What are we to expect to find in a volume, published less than 20 years into a century, that promises to lay down what ancient Greek law is for that century? One contributor suggests as possible answers “the incorporation of ancient Greek law in modern university curricula…; the state of modern research on ancient Greek law; the question of whether access to and use of primary sources… are essential; and the ways in which ancient Greek law could be made more attractive to … practitioners of law” (p. 144). Different contributors to this volume variously touch upon pretty well all those things in a rather uncoordinated way. The resulting volume, arising from a conference in honour of Michael Gagarin, lacks precisely the coherent vision of the subject that has marked Gagarin's important work.
The contributors to the volume, most of whom are now retired, and only two of whom are under the age of 60, are all drawn from participants in the series of “Symposion” conferences which, since 1971, have ensured a constant flow of studies of Greek law. The “Symposion” group was founded by continental scholars, and it is the continental tradition of the study of Greek law by those trained in Roman law that the conferences have primarily promoted, despite the increasing presence in the group of scholars working in the US and, to a lesser extent, in the UK. When the group was founded, the continental tradition of studying Greek law was effectively the only tradition there was, but since the 1980s that scholarly tradition has been in opposition to an alternative approach to Greek law spearheaded by scholars trained in ancient history in the UK, who brought anthropologically inspired interest, and, as Adriaan Lanni puts it here, insisted on “not just studying the court resolution of a case but examining the entire dispute, focusing on the parties” (p. 160).
The absence of coherence from this volume stems from this history. The volume is primarily reactive, held together by responding to the initiatives taken by scholars outside the “Symposion” circle. All the papers deal in some way with the interface between law and life. There is no conclusion to the volume, and the short introduction is devoted to a brief history of the “Symposion” group, followed by summaries of the papers that follow.
The first chapter sets the tone. Robert Wallace responds to the observation that much Greek law seems to have been procedural in focus, laying down how a dispute on a particular topic might be settled, rather than stipulating in detail what the offence was. Wallace notes, following Carey, that there were in fact many laws that did have a strong substantive content, and points out that emphasis on procedure in particular laws was consequent on the absence of a general law about procedure, so that the procedure had to be described in each case; it was the indictment that supplied the details of the offence. Wallace suggests that Greek, and in particular Athenian, law was concerned to put the interests of the community first. This is essentially to put an optimistic spin, that swallows the ideologically motivated claims that Athenians themselves make, upon what those outside the “Symposion” group have viewed more negatively – that Athenian courts gave themselves enormous scope to respond differently on different occasions to the same offence. How we choose our spin will depend on whether we are willing to look outside the words spoken in and about the law courts.
In the second chapter Eva Cantarella takes on the question of whether Athenians distinguished between revenge and punishment. David Cohen, from within the “Symposion” group, has answered “Yes”, Danielle Allen and David Phillips, from outside it, have answered “No”. Cantarella acknowledges that agonistic values continued to be present, but argues that the jurors in the court “were not ordinary citizens when they sentenced”, but were obliged “not to be influenced by the agonistic arguments” of the parties in court (p. 31). There are two ways in which revenge and punishment might be distinguished; one is that revenge is personal, punishment is administered by the community. The other is that revenge is emotional, normally involving anger, whereas punishment is rational and calculated. The first of these distinctions is unquestionable, but the second is not. Communities can be encouraged to feel passionate about breaches of the law, and anger does not exclude calculation. The passages discussed by Cantarella show precisely that passion and calculation were expected, both of prosecutors and of the jury.
Michael Gagarin, in the third chapter, re-examines a famous case in which the purchaser sues the seller after the perfume shop (complete with slave workforce) that he has bought turns out to be laden with debt. He convincingly interprets a set of arguments used by the plaintiff as showing what sorts of things the Athenians considered unjust, and hence why his particular agreement was not a just agreement and so not binding. This argument is important because it involves the interpretation of one law with reference to others. Athenian courts had no legally-trained judge to direct them, and so there was no formal use of precedent. But there was an assumption that the law was coherent, and so other laws are regularly cited to influence the jurors’ interpretation of law. What other laws do is suggest possible limits to the range of interpretation of the law in question. What we do not know in any case is whether the court accepted this argument.
The same legal case is at the centre of Edward Cohen's contribution on slaves operating businesses. Cohen argues against the view that any liability assumed by a slave fell upon the slave's owner, insisting that in the case of the perfume shop the liabilities fell on the new owner only because of the particular terms of the sale, and highlighting instances of a man's slaves leasing a bank, which make little sense if the owner continues to be liable for the bank's obligations. The issues are complex here, since slaves could not normally even be witnesses in legal proceedings. Cohen is insufficiently willing to concede that Athenian language is non-technical and speakers in courts have an interest in obfuscation.
