How does a new state produce its legal and political system? Where do state authorities and lawmakers turn—to what sources, ideas and concepts—when faced with the challenge of building political institutions, laws and a system of justice for a new state? How are they to implement reforms? And how are they to do this in the case of a state that has been born by way of revolution and secession from an empire, the legacy of which they seek to obliterate? Such were the challenges that the Greek authorities faced already during the revolution against the Ottomans (1821–8). But it was after Greece had gained its independence (1830) and the Bavarian Prince Otto had been recognized as the first incumbent of the Greek throne and sovereign of the state under the “guarantee” of the Great Powers (Great Britain, France and Russia) in 1832 that such questions became pertinent. The responses drew on different sources and idioms as to how to go about forming the state, how to organize political power and how to forge the relationship between the state and society.
Liberalism played a key role in framing these responses and eventually in the political processes that led to the revolts that reshaped the monarchical state: one in 1843, when the king was compelled to grant a constitution sanctioning a national parliament, and the other in 1862 when he was forced to abdicate, paving the way for the election of Prince George of Denmark as King of the Hellenes, and the promulgation of a new constitution.
This article focuses on a particular current of Greek liberalism—which it treats both as a corpus of ideas and as a form of political organization—that was manifested in civil-law jurisprudence. Ιt does so by concentrating on a number of Greek civil jurists, who, after studying in various universities across Europe, flocked to the new state, taking up important posts as law professors, members of legislative committees and of the Council of State, lawyers, judges and government ministers.Footnote 2 The most apt term for the liberal current they shaped, which from the 1840s onwards would gradually come to dominate legal and political life, would be “contractual” or better still “Romanist,” because of its association with Roman-law scholarship. Although Greek legal historians have conventionally made this association, they have rarely taken into account the sheer intellectual complexity of Romanist jurisprudence, as well as its spread across Europe, the Americas, parts of the colonized world, and Japan after the defeat of Napoleon.
More generally, Greek historiography has conventionally studied Greek liberalism within a “diffusionist” framework that treats it as a derivative product of an alleged “European” or “Western” ideal type. This has been the case both for studies that have discussed the role of radical liberal and Benthamite traditions in the Greek world before and during the revolution, and for those discussing liberal ideas after the creation of the state. In these latter ones, liberalism is usually related to the failure of reforms, introduced by state authorities and administrative elites to modernize society.Footnote 3 Apart from rarely situating the Greek case within wider patterns, these accounts suffer from a double reification bias: they reify both liberalism, treating it as a coherent body of ideas, and the “modern state,” which they see as a comprehensive entity that is defined by specific institutional formations.
This article breaks with the existing literature, by drawing on the ways in which historians have recently reassessed nineteenth-century liberalism and the role of core liberal ideas such as property law in the legal encounter between the European and the non-European worlds.Footnote 4 At the same time, it adds to this literature by bringing into the discussion the subversive way the Greek jurists used Roman law.
Because of its tendency to assign ownership rights to one party, most scholars associate nineteenth-century Roman law with the establishment of absolute property rights. Thus a part of the historical literature portrays it as central to the development of a bourgeois conception of civil society.Footnote 5 But another links the advocacy of absolute property rights to the exercise of state power.Footnote 6 This is particularly true for studies that explore the European expansion into the non-European world.
Although not formally a colony, the problem of the extension of property and contract law presented itself with notable force in Greece—a new state, and one that was in the process of transition from the fluid legal pluralism of the Ottoman Empire to that of a state-dominated legal order.Footnote 7 The reason was that under the Ottomans, lands had been held under forms of tenure that did not comport with property absolutism. In this setting, the Greek jurists used Romanist jurisprudence for two reasons: it was a highly coherent method for lawmaking that would facilitate the state's claim to paramount legal authority, as the mechanism with which to transform land possession or rights of use into the juridical state of proprietorship.
At the background of their interventions was the central sociopolitical debate of the era: the issue of the biens nationaux and how to convert them into private holdings. As we will see, the situation was complicated somewhat by the Bavarian perception of these lands as essentially state property. In consequence, the Greek advocacy of absolute rights assumed a highly distinctive form. It constituted neither a campaign for bourgeois values, nor a campaign in the interests of the Bavarian state and the theory of the “police state” (Polizeistaat) that informed it. Instead, Greek civil jurists framed their arguments in support of the property-rights claims of cultivators against the monarchical state.
As historians of law and empire have shown, such sharp conflicts were hardly exceptional during the nineteenth century, when empires and emerging states sought to assert greater legal hegemony over local jurisdictions. But as there was no universal plan leading to modern statehood, state-like institutions were shaped in response to developments on the ground, which to a great extent were the outcome of struggles over the structure of the legal order. What is more, historians have argued that in colonial settings this struggle was defined by two forces: the challenge posed by legal intermediaries and disputes over property and its legal definition.Footnote 8
The Greek case bears witness to this wider process. Indeed, it was in response to the Bavarian authorities’ legal and land policies that Greek jurists—the intermediaries—turned to Roman law, formulating in the process an original project to establish modernity and state “hegemony.” As elsewhere outside the core European world, this was a project that rejected European universalism and argued that the push to modernizing reforms should always take into account local conditions if they were to succeed.Footnote 9
What is more, for the jurists (as well as for royal authorities) this struggle was not about property per se. It was about the type of agrarian society they envisioned. In a way, the question was rather simple: would Greek society be one of tenants on state land or of small landowners? The jurists opted for the latter, not least because they saw it as a key factor in the nationalization of society and the state. In doing so, they shifted the basis for the legitimation of sovereign power from the claims of the royal dynasty to the interests of the nation. In that sense and as elsewhere in the colonial world, struggles over property were transformed into struggles over sovereignty, liberty and the state—its role and its nature.
