7
LAW AND LAWS

How do we join up the dots?

Robin Osborne

Cypriot fire consumed the body of Solon in an alien land; Salamis holds his bones, now dust and grains.

But the axones bore his soul straight to heaven. For well did he make laws for the citizens, the lightest of burdens.

Lawgivers in the tradition, as in this epigram of his own which Diogenes Laertios modestly quotes,¹ are men of heavenly wisdom. That wisdom consists largely in ingenious, and often surprising, enactments whose content or attached penalties show great insight into human behaviour, and particularly into human weakness.

A further section from Diogenes Laertios, containing laws little discussed in the literature on Solon, illustrates the typical wisdom of the lawgiver:

Solon reduced the rewards to athletes in the games, fixing a rate of 500 dr. for an Olympic victor and 100 for a victor at the Isthmian Games, and analogously for other games. He thought that it was naive to increase the rewards of these; only the rewards of those who died in war, whose children should be publicly reared and educated, should be increased. As a result many were anxious to appear as fine and noble warriors—like Polyzelos, Kynegeiros, Kallimakhos, and all the Marathonomakhoi; and also like Harmodios, Aristogeiton, Miltiades and ten thousand more. But athletes cost a lot when they are in training, and when they are victorious prove more of a bane than a blessing, crowned more for a victory over their homeland than a victory over their opponents. And when they get old, as Euripides says, ‘they go around like cloaks which have lost their nap’. Solon saw this and gave them only a moderate welcome. Excellent also is his provision that the guardian may not cohabit with the mother of the ward, and that the man who would inherit if the orphans died may not be guardian. And this one too, that a seal-cutter may not keep an impression of the ring he has sold. And if someone knocks out the eye of a man who has only one eye, he shall have both his eyes knocked out. A man who did not deposit something may not take it back, or else the punishment is death. Death is the penalty for a magistrate who is caught drunk.²

Notoriously, such pieces of lawgivers’ wisdom float around in the tradition from one figure to another. The regulation here about deposits is attributed by Aelian (V.H. 3.46) to Stageira, and the provisions about eyes and about who can be a guardian correspond with what Diodoros records of the laws of Kharondas (Diod. Sic. 12.15.2, 12.17.4).³ Other elements in lawgiver tradition float about too: just as Periander was variously giver and recipient of the advice to knock off the tallest heads of grain, so Solon makes in Diogenes the observation made to him by Anacharsis in Plutarch, that laws are like the webs of spiders, catching small pests but broken by the powerful.⁴

When, on the other hand, we look at the remarkably rich extant epigraphic remains of early law the picture which we seem to get is very different. Two examples will illustrate this. The first is as early as they come, an extract from the seventh-century laws from Tiryns:

…each to the platiwoinoi (pourers of libations of wine?). If he does not pay the fine he is to occur a fine of thirty medimnoi to Zeus and Athena …if the platiwoinarkhoi refuse— — —to give to the hiaromnemon—The hiaromnemon is to exact the fine/ confiscate the property? wherever the people decide to hold the court… …the community is to provide the penalty to the platiwoinarkhoi. But if th ey do not provide over and above from home, let the epignomon impose a fine upon the mob…⁵

The second example is a sacred law from sixth-century Olympia: If he commits fornication (?) in the sacred precinct, one shall make him expiate it by the sacrifice of an ox and by complete purification, and the thearos in the same way. If anyone pronounces judgment contrary to the regulation, this judgment shall be void, but the decree of the people shall be final in deciding. One may make any change in the regulations which seems desirable in the sight of the god, withdrawing or adding with the approval of the whole council of the five hundred and the people in full assembly. One may make changes three times, adding and withdrawing.⁶

The Tiryns example gives endless officials of whom particular duties are required, but penalties which are the very oppositive of imaginative—fines all round. In the Olympia example the prime concern seems to be to make the law stick, but the provisions which allow change seem once more to be the very reverse of ingenious: you can change the law as long as enough people are agreed to making the change and as long as you do not do so too many times.