Alberto Maffi's chapter concerns the relationship between public law and private law. Maffi is an unashamed champion of continental approaches (and criticised as such in Edward Cohen's chapter); his paper invokes Roman law in its first and its last paragraph, and casts aspersions all round at “non-lawyers” in the field. Maffi draws attention to various contexts in which public profits or debts came to be shared with private individuals, and to the necessity of private individuals taking on the role of prosecutors in cases of public interest. What he does not show is that making a distinction between public and private law has any role within the study of Greek law, however important it may be in Roman law.
Martin Dreher takes on issues of “sacred law”. This is a very topical issue, with more than one attempt made in recent years to define what a “sacred law” is, and what have previously been collected together under the title “sacred laws” being most recently collected as “Greek ritual norms”. Dreher reviews the state of the discussion, and notes that Greek religion was neither regulated by any special category of law nor the source of law; “when religion needed regulation, this regulation was provided by the polis” (p. 89). The gods were treated as judicial persons, though their active involvement in justice is rare (for Dreher curses are not elements of law). Dreher accepts that impiety (“asebeia”) is what all categories of sacred law are concerned with, but seems not to see the implication, which is that failure to obey particular sacred regulations would always lay a person open to the much more serious charge of impiety. The tendency to treat epigraphic and literary evidence separately, and to treat “sacred law” as an epigraphic study, stands in the way of full understanding of how laws related to the gods worked in practice.
In the most substantial paper in the volume, Lene Rubinstein assembles the epigraphic evidence for summary fines. Taking advantage of the fact that epigraphic evidence takes us outside Athens, and beyond the classical period, she shows that summary justice, on the one hand (sometimes with explicit appeal procedures), and compulsory referral by magistrates to a court, on the other (e.g. for fines above a certain amount), were widespread across the Greek world. There is no correlation of type of legislation to the political constitution, but distinct alignment of procedures to practical needs. All of this constitutes a powerful argument in favour of “Greek law”, that is for modes of legal thinking and action that are common across Greek city-states.
Julie Velissaropoulos-Karakostas explores what she calls “soft law” – rules that originate other than from formal legislative bodies. She suggests that soft law appeared in democratic Athens only in the form of “unwritten laws” (“customs”), but that in Hellenistic cites “soft law” was enlarged by the powers bestowed on judges and arbitrators and by the powers assumed by monarchs. It seems unfortunate that there has not been more co-operation between Dreher, Rubinstein and Velissaropoulos-Karakostas, each of whom is interested, in different ways, in how the law operating in the courts gets enlarged: the larger question gets submerged by the particular focus here.
Adriaan Lanni looks at how anthropological and sociological approaches have influenced, and should influence, the study of Greek law. She offers a short history of what “non-Symposion” scholars have done since 1980, and then offers brief examples of how two further approaches, drawn from law and economics and from social norms theory, might be used. She argues that they can contribute, on the one hand, to our understanding of why certain rules develop (stressing “efficiency benefits”) and how rules are responded to (arguing that character attacks in Athenian court maximised shame and helped compensate for legal under-enforcement), and, on the other, to our understanding the expressive effect of laws, arguing that the mere existence of laws on hubris and of laws on homosexual prostitution changed attitudes and behaviour.
Mogens Hansen's chapter concerns itself with “oral law”, trying to answer the question of what Greek cities did before they wrote down law. In characteristic fashion, he explores practices in other parts of the world, taking Iceland between the tenth and twelfth centuries AD as his prime example. He successfully shows that it is possible to have an oral law code, but is rather less successful in showing that Greek cities did have such a code. Successful dispute settlement, as the famous trial scene on the shield of Achilles in Iliad 18 seems to show, does not require laws.
In the final chapter Gerhard Thür explores the nature of law-court oratory in Athens, arguing that Athenian orators worked on the principle of “isolating the facts”, enabling them to recombine those facts to tell the story that they wanted to tell, and that this is the best way to teach would-be barristers today. Given that only one side of any Athenian court case survives, digging out “what really happened” from what is said in a surviving speech itself depends on making hypotheses about the orator's method, so what Thür does here is completely circular. That it has questionable historical value does not, of course, prevent it being effective training for modern lawyers.
This book offers no systematic survey either of what needs to be done in Greek law in the next 80 years or of how Greek law can be studied, but it gives quite a good impression of the impact of “non-Symposion” scholars on established ways of studying Greek law.
