Scritti di diritto greco. A cura di Eva Cantarella e Alberto Maffi. Università degli Studi di Milano. Facoltà di Giurisprudenza. Pubblicazioni dell’Istituto di Diritto Romano, 34

This is a collection of the eighteen shorter works on ancient Greek law by Arnaldo Biscardi, a jurist with a sound humanistic education who devoted his life to studying the legal systems of the Ancient World¹ and who was in turn a disciple of another great scholar of Greek law, Ugo Enrico Paoli. This publication represents professors Eva Cantarella and Alberto Maffi’s tribute, one year after his death, to this eminent professor of Milan University, one of the twentieth century’s great scholars, not only of Roman law but also of ancient Greek public and private law, and one of the organisers of the Symposia della Società per la Storia del Diritto Greco ed Ellenistico, which have since 1974 contributed so much to the promotion of knowledge and research into ancient Greek law from a historical-legal standpoint. This institution’s success is vouched for by the fact of its having grown beyond its initial European sphere, now representing an international forum for study and debate on the progress made in knowledge about this field of the ancient world’s legal systems.

Reading all these works, written with enormous clarity and precision, reveals above all the author’s great knowledge of Attic law, the law of the ancient Hellenic states and that of the Byzantine empire, his excellent mastery of literary, epigraphic and papyrological sources and the historical-legal method that he uses to deal with the problems rather than the merely historical-philological approach that had been used by earlier German authors.² The matters to which Biscardi mainly turned his attention in these brief works published between 1934 and 1997 were marriage law, dowry law, the “testament-adoption” and the vexata quaestio of the nature and structure of the contractual obligation in Attic law. This last matter deserves special emphasis as even now it represents one of the questions of ancient Greek law that arouses liveliest discussion and about which Biscardi was involved in an interesting controversy with Hans Julius Wolff, another of the great specialists in ancient Greek law and co-organiser of the aforementioned Symposia. Indeed, whereas for Biscardi the debtor’s obligation and correlative responsibility emerged from the Attic law of consent, Wolff thought that the nature of the Attic contract was not consensual but real, the debtor’s obligation stemming from the delivery of the thing in accordance with a previously arranged and agreed purpose (Zweckverfügung).³

I now give an analytical summary of the works, in the same order as they appear in this book, which is also their chronological order of publication, keeping their original titles.

1. I rapporti tra προίξ ed ἐγγύησις nel diritto matrimoniale attico.

Based on historical, philological and comparative arguments, Biscardi comes to the conclusion that the dowry ( προίξ) is not essential for the validity of the marriage and is furthermore independent of the marriage vow ( ἐγγύησις), which is no impediment for the dowry customarily accompanying the betrothal.

2. Sul regime della comproprietà in diritto attico.

This work describes the two forms of Attic co-ownership: (1) family co-ownership, which is the most traditional and longstanding form and whose roots lie in the universal fraternal or family community; and (2) co-ownership by quotas, arising on the occasion of co-ownership of capital at a time of commercial prosperity, which would end up taking hold in the late Empire through its clear advantages, as is shown by the Ptolemaic papyrus.

3. Il cosiddetto “testamento” di Cnemone.

This contribution is the first of a series Biscardi devoted to the legal problems arising from the text of Menander’s Dyskolos in the papyrus Bodmer IV. This papyrus refers to a sort of “will-adoption”, consisting of a bilateral dealing in which an adopted child is named and given the estate ( οἶκος) with inter vivos effectiveness. This sort of testament leads the author to affirm that the term διαθήκη, which had customarily been used to identify the Attic will, is a broader concept than “testament”, because διαθήκη refers in general to any procedure of inter vivos or mortis causa disposal of the οἶκος, which also allows the latter to pass this on to a person other than the legitimate male descendent, who, according to Solonic law, was in theory the only possible heir.

4. La “gnome dikaiotate” et l’interprétation des lois dans la Grèce ancienne.

The matter tackled in this article is whether equity ( gnome dikaiotate) could prevail over the law, or even contra legem, when passing judgement. Biscardi concludes that the equity could indeed constitute a source of law and be appreciated contra legem. Equity thus constitutes, as Biscardi points out, the “safety valve” of the system of sources of law in the history of Greek civilisation.

