Friday, June 26, 2009

2009.06.49

Version at BMCR home site
Michael Gagarin, Writing Greek Law. Cambridge/New York: Cambridge University Press, 2008. Pp. xi, 282. ISBN 9780521886611. $99.00.
Reviewed by Zinon Papakonstantinou, University of Washington

Table of Contents

Over the last 30 years Professor Michael Gagarin has been among the most committed researchers of Greek law. His contributions include numerous books and articles on law in the communities of archaic and classical Greece, especially Gortyn and Athens. In Writing Greek Law, the issue of writing in the legal systems of archaic Greece and classical Athens takes central stage. Given the limited amount of the extant evidence the author inevitably re-visits much of the evidence that he has discussed before. Nonetheless, he has clearly re-thought the issues he discusses and he sometimes departs from his own earlier published views. The result is an engaging study that is brimming with original insights.

The book is divided into ten chapters, with an Introduction and a Conclusion. In the Introduction, besides summarizing the contents and arguments of the book, Gagarin spells out in concise terms his views on some issues that have been debated for decades by specialists on Greek law (e.g. the "unity of Greek law"). He then proceeds in Chapter 1 ("Law before Writing") to an analysis of the evidence (mainly from the Homeric epics and Hesiod's Works and Days and Theogony) for law in archaic Greece before the first attested use (at the present state of the evidence, c. mid-seventh century BC) of alphabetic writing for recording law. The author emphasizes that dispute resolution in the communities of early archaic Greece involved much negotiation and compromise between litigants. Justice was meted out most successfully by charismatic leaders famous for their oratorical skills, in a process of adjudication conducted in public and freely accessible to all interested members of the community. In the same chapter Gagarin also speaks of "oral law" (his quotation marks) as an expression "useful to designate the totality of procedures and rules (including customs, norms and traditions) that regulated disputes among preliterate Greeks" (p. 33).

Gagarin's early archaic "oral law" should not be understood as a set of clearly defined rules with full legal authority, for in order for these rules to be recognized as laws they had to be written down (thus p. 36 "before writing we can speak of oral law--viz. judicial procedures without writing--but not oral laws").1 Thus for example, in Il. 9.632-6 Ajax refers to the principle of blood-money payment by the killer to the family of the deceased as a means to settle homicide peacefully. But in Od. 23.118-20 after the killing of the suitors Odysseus warns Telemachus that a killer normally flees the community to avoid starting a vendetta. Are these rules laws? And how about the advice given by Phoenix to Achilles in Il. 9.508-12, also articulated as a rule, that humans should respect their prayers to gods? Does the latter qualify as law? Gagarin claims that choosing which ones of these rules are laws would be arbitrary and anachronistic, i.e. it would depend on the application of modern legal categories (e.g. homicide but not religious practices) to designate what counts as law in early archaic Greece. Moreover, Gagarin continues, even the rules about the settlement of homicide mentioned above cannot be construed as laws, because they "cannot be authoritative at the same time" and because "a legal system cannot tolerate such obvious contradictions in its laws" (p. 32). It is of course difficult to imagine how both rules --blood-money payment; exile -- regarding the settlement of homicide could be applicable at the same time, but one can still perceive them not as "contradictions" but as dispute settlement options, i.e. rules with legally binding force that were viewed as viable alternatives in the process of homicide settlement.2 Failure to enforce one of the rules could prompt one of the interested parties to resort to adjudication by arbitration, as in the trial on the shield of Achilles which deals precisely with the issue of blood-money payment after homicide. On the contrary, there is no evidence that anyone in early archaic Greece ever resorted to a court of the basileis for a trial related to the amount of respect paid in one's prayers to the gods. Hence Phoenix's advice to Achilles in Il. 9.508-12 can be more appropriately designated as a moral rule whose enforcement lay outside the realm of civic litigation.

