What is Hellenistic law? When the adjective “Hellenistic” applies to law, it needs to be explained, just as when it stands next to the words “era” or “civilization.” The idea of a “mixed civilization,” advocated in the past by the historians of Antiquity, following Johann Gustav Droysen for whom the Hellenistic world was the result of a mixture of Greek Occident and Barbarian Orient, is presently abandoned. The meeting of local traditions with practices and ideas which the Greco-Macedonian immigrants imported to the provinces of the Achaemenid Empire conquered by Alexander the Great could surely not help but act on the evolution of the law. The Greek traditions henceforth act in a space larger than the narrow framework of the Greek state, polis or ethnos, and this necessarily entailed changes in the substance of law. For their part, the local legal cultures must have been influenced by the Greek element entrenched in an Egyptian or Oriental environment. Interplay of mutual influences starts and directs the lawgivers’ action to solutions, which can combine a Greek form with a content determined by the local heritage. However, all this does not lead to a “mixture,” and the idea of “Hellenistic law” can in no way refer to such a mixture.
Let us say it clearly: Hellenistic law is nothing else but Greek law practiced by the Greek-speaking immigrants within the kingdoms stemming from Alexander’s conquests as we know it, thanks to the documents – papyri, parchments, ostraca, inscriptions – found mainly in Egypt, but also, though less often, in the Near East, at Dura-Europos or in the Judean Desert (Wolff 1973, Pestman 1974). Derived from the experience of ancient Greece, which was multisided by definition, it is characterized as for its substance by a high level of unity; as for its sources, it appears essentially as a customary law, which has its basis not in the legislation of a city or a sovereign, but in notary practice. Because it is not the law of a limited group, as were the nomoi of the classical Greek cities or of the ethnē it is within the reach of all who can fit the definition of a “Hellene,” through adherence to Greek culture and an origin foreign to the conquered country; in this respect, the case of the Jews of Egypt is particularly significant. After the Hellenistic monarchies were reduced to the state of Roman provinces, Hellenistic law survived under the Principate in the practice of the provinces of the East.
The Hellenistic era achieved the unity of Greek law. The differences that were characteristic of the traditions of various cities or regions, the immigrants’ fatherlands, diminished in practice. This process, already underway in the fourth century B.C.E. as a result of intercity trade under the dominating influence of Athens, became stronger in the melting pot that was Alexander’s army. A Greek “common law” prevailed in the Hellenistic world. The notion of legal koine, drawing a parallel between language and law, helps to explain this phenomenon (Gernet 1938a).
The new factor that ensured the success of this koine was not the kings’ action, as one used to think, but the appearance of a new political structure: the Hellenistic monarchy, which is superimposed on the city. The city is no longer the only framework of legal life for the Greeks. The Hellenistic state released the Greeks from obeying the laws of the city, which were factors of diversity, and created a terrain favorable to the unity of legal practice in private law. Together with the decline of the autonomy of the city, the fetters that confined the Greeks’ legal life in distinct systems for each independent polis disappear. Free of the individualism of the polis, Greek “common law” nevertheless kept a trace of its origin: in the judicial practice of Ptolemaic Egypt, it is called nomoi politikoi, “civic law” (discussion in Wolff 2002). The city remains an ideological reference point that allows us to contrast, as regards politics or anything else, the Greek contribution with the local heritage. The immigrants’ “common law” stood facing the legal traditions of the conquered populations, which were maintained and protected by the state. Ptolemaic Egypt gives a most instructive example of this coexistence.
Ancient Egyptian local law survived the Macedonian conquest and continued to be used by the natives. During the late Egyptian period, the rules of this law were recorded in casebooks kept by the temples; the tradition, which attributes to Darius I the “codification” of Egypt’s law prior to the Persian conquest, suggests the existence of quite extensive collections. As for the Ptolemaic era, this impression has been confirmed by extracts of a “demotic priestly casebook” that were found in different religious centers; the most famous ones come from Tuna el-Gebel, the ancient Hermopolis West, known under the widespread though misleading name “Hermopolis Legal Code” (Donker van Heel 1990). Actually, what we have here is a collection of practical instructions for judges and native lawyers, with models of deeds and sentences, or with solutions to hard cases. One could say it is a “handbook” (“prontuario legale” in Italian) created by the learned priests who produced and wrote down “holy books” – religious, scientific, or legal collections for the Egyptian clergy and their “customers” – in the “Houses of Life” of their temples. The priests who kept these books passed them on from one generation to the next, in different variants, according to the religious centers.
