eats pieces of fat, which he does not recognize
initially as pieces of his own intestines. These had contracted and fallen off as a result of the
burning. When he understands what he has done, he says, My, my! Correctly, indeed, am
I named Foolish One, Trickster [i.e., Wakdjunkaga]! By their calling me thus, they have at
last actually turned me into a Foolish One, a Trickster! By they here, Wakdjunkaga
means the other inhabitants of his world, his self-styled younger brothers. Birds, for
instance, are wont to fly away from him exclaiming, Look, look! There is Trickster! (5).
How can this trickster tale of the Winnebagoes shed light on the problem of deceit in
Roman society of the late Republic and early Empire? Not, certainly, via a facile comparison
of two exceedingly dissimilar cultures, nor by recourse to the dubious notion of universal
human values. Instead, I see Wakdjunkagas epiphanic experience as a metaphor for the kind

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of societal transformation I describe in this book, as an exemplum, heuristic in nature, of a
shift from one worldview to another, with all that such a shift entails.
Of particular interest in this story of Wakdjunkaga is his emergent sense of identity.
Curiously, this identity takes shape for the tricky one only after he himself is tricked. At
first, of course, it is his younger brothers fault that the ducks have been stolen by foxes. The
younger brother, however, proves to be a part of Wakdjunkagas own body. Wakdjunkaga
himself is the sly foxes true victim, the unwary deceptus. This is a seeming paradox,
namely, that Wakdjunkaga comes to realize that he is wakdjunkaga, the tricky one, only
when he learns that he is deceptus, the one who has been cleverly cheated.2 Something
similar happens in an earlier episode, when Wakdjunkaga in a fit of pique dons a black shirt
and stands for a long time pointing at a black-clad, similarly pointing man on the far shore
of a lake, who refuses to explain his actions to Wakdjunkaga. Ultimately, Wakdjunkaga
realizes that the man is in fact a tree stump, the pointing arm a limb, and he is induced to
admit, Indeed, it is on this account that the people call me the Foolish One [i.e.,
Wakdjunkaga]. They are right (11).
The paradox posed by the mythical figure who sometimes takes advantage of others
through craft, sometimes proves to be a buffoon and credulous fool, is the subject of many
trickster studies. From these studies, we have grown accustomed to thinking of trickster
figures as above all ambiguous, anomalous, and polyvalent.3 Be that as it may, the present
episode from the Winnebago trickster cycle appears to communicate quite clearly and
unequivocally at least two general ideas, both helpful for understanding the development of a
new Roman ethic of deceit in the late Republic and early Empire: first, that morality is by
nature a social construct, and second, that moral identity is necessarily comprised of two
competing perspectives, two radically dissimilar worldviews, namely, the perspectives of the
agent and the-one-acted-upon, or better, in terms of the present study, of the deceiver and the
deceived victim.
Morality is a social construct. Wakdjunkaga says, They have indeed talked me into
doing this just as if I had been doing something wrong! Later he adds, By their calling me
thus, they have at last actually turned me into a Foolish One, a Trickster! Whatever else
might be said about these claims, it seems clear enough that Wakdjunkagas interpretation of
his self-inflicted pain as punishment, and by extension his nascent awareness of the

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possibility of right and wrong, is a consequence of his engagement with the society of
younger brothers who populate his world. He remembers and reflects on their mocking
cries of Trickster! Experience leads him to conclude that, by so naming him, they have
made him who he is and, further, that they have guided his behavior. The power of the group
to define, to establish norms of behavior, and to determine moral value is dramatically
envisaged in this Winnebago trickster tale.
Moral identity is comprised of two perspectives. Wakdjunkaga is led to awareness of
and reflection upon his identity as a moral agent by the experience of being tricked. Just as
if I had been doing something wrong, he says. His apparent indignation at the suggestion
that it is wrong for him to trick his younger brothers is predictable. He is, after all, the
tricky one, and so can hardly desist from such behavior for long (cf. 22). But
Wakdjunkagas rejection of the idea cannot obscure the fact that it is through the experience
of being deceived that the notion of right and wrong ultimately enters his consciousness. He
will cope with this new notion, it seems, by subscribing to the proposition that it is wrong for
others to deceive him, right for him to deceive others (cf. 17), especially as an act of revenge
(cf. 45-46). As a moral precept, this is crude, but no matter. The point is rather that the
storyteller and his audience are spurred by Wakdjunkagas experience in this episode to
reflect on the ethical and moral status of deception, and on the dilemmas that his exploits
raise for each member of the tribe. So, for instance, how are the benefits accruing to
deceivers to be judged, if they must be set against the costs incurred when tricks and lies fray
the fabric of communal trust, i.e., when a deceivers conduct increases the chances that he or
she will become a victim of deceit?
The story that I have been considering, one of many Winnebago tales featuring the
mythical figure Wakdjunkaga, highlights for me the crucial role played by perspective in
determining and evaluating the morality of deceit. In fact, I have adopted perspective as
the starting point for inquiry and unifying concept in this study of Roman deceit. As the
Winnebago tale suggests, the social construction of the ethics and morality of deception is
dependant on perspective, for quite clearly the value placed on deceit is altered when
perspective on the deceptive conduct shifts from that of the deceiver to that of the deceived.
Wakdjunkaga, for instance, deceives others frequently and casually, often treating his victims

