Bryn Mawr Classical Review

Bryn Mawr Classical Review 2003.04.16

Karl-Joachim Hölkeskamp, Schiedsrichter, Gesetzgeber und Gesetzgebung im archaischen Griechenland. Historia-Einzelschrift, 131.   Stuttgart:  Franz Steiner, 1999.  Pp. 343.  ISBN 3-515-06928-3.  EUR 50.00.  



Reviewed by Eric W. Robinson, Harvard University (ewrobins@fas.harvard.edu)
Word count: 1937 words

This book represents the culmination of years of work by Hölkeskamp (H.) on the subject of early Greek law, including his Habilitationsschrift on which this book is based and a number of important published articles.1 It is an impressive study, thorough and for the most part persuasive, and signals a real advance in our understanding of the subject.

At its heart is the attempt to disprove a common interpretation of early Greek lawgivers and lawgiving: that the great figures featured in classical and later sources (Solon, Zaleucus, Charondas, Lycurgus, and many others) promulgated rational, standardizing, and often comprehensive "law codes" -- codes which to some extent codified pre-existing unwritten law, and which served as a crucial concession by aristocrats to the non-elite classes that were growing increasingly important as the archaic age progressed. Such lawgiving (often arising out of "mediation" of the kind provided by, e.g., Solon at Athens or Demonax at Cyrene) is thought to have helped create the very institutions that Greek poleis exhibit from the late archaic period on down and thus were a central step in the building of the polis itself.

It is easy to understand how one might come to believe something like this picture, which H. is concerned to challenge. Literary sources that discuss early lawgiving, most particularly Plato and Aristotle, make much of great figures like those named above and the importance of their legal creations. While fourth-century and later Greek commentators may individually approve or disapprove of the systems attributed to this or that great man, what comes through clearly from their treatments is the attribution of grand, creative, even heroic vision to the law codes introduced, such that a whole new constitutional order is sometimes said to have come into being. Modern scholars, H. maintains, have often accepted such premises (even if they express scepticism about the details of particular reformers or programs) and have combined the literary portrayals with a few key early laws attested epigraphically to produce a vision of a broad movement in Greece toward the codification of law along rational and more equalizing principles.2

H. considers such reconstructions of archaic lawgiving to be anachronistic and deeply flawed. The first chapter ("Gesetzgeber, Schiedsrichter und 'Rechtskodifikation' im archaischen Griechenland: das Problem in moderner Sicht") describes the issue in the scholarship, criticizing the tendency of many observers to grant enormous historical importance to the great, indeed sometimes mythical, figure of the lawgiver/arbitrator and to see archaic lawgiving generally as abstract, systematic, and consciously progressive. He points out the dissonance between such exalted views, which are necessarily based on relatively late literary discussions, and what we concretely know about the earliest laws. Indeed, H. maintains that it is only through careful study of well-attested individual laws, as opposed to vaguely described programs attributed to wise reformers, that reliable conclusions can be drawn regarding the true context and purposes of early law-making in Greece. He buttresses this line of argument in Chapter 2, "Nomotheten, Aisymneten und Nomothesie in der antiken Tradition: Überlieferungsgeschichte als Quellenkritik." Here he examines the problems created by the ancient (especially fourth-century) interest in lawgiving, focusing on Plato and Aristotle and the tangled traditions on which their and other extant treatments were based. For both Plato and Aristotle law is fundamental to the polis order, and early lawgivers -- at least the most notable ones -- were educators of citizens and theorizers who sought to create superior, lasting orders. Both philosophers critically assessed the impact of individual early laws in terms of the quality of the state which resulted. Their interests were not truly historical, even though they used historical material in their analyses, but theoretical. Furthermore, idealizing motifs stemming from the available traditions become apparent in fourth-century and later sources, and so famous lawgivers were said to have travelled widely and (occasionally) to have been divinely inspired in some way; they studied with or borrowed from each other in crafting their legal systems; ancient communities progressed from a state of anomia to the rule of law with the mediation of a great figure who sought to provide lasting eunomia; there was a need for the lawgiver to leave the scene after his code was complete so as not to compromise the sovereignty of the laws themselves.

