INTRODUCTION
It is often said that the ancient Greeks were no legal scholars; their law was more a matter of practical, case-by-case solutions than professional theorizing. A few dissenting voices notwithstanding, 1 this picture is probably correct: the closest thing we find to legal doctrine in the extant writings from that age is in the works of Aristotle, who deals with legal subject matter in the Rhetoric, Politics and Ethics. For this reason, it is hard to uncover a doctrine of Greek law as we can do with Roman law: unlike the Romans, the Greeks did not leave behind legal treatises in the modern sense of the word 2 but only scattered references from which one has to reconstruct its doctrinal tenets. Thus the student of Greek law must come up with his or her own conceptual tools in order to make sense of what he or she sees in the evidence; most likely, scholars will use different and sometimes incompatible paradigms to describe Greek legal institutions, which is bound from time to time to lead to misunderstandings and disagreements that would not have arisen otherwise (see below, p. 7). In the present study I set out to shed some light on this matter with respect to one particular aspect of archaic Greek law, that is, the legal nature of what we call “laws” or “statutes”. I am convinced that, if we manage to gain a more accurate perspective on this topic, we will be able to understand the development not only of the legal systems of the Greek poleis but also of the archaic and Classical city-state as a whole. The thesis I shall argue is that the statutes of archaic and, to some extent, Classical Greece had a contractual nature. That this idea is not just a theory concocted by a modern mind is shown by some attestations of similar thoughts in genuine ancient Greek authors. For instance, in at least two passages Aristotle presupposes that written statutes can be regarded as covenants among the citizens. In the first (Rhet. 1.15 1376b 7-11) we read: Ἡ γὰρ συνθήκη νόμος ἐστὶν ἴδιος καὶ κατὰ μέρος, καὶ αἱ μὲν συνθῆκαι οὐ ποιοῦσι τὸν νόμον κύριον, οἱ δὲ νόμοι τὰς κατὰ νόμους συνθήκας, καὶ ὅλως αὐτὸς ὁ νόμος συνθήκη τίς ἐστιν.
1 E.g. Barta 2011: 491-94. He promises to dedicate a substantial amount of space to this topic in a future volume of his monumental opus, so I shall reserve final judgment. 2 Theophrastus’ Περὶ νόμων notwithstanding: as the longer extant fragment of it (FHS&G 650) shows, this treatise was hardly comparable with Roman, medieval and modern works on legal doctrine, since it simply records the norms in force in different cities on a particular subject and then discusses what wise legislation on it would look like.
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A contract is a law of a special and partial kind, and contracts do not make the law valid, but the laws validate those contracts that are made according to the law; and in fact, the law itself is a kind of contract. The other passage (Pol. 3.9 1280b 10-12) is no less interesting: Ὁ νόμος συνθήκη καί, καθάπερ ἔφη Λυκόφρων ὁ σοφιστής, ἐγγυητὴς ἀλλήλοις τῶν δικαίων, ἀλλ’ οὐχ οἷος ποιεῖν ἀγαθοὺς καὶ δικαίους τοὺς πολίτας. The law is a contract and, as the sophist Lykophron writes, it is the warrant of justice among the citizens. It is however not capable of making them virtuous and just. This second passage is especially significant because of the context it is couched in. Aristotle is explaining what makes a community into a polis (1280a 31ff.); the law, he argues, is not enough to create one, because it is an agreement (συνθήκη) aimed at protecting the parties from suffering injustice at each other’s hands, but synthekai are made and observed even between peoples who have otherwise nothing in common, such as the Etruscans and the Carthaginians (1280a 36-7). In the passage that precedes and follows this sentence the philosopher not only explicitly equates the laws of a city with a syntheke, but also makes clear that he views them as an institution created to prevent wrongdoing in the citizens’ dealings with one another, much as treaties between different political communities both establish rules of behavior between the peoples who make them and enjoin them to help each other against external enemies. To put it in modern terms, according to Aristotle and Lycophron the object of the laws is to make sure that people’s rights are observed in their mutual relationships. 3 The most important insight we can glean from this passage is probably that even in the fourth century BCE, when Athenian law had achieved a comparatively high degree of formalization and conceptualization, an informed thinker like Aristotle could conceive of written laws as something not limited to the domain of an individual polis. To be sure, the word νόμος mostly refers to statutes, not to treaties or any other kind of covenants between independent states. However, the use of this word to refer to written laws is not attested before the fifth century
3
Carawan (2013: 98 n. 14) refers to Plat. Rep. 359a 1-4 as the “most famous formulation” of the notion that “contract is the foundation of law”. In this case, however, it is not so much the single statutes that are referred to as contracts, but the speaker introduces the idea of a “social contract” as the basis of the idea of justice and lawfulness.
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– it appears to be, therefore, chronologically close to the philosopher’s writing – and it may not have “sunk in” yet that there is supposed to be a fundamental difference between domestic law and international covenants. This gives us a glimpse into a time prior to the 5th century BCE and Classical Athens when written legislation was not something that happened mainly, let alone exclusively, within the boundaries of a single polis. On the contrary, it was basically a legal institution that could be employed whenever people felt the need to regulate their mutual relationships beyond what was entailed by everyday morality and inherited views on ethical matters. To put it in modern terms, this institution has a contractual nature. Aristotle is not the only fourth-century author to maintain that the law is a sort of contract. [Dem.] 25.16 describes written law as follows: Oἱ δὲ νόμοι τὸ δίκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τοῦτο ζητοῦσιν, καὶ ἐπειδὰν εὑρεθῇ, κοινὸν τοῦτο πρόσταγμ’ ἀπεδείχθη, πᾶσιν ἴσον καὶ ὅμοιον, καὶ τοῦτ’ ἔστι νόμος. ᾧ πάντας πείθεσθαι προσήκει διὰ πολλά, καὶ μάλισθ’ ὅτι πᾶς ἐστι νόμος εὕρημα μὲν καὶ δῶρον θεῶν, δόγμα δ’ἀνθρώπων φρονίμων, ἐπανόρθωμα δὲ τῶν ἑκουσίων καὶ ἀκουσίων ἁμαρτημάτων, πόλεως δὲ συνθήκη κοινή, καθ’ ἣν πᾶσι προσήκει ζῆν τοῖς ἐν τῇ πόλει. The laws desire what is just and honorable and salutary; they seek for it, and when they find it, they set it forth as a general commandment, equal and identical for all, and this is law. This all men ought to obey for many reasons, but above all because every law is an invention and gift of the gods, the advice of wise men, a corrective of errors voluntary and involuntary, and a general covenant of the whole city, which everyone in it has to live by. (Translation by A. T. Murray, with some modifications.) One could, of course, maintain that this notion is pure speculation by a few authors more concerned with their own thories than with actual reality. In this book I aim to prove that Aristotle, Lycophron and Pseudo-Demosthenes are actually right on this topic.
Conceptual problems
We tend to associate statutes with a formal legal system and think of them as intimately connected with law courts, lawyers, lawsuits and the like. In the present study, however, I will consider statutes simply as texts intended mainly to be a means of regulating the life of the polis.
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Accordingly, I regard the scope of their use as much wider than as handbooks for the use of the law courts. In my view, statutes had value independently of their application in a court of law and were not written primarily in order to be used as a guideline for the decisions of the city’s juries. 4 Anyone who undertakes to study ancient Greek legal texts, especially archaic ones, is confronted with two largely separate research areas: on the one hand, she finds sophisticated studies of international law and its main instrument, the treaty; on the other, she looks at a very broad field of Classical scholarship that concerns itself with the law inside the Greek states, which in recent decades has experienced a unique flourish. The research on statutes has always been more or less independent of and unconcerned with treaties and international law, a tendency that the increasing study of statutory law has done nothing but intensify. Only occasionally is a look cast at individual international treaties, and then mostly only in passing. 5 Rarely does one find a hint that the two phenomena, the development of legislation and the presence of numerous written interstate agreements, might have anything to do with each other. The research on ancient Greek legal texts has in the last several decades been enriched by many useful tools, not least thanks to new editions. 6 These supplement or improve on the Classical collections of inscriptions by Dittenberger (mostly referred to as “Syll.3”), Schwyzer and others in welcome ways. 7 The results of the research have been summarized in a handy collection (Gagarin/Cohen 2005). In all of these works, ancient Greek texts are classified into categories taken from modern legal systems. It is thus assumed as a self-evident fact that some texts represent "statutes" and some others "decrees" or "treaties." There has long been a standard practice regulating how the terms that in ancient Greek refer to legal texts and norms are usually translated, although researchers have noticed on several occasions that each of these words is open to more than just one rendition in any given modern language. With a view to this issue,
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As I argue in Avilés 2011. The legal inscriptions we will come across in this study will likely confirm this view. See for instance Hölkeskamp 1999: 106. Here one finds a few observations about the similarity of the text of a treaty with statutory texts with respect to their language, which will also play a big part in the present study in my general analysis of this kind of texts. Yet neither Hölkeskamp himself nor the authors he cites draw what I think are the most obvious conclusions from such observations. 6 Statutes and other legal texts from the archaic period: Körner and Nomima (see Bibliography I); treaties from the Archaic and Classical periods: StV II; Hellenistic treaties: StV III; "holy laws": Sokolowski (LSAM, LSCG and LSCG Suppl.); most recently, Rhodes/Lewis have published the decrees of the Greek poleis. 7 The necessary concordances are contained in SEG 43 (1993), 1235; SEG 44 (1994), 1735; Fell 1997, 184-196; Gawantka 1977. See also Arnaoutoglou 1998, who attempts to offer the most complete list of sources for ancient Greek legislation. 5
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precise studies have been dedicated to the ancient legal terminology (Gschnitzer 1997; see also Weiss 1923: 60-70; Quass 1971: 2-23; Mirhady 2004). For the most part, these studies provide a list of possible translations of the ancient Greek words in question, which may give the reader a feeling of bewilderment. More to the point, these findings raise a much more fundamental question: To what degree is there actual correspondence in content between the ancient Greek terms and their modern rendition? This question, while it is indeed asked with respect to institutions of private law, is rarely posed in the realm of public and international law, in particular, when it comes to the words that refer to the sources of law. Accordingly, the majority of the collections dedicated to Greek legal texts, which exist in addition to the general editions of inscriptions, are limited to either so-called statutes or so-called treaties; even in the fairly recent collection of archaic legal texts by Effenterre and Ruze (Nomima; cf. Petzl 1997), which has certainly enriched the field, the inscriptions are categorized by their titles according to the received patterns. The discussion about the sources of law that exist in ancient Greece is conducted on this basis. If a scholar claims that written law was the only valid and recognized source of law in ancient Greece (Wolff 1970: 68-72), we take “law” in this context to correspond to what the Classical Athenians called nómos. When this word is not simply regarded as identical with the modern concept, it is at least deemed to have had a very similar meaning and have been used in the same way as the former. As soon as one leaves this literarily and historically well-lit section of Greek history and looks back into the archaic period, however, the situation is no longer as clear: the use of the word nómos to refer to written law is not attested before the 5th century BCE (p. 42). The earliest of the texts that we classify as "statutes", on the other hand, are much older and refer to themselves (whenever they contain any self-reference at all) by words that mean "decision" or "written text" or whose basic meaning is unclear (p. 27-41). The terminological fixation on nómos seems to have happened relatively late, and the only adequate evidence for a reasonably sophisticated terminology stems precisely from Classical Athens, a city-state that, due to its size and the resulting complexity of its political and legal structures, should probably be regarded as a special case.
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Where the complexity is great enough, there naturally follows a corresponding legal and institutional differentiation. 8 It is therefore not surprising that in the case of Athens we can almost directly witness the emergence of a fairly differentiated legal system, but the other side of the coin must be that smaller city-states, especially in the archaic period, lacked a legal system that could even remotely reach the same level of sophistication. It is therefore legitimate to ask whether the findings from the archaic period are due simply to a poorly developed terminology or whether the absence of distinctions that a modern reader would tend to take for granted, such as that between "law", "decree", "treaty" and the like, does not rather point to this differentiation lacking any correspondence in the reality of the time altogether. This may seem unlikely to a modern reader but could well be true of the time and culture in question, since the above concepts are entirely modern and their seeming inability to do justice to what looks like a dazzling variety of possible meanings of archaic terms may have its roots in the fact that we, not only with respect to the doctrine of private law, but also more generally to legal institutions, tend to foist upon the Greeks categories foreign to their legal thinking and their culture in general. The aim of this study is to get to the bottom of this problem and consider alternative solutions to it. I propose a solution that I deem better suited to do justice to the Greek reality than the categorizations done by previous scholarship and which may help solve the difficulties that I have hinted at and which will be studied in greater detail in the course of the present study.
Methodological premises
It can hardly be argued that the application of modern concepts and categories is wrong in itself. In fact, there is no way we can attempt to capture the past other than by applying our own categories. An exception to this principle might occur in cases where the ancients themselves developed a consistent terminology. As far as legal matters are concerned, this is certainly the case in ancient Rome. In Greece, on the other hand, it is much harder to uncover a consistent terminology, and most scholars still maintain that the Greeks lacked a real legal science (e.g.
8
An example of this is found in the development of the concepts of nómos and psêphisma, which in 4th-century Athens designated two different legal institutions, even though initially their meanings were not radically different (Quass 1971).
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Kussmaul 1969: 83; contra Barta 2011: 491-94). At any rate, the philosophers of the 4th century do to some extent use a real legal terminology into which we might want to tap. This terminology, however, cannot simply be applied to archaic legal institutions as though it were an established fact that it really fits them. Nor can we escape this constraint by disavowing the use of modern or modern-sounding terms altogether. Rather, it is necessary to consciously apply the current terminology by defining the words we use in a precise manner; by so doing we call their precise meanings to mind. In this way we will be able to verify the semantic correspondence of the terms we use with those that were used in the ancient languages; so we will always be able to account for our use of modern concepts to refer to ancient realities. In the study of Greek law in particular, the problems inherent in the use of modern terms are particularly acute, since here not only are modern and ancient languages facing each other with their own terminology and their underlying value judgments, separated by the gap between ancient and modern world views, but there is also the fact that legal terminology poses special difficulties to laypeople. Few classicists are legal experts, and even among those who deal specifically with Greek law, the number of non-lawyers is probably roughly equal to that of legal scholars (mostly professors of Roman law). Whether scholars working in different fields all understand the legal terms they use in the same way is at least questionable; empirical observation tends rather to prove the opposite. 9 As if this situation were not complicated and tricky enough in itself, one needs to read secondary literature in multiple languages – a necessity in any field of the study of Classical antiquity. Some are spoken in continental Europe, others in countries that belong to the common-law tradition. 10 Given this situation, scholars might be tempted to follow MacDowell (1978: 9) in trying their hardest to drop all and any assumptions while studying Greek law and to go to work as unaffected as possible by modern legal theory. Todd (1993: 23), however, has called into question the appropriateness of such an approach with an argument that we must take seriously: he demonstrates that MacDowell himself does not examine Attic law in an unbiased way, but is
9
On the often strange ways philologists use legal terms see Martini 2003: 646-48. On this issue see especially Todd/Millett 1990: 2-7, where the authors offer an excellent outline of the history of the development of the two main European legal traditions, civil law and common law, highlighting the major differences between them. In addition, they point to a few examples that showcase how these differences in legal mentality affect the work of scholars of ancient Greek law (ibid. 10-11). 10
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simply unaware of his own biases. For instance, he presupposes the paramount importance of substance and the subordinate role of procedure, which is by no means obvious. 11 Reflection on one's own terminology, if it is to be done in a serious way, cannot avoid taking into consideration the technical meaning of legal concepts; on the contrary, this is a prerequisite without which the student of Greek law will find it impossible to overcome her prejudices, with which she will inevitably be stuck even before beginning the inquiry. Reflection on the legal concepts that we intend to use must therefore precede the analysis of ancient source material. Legal terms or terms that in legal parlance have a different meaning from the one they do in everyday language are in common use regardless of whether the speaker has some legal training or not. Such terms include "contract", "liability", "intent" and so on. The scholar who seeks to capture ancient law and describe it adequately cannot proceed without such words, yet they are a constant source of ambiguity and uncertainty, so that one should be especially careful when using them. Because of their ambiguity, which arises from the fact that (even if we disregard the scholars’ different mother tongues) they are used differently and given different meanings and connotations by people with different backgrounds, it is necessary to define these words as accurately as possible beforehand. Such definitions must be based on the relevant definitions in legal science, taking them into account, if not being altogether identical with them. Anything else would again give rise to a bewildering variety of meanings, which is precisely what the use of definitions seeks to avoid. Once this is done, we are left with the task of comparing the terms thus analyzed with the ancient reality, checking their usefulness for describing ancient legal institutions and correcting them, if necessary, to such an extent as is required for them to fully conform to the ancient situation. The latter will be an inevitable part of the process. For the Greeks – this much has been shown by at least the most recent scholarship – had a very different understanding of law from ours, for example, with respect to their ideas about the nature and origin of liabilities and – what is particularly relevant for the present inquiry – the concept of contract (Carawan 2006, 2007b).This situation results in the need for the researcher to strip the terms he uses of all connotations not central to them and to crystallize the core of each term, which consists solely of
11
One can, of course, make a strong case that in Athenian law substance takes precedence over procedure, as Harris (2009/2010) does. The point is, however, that MacDowell unduly takes this for granted and does not even seem aware of the possibility to think otherwise.
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those features that are absolutely essential for anything to fit into the definition. Such was the goal of Savigny’s research, about which I will write more below (p. 11ff.). Needless to say, this helps us better understand not only the ancient legal systems but also our own. In conformity with the object of this study, I will first take a closer look at the terms "law" and "contract". Since the concept of “decree” (psêphisma) has already been extensively studied, particularly in its relationship to that of “law”, it seems appropriate to deal with both of them together. The research on decrees and that on laws have always been closely connected; treaties, on the other hand, have been a separate field that only rarely crosses roads with the research done on laws and decrees.
