Table of Contents
This Companion has five divisions: Part 1: Law in Greece, Part 2: Law in Athens I: Procedure, Part 3: Law in Athens II: Substantive Law, Part 4: Law Outside Athens, Part 5: Other Approaches to Greek Law. The editors plus eighteen other scholars contributed a total of twenty-two articles. Despite the suggested breadth -- ancient Greek law -- the majority of the contributions treat topics in ancient Athenian law, not surprisingly since the greatest quantity of evidence comes from Athenian sources.
The dominant feature of the book is manifested in the selections by a decided preference for innovation over tradition in the study of Greek law. This feature is unabashedly announced in D. Cohen's unusual and "highly personal" (p. 26) introduction, which becomes a virtual polemic pitting the innovations of British-American scholars over the "last twenty-five years" (p. 1) with their "change[s] in presumptions," and revolutionizing methodologies (p. 2), against the older continental, and especially German tradition of scholarship in ancient Greek law. The editors' purpose is to provide an "exciting variety of intellectual and disciplinary perspectives" (p. 2), representing the "simultaneous intellectual growth of the disciplines of classics and legal, social, and cultural history" (p. 2), to destabilize "orthodox paradigms" (p. 2) and "[to explode] the boundaries of the study of Greek legal history" (p. 3). Thus the editors have provided not so much a handbook as an eclectic collection, setting a greater number of innovative pieces against the foil (as it might appear) of a few more traditional ones, "to provoke [readers] to join the ongoing enterprise" (p. 26) of this new and expansive study.
This principle of selection provides a convenient structure for review. Instead of a serial approach, we strike a division between traditional and innovative pieces. We take as tradition those so designated by Cohen and those, while not so classified, displaying no intention to stretch boundaries or undermine orthodoxies.
The traditional articles begin with Gerhard Thür's "The Role of the Witness in Athenian Law" (located in Part 2). Thür explicates the procedural norms for witness testimony and its function as proof in Athenian litigation. Pursuant to available compulsory process, witnesses were required to appear at preliminary hearings known as anakriseis, which were connected to private actions, and at public arbitrations (diaitai), which served the function of preliminary hearings when litigants refused the arbitrator's decision and proceeded to trial on the same matter (p. 156). At these proceedings witnesses performed one of two mutually exclusive functions. They confirmed that they would verify at trial the pre-formulated pre-trial statements, or they denied the truth of such statements by swearing an oath known as an exomosia, which in turn exempted them from the obligation to so testify at trial. Athenian witnesses, therefore, were not an independent evidentiary source for the development of factual knowledge through the process of litigation, but part of a complex procedural mechanism ordered more to the formal presentation of opposing positions. Thür concludes "that the witness in an Athenian trial was -- from a legal perspective -- a helper of one of the litigants more than an instrument for judicial truth finding" (p. 165).
Cohen's particular comments about this piece bring sharp focus to the Companion's spirit of preference for the newer methodologies of studying Greek law. Thür relied directly on the analysis of extant written material and was transparent both in his argument and in the delimitation of his conclusions. He did not engage with larger interdisciplinary concerns. In setting his results against the most recent work of the last twenty-five years, he had occasion to refer to scholars who utilized new approaches, e.g., the examination of "the rural mentality of face-to-face society," (p. 164), the use of comparative perspectives drawn from "other Mediterranean agonistic societies," (p. 164), and similar interdisciplinary methods. The contrast between Thür's approach and those which he identifies crystallizes for Cohen an antipathy between the traditional and the innovative. The latter "emphasizes detailed technical exposition of ... legal norms and ... procedure" (p. 13), the former represents the new approach of "Anglo-American methodologies" (p. 13). The contrast appears so vividly to Cohen that he sees "an attempt [in Thür's comments] to communicate across a methodological divide that cannot be easily bridged" (p.14).
Most of the articles grouped in our first division eschew, as did Thür, interdisciplinary approaches in favor of broad introductions or attention to the interpretation of specific written texts.
In "Law and Religion" (located in Part 1) Robert Parker treats sacred laws and oaths. He draws largely from inscriptional evidence ranging from the fifth to second century B.C. as well as from Athenian forensic oratory. He begins with the irreducible point that there was no fundamental separation between religion and politics in the polis. He then classifies four types of polis-implemented law prescribing "impiety:" (1) "wrongdoing concerning a festival;" (2) "theft of sacred money;" (3) "impiety" (a general prohibition with no specified limiting content); and (4) "temple robbing." When he moves on to oaths, he attempts to sort out the place of the "action-deciding oath" (p. 72) in the intersection between law and religion. He ends with a reflection on the relation of religion, law, and morality, drawing in part from the famed historian of ancient law Henry Sumner Maine, the only contributor in the book to mention this venerable scholar.