While set in these broad global institutional and legal trends, the Greek case stands out for two particularities. The first is the way the jurists took instruments, usually employed by colonial authorities, and used them against the Bavarian state. Indeed, whereas imperial authorities elsewhere claimed that possession was based on fact, and not on legal entitlement—usually in their claims against competing empires—in Greece, the jurists used this same argument against the state and its claim that cultivators should have a legal title, if they were to claim the possession of land. This went hand in hand with a theory of sovereignty, which, without questioning monarchical power as such, fed into a politics of legal reordering based on fixed private property.Footnote 10 The second particularity of the Greek case is how successful the Romanists were, becoming key agents in a sort of legal, social and economic engineering.Footnote 11
The article opens by addressing briefly the conceptual and methodological limitations of the explanation offered by historians and lawyers regarding the dominance of Romanist jurisprudence in Greece. It then turns to the case of the Greek scholars discussing how their initial reaction against the royal authorities’ attempt to draft a civil code was made, during the 1840s–1850s, into a legal and sociopolitical agenda. After exploring what this consisted of, and the kind of political language it helped shape, the article concentrates on the social and political implications this agenda had for the nineteenth-century Greek state and society at large.
Roman law and the Greek state: the legal–political agenda
By all accounts, nineteenth-century Greek legal science was widely influenced by the historical legal method and especially by Romanist jurisprudence.Footnote 12 Writing in the aftermath of World War II, lawyers and legal historians explained this “German” influence in terms of foreign domination, which ever since the foundation of the Greek state had been distorting, or so they contended, the organic harmony of the democratic customs of the Greek communities. In what is still a highly influential view, Roman law was condemned for its antinational character but also for the materialistic, commercial and individualistic values it fostered.Footnote 13
Later on, political scientists and historians offered a somewhat different explanation. Influenced by “modernization” theories and constructivist theories of nationalism, this current was highly skeptical about the continuity of the Greek nation, and the democratic character of the pre-independence communities. It also saw the Greek revolution and the establishment of the Greek state as radical breaks, which had set the country on the path to modernity, progress and westernization. Compared, however, to a putative European model, the Greek state was backward and underdeveloped. This gave rise to a clash between conservative forces (i.e. traditional nationalist elites who forged Greek irredentism) and progressive/moderate forces (i.e. the modernizing, Western-educated liberal intellectuals and professors). Because of its veneration of the past and its role in ensuring the non-adoption of a civil code—a “symbol,” by definition, of progress—Romanist jurisprudence belonged to the conservative side of the equation.Footnote 14 Paradoxically, however, some of the most authoritative Romanist scholars were treated as the liberals and modernizers par excellence.
Their differences notwithstanding, these two agendas have much in common. Both were narratives of failure, driven by an urge to explain the tensions within Greek society and the allegedly authoritarian course of modern Greek history. But neither succeeded in producing a clear assessment of the broader status of Romanist jurisprudence in nineteenth-century Europe, in delving into its more recondite meanings and political implications, or in elucidating the reasons why the jurists themselves chose to endorse it.
In order to answer such questions, we need first to understand the Bavarians’ conception of the state and their reform agenda. Informed by Polizeiwissenschaft, the German technology of the “police state” and the administrative techniques of cameralism, which were associated with “enlightened absolutism,” the ultimate objective of their state policies was the enhancement of the “happiness of the state.” This was not understood or organized in terms of individual self-realization but in terms of the “well-being” of the “population”—all of these being key terms in its political vocabulary. The king, recognized as the supreme sovereign of the kingdom and the embodiment of the Greek nation, stood above particularistic interests. At the same time, he was distinct from the institution of the state.Footnote 15 The state was perceived as an administrative mechanism which, in order to enhance the welfare of the kingdom, would act as a critical agent of reform from above. This way of thinking informed the two sets of reforms and civilizational projects that the Bavarians put into effect: inculcating the virtues of “industriousness” and “productivity” in the general population (partly under the influence of Saint-Simonian discourses), and a drive for administrative, legal, military and judicial uniformity—by way of codification and a system of justice—to consolidate the state as the sole source of political power.Footnote 16
Initially Greek jurists endorsed these Bavarian policies by producing the discursive armory with which they would be legitimized—at the Bar, on the bench, within the university, through the press and by translating books. This consensus, however was not destined to last. The first crack in the edifice came in 1837 when the most controversial issue in European legal affairs came to the fore: the drafting of the Civil Code. This was to replace the Exavivlos—a digest of Byzantine laws that drew upon the Justinian juris civilis—which the authorities had promulgated in 1835 and which the jurists had initially supported and complemented by compiling and publishing collections of laws.Footnote 17 For several reasons—confusion with respect to the meaning and authority of the legal sources and the essence of legal concepts, disagreements among key Bavarian administrators, mounting pressure from the champions of French law—the authorities now planned to bring the French Civil Code into force. The result was a “battle over codification.” This battle was the crucial first step of the turn of Greek civil jurisprudence towards the German historical school of law, which was to dominate civil jurisprudence in the years to come, and away from French law and the Code civil that influenced other parts of Europe and the eastern Mediterranean more generally.