The Egyptian priestly casebook has to be connected with another “holy book” existing in Ptolemaic Egypt: the Jewish Torah. Both of them were translated into Greek in the reign of Ptolemy II Philadelphus (283–246 B.C.E.). The translation of the Jewish Law – the Alexandrian Septuagint – is well-known; its historicity has been confirmed by the fragments of the Pentateuch on rolls of papyrus anterior to the Christian era. A papyrus from Oxyrhynchus published in 1978 (POxy. XLVI 3285) informs us now that the demotic collection was also translated into Greek in the beginning of the third century B.C.E., in the reign of Ptolemy II. In both cases, the Ptolemaic monarchy will have underwritten the undertaking.
Numerous documents preserved by demotic papyri add the testimony of everyday legal practice to the data furnished by the demotic casebook in its various versions. For the Ptolemaic period, they represent about half of the documentary papyrus material found in Egypt. They attest an undeniable continuation of the Egyptian legal traditions under the Ptolemies that will be perpetuated under the Roman Empire and then appear again in the Coptic documents of the Byzantine and the Arabic eras. The Greeks call this nomos or nomoi tēs chōras, “the law of the land”; this expression should not be mistaken for “the laws of the Egyptians,” nomoi (or nomos) tōn Aigyptiōn, mentioned by a few documents of the Roman period. We will come back to this point.
Still without reaching an amalgam, 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: several significant facts will serve to illustrate the situation.
The influence of Greek law on the Jewish practice is a particular problem, which cannot be dealt with here (see Modrzejewski 1996). In respect to the interaction of Greek and Egyptian traditions, the main Greek influence on Egyptian law affects the form of legal deeds: this is the so-called Doppelurkunde (“double certificate”), duplication of written documents, which is thought to have been borrowed from the Greeks by the Egyptian notaries. It is however not certain that the Doppelurkunde was invented by the Greeks: its prototype is the Mesopotamian “envelope tablet,” which was replaced in the neo-Babylonian era by the multiple original, of which a copy was kept by each of the contracting parties. Other presumed borrowings from Greek law by Egyptian law are still more uncertain.
Egyptian influences on Greek law seem to be more numerous. However, one has to be cautious. Thus, the changes characterizing Greek family law in Egypt in relation to its classical roots should not necessarily be attributed to the action of local models; at the very most, the surrounding environment will have stimulated or accelerated an evolution already begun within Greek life. In some cases the new historical context contributed to the institutionalization of tendencies characteristic of a Greek practice, which was, until then, secondary and marginal; this is notably the case, as we will see later, of women who give themselves in marriage or of endogamic unions. Elsewhere – like the eldest son’s privileged situation in matters of inheritance or the institution of parapherna (“additional dowry”) – the Egyptian influence seems to be more likely. But its effect is still limited.
One should be careful not to assume that all similarities in legal solutions are the result of mutual influences and borrowings. It is well known that distinct legal cultures, having reached the same stage of evolution, often elaborate similar solutions if the social and economic conditions are suitable: thus, what seems to be an influence or a foreign element may just be a coincidental convergence. From the comparative point of view, detecting such parallelisms would be a fascinating undertaking. A careful study of the bilingual documents, including not only the strictly speaking bilingual ones and the translations, but also the documents written in one language according to the patterns characteristic of the other, would be particularly useful in this respect.