Statute
By "statute" legal science understands, under what is probably its simplest definition, "[a] law passed by a legislative body" (Black’s s.v.). In civil-law jurisdictions a distinction is made between law in a substantive and in a formal sense. 12 A statute in a substantive sense is any set of rules that demands general obedience; it is necessary that its normative content not be limited to individual persons, objects or situations, but it must apply to an indefinite number of situations and addressees. Law in this sense thus include statutes as well as decrees and customary rules. A statute in a formal sense is any legally binding text that originates in a decision of a legislative body specifically appointed to the task of legislating, a decision that must be made in the proper way, that is, following a particular procedure explicitly prescribed to this end in the jurisdiction in question. This legislative body is usually a law-giving organ, whose functions and authority to legislate is regulated in the constitution of the country at hand. In many systems a distinction is made between statutes in a technical sense and normative texts which, though superficially indistinguishable from the former, do not meet the requirements that are often made for a legal text to be regarded as a statute proper. Government budgets, for instance, fail to meet the requirement of generality, limited as they are to a one-time situation. In ancient Greek law such things happen regularly: by no means all the Greek texts that are usually classified as statutes 12
E.g. (for Germany) Tilch/Arloth s.v. „Gesetz“, 1962-63.
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meet the requirements of generality that apply to statutes in a technical sense. Consequently, it happens far more often in ancient Greece than in today's legal systems that a legislative text that is formally a statute cannot be considered to be one in the narrower sense. A particularly eloquent testimony to this state of affairs is the fact that in Athens around 400 BCE restrictions were expressly made against the enactment of nómoi ep’andrí, that is, statutes enacted specifically for an individual (this was done in order to prevent politically motivated abuses; see Wolff 1970: 74), which shows that it was natural for the Greeks to call such a decree nómos. This fact is wellknown to modern scholars of Greek law, who consequently normally use a definition of “statute” that corresponds merely to the wider definition (e.g. Hölkeskamp 1999: 63). It should further be noted that such fine distinctions between different kinds of legal texts as exist in modern legal systems, that is, between statutes, by-laws and other regulations, are not found in Greece, at least not in archaic times. 13 Furthermore, below I shall question the very idea that the concept of “statute” can really be applied to archaic Greece, which of course leaves no room for internal differentiations within this category. I simply want to make clear that the terms used in the literature refer to the wider meaning of “statute” rather than the narrower one; the choice of words that the reader will encounter in the present study will conform to this. As the bottom line of this short chapter I will point out that statutes are based on governmental or other superior authority. Consequently, the validity of a statute is not predicated on the consent of those it addresses but is rooted in the discretional power of the state.
Contract Up until the 19th century there was no encompassing definition of this term but rather classifications of the different kinds of contracts. In particular, the use of this concept in the most widely spoken Western European languages with the exception of German (on which see below) is limited to private law; in public and international law other terms are used to refer to agreements and compacts. The most detailed discussion of the concept of contract, which (since it embraces all areas of law, including public and the international law) also contains the most
13
On the distinction between nómos and psêphisma introduced at Athens after the end of the Peloponnesian War see Quass 1971.
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general definition of this legal institution, is the one I have found in the work of F. C. von Savigny, a famous 19th-century German legal scholar. Savigny tried to describe the whole of contemporary law using the categories created by the Roman jurists, and he also developed – as in the present case – the analysis of the content of these categories much further. A contract is, according to his definition, “the concourse of several people in a unitary declaration of intent, by means of which they regulate their legal situation”. 14 In this regard I need to emphasize two main elements that can create – and have indeed often created – a great deal of confusion among scholars, who risk talking at cross-purposes if they have failed to clarify them beforehand. Firstly, there must be "several" parties (whether they be individuals or groups), but by no means only two: provided that more than one party is involved in and agrees to the arrangement, their number is irrelevant. As Savigny (1840: 308) remarks, cases where the parties to the contract are only two may be the most common, but this does not make it a necessary feature of a contract. The establishment of a corporation, for instance, usually takes place between more than two partners. It is necessary to distinguish between mere contingencies and features that are essential for there to be a contract. Secondly, the parties to the contract regulate their legal relations but not those of other people. The crucial feature of a contract is not that it is not legally binding (as some Greek authors put it, it can be regarded as a law of sorts: see above, p. 1-2) but that it generally only regulates the legal relations of those who have stipulated it. Third parties are not affected by it, at least not directly. Naturally, crucial to understanding this definition of contract is the concept of declaration of intent (Willenserklärung). Savigny classifies it under the generic term "legal facts" (juristische Tatsachen), which in turn are defined as "the events that determine the beginning or the end of a legal situation". 15 Thus the scholar has the conceptual material available that is required to find out what declarations of intent are: They are free, that is, based on a free decision by whoever makes them, without compulsion, and consist in an utterance or a signaling to an outward observer of what the person in question wants to declare (Savigny 1840: 98-9). A declaration presupposes a conscious decision to bring about a legal consequence.
14
„... Die Vereinigung Mehrerer zu einer übereinstimmenden Willenserklärung, wodurch ihre Rechtsverhältnisse bestimmt werden.” (Savigny 1840: 309; cf. 1853: 7). 15 „die Ereignisse, wodurch der Anfang oder das Ende der Rechtsverhältnisse bewirkt wird“ (1840: 3).
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Elsewhere Savigny explains: "the basis of any declaration of intent is the presence of a particular intention (...); our inquiry must further advance to the disclosure thereof, whereby the internal event of volition enters into the visible world as a phenomenon; this means that we must look at the declaration of said intent”. 16 In other words: every declaration of intent requires both the mental state of wanting to bring about a legal consequence and the concrete manifestation of that mental state. Exactly how this has to happen in order for the declaration to have binding force and what kinds of declarations of intent there are is the subject of lengthy disquisitions in Savigny’s works, which cannot be dealt with here. For our purposes it will be enough to note that any time we consider classifying a given text as a contract we must first look for the declarations of intent of the parties, that is, a statement made by each and every one of them by which they agree to the content of the supposed contract, thus binding themselves to abide by it. Although this is described using the terminology of jurists who thought in the categories of Roman law, it is warranted to assume that this broad definition of contract is applicable to Greek law, as we shall see when analyzing Greek contracts below (p. 14ff.). Due to their great generality and the flexibility that results from it, both concepts, contract and declaration of intent, are able to adequately describe the realities of even very foreign legal cultures like that of the ancient Greeks 17 without distorting them. The form the declaration of intent must take in practice to achieve the desired legal effect varies, of course, from one legal culture to another, which is why an in-depth discussion of Savigny's teachings on the subject is unnecessary in a work dedicated to ancient Greek law. Rather, one needs to look closely at the characteristics that declarations of intent had among the archaic Greeks as they come to light in the sources. This will be done in the following section. To sum up what we have seen thus far: While a statute is an act of legislation by a public authority and thus commands obedience independently of the consensus of the governed, a contract is based on the voluntary commitment of the parties, who (in principle) are the only ones to be affected by the legal consequences it brings about. This becomes especially clear if we consider that orders, judgments, in short, all kinds of governmental action are specifically excluded from the definition of contract.
16
„Die Grundlage jeder Willenserklärung ist das Daseyn des Wollens […]; unsere Betrachtung muß nun weiter fortschreiten zu der Offenbarung desselben, wodurch das innere Ereignis des Wollens in die sichtbare Welt als Erscheinung eintritt; das heißt, wir haben die Erklärung des Willens zu betrachten“ (1840: 3). 17 I assume a unity of Greek law as described in Gagarin 2008: 8.
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There are also different kinds of contracts. Savigny (1840: 309-14) distinguishes between agreements found in international law, private law and public law. He points out that, contrary to the opinion of some authors, contracts exist in all these areas of law, and he makes a point of demonstrating this through a series of examples. While in the case of private law the reader will have no problem thinking of instances of contracts such as purchase, rent etc., and draw the parallel to the treaties used in international law, its public-law equivalents probably require a more detailed discussion. As public-law contract par excellence Savigny (1840: 311 n. [d]) cites the Wahlkapitulation, a kind of agreement once common between the future Emperor of the Holy Roman Empire and the princes who elected him, which dramatically limited the power of the future monarch. In this case we see a kind of covenant that is clearly not of a private nature but involves the whole political system. On the other hand, since its authority is limited to a particular country, it cannot be counted as a treaty, for treaties pertain exclusively to the domain of international law. Another example concerns an individual’s relationship of the to a particular state. On the one hand, Savigny (1840: 311-12) rejects the idea of a “social contract” whereby the citizens voluntarily submit to the authority of the state; he does so on several grounds, but his foremost objection to this idea is the fact that these individuals have never entered into an agreement with the state in which they happen to have been born regarding their rights and responsibilities within it. On the other hand, he points out that public-law relationships such as citizenship can sometimes be canceled or modified by free choice and that on occasion, depending on the laws of the country in question, an adult can assume the citizenship of a new country by means of an act that takes the form of a genuine contract. This example of a public-law contract between an individual and the state seems almost tailored to describe the content of some legal inscriptions from ancient Greece (e.g. Nomima 21 and 23; AG 2.2.).
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COVENANTS IN ANCIENT GREECE
There is little doubt that the ancient Greeks knew contracts as a legal institution. Not only do we find in legal contexts words that mean "agreement" (συνθήκη, ὁμολογία), but there is also evidence of statutory norms that concerned precisely the validity of private agreements (ὁμολογίαι). 18 In international law covenants are attested at all times, and in the Iliad the poet describes a treaty between the Achaeans and the Trojans (cf. p. 23). In this literary example, which must be based on an actual custom well known to the audience, the two parties swear to put an end to the war by letting Paris and Menelaus decide their dispute over Helen through a duel. Doing so, of course, requires exchanging declarations of intent that are bound to transform the relations of the belligerent nations to each other. By force of the procedure and the treaty, the two communities seem, for a short time, almost to merge into one (Elmer 2012, 2013). This is interesting as it suggests that in some remote times treaties like this one might have caused neighboring communities to coalesce into a single polis, thus being instrumental in those events that were later referred to as synoikismoi. Since the thesis of this book implies that the enactment of what we now call statutes was in no way predicated on the existence of a fully developed citystate, there is a distinct possibility that in many cases the evolution may have happened the other way around: treaties between communities that were originally separate might have led to the consolidation of a sense of identity that encompassed formerly distinct groups of people. The transformation of the Greeks and the Trojans into one community would become definitive if the contract were abided by; as we know, however, Pandaros breaks it, which causes the war to start again. In the following we shall encounter several other examples of (fictitious or real) contract stipulations in ancient Greece. Now the question is what particular form – provided that there were any formal requirements at all – the joint declaration of intent that created contracts had. At first glance, it may seem likely that it consisted of an oath: important contracts, particularly in political and international relations, were sworn to. In the following I provide an explanation of this phenomenon.
18
Isaeus 5.1; Dem. 47.77; 48.54; 56.1-2; Plat. Symp. 196b-c; Plat. Leg. 920d; Arist. Rhet. 1375b. It is normally assumed that a specific statute was dedicated to this subject; see however Maschke 1925; Avilés 2012; Avilés (forthcoming).
14
The oath in Greek law
The duty to obey promises, whether accompanied by an oath or not, may be counted among the so-called "unwritten rules" (ἄγραφοι νόμοι; see Romilly 2001: 25-38). Oaths as well as simple promises were a part of Greek (legal) culture long before the beginning of written legislation (Sommerstein/Fletcher 2007; cf. Cartledge 2013: 41-58). Generally, an oath is the conditional curse of either one's own person (possibly reinforced by the inclusion of the offspring) or something valuable that constitutes the object of the affections or the grounds for the prestige of the person who pronounces it. More specifically, as it is defined in a recent study (Sommerstein 2007: 2), an oath consists of "(1) A declaration, which may be a statement about the present or past (in which case, the oath is assertory) or an undertaking for the future (in which case, it is promissory). (2) A specification of the ‘powers greater than oneself’ who are invoked as witnesses. (3) A curse which the swearer(s) call down upon themselves if their assumption is false or if their promise is violated." The distinction, already included in the above definition, between an assertory and a promissory oath is at least as old as Hirzel (1902: 2; cf. 214-15: “Gelöbniseid”); Sommerstein, however, goes far beyond this scholar’s definition by emphasizing the self-curse as immanent to the oath, while in the earlier monograph it is not counted in its core but is regarded as inserted only optionally depending on the degree of solemnity the occasion demanded. At any rate, an oath is more than "a serious promise": 19 as Sommerstein points out immediately after the definition quoted above, the self-cursing is in any case, if not expressed, at least to be understood: "The curse is often left to be understood, implicit in the words of the oath itself, particularly in the performative verb ‘I swear’ [...], but when there is need for special assurance, it may be, and often is, spelled out". Additionally, the punishment to which the swearer has bound himself in case of perjury may affect not him himself but someone or something he cares for. This need not be pointed out in every instance: in the following discussion, "self-cursing" means both the curse upon one’s self and the cursing of one’s own offspring or of things that are important to one; conversely, "cursing somebody (else)" may include the cursing of the enemy’s family or of whatever he holds dear. 19
As it is defined by Augustine, Enarr. in Psalm. 131.4: iurare est firme promittere; cf. Hirzel 1902: 3 n. 4.
15
As I have already mentioned, the importance of the conditional self-cursing – in other words, of oaths – in Greek law can hardly be overstated (as Ziebarth 1892 already pointed out). In this respect, ancient Greek culture is hardly different from the ones that surrounded it. 20 The oath played an important role in all the life processes that we would classify as "legal", 21 especially in public law. The Greeks themselves were aware of this: as the Attic orator Lycurgus writes, the oath was "that which holds the democracy together” (Leocr. 79; cf. Lys. 25.28; Hirzel 1902: 132). According to him, officials and jurors, as well as ordinary citizens, were bound by oaths, for there is no escape from the wrath of the gods, and if they are not punished for the perjury themselves, divine revenge will haunt their descendants. Officials and even ordinary citizens had to swear loyalty to the city-state and obedience to its laws (Plescia 1970: 15-32). In Aristophanes’ play Thesmophoriazusae (359) mention is made of the "usual oaths" that must be sworn in the women’s separate polis. The commentators (see e.g. Austin 2004 ad loc.) usually explain the phrase as "oaths of office", but one may wonder whether it really only refers to the officials’ duty to swear or whether the phrase also includes other oaths such as the general citizen’s oath or the oaths whereby Greek states brought laws and treaties to perfection. 22 Even citizens who were appointed as judges had to take an oath to the effect that they would judge according to the laws. 23 Thus, on one hand, all citizens had to commit themselves by oath to obeying the laws; on the other, the Greeks were apparently also familiar with the idea that oaths could be inherited. Evidence of this view can be found, again, in the orator Lycurgus (Leok. 127; cf. Dittenberger 1007 = IvP 251; AG Q10). An inheritable oath, however, is equivalent to an inheritable contract. Consequently, treaties could endure for generations; this circumstance is also important for statutes, which obviously must continue to exist as long as possible, too. On the other hand, it is equally clear that to the Greeks the commitment of former generations was not enough to guarantee that the covenant at hand would be loyally observed by their offspring. Therefore, not only was every citizen, upon entering the age of majority, required to swear an oath of allegiance
20
Burkert 1977: 377 asserts that in ancient civilizations written documents slowly drove out oaths but never quite replaced them. The question is whether there is a causal link between the decline of the oath and of literacy. Goody 1986: 147 claims there is. 21 This does not mean that the Greeks very much trusted their fellows to be faithful to the oaths they swore (Faraone 2002). 22 On the latter specifically see Plescia 1970: 23-4. 23 On this topic see Mikalson 2005: 177-78; Todd 1993: 54-5; Mirhady 2007; Harris 2007.
16
to the laws of his city, but also anybody who was chosen to be a public official or a judge had to swear to perform his duties in conformity with the laws before he could begin his term of office, his former, general ephebic or citizen’s oath notwithstanding.
The oath as a means of bringing a covenant to perfection
In ancient Greek culture, both statutes and international treaties were often accompanied by a solemn oath ceremony in which the parties uttered a conditional self-curse. The condition was determined by the content of the covenant in question: if someone failed to follow its terms, the deities called upon were expected to visit punishment on the transgressor. 24 In private contracts, however, oaths were generally not necessary. This can be illustrated by a story told by Herodotus (6.86), which deals with an agreement entered into by the Spartan Glaukos with a Milesian man. Glaukos agrees to keep half of the Milesian’s entire wealth with himself and, upon request, return it to the entitled party. However, when after the Milesian’s death his sons come to Glaukos and ask him to give the money back, he hesitates to make good on the agreement and tries to gain time. He then goes to Delphi to ask the oracle whether he should commit perjury to avoid paying back the deposit. The oracle responds that a perjurer’s progeny will be destroyed; Glaukos begs for pardon and returns the money, but the mere fact of his conceiving of that plan and tempting the god is apparently just as bad as if he had carried it out, and consequently, Herodotus tells us, there is no longer any progeny of Glaukos in Sparta. Now we would regard this agreement as a legally valid contract, since performance of the duties it establishes can obviously be enforced in a court of law, to which Glaukos' behavior itself unmistakably points through the suggestion that he might commit perjury (6.86.5g). In all likelihood, he expects the sons of the Milesian to file a lawsuit against him, and he intends to swear a false oath during the trial in order to escape the consequences of the agreement by denying the fact on which the opponent's claim is based. The only oath that Herodotus mentions in this narrative is thus a procedural one, whereas the deposit contract the Milesian enters into with Glaukos requires no oath. Therefore, Glaukos only comes into the delicate situation of
24
Conversely, at times the swearers speak additionally of the blessings that are to come upon those who stay faithful to the oath; see for instance Nomima 44, l.16.