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to a loud and scornful guffaw, but when he himself is tricked, as he is by a turkey-buzzard in
one episode (17), the deceiver is in Wakdjunkagas estimation horrible and wicked.
In a context altogether different, Sissela Bok makes this notion of perspective the
linch-pin of her argument for a principle of veracity in Lying: Moral Choice in Public and
Private Life.4 She notes:
Everyone depends on deception to get out a scrape, to save face, to avoid
hurting the feelings of others. Some use it more consciously to manipulate
and gain ascendancy. Yet all are intimately aware of the threat lies can
pose, the suffering they can bring. This two-sided experience which we all
share makes the singleness with which either side is advocated in action all
the more puzzling.

After describing the attitudes, concerns, and psychologies of the two competing perspectives,
deceiver- and deceived-, she continues:

The discrepancy of perspectives explains the ambiguity toward lying which


most of us experience. While we know the risks of lying, and would prefer
a world where others abstained from it, we know also that there are times
when it would be helpful, perhaps even necessary, if we ourselves could
deceive with impunity. By itself, each perspective is incomplete. Each can
bias moral judgments and render them shallow. Even the perspective of the
deceived can lead to unfounded, discriminatory suspicions about persons
thought to be untrustworthy.

With their combined endorsement of the idea that perspective is the crucial factor in
determining and evaluating the ethics and morality of deceit, the mythical Wakdjunkaga and
the philosopher Sissela Bok point to a way of approaching the particular problem that I take
up in this book. The problem to which I refer is represented by the history of dolus. What is
dolus? That is the question of the moment, the very question that Romans of the late
Republic and early Empire sought to answer and, in answering it, to determine the boundary
between culpable deceit and blameless deception. Their attempts to work out the answer to
that seemingly simple question constitute the material that I investigate in chapters Two
through Five.
Dolus lived two lives in ancient Rome, now appearing as a technical term, now as a
word in common Latin parlance. As a technical term with specialized meanings, dolus
(malus) denoted various legal concepts clustered around the notion of intention (in some

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contexts, for instance, dolo malo meant intending to do wrong), which included after a date
certain the concept of intentional deceit or fraud. This appropriation of the technical term
dolus malus to denote legally actionable fraud or deceit was, as we shall see, a watershed
event in the history of dolus. And what of the other dolus? As any reader of Plautus
knows, dolus also had a long history in common parlance and Latin literature as cunning,
trap, trick, deception, and so on, a semantic range which overlapped, but inexactly, the
range of its legal counterpart.
The nature of the relationship between these technical and common usages of dolus is
obscure, and as a consequence the two manifestations of dolus tend to resist joint analysis.
The history of classical scholarship on dolus reflects the difficulty of combining the legal
evidence for technical dolus with the literary evidence for common dolus. In fact, no
thorough study has ever been done integrating the two. In 1874, Moritz Voigt published a
lexical study of dolus that focused on its technical usages.5 Considering dolus together with
several words that will recur here, such as culpa, fortuna, casus, and fraus, he collected and
analyzed instances of such technical legal expressions as (sciens) dolo malo and sine dolo
malo, used in Roman law and jurisprudence to indicate the (witting and) intentional character
of conduct deemed illegal if malicious (45 ff.). He also collected instances of dolus as List,
trickery, and of dolus (malus) as Arglist and Betrug, that is, as deception and (harmful)
deceit (91 ff.). In this second group, in addition to the legal evidence, Voigt included some
references to Latin literature. Attempting to establish as precisely as possible the various
meanings of the Latin word dolus, he compiled a list, by no means exhaustive, of literary
passages for other scholars to use.
Voigts analysis of dolus (malus) as a technical term of Roman law has been
corrected and superseded by more thorough and specialized studies.6 That is all for the good.
But Voigts attempt to straddle the boundary between legal dolus and literary dolus (or, as he
put it, between the juristic and technical, on the one hand, and the vulgar and national, on the
other) is to be commended. Similar attempts have been few and far between. In 1970, the
legal historian Antonio Carcaterra saw his monograph on dolus published, Dolus bonus/dolus
malus: Esegesi di D. 4 3,1,2-3. His primary goal, explication of three important juristic
definitions of dolus malus, led him to look beyond the law to both literature and philosophy,
intending thereby to identify non-legal evidence for the popular Roman attitude toward

