When Michael Gagarin and I first met in Berkeley in the mid-1970s, we were the only two scholars (both at the very beginning of our careers) in the United States who thought of their academic specialization as “Greek law.” At that time Douglas MacDowell was the only British scholar with such an established specialization. In other words, the study of Greek legal history was a largely continental European enterprise, and it was traditionally dominated by German, and secondarily French and Italian scholars. The composition of the contributors to this volume testifies to the dramatic changes to this field of study in the last twenty-five years. This is due to a variety of factors, including the decline in interest in most areas of pre-modern legal history in countries such as Germany that were once the bedrock of the discipline, as well as the marked increase in interest among British and American scholars. The majority of the contributors to the volume are thus British and American because this is where in recent years there has been the greatest amount of scholarly interest. Although the most eminent and established senior figures in Greek legal studies include many Europeans (represented here by Cantarella, Maffi, Rupprecht, Modrzejeweski, and Thür), a younger group of Anglo-American scholars (not all of whom, of course, figure in this volume) are rapidly making their mark on this discipline. In selecting the contributors for this volume, Michael Gagarin and I tried to represent the wide variety of approaches and subject matter areas that characterize Greek law scholarship. We also deliberately included both the most senior and some of the newest and most promising researchers (such as Allen, Lanni, Rubenstein, Thomas, Todd, and Yunis), as well as distinguished individuals, such as A. A. Long and Robert Parker, whose areas of specialization lie outside of Greek law, but whose expertise can fruitfully be brought to bear on important topics of central concern in our field. Our aim was to provide the reader with not only a broad and intensive introduction to the field, but also a sense of where it is going, a sense of the exciting variety of intellectual and disciplinary perspectives that are increasingly being brought to bear in studying Athenian and other Greek legal systems. We have thus included essays representing a number of traditional approaches, as well as some that push the boundaries of the field.
Along with the shift in the center of gravity away from traditional centers such as Germany and toward the United States and England, there has been an even more important change in the presuppositions about what Greek law is and how one ought to study it. The advent of Anglo-American scholars has brought a variety of new perspectives and methodologies to the field. New questions are being asked, neglected sources used, and comparative and theoretical perspectives brought to bear on Greek legal institutions. This is in significant part because of the simultaneous intellectual growth of the disciplines of classics and legal, social, and cultural history. Scholars with a whole new set of questions, methods, and research agendas have turned their attention to Greek legal institutions. They have revolutionized and enriched the field through their efforts, and we hope that our selection of contributors provides the reader with a sense of the excitement and innovation that now characterize much of the work being done in this field. This expansion of scholarly activity has also, as one might expect, been accompanied by the growth of a much larger audience for scholarship in this area. Thirty years ago scholarship regarding Greek law, with the exception of handbooks like the one written by MacDowell,1 was published in specialist journals and scarcely read outside of a fairly narrow circle of researchers. Today, no longer the province of a handful of specialists, Greek law has increasingly been recognized as vital for an understanding of a whole range of political and social institutions in ancient Greece. This can most clearly be seen, for example, in studies of gender and sexuality, ancient democracy, politics and political theory, social conflict, and so on. At the same time, sources such as the Athenian legal orations, which were once scarcely read except by Greek law specialists, have now been recognized as being of central importance for the study of Athenian social, political, and cultural history.
One of the most welcome developments, in my opinion, has been the demise of orthodox paradigms for the study of Greek law. In the 1970s the field appeared to be divided between two approaches: a majority of continental European scholars, for the most part trained in law, who focused largely on technical doctrinal questions, following the model of civil (and Roman) law jurisprudence; and a much smaller group of British classicists, with little knowledge of legal theory or substantive law, who concentrated largely on procedural and institutional issues. In retrospect these differences now seem less important than they once did because both schools of thought now stand in far greater contrast to the variety of approaches that have exploded the boundaries of the study of Greek legal history in recent years. There is now no dominant paradigm, and the result is that questions previously neglected are now being explored and older issues once thought resolved are being reexamined by a wide range of perspectives, many of which draw on the methods and insights of other disciplines. Whereas disputes in Greek law once tended too often to focus on stale controversies and arid disputation of narrow doctrinal questions, now lively and multifaceted debate swirls around fundamental questions of Greek legal practice and institutions and their relation to broader political and social frameworks. Such controversies are only to be welcomed and encouraged, and the reader of this volume, the editors hope, will emerge with a sense of the way in which such discussions are expanding the contours of this field of inquiry.
As a way to explore further some of these issues of scope and method, as well as to provide the reader with a context for what is to follow, we now turn to an overview of some of the contributions to this volume and the questions the authors raise.
In the opening chapter, “The Unity of Greek Law,” Michael Gagarin addresses one of the oldest controversies in Greek law, which involves some of the most basic questions defining our field of study, such as, “What is Greek law?” Continental scholars had once largely assumed a fundamental unity of Greek legal institutions across the Greek world. Challenged in the 1950s by Moses Finley to justify this assumption in light of a good deal of evidence that suggested the contrary, these scholars retreated from the notion of unity of institutions to a more limited view of an underlying unity of basic ideas.2 Gagarin argues that Finley’s view vis-à-vis continental scholars was correct: There was no “Greek law” in terms of common underlying legal ideas and basic principles of substantive law. Gagarin resumes Finley’s critique, showing how in the area of marriage and inheritance there are fundamental differences among the laws of various Greek cities, differences significant enough to render the idea of any common underlying fundamental conceptions (Grundvorstellungen) meaningless.3 More importantly Gagarin suggests the way in which the idea of this unity is largely the product of, or made possible by, our lack of evidence for other Greek legal systems: “The more detailed our knowledge, the more clearly the differences stand out.” This underscores major methodological problems that remain to be explored; as the contributions of Rupprecht and Mordzejeweski in this volume show, there are still many influential adherents to the unity thesis. In the Anglo-American world, however, the overwhelming tendency is to speak of “Athenian law” or the law of particular poleis when referring to legal doctrines or institutions.
Gagarin also shows that what is ultimately at stake in such debates – and this is vitally important – is the desire to use what we do know to reconstruct what we do not.4 Scholars have attempted to use the idea of Greek law to reconstruct the huge gaps in our knowledge about cities other than Athens. Using Greek evidence as well as analogies from modern American law, Gagarin shows the folly of attempting to do so.
