The main argument of Jason Hawke’s monograph is that the introduction of written law in early Greece was motivated by the need of elites to set limits to their own intra-class competition. The most extreme expression of this motive was the fear that one member of the ruling group would grow strong enough to trump the rest and dominate the community as tyrant. Hawke’s view is not novel as such: Robin Osborne, Sara Forsdyke and Jonathan Hall, for instance, have made the same argument very explicitly in recent years, while briefly looking at law in studies of different or broader scope.1 Oddly enough, however, studies focused specifically on the introduction of Greek law have lagged behind in fully investigating this possibility. This discrepancy speaks to the need for examining law in a broader context of political history. Hawke’s work constitutes the first monograph on early Greek law that attempts this in such a robust fashion.
Hawke argues for the usefulness of such an approach in his literature review of chapter 1. The critique of positivist approaches is especially constructive (esp. pp. 16-17) in showing that legislation was contingent on the distribution of political power, and explanations that miss this parameter are inadequate. Furthermore, argues Hawke, even studies that have attempted to evade the positivist trap have not properly understood the dynamics of archaic Greek politics. Here (pp. 14-16) Hawke criticizes the recent works of Gagarin and Papakonstantinou, while aligning himself with the views of Forsdyke (2005).2 He is, in my view, right to do so, since it is the latter who has emphasized the polycentric nature of authority in archaic politics. Assuming that the binary division between mass and elites is the only heuristically useful categorization, scholars of early Greek law have asked whether the first laws served the interests of one group or the other in the context of class struggle. Adding to this framework the idea that written law directly equals democratization, many scholars have seen the introduction of law as a result of pressure from below. In what follows, Hawke promises to show that archaic Greek elites did not act in concert to defend their class interests, nor did they need to, as there was no meaningful pressure from below.
The book’s second chapter seems to continue the introduction, this time on the use of the literary evidence. A section is devoted to evidence from classical Athens (pp. 25-34), followed by one on the use of archaic Greek poetry as historical evidence (pp. 34-42). Both are reasonable and Hawke adeptly synthesizes different views on the contentious “Homeric question”. However, they could have been briefer, since they are not too different from the methodologies of Forsdyke or Ian Morris.3 As it stands now, one quarter of the book is introduction. On pp. 42- 51, Hawke introduces his own approach, “trouble-case processualism”. This method has the benefit of looking not just at or for the letter of the law; instead it aims at revealing the structure of a society’s legal order by examining how competing claims arise as well as all the strategies, not restricted to litigation, which individuals then pursue.
In chapter 3, the author applies his method to all Homeric and Hesiodic evidence on disputes. Indeed, Hawke produces an account of unprecedented completeness: most works on ancient Greek disputes before written law deal with the same few passages from epic poetry. This produces two main results. The first result is the public nature of the disputes and the influence of the wider community as audience. However, this argument is already prominent, e.g., in the monographs by Gagarin and Papakonstaninou already mentioned. Where Hawke moves a step forward is in concretely pointing out the political stakes of disputes: disputants were concerned about their “public standing” (p. 98) and, since “reciprocity was of great importance in early Greece” (p. 99), it was often in the interests of disputants to demean themselves during the public dispute in a fashion that would boost their “future credibility” (p. 89).
However, there are some problems here, too. For a monograph that features elite competition in its title, this analytical category is strikingly absent from the chapter. Hawke does not observe that, because of the content of preserved epic poetry, almost all the disputes examined are between members of a ruling group. We do not have evidence of the same order for disputes that would have involved non-elites. Hawke’s conclusion, therefore, that “the system produced by the legal culture we find in Homer and Hesiod did not lend itself to abuse perpetrated by a corporate, aristocratic interest” (p. 100) cannot be proven or falsified through the evidence at hand. Even if the author has proven that there existed a “healthy and functional legal culture” (p. 99), this only pertains to intra-elite disputes. In fact, the author himself admits that “we can imagine that… stronger disputants might resolve the dispute by strong-arming weaker opponents into submission, or worse” (p. 96). This would be consistent with Hesiod’s tale of the hawk and the nightingale (mentioned only in p. 4), but Hawke treats the Works and Days ’ testimony as a (potentially biased) exception to the rule. I would contend, furthermore, that the very view of legal order before the advent of written law as a “healthy and functional legal culture” is too optimistic. In drawing his conclusions, Hawke unduly prioritizes the fact that epic poetry often depicts orderly attempts at resolution over the fact that it depicts many of them as eventually failing – and violence is also frequently attested. We will return to these problems in discussing the next two chapters.
Chapter 4 aims at disproving the thesis that written law was introduced in early Greece to curtail the judicial abuse of the elites at the expense of the masses. Hawke sets out his thesis with clarity (pp. 103-104). He makes a convincing argument based on the spread of literacy that written laws could not have been an instrument of the masses (especially pp. 121-22). Also, the examination of Draco’s laws is highly useful: both their content as well as the subsequent state of Athens in Solon’s time prove that writing laws did not have to entail concessions to the masses either as an intention or as a result (pp. 110-113).
