Wednesday, September 23, 2015

2015.09.39

Raymond Westbrook, Ex oriente lex: Near Eastern Influences on Ancient Greek and Roman Law (edited by Deborah Lyons and Kurt A. Raaflaub). Baltimore: Johns Hopkins University Press, 2015. Pp. xx, 264. ISBN 9781421414676. $59.95.

Reviewed by Leslie Dodd, University of Edinburgh (dr.leslie.dodd@ed-alumni.net)

Version at BMCR home site

Preview

This volume is a collection of twelve essays by the late Raymond Westbrook, each discussing some aspect of Ancient Near Eastern influence on early Greek and Roman law. Eleven of the essays have previously been published elsewhere and all twelve are illustrative of what we may call the Westbrook hypothesis.

Westbrook's central thesis can be expressed as follows: there existed in the Ancient Near East (ANE) a common legal tradition, beginning as early as the third millennium BC and continuing until the first, which influenced the early laws of Greece and Rome. Westbrook believed that Mesopotamian legal codes were a single genre of jurisprudence, not legislative in nature but constituting collections of earlier royal judgments from which general legal principles were distilled, over an extended period, in order to flesh out the theory surrounding the practice of law. In this way a comprehensive legal system based on precedent was built up and then communicated to future jurists. Westbrook saw evidence for this common tradition in the recurrence of the same or similar rules in disparate legal systems and in discussions of similar legal problems found in the various extant law codes of the ANE.

Based on apparent commonalities in the law codes of Greece and Rome and those of the ANE, Westbrook reasoned that the different systems all developed from a single shared source that could only be the scribal schools of Mesopotamia. Transmission between the thinkers of early Rome and the intellectual tradition of the ANE was mediated by the Phoenicians as "direct bearers of ancient Near Eastern culture" (p. 87). So it was not law that the Greeks and Romans borrowed from Mesopotamia but the legal and intellectual skills needed to create law.

Needless to say, Westbrook's thesis remains heterodox and controversial and not simply because of what the editors call "the all-too-common failing of classicists, the tendency to imagine the culture of Greece as springing full-blown as if from the head of Zeus, acknowledging no other parentage", a failing that led to a "violent – almost literally so" reaction to Westbrook's first unveiling of his work on the Twelve Tables (p.x). Those familiar with the Westbrook hypothesis will have wished that Westbrook had had the opportunity to compile a monograph in which his theories could be laid out at length and in detail. That was not to be, and this collection must suffice to fill the gap.

The first chapter, 'The Trial Scene in the Iliad' (1992), deals, as the name suggests, with the trial scene depicted on the shield of Achilles (Il.18.497-508). The ambiguities of the scene have long been noted: does the trial deal with whether ransom has been paid (fact) or ransom can be paid (principle)? Were the judges mere arbitrators or had they coercive power? What, indeed, is the trial's relationship to the tableau of other events depicted on the shield? Westbrook viewed the scene through the prism of the Near Eastern legal experience and the administrative realities of the Mycenaean world, so the scene then becomes one in which a court is attempting to divine whether a homicide was aggravated or mitigated and therefore whether the victim's kinsman is entitled to compensation or revenge. This chapter is as persuasive today as when it was first published and probably represents current scholarly orthodoxy on the topic.

'Penelope's Dowry and Odysseus' Kingship' (2005) is a cogent and insightful attempt at explaining the paradoxical situation where kingship of Ithaca passes, upon Odysseus' presumed death, not to his son or even his father but to his wife's new husband. Westbrook argues that kingship over Ithaca was Penelope's dowry from her father Icarius and would have passed to Penelope's second husband upon re-marriage; it would not have devolved to Telemachus until after her death (or the death of her new husband, if she predeceased him).

In 'Drakon's Homicide Law' (2008), Westbrook focuses on the very first word of this law on unpremeditated homicide, kai. The presence of a conjunction at the start of a law suggests the law was incompletely copied and the traditional assumption is that it would have been preceded by Drakon's law on intentional homicide, though Gagarin and Stroud have offered grammatical explanations that obviate the need for any preceding text. Westbrook dismisses them (p. 46), arguing that there was preceding text and that its content can be uncovered through reference to Near Eastern and Biblical legal tradition, which is assumed to be the proper context for Greek law. Westbrook maintains that Drakon's law on unpremeditated homicide was preceded by the law on unpremeditated violence not resulting in death.

The fourth chapter, 'Barbarians at the Gates: Near Eastern Law in Ancient Greece,' is a lecture given by Westbrook at Miami University in 2008 and the only previously unpublished work in the collection. Beginning with the Greek literary topos of the nomothete who travels abroad and brings back foreign (often Egyptian) law to his polis, the essay develops into a recapitulation of the Westbrook hypothesis that the common legal culture of the ANE came to influence the development of early Greek law.

'The Nature and Origins of the Twelve Tables' (1988) is probably Westbrook's most well-known work and certainly his most controversial. Most readers will be familiar with it: Westbrook argues that, contrary to the version given by Pomponius (Digest 1.2.2.4), the Twelve Tables and the law codes of the ANE share a "common derivation" (p. 74) that makes Biblical, Mesopotamian, Hittite and Roman law part of a single intellectual continuum and the Twelve Tables "a product of...Mesopotamian scientific tradition" (p.89). It will suffice to say that this radical theory has never gained much traction with historians of Roman law.

'Restrictions on the Alienation of Property in Early Roman Law' (1989) argues that the res mancipi of Roman property law are reflections of Near Eastern rules intended to protect the principal assets of the family from alienation at less than their true value and that mancipatio was "designed to overcome these rules by evidencing sale at the full value" (p.117). The argumentation is complex, nuanced and, from the perspective of comparative law, very interesting but ultimately unpersuasive.