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trickery and deceit (115 ff., 215 ff.). Carcaterras monograph is wide-ranging and erudite.
But it must be admitted that his treatment of the literary sources on dolus, although
considerably more detailed than Voigts mere list, is nonetheless episodic at best.7
The instinct of Voigt and Carcaterra, and of Everett Wheeler in a study of the Greek
and Latin vocabularies of military trickery,8 was correct, namely, to take cognizance of both
the legal and the non-technical aspects of dolus. It is not hard to see the consequences of
focusing exclusively on one or the other. For legal historians, a decision to exclude the
literary evidence for dolus is a decision to ignore prime evidence for its ethical and moral
underpinnings. In one usage, for instance, dolus malus can best be understood as describing
conduct contra bonam fidem, contrary to good faith.9 Few would argue that bona fides
was merely a technical term of the law, not reflective to some degree of wider social norms.
Pari passu, dolus malus must at some level and to some degree reflect those norms, which
can best be uncovered by consideration of all available evidence.10
In a similar way, historians and literary critics ignore the legal evidence at their own
peril. Conscious and overt use of Roman law is pervasive in Latin literature, from Plautus
on.11 More subtle appeal to Roman law was also common. Legal reasoning and legal
concepts do have a way of insinuating themselves into non-legal spheres, particularly in
debates over responsibility. Here, the law often serves to inform, when it does not determine,
a finding of moral responsibility and culpability for a given act and its consequences. This is
true especially in the case of deception. The line between permissible deception and culpable
deceit is hard to locate, in part because the implications of that finding are potentially so
great. The situation is different in the case of, say, killing, which is relatively uncommon
outside of war. Deception is a common occurrence, an often unremarkable facet of daily life.
When the line must be found between tolerable deception and immoral deceit, law can serve
as a guide.
A thorough study of dolus must therefore combine attention to dolus as a legal term
with detailed study of dolus in common parlance, as revealed in Latin literature. This book
represents such an attempt. I have studied both types of evidence with a particular goal in
mind, to describe as accurately and thoroughly as possible the ethics and morality of deceit,
in the form of dolus, during the period from the late Republic to the early Empire. The
choice of time period was not arbitrary. In c. 66 B.C.,12 a new legal remedy was made