All in all, the exchanges and borrowings between Greek and Egyptian law seem to be fewer than the supporters of the “mixed law” in the first half of the twentieth century would admit. Pluralism remains the dominant feature of legal life in the Hellenistic world. In Ptolemaic Egypt, it is supported by a system of judicial organization, which guarantees that Greek and Egyptian traditions will be protected by official sanction (Modrzejewski 1995). Furthermore, it is clear that the nomoi politikoi, on the one hand, and the nomoi tēs chōras, on the other hand, were the controlling law of the courts specific to each of the two main groups: the Greek dicasteries and the Egyptian laocritai. In this way, the Jewish Torah in Greek became the “civic law” (nomos politikos) of Egyptian Jews, who were an integral part of the community of the “Hellenes” (Modrzejewski 1997). That Jewish Law, especially in family matters, was actually followed by the Jews in Ptolemaic Egypt is now confirmed by the new material concerning the Jewish politeuma in Herakleopolis in the second century B.C.E. (Cowey and Maresch 2001).
The Roman conquest of Egypt did not change this situation as far as the substance of the law is concerned. The local laws continue to exist under the kindly eyes of the Roman authority. The provincial judges were ready to respect the peregrine law, even if it meant filling the gaps, resolving the contradictions or restraining extravagances by resorting to the scale of values that their own law, ius Urbis Romae, gave them. They failed to see the difference between the Greek and the Egyptian origin of a local rule. Both were for them no more than a local custom characteristic of the peregrines of the province of Egypt (Modrzejewski 1993).
The fact that a Greek version of the demotic collection of laws, which was made in the third century B.C.E., was copied in the Antonine era suggests that this translation could enlighten the provincial judge on the situation of the law actually practiced by native Egyptians and might influence his decision in case of disagreement. Nevertheless, this does not mean that the measures included in this book, “the law of the land,” were considered legal rules by the Roman judge. Without a link that would connect them to a foreign city, they could not aspire to the authority of a peregrine ius civile according to the Roman categories. For the Roman authority, they were simply rules of local practice.
This “law of the land” (nomos tēs chōras) should not be mistaken for the “law of the Egyptians” (nomos tōn Aigyptiōn) that a few documents of the second century C.E. refer to. A careful analysis of these documents leads to the conclusion that the law known as “of the Egyptians” was Egyptian only in name; actually, it was Greek law. The Egyptians in question were the natives of Egypt who were not citizens of a Greek polis. As for their nomos, in some cases, it could appear to be private collections made by local practitioners, using material taken from the royal legislation and the laws of the Greek poleis in Egypt (Modrzejewski 1988). For the Roman judge, it did not make any difference for the validity of this law: whether they are Greek or Egyptian, the rules recorded in these books were for him only customs specific to the provincial populations – mores provinciae, consuetudines loci. After the generalization by Caracalla of Roman citizenship in 212 C.E. some of these rules, those in conflict with Roman law and order, will be left aside; others will survive as subsidiary provincial law, subordinate to the priority of the Roman “Reichsrecht.”
From these general data, one would like to insist on a point that seems to be crucial for my purpose: the permanence of Hellenistic law within the monarchies of the successors of Alexander the Great and within the Oriental provinces, which replaced them after the Roman conquest. Let us limit ourselves to a few details concerning marriage, family structures, and transmission of property by means of succession.
The new conditions in which the Greek immigrants’ family life organized itself modified matrimonial law. In the Hellenistic world, heads of families no longer settle by themselves the question of concluding a marriage, as in classical Athens; it becomes a matter for the married couple itself. In the oldest Greek matrimonial agreement found in Elephantine (PEleph. 1.310 B.C.E.), an anacoluthon lets us hear the couple’s voice in the first-person plural, for the first time in the history of the Greek family. From now on, it is a purely personal bond that appears in the marriage contracts preserved on papyrus. The diversity of the forms and of the terms that those contracts reveal goes hand in hand with the unity of social fact: conjugal cohabitation (synoikein) with the intent of a durable common life (Modrzejewski 1983).
