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Book Review

Gagarin, Michael. Early Greek Law. University of California Press: 1986.

τόνδε γὰρ ἀνθρώποισι νόμον διέταξε Κρονίων ἰχθύσι μὲν καὶ θηρσὶ καὶ οἰωνοῖς πετεηνοῖς ἐσθέμεν ἀλλήλους, ἐπεὶ οὐ δίκη ἐστὶ μετ᾽ αὐτοῖς: ἀνθρώποισι δ᾽ ἔδωκε δίκην, ἣ πολλὸν ἀρίστη γίγνεται:

Hesiod's Works and Days, 276-280

Summary

What is the nature of law in the world of classical Greece? Gagarin's monograph presents what could be considered a classicist's take on an anthropologist's question.

Classical Greece presents a unique case in the genesis of legal systems because its judiciary procedures evolved in conjunction with its writing systems, rather than before. This presents a new variant on the comparative anthrpologist's quest to abstract the development of law from oral custom, tribal observation, or purely archeological inference.

But to begin to answer this investigation, one must begin with the begged question: what is law?

H.L.A. Hart answered this by formulating an anthropological distinction between primary rules which impose obligations on the one hand and secondary rules on the other hand which govern the creation and operation of these primarily rules (most importantly rules of recognition).

This seems plausible but falls rather flat by Hart's own acknowledgement in the case of pre-literate societies. How can one speak of law in this case, especially when law often predates writing systems in many societies.

Gagarin would contend that preliterate law primarily originates in the peaceful settlement of disputes and establishing proper redress for violations between private parties.

This paradigm would solve the problem of how a law could be broken if it does not exist, as violations and suits can easily be brought against another party without some pre-established rule to govern the dispute.

This is further supported by legal realists such as Dworkin who point out that Hart's theory is based on a positivistic assumption that cases are universally determined on formalized laws, when it is clear that these laws may not exist.

And if this dispute resolution is understood as the basis of law, this does not consist of the peaceful resolution between two private parties exclusively but rather depends on the mediation of a third "public" figure to adjudicate between the two.

This suggests a three stage model in which originally no laws exist at all, then voluntary procedures were developed to provide conflict meditation, before finally compulsory rules were established to which all private parties are subject.

We can trace the beginnings of law in this sense to Herodotus 1.96-98 where he describes Deicoes the first king of the Medes.

Deioces allegedly was a zealous practitioner of justice (dikaiosyne) in the midst of lawlessness (anomie). Because of the turmoil among the Medes, Deioces was called upon to adjudicate in a wide range of disputes because of his profound reputation for relentlessly straight (ithys) and just (dikaios) rulings.

This was the nature of his kingship, as a judicial magistrate between voluntary disputants. By no means was Deicoes a lawgiver who recorded, implemented, and enforced legal codes but merely a decision maker in the settling of disputes.

Of course Herodotus "state of nature" story may in fact be more mythical than factual, but one finds convincingly strong parallels in Homer and Hesiod as well.

Hesiod remarks how one of the primary blessings of the Muses is the ability for a king to soothe conflict in the public agora (Theogeny 84-90). He also points to this as one of the distinguishing traits that elevates humans above beasts, the ability to have a law without crookedness (i.e. straight) that can rule fairly regardless of personal inclination or prejudice (Works and Days 27-39, 276-280).

In Homer, we see this in the famous ekphrasis of Achilles shield where two litigants submit their dispute for arbitration in a public forum (Iliad 18.497-508), in Minos' disputes over the dead (Odyssey 11.568-571), the contest over the arms of Achilles (Odyssey 11.543-551), and the chariot race dispute between Antilochus and Menelaus in Iliad 23.

Across these literary examples that look back upon previous generations, we see several common themes. The dispute is voluntarily submitted before a judge, generally holding a scepter. Each disputant believing themselves having a valid case accept the decision that will be made by this judge. The dispute is voiced publicly, and often redress of property and/or honor is expected in the settlement of this dispute.

What is key, as we see in Herodotus and Hesiod, is that the judge is known to be straight (ithys) in their decisions, not unfairly weighed by factors of blood, prestige, fear, or personal gain.

In the generations that followed, Aristotle describes how early thesmothetai recorded their judicial decisions as precedents that could be referenced in future disputes, though these magistrates maintained full authority to judge as they saw fit.

In the historical evidence, we see the emergence of written law across the city states by the mid seventh century BC, most notably by Zaleucus in Epizephyrian Locri around 662 BC and in Cretan Dreros a few decades after that.

These written laws were public inscriptions that are notably not privately guarded in secretive law codes as one may find in Mesopotamia but rather positioned in the public forum for all to see.

They certainly were not comprehensive legal codes in a modern sense which established moral codes of conduct nor a constitution (politeia) which defined the system of government, but were primarily legal procedures.