Having properly indicated the way in which we can now regard this issue as settled, Gagarin then moves the discussion to a new level. He advances a provocative and interesting claim that places the question of Greek law in a new perspective. He suggests that although there is no substantive Greek law, there may well be underlying common ideas in the realm of procedure, understood in the broadest terms as legal process. He makes the highly original and important claim that one of these underlying procedural notions has to do with the way in which trials in Greece, in contrast with many other premodern legal systems, consisted of litigants freely presenting their cases “as they saw fit.” Another claim focuses on the way in which Greek legislators readily acknowledged the notion of “gaps” in the laws because they saw the role of judges as “filling in” what was required to do justice in individual cases. This, he suggests, is in stark opposition to legal systems that believe that gaps must at all costs be avoided and seek to deny the “lawmaking” capacity of judges. These are very large claims that will require a lot of comparative research both inside and outside of ancient Greece to explore.5 As always, Sparta, which did not have a system of written laws, may prove an obstacle to acceptance of the universality of such ideas.
What is important here, however, is that Gagarin has refocused the debate in an extraordinarily useful way. Here we see, in strong contrast to the state of the discipline a few decades ago, the way in which contemporary scholarship has moved us beyond the aridity of earlier debates about the “unity of Greek law.” What Gagarin suggests here is that we focus instead on the features of the “Greek” way of thinking about how law functions and is practiced in a polis. This suggests that the Greek attachment to what Gagarin calls “procedure broadly understood,” and, to my mind, might be more aptly labeled as legal process, has to do with the distinctive forms of political organization that characterized Greece in the age of the polis. In the challenge that this bold thesis presents, and in the way in which it can be addressed only through comparative legal historical studies, Gagarin has opened the door to the “Greek law” debate of this century.
Rosalind Thomas’s chapter, “Writing, Law, and Written Law,” shows the way in which the contributions of social and cultural historians have enriched the study of Greek legal traditions. It also provides an example of how far the study of Greek law has come in the past few decades. Thomas is perhaps the leading expert on literacy and writing in ancient Greece. Building on her work on the role of written texts and literacy in the development of political institutions, she addresses here important questions about the nature of written law, its connection to political and social developments in archaic and classical Greek poleis, and the relationship between written and unwritten law.
Above all, Thomas shows how important it is to understand legal developments, such as the introduction of written laws, in the political and social context. This may seem evident to some, but to legal historians used to thinking of the legal system as having an autonomous life of its own, this point is anything but obvious. For this reason, and because of general advances in our understanding of the impact of the introduction of writing and literacy, Thomas’s work goes well beyond earlier scholarship on the nature and importance of written law in archaic and classical Greece.
Thomas argues that, “the writing down of law was probably undertaken in a variety of ways by different city-states for rather varied purposes; depending on politics and context, such written laws did not have identical implications everywhere.” Examining the variety of evidence (much of it fragmentary) that we have for the legal traditions of different poleis, she demonstrates how the adoption of written legislation was connected to fundamental political and social changes that transformed the archaic polis. The innovation of written statues seems often to come at times of crisis or institutional reform. In such situations the device of writing down the law may, depending on the political setting, serve to limit or underscore the power of officials and rulers.
Even more important from a comparative legal historical standpoint is Thomas’s discussion of the nature of early Greek legislation and its relation to unwritten laws or norms. Thomas points out that the introduction of written laws builds on preexisting traditions and norms. In deference to modern, positivistically oriented lawyers, she is hesitant to label such norms as “laws” even though the Greeks had a clear conception of “unwritten laws.” We need not be so deferential to the quibbles of legal philosophers, however, because legal anthropology and comparative legal history have shown clearly enough that elaborate legal systems can function in the absence of written codes. In any event, one of Thomas’s central insights is that written statutes appear often to have been introduced to solidify and make permanent innovations or resolutions or controversial points: “This brings us to the probability that for most communities the laws which went up in writing were particularly special: these were not the ones agreed by all, but the contentious ones, the rules which constantly caused trouble. . . .” Although David Daube had made the same argument about early Roman and Biblical codifications, his contribution on this crucial issue has too often been ignored and has scarcely had any impact on historians of Greek legal institutions.6 Thomas’s analysis of particular cases of early codification reveals how crucial it is to look at the broader social and political context of legal innovation.
Thomas’s chapter, then, is a vivid illustration of the way in which the flourishing of Greek social and cultural history has in turn produced nothing less than a minor revolution in the study of Greek legal history. Without the advances in our understanding of the introduction of writing and the nature and scope of ancient literacy, this nuanced and rich account of the introduction of written legislation would not have been possible. Likewise, it is Thomas’s authoritative understanding of these issues that enables her to sketch the relation between written and unwritten law in a way that goes far beyond earlier discussions and to demonstrate how, from this perspective, “this new idea of written law may even have represented the first use of official writing by the early polis, and it is not surprising to find that these early groups attempt to set apart the law in as many special ways as possible in an attempt to give it an authority it might not otherwise have. . . . It was radical new laws which needed this kind of protection rather than the traditional customs and rules of a community.”
In “Law and Religion” Robert Parker explores the different dimensions of the relation of law and religion in Greece. As the preeminent scholar of Athenian religion he is ideally suited for such a task. His study reflects the development in our understanding of the institutional framework of Greek religious practice and of its integral connection to the political institutions of the polis. It also shows, like Thomas’s contribution, the way in which “nonspecialists” in Greek law have become increasingly sophisticated in dealing with legal issues and texts, as well as with the relation of legal issues to the broader social, cultural, and political context.
It is apt that Parker deals at length with the important contribution of the German philologist, Kurt Latte, to our understanding of the sacral element in legal process. Like Latte, Parker is not a specialist in Greek law, but also like Latte he has read widely in comparative legal history. His grounding in this subject and other relevant disciplines has also enabled him to go considerably beyond Latte in important respects, for example, by seeing the limitations of the evolutionary theories of law implicit in Latte’s account of the development of oaths and the like. Both scholars show how classical scholars and ancient historians can, if they acquire a solid-enough understanding of legal institutions, use their own extraordinary specialist expertise, in this case in religion, to make a unique contribution to the understanding of aspects of Greek legal tradition and practice.