15
available to victims of dolus malus, understood as fraud. Important limits were placed on
its availability, but the fact remains that it was not until the last half-century of the Republic
that Rome had a general law of fraud. That fact raises many questions. Chief among them,
and the one I pursue here, is the following: what was the effect of the new law, or rather of
the historical, social, and cultural forces that lay behind it, on the Romans of the late
Republic and early Empire?13
This is more than a lexical study, then. As a study of ethics and morality, of a
particular form of trickery and deceit in the Roman context, this study of dolus requires a
suitable methodology and a starting point for inquiry. A special danger in any research into
ancient ethics and morality is over-reliance on scattered passages in literary works from
different time periods. Scholarship of this type is flawed not only because it is ahistorical,
but also because it runs the risk of identifying an ethic or a moral based on an anomalous
idea, one perhaps contained in a traditional maxim of doubtful relevance to a given time
period. In this study, the chapters following Chapter One track a chronological development
from the creation of the praetorian edict on dolus malus (c. 66 B.C.), to Ciceros de Officiis
(44 B.C.), to Vergils Aeneid (29-19 B.C.), to Tacitus Historiae and Annales (early 2nd c.
A.D.). In addition, after the survey of dolus in Latin literature set forth in Chapter One, each
successive chapter is an in-depth study of dolus in a particular sphere or body of work. Here,
I deliberately eschew the episodic approach.
Cicero, Vergil, and Tacitus were obvious choices. Ciceros late philosophical works
give us our earliest notices of Gallus and his formulae de dolo malo. In addition, Book 3 of
his de Officiis is a seminal work in the history of western thought on deceit. Vergil and
Tacitus, for their part, are among a handful of classical Latin authors whose works evidence a
relatively high incidence of the word dolus. Others in this group I dismissed for a variety of
reasons. Plautus is too early. Livy is similar in some respects to Vergil in his use of dolus,
with the obvious difference being Livys greater interest in military stratagems. But Livy is
less nuanced, less thoughtful than the poet. Seneca and Tacitus provide a similar contrast. In
the end, it must be admitted that my choice of Vergil and Tacitus rests somewhat on my
subjective impression that deceit, not just dolus, is a central theme of the Aeneid and the
Annales, but I trust that a majority of readers will agree with my assessment.

16
In analyzing this mass of evidence, I have kept foremost in my mind the experiences
of Wakdjunkaga and the words of Sissela Bok. Perspective is the key. In the history of
dolus, the significance of the deceiver- and deceived-perspectives emerges clearly in the
importance and interplay of two concepts allied to them. I have treated the concept of
intention as the ethical and juridical counterpart of the deceiver-perspective, for reasons set
forth especially in Chapter Two, and I have accordingly adopted Webers term ethic of
intention to describe the paradigm from which Roman society was shifting in the late
Republic. Causation, of a type described particularly in Chapter Three below, serves a
corresponding function for the deceived-perspective, and Webers term ethic of
responsibility describes well the moral paradigm that is increasingly obvious in the sources
of the late Republic and early Empire. (I discuss Webers terms at the end of Chapter Two.)
The five chapters of the book represent an attempt to describe a subtle shift in Roman
society from an ethic of intention to an ethic of responsibility. This shift is discernible only
when evidence from Roman law (technical dolus) is set alongside evidence from
contemporaneous Latin literature (common dolus). Expressed in the terms of this study,
my finding is that some types of unintended deception attract opprobrium in the latter part of
the period studied, and my contention is that this development is best described as a societal
shift from deceiver- to deceived-perspective. The paradigm change, then, was a movement
from a subjective definition of deceit, founded primarily on the perspective of the deceiver
and focusing on the issue of intention, to an increasingly objective definition, which
incorporated to a greater degree the perspective of the deceived victim, and which put a
greater emphasis on the causation of harm than on the intention of the deceiver. In the
Epilogue, I acknowledge the close connection that Cicero, Vergil, and Tacitus establish
between dolus and civil strife, and I suggest that ethical change is a predictable result of
political and social crisis.

Chapter One begins with common or literary dolus. Dolus in All its Guises is a
survey of dolus in Latin literature from Naevius to Tacitus, and it introduces ideas to be
explored more fully in later chapters. The dolus passages are organized under three
headings, cunning (or dolus bonus), trap, and deceit (or dolus malus). My discussion
of dolus in the sense cunning, to which I return especially in Chapter Four, is given over to