If the picture of early lawgivers and early laws, which I have ascribed to ‘tradition’ and illustrated from Diogenes Laertios, were restricted to such late and unreliable witnesses as Diogenes, then we should have no hesitation in discarding its picture as unlikely to offer much enlightenment. Much recent study of early Greek law does just that: Michael Gagarin’s Early Greek Law has a chapter on the literary evidence but no citation from Diogenes in its Index Locorum, and Karl Hölkeskamp’s PCPS article on written law in Archaic Greece mentions Diogenes only once.⁷ But the tradition to which Diogenes belongs is already represented in Aristotle, whose discussion of lawgivers gives us biographical snippets (e.g. on Philolaos, Pol. 2. 1274a32–42) when we long for quotations from the laws, and there are already traces of the same tradition in Herodotos. We should feel some unease about simply discarding a tradition integral to fourth- and probably fifth-century attitudes to law.

One additional reason for being worried about preferring preserved epigraphic evidence for early law to literary evidence lies in the nature of the epigraphic evidence. Were Greek law, as classical writers not infrequently claim, essentially written law, and were written law essentially law inscribed on stone, then we could probably trust that our epigraphic remains give us a fair sample of Archaic law. But the connection between writing and law has been overplayed, and early inscribing practices varied greatly from region to region.⁸ If we can be confident about anything, it is that our extant early inscribed laws do not represent a typical sample.

The most obvious way in which surviving inscribed early laws are not typical is in their almost universally sacred reference. It is true that my two examples above are not entirely representative, but they do not seriously distort the picture. Even if ‘Drako’s homicide law’ as preserved (Meiggs and Lewis, 86 [Fornara, 15B]) is unlikely to represent the whole of the original enactment on homicide, we nevertheless cannot be sure that it was not the religious overtones of homicide which determined the scope of the legislation. We must allow for the desire to put secular enactments into a sacred context so as to strengthen the spider’s web in the face of the powerful. Such a desire may determine the opening context of the Spartan Rhetra and the display of the Dreros law (Meiggs and Lewis, 2 [Fornara, 11] on the wall of the temple of Apollo Delphinios. But Solon’s axones are good evidence that not all laws were inscribed on temple walls, and that even display in a sanctuary might not involve display in imperishable form. Surviving remains are almost certainly biased to sacred law, biased to Crete, and biased to politically central enactments—the Dreros law, again, or the Chios fragments (Meiggs and Lewis, 8 [Fornara, 19]).

If tradition and surviving laws are both selective, and neither on their own can be reckoned to give a full historical picture, is there any way in which we can use them together? To investigate this I turn to the crucial early record of the lawgiver tradition, Aristotle’s Politics, and in particular the 12th chapter of Book 2. The legal content is quickly summarised: Aristotle takes it for granted that Solon left a constitution with a Council of the Areopagos, elected magistrates drawn from the top three census classes and subject to popular scrutiny, and a popular court. His argument concerns whether Solon could foresee that this would lead to the state being controlled by demagogues, and he argues that this was a matter of chance (symptomd) not choice (prohairesis)⁹ Aristotle then mentions Zaleukos and Kharondas, whose only original law is said to have concerned false witness and the invention of episkepsis (denunciation), but who is acknowledged to have legislated with unusual precision, and Philolaos’ laws for Thebes, which governed adoption and keeping the number of kleroi constant. Phaleas’ originality was in insisting on equality of property distribution, Plato’s communal possession of women, children and property, common messes for women, making the sober symposiarkhs, and encouraging ambidexterity. Drako is mentioned only for the severity of his laws, Pittakos for increasing the fines for offences committed when drunk, Androdamas for laws about murder and inheritance which were not, however, original.

At first sight these, like the laws Diogenes Laertios attributed to Solon in the passage I quoted above, seem a hotchpotch designed to bring out the wisdom of the lawgiver (note especially the explanation for Pittakos’ law about drunken offences). The way Aristotle frames his discussion, his search for original contributions (to idion) in each case, implies that he knows much more than he lets on, however, and it is reasonable to ask what his approach, and what the selection of laws which he does mention, imply. Two issues are particularly important: the question of ‘the unity of Greek law’, and the question of law codes.

Within the English-speaking tradition, at least, both ‘the unity of Greek law’ and the idea of early law ‘codes’ are out of fashion. The case against the unity of Greek law made by Finley in reviewing Pringsheim has been restated by Todd and Millett;¹⁰ the case against codes, which Gagarin began with his denial of large-scale enactments in early Crete, has been extended by Hölkeskamp, who denies that there were any substantial compilations of law.¹¹ Hölkeskamp expressly makes his case with reference to this passage of Aristotle:

What is even more important in this context is that Aristotle and Theophrastus do not suggest that such examples were drawn from a wider context: above all, there is no hint whatever that these nomoi were dependent parts of general and systematic laws on inheritance, contract and penal law or fully-fledged comprehensive ‘law codes’.