The seventh chapter, 'Coherence of the Lex Aquilia'(1995), is hardly less controversial than Westbrook's work on the Twelve Tables. The essay argues that the three chapters of the Lex Aquilia (dealing respectively with homicide, fraud by an adstipulator and wounding) follow a pattern that can be discerned in the law codes of the ANE (including the Hebrew Bible). As with the fifth chapter, the fundamental argument is that early Roman law was part of the common legal tradition of the ANE, but, whereas that chapter was based around the content and subject of Roman law, this chapter is based on its structure. As usual, one finds sophisticated and interesting argumentation paired with an impressive awareness of more orthodox academic thought on the topic, although the thesis as a whole is unsatisfying.

'Vitae Necisque Potestas' (1999) dwells on the apparent duality of the phrase and what Westbrook saw as the paradox inherent to it (viz., that while "[i]t accords the right to change another's state from live to dead...there appears to be no concomitant right to the change from dead to live" - p. 146). The problem is largely one of the author's own making and revolves around some very tenuous semantic points. Attempts are made to explain matters by relating the phrase to similar terms from Hittite and Biblical law (something originally done by Yaron, upon whom this chapter is heavily, and perhaps excessively, dependent),1 thus showing that the ideas behind the Roman doctrine have their origin in Mesopotamian law codes. While this may not be the most controversial of Westbrook's attempts to link Roman law to the ANE, it is (to the present reviewer's eyes) by far the most tenuous.

'The Origin of Laesio Enormis' (2008) deals with a peculiar legal doctrine found in the Justinianic Code (4.44.2 and 4.44.8) that allows the seller of a piece of land to rescind the contract if the price paid was less than half the true value or to compel the buyer to pay the difference. While ostensibly a rescript of Diocletian, this law has been explained as a Justinianic interpolation2; certainly, it is a concept that is utterly at odds with the usual assumptions of Roman law on sale that buyers will rightfully try to get the best deal possible. Working from the premise that "[a] concept so alien to Roman law must have come from a foreign system" (p.170), Westbrook rejects the work of earlier scholars of Jewish law, who saw the doctrine as a reflection of Rabbinical law on price fraud, arguing instead that the laesio enormis can ultimately be traced to a right of redemption for family-owned lands found in ancient Mesopotamian law.

'Codification and Canonization' (2000) is one of the collection's most interesting chapters because it shows in detail the thought processes that underlie Westbrook's conceptualisation of ancient law. It deals with the law codes of the ANE and argues that they were casuistic, descriptive lists with no textual autonomy. Only later, after analytical jurisprudence emerged in Greece, were they interpreted as prescriptive and exhaustive in nature until, finally, they were canonised and accorded the status of legislation.

'Reflections on the Law of Homicide in the Ancient World' (2006) takes as its starting point Pamela Barmash's 2005 monograph on Biblical homicide law.3 Westbrook is mainly concerned with issues of translation and interpretation of certain phrases found in cuneiform texts and the position of talio and related concepts (revenge, ransom, pollution, asylum, etc.) in the law codes of the ANE. While highly interesting, the essay's relevance to Graeco-Roman law is questionable, being limited to the occasional remark and a couple of paragraphs at the end explaining that Homeric homicide law was closer to Biblical law, while Athenian homicide law was something wholly different.

The final chapter, 'The Early History of Law: A Theoretical Essay' (2010), surveys a limited selection of Enlightenment and Victorian legal histories to argue that they were shaped first by teleology and later by evolutionary theory rather than by "objective scientific study" (p. 221). Westbrook's principal complaint is that, following the discovery of cuneiform legal codes, legal historians continued to apply an evolutionary model of law ("law as developing slowly and organically along a well-defined path" - p. 222) instead of recognising the existence of a sophisticated legal system in the ANE, which, by the seventh century BC, had spread into the Mediterranean basin. The ideas underlying this essay are worthy of study – indeed, a critical analysis of the development of Western legal-historical thought, from at least the Renaissance onwards, is long overdue – but Westbrook's argumentation suffers due to the limited range of sources he examines.

This collection is unlikely to change the mind of anyone who did not already subscribe to the Westbrook hypothesis. This, though, does not diminish its value, and even Westbrook's critics will find that his work contains valuable material. At his best, Westbrook's work was groundbreaking not just because he provided new answers to old questions but because he managed to change the nature of the questions we were asking. At his weakest, Westbrook's work still showed an enviable familiarity with modern scholarship and a command of ancient legal sources (Greek, Roman, Hebrew, Hittite and Mesopotamian) that was probably unmatched by anyone in his lifetime.

Few classicists will be convinced that Greece and Rome owe their legal systems to translatio studii from the scribal schools of ancient Mesopotamia. Still, Westbrook's attempts to contextualise early Greek and Roman law are admirable, and his entire methodological approach constitutes a genuinely interdisciplinary effort at understanding the legal-intellectual traditions of the ancient world. Greece and Rome's relationship with the ANE is a fascinating one, and the similarities between legal systems are always fertile grounds for discussion and study. The present reviewer remains unconvinced by the Westbrook hypothesis but, even so, Westbrook's work, as illustrated by this volume, makes important contributions, both concretely and in the abstract, to the study of ancient law.



Notes:


1.   Yaron, R., "Vitae Necisque Potestas", Tijdschrift voor Rechtsgeschiedenis 30 (1962) 243-251.
2.   Zimmermann. R., The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford, 1996) 259.
3.   Barmash, P., Homicide in the Biblical World (Cambridge, 2005).

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