For more than fifteen years now, the archive of the French scholar of Greek law Louis Gernet (G) one of the twentieth century’s giants in this field,1 has been located “temporarily” at the University of Pisa, where first Ricardo di Donato and more recently Andrea Taddei (T) have been working to bring some of G’s unpublished work to the attention of scholars, sometimes in the original French, sometimes in Italian translation.2 In the present work, T publishes the French text (116 pages) of a previously unpublished group of six “studies” on Athenian law, written by G mostly in the 1930s but with some later additions, together with T’s introduction (53 pages) and notes that primarily direct readers to passages in the Attic orators and works of modern scholars. In places T had difficulty transcribing and understanding G’s writing, and the work is not always easy to read. Some passages read like a scattered series of notes, others are repetitious, and others seem incoherent even after several readings. Sometimes G’s shorthand is hard to interpret (“le leg”), and grammatical errors and gaps in the text are not infrequent (one paragraph ends, “parce qu’alors on assimile le contrat athéniens aux ____” [sic]). All this is to be expected in unpublished rough drafts, but one expects greater coherence in a published work, and we may wonder precisely what audience T is targeting.
To be sure, it is good to have any new work of G to add to the relatively modest output of one of the most influential scholars in the field, and it is of some interest to see how G’s thoughts developed in that stage between the initial idea and publication. That said, with the advances in scholarship during the last half century on most of the subjects he treats, many of G’s observations will seem either obvious or quaint today. His targets are largely the generation of scholars working from 1890 to 1920, and these studies were apparently completed before the important work of the 1950s (e.g. by Pringsheim or Finley) that G responds to elsewhere.3 Thus the present work will probably be of interest primarily to the few specialists working in great depth on the topics treated here by G, or to those interested in the history of scholarship or the figure of G himself.
T’s introduction is in two parts. In the first she treats the condition of the manuscript, discussing such things as types of paper and ink in the kind of detail that one associates with the study of ancient manuscripts. She also cites several brief outlines or resumés by G himself that are not part of the individual essays but which are suggestive of his views about Athenian law, his methods of writing these essays, and his preliminary intent eventually to publish them together. To some extent this is T’s attempt to justify publishing these studies, parts of which are little more than a collection of notes, together as one work. I’m not sure this reflects G’s true intentions: at one point he appears to have thought of publishing eight short studies written from the late 20s to the late 30s as a unit, but two of these were then published separately.4 The six that remain were clearly still unfinished when G put them away, apparently because of the war. In the second part T summarizes the six studies, cites a few other passages of G that help put the studies into perspective and raises questions of the relation of these to G’s other work. She ends with the general observation that one result of G’s “Studies of the Technique of Athenian Law” is that in a strict sense Athenian law is not technical. This is certainly a message one can find in places, but G also speaks often of the technical language of the law and seems ambivalent at times on how closely to connect Athenian law to Roman law.
The main interest for scholars, however, is not T’s introduction but G’s essays. The first of these takes up the issue of writing in the process of litigation. G examines an influential paper of George Calhoun ( TAPA 1919) which argues that around 380 BCE the Athenians shifted from having a clerk write down the plaintiff’s accusation to having the plaintiff himself write it down and present it to the court. G accepts the general validity of Calhoun’s thesis and adds some useful specificity to it, arguing that the transition to written documentation occurred at different times and in somewhat different ways in different types of procedure. This may be the most useful of the six studies, since little work has been done along these lines since Calhoun.
The second study deals with procedures for accusations in Athenian law, especially special procedures, specifically the procedures of eisangelia, probole, and endeixis) and their relation to the ordinary graphe procedures. The text here is clearly unfinished; a series of notes may be followed by broad generalizations, leaving the reader to guess at how the gaps would have been filled. Overall G suggests that special procedures became more prevalent in the mid fourth century as family solidarity declined. Section 3 takes up various forms of procedural objection, primarily diamartyria and the closely related paragraphe. This short section adds little to G’s study of the former,5 and little or nothing to Wolff’s later study of the latter.6 Section 4 on actions that lay claim to something (termed “actions successorales”) takes two pairs of procedures and explores the relationship between the nearly synonymous terms in each pair: first amphisbetein and parakataballein; then dike karpou and dike enoikiou. The first two terms lay claim to an inheritance, the second to some kind of property, and, though there is overlap in the use of the terms, they also have differences. I found this the hardest section to follow.
Section 5, which according to T was particularly difficult to transcribe, deals with actions arising out of contracts. After a few preliminary notes on the concept of obligation, G examines first the dike blabes and its relationship to the many other procedures that some think were used to enforce contracts. G questions most of these others and concludes that the dike blabes, a delictual or criminal action, was the original procedure for enforcing all contractual obligations, and that it remained so in the fourth century, when litigants used this form as a sort of legal fiction for many kinds of obligations not originally envisioned. This is an example of a common development in Athenian law which tended to expand the use of general procedures to cover new situations rather than creating new procedures. Finally, in section 6, the longest, G discusses mortgage law looking particularly to define the respective rights of debtor and creditor and the legal nature of security. He warns particularly against drawing logical conclusions that are not supported by the cases we have, for he sees the rules concerning security as developing within the real world of commerce. One is reminded of Holmes’ famous dictum, “The life of the law has not been logic: it has been experience.”7 G notes that the city only concerns itself with security when confronted with an alleged crime, that is after charges have been brought. Otherwise it is a matter between the two parties alone.
A great deal of work has been done on Athenian law in the roughly 75 years since these studies were drafted, and T’s notes repeatedly refer to the reader to more recent studies, especially those of Harrison, MacDowell and Todd.8 Thus, scholars working in depth on the issues discussed in these essays may be interested in some of G’s views, and others may be interested in seeing how G’s ideas on Athenian law developed in their early stages. But very little in these studies will affect contemporary scholarship, and most readers will want to continue consulting the more recent works just mentioned.
Notes
1. For an appreciation of G’s life and work, those who do not have easy access to some of the Italian literature cited by Taddei may consult the excellent study by Sally Humphreys (not mentioned by T) in Anthropology and the Greeks (London 1978) 76-106.
2. A companion piece to the essay published here recently appeared in Italian: Diritto e civiltà in Grecia antica ed. Andrea Taddei (Milan 2000).
3. F. Pringsheim, The Greek Law of Sale (Weimar 1950), with M. I. Finley’s review, later expanded to “The Problem of the Unity of Greek Law,” reprinted in The Use and Abuse of History (New York 1975) 134-52, 236-37. G’s most important papers on law were published in two collections of his essays, Droit et société dans la Grèce ancienne (Paris 1955), and Anthropologie de la Grèce antique (Paris 1968).
4. The two—on public arbitrators and commercial actions—were also included in Droit et société (see preceding note).
5. Revue historique de droit français et étranger 1927, republished in Droit et société.
6. H. J. Wolff, Die attische Paragraphe (Weimar 1966).
7. Oliver Wendell Holmes, The Common Law (Boston 1881) p.5.
8. A. R. W. Harrison, The Law of Athens, 2 vols. (Oxford 1968-71); Douglas M. MacDowell, The Law in Classical Athens (London 1978); Stephen Todd, The Shape of Athenian Law (Oxford 1993).