S. C. Todd in "Law and Oratory in Athens" (located in Part 2) aims "to use the medium of [lawcourt] speeches to introduce the study of fourth-century Athenian law" (p. 97). As to subject matter this article could certainly be grouped with Lanni's, Rubinstein's, and Yunis's (also in Part 2), all of which are classified by Cohen as the work of that new generation of scholars pursuing innovative approaches to rhetoric and law. However, Todd's aim is not to innovate, but to provide background useful to someone new to the field. Thus he identifies the Attic Orators, discusses the number and types of oration, and considers patterns of evidentiary survival in the extant speeches and the possible distortion created by what survived measured against what did not. He also introduces the practice of logography, distinguishing the roles of speech writers, patrons, litigants, witnesses, sunegoroi, and jurors. He emphasizes the narrative form of the presentation of cases in the Athenian courts (striking if viewed against modern models), to prepare the way for subsequent articles which examine more particularly the rhetorical context of Athenian trials.
Alberto Maffi's contribution "Family and Property Law" (located in Part 3) is for Cohen a kind of relic which "in an earlier period ... would have found its place in the central core of Greek legal studies" (p. 17). The reason is that Maffi demonstrates (again per Cohen) a "mastery of the sources of Athenian law" and "concentrates on doctrinal analysis," but eschews "interdisciplinary methods or comparative analysis" (p. 17). Indeed, Maffi only presents a succinct overview of the essential substantive matter which must anchor any application of interdisciplinary or comparative examination. He highlights the most salient details of marriage, inheritance, guardianship, power over slaves, and rights pertaining to property ownership, including the types of absolute and partial transfers of interests therein, all in the fundamental legal context of the oikia. Thus Maffi provides an outline of the irreducible essentials of classical Athenian family law.
In similar fashion, Edward E. Cohen presents in "Commercial Law" (located in Part 3) an overview of the Athenian law of land and maritime commerce. Thus agora transactions were relatively simple in form and free of governmental regulation, but the transactions of the emporion were complex, regulated, and replete with written documentation. Landed exchange, in the absence of executory contracts, was strictly "cash for goods and goods for cash" (p. 294). Pragmatic necessity, however, generated compensating legal fictions which amounted to various forms of sale on credit (pp. 294-95). Transactions of this sort were cognizable at law only in the sense that "Athenian courts simply (and uniformly) recognized as legally enforceable 'whatever one party has agreed on with another'" (p. 296, quoting Dem. 47.77). The polis as a regulatory power took no interest in them. Maritime transactions presented a stark contrast. Because of the importance of grain transport to Athens, polis regulation was pervasive. Maritime commerce was completely dependent upon intricate multiparty financing so that complex written contracts (unheard of in other forms of business until much later) were the rule from "the very beginning of the fourth century" (p. 297). Such complexity gave rise to specialized maritime courts with jurisdiction and procedural rules distinct from the other Athenian courts. They were characterized by "supranationality of access," "rapidity of process," "rigor of process," and "enforcement of judgments." E. Cohen, like Thür and Maffi, presses primary source material for the sake of definite, even if limited, conclusions.
John Davies, Hans-Albert Rupprecht, and Joseph Mélèze Modrzejewski each offer a contribution in Part 4, "Law Outside Athens:" Davies on the Gortyn inscriptions, Rupprecht and Modrzejewski on Greek law in Hellenistic society. Since these topics are likely to be less familiar to the general reader, the contributors have appropriately limited their pieces to introductory overview.
Davies in "The Gortyn Laws" begins with the sources, noting that the generally familiar "Gortyn Code" was in fact just one of a larger body of legal inscriptions ranging in age from "the end of the seventh to the mid fourth century B.C.E" (p. 306). He points out that these inscriptions are the only survival from an otherwise silent Cretan literary tradition and that this void causes "intractable problems" for interpretation of the legal texts. Accordingly he limits his article to a survey of "the contents of the Little and the Great Codes" (p. 307) and divides his treatment into such categories as litigation procedure, personal status, and issues pertaining to family, property, contract, and criminal law. In this way he opens the legal landscape of the Cretan inscriptions to beginners.