17
contemplating perjury when the contract becomes a matter of dispute for the first time. Herodotus’ text makes no mention of perjury resulting from the breach of contract as such. Of course, we may very well ask ourselves how far we are justified in using the modern term "contract" at all in this case. According to a large part of the scholarship (see in particular Wolff 1957), the claim of the sons of the Milesian stems from the fact that Glaucus has taken money from him rather than from a contractual obligation in the proper sense. Here I touch on a difficult issue in the history of Greek law that is beyond the scope of this investigation. I will only point out that, in Wolff’s view, the Greeks did not have the concept of obligatory contract, that is, a transaction in which the obligation arose from the matching declarations of intent as such; rather, it stemmed only from the ‘real’ transaction, e.g. the payment of the purchase price by the buyer. Whatever stance we may take on this, however, the main point is that, if we follow Savigny's definition, such agreements are indeed contracts. If it is true that an enforceable obligation did not result directly from the agreement but either from the act of surrendering a piece of property or from a specially drafted clause, this does not change the fact that the establishment or modification of the legal relationship between the two parties was based on their mutual declarations of intent, which were necessary for any sort of legally binding agreement to come into existence and from which, since they had the same content, arose a contract. The only difference between this state of affairs and the rules that typically apply to a modern obligatory contract is that in Greek law the mere existence of the agreement was likely not sufficient to create enforceable consequences in case of non-compliance with its content, but when such consequences were to be based not on the exchange of goods but on the agreement itself, they had to be addressed explicitly in a separate clause specifically devoted to this end. As we shall see, in treaties and statutes this function is fulfilled by sanction clauses that threaten the offender with a more or less severe punishment, which may be of a religious nature (a curse) or simply a fine (which happens more often according to our evidence). In 5th- and 4th-century Athens contracts between individuals were usually made without an oath (Carawan 2007: 157). In addition, the performance of a ritual leading to the sealing of a treaty followed a set of rules that was itself the object of a covenant between the negotiating poleis (Busolt/Swoboda II, 1252-53). If we keep Savigny’s definition in mind, we must also classify as contracts the agreements that the citizenry of a polis and the envoys of a foreign state often made with each other regarding how a particular treaty was to be brought to perfection and, 18
specifically, which oath formulas and rituals would be used. This fits well with the definition of contract that I adopt in the present study. It is undeniable that declarations of intent were made in such agreements, but these did not consist in swearing an oath. The oath thus accompanied many contracts but was generally not a prerequisite for the existence of a contract that was regarded as binding by the law. However, it would seem that treaties which had not been made under oath were regarded as lacking a formal requirement and thus deemed void – at least, this is the stance some interested party liked to take, as is suggested by a passage in Thucydides (2.5.6) where the Plataeans claim not to be bound by the terms of a truce they have made with the Thebans because, among other things, they did not swear any oath. Apparently, the main function of the oath was to reinforce psychologically the binding nature of the agreements, a goal that becomes apparent from the use of particularly horrific self-curses; nonetheless, in international law there seems to have emerged a sort of formal requirement to the effect that an oath must be sworn for the treaty to be valid. At any rate, an identity of declaration of intent and oath cannot be maintained with such generality. Even simple declarations of intent not accompanied by an oath apparently had an effect that we are entitled to regard as legal, since they could give rise to legal action and, in case of a favorable judgment, could be enforced, and enforceability through state action is by definition a legal consequence. On the other hand, we ought to take notice of the fact that even in private law oaths seem to have played a non-negligible role. For instance, the founding of the trade colony of Naukratis 25 could not happen without the construction of numerous shrines (Burkert 1977: 380). Apparently, shrines and altars were needed to enable the solemn oaths by which the people involved secured the contracts. As a side note, the same seems to have been the case among the archaic Romans as well, before the thorough secularization of their legal system took place: the stipulation formula, which gave some private contracts validity, contained the word spondeo, which is doubtless akin to the Greek verb σπένδω (the connection was seen in ancient times as well, see Ernout/Meillet s.v. “spondeo”). This formula consisted of the question "spondesne?”, which was uttered at the end of a contract offer, together with an indirect statement in the form of an accusative with infinitive governed by spondes itself; 26 the answer was "spondeo".
25
On this city see Möller 2000; Höckmann 2001. Example: "Centum modios tritici mihi dari spondesne?", that is, "Do you promise for 100 bushels of wheat to be given to me?", with "modios" being the grammatical subject, in the accusative, of the infinitive dari, which in turn is governed by "spondes". 26
19
Thus, even the formulaic private contracts of the Romans contained (at least originally) an oath ritual, which in the Classical period occurred only in significantly attenuated form. Although conclusions from one culture to another are dangerous and should only be adopted with great caution, the combination of diverse pieces of circumstantial evidence gives some plausibility to the idea that in ancient cultures, at least in the Mediterranean regions, important contracts, whether between individuals or between communities, were generally accompanied by oaths (Rollinger 2005). It should be noted as an aside that the oath usually hinted at an existing or potential hostility or, at any rate, a recognized or anticipated conflict of interest that forced the parties to bind each other more strongly than by their given word. Consequently, under certain circumstances, demanding that the other party swear an oath could be tantamount to an insult, since it implied untrustworthiness on his or her part; conversely, somebody who displayed too much willingness to swear oaths was likely to attract the taint of unreliability or wickedness (Sommerstein 2007: 3-4). It bears pointing out that oaths could very well be given unilaterally, as was the case in the Middle East at the time (Rollinger 2004: 379-81). In the following chapter we will see a few more references to oriental contracts and their arguable kinship to the Greek ones.
Treaties
In private law the oath was not an indispensable part of a contract. In contrast, international treaties were almost always sealed by solemn oath rituals. The ancient Greek forms of treaties may be of oriental origin (Bederman 2001: 61-7; Högemann 2000: 27-9; Rollinger 2004). Both among the Greeks and in the ancient Near East we find established solemn rituals in which oaths played a central role. On the form and features of treaties in Greece and Rome, A. Heuss’s comprehensive study (1934) is still extremely useful. Regarding the relationship between a covenant and the document in which it is contained, scholars have long since established that the legal effect of international treaties was due to the oath, not to the drafting of a written instrument. The latter was only a recording of the covenant at hand and its contents for practical purposes (Heuss 1934: 20
342; 395-97; 412-19). 27 The preserved inscriptions are thus merely documents containing the texts of the treaties and were supposed to be evidence of the covenant, not to bring it to perfection (Heuss 1934: 342; 412-19). 28 This recognition prompted Heuss to provide a detailed analysis of the different kinds of inscriptional documents. Most important is the distinction he makes (1934: 395-406) between “psephismatic” documents (psephismatische Urkunden) and what he calls “international-law documents” (völkerrechtliche Urkunden). The psephismatic ones relate the process of decision-making by the institutions of the city-state in question; the international-law ones, on the other hand, contain only the agreement drafted by the negotiators of the city-states involved in the treaty. The latter are most frequent in archaic times, whereas the former are found mainly in Classical and Hellenistic times. In the surviving evidence, information on any oaths used to make covenants is naturally found almost only in psephismatic documents, as the subject of a particular resolution. In fact, in addition to reporting the substantive content of the agreement, inscriptions often contain resolutions concerning the way in which the treaty is to be enacted and given binding force as well as the modalities with which its text is to be written down and preserved. There are however some exceptions. An example of a rather casual mention of an oath underlying a treaty is found in the text of an agreement between Sybaris and the Serdaeans (Nomima 42; StV II 120; SEG 22, 336). Very little is known either about the latter people or about the town mentioned in l. 7-8, Poseidania. 29 Any attempt to determine the role of Poseidania more precisely, and in particular the question of how the words και πολις ποσειδανια at the end of the inscription are to be understood both syntactically and regarding their content, is encumbered by difficulties. The text runs as follows: Ἀρμόχθεν οἱ Συβαρῖται κωἰ σύνμαχοι κωἰ Σερδαῖοι επὶ φιλοτάται πιστᾶι κἀδόλωι ἀείδιον· πρόξενοι ὁ Ζεὺς κὠπόλων κὦλλοι θεοὶ, καὶ πόλις Ποσειδανία.
27
There are some cases where the sealing of the document containing the treaty actually gave it legally binding force. This procedure, however, did not replace the oath, which was sworn anyway alongside the sealing (Heuss 1934: 392 n. 2). In the 4th century BCE, however, the situation was sometimes different (Thomas 1992: 85). 28 This also applies to ancient Near Eastern treaties (Rollinger 2005: 241). 29 On the relationship between these two cities in general see Dunbabin 1968: 154-55; Graham 1971: 91-3.
21
The Sybarites and the Serdaeans have bound themselves forever in faithful, guileless friendship. The witnesses (of the treaty) are Zeus, Apollo and the other gods; (the result of this is that) Posidonia is the city. It is important to note that in this document the gods appear as witnesses of the covenant. This can only mean that an oath was sworn by them. In l. 5ff. Zeus (certainly the Olympian) and Apollo (presumably the Delphic) are called πρόξενοι, and so are the gods in general. This word is clearly a predicate noun. Its most likely rendering in English is "witnesses"; 30 some (such as Bengtson in StV II 120) translate the word as a "guarantors " (Bürge), which amounts to the same thing, provided that the concept is not understood in the strict legal sense. It is clear, at any rate, that the gods here show up in their capacity as superior instances whom those swearing an oath would call upon to watch over the covenant and punish anyone who should break it. This is the same function that they have, for instance, in the Odyssey (14.393-94), where they are likewise called upon as "witnesses" of the contract (ῥήτρη) (p. 30). Treaties bind entire communities. This fact raises the question to what extent the individual citizens of a city had to swear and, conversely, to what extent certain officials were authorized to swear oaths on behalf of their whole polis, thereby binding all citizens even though these had not themselves performed the oath. In ancient Greek culture, covenants made by ambassadors or generals were very rare and limited to exceptional circumstances (Heuss 1934: 351-57). Envoys needed a special authorization to do so effectively; therefore, as reported in a few instances, they sometimes rejected calls for immediate oath-taking on the grounds that they had not been so instructed by their city (e.g. in Xen. Hell. 7.1.39). Otherwise, usually some officials were tasked with performing the oath. It was however by no means impossible that the entire citizenry might have to swear, which was probably due to an increased need for security that arose naturally in cases where the other party seemed particularly unreliable and therefore the most comprehensive and serious oath ceremony possible was called for. On the other hand, it was probably most commonly the case that a number of citizens not holding any office were to take an oath alongside the delegated officials (e.g. in StV II 293.15-6; StV III 553.12-3). In the case of treaties with the Persian king, only the Greeks swore oaths (Xen. Hell. 5.1.32; 7.1.39),
30
On this word see Gauthier 1972: 17-61 (on this inscription in particular: 33-5); cf. Mosley 1979: 228; Gschnitzer 1973: 634-35.
22
which is probably due to a different conception of the nature of treaties on the side of the Persians. 31 A very graphic description of the performance of an oath ritual by which warring parties make an international agreement is found in the third book of the Iliad (3.264-309), in the famous passage about the duel between Paris and Menelaus (cf. p. 14). The ritual emphasizes the horrors of destruction and bloodshed that are to strike anyone who should dare to act in contravention of the terms of the treaty (Burkert 1977: 379-80). The bloody slaughter of sacrificial animals is meant to symbolize the destruction the perjurer will incur. I purposefully use as impersonal an expression as I can, for the act of a divine agent does not always seem to be necessary for the curse to work; rather, sometimes such rituals seem to be steeped in magical ideas. 32 This can be seen very well in texts such as Nomima 41.40-51, where wax figurines are made to melt in a fire to symbolize the fate that awaits transgressors (Faraone 1993: 60-5). But even in "classic” solemn oaths, which consist in the slaughter of animals, pure magic seems to play (or to have originally played) a greater role than one would think considering the Greek belief in the punitive action of deities who watched over people’s morals and were quick to punish oath-breakers (Faraone 1993: 65-72). To sum up, the importance of international treaties typically made it necessary to perform a particularly solemn kind of oath ritual. In this context, “solemn” amounts to “especially frightening”: the self-curse was performed by means of ritual actions rather than mere words, which made it appear particularly earnest and gave it a greater appeal to the imagination of those involved in it. Aside from this general character of representing the most terrible self-cursing possible, oaths were different in different parts of Greece. It is likely that every Greek polis possessed its own oath formulas and rituals. Thucydides (5.18.9; 5.47.8) reports that each of several poleis involved in treaty negotiations is asked to swear whatever oath it holds most sacred. This fact suggests that there might have been a great deal of variability in the practices governing the recording of oath formulas in the inscriptions containing the texts of treaties, including whether 31 On this whole topic see Busolt/Swoboda II, 1252-52; Sommerstein 2007: 4-5. The latter emphasizes that those officials who were in charge of taking the oath held a very prominent position in so far as it would probably have fallen to them to introduce in the Assembly a motion to rescind the treaty, which is why the oath is likely to have had a particular effect on them. He also stresses that, when it came to resolving disputes and making covenants within the polis, all full citizens had to swear. On this issue see also Bolmarcich 2007: 49-50. 32 This seems the case in oriental treaties as well: Bederman 2001: 66-7.
23
they were recorded at all or whether only the clauses of the treaty themselves were written down. As a principle, only the terms of the covenant itself need recording so as to ensure that everyone is always able to check them to dispel uncertainties concerning their exact wording or simply to remind himself of their content. The oath as such, on the other hand, requires no written record to be effective, and in the document it is good enough if the terms of the covenant are in some way linked to the oath (Heuss 1934: 346-51). For this reason, it is problematic to claim (as Baltrusch 1994: 11 n. 45 does) that the oldest extant alliance agreement is an exception to the rule in that it draws its legal force not from an oath but from the act of being written down. In the text in question, a treaty between Elis and Heraia (Nomima 51; StV II 110; IvO 9), the provisions of the treaty are preceded by the words α ϝρατρα, whose formulaic character is beyond doubt: 33 if the term ῥήτρα/ϝράτρα can mean "agreement", as can be demonstrated (Gschnitzer 1997: 5 n. 8, and see below, p. 27ff.), and if an agreement or international treaty receives its legal force from an oath, there is no reason to emphasize the latter separately since it is already implicit in the word ϝράτρα, by which the text refers to itself and makes its nature as covenant sufficiently clear. This is likely the reason why in most legal documents an explicit mention of the oath is the exception rather than the rule, and in most cases it happens in the form of a random, casual allusion rather than as an explicit reference.
The concepts in ancient Greek
Each of the archaic Greek dialects always possesses only one word to refer both to statutes and to covenants; this word is either thesmós or rhêtra. The view that the archaic Greeks knew the difference ought no longer to stay unchallenged. To begin with, it is not a likely assumption that a language would have a word that had a merely abstract meaning (“law-making utterance” or the like) and assumed a precise one only in the specific context of an utterance. It seems much more plausible that these words had only one referent, which to modern scholars looks now like a covenant, now like a statute or a decree. At any rate, they are legal norms: this is evident from
It is also used in Nomima 21, 23, 51, 56. On ā instead of ē in this and other Elean words see Schwyzer GG I, 92; on its construction with the dative of the persons between whom the contract is made, see ibid. II, 153.
33
24
the fact that a thesmos or a rhetra is meant to be absolutely binding and from time to time even entails religious sanctions (e.g. Nomima 31; Nomima 21-23). The word “statute” and its equivalents in other languages (Gesetz, legge, loi), which many scholars like to use to translate nomos, 34 have the disadvantage of having to assume a somewhat wider definition in this context than it has in juristically correct speech, for – as we have seen above – many of the so-called “statutes” of ancient Greece do not fulfil the requirements discussed above, viz. abstractness and generality. 35 If one wants to stick to proper juristic usage, 36 words like “decree” or “enactment” will come in handy. They share with “law” or “statute” the notion of a rule imposed from above. However, such imposition can obviously not be assumed when the legal text we are dealing with is a treaty between two independent states, for under such circumstances there is no superior governmental power that could impose anything; nor can it when it is obviously just an agreement between individuals (as in Od. 14.393-94, see p. 29). If we accept the course of action proposed here, it is mandatory to use the word “covenant” or the like to refer to such texts. This is also the very thesis of this book: Those legal texts of archaic Greece that scholars usually call “statutes” are actually covenants. To put it more precisely, of all the modern words applied to legal texts, “covenant” best fits the nature of archaic written rules. 37 In this study I make a case for applying Savigny’s definition of “contract” to the legal texts of archaic Greece; consequently, I argue that they are not, in fact, statutes in the modern sense but public-law covenants. This thesis of mine is also consistent with an observation made by many scholars, that ancient Greek nómoi were based on the consensus of the citizens. 38 If this view is correct, it makes my thesis a priori plausible. Nonetheless, I shall of course try to provide further evidence 34
Including yours truly: in Avilés 2012: 62 I call what we would classify as a “decree” (Syll.3 364), but is referred to as νόμος in the inscription itself, a “statute”, which has been pointed out by Gagarin (forthcoming). 35 Hölkeskamp 1999 : 63 addresses this problem: “Die (durchaus absichtlich) tastend und provisorisch formulierte Arbeitsdefinition soll vielmehr weitgehend offen für verschiedene Arten von normativen Regelungen sein, sie soll ein noch fließendes und ungeschiedenes Spektrum von Varianten abzudecken in der Lage sein – nur so ist jene Unvoreingenommenheit gegenüber der anfänglichen Offenheit der archaischen Zeit und dem darin angelegten Potential an Varianten und Optionen gewährleistet, die eine genuin historische Analyse und Erklärung der Entstehung und Entwicklung der archaischen Gesetzgebung erst möglich macht.” 36 Which seems to me to be the best course of action, see above, p. 8. 37 With respect to Roman law Behrends 2004 comes to the same conclusion. The contractual nature of early Roman laws, though, is not due to the need to bind different political parties to rules needed for the proper functioning and stability of the city-state (as I assume was the case in Greece), but aims to involve the different social classes in the law-making process. 38 Often, however, this is dismissed as a fiction concocted by ancient philosophers: so e.g. Romilly 2001: 127 and 133-136 (with respect to Plato’s Criton). An especially critical view is expressed in Wolff 1970 (s. below, p. 58-9).