In Chapter 4, “Early Greek Law,” Michael Gagarin takes on another large and fundamental issue. The history of early Greek law is an enormously fraught subject to which generations of scholars have devoted their learning and ingenuity. The same is true of early Roman, Germanic, and English law, for example, because the origins of most premodern legal systems are cloaked in the obscurity of historical eras for which little reliable evidence exists. The study of the early developments in legal systems thus raises serious substantive and methodological questions. In regard to the earliest period of Greek law (defined in this chapter as ca. 700–500 B.C.) these questions have to do with issues such as the literary nature of the sources; questions, in the case of Homer, as to what extent they refer to actual legal institutions and of what historical period; how to interpret and generalize from isolated and fragmentary evidence; how to counter the “evolutionist” tendency to use what we know of later periods to reconstruct what developments “must have” been like; and how to deal with the very large temporal gaps in our sources in this period and the implications they have for attempts to trace institutional “continuities” into later periods.
Traditionally, scholars of Greek law have been reluctant to confront these methodological problems, in significant part because such a methodological critique seems to threaten our ability to say anything about the legal institutions of this period of which we know so little. Scholars often admit that any conclusions must be “speculative” but then expend enormous energy arguing for and against such speculations. The history of the scholarship on topics such as the trial scene depicted on the shield fashioned by the god Hephaestus for Achilles (Iliad, 18.497–508) bears ample witness to this tendency. Although there is still a pressing need for many such methodological issues to be more fully addressed, some contemporary historians of early Greek institutions have made considerable advances in taking them into account.7 In regard to early Greek law, the development of Michael Gagarin’s work in this area demonstrates how much progress has been made.
Gagarin is the leading modern scholar of this difficult and arcane area of Greek legal history. His chapter on the topic demonstrates that awareness of methodological difficulties does not preclude drawing important conclusions from the evidence we have. Developing themes he also discusses in his chapter on the unity of Greek law, Gagarin shows how the Greek understandings of dispute resolution and legal process eschew formalistic legal ritual in favor of oral proceedings in which litigants and judges are relatively free to present and decide the case as they see fit. Gagarin sees the “two aspects of early Greek law – written legislation and oral procedure” – as “an unusual combination, unlikely to be the result of influence from some other legal system. Rather, I would suggest, both aspects exemplify the Greek tradition of open, public debate and discussion among a large segment of the community.” In my view such conclusions are based on a sober assessment of what the limited evidence we have can and, more significantly, cannot tell us. Gagarin engages at some length Gerhard Thür’s interpretation of the shield of Achilles. A comparison of their approaches reveals how vitally important such methodological awareness is, for Thür’s seemingly almost total lack of concern for methodology leads him to extreme and untenable conclusions that Gagarin has little difficulty demolishing. It is perhaps not unfair to generalize here by claiming that to a significant degree (though by no means completely) the greater concerns for methodological issues characterize contemporary Anglo-American scholarship on Greek law in comparison with its continental counterpart.
Another merit of Gagarin’s approach raises a different serious methodological issue that has engaged not only legal historians but also the wider historical disciplines. This concerns the use of comparative evidence from other legal systems. Gagarin rightly rejects the so-called comparative method as employed by earlier major figures in Greek legal history such as Louis Gernet, Hans Julius Wolff, Kurt Latte, and, more recently, Gerhard Thür. This method, rooted in unexamined presuppositions ultimately derived from nineteenth-century social evolutionist theories, proceeded from the starting point that comparative evidence can be used to reconstruct the legal institutions of early Greece because, “that in matters legal the human mind is so constructed as to seek similar solutions for similar situations under analogous conditions, needs no justification” (Wolff 1946: 35). Modern scholarship in anthropology, social theory, historiography, and other disciplines has more than adequately revealed the glaring inadequacies of such approaches. In the rest of his chapter Gagarin provides an example of how comparative evidence from, for example, Near Eastern legal systems may fruitfully be employed, not as an evolutionary “model” on which to base “reconstructions” but rather as an analytical tool. Drawing on the important differences between early Greek and Near Eastern approaches to legal process, Gagarin arrives at the important hypothesis that
From the beginning, Greek law conforms to this Greek tendency toward openness and public debate that some (e.g., Lloyd 1979) have seen as the root of Greek intellectual achievements. And as it grew during the archaic period, Greek law maintained this productive combination of fixed, stable, written legislation together with an oral, dynamic process for settling disputes that will persist in Athens right through the classical period.
In Chapter 5, “Law and Oratory at Athens,” Stephen Todd lucidly emphasizes the participatory and oral nature of Athenian litigation. He explores the role of the orators in this system where litigants were, at least in principle, expected to prepare and present their own cases. This participatory, democratic characteristic, he points out, extends also to the lay judges who are expected to reach decisions without conferring and without any instruction in the law by legal experts. Todd largely confines himself to an elucidation of the differences among the orators, the tradition that led to the corpus we now possess, and the role of the logographer, or speechwriter, in Athenian litigation. Although earlier scholars like Wolff looked at legal advocacy, one of the distinguishing features of contemporary Anglo-American scholarship on Athenian law has been ever greater attention to the rhetorical and performative dimensions of Athenian trials, as well as to the crucial importance of rhetoric as an organizing category for both forensic oratory and legal thought.
In “Relevance in Athenian Courts” Adriaan Lanni, guided by a lawyer’s understanding of the dynamics of ancient and modern litigation, uses the issue of relevance to raise some of the most important and most controversial questions in contemporary Greek law scholarship. Traditionally, scholars of Greek law had measured Athenian trials by the standards (frequently idealized) of contemporary legal systems and often found them wanting. Athenian orators too frequently “perverted” the legal process by rhetorical appeals to emotion or irrelevant facts and issues. The “better” advocates, in this view, stuck closer to the case at hand and thus displayed a commitment to the rule of law. This view has come under attack in recent years, provoking a wide range of responses from the community of Greek law scholars.8 The main thrust of the critique was to suggest that before criticizing Athenian trials against some modern criterion, we ought to ask how the Athenians themselves understood the purposes, nature, and legitimate scope of the trial and of the kind of justice it sought to achieve. Seen from this perspective, Athenian trials may seem very different from their modern counterparts, but this is not because selfish demagogues or unscrupulous orators distorted the legal process but rather because the Athenian judges and litigants in this participatory system had very different expectations about what a trial was and how legal justice should be conceived. Such interpretations have roused the ire of scholars who want to defend Athenian courts as committed to the rule of law, which in their opinion apparently consists in confining the trial to the relevant legal and factual issues.9 But what did Athenian judges, as opposed to modern classicists, think was relevant? Why should we assume that there is a universal standard of relevance in legal argumentation? This is the crucial question that such scholars have too often overlooked or sidestepped. Lanni’s chapter ably addresses this crucial nexus of the issue.
