Tuesday, August 11, 2009

2009.08.28

Version at BMCR home site
Zinon Papakonstantinou, Lawmaking and Adjudication in Archaic Greece. London: Duckworth, 2008. Pp. xiv, 233. ISBN 9780715637296. $50.00.
Reviewed by Alex Gottesman, Union College

It has been over 20 years since the publication of Gagarin's Early Greek Law. The study of Greek law has flourished in the meantime, but archaic Greek law, owing to the paltriness of the relevant sources, has not received proportional attention. The main sources for archaic law amount to a few literary texts and a few stones, and they do not tell a consistent story. As a result, we can only speculate about how social contexts and processes influenced, or were influenced by, the development of Greek law. The aim of Papakonstantinou's book is to rekindle interest in this field of speculation.

Gagarin influentially argued that early law's emphasis on procedure over substance was evidence of an interest in making sure disputes between individuals did not become dangers to the community. For Gagarin, developments in legal history track closely the rise of the polis as a community of citizens. The inscription of law is part of that story.1 The aim was to give the community's decisions the force of law, and thus make them authoritative in controlling disputes. Eventually, this development would pave the way for greater control by the citizen in his community's legal and political institutions.

The story Papakonstantinou tells is quite different, contrasting with Gagarin's at several points. The central point of contrast is on how much emphasis they each place on social class. Papakonstantinou sees early Greek law from a critical legal studies perspective. This perspective views law as a tool which the powerful use at the expense of the weak, and which the weak try to use to resist the powerful. Law is essentially a site of class tensions. Gagarin's view, informed by the legal anthropological literature on dispute resolution sees law less as a weapon of class warfare, and more as a process tending towards social equilibrium. This fundamental difference leads to other points of contrast. For instance, whereas Gagarin (and most legal scholars of Greece) insists that Greek law was an amateur business, Papakonstantinou sees signs of professionalization in the archaic Greek "judiciary." Gagarin sees Greek written laws as using common language, in order to be accessible to as many members of the community as possible. On the other hand, Papakonstantinou sees the language of the Greek laws as specialized, consistent with their tacit intention to help the elite maintain a monopoly over the making and interpretation of law. According to Papakonstantinou, the story of archaic Greek law is the eventual wresting of law by "ordinary" Greeks away from the clutches of the aristocracy.

How well does his reading of the sources support his story? After an initial chapter which lays out his theoretical methodology and attacks that of unnamed scholars who, in his view, suffer under "contemporary preconceptions and misconceptions regarding the role and status of law within pre-modern societies" (2), Papakonstantinou turns to the literary sources, namely Homer and Hesiod. He considers Homer as accurately reflecting a strand of legal thought and practice in the 7th century. This was a time during which law, for the most part, was seen as the exclusive domain of the aristocracy. Law was seen as something that was handed down from above (the themistas of Zeus) to the aristocrats, along with their scepters and their descent from the gods. Key scenes in Homer reflect this idea: the quasi-legal dispute of Iliad 23, in which Menelaus challenges Antilochus to an oath-contest, and the trial scene of Achilles' shield (both being passages which have inspired mountains of legal scholarship).

For Papakonstantinou, these passages illustrate the idea that the right to speak in a legal context was originally seen as the preserve of the aristocracy (whereas Hesiod shows that this idea was also coming under criticism). He points out, uncontroversially, that Menelaus and Antilochus are both members of the aristocracy, and, somewhat more controversially, that the trial scene likewise shows the elite in the position of settling disputes. It wouldn't be surprising if Homer actually shared the "hegemonic" view of law (Papakonstantinou's term), but I am not convinced that these passages necessarily show that. If the gerontes of the trial scene are indeed members of the same class as the heroes, it is certainly worth stressing that they are competing against each other over who can make the "best" judgment, and the judgment of the crowd is clearly instrumental in deciding that. Nor is the Menelaus-Antilochus dispute much proof for the dominance of the hegemonic view of law in the archaic period. Given epic conventions, we wouldn't expect Menelaus to drag off Antilochus to a magistrate, or demand a trial by a jury of the people.2

The next chapter deals with inscriptions and traditions of the early lawgivers. Scholars have pointed out that early inscriptions do not seem to reflect the social tensions that are part of the stories of archaic lawmaking, such as Solon's in Athens.3 Papakonstantinou disagrees. He senses such tensions in the different sanctioning authorities archaic inscriptions tend to list. For example, he finds them in the Dreran law that limits the frequency of the magistracy of kosmos to no more than once every ten years (Meiggs and Lewis 2). Papakonstantinou highlights the fact that three bodies of officials are to swear the relevant oath (the kosmoi, the demos, and the ikati, whoever they were), and interprets this to mean that Dreros was probably faced with "an unstable political situation" (53) in which legal authority was "multiple, overlapping, and sometimes conflicting" (63). Different institutions, representing the interests of different classes, sought to make law, and stones such as this one are the product of their "negotiation." Thus they paper over the social tensions out of which they were produced. He finds similar tensions in the "Spensithios Inscription" from Crete (SEG 27.631), in the so-called "Pappadakis Bronze" (IG IX 1[2] 3.609), and in the Spartan Great Rhetra as preserved by Plutarch (Lyc. 6. 1), among other archaic sources. What all these have in common is that they list different bodies of officials as authorities. Papakonstantinou's interpretation here is not very compelling. Different authorities does not necessarily mean conflicting authorities, any more than a mention of boule and demos in Athenian documents means that council and assembly represented different social or class interests.