Written laws appear in the Greek world ca. 650 BC, and they quickly become a fixture of civic life in many (although not all) Greek cities. Whenever available, archaeological evidence suggests that most of these laws were publicly displayed, often built in the walls of a local sanctuary or set up as free-standing monuments in a public location. They were therefore physically accessible to anyone who wished to inspect them. In Chapter 2 ("Writing and Written Laws") Gagarin proceeds to examine in detail some of the earliest specimens of written laws from archaic Greece. In addition to matters of substantive law, legal procedure and political organization of the communities that generated them, Gagarin also dissects the importance of physical features of these inscribed laws, as well as their style and internal organization. Characteristics such as the big, painted and clearly cut letters, some up to 25 cm (e.g. many of the laws from the walls of the Apollo Pytheios temple in Gortyn), the inclusion of visual dividers (vertical lines or dots) which demarcate words or entire clauses, and the apparent grouping of these laws in accordance with their subject-matter, suggest to Gagarin that "those who inscribed early laws were concerned to make these texts as easy to read as possible for an audience that would have included some whose reading skills were rudimentary" (p. 48).

There can be little doubt that the enacting authorities of extant written laws considered their public display as a significant factor in the process of lawmaking. Still, some of the evidence that Gagarin examines might actually be interpreted in a different way. For instance, a number of inscribed laws built in the walls of the Apollo Pytheios temple in Gortyn contain one or two lines of text written retrograde or boustrophedon (IC 4.10, which in Gagarin's estimate must have been 30-40 meters long; IC 4.14) and almost certainly extended to at least two sides of the temple. Hence readers of IC 4.14 which contained two lines of text would have had to walk some distance around the temple before reaching the end of the top line, and then retrace back their steps while reading the second line until they reached the end of the document. Moreover, the positioning (too high or too low) of the inscriptions on the wall could have further frustrated potential readers . Besides the inscribed laws from Gortyn, part or the entire text in some archaic written laws was written vertically, including the law from Chios, the law from Eretria, and the sacred law from Cleonae.3 This orientation meant that readers had to tilt their heads 90 degrees to the side to read. As far as one can tell, the law from Chios was inscribed on all four sides of a freestanding stone, which was quite possibly positioned directly on the ground. The stone bearing the law from Eretria, inscribed on three sides of the stone, was originally built into the lower corner of a wall or building.4 And the sacred law from Cleonae was also inscribed on three sides of a stone, originally perhaps the base of a pillar (see Gagarin, p. 64). In other words, the stones bearing these laws appear to have been originally placed directly or very near the ground and not on the reader's eye level, which must have rendered the exercise of reading the sides with the vertical text even more cumbersome. Finally in the same context one must mention the archaic law inscribed on the walls of a covered passage at the Acropolis in Tiryns (Nomima I, 78 = IGT 31). Because the text was inscribed in a "serpentine" fashion and in a dim location, it was almost impossible to read in a customary way.5 All these things suggest that, even though in several archaic Greek communities publication of the laws and dissemination of their content was deemed important, accessibility and readability of the inscribed texts was not always a primary concern.

Chapter 3 begins with the assertion-- really an extension of the arguments presented in Chapter 2--that "there was a fairly large number of potential readers of laws in Greece" (p. 70), an assertion that is in agreement with the growing evidence for literacy in archaic Greece.6 Of course, as Gagarin himself acknowledges, literacy skills do not necessary translate into an ability or interest to read and comprehend the texts of laws (on this issue, see further below). Furthermore, he rightly detects "a number of different motives for writing down and publicly displaying" (p. 85) laws in various communities of archaic Greece; yet in this context he emphasizes the importance of two factors: the desire of the wider community to express their legislative authority and the practical need to preserve details of increasingly complex legal rules in a more efficient manner. Gagarin sees the perceived accessibility of archaic written legislation, combined with the sanctioning formulas of some archaic laws that suggest that the entire citizenry enacted the laws in question, as symptomatic of a wider interest on the part of archaic communities in authorizing and publicly displaying legislation. Hence, for example, the publication of the so-called "constitutional law" from Dreros (BCH 61 (1937), 334 = Nomima I, 81 = IGT 90) that was enacted by the polis "marks a stage in the development of a communal self-awareness" (p. 79), in the sense that it promoted a self-identification as the polis of Dreros. As for the latter, Gagarin argues that the need to create detailed legal provisions for the increasingly complex legal systems of the demographically expanding archaic Greek communities contributed to the spread of written legislation.