Lanni advances a very powerful and well-documented argument in favor of an approach that accepts the idea that Athenian judges saw their role as arriving at context-specific decisions based on considerations that might seem irrelevant in modern Western adjudication. Apart from her incisive analysis of three major categories of “irrelevant” arguments that Athenian judges apparently did find relevant, she adduces another very compelling consideration in favor of her position: In the homicide and maritime courts Athenians did apparently adopt far more restrictive standards of relevance. This shows that such notions were by no means unknown to them, but that they did not find them appropriate for the kind of litigation conducted before the regular courts:
. . . [I]n the vast majority of cases Athenian jurors produced largely ad hoc decisions, as a wide variety of extra-legal material was considered relevant and important to reaching a just verdict tailored to the particular circumstances of the individual case. In this respect, the Athenian courts were both more and less removed from modern courts than is commonly believed: the legal system cannot be characterized as embodying a rule of law, but the participants nevertheless viewed the process as aiming for recognizably “legal” rather than social ends. The Athenians’ distinctive approach to relevance in the popular courts reflects a highly individualized and contextualized notion of justice.
One might, however, go a step further here by inquiring what participants in the legal system of democratic Athens considered to be the “rule of law”? There is little question that they saw themselves as committed to and generally upholding the rule of law on which, in their opinion, their democracy depended. The crucial point here, however, is that unlike Lanni they did not conceptualize “legal” and “social ends” as standing in opposition to one another.10 It is their understanding of the way in which the interests of the demos and the rule of law intersect that produces what Lanni rightly calls a “highly individualized and contextualized notion of justice.” In response to Lanni’s critics, who will rush to present examples of cases where there is considerable attention to the legal issues at hand, one must point out that of course not every case was treated in the same way. Orators and litigants exploited the rhetorical opportunities that each case, viewed in its particular social and institutional context, presented. In some cases this would dictate a strategy whereby a party (we normally only have one side of the case so we cannot know to what extent an opponent responded “in kind”) would focus on legal and factual matters that seem relevant by modern standards. But, as Lanni aptly points out, in many trials they did not, and the vast majority of extant cases include some such material. One must take care here not to presuppose that all cases must be explained according to one paradigm or that we are dealing with an absolute opposition between the rule of law and social interests. As I have attempted to argue elsewhere, this is certainly not the case.
This debate, in which Lanni’s chapter represents a major contribution, again shows the way in which Greek law as a discipline has developed in recent years. Rather than focusing on narrow doctrinal or procedural issues as in the dominant mode of scholarship prior to the 1980s, a vibrant debate here addresses the very nature of the Athenian legal system, seen from the standpoint of legal process rather than formal legal structures. This debate inevitably engages fundamental issues concerning our understanding of Athenian democracy and its conceptions of law and justice, as well as raising important questions of political philosophy and legal theory. One can only hope that debate on these unresolved issues continues, as it offers, as demonstrated in Lanni’s chapter, rich opportunities for reexamining a variety of legal issues as well as basic questions of what it means to do justice before the law, whether in the world of classical Athens or our own.
The increased sensitivity to the rhetorical dimensions of Athenian litigation forms the basis of the contribution of Lene Rubinstein. Her chapter on differentiated rhetorical strategies in the Athenian courts examines the way in which rhetorical strategies depended to a significant degree on the type of procedural rubric under which a trial proceeded. Greek law scholars have paid considerable attention to the multiplicity of actions from which litigants might choose to prosecute certain kinds of wrongs they claimed to have suffered. Although earlier Greek law scholarship tended to view these categories rather rigidly, in recent years scholars have shifted to a less formalistic interpretation, which emphasizes the similarities in the way in which public and private actions were conducted. This has been a welcome change from previous approaches that tried to make sense of the basic Athenian distinction between public and private actions by matching them up against modern notions of criminal and civil actions. The increased recognition of the consequences of the fact that both kinds of actions depended completely on the initiative of private citizens, from the filing of a suit through the trial itself, has led to a far better understanding of the participatory and democratic nature of the Athenian legal system and of the role this multiplicity of actions played within it. Rubinstein adds to this understanding by showing how different kinds of legal rubrics in turn defined the rhetorical situation of the trial in varying ways and thus demanded appropriate rhetorical responses. Although this point may seem at first glance obvious, it has not always been sufficiently appreciated that particular kinds of rhetorical appeals were by their nature more appropriate in some legal settings than in others. Rubinstein looks at three such contexts in particular and shows that “the strategic deployment of the arguments on anger, punishment, and the educational role of the court was context sensitive and that the type of case that the litigant was fighting had a clear influence on his method of pleading.” Again, thinking through the consequences of the centrality of rhetorical performance in Athenian trials results in a better understanding of the factors that shaped those trials as legal events and of legal practice itself.
The rhetorical turn in scholarship on Athenian law has also influenced scholars who follow more traditional approaches. Gerhard Thür, for example, a leading expert on the law of evidence in Athens, acknowledges to a much greater extent now than he did in his book on the subject some twenty-seven years ago the need for understanding the rhetorical context and techniques at work in particular cases.11 His chapter in this volume on the role of witnesses in Athenian law shows how important such an increased awareness can be for considering the role of witnesses in particular cases. Thür’s chapter provides a fine demonstration of the kind of traditional methodology in Greek law, also characteristic of a previous generation of scholars such as Harrison, Hansen, and MacDowell, which emphasizes detailed technical exposition of legal norms and, more particularly, procedures.12 Anglo-American methodologies have largely evolved in the direction of looking at legal process in its social and cultural historical context, informed by comparative evidence drawn from social history, anthropology, and the practices of other historical and contemporary legal systems.
