Maintenance of social order is essential to all communities and thus the study of law tends to be comparative, examining the differences, similarities and developments in the means of defining and enforcing rules of behavior. Another thrust toward comparison arises from the perspective of any writer on the subject: the prevailing definition of justice provides a frame of reference that must either be acknowledged or overcome in examining the definitions reached by other societies.
R. Sealey’s most recent book testifies to the value of such a perspective. The Justice of the Greeks has the Greek concept and practice of justice as its central focus, but the Greek definition is set over against earlier, contemporary and later beliefs. In providing a context that stretches from early Mesopotamian to modern concepts of law by way of the Hittites, Hebrews, Romans and early Germanic peoples, S. accomplishes far more than offering “control groups” (70) for the Greek case. As my colleague Sandra Joshel asserts, an understanding of a culture’s system of justice furnishes a sure clue to the whole social fabric of that culture. That assertion is beautifully demonstrated in this study.
Several basic tenets underlie the account. Carefully defined at the outset in an initial chapter presenting the scope of inquiry, they guide the discussion through the remaining five chapters. Presented first because of its importance to the entire treatment is the belief that law or justice “springs from normative ideas embedded in the Indo-European vocabulary” (ix). It follows that the author treats the history of law not as social history but a branch of intellectual history, developing in accord with the normative ideas of a given society. Coupled with this tenet is another: normative ideas “were first given practical and institutional effect by the Greeks of antiquity” (ix). A main element in the Greek development was the invention of codes of prescriptive law, which were understood in ways different from those of the Romans and modern nations.
Attribution of “invention” to any people can raise a red flag of implied superiority. No such charge can be leveled against S. who consistently avoids judgment both for or against the Greek belief. “It is not legitimate,” S. cautions “to regard the modern law of crime as a goal toward which ancient societies were developing” (131). Therefore, “One can recognize merits and defects in different systems …. but historical inquiry need not embark on the limitless enterprise of assessing merits and defects. Its task is to understand” (55). (Cautious as he is, however, S. cannot erase admiration for the communal procedure of the Greeks over the centralized character of Near Eastern justice.)
In developing these theories, S. relies heavily on philology, citing and discussing the primary evidence fully. Equally essential to an understanding of justice, in the author’s view, is the comparative and theoretical study of law. He acknowledges a large debt to H.J. Wolff, E. Ruschenbusch and G. Thür but his use of secondary sources is as impressively wide-ranging as his knowledge of the primary material.
After the scope of inquiry is defined, the discussion turns to an examination of Greek codes in relation to other ancient compilations. Chapter three considers the unity of Greek law while the next two deal with procedure, specifically the resolution of disputes in Greece generally and, in Chapter Five, in Athens. The development of compulsory litigation out of a condition of uncontrolled self-help is convincingly reconstructed. The book concludes with an excellent summation that draws together the several threads of discussion, “To Each his Due or Athenian Procedure Refined,” in which Greece is again counterpoised against Rome and Mesopotamia.
While the book must be read in its entirety to gain an appreciation of its conclusions, it may be useful to point to a few of the major findings. Examination of the law codes of Lower Mesopotamia reveals that they do not consist of prescriptive rules; when copied on clay tablets, the codes took on a literary not legal character (33). Evidence from other Near Eastern cultures leads to similar conclusions. By contrast, the Greek concept of justice took the form of prescriptive law codes, even though—as S. cautions—the word “code” is not applicable to the Greek lists of laws (55): the Greeks did not conceive of law as a continuum, they had no collective word for a body of law, equivalent to “ius” (57), and there existed no legal profession. Concept and procedure alike rested on the Greek view of the privileged role of individual members of the community rather than a belief that justice as well as status descended from a centralized, kingly authority.
In tracing his subject, S. has made an immense contribution to the field of legal history. Moreover, in taking the large perspective, his contribution is even more extensive. Like Walter Burkert, he examines the Greek sphere in its larger geographical and chronological context, fairly assessing the notions of each culture. And in looking to the role of members of the Greek communities, the study becomes a cogent social history of Greece, probing the status of citizens, metics, manumitted slaves and women. Since the difference in the Greek conception is tied to a notion of the individual’s relation to his community, the issue of communal consciousness—the emergence of the polis—is a central feature of discussion.
The “Homeric Question”, too, enters the account: “Homer composed for audiences who understood the same diplomacy” (100). S.’s stance on the question of unwritten/written law is particularly pleasing, at least to this reader. He appreciates the development from unwritten rules into later forms: “It follows that adoption was already practised before Solon issued this law. His law did not make an innovation out of nothing; it regulated a practice that was already current” (121). Although some changes may be unavoidable when customs are reduced to writing, the content is not fundamentally altered.
At the level of specific issues, the account is consistently excellent. The trail of “dike” (101 ff, 119 ff and 138 ff) stands out as a prominent example of the care taken with the presentation of evidence, nature of analysis and construction of the presentation. The sources, primary and secondary, guide the discussion. Theories of others are fairly presented and assessed in a balanced manner but S.’s own position is always clearly stated.
Reliance on philological evidence demands an abundance of foreign terms—Latin, Greek, but no cuneiform (!), German and French primarily, all carefully defined with illustrations that give the meaning in readily identifiable settings: for example “recht” may be a body of law or the right of a householder to plant onions in his front garden (4). Such “homely” definitions are enhanced by charming turns of phrase: “The language chosen by Professor Watson is less rhythmical than that of Hesiod, but both say the same thing. …. it is usually better for men to go to law than to eat one another” (102).
The book is a model of construction, cohering from start to finish, within chapters and between chapters. References to issues treated previously or to be treated subsequently guide the reader through the entire account so deftly that the book should be a case study for use in university writing centers.
Sealey openly states his challenge in undertaking the study: “the rule of law … is not often defined and it is not easy to define” (23). The Justice of the Greeks renders at least the last portion of that statement no longer accurate.