Papakonstantinou is on somewhat safer ground when dealing with the traditions of early lawgivers, such as Solon, Charondas and Zaleucus. While there are very few (if any) signs of social conflict in the archaic inscriptions, it is certainly true that some traditions of the foundations of legal systems represent them as being born out of social or class conflict. On the other hand, even apparently secure evidence of social tensions behind archaic lawmaking, such as Solon's poetry, is not as secure as Papakonstantinou assumes. For example, it is debatable to what extent we have Solon's actual words, and how greatly later political struggles fundamentally helped shape the text.4 More attention is needed to the problems in using later sources as evidence for the archaic period.

The next chapter returns to inscriptions, and examines the evidence for archaic courts. Papakonstantinou suggests that archaic courts were something like a halfway point between the hegemonic control of law he finds in Homer and Hesiod and the democratic system of law we see in classical Athens. Papakonstantinou interprets attempts to publicize law as meaning that the common people had become more engaged in the law. The aristocracy had caved into pressure somewhat, and had allowed courts to be created, but they were still controlling them through dikastai, whom he considers to be aristocratic "legal specialists." This is one of his weakest claims.5 He asserts that the Spensithios whom an archaic Cretan community hired as its official legal scribe was an elite member of the community (78), whereas most scholars assume that he was a foreigner, since he receives honors that were later typically given to foreigners. It is important for Papakonstantinou to make this point, because if Spensithios was a foreigner this would fly in the face of his argument that the archaic elite aimed to control the legal system, since here we seem to have a case in which an archaic community is delegating the "recording and remembering" (poinikazein te kai mnamoneuwein) of its legal affairs to someone who was not a member of it, let alone a member of its aristocracy.

Papakonstantinou further asserts that the institution of the jury was a popular response to elite attempts to control law through aristocratic specialists. He therefore argues that aristindan at IG IX 1[2] 3. 717 should be translated as "according to merit." This inscription, a no-plunder agreement between two communities in central Greece, stipulates that in case of dispute a jury should be drawn aristindan (97). Most scholars take this simply as "from the aristocracy," but Papakonstantinou suggests the translation "according to merit." Doing so allows him to maintain the strict distinction he wishes to draw between popular juries and elite judges, but it is unconvincing.

The final chapter considers how "ordinary" Greeks' reacted to the legal system which they faced. Papakonstantinou draws evidence from archaic poetry, especially Solon and Theognis, and from epigraphic texts involving the regulation of oaths and magistrates, and judicial curses. He asserts, "The fact that Solon lingers so extensively on the theme of abuse of law and justice, especially by the aristocracy, indicates that this issue was a major grievance on the part of the lower social orders" (107). He similarly finds evidence of class warfare behind Theognis' laments about the kakoi who have taken over the city and are handing down judgments for the unjust (Theognis, 45-6). He argues that these texts raise the possibility that class interests might manipulate the legal system. Archaic enactments regulating oaths and magistrates similarly suggest the awareness that individuals might try to abuse the legal system for their benefit. Judicial curses, on the other hand, he argues, "can be seen as unorthodox and resistant legal narratives challenging the fabric of a complex and at times uneven... legal system" (125).

In short, Papakonstantinou wants to paint a picture of archaic law as a site of contest and negotiation between class interests, and finds evidence to support this claim. Despite my doubts about specific readings of that evidence, I think Papakonstantinou makes an important point, that legal historians ought to consider more carefully the intersection of law and class in archaic Greece. On the other hand, his notion of class is severely under-theorized, ultimately reproducing the concept (the aristocracy vs. the rest) which the ancient texts start with, but without discussing the social or poetic ends to which they used it. Nonetheless, this project is worth the consideration of scholars working on Greek law.6



Notes:


1.   The debate about the development and meaning of written law is a warm one. See K.-J. Hölkeskamp "Written Law in Archaic Greece." PCPS 38 (1992): 87-117; R. Thomas, "Written in Stone? Liberty, Equality, Orality and the Codification of Law." BICS 40 (1995): 59-74. See also Gagarin's recent Writing Greek Law (Cambridge, 2008).
2.   Papakonstantinou does not mention Douris' famous illustration of the vote deciding the fate of the arms of Achilles (Vienna 3695). It seems that at least one late archaic Greek could imagine the heroes "taking their rivals to court."
3.   For example, R. Osborne. Greece in the Making (Routledge, 1996), p. 175.
4.   See A. Lardinois, "Have we Solon's Verses?" in J. Blok and A. Lardinois, eds. Solon of Athens (Brill, 2006).
5.   The main evidence is the notice in Ath. Pol. 16. 5 about Peisistratus' itinerant arbitrators, whom he assumes to be aristocratic, and the place of the Areopagus in Athenian legal history. The latter is problematic, owing to the Areopagus' central role in the dispute concerning the patrios politeia in the late 5th/4th century, which Papakonstantinou does not discuss.
6.   This could be an intimidating book for those who are not specialists in Greek law. Most of the Greek is translated, but some is merely paraphrased, including some in archaic non-Attic dialects.

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