The contrast between such approaches and those of traditional Greek law scholarship appear quite vividly in the final part of Thür’s chapter (Section III), where he briefly considers a few of the different kinds of treatments of witnesses produced by Anglo-American scholars in recent years.13 One senses here the attempt to communicate across a methodological divide that cannot easily be bridged. One has the same sense when reading earlier treatments by the traditional scholars just mentioned against many of the essays on similar subjects in this volume. One can see quite clearly here the distance that Greek legal studies have traveled in the past twenty years or so. This is not to deny the value of the approaches of such traditional scholarship. They are still vitally important, and any student of Greek law has an enormous amount to learn from a careful reading of such texts. The important point is that thirty years ago such traditional approaches were overwhelmingly dominant, whereas today our field of study benefits from an extraordinarily wide variety of theoretical, methodological, historiographical, and intellectual orientations (whether explicit or implicit).
Harvey Yunis’ chapter on “The Rhetoric of Law in Fourth-Century Athens,” raises issues that would in all likelihood not have been addressed at all a few decades ago. To the extent that legal scholars of previous generations concerned themselves with the question of rhetoric, the focus would either have been on advocacy, understood in something like a Roman law sense, or on examining formal rhetorical techniques. Yunis represents an approach to Athenian law that has benefited greatly from the kind of recent scholarship, like that of Josiah Ober, that has taken a fresh look at Athenian democracy and emphasized the role of rhetoric and the practices of the law courts in the way that democracy worked.14 Such treatments of Athenian democracy proceed from an orientation informed by political and social theory, sociology, and anthropology and have revitalized the study of this topic about which many scholars once believed that little new was left to say. Contemporary students of Athenian law were quick to adapt such orientations to the study of legal institutions by showing their embeddedness in a democratic political culture defined by participatory institutions on the one hand and the recognition of the power of persuasive speech (rhetoric) on the other. Yunis here presents a view of fourth-century Athenian law that, in contrast to earlier approaches, emphasizes practices over institutional structures and formal norms and shows the way in which those practices are shaped by participatory democracy and the rhetorical political culture of which they were a part. For Yunis this involves, for example, examining trials as rhetorical contests and showing how the rhetorical construction of the twin goals of doing justice in the case at hand and serving the interests of the demos produced a distinctive notion of the democratic rule of law.
Eva Cantarella is one of the most important figures in modern Greek law scholarship. Her work spans the full range of approaches of the past three decades, always staying at the cutting edge of the discipline. Her oeuvre grows out of rigorous juristic, but nonetheless literarily refined, treatments of Homeric law and the law of homicide in the 1970s and proceeds to the thoroughly interdisciplinary studies of women, sexuality, and gender for which she is best known today. Surpassing previous Italian scholarship by figures like Paoli and Biscardi, Cantarella, together with her colleague and student Alberto Maffi, has made Milan the most important center in contemporary continental Europe for Greek law scholarship. Although Italian scholars of Athenian law once looked to Germany for inspiration, the direction of creative energy has in recent years been reversed as the traditional German interest in Greek (and for that matter Roman) legal history has waned.
As demonstrated by her magisterial survey in “Gender, Sexuality, and Law” from Homer to fourth-century Athens, Cantarella’s approach is characterized by enormous erudition coupled with an intimate familiarity with the most recent developments in gender studies in a wide variety of disciplines. The study of gender and sexuality, apart from the pioneering work by Kenneth Dover,15 was neglected even longer in the study of Greek law than in many other areas of historical research. Beginning in the 1980s, however, a substantial body of work, in which Cantarella was an important innovative force, turned to such questions and began to examine systematically the role and status of women and the legal regulation of sexuality in Athens and elsewhere in the Greek world. Building on insights from gender theory and anthropology, Cantarella situates her account within a framework defined by the application of social construction theory to the law: “In other words, the law is gendered, and at the same time engenders society: on the one hand it reflects the social construction of sexual roles, on the other it reinforces this construction.”
Moving with ease through the wide range of sources from Homer onward, Cantarella shows how the earliest literary tradition defined women as “a different race, indeed: for the Greeks, women were the otherness which one could not comprehend. And like everything that is incomprehensible, women – unless tamed by marriage – were dangerous.” From this starting point she develops a powerful argument to show how the earliest known Athenian legislation, the laws of Draco, incorporated such a conceptualization of women, “transforming the social stereotype into a legal classification which had fundamental legal consequences on women’s life.” In the remainder of the chapter she traces out how this classification shaped the way women were treated in the full range of legal contexts, ranging from adultery and rape to the law of property, marriage, and inheritance. Although her approach is deeply informed by feminist scholarship and perspectives, she avoids the extreme positions taken by some scholars by virtue of the balance, independence, and open-mindedness with which she approaches the sources and the secondary literature. For example, on the much discussed issue of the legal status of women, she rejects the widespread, but utterly mistaken, position that women’s legal status was like that of slaves and children.16 She recognizes that although Athenian women could not participate in political institutions, they were, in fact, citizens and that this status had important legal and political consequences. Making an important distinction, too often overlooked by some scholars, Cantarella concludes that, “In other words, they had the status, but not the functions of citizens. . . . After a decree passed in 450 by Perikles, their status of citizens (as astai) became a condition for the citizenship of their children.”
In Cantarella’s work on gender and sexuality, as is well-represented by her contribution to this volume, one can see how the study of Greek legal institutions has progressed from a marginal and esoteric subdiscipline of classical scholarship to being a powerful tool for examining basic questions of Greek society and politics. Law, of course, is a central societal institution, and legal history should address such questions rather than confine itself to the study of doctrinal and procedural questions as if they were independent of larger social and cultural contexts. Nowhere is this more true than at classical Athens, where there were no specialized legal institutions that, as at Rome, attempted to define for themselves an independent realm for the juristic imagination to develop.
Although closely associated with Cantarella in Milan, Alberto Maffi’s scholarship has been, for the most part, more traditional in its approach. Over the past two decades Maffi has produced a wide range of detailed and rigorous studies of aspects of Athenian private law. Taken together, this oeuvre represents one of the most significant contributions to our understanding of the law of the family and property. It is a token of the changes in our discipline that in an earlier period such work would have found its place in the central core of Greek legal studies, whereas today Maffi is one of relatively few major scholars whose research concentrates in this area. This makes his unique expertise that much more valuable in reminding us of the importance of understanding the legal norms and practices that shaped Greek economic life. He has also made a fundamental contribution through his many methodological essays surveying the state of contemporary Greek law scholarship. In this volume, largely eschewing interdisciplinary methods or comparative analysis, Maffi’s broad overview of family and property law, based on his mastery of the sources of Athenian law, concentrates on doctrinal analysis of major features of the laws of marriage, inheritance, ownership, and property. As such it provides an indispensable introduction and overview to these important areas of private law.