25
for it by checking whether it is consistent with what our sources tell us or not. Besides, I need to address the question of how far the resemblance to the modern institution called “covenant” goes. Certainly, in many of these texts, as well as in numerous passages where words such as rhêtra and thesmós are used, it will at first sight be unclear to the reader why they should be translated as "covenant". This is due, in my view, simply to the fact that, while this modern legal concept comes closest to the ancient ones, if we understand it according to Savigny’s definition, this word still usually carries several connotations that do not fit the nature of agreements as they were made in ancient Greece. To make sure that this difficulty can be overcome, it is necessary to try to arrive at a precise understanding of the actual institution that is hiding behind the aforementioned archaic terms. It will turn out that many potential problems and discrepancies disappear if, following Savigny, we remove from the concept of contract its connotations and consider only its constitutive elements. As I have hinted above, my objection to the classifications of legal texts that are often found in the scholarly literature does not consist in rejecting outright the use of modern words as found in current legal thought in and of itself. Rather, we must strive toward a more thorough theorizing of the concepts we use, if only to avoid talking at cross-purposes. Besides (as I have already noted, p. 5), while some researchers have provided valuable studies on ancient Greek vocabulary for the concepts of "contract" and "statute", they do not call into question this distinction itself but limit themselves to checking which of the several translations available they think best matches the ancient Greek word at hand and then translate it in accordance with it. This procedure often ends up making it look as though the Greek concepts, in particular the archaic ones, possessed a polysemy that seems quite strange and a priori unlikely. Even in as thoughtful a monograph on the archaic legal texts as Hölkeskamp’s (1999) we find this problem. To be sure, the author recognizes the difficulties that arise from the application of the modern classification into "laws", "decrees", "regulations", etc., which he admits do not do full justice to the archaic Greek meanings, since such differentiations require an advanced legal thinking, even legal science, which can hardly be expected among the Greeks of that time; accordingly, he defines collections of texts such as Rhodes/Lewis as problematic (1999: 63 with n. 10). Yet he himself, even though he defines the term "statute", does not define the other words which could compete with it as designation of Greek legal texts and therefore cannot be disregarded without
26
jeopardizing the whole enterprise. Accordingly, the decisions by which he assignes one or another legal text to the genre "statute" are in some cases questionable. 39 Likewise, in the text of the collection provided by Effenterre and Ruzé (Nomima) the classification is usually done without providing the reader with a reasonably satisfactory justification for the decisions the editors make. A particularly remarkable case is found in two inscriptions of very similar content, both from Elis and both stemming from the first half of the 5th century. One of them (Nomima 23) is classified by the publishers as "Décision des Eléens pour Patrias". This raises the question of why the other text (Nomima 21) is then labeled an "Accord des Khaladriens et de Deucalion." The publishers say (p. 100) that the form is not quite that of a decision, but rather, as the word ϝράτρα (a dialect form of ῥήτρα) suggests, of an "agreement", even "almost" a "contract." 40 Later on (p. 110), however, they think they recognize in Nomima 23 a "decree", without paying any attention to the fact that this text too calls itself a ϝράτρα. It is probably indispensable at this point to undertake a semantic analysis of the terms used in the archaic period to designate written legal norms. This analysis will include what scholars have found out in over a century of research regarding the use of these two words; in addition, I will also take into account the results of the aforementioned reflection on our use of terms, which includes consideration of the modern definitions as they are found in legal textbooks. As it turns out, this will be a worthwhile endeavor.
Rhêtra
Contradictions and difficulties of the kind mentioned in the foregoing chapter will also be encountered when we turn to the study of one of the ancient Greek terms for “statute” according to the principles expounded there. Both rhêtra and thesmós can seemingly mean "contract" as well as "decision" or "law". 41 These terms are distributed regionally, and rhêtra is found mainly in the Doric area, whereas elsewhere the term thesmós is firmly established.
39
See e.g. AG 2.2.1; 2.4.1. And if this text is not a contract, that is, does not create legally binding rules, but is only an agreement without legal consequences: why was it included in the collection in the first place? 41 See e.g. Gschnitzer 1997: 5; cf. Wade-Gery 1958: 62-4; Huxley 1962: 120 n. 283; Quass 1971: 8. 40
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The term rhêtra seemingly possesses a striking polysemy. I call it “striking” because it is by no means obvious that the speakers of a language would not feel the need to devise separate terms to refer to things as different as a law and a contract. As far as rhêtra is concerned, however, it seems that the word can be used to designate such a disparate array of things as the laws that were attributed to the Spartan lawgiver Lycurgus (Plut. Lyc. 6.1, 7; 13.1, 4; 8), an employment contract (Nomima 31) and a more or less formal agreement among soldiers (Xen. Anab. 6.6.28, cf. δόγμα 6.6.27). 42 Furthermore, it should be noted that, as with all the archaic inscriptions that we have seen and will see in this study, it is not possible to classify an inscriptional text as a statute or a contract purely by virtue of linguistic or stylistic elements. Scholars usually point to the word’s etymology: rhêtra is related to *eiro “to say” and stems from a root *wr(ē)- attested in all major Indo-European languages (Latin verbum and English “word” are derived from it). Consequently, it is assumed that rhêtra retains its etymological meaning “word”, and in legal contexts its meaning would be “a word that is, in some way, binding on someone”. This connotation of rhêtra as a “binding pronouncement” has parallels in other Indo-European languages (see Beekes s.v. εἴρω 2 under “Etym.”). There is however little evidence that the Greek derivatives really contain all the connotations that we find scattered throughout the rest of the Indo-European language family. Moreover, the meaning “binding pronouncement” seems rather generic, and scholars consequently tend to narrow it down to either “authoritative command” or – more rarely – “binding agreement”. 43 This seems reasonable in so far as the term rhêtra in Greek does not retain the generic meaning of “word”, “linguistic utterance” but is limited to the juridical sphere, which raises the question as to its concrete meaning, since there is ostensibly no basic meaning “word” from which the speakers could derive now the connotation “command”, now that of “covenant”. 44 It is worth noting that, as far as the purely verbal forms derived from the root *wr(ē)- are concerned, they often do actually mean “to command”. On the other hand, all Greek verbs of speaking (λέγειν, εἰπεῖν, ἀγορεύειν) can have this meaning, thus displaying the same 42
The parallel to the decrees of popular assemblies is obvious (Wade-Gery 1958: 63 n. 3). For the latter meaning see e.g. Wade-Gery 1958: 64: “These senses, a treaty between two parties, an enactment of the Demos, possibly a pronouncement of a Demos, cohere very well. A Rhetra is a form of words to which a number of people agree.” 44 The word analysis proposed by Quass 1971: 7-9 does not distinguish between the basic meaning and the etymological one. The German word for "legend" (Sage) stems from the verb sagen ("to say"), but its basic meaning is not „what is said“, „sentence“ but „story“, „saga". Quass's argument suffers from the same weakness as would a hypothetical analysis of the meaning of the word Sage based solely on its etymology. 43
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ambiguity as the English verb “to tell”: one can tell somebody either about something or to do something, and in the latter case the word has the same meaning as “to bid, command” and the like. Many *wr(ē)- forms have become part of the conjugations of those verbs; it is no surprise, then, that they should partake of the same range of meanings as those forms that are derived from different roots. The picture changes, however, when we look at the nominal derivatives of the root: the adjective ῥητός shares many of the meanings linked to these verbs but apparently lacks that of “command” (see LSJ s.v. I.1, where the legal meanings of the word are dealt with): all of its juridical attestations are compatible with the meaning “agreed upon” and do not require assuming that it can mean “commanded”. This fact suggests that the root always has the connotation of “covenant”, which might go back to the even more fundamental one of “promise”. Now, it is at least somewhat likely that the archaic Greeks, when they wanted to refer to the (presumably relatively new) legal institution that we call “statutes”, used a word that designated something similar. But since we have little evidence of rhêtra meaning "word of power", "command" or the like – much less "traditional legal rule" – we probably have to assume that the ancient Greeks applied the word to those legal texts that we call "statutes" simply because these were at least very similar to covenants. I will substantiate my view in the following. First, however, I will address what I consider the most thorough and convincing case for the traditional thesis that I have come across so far. Francesca Mello (2008) proposes a unitary interpretation of the word rhêtra: she argues that, fundamentally, it refers to an utterance by a person with superior authority, which is binding precisely because of this superior authority. She supports this claim by analyzing the use of the word from the earliest occurrence, of which we shall speak in a moment, down to the 3rd century AD. 45 While I agree that we should try to give rhêtra a unified meaning, I remain unconvinced by her reconstruction of what this meaning actually is. Mello herself points out that rhêtrai are “sometimes” in need of approval by those whom they are supposed to bind, but she then adds that the emitting authority need not subject them to approval (2008: 59). At least in archaic and
45
One of her arguments against the view that it can mean “covenant” is that in some sources (Ael. VH 2.7; 10.18; IG 14 (1), 165, l. 145-46) it is used along with ὁμολογία or συνθῆκαι, which she claims proves that it does not itself carry that meaning. However, these sources are all late and the authors are likely combining an old and learned word that was little understood by their contemporaries with a more intelligible one for the sake of clarity. It may also be noted that, should Aelian be using συνθῆκαι in the sense it has in 4th-century Athens, its meaning would not be identical with “contract” or “covenant” (Kussmaul 1969: 20). This could also explain the distinction made between ῥῆτρα and συνθῆκη in IG 14 (1), 645, l. 145-46.
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Classical writings, however, there is no passage that supports the thesis that a rhêtra may not require the approval of all those concerned. 46 A good example of this is found in the Odyssey (14.393), the very first attestation of the word. In this passage Odysseus, disguised as a foreign beggar, tries to convince the swineherd Eumaeus that Odysseus is about to return home. As Eumeus refuses to take his word for it, he proposes that the two of them “make a rhêtra”, which the gods are to witness for both sides (391-400): ἦ μάλα τίς τοι θυμὸς ἐνὶ στήθεσσιν ἄπιστος, οἷόν σ’ οὐδ’ ὀμόσας περ ἐπήγαγον οὐδέ σε πείθω. ἀλλ’ ἄγε νῦν ῥήτρην ποιησόμεθ’· αὐτὰρ ὄπισθεν μάρτυροι ἀμφοτέροισι θεοί, τοὶ Ὄλυμπον ἔχουσιν. εἰ μέν κεν νοστήσῃ ἄναξ τεὸς ἐς τόδε δῶμα, ἕσσας με χλαῖνάν τε χιτῶνά τε εἵματα πέμψαι Δουλίχιόνδ’ ἰέναι, ὅθι μοι φίλον ἔπλετο θυμῷ· εἰ δέ κε μὴ ἔλθῃσιν ἄναξ τεὸς ὡς ἀγορεύω, δμῶας ἐπισσεύας βαλέειν μεγάλης κατὰ πέτρης, ὄφρα καὶ ἄλλος πτωχὸς ἀλεύεται ἠπεροπεύειν. You have a heart that is very slow to trust, since even if I swear an oath I cannot seem to win you over and persuade you. But let us make a rhêtra, and let the gods who inhabit Olympus be witnesses for us both in the future: If your lord returns to this house, dress me in a cloak and tunic and send me back to Dulichium, where I desire to be; but if your lord does not return as I claim he will, have your slaves catch me and fling me down from a great cliff, so that other beggars may beware of telling lies. To this Eumaeus replies: ξεῖν’, οὕτω γάρ κέν μοι ἐϋκλείη τ’ ἀρετή τε εἴη ἐπ’ ἀνθρώπους, ἅμα τ’ αὐτίκα καὶ μετέπειτα, ὅς σ’ ἐπεὶ ἐς κλισίην ἄγαγον καὶ ξείνια δῶκα, αὖτις δὲ κτείναιμι φίλον τ’ ἀπὸ θυμὸν ἑλοίμην· πρόφρων κεν δὴ ἔπειτα Δία Κρονίωνα λιτοίμην. νῦν δ’ ὥρη δόρποιο· τάχιστά μοι ἔνδον ἑταῖροι εἶεν, ἵν’ ἐν κλισίῃ λαρὸν τετυκοίμεθα δόρπον. Stranger, I for sure will win fair fame and prosperity among people both now and in future if, after bringing you to my hut and treating you as a guest, I go on to kill you and take your life. How fervently would I be praying to Zeus, son of Cronos, afterwards! But it is now 46
One might also wonder why someone who has the authority to make binding pronouncements would ever decide to subject them to his inferiors’ approval in the first place.
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time for supper, and hopefully my companions will soon be here, so we can have a tasty meal in the hut. Mello (2008: 52) argues that this agreement can hardly be referred to as a covenant or alliance in the normal sense because of the imbalance between the two participants as is expressed by the fact that Odysseus’ proposal is cast in terms that seem to exclude any possibility of negotiation; moreover, the fact that he is actually the king of Ithaca and thus Eumaeus’ superior, she argues, excludes any equal footing in the pact (but how can this fact play any role if Eumaeus does not know his guest’s real identity?). Also, the harshness of the penalty he imposes on himself for the case that his prediction turns out to be wrong rules out a comparison with the usual covenants between unequal parties. However, Mello overlooks the fact that in this passage no rhêtra actually comes into existence; thus her contention that it is being enacted unilaterally finds no support in the text. We need to distinguish more clearly between a covenant proposal and the covenant itself. 47 The text itself, referring as it does to the gods as witnesses to the proposed agreement, gives us a clue that the rhêtra, had it actually come into existence, would have been made binding on the people involved by means of an oath. Odysseus’ authority, on the other hand, has no part in providing it with binding force. 48 So, after Eumaeus rejects the proposal and refuses to swear, no binding covenant has come into existence. Thus the only Homeric passage in which the word is used does seem to point to a basic meaning "covenant" or “contract”, that is, an agreement with legally binding nature. This binding nature is clear from the fact that in the passage in question no less than the gods are called upon to be "witnesses" (μάρτυροι). In and of itself, of course, it is by no means inconceivable that legal norms might stem from dispositions of powerful individuals equipped with great, even sacred power. Among other ancient peoples the king was the reference point and, to some extent, the creator of the law; a case in point is ancient Egypt (see Assmann 1995: 222-31). Yet this mighty kingdom with a strong religious foundation is very far from what we know about the early Greek 47
It is somewhat disputed whether rhêtra in a legislative context can mean “bill” or only ever refers to an approved and binding statute (for the former thesis see e.g. Schulz 2009: 334 n. 5; contra Quass 1971: 9 n. 44; Maffi 2002: 2201 with n. 26). The meaning “bill introduced to a council or assembly” is found in Plutarch (Agis 8.1; 9.1; 11.1), but this hardly proves that the word could have this technical meaning in archaic and Classical Sparta. The meaning “preliminary decree of the Senate” seems to have been used in Byzantium (decree ap. Dem. 18.90; see however LSJ s.v. II.3). 48 This is also shown by the fact that Odysseus uses the plural (ποιησόμεθα) when he speaks of “making a rhêtra”. Cf. Ael. VH 10.18 (εἶχον ὑπὲρ τούτων ῥήτραν πρὸς ἀλλήλους), another passage that Mello (2008: 59) strangely uses to demonstrate that a rhêtra is issued by only one of the parties.
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communities. In ancient Near Eastern monarchies, therefore, it is understandable that the king’s word should possess the authority of law; in Greece, on the other hand, such a situation is more difficult to imagine. Nor is a priestly class known in Greece whose prestige and authority would have been even remotely comparable to those of the Indian Brahmins. Rather, the word rhêtra appears very often in connection with plebiscites, as in a statute from Chios that deals with the functioning of state institutions (Nomima 62; Körner 61; Meiggs/Lewis 8), whose part A reads as follows: […] Ἱστίης δήμου ῥήτρας : φυλάσσων […] ἢν μὲν δημαρχῶν : ἢ βασιλεύων : δεκας[…] Ἱστίης ἀποδότω : δημαρχέων : ἐξπρῆξαι : τὸν ἐ[…] δήμου κεκλημένου ἀλοιᾶι τιμὴ διπλησίη […] ὅσην παραλοίω… ... Of Hestia, guarding the rhêtrai of the people... [rest unclear] Here we find the expression δήμου ῥήτρας φυλάσσων, which probably refers, as the context suggests, to the responsibilities of a public official. The translation of the participle φυλάσσων has led to some uncertainties, as some scholars 49 take it to mean that the official is to "watch" over the law, that is, enforce compliance with it. This view, however, is open to linguistic objections: while "to guard" or "to protect" is certainly the first meaning of the verb φυλάσσειν, it is a firm idiom in the Greek language for it to be used in connection with words referring to an utterance, a command or a promise simply to mean “to comply, heed” (see LSJ s.v. B 3). This is how the verb must be translated here. Thus, the officials are ordered to perform their duties in keeping with the ῥῆτραι of the people, which seem to have the highest authority in the state. This interpretation is confirmed by another statute, in which ϝράτρα (= ῥήτρα) δαμοσία seems to have the status of the final instance in legal matters (Nomima 109, l. 2; see p. 34). The first post-Homeric piece of evidence for the word ῥήτρα and the oldest known example of the application of the concept to Spartan politics (this is the most frequent use of the word in the Classical period and in late antiquity) is its occurrence in a poem of Tyrtaeus that is generally known as “the Eunomia-poem” (fr. 4 W., 1b Gentili/Prato):
49
E.g. Körner: contra Nomima, who correctly translate the participial phrase as "garder les lois". In this context the French verb "garder" has the same twist of meaning (from “to watch” to “to keep, obey”) as the Greek word it translates.