The reason for this differentiation was simple enough. The new state had been established in a space characterized by a plurality of legal and administrative orders, different spatial imaginaries, and widely varying social and economic characteristics (islands, mountainous regions, coastal areas and so on). These differentiations raised practical issues of governance, but also questions about political legitimacy and ideology. This is where the significance of Romanist jurisprudence lay, as it offered a consistent and methodologically systematic tool with which to ‘produce’ Greece's legal and political transformation. This was hardly exceptional. For jurists all over the world at the time, Romanist jurisprudence, as it had been refined by Friedrich Carl von Savigny and his disciples in the early part of the century, offered a historically informed and sound method for thinking about law and for lawmaking.Footnote 18
Drawing on this school and on analogous battles elsewhere, civil lawyers wondered whether it might in fact be possible to legislate without taking into account the historical context. Among several publications, a pamphlet anonymously published by Pavlos Kalligas—a young scholar who would, in the fullness of time, become the doyen of civil law—encapsulated the argument.Footnote 19 Claiming that Greece was yet to grow into a full member of “European civilization,” he argued that Greece should first develop its institutions according to its own national character.Footnote 20 Law was the most important element in this process, and the Romanists perceived Greek law as a national/local variant of that common European legal language, i.e. Roman law. Thus, for the jurists, the historical approach—one that required the arduous collection and study of legal sources and material that did justice to local variations—was the only way to achieve a proper national legal formation.
Interventions such as these carried the day, gradually becoming an alternative and moderate oppositional discourse vying with that of the Bavarians. One reason for this was disappointment at the monarchy's failure to deliver the promised reforms.Footnote 21 Another was that, according to the jurists, the administrative politics of the Bavarians and the territorialization it produced was giving rise to tangible differences, undermining in the process the prospect of national unity. Initially, the influence of the jurists in political developments took the form of the framing (in terms of rights, the rule of law, the creation of consultative bodies and the taking into account of local conditions when promoting administrative efficiency) of the pro-constitutional and anti-absolutist claims that eventually found expression in the revolt of 1843.Footnote 22 But the juridical dimension also informed the revolt itself. After the initial revolt of the National Guard, in September of that year, the Council of State, the highest monarchical legal institution, published two “National Acts” with which it claimed to represent the nation, and thus to be able to petition the king for a Constituent Assembly.Footnote 23 After that unprecedented move, one that lent the revolt its legitimacy, the king responded and called for the convocation of a Constitutional Assembly.
Yet, for the jurists, even the promulgation of the Constitution in 1844 and the creation of a bicameral national legislative system did not, and in fact could not, solve the issue. As Pavlos Kalligas observed, in a series of articles published in 1845, national unity and the legitimacy of the state were in jeopardy. The key question was how to attain these two crucial goals. The answer for the jurists lay in legal unity and the administration of justice. Law was for them a means to break up regional and communal identifications, to facilitate social peace and the “internal harmony of living in society.” It was the transitional mechanism for national unity.Footnote 24
Conventionally, we suppose that liberal criticisms serve to place checks on power. Although this was an integral part of the liberal critique, at this juncture the jurists tended to argue for a more controlled and gradual transformation in legal affairs, while being at the same time very sympathetic to the accumulation of state power. The reason was that their programs were based on a strong association between state and nation. This led to the jurists shifting the basis for the legitimation of state power: in place of the rightful claims of the princely dynasty, usually translated into a paternalist bond between ruler and subject, they put the interests of the nation, which they rendered in terms of a program of “national regeneration.” Thus what differentiated them from the Bavarians was their propensity to view regeneration as part of a larger nationalization project. For this project to take hold, reforms in civil law, and in particular in contractual relationships, property rights and family and inheritance law, were crucial.
This was a programmatic vision which, after the mid-1840s, they communicated to the Greek intellectual community and to the wider public sphere through published scholarship (treatises, university lectures, translations of French and German jurisprudence) and public interventions, as well as through nonlegal narrative forms such as history. Most, if not all, of these interventions concerned, by and large, the sources and history of Roman, Byzantine and French law and drew heavily on the method of the historical school of law.Footnote 25 By the 1850s, the Greek Romanists dominated the field of law, to the detriment of those few scholars who had initially supported the introduction of the Code civil.
The principal vehicle was the legal journal Themis, which was launched in 1845—an initiative neglected by modern Greek historiography, and one that testifies to the existence of a burgeoning juridical International.Footnote 26 By publishing this journal, the jurists had three aims: (i) to bridge the gap between Greek and “European” (in their terms) culture, history and law, (ii) to communicate their legal ideas and the historical method—“the safest guide in solving legal problems and disputes”—to the public and (iii) to legitimize their own involvement in lawmaking and the role of legal writing as a source of law.Footnote 27 In addition, as the editors argued, the state of the judiciary and the lack of informed legal practitioners in Greece made it necessary to find additional ways to develop jurisprudence.
Without rejecting codification, what was needed, the jurists reckoned, was the development of a corpus of historical investigations into national institutional practices, juridical traditions and customs, through which it would be possible to uncover, distil and turn into law the legal principles and institutional traditions of the Greek people, always in accordance with principles of Roman law. In this way, jurisprudence became a vehicle—one neglected in Greek historiography—for historical scholarship and the main agent of the convergence of history and law.Footnote 28 Having a very practical orientation, the journal offered critical reportage on local customs and on court decisions, especially of the Areios Pagos (the Supreme Court) and the Courts of Appeal. It was thus simultaneously a law review, a court reporter and a quasi-official legal journal for the kingdom, with issues of private law given primacy—contracts, transactions, inheritance and so on.