Cynthia Patterson is the leading expert on the Athenian law of citizenship. Thanks to many years of fruitful research on the family, marriage, and gender in classical Athens, she is also the person most able to put the study of citizenship law into the context of Athenian constitutional, political, and social developments from the sixth to the fourth centuries B.C. This is precisely what she does in her chapter on Athenian citizenship law, which provides the best available treatment to date of this complex topic. As an exemplar of recent interdisciplinary scholarship on Greek law, the chapter also shows how central the institution of citizenship is to an understanding of the development of Athenian democracy. But Patterson also shows that Pericles’ famous “citizenship law” (excluding from citizenship those not born of two citizen parents) is only one part of the “law of citizenship” in Athens, and that it, and other legal provisions, can be understood only in relation to the way in which Athenian society reacted to the momentous changes of the fifth and fourth centuries.
Her lucid analysis proceeds from a consideration of the terminology of citizenship, which dispels many previous misconceptions and also to my mind, definitively demonstrates that Athenian women who met the requirements of the law were, as Cantarella also argues, citizens. It also shows how the development of norms relating to citizenship in the age of Cleisthenes and Pericles was a product of both the democratic reorganization of Athenian society and the increasingly imperial identity of the Athenian polis: “In sum, although Pericles’ law of 451/0 is of clear importance as a statement of self-conscious Athenian identity as a democratic and imperial power, setting the Athenaioi apart from xenoi (foreigners), both Greek and barbarian, it is by no means the whole story of Athenian citizenship law – or the whole of Athenian citizenship law.” Moving beyond Pericles to the impact of war and other demographic, social, and political developments on the ideology and practices related to citizenship over the next century, Patterson tacitly demonstrates the insufficiency of approaches centered on the analysis of legal statutes. She shows how only an interdisciplinary understanding of social institutions related to marriage, population, and the family can illuminate the complex pattern of norms that together define the “law of citizenship” in Athens. On the basis of this account, she rightly concludes that “Citizenship law, therefore, should be understood to include not just the minimum necessary criterion of citizen parentage, but also the nexus of laws governing inheritance, marriage, religious participation – and of course judicial and political privilege. Athens had not one citizenship law – but an interconnected set of laws that set forth the privilege and responsibilities of those who ‘shared in the city.’”
Over the past three decades Edward Cohen’s research on commercial and banking law in Athens, and, in particular, on the operation of the Athenian maritime courts, has established his preeminent expertise in these areas.17 His scholarship has largely defined this field in recent years, and in this volume his account is informed by a deep understanding of modern commercial law and practice as well as of their counterparts in ancient Greece. His broad perspective helps to illuminate Athenian commercial and maritime law within the larger socioeconomic and political context of Athens’ prominent role in the eastern Mediterranean. His chapter on commercial law makes clear the deep divide in Athenian law and practice between “ordinary” commercial transactions involving nonmaritime trade and those commercial transactions that did have a maritime element. The fact, for example, that written contracts were required in the latter and almost unknown in the former testifies to the fundamental nature of this division. It also illustrates the continuing importance in the fourth century of issues pertaining to writing and literacy as discussed by Thomas. Cohen’s chapter provides a lucid account of Athenian commercial law in both of these contexts and also points to the important larger questions remaining to be explored involving the implications of such categorizations in Athenian law, society, and economy.
In Part IV we leave Athenian law. As discussed by Gagarin in his treatment of the “unity” of Greek law, the single greatest problem for generalizing beyond Athens is the lack of sources. Although in Athens we have a wide array of contemporary literary sources as well as evidence in the form of legal inscriptions of various kinds, for the rest of the archaic and classical Greek world the former are almost altogether missing and the latter are significant but random in terms of their dating and subject matter. The great exception to this state of affairs is represented by the Cretan city of Gortyn, where the largest single legal inscription (as well as the largest collection of legal inscriptions) from anywhere in the Greek world has been preserved. John Davies, a leading authority on Gortyn, explores in Chapter 16, “The Gortyn Laws,” what these texts represent, who created them, and why they were inscribed in monumental fashion in the heart of the city. Gortyn presents one of the most difficult methodological problems for dealing with Greek cities other than Athens. In the absence of the kind of evidence needed to sketch a social and political context in which to locate such legal provisions, how do we use them and what kind of conclusions can we draw about the legal system of which they were a part?
Davies tackles these problems systematically and always with a meticulous awareness of the difficulty the methodological problems present for interpretation both of the whole corpus and of individual provisions. He considers the sources of this legislation, the constitutional and institutional framework it reveals, and a series of substantive topics encompassing procedure and evidence; citizenship and legal status (including gender), marriage and the family, property, contracts, and crime. His survey of these areas provides the reader with a clear account of what we can learn from these sources but also the limits of our knowledge. Here one confronts the most basic methodological problem of dealing with any ancient legal system where the sources are necessarily fragmentary and problematic: how to negotiate the boundary between what we cannot, but desperately need to, know and the legitimate inferences that can be drawn from the evidence that we do possess. This is also a problem in regard to Athenian law, but the relative plethora of sources makes it easier for scholars to sidestep its implications. In Gortyn, on the other hand, one must confront this problem head on to make any progress at all, and Davies provides an admirable example of how this should be done.