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ἄρχειν μὲν βουλῆς θεοτιμήτους βασιλῆας, οἷσι μέλει Σπάρτης ἱμερόεσσα πόλις, πρεσβυγενέας τε γέροντας, ἔπειτα δὲ δημότας ἄνδρας εὐθείαις ῥήτραις ἀνταπαμειβομένους μυθεῖσθαί τε τὰ καλὰ καὶ ἔρδειν πάντα δίκαια, μηδέ τι βουλεύειν τῇδε πόλει σκολιόν, δήμου τε πλήθει νίκην καὶ κάρτος ἕπεσθαι. The beginning of counsel shall belong to the god-honored kings, who are in charge of the pleasant city of Sparta, and to the honorable elders; then the men of the people, answering them back with just rhetrai, shall speak good words and do all that is just, and not counsel anything bad for this city; the majority of the people shall prevail and (its decisions) have force. Two interpretations of the participial clause underlined are put forward: the dative εὐθείαις ῥήτραις is regarded either as the object of the verb (that to which the people respond) or as instrumental (that by which they respond). Some scholars (e.g. Mello 2008: 53) argue that, since the picture of the Spartan constitution provided by Classical sources suggests that in Sparta the people had little or no say in politics, we should choose the first interpretation. This view, however, is questionable on both linguistic and substantive grounds. As far as language itself is concerned, in archaic poetry the dative in connection with ἀμείβομαι is always instrumental, as in the Homeric formulas ἀμείβετο μύθωι, ἐπέεσσι etc. 50 The translation “the people reply with straight rhetrai” is much more plausible: with the exception of one passage in Aeschylus (Eum. 442), wherever in ancient Greek we find the dativus rei in connection with ἀμείβω/ἀμείβομαι (whose primary meaning is “to repay”) or one of its compounds, it is always used in an instrumental sense. Also, the dative of the person repaid or responded to is found only with the compound ἐπαμείβομαι; 51 usually, the person is in the accusative. Furthermore – a fact often insisted upon 52 – rhêtra comes, as we have seen, from the root *wr(ē)-, which means “word”; consequently, in interpreting the expression found in Tyrtaeus we should bear in mind the Homeric parallels ἀμείβετο μύθῳ, έπέεσσι and so on. Our ideas about how the Spartan system worked cannot override the results of a philological analysis.
50
This is clear from passages such as Odyssey 2.38 or 12.278, where this verb, in addition to the dativus rei, governs the accusative of the person who is responded to (literally: who is done to in return). The construction is identical with ἀμείβεσθαι δώροισι (Od. 24.285) and the like. 51 Iliad 230. In Il. parva (?) fg. 13 p. 177 Be. (Ἀνδρομάχην) δῶκαν ἔχειν ἐπίηρον ἀμειβόμενοι γέραϛ ἀνδρί the participle ἀμειβ. is best taken as absolute (“returning the favour”) and the dative as governed by δῶκαν. 52 This is precisely the basis of Mello’s argument. See also Quass 1971: 7-9; Gschnitzer 1997: 5.
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With respect to content, a statement to the effect that "the common men are to respond to the straight rhêtrai" is rather unlikely, since the term rhêtra is usually associated with the activity of the people or, more precisely, linked to the Assembly, and it seems to constitute the most distinguishing feature of its political activity: we may recall the expressions ϝρατρα δαμοσια in Nomima 109 and δημου ρητρας in the text of the famous "constitutional" law from Chios (Nomima 62; Körner 61, l. 1-2). Also, the way the text of Tyrtaeus’ poem builds up requires that the activities of the "men of the people" be described in the same way as those of the kings and the councilors are, a task for which a mere "response" will not do, since it is far too vague to express anything definite (I am not aware of the verb ἀμείβομαι being able to mean “to ratify”). Then, however, the dative governed by the verb, ῥήτραις, being the only other word in this sentence capable of carrying a definite enough meaning, must take over the task of expressing what the people’s assembly characteristically does, on its own turf, as it were, as a "response" to the actions of the other two organs of the state. The argument that the Spartan people were not supposed to discuss bills in the Assembly – inasmuch as this was the purview of kings and elders – has no bearing on the question at hand, since it does not matter whose task it is to formulate and propose the rhêtra but whether or not it requires the approval of all those affected by it. The very same ancient sources who deny that in Sparta the commoners were actively involved in legislation testify to the fact that the Assembly had the authority to approve or reject bills (Plut. Lyc. 6.3; cf. 6.5: ἔπεισαν… τὴν πόλιν). Thus, the Spartan demos is only bound by a rhêtra if it has ratified it, in much the same way as Eumaeus is free to reject Odysseus’ proposal, which thereby fails to actually become binding. One may ask whether this passage means that in archaic Sparta the common people had the ultimate power over which laws were passed and which were not. A classicist reading Thyrtaeus’ poem is naturally tempted to simply assume that by δῆμος the poet refers specifically to the commoners. However natural this assumption may seem to us, as it apparently did to later ancient authors writing on Spartan matters such as Plutarch (Lyc. 6.1-10), we must be wary of too easily projecting Classical Athenian ideas and concerns onto archaic Sparta. At least in archaic times, the word dêmos is fundamentally ambiguous (Werlings 2011) as it can refer both
34
to the commoners alone (Lat. plebs) and to the citizenry as a whole (Lat. populus). 53 Now, while δημότας ἄνδρας almost certainly refers to non-aristocratic Spartans, it is not at all clear that δήμου in δήμου πλήθει also means “common people” as opposed to the elite; in fact, similar expressions found in other inscriptions, which imply a meaning “the whole of the people”, provide a good reason to believe that it does not (IvO 3 and 7, see Werlings 2011: 200-203). This expression could very well be intended to convey the idea of the Assembly as a whole, which includes both the elite (kings and elders) and the commoners, having ultimate authority on matters of legislation. Be that as it may, as we can see, the results of both a linguistic and a substantive interpretation of the poem of Tyrtaeus concur in establishing that the rhêtrai the poet is speaking of are most likely issued ultimately by the people’s Assembly. At this point, however, we should try inserting into our translation the meaning of the word rhêtra that I posit as the correct one. But if we do so, it may sound quite strange to see the translation of verse 6 read as follows: "(The men of the people) should respond with straight covenants." This is because, in our ears, words such as "covenant" or “contract” contain features that do not entirely fit into the situation the poem describes. If, however, one looks to the "hard core" of the concept of contract, which I have reconstructed above with Savigny's help, we can see that the people in Sparta, according to Tyrtaeus, responded "with just legal standards established through several people’s matching declarations of intent, through which the legal relationships of these people were shaped." The authors of the required matching declarations of intent are, in my view, all those Spartans who are authorized to participate in political life in any way. This would explain why in this text the normative competence is presented as the quintessential activity of the people’s assembly: without the consent of the whole citizenry there can be no binding legislation. The "law" is (unlike the decision-making in everyday politics) that political activity in which the greatest number of citizens, if not all of them, must be involved: nobody can be bound to obey a new legal norm except if they themselves enter a contractual obligation to comply with it. The scholarly view I criticize here is very old and seems nowadays to stand unchallenged; however, there have also been dissenting views on the meaning of rhêtra from a very early time,
53
On the difference between plebs and populus in Latin see Gaius Inst. 1.3: Plebs autem a populo eo distat, quod populi appellatione universi cives significantur, connumeratis et patriciis; plebis autem appellatione sine patriciis ceteri cives significantur.
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at least with respect to Spartan public law of the archaic period (the word seems to be for the most part peculiar to the Laconic and Elean dialect). Because of the meaning of the term found in the Odyssey, renowned scholars of the 19th century adhered to the view that the famous Spartan "Great Rhetra" 54 was basically a covenant whereby the conflicting political forces had adopted the Spartan constitution (Gilbert 1872; Wilamowitz 1884: 240). This thesis was argued against especially by Meier (1892: 262-64), who claimed that in Sparta "statute" was the original meaning of rhêtra. 55 He lists as evidence for the meaning "statute" Nomima 21, 23 and 109, but, as we shall see, the passages he cites do not really support his point if one applies the definition of “contract” or “covenant” that I adopt in this study and which I believe is the most apt to be used for the resons expounded above. Meyer’s approach, on the other hand, is undertheorized and he simply labels the different pieces of legislation in such a way as would appear plausible to a modern person. In my view, a legal norm enacted within a polis, even if democratically adopted by the city’s people, is not necessarily a statute in the modern sense; therefore, Nomima 21, 23 and 109 are no evidence of the contrary. In the case of Nomima 21, a ϝράτρα between a polis named “Chaladrians” and one Deucalion through which this man was awarded the citizenship, Meyer denies the contractual nature of this text by pointing out that there was no reciprocity implied between the individual and the polis, by which I assume he means that the text does not address any obligations on the part of Deucalion toward the polis and therefore cannot be regarded as a contract. If we follow Savigny’s definition, however, the argument does not work, since his definition of “contract” by no means implies that both parties to the agreement have to commit to doing something; it simply means that they both agree on its terms, thereby giving it legal force. Accordingly, modern legal doctrine speaks of "unilaterally binding contracts" (cf. Black’s s.v. “contract”, p. 349) and in some jurisdictions a donation is a form of contract. In the present case, the only thing that needs to be reciprocal is the declaration of intent: a contract comes about if both the citizens of the polis at hand and Deucalion himself agree to it. In the inscription, to be sure, there is no explicit indication of Deucalion’s consent, but the lack of an explicit reference is not in itself evidence of its absence since we would not necessarily expect it to have been recorded. The same goes for
54
This is a modern expression; however, as we see in this chapter, ancient authors like Plutarch already called Spartan laws and the Spartan constitution as a whole ῥῆτραι. S. DNP s.v. Rhetra [2]. 55 So too Busolt/Swoboda 43 and 630 c.
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Meyer’s assertion that there is no reason to call the set of rules referred to in Xen. Anab. 6.6.28 a covenant, because it is based on a decision of the army about themselves. This seems to imply that a contract or covenant must have no more than two parties. This argument, again, runs afoul of Savigny’s definition: it is enough to unite several people into making a matching declaration of intent, which is obviously what the soldiers are doing, considering that they have agreed on a set of rules without the intervention of a superior. 56 The view Meyer criticized was picked up again by Weiß (1923: 60-3). In his synopsis of the Greek terms for "law" he elaborates on rhêtra; he draws attention to the definition of that word in Photius, the Suda and Etymologicum Magnum, where the meaning "agreement" is addressed as the basic one, while "statute" is rather rare and appears only as a special meaning. In the version of the lexicon of Photius, the lemma reads as follows: ῥῆτραι· συνθῆκαι, λόγοι, ὁμολογίαι. Ταραντῖνοι δὲ νόμους καὶ οἷον ψηφίσματα· παρὰ Λακεδαιμονίοις ῥήτρα Λυκούργου νόμος, ὡς ἐκ χρησμοῦ τιθέμενος· οἱ δὲ ῥήτρας ὁμολογίας, οἱ δὲ συγγράμματα· καὶ ῥητροφύλακας τοὺς συγγραμματοφύλακας. "ῥῆτραι: terms of a contract, speeches, agreements. The Tarantines so call statutes and things such as decrees; among the Spartans ῥήτρα is the law of Lycurgus, on the grounds that it was established as a result of an oracle; others call agreements ῥῆτραι, yet others written compacts, and ῥητροφύλακες are the custodians of documents". This definition is found with almost identical wording in the Suda and Etymologicum Magnum, except that in the latter the paraphrasing as λόγοι is missing (on the version we find in Hesychius see below). In the Classical language, synthêke and homología come closest to what we call “contract”, albeit with some differences. 57 Weiß (1923: 62) additionally emphasizes that even the Classical author Xenophon in his "Constitution of the Spartans” (15.1) saw the foundation of the Spartan order in a contract that the ephors as representatives of the people on one side and the kings on the other swore to abide by: the former promised to accept the latters’ authority, while the kings bound themselves to abide by all the laws that the Assembly would enact. Nonetheless, this view of the Spartan system of government as going back to an agreement between the political players met with little
56 57
Cf. Quass 1971: 8 n. 42; see esp. his reference to Schwyzer 679 = Nomima 31. On which see e.g. Kussmaul 1969; Carawan 2006, 2007b.
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attention in the subsequent scholarship. 58 This is likely due for the most part to the fact that the proponents of this viewpoint did not go far enough: firstly, they were concerned exclusively with the Spartan constitution; secondly, they did not call into question the time-honored distinction between contracts and statutes as such as far as it applies to archaic Greece. Such questioning, however, I deem necessary in order to attain clarity in this matter. The meaning "judgment" is found in Hesychius: under the lemma we find the description ῥῆτραι: δίκαι. In a "sacred law” (Nomima 109; IvO 7; Schwyzer 412) the term seems at one point to actually mean "judgment”. The text is written on a bronze plate discovered at Olympia: 59 [...] κα θεαρὸς εἴη. αἰ δὲ βενέοι ἐν τἰαρῶι, βοί κα θωάδοι καὶ καθάρσι τελείαι καὶ τὸν θεαρὸν ἐν ταὐτᾶι. αἰ δέ τις πὰρ τὸ γράφος δικάδοι, ἀτελής κ’ εἴη ἁ δίκα· ἁ δέ κα ϝράτρα ἁ δαμοσία τελεία εἴη δικάδοσα. τῶν δέ κα γραφέων ὅ τι δοκέοι καλιτέρως ἔχειν πὸτ τὸν θεὸν ἐξαγρέων καὶ ἐνποιῶν σὺν βολᾶι πεντακατίων ἀϝλανέως καὶ δάμωι πληθύοντι δινάκοι· δινάκοι δέ κα ἐν τρίτον, αἴ τι ἐνποιοῖ αἴτ’ ἐξαγρέοι. ... is a visitor. If he has sex in the sanctuary, he shall sacrifice a cow to expiate it and do a full cleansing ritual and at the same time cleanse the visitor as well. If someone passes a judgement contrary to the statute, the judgment shall be null and void; the decision of the people, on the other hand, shall have full validity as a basis for judgment. Should someone want to delete one of the written norms or add a new one in the belief that it would so be better towards the god, he shall make the change (?) in consultation with the Council of the Fifty and the People’s Assembly; he shall make it (?) by going through all three instances, whether he deletes or adds something. In l. 1 it is declared an offense to desecrate the sanctuary by sexual intercourse within the sacred precincts; then the statute addresses the relevant purification rites to which the offender must submit, and the procedure to be followed in case of violation. In l. 2 we read that a judgment contrary to the written word (το γραφος, which means in all probability the text of the law itself) is to be void (ατελες); the ϝρατρα δαμοσια on the other hand is to be valid (τελεια). One might assume that this term refers to a written law that the people have adopted. However, the fact that the ϝρατρα is δικαδοσα (= δικάζουσα) poses a problem: the verb δικάζειν means otherwise only "to judge", i.e. decide a specific dispute. Hence, as far as I can see, there are only two possible interpretations. First, one might think that ῥήτρα here actually means "judgment" (Ruzé 2012: 13-14). This could be due to the fact that a judgment is made by a multi58 59
Weiß’ position is criticised without argument by Ehrenberg 1925: 18-9. See in particular Veneciano 2015 on the structure of this inscription.
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member body, which requires the agreement of all decision-makers, that is, it is a "union of several people in a matching declaration of intent". On the other hand, this interpretation is at odds with the contract definition I have assumed for the present book insofar as the declaration of intent does not determine its issuers’ own legal relationships but those of others who are not themselves involved in the decision-making (cf. Savigny 1840: 307-8). Apart from that, the manner of use of the word rhêtra remains within the familiar framework. The second possibility is to assume that it is in truth only the same (already adopted) law, which is then declared, in a somewhat free use of language, to "pass a judgment" in the particular case at hand, which probably means that the rules contained therein are to be applied in deciding it. This is supported by the wording of the text itself, in which both the word ϝράτρα and the accompanying adjective are accompanied by the definite article: α δε κα ϝρατρα α δαμοσια etc.: it therefore seems to be a well-known legal text. According to this interpretation, the passage in question would therefore say, in effect, that the judgments are not to be made at the whim of an individual public official but in keeping with the statute, which reflects the will of the people's Assembly. Such statements are certainly not uncommon in Greek texts of the archaic and Classical period. 60 That the word could mean "oracle", as Plutarch (Lyc. 13.11) claims, has been generally rejected by modern scholars (e.g. Wade-Gery 1958: 62-4). In fact, this alleged meaning, which we encounter even in the lexicographers, is not attested in authors from the archaic and Classical periods. According to a well-known legend, the Spartan constitution did indeed go back to an oracle; however, even if we had no doubt about the historicity of this narrative, it would still not prove that the use of the word rhêtra was caused specifically by the fact that it came from an oracle: the much likelier hypothesis would still be that this word, designating as it did statutes as its more frequent use, eventually became a proper name of sorts for the statute par excellence, the Constitution. Neither Roman-era writers nor late Roman or Byzantine lexicographers are a particularly reliable source for the meaning of the term rhêtra, which did not occur in their own current language nor in the Attic dialect with which they were familiar through their acquaintance with the Classical authors.
60
For a different view see Veneciano 2015.
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Thesmós
In the case of thesmós and relatives, the meaning "contract" is not as easy to establish as it is in the case of rhêtra. To begin with, in Greek literature – especially in poetry – this word is often used in a very general sense (see the chapter on the contrast between thesmós and nómos below), which is mainly because it was much more widespread in the Greek-speaking world and therefore, unlike rhêtra, it was not used to describe the situation in a particular region. Another reason for its being used in a very general sense presumably lies in the fact that the verb tίthemi, from which this noun is derived, was still easy enough for speakers of archaic and Classical Greek to spot in the substantive derived from it. This is especially evident in Pind. Ol. 13.40, where by τεθμοί the poet refers to games that originated in a "foundation" or "charter". The same poet uses a related word in Nem. 4.33 and in Isth. 6.20 (τεθμίον) to refer to the "rules" of poetry. Even farther away from a purely legal significance is the plural (θεσμῶν) in Soph. Trach. 682, where it refers to the instructions given to Deianeira by the centaur Nessus. 61 Where thesmós seems to be used in the legal sense without an obvious reference to written statutes, it is best described as "a set of fundamental rules" (almost a "charter"), as is the case in Aesch. Eum. 681 (Ostwald 1969: 14). Here its translation as “charter" is particularly appropriate, since the way the word is used in this verse reveals two aspects that are inherent to the Greek word and its modern translation: on the one hand, it points to a set of rules that encompass all the norms that are relevant to the institution in question; on the other, it expresses the idea of its foundation, which comes about through a set of rules being enacted and cannot really be separated from that enactment. It does however not seem necessary in this context to regard thesmós as a norm of religious origin (as does Shipp 1978: 20). Athenian and later authors tend to understand thesmós as an authoritative legislative act performed by a particularly important individual as opposed to those laws that are based on the consensus of the citizens, which are mostly called nómoi. We should be wary, however, of regarding this usage as proof that the word was used in this way in archaic times too, let alone as proof for a development from authoritative to democratic legislation in actual archaic Greek
61
For more passages see Ostwald 1969: 12-19; Ehrenberg 1921: 109.