The last point is plausible; yet, although the demographic expansion of the archaic world accounts in part for the proliferation of written legislation, it does not fully explain why some communities appear to have generated a considerable amount of written laws, while other city-states very few or none at all. Even though the involvement of the ordinary citizens in legislative procedures can hardly be overstated, one has to keep in mind that a reference to the polis, demos or other collective term in the enacting formula of a civic law or decree should not necessarily be equated with an unbridled legislative authority on the part of the citizenry. As the case of the Spartan rhêtra (Plu. Lyc. 6.1 and 8 = Nomima I.61) suggests, in some cases the power of the demos to enact law could have been qualified by the probouleutic powers of other bodies. A caveat must also be raised with respect to the argument that, since written legislation articulates "the desire of a body of ordinary members of the community to confirm their own authority" (p. 86), the same legislation cannot for the most part be the product of intra-elite competition. Even though for most of the extant written archaic laws we are completely in the dark as to the particular social and political circumstances that led to their enactment and publication, the predominance of the aristocracy in the politics and the judiciary branch of the legal systems of most archaic communities and the evidence for political strife among elite factions, especially in the cases of Crete and Mytilene, also justifies our viewing inter-aristocratic conflict as a major factor contributing to the rapid spread of written legislation in archaic Greece, along with the emergent popular legislative authority and the need to create more elaborate rules.

Chapter 4 ("Why Draco Wrote his Homicide Law") narrows the focus of the arguments presented in Chapter 3 and looks at the specific reasons behind the enactment and publication in writing of Draco's homicide law. For the most part, Gagarin argues that the same factors that he presented in Chapter 3 contributed to the emergence of written law in archaic Greece, namely the need to provide a detailed set of legal rules on homicide and to convey a sense of Athenian identity both by making the law applicable to all members of the community and by alluding to Athenian boundaries and differences of legal treatment between Athenians and foreigners. Unlike many scholars, Gagarin also insists on dissociating the Cylonian affair of 636 B.C. from Draco's homicide law, enacted about fifteen years later. He is certainly right that the latter could hardly have been conceived as a direct resolution of the former, but it is difficult to dismiss any link between the two events: laws are usually a result of precedents and contingencies. In this instance, the need for more comprehensive legislation in order to keep up with the growth of the Athenian legal system was probably combined with the benefit of past experiences. In other words, following the Cylonian affair, homicide was brought into the foreground of Athenian social and political life as a particularly contentious issue to the extent that, in conjunction with other factors, fifteen years later a comprehensive re-evaluation and rendition in writing of the legal principles in dealing with that issue was deemed necessary. Draco was the man appointed to carry out that task.

In the same chapter Gagarin also briefly explores the wider intellectual context of Draco's law and detects broad parallels in the latter's skillful structure and organization with pre-socratic philosophical thinking (especially monism) and developments in pictorial arts (geometric style). For Gagarin, writing provides for law what geometric patterns provide for vase-painting: the means to structure, standardize and rationalize. "In law, writing standardizes rules and procedures, and helps make them uniform and stable over time and space. Second, writing depersonalizes information; that is, it divorces the written text from its personal source" (p. 109). This point cannot be pressed very far: in the case of legislation, writing helps create a particular set of rules. But practice shows that, both in antiquity and today, the interpretation and use of these same rules by litigants and other individuals in legal and extra-legal contexts is very often far from uniform and stable.

It is well documented that, since the seventh century B.C., writing was used for recording legislation in parts of archaic Greece. But is there any evidence for the use of writing in other aspects of the legal systems of archaic Greek communities? In Chapter 5 ("Oral and Written in Archaic Greek Law") Gagarin poses the question and explores the evidence for the filing of written indictments (graphai) in Athens, a procedure that might go back to Solon. The author also briefly considers the case of the archaic Athenian thesmothetae and suggests that "If they had a judicial role from the beginning, they may have been writing down established practices and procedures, not for publication but just to keep them for use in the future. If so, the Thesmothetae were not writing legislation, but something like notes for their own use" (p. 115). This assessment is not in keeping with the importance attributed by the ancient sources to the thesmothetae who, along with the archon, the basileus and the polemarch, constituted the nine archons, i.e. the board of the highest executive magistrates in archaic Athens.7 It is perhaps more likely that among their various responsibilities the archaic thesmothetae performed a role similar to that inferred for the mnamones and scribes of some communities in archaic Crete, i.e. recording through memory and the written word judicial decisions and rules with legal force as well as making them available for future use in the courts and perhaps elsewhere. Spensithios is the best-documented case of a rememberer/scribe in archaic Crete and Gagarin briefly examines the document that outlines his responsibilities and privileges. Overall, Gagarin's emphasis on the overwhelming use of writing for recording legislation and the largely oral legal procedure in archaic Greece is sound and consistent with the extant evidence.