The great postclassical exception to the concentration of legal evidence in Athenian sources is represented by the law of Greco-Roman Egypt. Here thousands of legal papyri document a wide variety of transactions and regulations. They provide us with the kind of documentation for actual legal instruments and their use that is almost completely lacking for Athens, as well as with a great deal of information about the administrative and social context of which they were a part. This area of Greek legal history requires formidable technical skills and erudition to pursue, and Hans-Albert Rupprecht is the leading exponent of a line of German scholarship that over the past century has largely defined this field. Because from the Greek law perspective the case of Egypt represents a legal transplant, the starting point of Rupprecht’s chapter, “Greek Law in Foreign Surroundings: Continuity and Development,” is what happens to Greek legal institutions as they are brought into the hybrid cultural context of Egypt in the Hellenistic period. He shows the way in which some legal forms are abandoned, others preserved and often adapted to new circumstances, and new ones invented. Rupprecht concludes that Greek legal institutions preserved their “basic structure over the centuries into Roman times. This continuity did not stand in opposition to further development in response to the demands of changing economic and social life; rather, the newly developed legal institutions and forms fit smoothly into the previously founded legal system while the basic structure remained intact.” Significantly, the innovations were not the work of jurists but rather the product of the efforts of practitioners in adapting legal forms to the needs of commercial and economic life. As mentioned, this field of Greco-Egyptian law is largely separated from the concerns of those scholars who work on other areas of Greek, and particularly Athenian, law. One of the great unanswered methodological questions of our discipline is in what way the study of this astonishingly rich evidence for the “life of the law” in the Egyptian context can help us to understand the legal culture of other times and places in the Greek world and elsewhere.
Joseph Mélezè-Modrzejewski’s chapter, “Greek Law in the Hellenistic Period: Family and Marriage” raises some of the same issues touched on by Rupprecht. Modrzejewski deals with the development of Greek law after the expansion of the Greek world in the aftermath of Alexander’s conquests. His central thesis is that “Hellenistic law” does not represent a mixing of Greek and non-Greek legal cultures in the eastern Mediterranean but rather that “Hellenistic law is nothing else but Greek law practiced by the Greek-speaking immigrants. . . .” Further, this body of law, developed not through legislation but by “notary practice,” “achieved the unity of Greek law.” The result was that, “A Greek ‘common law’ prevailed in the Hellenistic world.” Needless to say, such broad claims raise important methodological and substantive issues. Modrzejewki supports his claims by using examples drawn particularly from the law of marriage and the family. He also acknowledges that though Greek law was not “mixed” with local legal traditions, “the coexistence of diverse private laws could not help but lead to an interplay of mutual exchanges and borrowings between the rules and practices. Estimating their accurate extent is not easy. . . .” Modrzejewski’s claims represent an opportunity for scholars of Greek law to deviate from the comparatively well-trodden paths of Athenian law into the complex legal culture and difficult source material of the Hellenistic world. To assess his larger thesis from the standpoint of comparative analysis of the extant evidence from the range of Hellenistic cities where significant legislative and transactional evidence is preserved would be a daunting but important and rewarding task. It is unfortunate that the study of Greek law has become so specialized that there is relatively little work that encompasses the classical and Hellenistic periods or even communicates effectively between them. One can hope that the next generation of Greek law scholars will take up this challenge.
“Law and literature” is one of the most fruitful of current interdisciplinary aproaches to law. We offer two examples, beginning with Robert Wallace’s chapter on law and Attic comedy. Wallace has produced an important study of the Areopagus and more recently focused his work on the realm of personal morality and the shifts in Athenian attitudes toward personal freedom through the fourth century B.C. His chapter in this volume takes as its starting point the extraordinary freedom of speech displayed in Attic Old Comedy, as best exemplified in the plays of Aristophanes. Wallace shows the relation of comic license to the larger values of freedom of expression that characterized Athenian radical democracy. He also explores the legal limits on this freedom, and particularly the law of slander and the way it was reflected in and affected comic satire of contemporary Athens, its problems, and its politicians. Moving beyond Aristophanes and the fifth century, Wallace insightfully explores the way in which New Comedy, as reflected in Menander’s plays, adopted a very different stance toward the law and the wild freedom displayed in some of the plays of Aristophanes. More significantly, he again shows the way in which this shift in literary-cultural production is related to larger societal changes in regard to law, democracy, and the regulation of morality:
In the second half of the fourth century, the Athenians came to think it right that people’s lives should be more carefully guided by legal regulation. That perspective was repeated and reinforced on the comic stage, as dramatic characters seek to resolve the difficulties they confront through legal recourse. Aristophanes’ rebellious and irreverent license has given way to a more structured and orderly world. Both developments were historically contingent. Military defeat, legal experience, and broader cultural shifts took Athens away from the liberating freedoms of its young, fifth-century democracy, toward the greater regulation that characterized bourgeois fourth-century society and Macedonian control.
In The World of Prometheus: The Politics of Punishing in Democratic Athens (2000b), Danielle Allen demonstrated the importance of a methodology that builds on her dual expertise in literature as well as in legal and political theory. In her chapter on Greek tragedy and law, Allen explores the major methodological issue of how law and tragedy can be read against one another in the context of democratic Athens. Many previous scholars have used tragedy as evidence for legal institutions18 or legal thought.19 Others, particularly in regard to Aeschylus’ Oresteia, have explored the connection between the depiction of legal institutions in tragedy with Athenian political developments and the very notions of politics and political theory.20 Few scholars, however, have addressed the methodological issues raised by such an approach, and in this regard Allen’s contribution here is vitally important. Building on developments in contemporary literary theory, Allen emphasizes that we cannot merely look at tragedy as a repository for information about legal institutions. Using two examples involving the treatment of anger and of law in tragedy, she shows how one must look to the way in which tragedy and law mutually inform one another, for only then can we construct a methodology adequate to understanding what law can tell us about tragic drama and tragedy can tell us about law:
Tragedy becomes useful for studying Athenian law only after scholars have already taken the time to work out not merely the procedures of Athenian law but also its conceptual foundation and implications. The tragedians responded profoundly and robustly to the content of their contemporaries’ political, legal, and ethical aspirations, that is, to their ideas, regardless of what they thought about current events.
In this sense, Allen’s chapter demonstrates what such an approach has to offer but also offers another example of the way in which innovative interdisciplinary approaches are changing the way in which we think about the study of Greek law.