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history. 62 This view should only be regarded as proven if the language of the archaic inscriptions actually turned out to support such a view, which is not the case. The legal inscriptions where the word thesmós occurs are older than the aforementioned literary evidence and are probably also written in a more precise and consistent terminology. Thus, when attempting a semantic analysis of this word it is advisable to pay particular attention to the epigraphic evidence. Most of this evidence leaves room for translating thesmós as "statute" (although the attestations do not usually reveal much about how the “statute” at hand was enacted) and in no way requires translating it as "contract". Some individual inscriptions, however, are best interpreted in this sense: at least once (Nomima 24 [= Schwyzer 411, Körner 39; IvO 4], l. 2-3) the word does seem to mean "purchase agreement"; in Schwyzer 523 (AG Q12, p. 175) l. 64-74, τω τεθμιω ϝιστορες is likely to be understood as "witnesses to the contract" or "to the transaction" (Gschnitzer 1997: 5 n. 10). Körner (p. 117) believes that τεθμίον here means "fact", but this is based on a meaning of τίθημι that, as far as I can see, is nowhere else found in ancient Greek. The verb can sometimes mean "to make", "to create" (see LSJ s.v. B.: "make"), but never simply "to do" (although this same Germanic and English verb stems from exactly the same Indo-European root *dhe-). The testimony of the Latin language (facere – another offshoot of the root) as well as of Germanic (German "tun", English "to do") is not enough: to assume such a meaning in Greek we need Greek examples, which are not found anywhere. The meaning "fact" for θεσμός and relatives can thus be safely ruled out. The range of meanings of these words rather includes (in its legal use) the meanings "charter", "establishing", "fixed rule" and the like, including "contract" and "statute" (although below I shall criticise the application of the latter word to the state of affairs characteristic of archaic poleis). The only difference from rhêtra lies in its use throughout the whole Greek world, and the choice of one word instead of another is thus merely a matter of dialect.
62
So Allen 2005: 389; Ostwald 1969: 55; Shipp 1978: 10.
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Thesmós and nómos
According to a widespread view, there is a major semantic difference between thesmós and nómos. Traditionally it is believed that this word originally meant "custom" (e.g. Romilly 2001: 13-17). An exception is Shipp (1978), who in a book that is short, but nevertheless musters a great deal of evidence to support the author’s views, argues against the established opinion and tries to make a case that the word nómos from the very beginning meant "statute" and that its use in the sense of "custom" was derived from this meaning and not vice versa. More precisely, Shipp argues that the meaning "domestic legal text" was the first to be used after the etymological one, which is "distribution" (there is little doubt that nómos is a verbal substantive from némo, "to share, assign"), in particular the distribution of land among the citizen of a given city. The shift in meaning can be explained by the fact that, according to the traditions reported by some ancient authors, the first state laws that were adopted at all (that is, those enacted in the Greek colonies in Southern Italy) were aimed precisely at regulating the distribution of agricultural land among the citizens (Shipp 1978: 14-17). 63 At first sight, Shipp’s theory does not seem all too implausible and his arguments are worth considering. He could therefore be right with his view that nómos, in his original meaning, does not refer to a “custom” or the like but rather refers to the law, that is, to rules in force in a particular community that are relevant for state action, and that the meaning "custom" and all others (like "natural law", etc.) are derived from this. 64 But what in my opinion still remains questionable is his view that before the 5th century the word could refer to a written legal text. There is no evidence for this: all the sources according to which the laws of Solon, for instance, were called nómoi whereas those of Draco were called thesmoί are late. Of the sources that Shipp (1978: 18-9) cites, none is earlier than the 5th century. Solon (fr. 36 West, l. 21) calls his laws thesmoί. 65 Even in the so-called "settlers’ law" from Locris (Nomima 43) at no point is it made
63
It is hardly warranted that these laws were called nómoi from the beginning, despite Hirzel 1907: 339 and 345 n. 5 (to which Shipp refers). The proverbial expressions Ζαλεύκου or Ὀξύλου νόμος may indeed have been "old" at the time when the pareomiographers included it in their works, but I can see no evidence that they are really as old as the legendary lawgiver. In fact, in more recent scholarship the historicity of these figures has been increasingly called into question (Szegedy-Maszak 1978; Hölkeskamp 1999: 44-59). Hence, one should rather refer to the evidence drawn from the inscriptions, in which before the 5th century legal texts are never called nómoi. 64 One might wonder, however, how far illiterate societies are likely to distinguish between these things. 65 If in the same fragment, l. 18-9, the reading κράτει νόμου is correct, this would confirm my thesis that nomos and thesmós were not identical in content (see below).
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clear that nómos and related words specifically refer to any written law. Rather, one must assume that the word nómos on such inscriptions generally means "legal rule", regardless of whether it is written or not. So any legal norm within a given polis can be called nómos, and this fact also explains why the plural form of the word is so often used to refer to the whole of a given city’s laws. This applies in the same way if we decide to follow Svenbro (1988: 123-36) in understanding nómos as "that which is read." As a verbal noun to némo it could well have this meaning, since this verb is sometimes attested with the meanings "to recite" or "to read". 66 In this view, laws are so named because they were written texts to be read out publicly. 67 A difficulty with this view, however, lies in the fact that it presupposes a leap of meaning from a general sense to a very special one, which is itself in need of explanation. For if nómos refers to everything that is written and read, this raises the question why this meaning was then narrowed to refer to laws in particular, which are by far not the only kind of text that is read out aloud. Even if one were to point out that in the early archaic period public writing was limited to legal texts, it is still not clear why the word is never used to refer to treaties, which are also frequent among archaic inscriptions. At any rate, the use of nómos seems limited to the law of a particular city or people; it never refers to international law. Besides, its basic meaning seems to be "legal norm" or "set of legal norms". Sometime in the 5th century BCE, possibly in the last quarter of the 6th, the word nómos starts to be used – in Athens and elsewhere – in competition with the older term thesmós 68 to refer to a set of written rules. By the second half of the 5th century it has replaced (at least in Athens) the former word, which now refers only to the old, "classic" laws of Draco and Solon. This change in usage is most evident in the inscription that contains the statute on the procedure in homicide cases that the tradition attributes to Draco (Nomima I, 02; IG I3, 104): while its original wording called the statute θεσμός, the heading of the reinscription of 409/8 BCE refers to it as a νόμος. This change in terminology in such a technical field as law is of course particularly striking; accordingly, scholars have felt the need to find an explanation for it (e.g.
LSJ s.v. νέμω, A. IV. Further examples in Svenbro 1988: 124-5, 61 n. 3. Which, in fact, frequently happens in the extant forensic speeches from Classical Athens, see Gagarin 2008: 39-66. 68 Whenever I write θεσμός I refer to the dialectal variants and diminutives (τεθμός, θεθμός, τεθμίον etc.) as well. I can find no semantic difference between any two of these forms. 66 67
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Romilly 2001: 17-8). In the following I deal in particular with Ostwald’s (1969) theses on this topic. In another chapter I point out that the use of the word nómos on inscriptions to refer to contracts can be established with reasonable certainty (p. 57). Ostwald lists evidence that this is the case in literary texts as well. In sum, he believes that thesmós refers to rules imposed on a community by a higher authority, 69 whereas nómos is based on an agreement between equals.70 The latter is certainly true, as is clear from the fact that the word can always be applied to contracts too. A literary example of this, highlighted by Ostwald as well (1969: 53), is found in Herodotus, in whose work the term once refers to a constitutional compact among the kings of Egypt (2.147.3-4). After the Egyptians had divided their country into twelve parts and appointed a king for each of them, the twelve kings agreed that they would never try to overthrow each other but be satisfied with having each the same share. Herodotus calls this agreement νόμοι; in Savigny’s terminology it would be a public-law contract or, if we consider the twelve parts of Egypt to be independent states, an international treaty. There is therefore hardly any question that the consensual nature is immanent to the word nómos. What still needs to be established, however, is whether this characteristic really sets it apart from thesmós. According to Ostwald (1969: 44-52), there is a shift in the use of language between the archaic and the Classical period that brought about the replacement of one term with the other in referring to written statutes and, in general, positive law. In his view, this was caused precisely by the fact that thesmós refers to an authoritative norm as opposed to one based on the consensus of those subject to it. Cleisthenes, by invoking the equality (isonomía) he wanted to establish among citizens, involved them in the decision-making process that led to the adoption of those laws through which his reform was made reality. 71 According to this narrative, the real enactors of these laws were the people of Athens rather than a legislator with superior authority imposing his norms on the citizens. Cleisthenes underlined this fact by choosing to address the new laws no longer by the authoritarian term thesmós but by the democratic nómos. 72 From that
69 See for instance p. 158 (emphasis mine): "Cleisthenes did not impose his measures as Solon did". In fact, he often used the words "to impose" and "imposition" to refer to the enactment of thesmoí by some authority. 70 See for instance p. 168, where he claims that a "negotiated agreement" leads to a nómos, not to a thesmós. 71 A similar idea is put forward by Lévèque 1964: 32 and 1997: 22. 72 Ostwald 1969: 160 goes so far as to call nómos “the most democratic word for ‘law’ in any language.”
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point on, the latter became the normal word to indicate a written statute valid only within the borders of a single city-state. At this point it is appropriate to point out the difference between devising legal norms and enacting them. The emergence of positive law is divided into two moments: first, someone must come up with new norms and, if he does not happen to be an autocrat, submit them to those with whom he shares the political power as a proposal to be henceforth discussed. In a second step, these norms must be made legally binding on all parties involved through some procedure. These two steps are in most cases clearly separated both chronologically and conceptually. That they were so in ancient Greece as well is clearly shown by a close look at the psephismatic inscriptions (p. 21). These usually describe the process of devising legal norms or at least the final part thereof. In Athens, for instance, they specify exactly who has introduced a bill and how the discussion in the Assembly has taken place (e.g. IG I3, 40, 1-4). Now, in Classical Athens it was no longer customary to ratify each statute by an oath; treaties, on the other hand, still required this form of ratification, so that in their case both phases of the development of positive norms emerge clearly (ibid. l. 16ff.; 35ff.). Also, the two steps are often not even performed by the same group of people; accordingly, while treaties between Athens and an allied polis are indeed sworn to by both communities, the devising of the norms to be enacted is often the sole responsibility of the Athenians, who, being the stronger party, were able to impose on their allies and vassals whatever rules they saw fit. In the archaic era, too, the devising and the enactment of legal norms were apparently two separate things. If we accept the testimony of the ancient sources, according to which in the 6th century and earlier legislation was the work of particularly wise individuals (Szegedy-Maszak 1978), then we must also accept the other statement made by our sources, that the citizens of each city had to be bound by an oath to obey their laws for the latter to achieve actual validity. In this case, too, the two groups, the devisers and the enactors, are distinct; in this case, too, the regulations drafted by the so-called lawgivers become law only when the people concerned committed themselves to following them by swearing an oath. This fact alone raises serious doubts about the legitimacy of using words like “imposition” with regard to archaic laws. The only source that suggests some kind of authoritarian imposition of statutory norms is Herodotus' account of Solon's journey to the East (1.29.2), which allegedly took place only after the great statesman made the Athenians swear an oath to keep the laws he had given them unchanged for 45
ten years. 73 The departure was therefore a ploy to force the Athenians into obedience through the power of the oath. Even in this case (and provided we can take Herodotus’ story at face value), this is not so much an instance of legal rules being imposed by a higher authority as one of a wise man cleverly exploiting the moral and religious rules in force in archaic Greek society to further the common good. In this light we may attempt to give a somewhat different answer to the question of a possible semantic distinction between thesmós and nómos. One can hardly deny that, with respect to the process of finding legal norms, the word nomos – both initially and, later, in its not strictly legal sense – has a distinctly different character from its opponent, for it often refers to norms that we would classify as customs or customary law, in other words, as different from consciously enacted law, to which the word thesmós points by virtue of its very etymology. Judging by the evidence available, nómos seems originally to have meant “custom”; 74 its application to consciously enacted law is therefore somewhat paradoxical. Now it may well be that Cleisthenes, as Ostwald claims, did replace the older word for "statute" with the word for "custom" to make it appear as though enacted statutes were the work of the people rather than of an individual lawgiver as in the case of Draco and Solon, and thus to covey the idea of a more radical democracy through the language itself. In the following, however, I will try to show that this cannot have been based on the alleged fact that one term expresses an authoritarian way of enacting legislation and the other a democratic one: if anything, we should rather assume that the older term carried with it the connotation of an individual (usually of aristocratic origin) devising the norms in question for the rest of the community, which may have prompted the radical democrats to replace it with a term more amenable to their view of political decision-making. To prove this, I would first of all like to remind the reader of what already appeared to Savigny to be the central question of his inquiry, that is, which of the properties that regularly accompany a particular term actually belong to its essence and which ones are just accessory to it (cf. p. 11). The significant properties are those without which the thing in question no longer exists. For instance, Savigny makes clear that the fact that a contract normally has two parties to it is merely an accidentally supervening property, for which he invokes as an example the
73 74
See p. 59. The oath takes place before Solon even makes his laws known to the public. Shipp 1978, however, disagrees (p. 42).
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foundation of a corporation, an act that is undoubtedly a contract but usually involves more than two parties. Thus he clarifies that the common trait of involving two parties is not constitutive of a contract. Especially with respect to technical terms in any language it is advisable to proceed in the same way that Savigny exemplarily demonstrates. According to Ostwald's reasoning, it plays a large role that the concept of thesmós is thought to have the feature of "imposition from above". This is now to be checked against the sources. I will do the same as Savigny, that is, look for counter-examples and, should any be found, that is, should original texts be found in which thesmós designates a non-authoritative form of law-making, I shall regard it as established that the "authoritarian imposition" is not an essential feature of the concept.
A non-authoritative form of legislation is expected especially where the context connects the term thesmós with other words that denote a contractual agreement, especially a private one. This is the case in an inscription from Orchomenus from the late 3rd century BCE (Schwyzer 523, see AG Q12, p. 175), which deals with debts that the city has with one Nikarete and contains a number of decrees by the Assembly that determine the conditions for repayment of a portion thereof. It is a psephismatic inscription: it lists places and people concerned with the enactment of the decrees as well as the regulations pertaining to their transcription (part B). This last part in turn commands that another, older decree, which deals with some payment rates that the polis has missed, be written down word for word (part C). This is followed by the passage that interests us here (part D): a list of the transactions on which Nikarete’s claims against the polis Orchomenus are based, including the date of each individual transaction, its amount, the people involved and the witnesses to the proceeding. In total, this section of the inscription lists four transactions through which the woman has acquired claims. We are not told anything about the precise nature of each particular transaction, but because of the overall context it is very likely that it is, in each case, some form of loan. The text does not provide any information about the form of the stipulation, either. Apparently, at the time of the writing of the inscription only the result was important, that is, the existence of an obligation. To make sure that this obligation is actually enforceable in practice, witnesses are called upon. One of the ancient Greek words that correspond to "witness" is (ϝ)ίστωρ. Although it can also mean "judge" or "referee" (LSJ s.v. I), the meaning "witness" is well attested particularly in inscriptions. Hesych glosses the word as συνθηκοφύλαξ, which means "guardian of the 47
contract(s)”. The literal translation of (ϝ)ίστωρ is actually "knower", that is, someone who has experienced a thing or a situation; the meaning "judge" then likely stems from "expert [of the law]”. 75 Normally, that which the "knower" has knowledge of is expressed in the genitive; with this construction, the word is often used in poetry as an adjective (LSJ s.v. II). Now the genitive object in the passage I am dealing with is τῶ τεθμίω: for each of the four documented transactions the last sentence of the report is “τῶ τεθμίω ϝίστωρ XY” (“the witness of the τεθμίον [is] XY”). In this passage τεθμίον can hardly be interpreted in any other way than as “private transaction". It is certainly not a law or a decree: the mere fact that witnesses are required rules this out, since any act of the assembly was done openly and was carefully documented (which, among other things, the present inscription itself shows clearly); on the other hand, witnesses are likely needed in an agreement between a city’s representatives and a private individual. The repeated incurring of obligations that the text reports is likely to have been done by way of contracts: the polis Orchomenus makes a contract with Nikareta (probably a loan agreement) through a magistrate or another authorized representative. This is, in ancient Greece and elsewhere, the common way in which such obligations come into being. So, in all probability, the word thesmós or its diminutive here refers to a contract, which by nature is not an authoritative act. This situation is not consistent with the view that this word presupposes a superior authority legislating and imposing norms on one or more subjects. It is also hard to see how a foreigner like Nikarete (in l. 44 we are told that she is from Thespiai) could be subject to the authority of the polis Orchomenos or, conversely, could enact a legal norm binding on a foreign polis. Finally, in the text we also encounter the word συνάλλαγμα with respect to the second- and thirdmentioned transactions (l. 65 and 69), a term that typically refers to contracts or other private transactions (see LSJ s.v.). All of this shows that, at least in the language of the Orchomenians of the 3rd century BCE, thesmós and its cognates lacked the connotation of an authority imposing something on others. Of course, one might ask whether this was also the case in the Archaic and Classical periods. Ostwald's evidence is taken, in fact, from Classical Greek literature. Before I analyze the relevant passages, however, I shall first deal with a second epigraphical text that contains an The root *wid- is present in the aorist ἰδεῖν, as it is in Latin videre. Thus it becomes apparent that the words derived from it that mean "to know" must originally have meant "to have seen so as to know from experience". This is consistent with the meaning "witness". It is however hard to tell whether the speakers of Classical Greek were still aware of the original derivation. 75
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instance of thesmós with the meaning "contract" and dates from the aforementioned period, precisely around 500 BCE. It is an inscription from Olympia which apparently contains rules that apply to the performance of certain official duties (Nomima 24; Schwyzer 411; Körner 39; IvO 4; see AG Q3, p. 154). At least the first six lines are about the θεοκόλος, an official who – judging by his name – dealt with shrines and religious rites. He is to enjoy security (l. 1: θάρρος) with respect to his person and property, which seems to mean that these things cannot be taken away from him by decree or by a court order; this, however, only applies to the portion of the property that is lawfully his (l.2): he is not to acquire anything more (l. 2-3). So the text deals entirely with property issues. It is therefore likely that the statement that, should the θεοκόλος indeed acquire something, he is to pay fifty drachmas κατὰ ϝέκαστον θεθτμόν should be interpreted to the effect that "for each transaction" by which a change of ownership has taken place in his favor he will have to pay a fine in the amount stated. As mentioned before, in ancient Greece as well as elsewhere, a contract was the usual way the ownership of money or an object would be transferred; consequently, it is also likely that the word θεθτμόν in this inscription refers to agreements between equals, who thus regulate their legal relationships by binding themselves to follow certain rules.