Chapters 6 and 7 are devoted to the fifth-century written laws and public documents from Gortyn. Chapter 6 ("Writing Laws in Fifth-Century Gortyn") examines structural and stylistic features of select fifth-century laws and decrees while chapter 7 ("Writing the Gortyn Code") explores the structure and organization of the so-called Gortyn Law Code (= GLC). In Chapter 6 regarding written laws and decrees other than the GLC, Gagarin demonstrates the ability of the fifth-century Gortynian legislators to organize and present laws in a lucid and coherent mannermanner. Moreover, the author makes the point repeatedly that the documents in question were in all probability enacted by the citizenry and that they were readily accessible and widely used by most community members. There can be little doubt that the written laws of Gortyn were practical and functional texts (especially when compared to some Near Eastern laws) aimed at providing guidance in dispute resolution in the context of the civic legal system. However, the extent and the facility with which an average Gortynian with no extensive previous experience in legal matters could make use of civic laws can easily be overestimated. The frequent cross-references to "what is written" in some laws, also examined by Gagarin, highlight the practical difficulties of accessibility, if nothing else, in a city with hundreds of laws and legal inscriptions. When encountering a reference to "what is written" how easily could a citizen largely inexperienced in legal matters locate and utilize the inscription containing the legal provision relevant to his case? The role of the mnamones was critical in promoting the accessibility and utility of written legislation. A case in point is the GLC, the longest surviving Greek inscription. Was this extensive compilation of substantive and procedural rules accessible to Gortynians? In chapter ten Gagarin adduces its physical appearance and internal organization as evidence that the GLC was above all a practical document aimed at providing guidance for litigation. In that respect, the GLC and other archaic and early classical Greek legislation contrasts sharply with legal codes from the ancient Near Eastern (e.g. the Hammurabi code, which Gagarin discusses in some detail in order to highlight its qualitative differences from the GLC) and even with medieval and early modern legal codes. Gagarin also suggests that "a single legislator most likely drafted the full text of GC, drawing on earlier laws and custom, on the results of earlier litigation, and not least on his own sense of fairness, reasonableness, and practicality" (p. 170).

In Chapters 8 and 9 the discussion moves to classical Athens. Chapter 8 ("Writing Law in Classical Athens") documents the conditions of enacting, writing and publicizing laws under the Athenian democracy, as well as the use of written documents in legal procedure in the popular courts of Athens. An interrelated phenomenon, partly deduced from the incremental use of written documents, is the growing level of literacy among Athenian citizens. The establishment and subsequent work of the boards of anagrapheis and nomothetai at the end of the fifth century is, according to Gagarin, critical in providing Athens with an explicit "rule of recognition", i.e. a measure of what constituted state law. "Before this, the implicit rule of recognition in Athens, as elsewhere in Greece, had been that a law was a rule that was written and publicly displayed, perhaps in a specific place or a few specific places" (p. 185). This conjecture is not directly supported by archaic and fifth-century evidence, and is conditioned by the author's assumptions regarding the primacy of written versus oral legal regulations. Further legislation provided, according to Gagarin 8, "a full set of secondary rules for recognizing, changing, and (at least by implication) adjudicating among its substantive laws" (p. 187). In the remainder of the chapter Gagarin highlights the increasing use of writing in the legal system of fourth century Athens. 9 Besides written legislation, written texts were used primarily during the preliminary proceedings and to a more limited extent and mostly indirectly, e.g. written laws or other documents orally presented to jurors by a clerk during litigation in the popular courts. The overall picture for archaic Greece and classical Athens is one of "widespread use of writing for legislation but restricted use of writing for litigation" (p. 197). The author also briefly examines Athenian attitudes towards written texts as reflected in extant forensic orations.

