Bryn Mawr Classical Review 2005.04.44
Edward M. Harris, Lene Rubinstein, The Law and the Courts in Ancient Greece. London: Duckworth, 2004. Pp. 240. ISBN 0-7156-3117-9. £45.00.
Contributors: Edward M. Harris, Lene Rubinstein, Robert Parker, F. S. Naiden, James Sickinger, Christopher Carey, Peter J. Rhodes, Adriaan Lanni, Michael Gagarin, Angelos Chaniotis
Reviewed by Peter Hunt, University of Colorado, Boulder (email@example.com)
Word count: 3115 words
Grand theories and bitter controversies have made Greek Law an exciting field in recent years;1 the essays in this collection, however, are unlikely to stir the blood -- much less to set it boiling. The authors often argue for moderate, compromise positions. Rather than the bold generalization, they tend towards the nuanced and complex view, often after a careful and comprehensive consideration of the relevant evidence. Alas for excitement and strife, I suspect that most of these essays are closer to the truth than some of their more extreme and flashier predecessors. Professors Harris and Rubinstein are greatly to be thanked for putting together this valuable collection of essays by a distinguished group of contributors.
The book contains an introduction and nine essays. These are grouped in four sections. The essays in the first section, "Law, Religion, and the Sources of Legitimacy," argue for a complex relationship between religion and law rather than a contrast between the two or a progression from divine to man-made or polis law. The second and third sections, "The Role of Law in Athenian Courts" and "Legal Arguments in the Attic Orators" contain chapters relevant to the extent and nature of the rule of law in Athens. These essays are too careful and detailed to fit into a simple "modernist" mold, but most of them counter -- persuasively for the most part -- the more radical contrasts scholars have made between ancient and modern legal practices and thought. The last section deals with two examples of "The Rule of Law Outside Athens," the legal system of Gortyn and the application of legal concepts to the relations between states.
In the introduction, Harris and Rubinstein put the collection in the context of two related questions. First, the ideal of a rule of law was widely affirmed, but it is unclear whether the Athenian courts, about which we know the most, were primarily concerned to apply the law to specific cases. Notable scholars have argued that Athenian trials were "contests in which members of the élite competed for honour and status, often through a declaration of their allegiance to democratic ideology and a display of wealth which the litigants claimed to have spent for the benefit of the community" (2). As I mentioned above, the essays in the Athenian sections (II and III) tend to undermine the evidence on which the more extravagant of such views rest. Harris and Rubenstein also adduce a second possible objection to a strongly political view of the courts: if the courts were so essentially political, shouldn't the legal system have had a different complexion in oligarchic and in democratic states? Harris and Rubenstein suggest that a consideration of the law outside of Athens is not only important in itself but may also help us to evaluate arguments about Athenian law. The rest of the introduction summarizes the individual chapters to follow.
Edward Harris's "Antigone the Lawyer, or the Ambiguities of Nomos" is a long and ambitious essay. Harris does not see a conflict in Sophocles' Antigone between the laws of the polis and those of the gods -- a dichotomy that Naiden and Parker also reject in their chapters. Rather, Harris argues that the Antigone explores a distinction within the nomoi of the city, those with and those without full legitimacy. Creon believes that whatever the king orders has the full force of law. Antigone's case is that Creon's decree is not a legitimate law since it is not in harmony with the will of the gods and the consensus of the community. Harris holds that Antigone's position would have received the more sympathetic hearing at Athens. To begin with, the Athenians were evidently proud of their own legendary efforts to force the Thebans to bury Polynices and his allies: how could they not sympathize with Antigone's struggle towards the same end (38-39)? More significant for the topic of law, Harris shows that the Athenian democracy was far more concerned that magistrates act in accordance with established laws than that they be obeyed unconditionally -- the latter was more of a Spartan trait (34, 46). These are strong arguments, but one might object that Sophocles and his audience did not necessarily subject the actions of a legendary king to the same standards as applied to Athenian magistrates -- e.g. 46 on Creon's failure to allow Antigone a fair trial. Nor does Antigone's surreptitious burial of her brother fit easily into the mold of the public and legal disobedience of a magistrate's orders that Harris argues was accepted at Athens.