Understandably, H. finds this whole picture of lawgivers as saviors of communities and constitutional founders and pioneers of legal theorizing to be unconvincing and a poor basis for discerning what was really going on in seventh- and sixth-century Greece. To reach a much firmer understanding H. proposes the careful study of the attested laws themselves, their form, and their apparent purpose, without preconceived ideas about how they fit into a larger program, constitution or revolution in Greek politics. He undertakes such an analysis in Chapter III ("Gesetzgeber und Gesetze in den Poleis der archaischen Zeit: empirische Daten und Analysen"). Here the laws and lawgiving attested for 53 Greek communities from Argos to Zancle (but not Athens or Sparta) are discussed one by one, whether the sources are literary and tied to specific lawgivers or epigraphical. Most places receive treatments of only a page or two, but some accounts extend to greater length due to a rich literary tradition or key inscriptions; these include Chios, Dreros, Elis, Gortyn, Catana, Corinth, Cyrene, Locris, the Epizephyrian Locrians, Miletus and Mytilene. On the whole H. brings a rather sceptical eye to interpretations of the laws and traditions -- doubting not that they existed at an early date, but that they mean what ancient and modern interpreters have often thought they mean. H. finds that common characteristics of laws both literary and epigraphical are their limited aims and apparently specific intent; they do not show a broad process of compilation or "codification" of earlier unwritten law. H. organizes his results in the fourth chapter ("Gesetze und Gesetzgebung im archaischen Griechenland: Ergebnisse und Perspektiven") where he concludes that the regulations we encounter show an overwhelming tendency to the individual, precise, and narrow, as if aimed at solving particular administrative or legal dilemmas and nothing grander. Thus, fundamentally, archaic law-making appears to have been individual law-making. (This can be seen to apply, H. maintains, even to Solonian Athens, where despite the vast wealth of attested laws, most seem isolated in effect with little if any sense of abstract systematizing or formal constitution-building.) The form and style of language used in the laws are revealing: officials and other referents are precisely named and sanctions are defined and listed, often at some length. Clearly, these were intended to provide solutions to specific problems and to work within existing systems of magistrates and institutions, rather than to found such institutions, for officials of varying responsibilities, assemblies (of some kind), temples, agoras are all presupposed. The laws were written to help secure their binding quality over time and to monumentalize them. Over time and in small increments such lawgiving would have helped in the ongoing process of integration and consolidation of the archaic polis. Peer-polity interaction within a closely interconnected pan-Hellenic culture helps explain the spread of lawgiving around the Greek world, and the later exaltation of great lawgivers in various cities should be seen as a faded, over-simplifying memory of a complex process. Only at the end of this process, with the legislating bodies now of central importance in poleis, could Greeks imagine actual constitutional creation, and envision the great figure of the lawgiver.

H. has argued along these lines in articles before,3 but this book offers the most exhaustive (and, some may find, exhausting) presentation to date. On the whole the argument is compelling. The study's comprehensive nature, with both literary and epigraphical evidence considered in detail from states all across the Greek world, contributes much to its power. Here is not yet another treatment of early Athenian and Spartan legal/constitutional development attempting to portray the Greek experience generally, but a more truly pan-Hellenic view. In fact, Athens and Sparta and their famous lawgivers, while certainly getting frequent mention, are not among the topics individually considered in the third chapter -- understandable given the well-trodden scholarly terrain here and the particular goals of this book, though the exclusion does have consequences (see below).

H. is surely right to reject the not infrequent textbook assumption that the creation of written law was driven by populist desires or conceived of as an egalitarian project. Of course, he is hardly alone in doing so, and it tends to be in older or more superficial treatments of the subject that one finds that line of thinking advanced.4 H. also emphasizes with good reason that the existence of key polis institutions already presupposed by the earliest written laws (including differentiated magistracies, a legislating body, and a public center) locates the importance of lawgiving more in the realm of polis consolidation and enhanced community identity than in foundation of institutions. I am also persuaded -- for the most part -- by H.'s conclusion that archaic laws were overwhelmingly individual, isolated acts of limited scope, neither compilations of previous unwritten law nor frameworks of grand constitutional purpose. Most of the evidence, especially the inscriptions, suits this interpretation, and we need not doubt that in the main this is the right way to view archaic law-making.5 But there may be exceptions to this general picture, and it is possible to question in some cases H.'s narrow interpretations. For one thing, Spartan and Athenian experiences with early lawgiving, which are not systematically presented in the volume, provide evidence that could be employed without too much strain on credulity to suggest a greater potential confluence of lawgiving and significant constitutional change (e.g., the Spartan "Great Rhetra" and a number of Solon's laws). And in at least two other cases one might reasonably take a different tack than H. The famous inscribed law from Chios of c. 575-550 BC, for example, could represent a rather more important constitutional measure than H. suggests. The detailed provisions describing the meetings, responsibilities, and membership of a bole demosie (popular council) imply a major overhaul -- if not indeed the outright creation -- of a civic body with crucial responsibilities in the government of the polis. Even granting that the law does not in itself represent a whole constitution or codification, to categorize it as one more merely "concrete" or "procedural" measure seems rather stingy. Furthermore, the attested reforms of Demonax at Cyrene, which included the implementation of a new tribal system and the removal of ruling power from the king and placement of it "in the middle for the people" (es meson to demo), could be interpreted as an act of significant constitutional change, and not merely as a narrow problem-solving measure by an arbitrator.6 H. seems to acknowledge as much by including the Cyrene reforms alongside Cleisthenes' fundamental restructuring at Athens as examples of the ability of citizen bodies, at the end of the long process of archaic lawmaking, to harness at last their own legislative power to reconstitute their communities.7