Rupprecht in "Greek Law in Foreign Surroundings: Continuity and Development," and Modrzejewski in "Greek Law in the Hellenistic Period: Family and Marriage," each preface their respective overviews with the same general point. Greek law, brought by immigrants to Ptolemaic Egypt, persisted as a separate legal system which coexisted with the independent structures of Egyptian demotic and Ptolemaic administrative law. Older forms of Greek private law remained in use, but new structures also developed as a living response to the evolving needs of Hellenistic society. Throughout this evolution, however, Greek law retained its underlying fundamental nature. Rupprecht substantiates this point with an overview of Hellenistic private law. He shows, for example, that the syngraphe, a pre-Hellenistic from of written contract, continued in use, but to it was added a new and ever more widely used form known as the double certificate (p. 330). Change of this sort notwithstanding, the essence of Greek contract remained unaltered as "a real act ... determined by the consent of the parties" (p. 336) and as such it retained a legal identity separate and distinct from comparable structures in Egyptian demotic law. Modrzejewski, on the other hand, finds evidence to support the same point through an overview of Greek family law. Changes in this area were more substantial but the underlying defining elements of the law also remained intact. For example, the head of the household no longer had absolute power to arrange marriage because it became a personal contract between couples (p. 349). Thus the form of dowry changes and engyesis is no longer a formally necessary prerequisite for the transaction (p. 349). Nevertheless, "the legal substance of marriage remains unchanged ... [namely, an] act of 'giving' the bride," but now, in the absence of the father or a close male relative, the woman could give herself (p. 349). Again, Greek law remained a separate and integral system, but "the surrounding environment will have stimulated or accelerated an evolution already begun within Greek life" (p. 346).
Thus far the traditional. The following, we are told, press boundaries and destabilize orthodoxies. Here we find articles which philosophize, contextualize, and engage law and literature together.
In the philosophizing group are M. Gagarin's two articles (both located in Part 1). In "The Unity of Greek Law" he attempts to move beyond the old debate between nineteenth-century continental scholars who accepted the fundamental unity of Greek law and M. I. Finley who rejected the idea because of vast substantive diversity in the law of individual poleis. Gagarin proposes a new approach based on the idea of procedure taken in a broad sense as the "process of litigation and the organization of justice" (p. 34), characterized by "open forensic debate and free judicial decisions" (p. 34). He offers the concept as an aid for understanding diversity among the archaic and classical legal systems within a broader unifying principle (p. 40). Gagarin's conception of procedure also shapes his second article. In "Early Greek Law" he treats procedural and substantive law in the archaic period. For procedure his focus is on the centrality of speech in pleading and adjudication, the public nature of the process, and its non-technical character. Here Gagarin opposes Thür, who supports restricted adjudicative processes based on decisive oaths. Gagarin compares archaic procedure to that of other preliterate societies and rejects nineteenth-century comparison to the ancient Near East or medieval Europe because it was driven by belief in the necessity of common human nature's developing in parallel paths in parallel situations (pp. 89-90). Thus, after Cohen, the "methodological awareness" of Gagarin's approach is almost totally lacking in "continental counterpart[s]" (p. 9). Next, in his treatment of substantive law Gagarin traces very briefly the evolution from unwritten to written law, a matter taken up with more specificity in Rosalind Thomas's article, which, though not philosophizing in the same sense, is conveniently described here.
Thomas's article in "Writing, Law, and Written Law" (located in Part 1) is in Cohen's view, "nothing less than a minor revolution" in the application of "social and cultural history" to the study of Greek law (p. 6). She attempts to sketch the "fascinatingly complex" (p. 42) relationship between the development of written law by raising multiple issues such as the connection between writing and the rule of law, institutional reform, stability in times of political upheaval, limitations on elite power, the binding force of law, and, in general, the crystallization of the polis as a self-governing entity. The result is (after Cohen) a revival of methodology which looks "at the broader social and political context of legal innovation" (p. 6) to offer directions for thinking rather than categorical conclusions.
Cohen, like Gagarin, continues the philosophizing mode in two articles. In "Theories of Punishment" (located in Part 2) he examines texts of the classical age for ideas about punishment. Plato's Protagoras turns out to be an antiretributivist, Thucydides' Diodotus a moderate deterrence theorist, Isocrates a champion of educational rehabilitation, and Plato himself an advocate of a therapeutic punishment, which, in extreme cases, requires the death penalty. Cohen's purpose is an introductory engagement of a social theory of punishment with ancient legal and semi-legal texts to provoke further investigation of an underdeveloped topic. In "Crime, Punishment, and the Rule of Law in Classical Athens" (located in Part 3) he examines the Athenian conceptualization of criminal law. Differentiation between acts harming the person and those harming the polis establishes a distinction between civil and criminal categories. Cohen's treatment, however, focuses on contraries. The combined action of non-professional citizen litigants and citizen judges in the adjudication of punishment for harms against the polis flows from a unity of democratic interests which is consistent with the rule of law. The absence of institutional controls along with the availability of summary punitive procedures can turn the rule of law into democratic tyranny. Thus Cohen warns against taking a simplistic view that criminal procedure in Athens was informed by the rule of law, because "Athenian understanding ... of justice, democracy, and the rule of law ... differed fundamentally from our own" (p. 235).