17
consideration of the force versus cunning topos in Latin literature. I introduce here
evidence for the well-known Roman bias against the use of trickery in warfare, and I suggest
that the Romans ideological preference for force can best be understood sociologically, as a
byproduct of the close relationship between Roman virtus and gloria. Dolus in the morally
neutral sense trap follows. Here, I maintain, dolus displays two attributes important to this
study, orientation to the future and autonomous functioning, which together have significant
implications for analysis of causation and assessment of responsibility, as Chapter Three will
demonstrate. In the final section of Chapter One, I take up dolus in the sense of
deceit(fulness), in which the notions of falsity and intention to harm are paramount. The
focus here is a contrast between dolus and two related words. Through a contrast with
consilium the transgressive quality of dolus as deceit is brought out, while the importance
of intention in the concept of dolus is revealed by the subtle difference between dolus and its
sometime partner in Latin literature, fraus. My analysis in this section will be particularly
relevant to Chapter Five.
In Chapter Two, Aquilius Gallus and the Formulae de Dolo Malo, I abandon
temporarily the dolus of common parlance and take up its counterpart, dolus as a technical
term of the law. Here I focus on the actio de dolo (malo), the legal remedy for fraud created
by the jurist Aquilius Gallus in c. 66 B.C. After a brief look at the long-standing use of dolo
malo in Roman law to mean intending to do wrong, I argue that in some instances even
before Gallus the technical phrase dolo malo connoted deceit. In this context, I consider the
use of the phrase suo dolo malo to denote instigation of another to perform a prohibited
activity, and here I reintroduce the idea crucial to this entire study, perspective. The
remainder of the chapter concerns Gallus and his actio de dolo. After reviewing the sources
on Gallus himself, I consider his ambiguous definition of dolus malus and his fellow jurist
Servius correction of it to stress the intentional nature of actionable fraud.
Intention emerges as a central issue for legal dolus. In addition to other evidence,
Ciceros fragmentary pro Tullio, although not itself a fraud case, suggests how plaintiffs in
such cases, relying on perspective, might have sought to finesse the intention requirement. In
addition, the later history of the actio de dolo in Roman jurisprudence shows how the concept
of dolus was broadened to encompass, on the one hand, harm not so much intentional as
contrary to good faith, and, on the other hand, harm intentionally inflicted but deceitful or

18
fraudulent only from the perspective of the victim. I conclude with a demonstration of the
jurists sensitivity to perspective and a consideration of Weber and ethics.
Chapter Three, Cui fit iniuria? Dolus and Ciceros Moral Philosophy, turns from
law to philosophy, and from intention to causation. I maintain that the legal argument over
the deceivers intention, understood as an element of actionable fraud, was in fact an
argument about causation. Ideas about causation, I seek to demonstrate here, formed the
basis for the paradigm shift that I identified in the previous chapter. In order to dramatize the
extent of the contemporary debate over deceit and causation, I offer a passage from de
Divinatione, in which Cicero alludes to an imbroglio of 50 B.C., concerning auspices that
were alleged to be false and deceitfully contrived. Next, I elucidate Ciceros mastery of the
rhetorical possibilities of causal argument with reference to his Second Philippic and
Demosthenes On the Crown. The bulk of the chapter, however, is given over to detailed
consideration of Book 3 of de Officiis, where Cicero works out the problem of the
(im)morality of deception, particularly the vexing problem of strategic silence, or
dissimulatio. Here, Gallus definition of dolus malus plays a crucial role; still more
important, however, is the concept of the trap, analyzed in Chapter One. My conclusion in
this chapter is that in his last philosophical treatise Cicero anticipated the legal evolution of
the concept of dolus. Both Cicero and Roman law, that is, shifted the focus of their
attributive inquiries from the deceivers intention to the patent harm suffered by the victim of
deceit. For Cicero, his status as a victim of deceit was to be an important political tool in his
oratorical war upon Antonius.
The Aeneid and the Concept of Dolus Bonus returns to the idea with which the
book began, dolus as cunning, construed here as harmless deception used to confer a
benefit upon the deceived, or as harmful deceit used with justification against an enemy or
other outsider. Ancient sources identify each as a dolus bonus. The poem explicitly refers to
the second type of dolus bonus at 2.390: dolus an virtus, quis in hoste requirat? Like
Cicero, Vergil uses causal concepts to underscore the immorality of all doli, but he goes
beyond Cicero in showing that deceivers cause harm not only to others but also to
themselves.
Perspective was the key to Vergils answer to the question posed at 2.390. Putting
aside for more summary treatment the poems obvious examples of dolus malus, I analyze in