The publication of Themis was followed by the publication between 1848 and 1852 of Pavlos Kalligas's System of Roman Law—the most impressive, consistent and authoritative account of the Romanist method and research agenda that set the stage for the understanding of civil law in Greece, remaining in print until the 1930s.Footnote 29 Kalligas had two principal preoccupations, namely to define the object of civil jurisprudence and to work out how to analyze it. Following the practical concerns of Pandectist science, he was concerned with “what was and what is” and not with “what ought to be.”Footnote 30 And, as evidenced by Byzantine legal sources like Exavivlos, the origins of “what was” in Greece was Roman law.Footnote 31 Kalligas reckoned that although Exavivlos was a legal source of the decadent Byzantine era, it was nonetheless a source that connected Greece with Roman law, the matrix of law of the “civilized nations.”Footnote 32 But this could only be temporary because, in order for the nation to be legally formed, “law and its matrix [Roman law] had to be understood completely … so that [national law] [would] combine the direction and the mode of foreign legislation with everything that subsists in its own character.”Footnote 33 In other words, as a newcomer to European civilization, the Greek nation had to gradually adjust to the demands of that civilization by combining an understanding of the principles of Roman law with its own (national) distinctive characteristics.Footnote 34
Kalligas did not dismiss codification per se, being attentive to the criticisms directed by the Germanists at those who subordinated legislation to learned treatises, because that would be detrimental to the nation's present situation and a justification for inaction.Footnote 35 In a lengthy article he published in Themis he addressed the role of customs and whether civil law should be based on them or on entirely novel legislation. He adopted an intermediate position.Footnote 36 Rejecting recourse to absolute novelty, Kalligas also deemed customs (a “collection of mythologies”), which the Ministry of Justice had collected after 1835, to be a far from satisfactory resource. Such collections could, however, prove useful as a springboard for further research. But his key argument was that even a proper collection did not automatically create customs but rather constituted evidence of customs. It was the expertise of civil lawyers that would transform this evidence into law. Echoing arguments formulated by Mittermaier during these same years in Germany, Kalligas argued that a successful codification required a satisfactory collection of preparatory material, an understanding of popular perceptions of law, a high level of legal expertise, and attempts to codify particular parts of laws.
Arguments such as these set the tone, and gradually the jurists started addressing specific issues of private law. After the creation of the Legislative Committee in 1849, this became the focus for a sort of legislative activism.Footnote 37 Although similar committees in other European countries consisted of judges, lawyers, professors of law and politicians, in Greece the members of the Legislative Committee were all professors of the Faculty of Law (Georgios Rallis, Pavlos Kalligas, Markos Renieris, Petros Papparigopoulos, Ioannis Soutsos, Vasileios Oikonomides, Kyriakos Diomidis) plus one lawyer (Giorgos Vellios). Entrusted with the task of drafting a civil code, the committee rejected codification based on foreign models because it would compromise national individuality. It also rejected an exclusive reliance on customs, without, however, dismissing their validity outright, since they were key sources for knowing the national popular character. Yet customary law was deemed inadequate for lawmaking because it was intellectually and conceptually underdeveloped and had to be analyzed along with principles of Roman law. This is why the committee did not produce a comprehensive civil code but only tried to deal gradually and partially with issues of civil law.
It would be an error, however, to dismiss the members of the Legislative Committee as conservatives who rejected liberal codification. Nor should they be described as doctrinaire liberal modernizers who turned their back on local traditions. They were essentially liberal nationalists within a European world of nation-states, who saw Greece as a new and still immature state and society that had to reform itself by taking into account legal traditions, customs, social norms and so on. At least during this period, this was a programmatic choice and not a failed attempt to foster liberal reforms.
Roman law and the Greek state: the political/social agenda
But what kind of liberals were the jurists exactly? As already noted, their political and social agenda envisioned a liberal social order resting upon two main pillars—Κράτος Δικαίου (i.e. the law-based state) and a society of property owners. During the 1850s–1860s this agenda increasingly ran counter to other forms of social and political organization, including the one favored by the monarchical authorities. The reason is that the jurists’ vision went beyond the field of law proper, being in fact a powerful political and social ideology. Conventional wisdom has it that the Romanists’ conception of the state was founded on the formal equality of citizens and the elevation of individual freedoms to the status of fundamental norms, on the inviolability of such freedoms, and on holding the state to account if it failed to protect them.
This is too narrow an interpretation, not least because the conception transferred into Greek legal thought the Rechtsstaat theory—the nineteenth-century legal and political theory of the state which became widespread after the 1830s when it had been popularized by R. von Mohl.Footnote 38 This was indeed a state that combined two fundamental principles, the state and the law, whereby the law built the very structure of the state instead of being just an external limitation to it. We are, in other words, concerned here with a state that was subordinated to its own positive laws in the form of a written constitution and legal codes.Footnote 39 But for all its novelty, historians have argued that the origins of the concept lay in eighteenth-century “enlightened” reforms, and that it shared a great deal with the Polizeistaat theory—a major feature of which was a commonly understood rational legal system, within which the administration and the government were expected to operate and in which royalty was supposed to serve the state.
Both theories ascribed special importance to law as a system with a strong internal structural coherence, both disregarded natural rights as the foundation of politics, and both subscribed to a holistic view of society at the expense of any perception of it as a space of harmony between different interests. In that respect, the Rechtsstaat theory was a nineteenth-century version of the governmental theory of the Polizeistaat, articulated as a response to the revolutionary and Napoleonic political experiences. As such, it was an ideological alternative—and a nonpolitical one at that—to the state based on absolutist or arbitrary rule and to the state based on the popular will (Volksstaat) associated with Rousseau and Robespierre. For Donald Kelley the juridical statecraft advocated by scholars such as K. S. Zachariae suggested a middle path between progress and reaction.Footnote 40
Yet this interpretation underplays both the novelties of Rechtsstaat thought and the fact that when the jurists referred to “arbitrary rule” they meant something very specific. As the German jurist Friedrich J. Stahl, among others, put it, the Rechtsstaat stood in opposition to the Volksstaat, but above all “to the patriarchal, to the patrimonial, to the mere police state, in which the authorities are bent on realizing ethical ideas and utilitarian goals according to a moral and therefore arbitrary valuation of every given case.”Footnote 41 It stood, that is to say, between the Jacobin model and the Polizeistaat.
