BMCR 1996.09.22

1996.9.22, Foxhall/Lewis, edd., Greek Law in its Political Setting

, , Greek law in its political setting : justifications not justice. Oxford: Clarendon Press, 1996. 172 pages : illustrations ; 23 cm. ISBN 9780198140856 $45.00.

The seven essays in this volume, which covers a broad chronological and geographical range of topics in Greek law, originated in a seminar series held at the Institute of Classical Studies in 1989. The seven-year interval between seminar and publication greatly detracts from the impact of the collection: one paper previously appeared in BICS, another is a summary of a chapter published in 1991. According to the editors’ introduction, Greek Law examines the relationship between law and political, social, and economic life as a reaction against “formalist and evolutionist” (p. 1) approaches to Greek legal studies. Given the number of recent works which discuss the integration of law and politics in classical Athens, the volume brings fewer surprises than the introduction seems to promise. Nevertheless, many of the essays are tightly argued and some broaden the current debate over the role of law in society by exploring familiar issues in poleis other than Athens.

In “Deconstructing Gortyn: When is a Code a Code?” John K. Davies argues that the “Great Code” can only be understood as part of a corpus of documentation and draws on evidence from several inscriptions in the series IC IV 1-159 to present a bold hypothesis about the function of these documents and their relation to each other. Davies detects in the Great Code evidence of both codification and continuous amendment, and he argues that the supplementary provisions in columns XI and XII represent a form of case law designed to clarify gaps and difficulties which had arisen in the application of columns I-X to actual cases. Davies then examines the rest of the varied Gortynian legal material in search of some principle of unity to account for the collection of often unrelated rules in each document. Davies’ necessarily speculative but compelling proposal is that each inscription, “whether big ‘code’, little ‘codes’, or minor groupings, is the document issued by (let us say) the relevant magistrates at the end of their period of office setting out the changes in the law which they proposed/ instigated/ proclaimed/ approved during their period of office” (p.54). Davies presents and attempts to counter two possible objections to his hypothesis: (1) the texts were so poorly organized that they were unusable in practice, and (2) these documents were designed not to guide actual court decisions but instead served some symbolic literary, social, or political purpose. Not all readers will accept Davies’ theory, but this thought-provoking piece encourages scholars to question their assumptions about one of the most important sources for Greek law.

Gerhard Thür’s paper, “Oaths and Dispute Settlement in Ancient Greek Law”, reinterprets famous scenes in Iliad 18 and 23 to argue that disputes in early Greece were normally settled by decisory oaths rather than by voluntary arbitration or controlled self-help. He suggests that the elders in the scene on the shield of Achilles proposed not possible compromise solutions to the dispute but a variety of carefully formulated oaths, each trying to reflect most appropriately the details of the particular case. On this view, dikazein is taken to mean the process of oath formulation, and istor is not the elder who proposes the straightest dike but the god by whom the litigants are to swear. As Thür admits, the passage contains no evidence of oath-taking, and his ingenious solution relies heavily on Menelaos’ use of dikazein before suggesting an oath to Antilochos in Iliad 23 and the description of the mythical King Rhadamanthys imposing oaths to settle disputes in the Laws (though Plato does not use the word dikazein in this passage). Thür’s reconstruction strikes me as implausible, and it is curious that after beginning his piece by warning against the dangers of “turning to anthropological analysis before all the evidence of the Greek sources has been exhausted” (p.58), his imaginative thesis seems to have its roots in the “medial judgments” ( Beweisurteile) of early Germanic law.

The essay by Rosalind Thomas, “Written in Stone? Liberty, Equality, Orality and the Codification of Law,” originally appeared as an article in BICS 1995. Thomas challenges the view that written law is itself inherently democratic or egalitarian and explores the role and significance of written law in early Greek societies. She surveys the evidence for oral law, the concept of “unwritten law,”mnemones and scribes and argues “(1) that writing was not regarded as an unmixed blessing, since scribes were often controlled; (2) that public inscriptions were not regarded as adequate guardians of the laws by themselves; and (3) that there was no sudden and simple change-over to writing” (p.25). Noting the heavily religious and procedural bent of our surviving legal inscriptions, she puts forward the intriguing suggestion that written law may have been intended to add weight and divine protection to the kinds of laws and pronouncements which were not universally recognized.

In “Even dogs have Erinyes: Sanctions in Athenian Practice and Thinking,” Margaretha Debrunner Hall surveys the range of penalties meted out in classical Athens and, wherever the evidence permits, compares these sanctions with forms of punishment in other Greek city-states. This essay examines the use of fines, imprisonment and corporal punishment, atimia, and the death penalty in Athens and elsewhere to shed light on two important questions: “(1) Did the fact that Athens was a democracy influence the nature and severity of the punishment it imposes? (2) Did the Athenian reputation for mildness ( praotes) … affect their administration of justice?” (p.73-4). Debrunner Hall notes that in general the Athenians imposed higher fines for the abuse and neglect of public duties than for offenses committed by private individuals. Although one might at first assume that this disparity in sanctions is linked to the importance of official accountability in democratic Athens, Debrunner Hall uses epigraphical evidence to show that other city-states shared Athens’ strict laws against officials. She argues that the severity of these fines stem from the difficulty of law enforcement in all Greek states and reflects a common desire to ensure that officials properly initiated legal procedures rather than the democratic ideal of accountability.