Nevertheless, the legal substance of marriage remains unchanged: it is based, as in the past, on the act of “giving” (ekdosis) the bride, which is accomplished by her father, or, in his absence, by a close male relative, and, failing that, by the woman herself. A patrimonial allowance – the handing over of the dowry – accompanies it; this is what gives the marriage its validity as a social institution. The classical proix gives place to the phernē; this term, which in the ancient Greek sources referred to the dowry in archaic or peripheral practice, applies in Egypt to a matrimonial system now generalized because it is in accord with the needs of a new type of family organization. On the other hand, some formalities disappear, like engyēsis, by which the father “placed” his daughter in the hands of the man who was about to become her husband. The written contract now assures the married woman that she is a lawful wife, gynē gametē. The contract replaces the solemn statements that accompanied the bride’s passage from her father’s power to that of her husband. The contractual clauses suffice to produce all the effects that conclusion of the marriage ensure concerning the legal status of the wife and that of the children (Yiftach 2003).
A set of documents found in Abusir el-Meleq, dated from the Augustan era but certainly representing the Alexandrian matrimonial law prior to the Roman conquest, shows that in Alexandria, after drafting a written agreement (synchōrēsis), a second act was performed to strengthen the matrimonial union by a ceremony (or an agreement), namely passing before the hierothytai, the magistrates of the city. There have been various attempts to explain this dual formality of Alexandrian marriage. The hypothesis of Egyptian influence was contemplated (Winand 1985) but it sounds frail. One can certainly notice a parallelism between the Alexandrian dual deed of marriage and the Egyptian practice in the chōra, in which a “support agreement” could be followed by a “payment document.” Comparing the Alexandrian hierothytai with the homonymous magistrates in the epigraphic and literary sources would rather suggest the idea of a Greek continuity. The intervention of the hierothytai was probably no more than a formality, necessary to the handing down of the family estate, under the control of the city (Yiftach 1997).
The barriers the Greek cities used to erect against mixed marriages collapsed in Egypt and in Greek-speaking circles in the East. It could well be that Alexandrian law demanded dual civic ancestry to acquire the status of citizen, a principle whose panhellenic character is stressed by Aristotle (Politics 1275b21–22). Monimos, son of Kleandros, Alexandrian by his father, lives in the chōra with an Egyptian woman; Demetria, their daughter, in spite of her Greek name, is not an Alexandrian citizen (Clarysse 1988). On the other hand, a citizen of Ptolemais could certainly marry a foreign woman and, through this marriage, let her acquire the position of astē (citizen). Therefore, the road was opened to wider matrimonial exchanges than those that the epigamia clauses of the intercity treaties in the fourth century B.C.E. used to allow.
In the chōra, marriages between partners of different origins were possible and positively legitimate. In the middle of the third century B.C.E., Demetrios, a Cyrenean who came to Egypt following in the tracks of Princess Berenice II, daughter of Magas, who had married Ptolemy III Euergetes, himself married an Egyptian woman; the law of his original fatherland that allowed marriages outside the citizen body only with certain groups of the Libyan population did not matter much to him (Inscr. Fay. I 2). The case is not different for Antaios, an Athenian settled in Egypt, who married Olympias, a Macedonian, in the beginning of the second century B.C.E., unless one presumes that the Athenian law forbidding marriage with a foreigner was altered after the downfall of the democratic regime in 322 B.C.E. (PGiss. I 2, 173 B.C.E.).
Demetrios the Cyrenean’s union with Thasis the Egyptian represents an exceptional case. Marriages between “Hellenes” and natives are extremely rare in Hellenistic Egypt. They were not formally forbidden, but a sort of “cultural agamia” made them impracticable (Modrzejewski 1984). We are far from the mixing of populations that the supporters of a Greco-Egyptian civilization used to imagine. Exceptionally, the barrier is overcome in some circles and at certain times. That is how, in Pathyris, in Upper Egypt, in the second century B.C.E., a certain mixture of Greek soldiers and the upper social class of the local population could take place. It was due to contingent reasons: a new form of military organization associating the Greek element with the Egyptian elites.