The Greek case testifies to this opposition, as their differences with the Polizeistaat brought the jurists into conflict with the Bavarian perception of the state. When Kalligas argued that “the first interest of society is to form permanent and entrenched laws, which would not be transformed according to the will and pleasure of the rulers,” he was targeting the methods of monarchical rule.Footnote 42 Such views do not make the Romanists antimonarchists, as most of them would have agreed that the monarchy as sovereign power was the center and origin of all political decision making (which was also, as Kalligas argued, what the Constitution of 1844 had established).Footnote 43 But the laws which were produced by this sovereign power had a higher status and could not be formed at will, but had to express the “general will.”
One of the reasons for this opposition was the political failure of the Bavarians to fulfill the expectations of Greek liberals as far as the construction of the state and the legitimization of its authority before its subjects were concerned. Although the authorities had taken decisive measures against challenges to the state's authority in the guise of local resistance, from the mid-1840s onwards and for a number of different reasons, not least financial, the Bavarians were forced to resort to negotiating with local elites and to governing through local intermediaries in order to ensure the allegiance of local populations.Footnote 44 As a consequence, brigandage and local disorder abounded, while the standing army and police existed only on paper. Seeking to reactivate the liberal reform agenda, the Greek Romanists thought that their theories would enhance the control of the state over its territories, legitimize its authority and thus complete the establishment of a strong central state which the Bavarians had compromised.Footnote 45
But the differences between the Bavarians and the Romanists were first and foremost ideological. For the Rechtsstaat thinkers, law and, by extension, the exercise of sovereign power were not about attaining ethical ideals, like the happiness of the population and the well-being of the state, but about expressing and satisfying what they called the “general will,” which should be understood not in Rousseau's way but as a loosely (if at all) defined public interest. This will of the whole (mainly identified with the nation) existed on a higher plane, one that was different from, and always threatened by, private or group interests; these latter, however, “should not be crushed.”Footnote 46
In fact, here lies a theoretical paradox. No matter how much it was centered on the state, Rechtsstaat thinking did not entail a theory of political power or any kind of moral or political philosophy to justify the role of the state. In other words, the Romanists never explored the practical implications of their theory of “general will.” This was a formal concept that captured the preponderance of public interest over everything else. The state, accordingly, was basically an organization of law that sought to enforce its legal rules and to uphold the legal rights it had granted to individuals as subjects of the state.
The reason for this was that in essence, the subject of the law for the Romanists was the person or the citizen, even though there was no place for individual natural rights.Footnote 47 Their political thought was thus characterized by a strong, even if under-theorized, individualism. The state they envisaged was a monarchy—complemented by the separation of powers, a constitution or sometimes a parliament—through which a benign policy of self-restraint was supposed to help the “persons” (natural or legal; they rarely used the word “citizens” in their treatises) realize their wills by protecting their rights. Although liberty and security were among these rights, the idea of property lay at the heart of this political agenda.
Occupation, sovereignty and private property
It is difficult to overemphasize the centrality of property in the Romanists’ writings. In the Greek case, as in others, property was a problem which, from the revolution onwards, represented a major intersection of practical and theoretical concerns. In the background there was to be found the most controversial issue of the time, namely the issue of the biens nationaux (i.e. εθνικές γαίες). According to the decisions of the Conference of London and the pronouncements of the revolutionary governments, all former Turkish property in Greek-held areas had been transformed into Greek state domain. The status of these national lands or national property was temporary since, in the minds of many, it was supposed to be distributed to the peasants.Footnote 48
Yet there was something more at stake than simply distributing the lands. In Ottoman times, occupants were considered tenant sharecroppers on Ottoman lands (which belonged to the Sultan) or holders of a tassaruf—a right of servitude/occupation (exousiasi)—which could not be formally equated with an absolute property right. Although the forms of land tenure were particularly complex, during the first years of Bavarian rule, the authorities recognized as private property any holding supported by a title deed. Nevertheless, land tenure was hopelessly confused with several overlapping claims to land.Footnote 49 Landholders could not furnish proof of ownership since titles were lost, destroyed or most commonly simply nonexistent. In any case, during the process and until the future settlement of the issue, the monarchical regime treated this major category of cultivators as tenants on state land and obliged them to pay a heavy usufruct tax.Footnote 50 As a consequence, arbitrary occupation of uncultivated fields, including, of course, the national ones, was commonplace.
The situation became more complicated with a royal decree of 1835 which gave customs the same legal status as laws. Although many customs recognized the right to private property, this was at the same time compromised by several local practices and conflicting claims on property, such as the “right of preference”—which accorded priority to relatives and neighbors in case a landholder put up for sale his or her land, and the “right of implantation” (emphitefsis), a right similar to usufruct.Footnote 51 In 1843, state authorities did recognize the right of cultivators with no title—mainly holders or squatters on state land—to remain undisturbed in their holdings, thus granting them a kind of legal security for their possessions, but not actual ownership rights.Footnote 52 Be that as it may, in the 1840s legal disputes around property ownership were becoming more prolific and gaining wider publicity.