The second major thesis of this essay—that Athens did not deserve its reputation for a mild and humane penal system—is more problematic. Debrunner Hall acknowledges that the evidence for punishments outside Athens is too limited to determine the relative mildness of Athenian sanctions and concentrates instead on the “cruel” (p. 82) practice of apotympanismos as evidence for the severity of Athenian justice. Even if, as the piece argues, apotympanismos inflicted a slow and painful death by bloodless crucifixion rather than strangulation and remained the most frequently administered form of death penalty in classical Athens (which may reveal more about the rarity of the death penalty than the frequency of apotympanismos), this form of punishment is attested only in special summary procedures against kakourgoi and cannot by itself destroy Athens’ reputation for a humane system of justice. Indeed, in the conclusion of the paper Debrunner Hall notes that the multiplicity of procedures open to an Athenian litigant could be taken as evidence of an unusually democratic and humane legal system even if its sanctions were not always mild.

In “Plato on the Treatment of Heretics,” Trevor J. Saunders examines the provisions for impiety in the Laws in relation to Athenian legislation and Platonic penology. He argues that the “heresy” law in Plato’s model penal code was remarkably sophisticated. Unlike Athenian legislation, Plato’s law centers on the psychological state of the offender and carefully distinguishes between heretical belief and impious actions and the damage caused by expert and non-expert magicians. As the first footnote signals, a more detailed version of this essay was published as a chapter in Plato’s Penal Code, and readers with more than a casual interest will turn immediately to that volume for a full presentation and discussion of the evidence. The meaning of some passages crucial to the argument is far from clear (e.g. the conditions for the release of the “curable” heretic [908eff], which Saunders takes as evidence for the principle of discretionary sentences and probation); the expanded version of the piece presents the requisite discussion.

Stephen Todd’s chapter, “Lysias against Nikomachos: the Fate of the Expert in Athenian Law” is a close study of Lysias 30, a difficult text vital to our understanding of the Athenian legal reforms at the end of the fifth century. After judiciously discussing the possible dates and procedures of the trial, Todd examines the prosecutor’s (in his view, very weak) case in detail. He explores the complex relationship between Nikomachos’ technical knowledge and resulting political power, his alleged slave-origins, and Athenian attitudes to legal experts, and argues that the Nikomachos is closely related to, and may have been partly patterned on, Lysias 13 Against Agoratus. He then discusses the speech in relation to Athenian attitudes to law, codification, and legal change, and provides a clear and even-handed account of the problematic ancient sources and extensive recent scholarship relating to the aims and scale of the legal reforms.

In “The Law and the Lady: Women and Legal Proceedings in Classical Athens,” Lin Foxhall examines how women confronted legal structures, both as objects and as subjects, in classical Athens as a case study for the larger question of the location and meanings of law in societies other than our own. Foxhall begins by constructing what seems to me by now a straw man: she contends that scholars of Greek law have not addressed the issue of the location of law in Athenian social life “because for most the answer is ‘obvious’—law was ‘very important’ and meant more or less the same thing as it does in our society. That is, Athenian law consisted of fairly straightforward rules which (a) governed people’s behaviour and (b) served as an impartial standard against which norms were established and disputes were settled” (p. 133). I doubt that any classicist would argue that the meaning of law in Athenian society was “obvious,” and in fact every clause in that statement has been vigorously debated in recent scholarship. Although Foxhall’s approach is not as original as she suggests, the piece does provide an interesting and informative survey both of recent anthropological theories of law and of the ways in which women’s lives and actions were linked to the male world of the lawcourts in classical Athens. She explores a number of disputes involving or generated by women which are pursued in court by men and argues that women were aware of and affected by what happened at the courts and “acted on their menfolk to influence the outcome of events in this arena” (p.152). While Foxhall legitimately extends our notion of Athenian “legal” behavior, a word of caution may be in order: only women whose menfolk had the skills and resources to serve as litigants interacted with the legal arena in the way she describes. For most citizens, the “location” of law in Athenian social life was the “jury box” of the lawcourts, and the meaning of law for most women may not have extended much beyond the triobolon fished (if Strepsiades’ daughter may be taken as typical) from the mouths of their men.

Special efforts were made to make Greek Law accessible to non-classicists: all passages are translated, technical terms are explained, and abbreviations of ancient sources and journal titles are kept to a minimum. For a volume which examines the “location” and role of law in Greek society, there are some curious omissions from the list of references at the end of the book such as Josiah Ober, Mass and Elite in Democratic Athens and Christopher Carey, “Legal Space in Classical Athens”G & R 41 (1994). David Cohen’s Law, Violence, and Community in Classical Athens might have appeared too late to be included. Greek Law also contains a number of proofreading errors, from minor misspellings (e.g. Gorfyn for Gortyn on the dust jacket) to the apparent omission of “cf.” (p.6) which results in attributing to E. Harris a thesis directly opposed to the argument expressed in his article. Despite these difficulties, this collection includes pieces which make a significant contribution to scholarship in ancient law and which will be of interest to lawyers, anthropologists, and historians as well as classicists. In short, the whole of Greek Law is less than the sum of its parts.