Chapter 9 ("Writing Athenian Law: a Comparative Perspective") compares some salient features of the classical Athenian legal system, especially regarding the role of writing and the openness and accessibility of legal processes, with features of the legal systems of other classical Greek cities, Rome and medieval England. The brief survey of non-Athenian evidence suggests, according to Gagarin, that "the same basic structure of written legislation and oral procedure characterizes all other Greek legal systems" (p. 214). In contrast, the use of writing from an early period at Rome in close connection with legal procedure led to increasing formalism of the legal system and to the burgeoning of a caste of legal technocrats. As at Rome, the increasing use of writing in medieval English common law for recording writs led to greater complexity and encouraged the development of specialist legal professionals.

Chapter 10 ("Writing Law in Hellenistic Greece") surveys select evidence regarding the use of writing in Hellenistic legal systems. Gagarin detects Athenian influences, such as procedural features attested for the first time in classical Athens, but also differences and developments, especially in the expansion of the use of writing for legally related matters, as in recording verdicts and publicly displaying manumission decrees. Areas conquered by Alexander the Great had of course their own legal traditions, and these were often accommodated in Hellenistic kingdoms (e.g., by the continued operation of Egyptian and Greek courts in Ptolemaic Egypt). Ptolemaic Egypt also shows a greater use of written documents in legal procedure and litigation, as well as less frequent display of written laws in public--both in contrast to practices in classical Athens.

The book ends with a concluding chapter, where the major arguments of the study are summarized, four appendices with legal texts discussed in the book, a bibliography, an index locorum and a subject index. Editorial production is of a high standard with only minor slip-ups. The main audiences of this book are specialists on Greek law and Greek history in general, as well as students of comparative law. Taking writing as the central theme of his study Gagarin offers a valuable, thought-provoking and welcome contribution to the growing body of literature on Greek law that seeks to move away from formalist and positivist approaches and achieve a wider understanding of the cultural context of law in the communities of ancient Greece.



Notes:


1.   This view is very similar to the argument articulated most fully by Gagarin in Early Greek Law, Berkeley 1986, 8-10 and passim, as part of an evolutionary model on the emergence and development of law in archaic Greece. Several aspects of this model have not met with widespread approval. See E. Cantarella, 1987, "Tra diritto e prediritto: un problema aperto" DHA 13 (1987), 149-181; D. Cohen, "Greek Law: Problems and Methods" ZRG 106 (1989), 90-94; K.J. Burchfiel, "The Myth of 'Prelaw' in Early Greece" in G. Thür (ed.), Symposion 1993. Vorträge zur griechischen und hellenistischen Rechtsgeschichte, Köln 1994, 79- 104; R. Thomas, "Writing, Law, and Written Law", in M. Gagarin and D. Cohen (eds) , The Cambridge Companion to Ancient Greek Law, Cambridge 2005, 41-60; Z. Papakonstantinou, Lawmaking and Adjudication in Archaic Greece, London 2008, 155-156.
2.   As pointed out by Eva Cantarella, op.cit. note 1, p. 152.
3. Law from Chios, Nomima I, 62 = IGT 61; law from Eretria, IG XII 9, 1273-74 = Nomima I, 91 = IGT 72-3; law from Cleonae IG IV 1607 = Nomima II, 79 = IGT 32.
4.   see E. Vanderpool and W.P. Wallace, "The Sixth Century Laws from Eretria" Hesperia 33 (1964), 382.
5.   Gagarin (p.65) also points out that the Tiryns inscription "would have been difficult to see, let alone read".
6.   See lately M.K. Langdon, 2005, "A New Greek Abecedarium", Kadmos 44 (2005), 175-182.
7.   See J.P. Sickinger, Public Records and Archives in Classical Athens, Chapel Hill 1999, 10-14; M. Faraguna, "Tra oralità e scrittura: diritto e forme della comunicazione dai poemi omerici a Teofrasto", Etica & Politica 9.1 (2007), 81-2; Z. Papakonstantinou, Lawmaking and Adjudication in Archaic Greece, London 2008, 78-9.
8.   Following H.L.A. Hart, The Concept of Law2, Oxford 1994.
9.   See also recently Christophe Pêbarthe, Citê, dêmocratie et êcriture. Histoire de l'alphabêtisation d'Athènes à l'êpoque classique, Paris 2006.

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