It was in this social and political context that the issue of property became a central theme in legal circles. Historiography on the land issue has concentrated predominantly on its empirical content, the policies of the Bavarians, the alleged social interests behind the struggle for land, and the effects that land policies had upon the economy and upon society as a whole. In general, the idea is that the property situation was a hindrance to the capitalist-enhancing legal framework that liberals wanted to establish, and that the reluctance of the authorities to distribute land or recognize ownership rights was due to their wish to preserve the state monopoly on land and prevent its concentration in the hands of possible rival elites.Footnote 53
Irrespective of the analytical problems arising from such interpretations, most accounts have taken as a given what for the Romanists was no such thing, namely that the understanding of private property was settled and common for all, and that the land issue was only about property titles. As the Romanists, among, others saw it, the problem was that in Greece there was a limited and highly problematic understanding of private property. It would be hard to find a more succinct statement on the issue than that made by George Finlay:
In Greece there is no clear and definite idea of the sacred right of property in land. The God Terminus is held in no respect. No Greek, from the highest to the lowest, understands the meaning of that absolute right of property which, as Blackstone says, “consists in the free use, enjoyment, and disposal by every Englishman of all his acquisitions, without control or diminution, save only by the laws of the land”.Footnote 54
Historians have paid scant attention to this ideological dimension of the land issue, the gist of which was to consolidate private property and a commercial society of private owners. By addressing the mechanisms and the meaning of private property—what leads to it and how—the Romanists turned theoretically and by way of legislation against both the ideas espoused by monarchical authorities and the systems of social organization relevant to local rural societies—such as those based on the above-mentioned customs, or others based on rights of use or on the communal ownership of land.
Thus the Romanists held that transforming such customary rights (of use, communal, or any other) into legally binding property rights would transform land into a commodity; enhance its productivity; and facilitate market transactions, investments in land, and fiscal policies and taxation.Footnote 55 Given its sophistication as a theory of property, Roman law would function as a transition mechanism to a liberal property regime. The technical application of its principles, even when simply implemented in courts, would complement the building of smoothly functioning commercial institutions and, by extension, help shape an adequate social morality. This claim, as James Whitman has argued, “was based on an undoubted, if slippery, truth in the history of European law: Roman law tended to assign ‘ownership’ rights to some single ‘owner’, both in the case of real property and in the case of personalty (i.e. movable assets and things, including animals) which are not real property, money or investments.”Footnote 56 This was turned into an intellectual project, as evidenced by the numerous publications from the late 1840s onwards that were concerned with technicalities relating to the making of contracts (loans, mortgages, property transfers, inheritances), the safety of transactions, and the administrative processes that would formalize and complement these contracts.Footnote 57
Yet this does not mean that the Romanists were market fundamentalists or legal positivists. Even though they saw contracts as key ingredients for a modern social order, they were contractualists of a certain kind, as evidenced by their social vision, the qualifications they put on contracts in order for them to be valid, and the theory of occupation they employed. In doing so, they blended their nineteenth-century historicist theories with eighteenth-century intellectual traditions.
A case in point is the argument advanced by Kalligas in favor of the use of the right of prescription. Kalligas held that occupation was one of the means—in Greece the fundamental one, given the absence of contracts—of creating a property title.Footnote 58 According to prescription, which, as he claimed, had been recorded in Greece since Byzantine times, if not before, an occupied or “possessed” land or asset could be transformed into private property by a lapse of time or a penalty, especially if the possession was undisputed. In case of a conflicting claim, the case should be decided in court. But the key in his argument was that in this last case the burden of proving the claim should rest on the one who disputed the right of occupation and prescription. Transferring this argument to the case of the disputed national lands—the target of the article—the burden of authenticating property rights in occupied lands should rest with the state and not with the squatters. In the same way, Kalligas argued against farmers being obliged to have a registered permanent residence in order to be eligible for claiming or indeed buying state land.Footnote 59
This use of Roman law had strong resemblances to the case of Germany, where it was used for the benefit of the peasants. It was used, however, not to undermine the power of the feudal lords but the policies of the Greek monarchical state. The reason was that there were fundamental ideological differences between the Romanists and the Bavarian authorities. These were differences that in other contexts played out in the debates about empire.Footnote 60 In the case of Greece it was the land issue that was the crux. As the Romanists perceived it, the Bavarian understanding of political power was based on an association of sovereignty with occupation. According to that logic, he who possessed sovereignty possessed also property, unless it were proved otherwise. The only way to prove a right to property was through a deed—a contract. In this understanding of contracts, occupation followed law. As we have seen, the Romanists took a different view. Being open to historicism, positivism and natural law, they had a dynamic understanding of law that reflected social change. Indeed, their whole political theory—which, as mentioned earlier, never addressed the issue of sovereignty—was based on dissociating sovereignty from occupation. Occupation created title, and by so doing gave rise to law.