Eva Cantarella and Josiah Ober philosophize in a slightly different sense. They bring theoretical perspectives to their topics which exemplify changing presuppositions in the study of Greek law.
Cantarella in "Gender, Sexuality and Law" (located in Part 3) looks at Greek law with gender as the organizing principle. For example, she analyzes homicide immunities to confirm social divisions among women found in literary texts. Immunity reached only the killing of a man who violated wife, mother, or sister. The interest protected was the purity of the household which was transmitted through these women. This confirms the primacy of the oikia as a principle of distinction among women. Those who honored male governance within the household were honest women; the rest were "others" (1) who sinned against the oikia as adulteresses, e.g., Clytemnestra, or seducers, e.g. Calypso, or (2) who had no connection to it, e.g. hetairai and pornai. Cantarella applies this mode of analysis to a brief review of family law issues. Although here she presents much the same data as Maffi, her methodology emphasizes that status of women rather than technical legal categories. Her innovation is the focusing of analysis through the lens of gender awareness.
Ober in "Law and Political Theory" (located in Part 5) applies to the literature a framework of contemporary legal and political theories in order to highlight interplay between theory and practice in the Greek law. Thus the Greek mind had no notion of natural law or objective morality. Rather it shows a deontological and politicizing positivism subject to the influence of institutional form in the shaping of polis-specific laws. Under the groupings, "legislation and amendment," "application and interpretation," and "enforcement and penology," Ober sweeps with general observations over Greek writers from Hesiod to Demosthenes. Hesiod had a theory of justice, but no institutional means of implementation; Solon applied judicial theory through legislative institutions; Thucydides theorized about international justice but faced gaps in international legal structure similar to Hesiod's local deficiencies; Plato and Aristotle theorized about law disengaged from practical application, but theorizing and practice met in Demosthenes. While Ober's broad treatment may provoke objections on particulars, his "interdisciplinary approach ... informed by contemporary ... theory" exemplifies the kind of innovation which Cohen believes will "open fruitful avenues for future exploration." (p. 24).
Philosophizing also is A. A. Long's "Law and Nature in Greek Thought" (located in Part 5). One of the most interesting pieces, it would have been well placed in a book on Greek philosophy. Long examines the relationship in Greek intellectual history between nomos and physis from strong antithesis in fifth-century theorists to conjunction in the "natural law" of the Greek Stoics. In the fifth century the notion of nomoi was too vividly connected with particular legislation to become a metaphor for the universal divine order. For this, Greek thinkers employed the idea of dike. However, the transformation of world view in Hellenistic society from polis parochialism to cosmopolitanism citizenship freed nomos from such limiting associations. Thus the Stoics joined ethics to cosmology wherein "natural law" became a manifestation of a larger and encompassing rational order of the "laws of nature." For Cohen, Long's article represents the potential fruits of an interdisciplinary application of philosophic inquiry to the study of Greek law.
From philosophizing to contextualizing, Adriaan Lanni, Lene Rubinstein, and Harvey Yunis each offer (in Part 2) contributions showing "increased sensitivity to the rhetorical dimensions" of Athenian litigation, providing in the editors' view a "welcome change from previous approaches" (p.13).
Yunis in "The Rhetoric of Law in Fourth-Century Athens" treats most generally the relation between rhetoric and law. He notes the significance of the power of persuasive speech in fourth-century Athens as an instrumentality of status. Although rhetoric had no intrinsic relation to law (p. 191), it nonetheless drove litigation in the open democratic forum of litigation. Rhetoric's principal object was victory in debate, so that its dominance in litigation reduced strictly "legal" considerations such as statutory interpretation to instruments in the service of victory. Thus orators typically invoked statutory law not to prove legally a case in chief but in connection with overall rhetorical strategies to present opponents in a bad light to the judges. In Cohen's view Yunis's contextualizing "raises issues that would ... not have been addressed at all a few decades ago" (p. 14).