5. Prassi e teoria della “misthosis” nel diritto contrattuale attico.

This article is a critical study of lease contracts in light of the Attic inscriptions on this matter. Biscardi questions the conclusion arrived at by D. Behrend in his work Attische Pachturkunden. Ein Beitrag zur Beschreibung der μίσθωσις nach den griechischen Inschriften, which saw μίσθωσις as a bilateral forgiving of rent contingent on provision of work.

6. Sulla identificazione degli “xenokritai” e sulla loro attività in P. Oxy. 3016.

This work stems from P. J. Parsons’ analysis of the term ξενοκρίται in P.Oxy. 3016. Biscardi concludes that (1) this term refers to courts in which judges must be foreigners in respect of the πολίτευμα to which the litigants belonged; (2) in each province there was a list of persons qualified to assume the function of foreign judge; and (3) such judges were also competent in the matter of “status personarum”.

7. Diritto greco e scienza del diritto.

Starting from the definition of “Greek law” as the legal experience of the Greek world as a whole from the Mycenaean origins to the threshold of Byzantine law, Biscardi analyses the importance of studying Greek law in the context of present-day legal science and addresses the question whether Greek law has any particular aspect distinguishing it from other historical legal experiences, for example, Roman law. Biscardi concludes that the importance of studying Greek law stems from certain major accomplishments made by it both in the sphere of public law — democracy, the theory of popular sovereignty, the constitutionality of laws — and in that of private law — the principle of the autonomy of will in contract, the absence of formalism or causality in the analysis of licit and illicit acts.

8. PSI XV, 1515. Restituzione di dote e transazione.

This work describes, analyses and reconstructs PSI XV, 1515, which deals with restitution of dowry and transaction. The use made in this papyrus of the terms προίξ and φερνή, both alluding to the concept of “dowry”, forces us, in the author’s opinion, to take a new approach in studying the relations between the two institutions in the law of Greek-Egyptian “koine”.

9. Proix e pherne alla luce di un nuevo papiro fiorentino.

In this work Biscardi again tackles the legal and historical connections between προίξ and φερνή in light of PSI XV, 1515. After observing that the text refers to a transaction contract concerning the restitution of a dowry, the author opts for the equation dos = φερνή in the Greek-Egyptian experience of the Ptolemaic age, considering the papyrus’ use of the term προίξ the result of mere procedural inertia, as the legal action that can be brought against the husband for restoration of the dowry continues to be called δίκη προικός.

10. Le régime de la pluralité hypothécaire en droit grec et romain.

The reconstruction of the Attic legal system of the plurality of mortgages is covered in this work. Gai. de form. Hypoth. D. 20, 1, 15, 2 and Tryph. 8 disput. D. 20, 4, 20, the author points out, are eloquent vestiges of the infiltration of the Greek-Hellenistic system of the plurality of mortgages into late Roman law through oriental legal schools. Both passages were collected in the Justinian compilation and doubtlessly constitute the origin of the legal system of mortgages of different rank as seen in present-day European civil legal systems.

11. Osservazioni critiche sulla terminologia διαθήκη – διατίθεσθαι.

The author again tackles the question of the meanings of διαθήκη and διατίθεσθαι. The noun can mean, besides “testamentary provision” or “will”, “covenant” or bilateral or plurilateral agreement on the οἶκος; the verb has several specific and one generic meaning: any action to dispose of property, whether persons or things, wholly or partly, within the capacity limits that particular subjects (i.e., people capable of holding legal rights or obligations) are acknowledged.

12. Nota minima sugli “ectemoroi”.

In this brief contribution Biscardi provides sound philological, legal and economic arguments to consider that the ectemoroi were dependent workers subject to a levy, consisting in the quota of 5/6 of the products obtained by working the land, which would have to be paid to the grantors.

13. “Polis politeia politeuma”.

The aim of this article is to differentiate between the terms πολιτεία and πολίτευμα in their legal senses using Hellenistic documents, especially inscriptions and papyri. Biscardi concludes that whereas πολιτεία will end up meaning constitutional order or political constitution, πολίτευμα in Hellenistic times meant any independent ethnic or political group. This article also offers some interesting thoughts on P. Giessen 40, which contains the famous Constitutio Antoniniana dating to 212 A.D.