Draco established a new trends through his axones that did establish these rules in some sense which went one step beyond a record of decision (thesmion) which the earliest judges recorded, something Aristotle describes in Athenian Politics 16.10.

These laws generally fell into categories of (1) tort, such as Draco's homicide law, (2) family law which governed matters of marriage between relatives, inheritance, or adoption, (3) public law such as Solon's legislation which dealt with exports, land sales, and even who was required to dig their own private wells, and (4) procedural law which Gagarin argues is the lynchpin of the evolution of law as a whole.

To the last of these, we can turn to Solon specifically, and what Aristotle refers to as his three chief "democratic reforms" (Athenian Politics 9.1):

(1) the prohibition of debts as a surety on one's own body (2) the right to seek legal redress on behalf of an injured party (even if someone else) (3) the appeal (ephesis) to popular law courts as a decision maker

Ephesis is the method of prosecution by graphe an innovation which is unique in that it no longer requires that only the injured party may seek redress but allows any member of the polity to bring suit against an alleged perpretator for a crime.

Beyond what Aristotle describes, Gagarin also points to Solon's institution of the dike exoules as an important reform which attempted to respond to the problem of legal enforcement. Since Athens lacked a police force or other group that could enforce the legal decision on behalf of the polis, thus leaving enforcement up to private means, the dike exoules legitimated the doubling of a fine or redress by which the sum of the unpaid amount would also be owed to the public treasury, thus providing a mechanism for an injured party to seek help in acquiring the redress.

These written laws were not simply a recapitulation of unwritten traditional customs but true innovations that additionally also set fixed penalties for particular kinds of violations. By stipulating fixed punishments, this curtailed the sole discretionary power of the magistrates who could ostensibly abuse their position with overly punitive measures. Fixed penalties thus transitioned judiciary authority in part from magistrate authority to a written code that existed independent of figures like a Deioces.

This gradual restricting of magisterial authority seems to manifest itself also in the inscriptional evidence by which public inscriptions held magistrates accountable to a public code in their judicial decisions.

What could then ask what the early Greeks thought of justice (dike) in a practical, legal sense that is abstracted of the theological connotations of mythological poetry on the one hand and before it was imbued with philosophical significance by philosophers such as Plato on the other.

This generation of Greeks were not concerned with the question "What is justice?" but rather how justice operates.

And we perhaps see this best defined as the peaceful resolution of conflict between private parties.

Take for example the chariot race dispute in Iliad 23 where Antilochus pulls off a dangerous maneouvre to slip past Menelaus and thus acquire the second-place position in the race. Menelaus is offended because his horses are swifter and he is the better racer, so he feels that he should receive the second-place prize instead of the upstart Antilochus. It would be a stain upon Menelaus' honor (arete) to receive a lower ranked prize.

This contest is resolved by Antilochus' verbal acknowledgement that Menelaus truly is the better racer of the two who deserves second place, but he himself is granted the second-place prize. Both parties accept this as resolution of what could potentially devolve into a violent conflict.

A failure of this dispute resolution mechanism can be seen in the opening of the Iliad where Agamemnon and Achilles fail to have their dispute over Briseis resolved, though it does not escalate into a physical contest of violence. The implicit resolution of this conflict is that Achilles receives the greater honor for his role in the Trojan conflict through the poem whereas Agamemnon receives far less heroic a portrait in how the events play out.

This is not to say peaceful resolution was viewed as the exclusive option. Odysseus' vengeance on the suitors is a clear rejection of peaceful arbitration as his prerogative. But nonetheless, the Greeks did seem to prefer peaceful resolution to conflict over violent competition when possible, such as in the Odyssey's negative assessment of the race of the Cyclopes as they had neither councils (agorai) nor judgments (themistes).

But at what point did a policy of voluntary legal arbitration transform into a compulsory, mandatory resolution for disputes? Gagarin argues Draco's homicide law was the gateway for this development.

Draco's law stipulated that once a murderer was identified by the victim's family, the murderer had three options. (1) They could choose to go live in exile and thus implicitly acknowledge guilt. (2) They could submit to trial and be provided with protection by the polis from private revenge parties. Or (3) they could ignore this proclamation of guilt which meant the victim's family or the polis had free license to kill or arrest (apagoge) the perpetrator, even in public or sacred spaces.

It is not clear if this law was carried out on these terms or enforced because it does seem rather complex, and Athens lacked a formal police force that could carry out an arrest.

However, this homicide law remains a significant innovation because it is the first formally codified mechanism whereby an individual could be compelled to be tried in a public, legal setting so as to avoid exile or death. A precedent which would only expand over the years.

Thus, apagoge, graphe, eisangelia, and episkepsis (the formal notification of intent to prosecute) provided new procedures by which access to legal courts were expanded to the broader public.