Robert Parker's essay on "What are Sacred Laws" is a concise and illuminating critique of the modern category of "sacred laws." Collections of Sacred Laws such as those by Sokolowski are "not just heterogeneous one with another, but also not sharply delimited within a much larger body of material" (67). Parker identifies and gives examples of two distinct "ideal types" within these "Sacred Laws" (65). First, some rules and regulations concerning sacred matters -- "don't cut sacred wood" -- were decreed by a body of the state, such as the assembly, and enforced as any other law would be. Other "laws" regulating proper ritual practice "derive from exegetical traditions," but were more like advice or the codification of tradition than like a law with sanctions attached: who would want to sacrifice a goat to the Graces if such a act was οὐ θέμις(62)? Some documents don't fit easily into either of these categories: funerary legislation, religious calendars, and rules governing priesthoods -- which regulate perquisites but also purity requirements. Nevertheless, these two ideal types are more precise than the single "baggy" category of Sacred Law and are well illustrated in this admirable short essay.
F. S. Naiden's excellent chapter, "Supplication and the Law," argues for an intimate relationship between religion and law. He opposes theories such as those of Martin Ostwald, that in the fifth century man-made law replaced the religious rules of supplication, and John Gould's argument that the two remained in opposition.2 Rather, Naiden details the four stages of supplication and shows that the man-made laws of the polis can play a part in each (72-80). In the course of this investigation, he also provides cogent evidence that there was no religious requirement that a supplicant's case be accepted. But, by Naiden's own account, when the laws of the state and religious considerations are "intertwined," the laws of the state often limit the opportunities for supplication. For example, slaves are accorded the rights of suppliants only in certain temples (73), and litigants who were found guilty were forbidden to supplicate the assembly to overturn their convictions (75 on Dem. 24.51-52). These cases sometimes imply an opposition in which man-made law seems to trump religious considerations and may even provide some support for a shift in importance.
Modern "rule of law" requires that the laws themselves be available for consultation and citation in court. Scholars taking the agonistic view of Athenian legal process tend to emphasize the difficulties that a litigant would encounter in finding the law applicable to his case and highlight the possibility of contradictions between different laws: how could Athenian litigants discover what the law on a particular issue was?3 In his thorough and persuasive chapter, "The Laws of Athens: Publication, Preservation, Consultation," James Sickinger takes as his starting point that the citation of appropriate laws was common in law-court speeches (94). He is therefore entitled to consider "How could Athenian litigants find the relevant law?" as a neutral rather than a critical and rhetorical question. Sickinger tries to answer this question with as much precision as possible, given the paucity of evidence. He argues that the stelae containing laws were not spread randomly throughout Athens, but were collected in particular places according to some rationale: many would have been located at the office of the magistrate whose duties were related to a certain type of case (95-96); in the fourth century the Metroon contained a large collection of official documents including laws (102-104). The difficulty of knowing whether a law had been superseded was also not so daunting: Sickenger emphasizes that the Athenians attempted to maintain consistency between new and old laws (98) -- and we have no reason to think that the most commonly-cited laws changed very often. He concludes with the observation that no speech complains of any inability to find the appropriate law: "This accessibility did not guarantee the success of the rule of law. It did help lay a foundation on which the rule of law could be built" (106).
In Against Androtion (22.25-27), Demosthenes pauses to deliver a lecture on a question in Athenian legal theory: why did Solon -- to whom he attributes the design of the laws -- establish several legal procedures for a single crime? Demosthenes explains that Solon established different means of redress appropriate to the different types of Athenians who might need to prosecute. For example, there were high profile and risky procedures for the rich and confident and low-risk procedures for the poor and unsure. This explanation certainly harmonizes well with recent theories that emphasize the procedural and ideological safeguards of the rights of poor citizens in the Athenian democracy.4 But in his magisterial "Offense and Procedure in Athenian Law," Christopher Carey warns that "there is a danger when one is confronted with an elegant and seductive model that recalcitrant details will forfeit their place in the sun" (114). To begin with, Demosthenes is not propounding this theory in order to educate the juror, but for his advantage in the case at point (112-113). Indeed, when Hyperides has occasion to hold forth on the varieties of legal procedures, he implies that the procedure depends on the type of crime (114 on Hyperides 3.4-6). Carey surveys all attested procedures and charges to determine the extent to which Demosthenes' generalization is true. He concludes that "procedural flexibility was a less pervasive feature of the Athenian system than an innocent reading of Demosthenes would suggest"(129). Many crimes could be persecuted only by γραφή (a public charge); others were only subject to a δίκη (private charges). When there was a choice, it depended not only on the prosecutor's preference but "the circumstances of commission, the circumstances of detection or the chronological point of intervention" (129). Carey does admit some degree of procedural flexibility especially in the direction of a "fall-back" low-risk procedure and allows that this could ensure some legal remedy even for the poor and weak (130-131). He concludes by arguing that the retention of different procedures for a single crime was not probably not merely an unforeseen result of the accretion of laws, but that it probably has a complex rather than a single explanation, such as the one Demosthenes presents.