The Romanists did not justify all these points in material terms alone, as a means for the establishment of a commercial mentality. In actual fact, they used primarily civilizational, moral and sociopolitical arguments. To begin with, they all associated the transition from the stage of occupancy and possession to that of a legal system based on property with historical progress. This logic—which identified proprietorship with the higher state of European civilization and, indeed, saw modern revolutions as its drivers—permeated the works of the Greek Romanists but also those of François Guizot, Adolphe Thiers, and his juridical counterpart Raymond Troplong—which were translated and much cited.Footnote 61 Writing about the distinctiveness of modern societies, Kalligas argued that “slavery has been eliminated, family is based on more moral foundations [compared to the past], public credit needs different guarantees … the contracts [regarding ownership] cannot be cancelled at will but are founded on consensus.”Footnote 62
This last quotation is evidence of the Romanists’ qualified contractualism and their eclecticism. As we have already noted, by promoting private property, and the distinction between mine and yours, Roman law presupposed a sense of self-consciousness, and individuality. But to own (something and/or yourself) was not, for the Romanists, an end in itself. It was a requirement for individual liberty. And in order for this liberty to be real and not just formal, law should be attentive to the form of an agreement and the conditions under which it was reached. In what could be seen as a neo-Roman understanding of liberty, the Romanists argued that for a contract to be legally binding it could not stand only on the mere existence of a formal agreement between free wills or the unilateral promise of one or both parties. It should be based on the mutual consent of the parties and should somehow conform to social norms, or in Kalligas's words, the “general will.” In fact, Kalligas made this argument when anticipating and dismissing the criticism that societies resembled commercial companies. As he put it, “society is above individual opinion,” and individuals, “by assimilating social bonds, administer the social whole according to its spirit, which resides in all the individuals and through which individuals’ feelings are fulfilled.”Footnote 63 Indeed, one of the greatest influences on Kalligas was the French jurist Pothier, who advanced a conception of agreements based on mutual consent, and for whom succession and donations came before contracts.Footnote 64
These ideas about property and contracts were complemented by a sociopolitical project that promoted a far-ranging land distribution. For the jurists, the notion of the need for security of property was as powerful as the objection to its concentration. The commodification of land as a means of boosting economic activities made sense only to the extent that it secured small-scale ownership. Their liberal Rechtsstaat was thus based on the transformation of the majority of Greek citizens into landholders. That is why they criticized both the Greek and the German systems of prescription, according to which, prescriptive action in non-state lands had to be certified by public authorities because, in both cases, “the procedure oppresses small ownership, so that it becomes disposable only to big landowners who wish to complement their property even with high cost.”Footnote 65
These criticisms and claims were not made only on paper. Because of the Romanists’ prominence in the country's intellectual and political life—as law professors and judges, and after the late 1840s as ministers; civil servants; advisers to the government; and members of the Legislative Committee, savings banks, and insurance societies—they came to form part of a subversive legislative agenda that transformed Romanist jurisprudence into a means of “practical statecraft.” This took place in two ways. The first was through the reconceptualization, reorganization and reform of private-law rules in a process which the jurists themselves understood to be an apolitical rationalization project. The role of the Legislative Committee was crucial in this. To name but the most important legislative acts it produced, first, in 1856 it established the Roman–Byzantine legal rule of usucapion, with which the inalienability of land was reversed.Footnote 66 Resembling the claims made by Kalligas some years previously, the rule stipulated that a squatter could legitimately own the land after thirty years of occupancy. It thus opened the way to ownership for anyone who could prove continuous and unchallenged occupancy while indirectly stipulating that hitherto it would be the state, not the squatter, that would have to prove its rights to the land.Footnote 67 Second, in that same year, the committee published the “Greek Civil Law”—the most coherent attempt to address the question of property rights. By stating in its second article that a custom cannot suspend a law of the state, the law eliminated the equality of legal sources and established the primacy of laws, thus removing the most important legal obstacle relating to the consolidation of private property. The law also included several rules relating to technical but extremely important issues for the property regime: the acquisition, exercise and loss of civil rights; the registration of births, marriages and deaths; nationality; and so on.Footnote 68 Other important laws included the registration of conveyance of all property in one's lifetime (crucial in light of the lack of a land register), compensations and so on.Footnote 69
The second way the Romanists influenced the formation of the state was by providing an overarching discursive and ideological framework that found its way both into the courts and into politics. In the myriad disputes around property, local officials and courts frequently supported the squatters’ efforts to conceal the nature of a holding or to represent it as a freehold, usually in favor of small farmers. In doing so, they progressively undermined the state's broad presumption that all property not demonstrably private must be public, shifting the burden of proof from the citizen to the state.Footnote 70 What is more, the liberal ideological formulations of the Romanists, based as they were on a strong relationship between the farmer as cultivator and the farmer as citizen, were gradually transformed into criticisms directed at the king. This culminated in the revolution of 1862 and informed the subsequent political processes: the election of a new king, the proceedings of the Constituent Assembly (in which some of the Romanists were key members), and the new Constitution promulgated in 1864. In fact, the Constitution included an article that called on future governments to proceed with a widespread land distribution, which eventually took place in 1871. By so doing the Constituent Assembly transferred the land issue from the authority of the palace to that of the parliament—an action tantamount to a transfer of political authority.
That said, the vision of a society of property owners managed and provided for by the Rechtsstaat had also an exclusionary dimension, based as it was on fixing people in place and disciplining social deviance. This was again a wider phenomenon. As Christopher Bayly has argued,
The idea that property was the basis of civil government applied only to forms of property which seemed to nineteenth-century rulers to be subject to proof and also “useful” to the idea of improvement. Nomads, herdsmen, hunter-gatherers, or even peasants who moved around frequently or indulged in practices such as “slash and burn” cultivation were a nuisance to colonial states and other emerging political authorities which wanted regular taxation.Footnote 71
In the case of Greece, this was evident in the arguments addressing the issue of banditry, which from the very first of the relevant reports was related to land.Footnote 72 The problem intensified in the 1850s. In almost all accounts, the lack of attachment to land, and the logic of collective ownership or use of it that characterized the lifestyle of the nomadic shepherds, was deemed a danger to legality and social order. The issue also became a priority for the Ministry of Justice in 1857 (with Georgios Rallis, a jurist, at its head) when the local courts were asked to file reports on the causes of banditry. The main issue was how to eliminate the “parasitic economic activities” which were complemented by a parallel legal order based on customary law and communal habits.Footnote 73
Interestingly enough, the jurists also addressed this same issue in nonacademic literary forms. Once again it was Kalligas who did so, in the only novella he ever wrote, Thanos Vlekas, published in 1855–6.Footnote 74 The central themes of the book and the putative cause of Greece's stagnation were brigandage and the unresolved issue of the biens nationaux. Their perpetuation was due to what the author saw as a conflict between two sets of values, which were expressed by the two protagonists and brothers of the novella. One of the brothers was loyal to the heroic code of the pallikaria, prone to corruption, and indifferent to “domestic matters, concerned [as he was] mainly with being promoted and acquiring honors and distinctions.” The other was industrious and frugal, a hardworking and gentle farmer committed to thrift and usefulness.Footnote 75 Being less popular than his brother, he was unable to convince him and his entourage to change and make them see that their true interests lay in the interests of the whole. The reason for this was the lack of common sense and sound principles among the Greeks, which, in the words of an American missionary in the novel, formed the basis of the American policies on the land issue and, by extension, of American prosperity.Footnote 76 The second reason was the incompetence, impracticality and venality of state authorities which had managed to create a “land without people and a people without land.”Footnote 77 Thus, it should come as no surprise that the first law on the distribution of land went hand in hand with the first comprehensive attack against brigandage (also put into effect in 1871).