In literary texts thesmós is not only more common than in inscriptions but also has a wider range of uses and shades of meaning. The literary evidence from the Archaic and Classical period is examined by Ostwald in a separate chapter at the beginning of his aforementioned book (1969: 12-9). It is striking that the word thesmós seems to occur more frequently in poetry than in prose; moreover, in the latter it is applied almost exclusively to time-honored norms and texts. In Herodotus it refers regularly to inherited customs and laws: for instance, the writer stresses that the Athenian tyrant Peisistratus left the θέσμια of the Athenians untouched (1.59.6). Peisistratus lived almost a century before Herodotus; also, a contemporary reader encountering the expression “the θέσμια of the Athenians” will hardly have thought of anything other than the laws of Draco and Solon. Elsewhere, Herodotus speaks of the πάτριοι θεσμοί of the Persians, the interpretation of which was the domain of a particular group of men whom he calls βασιλήιοι δικασταί (3.31.3).
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Aside from that, prose authors often mention "divine θεσμοί" (Xen. Cyr. 1.6.6; Plat. Phaedr. 248c); the historian Duris of Samos once speaks of the θεσμοί that were enacted by the autocrat Demetrius of Phalerum (FGrH 76 F 10): καὶ ὁ τοῖς ἄλλοις τιθέμενος θεσμοὺς Δημήτριος καὶ τοὺς βίους τάττων ἀνομοθέτητον ἑαυτῷ τὸν βίον κατεσκεύαζεν. And Demetrios, who gave other people laws and structured their lives, made for himself a lawless life. In this passage, however, one might suspect the intent to avoid repeating the word νόμος or a derivative of it, as is presumably the case in a Platonic passage as well (Epist. 355c), where a law not yet enacted is untypically referred to by this word: καὶ ὁ μὲν ταῦτα ἀπεργαζόμενος θεσμὸς νόμος ἂν ὀρθῶς ὑμῖν εἴη κείμενος. And a statute that brought about these things would be a real/good law in force for you people. Here the author speaks to the Syracusans and advises them on what kind of laws they should enact. One would expect νόμος instead of θεσμός, but here there are probably stylistic reasons that make a repetition of the word νόμος seem inappropriate. The point of this sentence is probably that a statute of a certain nature (θεσμός: general word) should become law (νόμος: specific word with a precise institutional meaning). The use of thesmós is much more common in poetry, which shows that in the Classical period it must have sounded rather literary and pretentious to the ears of Greek speakers. Besides the meaning "written legal text", it is also used in more general ways; one suspects that it was little more than a higher-style alternative to nómos. Pindar, for one, uses thesmós frequently. While sometimes a personal agent who issues the regulations designated by this word is referred to or implied, 76 often the poet does not mention any such issuer. 77 In the latter cases it is difficult 76 E.g. Pind. Ol. 6.69; Nem. 10.33 (foundation of the Olympic Games by Heracles); Ol. 8.25ff. (the importance of Aegina goes back to a divine constitution); Ol. 13.40 (foundation of the Isthmian Games by Poseidon). 77 E.g. Pind. Ol. 7.88 (custom of praising Olympic winners in singing), cf. Ol. 13.29; Nem. 4.33 (good custom demanding that the poet stop himself digressing); Isth. 6.20 (custom of praising the two sons of Aeacus on the territory of Aegina).
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to distinguish thesmós from nómos with any accuracy, since the latter too can designate customs and traditions outside of a strictly legal context, an occurrence fairly common in the literature of the Classical period. Some evidence is found in Aeschylus as well. Particularly indicative of the sacrality that seems to resonate with thesmós is the following passage from the Agamemnon (1563-4): μίμνει δὲ μίμνοντος ἐν θρόνωι Διός παθεῖν τὸν ἔρξαντα· θέσμιον γάρ. It is a given, while Zeus remains in his throne, That the offender must suffer: for it is θέσμιον. The reference to the reign of Zeus, of course, suggests that the validity of the law in question is based on his supreme power; thus this is an example of thesmós referring to an authoritarian kind of legislation. 78 Above all, however, in the 5th century it almost always refers to old norms, customs or traditions, as well as to laws whose beginning no one among the living has seen but which have been handed down from a very early time, so that people view them with awe. Their originator, on the other hand, mostly seems to be relatively unimportant. In the passage just quoted the context makes clear that the originator is important, but this cannot be said of all passages from this time. In Suppl. 707-9 79 we encounter the θέσμια δίκης, the laws of Dike, the goddess of justice, among which is the duty to respect one’s parents: τό τ 'αὖ τεκόντων σέβας τρίτον τόδ 'ἐν θεσμίοις Δίκας γέγραπται μεγιστοτίμου. Awe of one’s parents is also written here [τόδ ': see below] as a third under the laws of Dike the most august. One may consider following West in putting a comma after σέβας and construing τόδ’ as a demonstrative referring back to it, or one can – the solution I have settled for here – think of a
Cf. Fränkel 1950 ad loc.: „Here we can see clearly that θεσμός means in the first place ‘an abiding order’, ‘a basic institution’.” 79 On the problems raised by this difficult and probably corrupt passage see Johansen 1980 ad loc. 78
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gesture of the chorus pointing to a specific symbolic spot on the stage. As the text is likely corrupt, we are probably only left with speculations anyway. At any rate, the expression ἐν θεσμίοις Δίκας γέγραπται is likely best interpreted not in connection with passages in which writing is used as a metaphor for the imprinting of things into memory or the like (so Johansen 1980) but rather as a reference to the custom, which was probably followed in most Greek poleis, as we know for sure it was in Athens, of keeping copies of all enacted legal texts in archives managed by certain magistrates (Sickinger 1999 and 2004). If one accepts this interpretation, the next question would be whether Dike in this picture is not to be viewed as the magistrate who conserves, as it were, the norms rather than their originator. That would, however, entail a usage of the genitive with thesmós for which I know no parallels, so that we will probably be safe to assume that Dike was actually the author of the norms at hand. Thus, in Aeschylus thesmoí are moral norms that have a supernatural being as their creator or at least as their keeper or enforcer, be it a personal god like Zeus or a more abstract deity like Dike. At any rate, Aeschylus uses the word in the same sense as Ostwald does to designate a norm imposed form above; its authoritarian character is evident. Now I shall investigate the usage found in the other tragedians. Sophocles wrote in a famous chorus of the Antigone of μεγάλοι θεσμοί, which seems to refer to the institution of marriage (797-800). And when in the following verse the chorus says: καὐτὸς θεσμῶν ἔξω φέρομαι τάδ 'ὁρῶν, Upon seeing this, I myself am ripped out of the θεσμοί. the reference is most likely to the morality that governs the behavior of people in public, a concept that in everyday language and in prose would probably be expressed by nómoi. The same applies to the θεσμοί which in the story preceding the plot of the Trachiniae the dying Nessus speaks to Deianeira as a ploy to destroy his enemy Heracles (682). To be sure, the use of nómoi in such a context seems unlikely even in prose; however, bold uses of words and transfers of meaning happen to be a part of the language of poetry, so that the content of one word can hardly be separated from that of the other. Be that as it may, θεσμοί here refers to externally set rules, which at first glance seems to support Ostwald’s thesis; in the Antigone passage, however, this was not the case: no external agent was mentioned who had imposed the rules at hand on someone else. One ought also to notice that even nómos can sometimes, albeit uncharacteristically, describe 52
rules arbitrarily set by another, as is the case in the Antigone itself, where the human νόμοι the heroine calls into question are basically rules that the tyrant Creon has issued by virtue of his own absolute power (e.g. 191). The complete works of Euripides too contain some useful evidence. First of all, in Euripides too the word is sometimes used in contexts that suggest a special holiness of the norm referred to. A case in point is the fragment in which the rule that one must receive strangers hospitably is linked to Zeus Hikesios (fr. 661 Kannicht, from Stheneboia: θεσμοὺς Ζῆνα θ’ ἱκέσιον σέβων). Just as often, however, the question of the origin of the norm is left unanswered and cannot even be answered by a reference to the general context. For instance, Medea once complains about the fact that the θεσμοί which relate in particular to swearing oaths seem to have changed, since Jason does not in the least care about the oath he once swore to her (Med. 494). 80 Where these θεσμοί come from we are not told, nor is it clear what the difference from nómos is, if there is any. In the fragmentary Erechtheus we read of the παλαιὰ θέσμια προγόνων (fr. 360.45); the genitive is however unlikely to mean that the ancestors had forced any rules on someone else: rather, they are both the issuers and the recipients of the norms. Of course, by way of cultural inheritance these norms become binding on the descendants as well, but this passage is hardly evidence that thesmoí are inherently rules imposed by a powerful person on others, but rather shows that they apply first of all to the ancestors themselves, that is, precisely the group of people who have adopted them. In one passage the word is more or less opposed to nómos, at least if one takes the wording at face value (Tro. 267): Hecuba asks Talthybios: ἀτὰρ τίς ὅδ 'ἦν νόμος ἢ τί θέσμιον, ὦ φίλος, Ἑλλάνων; What law or θέσμιον of the Greeks is this, friend? If we assume that this sentence must reflect a real semantic difference between the two words rather than mere poetic redundancy, it is enough to see in θέσμιον the more general concept, in νόμος the more specific one, that is, the technical term for an officially enacted statute of the polis. As scholars such as Ostwald himself have worked out, the latter meaning is prevalent in
80
See also the comment of Mastronarde 2002 ad loc. "Thesmion/thesmia is a rare and solemn poetic synonym of nomos", which accurately represents the thesis defended here.
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the 5th century. Therefore, it comes as no surprise that the poet Euripides, who composed his work towards the end of that century, would more often than not have used nómos in precisely this sense. In short, the sources provide little evidence for the view that the difference between nómos and thesmós lies in the fact that the former is democratic and the latter authoritarian. It is true that the literary evidence in particular shows that in the 5th century and later thesmós tended to be understood as a statute made especially venerable by its age or the special authority of its issuer, which, strictly speaking, raises it above the level of democratic discourse. Nevertheless, the use of the term is generally hardly different from most of the uses of nómos, and the difference is not so much of substantive nature but lies primarily in the linguistic register: thesmós is definitely more literary and is therefore used primarily in poetry. The only substantial difference observable is that from the fifth century onward nómos becomes the technical term to refer to statutes officially enacted by the polis, whereas thesmós generally has a less specific meaning; this, however, does not mean that the former word (especially in the plural) cannot be used as a generic term as well. Only if both words appear in the same sentence can we be sure that thesmós is to be understood in a quite general sense and nomos in a technical one. It bears stressing again that all of this only applies to texts from the 5th century or later. Earlier evidence for thesmós is not found in literary texts but in inscriptions; if we look at the epigraphic findings there is really no difference in use from nómos. There is only a different distribution in time (nómos is used to refer to written rules only from the 5th century onward) and possibly also in space (different dialect).
What consequences does the evidence described above have with respect to Ostwald's basic thesis? I do not think that it is contradicted by it. It is quite possible that already at the time of Cleisthenes the word thesmós actually had the connotation of "time-honored set of rules" (under which they probably understood the laws of Draco and Solon), which in principle could make it appear to be excluded from negotiation and democratic discourse, and this fact might have made it seem preferable to use another term that had a more democratic ring to it. Ostwald backs up his theory in a very accurate way and it is hard not to agree with his argument. While the hypothesis of the different connotations of thesmós and nómos appears quite plausible, we need to keep in mind that we only have literary sources from the 5th century or later, whose use of the 54
words in question may not reflect the language and ideas of the 6th century. Nevertheless, Ostwald thesis is, in this respect, as well-founded as it can be given the scarcity of the extant sources. It can however be safely ruled out that there was a substantial difference between the two terms, especially since the epigraphic evidence points to the contrary. In a purely legal sense they mean exactly the same. If the view presented in this book is correct, they both designate a public covenant by which all citizens of a polis participated in shaping its domestic law. However, as we shall see, the contractual nature of a rule can in practice be combined with coercion (p. 58), and it is conceivable that thesmós (at least in Athens) might have had such a connotation whereas nómos sounded more democratic. This fact, however, only affects the level of connotation, not that of denotation. This probable difference in connotation may have been caused by a difference in the process by which the norms were arrived at, but the choice of one word over the other is hardly determined by how the rules in question had become law. Thesmós need not mean anything more than “statute”. Furthermore, the idea generally held by modern scholars (Noussia-Fantuzzi 2010: 474 and 477, with further references) that the word’s etymology in and of itself implies imposition of legal rules by an authority 81 is based on a non sequitur. The fact that this noun comes from the verb títhemi does not necessarily indicate that its meaning entails imposition from above: it may just as well refer to the “laying down” of rules by means of a covenant. Etymology (especially from verbs with as broad a range of meanings as títhemi) is not a good way to assess precise meanings and cannot replace a close study of how the word at hand is actually used.
Formal and substantive characteristics of statutes and international treaties
If the so-called statutes were, as I argue, public covenants, they also likely obtained legal force through an oath of allegiance sworn by those who were to be bound by them. Since in the case of treaties such oaths are not always recorded, it need not surprise us if they are not always found in the inscriptions containing statutes either. What we must ask in this respect is twofold: first,
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Papakonstantinou (2008: 133-35) warns against overestimating the importance of etymology; nevertheless, he seems to accept without question the narrowing of the semantics of the root of tithemi to “imposition by one’s superior”.
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whether in treaties oaths are recorded more often than they are in statutes, and second, what ritual typically accompanies the enactment of the covenant and ensures that it attains binding force. However, the results of the inquiry into the first question are not very compelling since too few treaties are preserved from the archaic period for a statistical analysis to yield meaningful results: up to 500 BCE only 3 treaties are conserved; as far as the 5th century is concerned (in other words, at the boundary between the Archaic and the Classical period), we have only 33 of them (Wheeler 1984: 255). Rather, it is the second issue that must be discussed in detail: we need to investigate whether statutes and international treaties and their respective documents are in any way formally distinct from one another. To do so most effectively, let us return to Heuss’s classification (p. 21). The psephismatic kind of document is not found in treaties before the 5th century (Heuss 1934: 397). From an earlier period one only encounters copies of the “international” kind, which Swoboda (1890: 46ff.; cf. Quass 1971: 50-1) called „abgekürztes Dekret“ ("abbreviated decree"). For this reason alone, a conclusion like that drawn by Baltrusch (see above, p. 24) is problematic: the oath need not be mentioned because the text in question is only a document of the kind that merely gives information about the content of the covenant but not about the specific actions that have brought it to perfection – in other words, a document of the "international" type (Nomima 51; StV II 111.5). The fact that the text of this inscription explicitly mentions an oath (ορκος) does not contradict the view put forward here, quite the opposite: oath and agreement coincide in the language of this document, which, if anything, provides further evidence that these two things were actually inseparable in ancient Greece. Thus, if it is proven that in inscriptions containing treaties the oath is often not reported, it is almost to be expected that in the case of so-called statutes it should not normally be included in the text, either; also, that it would, conversely, sometimes appear in the document, as is the case with treaties. This is exactly what is found in legal inscriptions. The absence of a reference to an oath in statutory texts, therefore, by no means proves that these texts had not been sworn to, even less so if – just as in the case of treaties – there are some inscriptions that do tell us that an oath was involved. And this is indeed the case: precisely in a legal text that scholars consider the oldest surviving text of a statute from any Greek polis, the famous ban on the iteration of the kosmos office from the Cretan polis of Dreros (Nomima 81; see AG 2.3, p. 93ff.) at the end (l. 5) the inscription lists some "swearers" (that is, apparently, those whose oath ratified this legal text). 56
The Greek word ὀμότης (Doric ὀμότας) is found only rarely (Forssmann 2002: 161), but the compound ὁρκωμότης (meaning "juror") is met quite often. Furthermore, it sometimes happens that an epigraphic text of legal content which contains no explicit description of any oath ritual indirectly sheds light on the underlying oath. Particularly noteworthy is the so-called "Ligdamis Pact" (Nomima 19; see Maffi 1988), a statute that dates presumably from the second quarter of the 5th century BCE, found in Bodrum (the ancient Halicarnassus) on a marble column. This text concerns legal matters in the relationship between two poleis, Halicarnassus and Salmakis, and regulates disputes over land. For all the ambiguities that the text is otherwise fraught with, the last part of it, from l. 32 to the end, is highly instructive for the subject of the present study. To start with, it should be noted that a dispute has taken place in the literature over this inscription, notably on the question of whether it is a "pact" (Maffi) or a “statute” (Körner, Nomima). The text refers to itself as a νόμος (l. 32 and 34), which argues for classifying it as a "statute"; on the other hand, the fact that several poleis are affected seems to be an indication of its contractual nature. If the view presented in this book is correct, this dispute is, of course, moot. That this inscription is a contractual agreement is made clear by the fact that the legal rules it contains draw their authority from an oath. As I have already indicated, this oath is not documented directly, yet its casual mention in l. 44 does not leave room for interpretation: Anyone who does not break the rules written down on the inscription is entitled to sue pursuant to them – the rules, that is, "as they were sworn to", literally: "as they (generic subject) cut the sacrificial animals” (τα ορκια εταμον). The term ὅρκια τέμνειν is already found in Homer (Il. 3.94, 256) and refers to the sacrificial rites accompanying the oath and giving emphasis to the self-cursing entailed in it. The procedure through which this nómos came to perfection is no different from that which is known to be used in the establishment of international treaties. That the norms it spells out were taken very seriously by the two communities is evident from the severity of the sanctions transgressors face according to l. 35-41. So it is not surprising that the oath-taking was accompanied by a bloody sacrifice. 82
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Körner (p. 323 n. 29) doubts this, but in view of the otherwise well-known Greek practice, such a sacrifice is entirely to be expected (Faraone 1993).