The Hellenistic era favored the endogamic tendencies of Greek matrimonial law. For the Greeks, legally, only marriage between full relatives was considered incest; unions between close collaterals, half-brother and half-sister, though morally disapproved of, were not illegal. Cimon, son of Miltiades, the Athenian, legally married Elpinice, his sister from the same father. Athenian law since Solon permitted marriage to a half-sister on one’s father’s side (homopatrios). One is less sure that Lacedaemonian law allowed marriage to a half-sister on one’s mother’s side (homomētrios or homogastrios). This information, resting on the sole testimony of Philo of Alexandria (De spec. leg. 3.22–4), might have simply been invented by the Jewish philosopher: his objective was not to give us information about the Greeks’ matrimonial traditions but to contrast their endogamy with the biblical exogamy set down in chapter 18 of Leviticus.
In Hellenistic practice, a marriage between brother and sister with the same parents (homognēsioi) became possible. King Ptolemy II Philadelphus who married Arsinoe II, his full sister, provided an example in 278 B.C.E. This marriage gave rise to various reactions. Theocritus, more a courtier than a poet on this occasion, compared it to the divine marriage of Zeus and Hera (Idyll XVII: 121–34): the Alexandrians may not have found this comparison very tasteful. Some people expressed criticism more or less sharply, the most violent being from Sotades of Maronea, the pornographer; this earned him a particularly severe punishment (Athenaeus 14.620; Modrzejewski 1998a).
Should one see in such a union the adherence to an Egyptian model? This is what Philo’s text may suggest, as before him already Diodorus of Sicily, according to whom the Egyptians, “against the general custom of mankind,” instituted a law authorizing a man to marry his sisters (Bibl. Hist. 1.27.1). However, in the present state of our sources, Egyptology does not validate the idea that Ptolemy II and his sister had followed a Pharaonic example, unless one goes a thousand years back – to Amenophis III or Rameses II. The inevitable conclusion is that the children of the first Ptolemy pushed to its extreme limit a tendency conveyed by the Greek traditions favorable to endogamy.
Greek immigrants followed their example very quickly. As early as 267 B.C.E., at Tholthis, in the Oxyrhynchite nome, a certain Praxidamas had married a woman called Sosio, who almost certainly was also his sister (PIena inv. No. 904 = SB XX 11053). One hundred and thirty years later, Dionysios, another Greek, gave his banker in Tebtynis an order to pay a tax for his sister Euterpe, who was also his wife, as he specified (PTebt. III. 1, 766, about 136 B.C.E.). In the Roman period these practices were generalized; the numerous documents that attest them and the tolerant attitude of the Roman authorities, despite the regulations punishing endogamy according to Roman law, lead us to think that they were already more frequent in Ptolemaic Egypt than is indicated by the two documents we have just mentioned. Such marriages are more common among the descendants of the “Hellenes,” in the metropoleis, than among village Egyptians; this is at variance with the opinion that derives marriage between brother and sister from an Egyptian tradition.
The Hellenistic era modified in various respects the status of Greek women. A woman was free to sell or buy or rent her property; she could join her husband when he gave their daughter in marriage, or she might do it herself when she was widowed or divorced. The power the head of the family had in classical Greece, as a kyrios, over the women under his control – wife, mistress, nonmarried daughters – was now limited to a sort of tutelage. To conclude a legal deed, the woman needed to be assisted by a kyrios, but the latter was no more a “master and lord”: his intervention was just a formality, whose importance for the validity of the document is in practice not obvious.
Some of those phenomena may appear as signs of “progress” in the evolution of women’s condition. Nonetheless, one should be careful of hasty generalizations. Thus, it is not certain that one can interpret as “progress” the alterations that we find in the clauses of the matrimonial agreements preserved by the papyri concerning divorce. This includes, first, the sanction of behavior forbidden by the contract, particularly conjugal unfaithfulness, which could result in the loss of the dowry for the wife and the husband’s obligation to refund the dowry and an additional 50 percent penalty (hēmiolion). But since the beginning of the first century B.C.E., a new practice appeared, imposing on a husband who wanted to leave his wife the obligation of returning the simple amount of the dowry within a fixed time limit; the hēmiolion had to be given only when the time limit was not respected. For her part, the woman also obtained the right to take the initiative for her divorce, giving her husband a time limit for the return of the dowry. Eventually, divorce ceased to be a sanction and was supplanted by divorce by mutual consent.