But, leaving aside Theophrastos, this seems to me to take insufficient notice of the structure of the passage. If Aristotle can really think it reasonable to say that all that was interesting about Kharondas’ legislation was its specificity and its introduction of denunciation for false witness, he must surely reckon on a common structure for law throughout Greece and a parallel scope for Kharondas’ as for others’ laws. Just what that scope may have been we cannot tell, and doubtless it stopped short of being a code both ‘fully fledged’ and ‘comprehensive’, but we must surely be dealing with much more than just single enactments. Hölkeskamp notes that the instances which Aristotle quotes are ‘extraordinarily narrowly defined’; but one should also note that the same is true, for example, of the episode from the life of Philolaos which Aristotle chooses to record. The narrowness of the biographical episode does not make us deny that Philolaos led a full and varied life, and the narrowness of the particular illustrations chosen should not lead us to deny a lawgiver a full and varied range of enactments.

The view that early law was a matter of ‘single enactments, independent, complete and self-contained statutes’ (Hölkeskamp, PCPS, 91) has gained force from the apparent support afforded by the epigraphic evidence. Until we get to the Gortyn ‘code’, nothing epigraphic clearly extends to more than a single law. But this support is more apparent than real. Quite apart from the odd beginning to Drako’s homicide law—‘And/even if someone kills another without forethought’—it is abundantly clear that the law from Tiryns which I quoted above cannot have stood in isolation. The magisterial paraphernalia which is involved, and the complexity of the relationships between the parties, must imply that parallel procedures were familiar in Tiryns, and if familiar then surely also embodied in other laws.¹² Enforcing a measure which the platiwoinarkhoi fail to enforce on the platiwoinoi cannot have been the sole duty required of the hieromnemon. Similarly, with the measure from Olympia, the idea that the finality of the people’s decree, or the provision about having the council of five hundred and full assembly agree to changes, or the limit on the number of times changes can be enacted, were invented for this one offence is preposterous. Whether or not the laws from Tiryns and Olympia were made at the same time as further laws, and whether or not those further laws were written down, we must think of them as fitting into a much wider structure of legal provisions, not made individually and standing in isolation.

The coincidence between tradition and epigraphic remains over the specificity of the laws should not be seen as a product of there only being scattered specific laws, but of the common character of the laws of Greek states. Aristotle makes the theoretical case for specific laws at the beginning of the Rhetoric (1.1354a11–b16); in the Constitution of the Athenians 9 [Aristotle] is keen to defend Solon against the charge of being deliberately vague. The single transferable anecdote that tells of both Kharondas and Diokles of Syracuse killing themselves to uphold their own laws, after accidentally entering the agora with a sword in time of civil strife, seems to be used to pick out lawgivers who were particularly specific.¹³ Such specificity becomes ridiculous if isolated: laws which make carrying a weapon in the market place at a time of civil strife a capital offence only have a place once direct assault upon magistrates, inciting popular affray, and other such actions have been dealt with, and once the agora has been deemed a special space in other ways also.

But we may also feel that specificity itself needs a context. For Hölkeskamp (PCPS, 92) the surviving specific laws ‘can hardly be the more or less casual result of a universal movement or process of “codification”’. On the contrary, I would argue that such specific laws presuppose a common structure embodied in further legislation: it is only in the context of a habit of clearly identifying who determines whether the specific offences described have been committed and/or who exacts the penalty for any transgression, that specificity is unproblematic. Clear identification of responsibility, and its limits, is all over the epigraphic remains. We find it in both my examples cited above, but also in the Great Rhetra, with its specifications about setting aside crooked decisions;¹⁴ in the Dreros law, limiting the kosmos’s judicial powers to his term of office and identifying those responsible for punishing any breaches;¹⁵ in Drako’s homicide law about the role of the basileus and of the ephetai and who shall give pardon in what conditions;¹⁶ in the Chios laws;¹⁷ in the Olympia law about prosecution and the limits of responsibility for crime;¹⁸ in the north Arkadian or Akhaian law about women wearing brightly coloured clothing and the responsibility of the damiourgos for seeing that the fine is enforced;¹⁹ and in the late sixth-century or early fifth-century law from Mycenae.²⁰ Such a concern with who can and who cannot do what in the judicial sphere surely lies behind Solon’s basic distinction between graphai and dikai, and behind the enormous complexity of Athenian homicide courts. A number of Solon’s individual laws mentioned in literary texts manifest similar concerns—for example, the law, not above suspicion, that Athenians could not sell agricultural produce abroad except for olives, is a law that focuses on the responsibility of the archon for enforcement.²¹ Of the laws picked out by Aristotle at the end of Politics 2, Kharondas’ law allowing denunciation for false witness certainly, and Pittakos’ law about drunken offences more dubiously, fall into the same category. Hölkeskamp (Metis, 58) is right to deny that ‘the diverse and specific provisions’ of early law can be regarded as ‘deliberate and adequate responses to social unrest’, but it is not the specific provisions themselves that are the responses but the identification of responsible magistrates which they involve.