Conclusion
A challenge when studying the transition from the legal pluralism of empires to more state-centered legal orders is to refrain from employing the overly teleological narratives informing modernization theories and to seek rather to explain how and why a new legal order is formed, as well as its intrinsic nature. In order to understand these matters, especially in cases such as the Greek kingdom, where the European world encountered the non-European world, legal politics and conflicts over jurisdiction, as well as the role of intermediaries, are crucial.Footnote 78
This article has shown how this legal politics played out in the case of Greece, and the crucial role the civil lawyers had in shaping it. Although the jurists initially welcomed the reforms introduced by the Bavarian authorities, they gradually came to raise criticisms against the type of state and law that the Bavarians attempted to establish. In doing so, they were influenced by certain of the liberal formulations of their own time and in particular by European jurisprudence (the historical school of law), which they creatively adapted to the Greek case.
By contextualizing their legal ideas, and their public interventions, the article has explored what the Romanists’ liberal project entailed, and what the jurists tried to achieve by turning to Romanist jurisprudence. Roman law offered them a consistent method with which to “produce” a Greek corpus of legislation and consolidate a “state under the rule of law” (Rechtsstaat). This they imagined to be an administrative state that would enforce contracts, punish fraud, maintain order and safeguard peaceful economic activity. And it was to do so by being, as Kalligas put it, the protector and guarantor of the “general will [or interest].”
This agenda was to have serious political implications. Although during the 1830s–1840s debates among lawyers and state authorities had focused on the extent to which civil law should take into consideration existing legal norms, customs and practices or rather impose a completely new framework (in the form of the Code civil), they gradually became politically charged. The reason was the issue of the national lands—the most controversial issue of domestic policy—and took the form of legal struggles over property and private law. For the jurists the main issue was to find the most efficient way to reconfigure rights and practices of an older order into a grid of private property rights. Roman law would function as the transition mechanism to a liberal property regime. But this vision ran counter to monarchical policies that treated the national lands as potentially state property.
The jurists’ response was to develop gradually a subversive sociopolitical agenda that supported the rights of cultivators against the monarchical state and any policy that did not advance a social order based on fixed private property. This they did by reforming private-law rules, by providing the discursive framework that would facilitate the operation of these rules, and by way of changes to the administration of justice. In doing so, they were equally preoccupied with protecting civil liberties, with establishing a society of property owners, and with advocating a degree of national self-determination compatible with the presence of colonial authorities in the country. In that sense, these struggles over property and liberty were actually struggles over sovereignty, the social order and the state.
But what can the Greek case tell us about the wider question of the relationship between liberalism, law and property in the context of transition to a state-dominated order? One thing to note is that, as historians studying the early modern period have maintained, Roman law was more a resource than a map—its use depended on the context. In the Greek case, it was part of the attempt to formulate liberal demands in the context of colonial sovereignty and hegemony; one that represented both an opportunity and a challenge to the principle of national sovereignty.
A second point is that, as in other similar contexts, where such legal intermediaries had potentially a large field of action, the Greek Romanists drew from a number of European ideological currents of their time. And they did so in a highly creative way. In fact, they revised them at will, mixing ideas from different traditions and adapting them to their own aspirations. In that sense, not only were their liberal formulations not backward, but in fact they were rather original. Indeed, whereas languages of property and in particular claims of possession drawn from Roman law were very attractive to colonial agents, in Greece they were used against these agents and the type of state they wished to establish. This point should act as a reminder that Roman law, as any liberal theory at the time, was by no means simply a tool for claims of colonial consolidation. It could also be used to undermine colonialist policies.
A third point is that, as the Greek Romanists saw it, scholarly interventions and changes in law are not enough, if one seeks to instill a different social vision. Thus their interventions included several nonlegal narrative forms—history and novels—with which they fashioned an “integral” subjectivity, which every individual would need to possess, if s/he were to become a “subject” of (any) system of law, morality, or property. This vision had winners (farmers, capitalists and generally owners) and losers (nomads and others who preferred to use land, move around and remain “unregistered” and “unknown” to the state). These latter were gradually placed outside the law and related to the illegalities of banditry with their presumed lawlessness.
Last but not least, the article has shown that in the Greek case, the Romanists played a key role in the restructuring of space—in both conceptual and practical terms—within the borders of the state, thereby laying the foundations for the two features that have characterized Greek political culture ever since: small ownership and an egalitarian political ideology that measures equality by ownership of land.
The larger story being told here might be told in relation to almost any other case where the European world encountered the non-European world. But, as the article has contended, local circumstances do matter. It is the combination of these circumstances with wider processes and geopolitical pressures that defines to a great extent how such encounters unfold and indeed how states come to be built.
