This book is the posthumous republication of a collection of articles by W., a leading scholar in ancient Near Eastern law and institutions, pertaining principally to ancient Greek and Roman law. The collection is preceded by an editors' note and an extremely enlightening preface by D. Lyons on the reception of W.'s views among classical scholars. S. Démare-Lafont's introduction supplements the preface by bringing to the fore W.'s reasoning and contextualising his thought, especially with regard to ancient Near Eastern influences on Roman law.
All but one of the articles were published either in proceedings of conferences or in periodicals specialised in legal history. In the book they follow a concise summary of W.'s argument. Therefore, the publication satisfies the need to make these studies accessible to a wider audience than those interested in ancient Near Eastern history, including scholars in Classics, ancient Greek and Roman law and institutions. It also provides the necessary background for further critical engagement with W.'s analysis concerning the above disciplines.
The first four essays deal with the history of Greek law, the following five concern aspects of archaic Roman law and the last three discuss key themes in legal history such as codification, homicide in the ancient world (principally in the Near East) and the historiography of ancient legal history. The collection concludes with an extensive bibliography, list of abbreviations and an indispensable index of persons, places and terms.
This is not the place to go into a detailed argument about the interpretations advocated by W. in each article. They are provocative, controversial and to certain quarters of academia are considered as revisionist; however, they reveal the open texture of the available evidence as well as the need and pitfalls of an interdisciplinary approach. A common theme is easily discernible throughout; it is the conviction that in the various Near Eastern societies (including Biblical Israel), from the third to the first millennium b.c., a legal koinê was elaborated largely by scribes operating in these societies. These scribes created a new ‘genre’, that of a ‘law code’, similar to the lists of dreams, symptoms of disease, etc. compiled at about the same time. The development of a ‘law code’ started, usually, with a case encompassing delicate ‘legal’ issues, then the scribes stripped it of its details thus transforming it into a theoretical paradigm, susceptible to further theoretical elaboration in casuistic format. This process produced a critical mass of paradigms or problems that passed from ‘school’ to ‘school’ in the various Near Eastern societies from the Sumerians to the Babylonians. These ‘legal’ problems were listed according to the discussion of a particular facet, for example status of the victim or transgressor, time of day, etc. Evidence for this process is the same or similar rules and the discussion of similar problems in the seven extant Near Eastern law codes (Codex of Ur-Namma, Codex Lipit-Ishtar, Codex Eshnunna, Hammurabi's Code, Middle Assyrian Laws, Hittite Laws, Neo-Babylonian Laws). Vehicles of this ‘legal’ transfer were mainly Phoenician traders and immigrants settled in the Eastern and Central Mediterranean. This legal koinê influenced and had a considerable impact upon archaic Greek and Roman law, not so much on the level of specific legal rules or legal content as on the development of legal principles, according to which legal problems were dealt with. The emergence of legislation as an autonomous activity required a qualitative leap based on the disentanglement of the legislation from its legislator, on the development of a new (political) subject to run public affairs, on the Aristotelian categorisation (through partition and division) and on the definition of abstract concepts. How deeply W. was convinced is proven by the unrelenting presentation of his main thesis in every article. The most detailed and extensive treatment can be found in ‘Barbarians at the Gates: Near Eastern Law in Ancient Greece’ and ‘Codification and Canonization’.
The Greek section includes two articles on legal questions attested in the Homeric poems, namely the dispute depicted on Achilles' shield (Il. 18.497–508) and the paradox of succession to the throne of Ithaca. W. interpreted the scene on Achilles' shield as a dispute concerning ultimately the nature of homicide; was it accidental or not? The elders have to set the limit and either accept its incidental character, and therefore accept the payment of compensation, or to admit its intentional character and allow the forfeit of the killer.
The second question arises from the fate of the kingdom of Ithaca in case Odysseus did not return. Odysseus' father lives in obscurity and Ithaca will not pass automatically to Telemachus. An explanation is provided by the fact that Ithaca was part of Penelope's dowry and therefore it should be returned to her father and then pass to her new husband.
The third essay of the section deals with the text of the republished law of Draco in 409/8 b.c. (IG I3 104) and in particular the meaning of the initial word kai (connective according to W.) and the repercussions for the context out of which this rule was taken. W. argues that the original Draconian legislation on homicide was not inscribed in a single axôn but different clauses were scattered throughout the ‘code’. Furthermore, what were copied were relevant rules on homicide extracted from the Draconian axones. Therefore, W. argues that the hardly legible text on the stone may not necessarily contain one coherent law but several different provisions concerning different aspects of the legal treatment of homicide. What preceded the preserved text was part of a legal rule on unintentional wounding. However, the prescript of the inscription clearly and plainly mentions that the anagrapheis are to receive the law (νόμος) of homicide (τὸμ περὶ τō ϕόνō) from the basileus, despite W.'s assertion that ‘there is no demonstrable basis for that assumption’ (pp. 52–3). Another objection concerns the effective equation of the legal treatment of unintentional wounding with unintentional homicide, as far as the imposed sanction is concerned. It is established that unintentional wounding, at least in classical Athens, usually entailed the payment of compensation, while unintentional homicide was punished with exile.
Near Eastern influence on principles of archaic Roman law and its particular statutes is detected in the origins of the Twelve Tables (pp. 70–114), restriction on the alienation of property (pp. 115–23), the lex Aquilia (pp. 124–46), the phrase vitae necisque potestas (pp. 146–67) and the origin of the doctrine laesio enormis (pp. 168–80).
Finally, the concept of canonisation, an intriguing alternative to codification, requires some comment. According to W., canonisation describes the process of piecemeal reforming and reformulating of the rules contained in the Near Eastern ‘law codes’. This task was incumbent on jurists, who had to read the provisions of the ‘law codes’ as normative texts, as legal rules and to transform them into legislation. Nevertheless, this process could not have been performed in a historical vacuum; when this process started, where and in what socio-political context is not explained. The reference to jurists obscures the whole enterprise since they did not emerge before the first century b.c.
In an impeccably edited volume, three inaccuracies should have been dealt with: (i) the mistaken transcription of the name Diognetos (p. 45), (ii) Plutarch cannot be considered as a Hellenistic author (p. 59), and (iii) Plutarch and Diodorus cannot be said to provide information uncritically for events of the classical period.
The republication of W.'s Greek and Roman essays provides classical scholars with a particular interest in institutions and law a challenge to rethink and recalibrate their approach to the above phenomena. We may not all agree that Ex Oriente Lex but now there is an opportunity to explore various alternatives.