14. Mariage d’amour et mariage sans amour en Grèce, à Rome et dans les evangiles.

As its title suggests, this work deals with the relation between love and marriage in Greece, Rome and early Christianity from a comparative legal standpoint. Biscardi observes that love is the basis of marriage both in Rome — through the notion of affectio maritalis or lasting consent of common marital life of the spouses — and in Christianity, at least in relation to the initial consent or consensus, but not in Athens, since marriage in the Attic legal system is a matter concerning instead the structure of οἶκος and the property situation of the spouses. In fact, the essential parts of an Attic marriage are cohabitation ( συνοικεῖν) and the solemn promise ( ἐγγύη) of the wife or her father.

15. La successione legittima degli ascendenti nel diritto ereditario panellenico: uno spunto epigrafico del VI o V secolo a. C.

The inscription known as the “Pappadakis bronze”, which contains an agricultural law dating to the early 5th century B.C., allows one to sustain, as Biscardi convincingly proves in this article, the ab intestato succession of ancestors in line with a hereditary system common to the different Greek poleis, which forms part of a Panhellenic national legal system, whose historical existence is unquestionable.

16. Contratto di lavoro e “misthosis” nella civiltà greca del diritto.

This work describes the free work system in the Greek world from the earliest times to the diffusion of Hellenism using the concept of μίσθωσις, on whose legal nature Biscardi gives an opinion, qualifying this as a messa a mercede contract.

17. Sulla cosiddetta consensualità del contratto dotale in diritto attico.

The question of the consensual nature of the Attic contract is raised again here in the context of research into the forms of dowry known in Greek legal business: by delivery ( δόσις) or by obligatory promise ( ὁμολογία προικός). As Biscardi shows, the latter is completed through consent, which consequently bolsters the thesis of the consensual nature of the Attic contract.

18. On “aequitas” and “epieikeia”.

This last work deals with the two roots of the concept of equity in Western legal thought: the Greek ἐπιείκεια and the Roman aequitas. The term ἐπιείκεια has two meanings: (1) what is appropriate, convenient or fitting; and (2) what is opposed to strict law ( ἀκριβοδίκαιος). The main source for the meaning of Greek equity is Aristotle’s Nichomachean Ethics. The Roman aequitas also has two main meanings: (1) essence of law; and (2) the antithesis to strict law ( ius strictum). Christianity takes the idea of aequitas as something closer to that of ius naturale. Biscardi concludes that there exists today, as actual synthesis of what we have been able to gather from our research, a common denominator of the two words in the Greek and Latin languages; and this common denominator can be expressed by saying that equity corresponds to the “spirit of law”.⁴

Notes

1. Arnaldo Biscardi’s major works on Greek law are: Profilo di diritto greco antico, 1st edn (Siena, 1961), 2nd edn (Milano, 1974); Corso di papirologia giuridica (Milano, 1966); and Diritto greco antico (Milano, 1982).

2. For an overview of the evolution of the study of Greek law during the 19th and 20th centuries, see M. Talamanca, “Gli studi di diritto greco dall’inizio dell’ottocento ai nostri giorni”, in M. Lupoi, L. Moccia, and P. Carlini Prosperetti (edd.), Scintillae Iuris. Studi in memoria di Gino Gorla, I (Milano, 1994), 889-949.

3. On this controversy, see A. Biscardi, “Diritto greco e scienza del diritto”, in Symposion 1974, Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte, II (Köln-Wien, 1979), 1ff. = Scritti di diritto greco (Milano, 1999), 133-155; as opposed to H. J. Wolff, “Die Grundlagen des griechischen Vertragsrecht”, in ZSS LXXIV (1957), 26ff.

4. The convergence and identification of the ideas of “equity” and “justice” would be maintained in Western legal thought until Kant made the conceptual dissociation in the 18th century, giving law a utilitarian sense based on individual freedom, a concept which the contemporary world has partially inherited. See my contribution, “Derecho y equidad en la tradición jurídica histórica: breves notas acerca del valor de la equidad en la experiencia jurídica histórica y moderna”, in J. Ivars Ruiz (ed.), Consideraciones Prácticas sobre Derecho, Justicia y Ley de Enjuiciamiento Civil (Valencia, 2004), 73ff.