The volume is produced cleanly and has a hefty bibliography and separate indices for names, subjects, and ancient source citations. H.'s footnotes are plentiful and full of helpful references. The only caveat here is that scholarship dating from after his 1991 Habilitationsschrift and included in the bibliography is not always as fully integrated into the discussion in the body of the volume as are earlier works, but this is only to be expected. On the whole H.'s book makes a compelling, thorough and insightful contribution to the study of early Greek law and should not be overlooked by scholars or advanced students interested in any aspect of the subject.


Notes:


1.   "Written Law in Archaic Greece," PCPS 38 (1992), 87-117; "Arbitrators, Lawgivers, and the 'Codification of Law' in Archaic Greece. Problems and Perspectives," Métis 7 (1992/1995), 49-81; "Demonax und die Neuordnung der Bürgerschaft von Kyrene," Hermes 121 (1993), 404-421; "Tempel, Agora und Alphabet. Die Entstehungsbedingungen von Gesetzgebung in der archaischen Polis," in H.-J. Gehrke (ed.), Rechtskodifizierung und soziale Normen im interkulturellen Vergleich (Tübingen, 1994), 135-164; "Nomos, Thesmos und Verwandtes. Vergleichende Überlegungen zur Konzeptualisierung geschriebenen Rechts im klassischen Griechenland," written for the recent D. Cohen and E. Müller-Luckner (eds.), Demokratie, Recht und soziale Kontrolle im klassischen Athen (Munich, 2002), 115-146. He has also recently published "(In-) Schrift und Monument. Zum Begriff des Gesetzes im archaischen und klassischen Griechenland" ZPE 132 (2000), 73-96.
2.   For elements of this approach, see J. B. Bury and R. Meiggs, A History of Greece, 4th ed. (London, 1975), 104; A. Snodgrass, Archaic Greece (Berkeley, 1980), 118-120; M. I. Finley, Early Greece (New York, 1981), 100-101; M. Grant, The Rise of the Greeks (New York, 1987), 14, 232-233.
3.   See note 1.
4.   Indeed, H.'s determined argument and easy movement between classical Greek and modern views of early Greek law sometimes creates the impression of a more monolithic scholarly opposition to his perspectives than may currently exist. Prominent studies arguing similarly against assuming a democratic purpose or demand for written law include M. Gagarin, Early Greek Law (Berkeley, 1986), 121-126; R. Thomas, "Written in Stone? Liberty, Equality, Orality, and the Codification of Law," in L. Foxhall and A. D. E. Lewis, eds., Greek Law in its Political Setting (Oxford, 1996), 9-31 [also published in BICS 40 (1995) 59-74]; and R. Osborne, Greece in the Making (London, 1996), 187-190. See note 2 for a few general works voicing the populist interpretation.
5.   Rosalind Thomas' article (see previous note) sounds many of same themes as H. in this regard. Where she diverges, and moves to a more speculative argument, is in her positing of a continuing predominant role for unwritten law throughout the process, going so far as to say that "the monumental inscription of a law was intended not only to fix it publicly in writing, but to confer divine protection and a monumental impressiveness on just those kinds of law which did not receive the time-honored respect accorded the unwritten laws and customs." (31) H., while also incorporating into his thinking the monumentalizing aspects and religious connections of early written law (most early laws were displayed on or kept at temples), stresses to a greater degree the polis' perceived need for legal objectivity, stability and permanence.
6.   H. on Chios: 80-86; on Cyrene, 165-172 (as well as the relevant article listed in note 1). My interpretations of the constitutional implications of the measures enacted in these two poleis are detailed in The First Democracies (Stuttgart, 1997), 90-101 and 105-108.
7.   Pp. 284-285.

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