On the question of written law, scholars have offered several theories to explain how it developed, none of which Gagarin finds persuasive. One view contends that written law was a democratic innovation to prevent abuses by aristocratic governments, yet this would assume the people believed there was a prior, secret oral law that was already codified but merely needed to be transcribed to writing.

Another view in a similar vein argues this was intended as a check on tyrants. Yet there is little evidence to support this and it seems that many lawgivers who created these written laws were also tyrants. Even the tyrant Pisistratus inherited the laws of Solon and Draco without any indication of overturning them.

A third view contends that written law was a cultural import from the Near East. Yet Gagarin contests there is no evidence beyond coincidental timing to suggest any influence between the two, particularly as the two kinds of legal codes remain so structurally dissimilar. Furthermore, there is little else that seems to have been imported from the Near East.

A fourth view suggests written law was developed to support the needs of colonization and establish a law code common to both parent cities and their colonies. This seems logically plausible, but the historical evidence indicates that the earliest written laws were not developed in colonies at all, and when colonies did adopt written, it was far later than their parent cities.

Gagarin believes that the rapid growth of cities across the Greek peninsula created a considerable level of social and political friction, and written law was implemented as a solution to the requirements of scaling legal and judicial decisions.

As a result, these laws propagated by Solon and other reformers brought about a considerably increased level of political control over families and households. Whereas before all matters were sorted privately through mediation or violence, the polis became an orchestrating agent in offering a public space for those seeking conflict resolution.

This is a powerful tool to possess, and it is this set of legal protections which perhaps partially gave birth to the initial incentives of citizenship.

Some like Gefforey Lloyd have argued that the Greek polis was so unique and fertile in its cultural, artistic, and scientific output because of the special nature of its political institutions which lend themselves to openness and democratization.

However this would not explain why despotic Greek governments were also so fruitful, and Gagarin would contend that it is rather the unique development of Greek jurisprudence and its mechanisms for peaceful conflict resolution which played such a crucial role.

Writing was not universally a tool for democratization nor for despotic oppression, as it served a variety of functions on a case-by-case basis across the Greek city-states. What can be generally said about written law is that it reduced the discretionary power of magistrates and increased the role of public forces and opinion in conflict resolution.

When interpretation of the written law and words and arguments play such a critical lynchpin in the functioning of the social order, it is no wonder that the Greek mind would be so uniquely fascinated with the investigation, exploration, and uncovering of all matter and phenomena.

Thoughts

As an amateur classicist at best, I find Gagarin's study to be a richly original analysis with a fresh angle in an area of scholarship often bogged with scholarly perspectives so frequently repeated they grow stale and uninteresting.

The monograph itself may have problems with organization. The presentation alternates between a historical presentation of evidence at times on the one hand with a topical analysis on the other which leads to the uneven recapitulation of previous quotations and evidence.

The observations of the introduction and closing chapters don't quite align, and the depth of evidential analysis seems to level off considerably. For example, the Homeric Hymns and Aeschylus are cited once in the second chapter, yet Greek drama nor other facets of the larger Greek canon are mentioned again.

That being said, Gagarin's work does prove exceedingly useful in considering the general abstractions of "what is law?" within the historically concrete context of classical Greece. All the more so as the history of Western law tends to give almost exclusionary focus to Roman law as a starting point.

I was also deeply intrigued by the implications of the symbiotic relationship of writing and procedural law, particularly as a foundation for a broader analysis of the nature of the "public forum" in the Greek context.

Aside from that, I found it simultaneously intuitive and yet radically alien to frame the origin of law within the context of dispute resolution, something traced back to the very first book of the Iliad.

Perhaps this is due in part, as Marx has noted, to the general historical trend by which the state has expropriated power from the private family, most especially the right-to-violence.

Yet it also serves as a double reminder, both how a working legal system is a protection from unrelenting violence, but also how the surrendering of a right-to-violence entails a surrendering of one's fate to a court authority, no matter how hostile such judges may be to you as a litigant.

Hence the eternal risk of the show-trials which emerge in ages of heightened societal frenzy such as in the French Revolution or the Soviet era. A false parading of "public" due process that is only meant to certify predetermined outcomes and ill-will.

It is because of this that the neutrality of the judicial system is of the utmost importance, particularly in heavily legally-driven societies such as modern America.

And the key evaluation of such neutrality is, as Hesiod describes, straightness (ithys) of the judge's ruling. They do not rely on crooked words but establish a fair decision with full firmness. They are not turned to left or right by prejudice, ideology, personal incentives, or anything extraneous to the dispute at hand.

It is this trait alone in the Greek imagination that separates civilization from the feuding, barbarian hordes, or the beasts of the field. It is a fragile thing, this thing called justice, and we should not take it for granted in this age or any other, when law itself comes under question.