Peter Rhodes's chapter on "Keeping to the Point" provides an equally valuable critique of a seductive generalization, that Athenian litigants ignored the facts of the case and spent their time on irrelevant character assassination or self-praise. This charge, first made by contemporary philosophers critical of the democracy, has recently proved congenial to scholars arguing for an agonistic model of the practice of Athenian law, that Athenian trials were more a contest of status and rhetoric than concerned with the law and its application (137). Rhodes admits that he himself exaggerated the amount of irrelevant material in courtroom speeches, but revises this view here. The body of the chapter consists of a survey of the corpus of forensic oratory. Based on this, Rhodes concludes that there are only a few speeches that contain a large proportion of irrelevant material. Most digressions from the legal issue fall into a few main categories (155-156): litigants often felt that they needed to set the particular case in the light of the "larger picture" of an ongoing dispute; some procedures, such as the dokimasia , readily allowed a discussion of the litigant's whole life; synegoroi may have dwelt on the litigants' character since the legal and factual issues had already been addressed. Rhodes's conclusions may seem to take some of the air out of the sails of an exclusively agonistic theory of Athenian legal procedure -- though I'm not sure if anybody has actually held such an extreme view. One would, nevertheless, not want to call the Athenian practice modern -- and Rhodes does not: to say that only a small proportion of the testimony in a United States trial was prejudicial and inadmissible, would not delay the declaration of a mistrial for even a minute.
"Arguing from 'Precedent': Modern Perspectives on Athenian Practice" by Adriaan Lanni provides another thorough and useful investigation of a possible parallel between ancient and modern legal systems. Although the citation of binding precedent is not a necessary part of a modern rule of law, it does tend to ensure consistency in the application of the law. But the Athenians could not have used such a system since there was no public record of a court's ratio decidendi and so nothing more concrete than an appeal to collective memory was possible (164-166). Indeed, since the "court" often consisted of five hundred jurors who voted without deliberating, all claims about their reasoning would necessarily have been speculative. Nevertheless, Lanni's survey of the extant law court speeches reveals that about one fifth of them contain an appeal to earlier judicial decisions. This could be interpreted as indicating "a doctrine of persuasive [but not binding] precedent" (159). Lanni does not even go that far. The references to past cases fall into three roughly equal classes. First, in some cases there is nothing more specific or concrete involved in the invocation of precedent than an exhortation not to be "soft on crime" (161-162). The next class consist of a fortiori arguments based on the social status of the defendant: if a noble Athenian was punished harshly for a mistake in ritual, how can you spare Neaira, a common prostitute (162 on [Dem.] 59.72-86)? Only the third group, comprising some eight cases, involves the reconstruction of the rationale behind earlier decisions and an attempt to show how it should apply to the case in hand. Lanni also considers the argument that a jury's decision will influence future behavior in the city. This argument tacitly assumes that a case will set a precedent for future decisions -- hence acting as a deterrent to would-be criminals -- and has been termed a "prospective precedent" (166). Lanni tries to avoid this implication, by arguing that the logic is spelled out only in two cases: only there is it explicitly stated that one decision will influence others. These two cases deal with new issues and thus can be considered exceptional. Lanni concludes that references to precedents tend "to provide an aura of consistency to a system that was all too unpredictable" (168). Her arguments about the impossibility of binding precedent and the rarity of true arguments of persuasive precedent are compelling, but whether the decisions of Athenian courts were actually predictable or not is a larger and more complex issue, one that could benefit from further consideration.