However, Hawke’s argument that elites simply did not exploit/oppress the many is more problematic. In p. 109, Hawke argues that any member of a Homeric community could summon a public assembly; but this fails to take into account contextual limits to the interrogative pronoun tis (“who?”). When a member of a given community asks “who summoned the assembly?” his listeners might easily assume that the choice-set was limited to the members of the elite. In a brief footnote (p. 226-27 n.55), he first brushes away the distinction between elite and middling ideology as argued by Ian Morris (1996) and argues that archaic Greek Lyric “is silent on the issue of aristocratic judicial abuse”. This is simply not true. Theognis 38-51 and Solon 4W are obvious examples that cannot be dismissed without discussion, as well as Herodotus’ story of Deioces (esp. 1.96), which Hawke refers to elsewhere (p. 184). In the context of these passages, the Works and Days no longer looks so exceptional. Hawke, however, does not have to prove that there was no aristocratic judicial abuse at the expense of the many to make his argument; he simply needs to show that, even if it existed, such abuse was not the driver for the introduction of written law.
Chapter 5 begins with the invaluable statement that “we can no more speak of class solidarity among [archaic elites]” (p. 132) and proceeds to discuss, even if somewhat briefly, the issue of intra-elite competition escalating to tyranny (pp. 150-56). Due attention is given to the changing conditions of the early archaic age and, in particular, to the need of new communities which were products of synoikismoi to develop common norms (pp. 45-50), albeit without acknowledging that Gagarin (2008) has already extensively made this claim. Next to these very useful discussions, however, we find more problematic points. The idea that epic poetry held the legal order of older communities together but could not keep up with this changing environment is hypothetical. For it to be substantiated, Hawke would have to discuss the outcomes of the disputes described in epic: it is outcomes that explain the legal order that is being promoted. The Iliad depicts Agamemnon and Achilles as unable to resolve their dispute in the absence of a factor external to their disagreement (Patroclus’ death). The strife of Odysseus and his son against the elites of Ithaca is carried out through unproductive threats and productive violence, until Athena steps in. Epic poetry projects a legal order that is highly problematic, rather than offering a “map” for how disputes can and should be resolved.
Furthermore, the uncritical adoption of Tandy’s (1997) controversial thesis creates additional complications. According to Tandy, wealth in the archaic age had become “unobligated”, leaving behind the big-man model of benefaction and obligation. However, Tandy’s thesis has few adherents, so that its adoption requires at least some justification.4 It is also unclear how it fits with a world where elites became tyrants by gathering followers to create factions: if not obligation, then how?
Finally, in the very useful chapter 6 Hawke examines some of the first written laws that have been preserved for us either as original inscriptions or in secondary sources. He applies the cui bono principle effectively to show that early adoption laws (esp. p. 167) and women’s property rights (pp. 169-72) seem to reveal a broad concern for precluding the concentration of too many resources in one family. Solon’s funerary laws seem to have aimed, again, at stemming intra-elite competition (pp. 173-82). Finally, regulating the rotation of judicial offices must have been a primary concern of the elites rather than the many (pp. 182-87): if one member of the ruling group monopolized the process, he could stand to gain important power. Overall, this chapter constitutes an important contribution, although I would have liked to see more of the earliest laws discussed. Hawke’s innovation, to discuss early Greek politics extensively before examining the laws themselves, is a salutary correction of the narrow focus of earlier work on the emergence of Greek law. However, dedicating only one chapter to a detailed examination of the actual laws seems to be pushing too far to the opposite direction.
The book is well produced and free of typos. The bibliography is extensive. An index locorum is sorely missed. Despite my reservations on matters of substance and method, Hawke’s monograph deserves to be considered as a turning point in the study of early Greek law. The main thesis, that the regulation of intra-elite conflict was the driver for the introduction of written law, must be acknowledged as a very likely explanation of this crucial development in Greek institutional history.
1. “This is elite self-regulation, motivated not by any sense of an overwhelming injustice but by a concern about which individuals have power”, Robin Osborne, Greece in the Making, 1200-479 B.C. (London and New York 1996) 187; “… the ruling elite throughout Greece began to use written laws to reinforce the system of public offices against attempts by individual elites to establish more exclusive power for themselves”, Sara Forsdyke, Exile, Ostracism, and Democracy (Princeton 2005) 83; “a gentleman’s agreement”, Jonathan Hall, A History of the Archaic Greek World ca. 1200-479 B.C. (Malden, MA, and Oxford 2007) 137. These works are in Hawke’s bibliography, but he never cites these authors’ conclusions specifically on the emergence of law in Greece.
2. Michael Gagarin, Writing Greek Law (Cambridge 2008); Zinon Papakonstantinou, Lawmaking and Adjudication in Archaic Greece (London 2008).
3. Forsdyke (n.1) 32-36; Ian Morris, “The Use and Abuse of Homer”, Classical Antiquity 5 (1986): 81-138; idem, “The Strong Principle of Equality and the Archaic Origins of Greek Democracy,” in J. Ober and C. Hedrick, eds., Dēmokratia (Princeton 1996).