In "Relevance in Athenian Courts" Lanni approaches from the perspective of "relevance" a generalized version of Yunis's question why Athenian courts admitted extraneous evidence. Lanni takes a middle position between scholars who think that Athenian litigation was substantially ordered to the determination of factual truth and those who believe that it was much more a contest for honor among members of the social elite. She does this by broadening the notion of relevance to encompass a wider view of argumentation, e.g. toleration of story-telling techniques, appeals to sympathy in the liability phases of trial, and a wide use of character evidence. For Cohen, Lanni's excellence is attention to "legal process rather than formal legal structures" (p. 12).
Rubinstein in "Differentiated Rhetorical Strategies in the Athenian Courts" takes up a more particular form of the issue of relevance, inquiring why citizen prosecutors in public actions frequently appeal to personal enmity and revenge. She takes estate litigation, where no such appeals occur, as a control group. She then compares between private and public cases litigant anticipation of audience reaction and the frequency of reference to revenge, punishment, and education. She finds that appeals to private anger correspond to the use of penal terminology in public cases and occur in private cases where the injury had public implications. Moreover, references to the jury's duty to educate the public through their judgments appear linked to wrongs which again have public impact. Therefore she concludes that the type of litigation determined litigation strategies. According to Cohen yet again, Rubinstein's approach is "a welcome change" from past formalistic differentiation between public and private actions in Athenian courts (p. 13).
Not quite contextualizing, but, for Cohen, equally innovative is the method of the "burgeoning" (p. 375) field of law and literature. Both Robert W. Wallace in "Law, Attic Comedy, and the Regulation of Comic Speech" and Danielle Allen in "Greek Tragedy and Law" (both in Part 5) provide examples of this approach.
Wallace contrasts Old Comedy with New Comedy from the perspective of legal regulation. Old Comedy freely satirized polis institutions, including the law courts. Old Comedy thus operated within a political environment which permitted free political speech so that legal restrictions on poets were exceptions to the rule. The Athenians regulated comic speech "only when they judged that the city or innocent citizens were threatened with substantive, material harm" (p. 362). New Comedy, on the other hand, hardly required regulation because it assimilated itself to the new international order wherein audience interest in political satire was waning. For Cohen, Wallace's innovation is awareness of the shifts in "cultural production in relation to larger societal changes in regard to law, democracy, and the regulation of morality" (p. 22).
Allen looks to tragedy for "conceptual elaboration" (p. 379) of ideas like anger which in turn illuminate key ideas in Greek law. She notes the frequent appeal in legal orations to anger for the purpose of highlighting injury and justifying consequent punishment. For her this forensic technique was possible only because tragedy had already constructed the "cultural and institutional forms" which informed citizen judges (p. 383). She analyzes in detail "the general conceptual fabric developed across [the] plays" (p. 385), but seems to reverse her purpose by using law mainly to illuminate literature. She focuses on autognotos orga, "self-chosen ... anger" (p. 391) in Oedipus Tyrannus to conclude that the "centrality of orge to Athenian legal and political reasoning" (p. 393) can illuminate the meaning of this difficult phrase in Sophocles. Reversal notwithstanding, she "underscores the basic point about methodology ... [that] tragedy becomes useful for studying Athenian law only after scholars have ... taken the time to work out ... [the law's] conceptual foundation" (p. 393). No doubt this is the point which the editors wished to display.
Finally, there is Cynthia Patterson's "Athenian Citizenship Law" (located in Part 3). For the editors Patterson's innovation is to treat citizenship in its broad "constitutional, political, and social" context, as something more than the consequence of a statutory framework, e.g., "Pericles' famous citizenship law" (p. 17). She traces the development of participation as a key to citizenship. She examines the implication of distinctions in terminology such as astos / aste and xenos / xene. She traces reforms under Solon and Cleisthenes toward greater participation in the polis for men and women. Against this background she views Pericles' law as an affirmation of the long development of the idea of participation. She concludes with a review of fourth-century litigation documents which show that proof of active participation in the polis was legally sufficient to establish citizenship.
With the above as summary of the content, on what criterion is the whole to be assessed? Anglo-American innovationists may not agree with Continental traditionalists. Some pieces are better than others (in style and in argument), but then is it fair to compare general introductions with cutting-edge innovations? As a Companion how does it differ from other general collections on Greek law? In unity? Some other collections have the edge. In breadth? Non-Athenian law is under-represented. In the quality of the contributors? Many of the same scholars are contributors to the other collections. Is eclecticism its virtue? The table of contents will deceive without knowledge of the book's structural dichotomy. What remains is the editors' own commendation: to highlight the innovative in order to provoke further study. Does this purpose undermine common expectation for a book of this sort? Let the query provoke judgment in the readers.