The prominence of officials in early law may well have been reflected in the way in which laws were grouped. Classical Athenian law organised itself according to the magistrate responsible, rather than through some typology of offences, and the same is true elsewhere. Although the evidence amounts to rather less than proof, the apparent order of Solonian laws makes it not unlikely that Solon’s laws too were organised by magistrate.²² Such an organisation reflects the ‘statelessness’ of the Greek city: no agency within the Greek city monopolised legitimate violence.²³ Individual magistrates have individual and very particular powers and duties, and habit, reinforced by fear of divine sanction, not magisterial power, secures obedience to law (see Arist. Pol. 2.1269a20–3). To attempt systematically to regulate human behaviour in such a society is both unnecessary and impossible; to define who is responsible for treating breaches of acceptable behaviour is essential.

Many literary references to Solon’s and others’ laws have no reference to the officials responsible, and here we run into the limits of the usefulness of the literary texts. Literary texts, the product of a biographical tradition not a tradition of legal analysis, are interested in what types of human behaviour lawgivers thought should be regulated, and how they dealt with them; they are not interested in the precise name of the magistrate responsible for action. One could easily summarise the epigraphic evidence, not inaccurately, as being about prohibiting women from wearing brightly coloured robes, couples from fornicating in the sanctuary, and so on. A writer familiar with the absence of a single agency monopolising legitimate violence would take for granted the specification of responsibility for enforcing justice, and without that specification it is the picturesque details that one is left with. That, after all, is where the originality of the lawgiver lay.

It is clear why our literary and epigraphic evidence presents the work of lawgivers as fragmentary. The tradition about lawgivers fails to talk about overall structures and concentrates instead on individual oddities because it is a biographical tradition, more interested in the mutual light shed by lawgiver on laws, and laws on lawgiver, than in the nature of early law. Only when we escape from the purely biographical tradition, as we do to some extent when dealing with Solon, does the full scope of the legislator’s activity begin to appear. Epigraphic remains do no justice to the extent of early legislation because specific laws were relevant to and placed at specific locations. If the law about the gerairai at the Lenaea ([Dem.] 59.76) which was inscribed in the temple of Dionysos in the Marshes, open only one day a year, had been recovered by archaeologists, it too would appear as an isolated enactment.

The literary tradition is important not because it preserves snippets of genuine early laws: it remains unwise to believe any particular law which tradition ascribes to a lawgiver unless we have external evidence for it. The literary tradition is important because the presuppositions which it makes give a setting for, and bring out the implications of, the epigraphic remains. Inscriptions and literary texts need to be used, and thought about, together, if we are to join up the dots and construct an overall picture of law in early Greece.²⁴

NOTES

1 Diog. Laert. 1.63 (Anth. Pal. 7.87).

2 Diog. Laert. 1.55–7. For Solon and athletic victors see also Plut. Sol. 23.1.

3 On Diogenes as a source for Solon’s laws see Ruschenbusch, 42–5.

4 Periander and the ears of corn: Her. 5.92.æ.2, Arist. Pol. 3.1284a26–33, Diog. Laert. 1.100; the story is told of Tarquin in Livy, 1; cf.
Salmon, p. 60 above. Solon and spiders’ webs: Diog. Laert. 1.53, Plut. Sol. 5.2. For the importance of the absence of any force which could compel obedience to the laws see further 79–80 and n. 22, below.