Like Danielle Allen, Josiah Ober approaches Greek law from the perspective of political theory. Ober demonstrated in his pathbreaking account of Athenian democratic politics how such an approach can illuminate the role of legal institutions in the broader political context.21 As Allen has usefully drawn on tragedy and other literary genres in much of her work, Ober, far more than previous students of Greek political theory and Athenian democracy, turned to the orators as a key source for his reinterpretation of Athenian democratic institutions. In “Law and Political Theory,” he draws on a wide variety of sources to explore the different kinds of issues that Athenian political theorists raised involving the nature of law and legal institutions. These problems include the very conception of law itself; the positivist orientation of most Athenian theorizing about law, legislation, and legal interpretation; and the institution of punishment. In a final and very interesting section, he considers the way in which figures such as Demosthenes were also engaged in the enterprise of political theorizing. This implies, for Ober, that the Athenian courts were also a place where legal practice and legal theory came together:
Athenians were not unique among Greeks in their conjoined concern for law and political theory. But democracy in the distinctive Athenian style provided an especially fertile ground for that conjunction. In his career as democratic politician, Demosthenes served as legislator (proposing important new laws) and as a “consumer” of law (frequent legal prosecutor and defendant). But he also served as a “public political theorist of law,” concerned with law’s operative authority, the relationship between amendment procedure and legal substance, and the relationship between the regime and the effects of legal judgment. . . . Although all Greek states had laws of one sort or another, and we find political theorizing in the earliest works of Greek literature, it was in classical Athens that the recursive relationship between self-conscious political theorizing and current legal practice was most fully realized.
Ober’s comments here open fruitful avenues for future exploration of the way in which the Athenian orations can be read as reflecting a theoretical discourse on the nature of legal institutions, the rule of law, and so on. Ober’s interdisciplinary approach, deeply informed by contemporary political and legal theory, is well-suited for such an enterprise and shows the way in which we would do well to consider figures like Demosthenes as original thinkers about theoretical legal issues, engaged in an enterprise connected to that of Aristotle, Plato, and the other Greek philosophers who pondered the nature of law and justice.
The Greek words for law (nomos) and nature (physis), and particularly their use in the antithesis of law (as convention or custom) as opposed to nature (what is universal not contingent), have attracted an enormous amount of scholarly attention. The word nomos itself has been the subject of book-length treatments as has its antithetical opposition to physis.22 Such accounts have typically focused on political perspectives involving the role of the idea of nomos in the development of Athenian democracy, the nature of justice in Greek political thought, or the concept of law and legality. In his chapter on law and nature in Greek thought, A. A. Long, one of the preeminent scholars of Hellenistic philosophy, turns to the connection between the two terms evoked in the conceptions of “natural law” and “laws of nature” (which he rightly points out are often confused). Long asks why, given the preoccupation of earlier Greek thought with the concepts of law (nomos) and nature (physis), they were not conjoined in ideas of natural law or laws of nature until much later in antiquity, particularly by the Stoics. Long’s answer to this question is as interesting and important as his survey of the way in which these terms were used in legal and other contexts from Hesiod and the Pre-Socratics to the political philosophies of Plato and Aristotle:
The principal reason, I suggest, for early Greek philosophy’s reticence about associating law with nature was not an inherent disparity between the terms, nomos having normative and strictly human connotations and physis construed as value-neutral and purely mechanical; if that had been so, we would never hear, as we do, of natural law or laws of nature or divine law or personification of nature. The deeper explanation must be the strongly human and specifically legislative and local connotations that nomos acquired in fifth-century political life.
Turning from the political and legal speculation encapsulated within the world of the classical polis, Long explores the new life taken on by these terms in the broader context of the Hellenistic and Roman worlds. His depiction of the development of ideas of natural law among Stoic thinkers is interesting in its own right but also because it shows how the political theory of the classical polis was in important ways shaped by the narrowness of vision implicit in the constrained context within which it chose to limit itself. In the aftermath of Alexander’s political reorientation of the Greek world this all changed:
With the extension of Hellenism, accompanied by the decline in autonomy of the numerous city-states, the idea of law fully transcended local boundaries, as we observe in the early Stoic concept of natural law. When Greek philosophy infiltrated Rome, it encountered a tradition of law that was far more systematic and articulated than local Greek experience had at hand. Untrammelled by the nomos/physis controversy, Roman thinkers found it easier than their Greek forbears to construe nature in terms of law and quasi-legal regulation.
In this enormously stimulating essay Long also demonstrates how much ancient philosophers can contribute to broadening our understanding of even the most basic concepts in Greek legal thought.
This introduction has been a highly personal reflection on the development of Greek law studies over the past few decades. Although it clearly reflects my own perspective on the discipline, and not necessarily always that of my coeditor, I hope that it has also given a sense of the extraordinary intellectual range of contemporary contributions to the study of Greek legal ideas and institutions. Where I think I can indeed speak for both myself and Michael Gagarin is in the hope that this volume of essays will not only introduce readers to this field but will also provoke them to join in the ongoing enterprise that the contributors collectively represent.
1 MacDowell (1978).
2 See Gagarin for references.
3 See also my analysis of hierosulia, which reaches the same conclusion based on an examination of all the evidence concerning the crime of “theft of sacred property” (1983: Chapter 4).
4 See also D. Cohen (1989, 1991) on these methodological issues.
5 The contrast with civil law systems oriented toward comprehensive codifications is useful, but these same issues have been hotly debated in many such jurisdictions. The Swiss Civil Code, enacted early in the twentieth century, for example, provides that a judge who refrains from deciding a case because of the silence or insufficiency of the law fails in his fundamental duty as a judge.
6 See D. Daube (1947, 1973).
7 On methodological issues in Greek law, see D. Cohen (1989).
8 For the critique, see Osborne (1985), Ober (1989), and D. Cohen (1991, 1995, 2003). For the response, see Lanni’s lucid exposition of the various positions and her bibliography.
9 See, e.g., Harris (1994), Rhodes (2004).
10 See Cohen (1995: Chapters 3 and 9) for an account of this “democratic” conception of the rule of law and its connection to judgment in particular cases and the perceived interests of the demos.
11 Thür (1977).
12 See, e.g., Harrison (1968, 1971), Hansen (1975, 1976), and MacDowell (1963, 1978).
13 Humphreys (1985), Todd (1990), D. Cohen (1995: Chapter 8), and Rubinstein (2004), to which one might add Osborne (1985, 1990) and Todd (1993).
14 See Ober (1989) and Yunis (1996).
15 Dover (1978).
16 For perhaps the most blatant example of this interpretation, see Sealey (1990).
17 E. Cohen (1973, 1992).
18 B. Daube (1939).
19 E.g., E. Wolf (1952).
20 Meier (1988, 1990)
21 Ober (1989).
22 See Ostwald (1969) and Quass (1971).