Michael Gagarin's "The Rule of Law in Gortyn" is brief, but useful and persuasive. He considers the extent to which a commitment to the "Rule of Law" was in evidence in Greece as a whole and in particularly in Gortyn, whence our second-best body of legal evidence comes. Gagarin identifies three common criteria to discern the rule of law: disputes are resolved by law rather than by violence; no person is above the law; legal decisions are isolated from extraneous considerations especially political ones (173). Gagarin first considers evidence from Herodotus and Thucydides that shows a broad Greek commitment to the rule of law so defined. Then he turns to the code of Gortyn, which gets us a bit closer to actual practice -- if not quite there, as Gagarin acknowledges. The high prestige of law is clear in the effort Gortyn made to inscribe its laws: virtually the only inscriptions from the period are the laws, inscribed in public places such as temples -- and sometimes in very large letters (177). The code begins with the injunction that "whosoever may be likely to contend [in court] about a free man or a slave is not to seize him before trial" (178). Gagarin endorses the interpretation that "this initial provision does establish the principle that law, not self-help, should be one's first resort" (178). The code also implies that the kosmos, the most important official in government, was subject to the laws (178-9). This satisfies Gagarin's second criterion. Finally, in several instances the code directs that decisions should depend on the content of a litigant's arguments and implies that witnesses will attest to the facts of a case rather than to a litigant's good standing or connections (179-180).5 Although Gagarin is quite aware of the likelihood that practice did not live up to theory, he does provide strong arguments that a commitment to the rule of law -- in terms very close to the modern ideal -- was affirmed in Gortyn and probably throughout the Greek world (180).
In "Justifying Territorial Claims in Classical and Hellenistic Greece: The Beginnings of International Law," Angelos Chaniotis argues that states grounded their claims for disputed territory on a few basic and generally accepted principles and that it is not far-fetched to regard these as the international law of the Greek city-states. Chaniotis first illustrates a consistent ancient distinction between de facto possession and just ownership. The latter was based on four "lawful" modes of acquisition: inheritance, purchase, donation, and conquest. Chaniotis's fascinating discussion of the first three reveals the subtleties of their application and telling parallels with the law of property within a state. To call conquest a legitimate mode of acquisition, however, appears contrary to his earlier case for a distinction between de facto possession and just ownership.6 Chaniotis tries to resolve this quandary by recourse to the argument that "Conquest in general does not create the right of ownership, but only violence undertaken as a result of provocation or as vengeance for injustice" (197). This ends up making the originally straightforward "right of conquest" parasitical upon the complexities of a war's justification and, in addition, does violence to the claims, of which Chaniotis is aware (194-196), that conquest justifies ownership simpliciter. Chaniotis' original project of arguing for unanimity leads to an odd treatment of an issue on which opinions were manifestly divided or ambivalent. The article is successful in its main goal in suggesting a broad consensus about the justification of territorial claims, but -- especially given the status of "right by conquest" -- perhaps we should reserve "law" for something more systematic than this.7
1. See, for example, the opposed views of David Cohen (1995), Law, Violence and Community in Classical Athens and Gabriel Herman (2000), "Athenian Beliefs about Revenge: Problems and Methods," Proceedings of the Cambridge Philological Society 46: 7-27 with further bibliography to this debate in the latter.
2. J. Gould, "Hiketeia," JHS 93 (1973) 74-103; Martin Ostwald, Nomos and the Beginnings of Athenian Democracy p. 55.
3. E.g. Stephen Todd, The Shape of Athenian Law 55-58.
4. E.g., Josiah Ober, Mass and Elite in Democratic Athens esp. 332-339.
5. Contrast Stephen Todd, "The Purpose of Evidence in Athenian Courts," in Paul Cartledge, Paul Millett, Stephen Todd, eds., Nomos: Essays in Athenian Law, Politics, and Society, 19-40.
6. In this context, one misses a discussion of Thucydides 3.52.
7. Even today "International Law" notoriously lacks the backing of strong sanctions, but the term does imply systematic and detailed regulations.