5 SEG xxx 380 (Tiryns, C7). Nos 1–4: …

6 I. von Olymp. 7 =GDI 1156=Buck, 64 =SEG xli 392:

7 K.J.Hölkeskamp, PCPS n.s. 38 (1992), 87–117 (=Hölkeskamp, PCPS). Diogenes is better represented in Hölkeskamp’s article in Metis 7 (1992), 49–81 (=Hölkeskamp, Metis), but Hölkeskamp’s stress on the variety of laws ascribed to archaic lawgivers fails to allow for the nature of the biographical tradition. Although I am critical of one aspect of Hölkeskamp’s position, I regard his papers as the best introductions to early Greek law.

8 R.Thomas, BICS 40=n.s. 2 (1995), 59–74; S. Stoddart and J.Whitiey, Antiquity 62 (1988), 761–72.

9 Arist. Pol. 2.1273b35–1274a21. For the structure of the argument compare Ath. Pol. 9.

10 M.I.Finley, Seminar 9 (1951), 72–91, reprinted in his The Use and Abuse of History, 147–52; S.C.Todd and P.C.Millett in Cartledge et al. (eds) Nomos, 1–18 at 7–11. As will be seen, I have some sympathy with the arguments of Sealey, The Justice of the Greeks, chapter 3.

11 Gagarin, Early Greek Law, 62; Hölkeskamp, PCPS, 90, Metis, 55–6, and compare Hölkeskamp, in Gehrke (ed.) Rechtskodifizierung und soziale Normen im interkulturellen Vergleich, 135–64. Many sensible observations, making illuminating use of contrasts with Near-Eastern codes, can be found in Sealey, op. cit. (n. 10), chapter 2.

12 The extant remains, though too small to allow much sense to be made, in any case imply the existence of other enactments.

13 Diod. Sic. 12.19, 13.33.2. With Aristotle on the akribeia of Kharondas compare Diod. Sic. 13.35.4 on Diokles.

Lyk.

14 Plut. Lyk. 6.1–2, 7–8.

15 Meiggs and Lewis, 2 (Fornara, 11) (Dreros: 650–600).

16 Ibid., 86 (Fornara, 15B) (Athens: 409/8, reinscription).

17 Ibid., 8 (Fornara, 19) (Chios: 600–550)

18 I. von Olymp. 2 =GDI1152 =Buck, 61 =SEG xli 391 (Olympia: before 480): The law of the Eleans. An accused man’s phratry and family and property shall be immune. If anyone brings a charge, he shall be prosecuted as in the case of a citizen of Elis. If he who holds the highest office and the basileis do not impose the fines, let each of those who fail to impose them pay a penalty of ten minai dedicated to Olympian Zeus. Let the Hellanodikai enforce this, and let the body of demiourgoi enforce the other fines. If he does not enforce this, let him pay double the penalty in his accounting. If anyone maltreats one who is accused in a matter involving fines, let him be held to a fine of ten minai, if he does so wittingly. And let the scribe of the phratry suffer the same penalty if he wrongs anyone. This tablet sacred at Olympia.’)

19 SEG xi 1112 =LSCG supp. 32 (N.Arkadia/Achaia: late C6): (‘If a woman wears a brightly coloured robe, it shall be consecrated to Demeter Thesmophoros. If she does not consecrate the garment, let her, being unfriendly as regards a sacrificial garment, be outlawed, and let whoever is damiourgos pay out thirty drachmas. If the damiourgos does not pay, or if he does not have authority over the impious act, ten years shall be the duration of the curse in the latter event.’ Trans. A.J.Beattie, CQ 41 [1947], 66–72.)

20 IG iv 493 =Buck, 81 =LSAG Pl. 31.1 (Mycenae): (‘If there is no body of demiourgoi, the temple administrators of Perseus shall judge between the parents according to what has been decreed.)

21 Ruschenbusch, op. cit. (n. 3), fr. 65 (Plut. Sol 24.1).

22 Hölkeskamp (Metis, 56–7) ignores this organisational feature in denying Solon ‘anything like a “code”’ as part of his very curious justification for leaving Solon aside.

23 See most recently M.Berent, Hist. Pol. Thought 17 (1996) 36–59.

24 I am grateful to participants at Durham for comments, and especially to Mogens Hansen and Peter Rhodes. Moshe Berent kindly showed me unpublished work which encouraged me to take certain ideas further.