19
detail several problematic doli in the poem, namely, Sinons trickery and the Trojans
stratagem in Book 2, the Trojan boys labyrinthine illusion in the Troy game near the end of
Book 5, Venus amorous wiles in Book 8, and, at the beginning of Book 6, Daedalus artistic
depiction of his labyrinths deceptiveness. I conclude that dolus in the Aeneid is, at one
level, like a labyrinth, as described by Penelope Doob in The Idea of the Labyrinth from
Classical Antiquity through the Middle Ages: from one perspective a bonum, an artistic work
of complex symmetry and ingenious design, but from another perspective a malum, a source
of confusion and terror for someone within the maze. Vergils poem, that is, embraces the
idea of discrepant perspectives on dolus. At a deeper level, however, Vergil rejects the
Greek archaic view of dolus as justifiable, even heroic, for he demonstrates in the episodes
listed above that dolus can cause a confusion of identity and loyalty that fosters civil strife,
revealing that dolus, in other words, is self-defeating.
Seu dolo seu forte: The Suspicious Society of Tacitus Historiae and Annales is
the final chapter in this work. From the Aeneid, I leap ahead more than a century to assess
the fate of what I called earlier a Roman ethic of responsibility, as informed by the
perspective of deceived. I focus here on Tacitus ideas of historical causation. After
justifying my choice of Tacitus as a subject of study, noting in particular his strong interest in
ethical and moral questions, and after demonstrating Tacitus use of dolus in a markedly
objective and negative sense, I take up consideration of Tacitus opposition between dolus
and chance (fors or casus), typically understood as indicating two types of historical
causation.
Through analysis of Hist. 1.80-81, I argue that Tacitus conventional opposition
between dolus and fors is a false opposition, since his text demonstrates the accuracy of both
explanations. Dolus, that is, may be taken as a moral term denoting responsibility for the
foreseeable consequences of ones actions, and fors as an historical explanation of cause,
understood in this episode as an unforeseen suspicion of treacherous intent. Suspicion and
distrust, the neuroses of the deceived-perspective, are the operative ideas here, and they
emerge as causal factors in Tacitus historical world-view. I conclude by examining these in
relation to the canny Tiberius and the guileless Germanicus of the Annales. I argue that
Tacitus wishes these characters to be seen partly as emblems of different ethics of deceit.
Germanicus hails from an idealized past when treacherous intent was a question of fact, not a

20
fiction created by paranoid and often erroneous suspicion, while Tiberius represents a shift to
a neurotic deceived-perspective. Because the perspicacious but guileless Germanicus is
invested with some of the qualities of the historian himself, his death by an assumed dolus is
held out as an object lesson on Tacitus life under the Emperors: regrettably, guile is needed,
both to survive and to write a history that reflects the tenor of the age.

21
Notes to the Introduction
1

New York, 1955.

I note that English wile and victim are apparently related etymologically. See J. Pokorny, Indogermanisches
etymologisches Worterbuch (Bern, 1959) 1. weik- 1128.

W. J. Hynes, Mapping the Characteristics of Mythic Tricksters: A Heuristic Guide, in Mythical Trickster Figures, eds.
W. J. Hynes and W. G. Doty (Tuscaloosa, 1993) 34.

Lying, 28.

Uber den Bedeutungswechsel gewisser die Zurechnung und den okonomischen Erfolg einer Tat kennzeichnender
technischer lateinischer Ausdrucke, Abhandlungen Phil.-Hist. Klasse der Koniglich Sachsischen Gesellschaft der
Wissenschaften 6 (1874) 1-159. By literary evidence I mean not passages in Plautus and Cicero that are
obviously legal in character (all legal historians use these), but literary sources in which dolus is used in a nonlegal context.

I am thinking in particular here of recent work by MACCORMACK, WACKE, and BRUTTI, but one could include many others,
among whom I would cite PERNICE and Mitteis (see Chap. 2, n. 112).

A particularly egregious example is his brief treatment of Verg. A. 8.393. Because Venus has pride of place in the poets
civil theology, and because her doli at 8.393 is aimed at helping her son, the hero of the poem, [n]on poteva,
dunque, Virgilio dare una connotazione di disgusto a dolus, alle astuzie (dolis) che Venere usava per EneaAugusto (129). I shall devote detailed consideration to this episode in Chap. 4 below.

WHEELER, Stratagem, 58-62, 92 ff. But Wheeler is skeptical that the technical legal nuance of dolus carries over into
military and historical texts to any great degree.

See Chap. 2, n. 95.

10

But see Chap. 2, n. 114.

11

For recent work in this vein, see, e.g., William M. Owens, "The Third Deception in Bacchides: Fides and Plautus'
Originality," AJPh 115 (1994) 381-407. Owens focuses on the stipulation orchestrated by Chrysalus at 881-83.

12

The date is discussed in Chap. 2, n. 1.

13

"One approach to the relationship [between law and society] might be by examining the legal changes which are made.
The forces of inertia are so great that each time a legal change is made society reveals something important about
itself (Alan Watson, Society and Legal Change, Edinburgh, 1977, 135).