This situation, which seems to establish the equality of husband and wife in the matter of divorce, is not necessarily more favorable to the wife than the initial system in which the threat of the hēmiolion toward the flighty husband effectively protected the wife who had done nothing deserving reproach. However, one can very well consider as “avant-garde” the women who themselves carry out the act of their ekdosis, that is to say who give themselves in marriage. In classical Greece, such “auto-ekdosis” was a sign of barbarism or of prostitution. But in the Hellenistic world the woman can indeed carry out her ekdosis with a legitimate union in mind. For Egypt this fact is attested by two documents, from the Ptolemaic and from the Roman periods (PGiss. I 2.173 B.C.E.; POxy. XLIX 3500, third century C.E.). A papyrus from Dura-Europos (PDura 30.232 C.E.) and the novel Chaireas and Callirhoe by Chariton of Aphrodisias attest its expansion beyond the Egyptian area (Karabélias 1990).
The data concerning the transmission of family property mortis causa can usefully complete those concerning marriage and the status of women. The testamentary restrictions, which in classical Greece protected the oikos, or family/household, by favoring the deceased’s only male descendants, disappeared; daughters inherit in the same way as sons. Also disappearing was the epiclerate, an institution that made the deceased’s only daughter, who was legally incapable of being his heir, hand down the property by forcing her to marry a close relative on her father’s side so that the son descended from this union could perpetuate the oikos of his maternal grandfather (Karabélias 1982).
The compensation for the disappearance of institutions, which in the past served the needs of the classical oikos, was the emergence of new practices that benefited the nuclear family. For example, neither Greek nor Egyptian laws granted the surviving spouse intestate succession. In Hellenistic practice, this incapacity was alleviated by the husband’s provisions by will in favor of his wife, notably the right of housing until her possible second marriage, and also, though more rarely, similar provisions on behalf of a woman in favor of her husband. Acts combining matrimonial agreements with the couple’s provisions because of death (syngraphodiathēkai) helped to attain the same objective.
The interaction of two legal cultures lets a few Egyptian influences appear on Greek practice. This seems, as we already observed, to be the explanation for the eldest son’s privileged situation in matters of succession, which one can detect in the Greek papyri of Ptolemaic and Roman times (Seidl 1965), and also for dowry rights, such as the institution of parapherna derived from the demotic “Frauensachen” (“wife’s property”; Häge 1968). Conversely, PMoscow dem. 123 (Malinine 1965), a will written in demotic in the first century B.C.E. following a Greek pattern, cannot serve as proof in support of the hypothesis of Greek influence on the Egyptian law: this is a document of Greek law written in Egyptian language and not a witness to the evolution of Egyptian law in contact with Greek law. We are possibly dealing with a similar situation in the Judean Desert material.
The most striking new legal development in the matter of successions was the “invention” of the rule that estates without heirs devolved to the state, that is, to the royal treasury. The succession law of Dura-Europos, preserved in a copy on parchment from the Roman era, but whose substance dates to the beginning of this city, which was built on the right bank of Euphrates in about 300 B.C.E., decrees that, if there are no regular heirs – legitimate and adopted children, a non-remarried father or mother, or collaterals up to the fourth degree (the circle of the grand-parents and of the cousins on the father’s side) – the property of a settler who died intestate goes to the king (PDura 12, lines 14–16; Modrzejewski 1961). Paragraph 4 of the Gnonom of the Idios Logos, a collection of tax and legal provisions in force in Egypt under the Principate, suggests that the Roman system attributing the bona vacantia to the imperial treasury could have been inspired by such a rule of Hellenistic law (Modrzejewski 1971).
Thus, as we can see, the evolution of the Greek family law in the Hellenistic world acts according to its own dynamics, determined by political and social conditions and not by the influence of the local environment. The same conclusions should be drawn in other fields, the law of property and the law of contracts (see Rupprecht’s chapter in this volume). Hellenistic law, by no means an “amalgam” or a “mixture,” represents a stage in the evolution of ancient Greek law.