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For the swearing of an oath as a means to ratify statutes we also have evidence from the Hellenistic period: for example, a decree from Pergamon (IvP 251; Dittenberger 1007, l. 27ff.; AG Q10, p. 169), probably from the late 3rd century BCE, establishes that all officials of the polis are to be called upon to swear an oath in order to seal a contract between the citizens of Pergamon and a family of priests to whom the polis promises that they will be allowed to hold the office of priests of Asclepius forever. In addition to this, reference shall be made to an inscription of similar content (IG XII [9], 191; see AG Q16, p. 186), which contains a contract between the city of Eretria and one Chairephanes, who is tasked with draining some marshland. The inscription tells us that all citizens were under a duty to swear the oath, and (if I correctly understand the relevant passages of this badly damaged text) declared that those who should refuse to swear stood to lose their civil rights (l. 42-44). Similar measures, aimed at "helping" the citizenry of a city-state to make the right decision with respect to taking an oath, are found in an Athenian inscription from the middle of the 5th century (IG I3, 40), which has also provided scholars with the word material needed to reconstruct the missing passages in the aforementioned Eretrian inscription. This Athenian inscription contains an international covenant (we might say a treaty): The Athenian Assembly decides to form an alliance with Chalcis and drafts a covenant which (like all treaties) must be sworn to by all participating cities, in this case by the entire citizenry. While on the Athenian side some officials are to "make sure" that every citizen swears the oath (l. 19-20), l. 32ff. contain measures aimed at making any citizen of Chalcis who should refuse to participate in the oath reconsider his stance, that is, loss of civil rights and confiscation of part of his property. Taken together, these three inscriptions provide strong evidence that, even in Classical times and later, private agreements, treaties or "statutes" (actually: public-law covenants) were basically the same thing and in most poleis distinct in name only. Much less must these institutions have been different from each other in the Archaic period, when – before the word nómos began to be used in inscriptions to refer to written norms of domestic law – even the terminology itself failed to distinguish between these two concepts. All this evidence casts doubt on the view entertained by Wolff (1970: 72-3) in response to Paoli (1933: 45-51), that the aforementioned passages in ancient authors in which the consensual nature of the law is expressed are to be dismissed as mere rhetoric or as influenced by sophistic ideas. He overlooks the importance of oaths for the validity of positive legal norms 58
in the ancient Greek city-states. Athens is by no means an exception to this principle, even though in the Classical period, as far as we know, no oath-taking was used to ratify specific pieces of legislation. But as far as the laws of Solon are concerned, there actually are sources stating that the sixth-century Athenians did swear allegiance to them. This is reported explicitly in the Athenaion Politeia (7.1): ἀναγράψαντες δὲ τοὺς νόμους εἰς τοὺς κύρβεις ἔστησαν ἐν τῆι στοᾶι τῆι βασιλείωι καὶ ὤμοσαν χρήσεσθαι πάντες. "They (the Athenians) wrote the laws on the κύρβεις, had them placed in the royal stoa and swore, all of them, that they would abide by them." (Transl. by Rosivach [2010]) Moreover, Herodotus' famous story about Solon (1.2.9; cf. Plut. Solon 25.1) points in the same direction when it states: ὁρκίοισι γὰρ μεγάλοισι κατείχοντο δέκα ἔτεα χρήσεσθαι νόμοισι τοὺς ἄν σφι Σόλων θῆται. "For they (the Athenians) were bound by powerful oaths to follow for ten years the laws that Solon would give them." (Ibid.) Although there seems to be a somewhat different approach here (the Athenians obviously do not swear to the text of any concrete law, but promise to abide by any law provided that it comes from Solon), one can see some similarity to the story as is told in the Ath. Pol. The version found in Herodotus is most likely a reflection of the oath-taking that appears to have been necessary to provide the legal texts written by Solon with binding force and on which in all probability the validity of Solon's legislation ultimately rested. The same things are also reported by the ancient traditions on the other famous lawgivers. It belongs to the traditional lore of the vitae of the great lawgivers that, confronted with the problem of how to give permanence and immutability to their work, 83 they all solved it in much the same way: they made those in power and the entire citizenry swear to remain faithful to their laws and never modify them without their consent; after that they left their city. Solon did so, according to the tradition, for ten years; Lycurgus is reported to have demanded that the Spartans
83
In fact, it was a concern to early Greek legislation that the laws should not be subject to change (Camassa 1996: 571-576).
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swear an oath not to change anything in his laws until he returned from another visit to the Delphic oracle, and subsequently to have left his city for good, so that the Spartans never had an opportunity to make any changes and were stuck with his laws forever (Plut. Lyc. 29.1-4; see Hölkeskamp 1999: 49-50; Szegedy-Maszak 1978: 206-9; McGlew 1993: 107-8). As well, I can see no real contradiction between the three standard models with which the Greeks tried to provide an explanation of the nature and origin of the laws: as a gift of the gods, as the insight of wise men, and as a binding agreement among the citizens of the polis. Wolff in this respect subscribes to Lesky’s claim (1969: 18) that these three explanatory models are incompatible. The gods, however, can very well make use of inspiration, which they gift to particularly deserving and wise people; for these God-given insights to become law, then, it is required that the citizens agree to abide by them (cf. Dem. 25.15-6). In the literature on archaic statutes (e.g. Camassa 1994: 103) one quite often finds the expression “oath of allegiance” (or its equivalent in whatever language the scholar at hand is writing in) to refer to an oath sworn by the citizens or the magistrates in order to ratify one or another legal text. Although this is never explicitly stated, this usage seems to imply that when these people swear an oath in connection with a statute, they are promising obedience to it, but the statute is valid regardless of the oath. To this one might object that treaties too appear to have come to perfection through the oath alone, a view that scholars rarely, if ever, dispute and which also seems to be backed up by our sources (p. 17ff.). If this is so, however, the commonly held view would entail that the oaths mentioned by ancient authors or on inscriptions must fall into two categories: in some cases, the oath would be a means to bring a covenant to perfection; in others, it would not be necessary in order to make a normative text legally binding but would simply have the function of strengthening the obedience of those who were addressed by it. Consequently, one would have to construct a contrast between perfection oaths and oaths of allegiance. This raises the question of whether such a distinction is plausible at all. This question must be answered negatively: nothing in the extant sources indicates that the Greeks saw any difference between these two kinds of oaths. The identity of laws and treaties in Archaic Greece is thus confirmed by several independent observations. Not only are they never distinguished from each other in the vocabulary of public institutions before the 5th century – nor is there any hint they were 60
conceptually separated in archaic times –, but they also share the same form and rituals with respect to how they come into being. That these two are not the only similarities in terms of form and content between the two legal institutions is further demonstrated by a study of individual texts from Archaic Greece (AG 2., p. 49ff.).
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THE LAWGIVERS AS ARBITRATORS 84
Arbitration can be traced all the way back to the Homeric poems (Roebuck 2001: 51-88). According to Aristotle (Rhet. 1.13 1374b 19-22), the difference between a judge and an arbitrator is that while the former is bound to follow the (written) law, the latter gives his judgment on the basis of equity. This may hold good for Classical Greece, but since written statutes, like writing itself, did not always exist in Greece, one may wonder how the rulings of judges could have been based on written statutes when these were non-existent or rare. Most likely, archaic judges ruled according to their own idea of justice and fairness, which blurs the distinction that Aristotle is making. Normally, the distinction between a court and an arbitrator is seen in the fact that the latter derives his authority from the consent of both parties, whereas a judge, although he may be unable to proceed without the plaintiff’s action, can make binding decisions regardless of whether or not the defendant has promised to accept his verdict beforehand (Tod 1913; Roebuck 2001). If we look closely at the situation in Archaic Greece, however, this distinction seems just as problematic as the aforementioned one: in many of the cases that are represented in works of literature, dispute resolution is predicated on both litigants’ willingness to submit to a third person’s ruling. 85 More generally, Archaic Greek poleis seem to have been effectively unable to create strong state structures capable of enforcing respect for the rule of law (Foxall 1997: 11322; Anderson 2005: 177-80). Whenever no settlement is arrived at, the conflict is fought out by the parties themselves, who use their own strength and that of their followers, as is the case in the last book of the Odyssey. The concept of a wise “man of the middle” perfectly fits into Aristotle’s view of the middle ground in ethics, which in the realm of politics translates into the figure of the good lawgiver as a man of middle social standing and comparatively modest means, a man who thus occupies, as it were, the middle ground between the extremes of the rich aristocracy and the poor commoners (Arist. Pol. 1296a 18-21; 1297a 5-6). 86 According to the philosopher, this makes him
84 For this chapter I must give credit to Dr. M. Steinrück, who in my oral doctoral exam questioned the applicability of my contract definition to Solon’s laws. This chapter is a longer response to his objection, which I hope he will find more satisfactory than the one I gave him orally. 85 See e.g. Nestor’s failed attempt to mediate between Achilles and Agamemnon in Ilias I. Cf. Hawke 2011: 55-62. 86 Contra Nomima p. 4, where it is stated that all archaic lawgivers were aristocrats.
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especially suitable for the task of devising laws that best answer the concerns of the polis as a whole. Consequently, Aristotle provides what is probably the oldest extant expression of the notion that the legendary lawgivers of archaic Greece, such as Solon and Lycurgus, were, in fact, diallaktai, that is, mediators or arbitrators. 87 If we accept this view, we may want to think about its consequences: if the archaic lawgivers were fundamentally arbitrators, it follows that their statutes must have been the awards they gave and, as such, must show characteristics that make them quite different from statutes in the modern sense. This is consistent with the thesis I argue in this book in so far as arbitration, just like negotiation, which must be the process leading to covenants in the absence of an arbitral award, is a means of resolving conflicts. However, to our mind an award is something quite different from a covenant, and it certainly does not fit the definition of contract proposed by Savigny since the award an arbitrator imposes on the parties involved does not need their consent to be valid. In this chapter I outline what we know about archaic arbitration, and in so doing I intend to demonstrate that this distinction was likely by no means crucial to the archaic Greeks. I suggest that we can make some inferences about archaic arbitration from the information we have about arbitrators’ awards in Classical and Hellenistic times, for which we have much more evidence. Since ancient literary authors do not dwell on procedural matters, which they assumed were known to their readers, inscriptions are our main source for such issues. Inscriptional texts from Archaic Greece, however, are typically short and provide little in the way of procedural details. Therefore, we must turn to inscriptions from later times to get a glimpse of what could have happened in the archaic era. In Hellenistic international arbitration, which we know best due to the amount of evidence available, the parties first made a contract, which in the literature is called compromissum, whereby they both bound themselves to abide by the future award. The compromissum laid down the conditions under which the whole process was to take place and the final decision was to be arrived at. It was important to limit the discretional power of the tribunal to precisely the question at hand. It bears pointing out at the outset one major difference between archaic and Hellenistic arbitrations: the former were performed, as far as is known, by a single individual, whereas the latter were generally assigned to an entire tribunal. This reflects a general pattern in the evolution from archaic to Classical and Hellenistic politics, when one-man rule in general was shunned 87
For Solon as an arbitrator see also the sources mentioned in Roebuck 2001: 94-6.
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and, rather than appointing individual tyrants, lawgivers or oikistai, the Greek poleis preferred to appoint entire panels to perform the same tasks that in the archaic era had been assigned to especially prestigious men (Luraghi 2013: 138 with n. 12; cf. Ager p. 11-12). Quite possibly, the assignment of extraordinary powers to an individual had too often led to “tyranny” in the bad sense of the word and thus taught the Greek communities that power ought to be divided rather than concentrated.
Private arbitration
Private arbitration apparently worked more or less along the same lines as its international counterpart. Not surprisingly, the extant sources on this topic are mainly Athenian. In this city, by the fourth century arbitration had been institutionalized as a mandatory part of the legal process in what today we call private law (Todd 1993: 123-25). Whenever a dispute was worth more than 10 drachmae, the litigants had to seek out the counsel of a diaitetes, a word commonly translated as “arbitrator”. This person had to propose a settlement, to which the parties might or might not agree; if this attempt at bringing about a settlement failed, the parties where allowed to take the dispute to court. Alongside this formalized procedure, however, there also existed extra-procedural arbitration, which had always been there and did not at any point become obsolete. A statutory basis for the latter kind of arbitration is not known and was certainly unnecessary (pace Roebuck 2001: 352-53): 88 no one could forbid people who had a dispute with each other from appointing a trusted person or group to rule on the matter at hand, bind themselves contractually to abide by their award and have them swear to fulfill the duty of an
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This is not to say that there was no statutory norm referring to private arbitration: there must have been rules regarding the relationship between awards by private arbitrators and the institutionalized legal system, for which Roebuck provides a good deal of evidence. It was likely felt to be necessary that statutes contain some indications as to what kinds of decisions were binding and could not be appealed. Cf. Avilés 2012 on a similar problem regarding the relationship between private contracts and laws. There I argue, as I do here, that there was no individual statute on this subject but most likely different statutes that contained clauses dealing with the issue at hand; moreover, contracts were valid independently of any statutory norm. If this is correct, then the same must apply to private arbitration since its validity was also based on a contract and, just like contracts, it had existed since long before the introduction of written legislation.
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arbitrator to the best of their ability. 89 On the contrary, arbitration was deeply rooted in the traditions of all Greek communities from time immemorial, so that its existence was probably regarded as an unwritten law. At any rate, in the fourth century non-statutory arbitration is well attested. An instance of it is found in Isaeus (2.29-32). Especially significant here is the presence of two oaths: firstly, the designated arbitrators swear to give an award corresponding to the expectations, that is, a useful one (τὰ συμφέροντα γνώσεσθαι); then, after making a decision, they “force” the parties to swear an oath themselves to the effect that they will do each other only good in the future. It is not too far-fetched to compare this to what appears to have often happened in international cases: Not only do the arbitrators swear an oath prior to the trial, but after the award is given the parties are called upon to bind themselves by oath to abide by it (cf. Ager 109, 77ff.).
Archaic statutes
As we have seen, archaic statutes were likely themselves means of dispute resolution. From the evidence at our disposal it seems likely that while the nature of statutory law and procedures for the enactment of written laws did change during the Classical era, that of arbitration did not but remained the same into the Hellenistic era and beyond (Tod 1913: 175). Therefore, it is legitimate to use these later epigraphical sources to reconstruct how arbitration worked in archaic times. It is possible to go a step further by taking into account the broader context within which arbitration took place. Arbitration is only one of the means by which the Greek attempted to solve conflicts. Firstly, the parties to a dispute can try to solve it by way of negotiation: they discuss the issue among themselves without recourse to any outside counsel. If negotiation fails to bring about a solution agreeable to both parties, a mediator can be sought out to propose a solution. Mediators do not pass binding judgments: they only make proposals which may or may not be accepted by the parties. Arbitration only takes place when the third party called upon to decide
I am not sure how the plural τοὺς νόους in Dem. 40.40 proves that the reference must be to written rather than customary law, as Roebuck claims. Be that as it may, it is too imprecise a reference to enable us to draw any conclusions concerning the actual content of the statutes in question. 89
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the dispute has the power of a judge, that is, the award he gives at the end of the procedure is legally binding on the litigants. The binding character of the award results from the parties’ promise to abide by whatever decision the arbitrator will make. This fact is important in that it shows arbitration to be, in fact, just a particular version of a more general process of dispute resolution ultimately based on the consensus of the parties. At some point in the process both parties must make a promise (most likely by swearing an oath) to abide either by rules already known to them or by the rules that the third party, the arbitrator, will establish. In this way they basically accept to give up part of their freedom of action. What makes them willing to do so is the fact that a violent conflict would be more detrimental than any loss of assets or limitation of one’s freedom the agreement may bring about. In cases where the parties willfully agree to submit to the decision of a third person without yet knowing what it will be, 90 this willingness has a twofold explanation: first, the destructive potential of a violent conflict must be correspondingly high; second, the arbitrator is regarded by both parties as trustworthy, so that there is no concern that he might disadvantage either one of them beyond reason. This trustworthiness, in turn, has a twofold basis: it lies in the person of the prospective arbitrator himself, who, as a rule, is a renowned individual generally known to be fair-minded and endowed with outstanding practical wisdom; but it is also secured by means of an oath that he is to swear to the effect that he will give his award to the best of his ability and according to his sense of justice, without unduly favoring either one of the litigants, let alone accepting bribes.
The lawgivers
Those archaic Greek inscriptions that contain statutory norms do not report the names of the people who devised, wrote, or enacted them. Archaic inscriptions are generally very laconic, but whenever they do contain more than the bare text of the law and tell us something about how it came into being, we are simply told that “the polis decided” or, at most, we are given a list of the
90
Rosivach 2010 does not believe that Athenian aristocrats in the sixth century BCE would really have sworn to obey whatever laws Solon would give them without knowing them in advance. But this is exactly what happens in the case of disputes settled by arbitration, and arbitration unquestionably did occur at all times in ancient Greece.
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tribes or offices involved in legislation. The actual names of the drafters of the statute in question are never found on the stone. In striking contrast to this situation, in Classical sources the archaic legislations of the most important cities are often attributed to a specific author, who not only has a name but also a life history, a family background and the like. The so-called Spartan constitution is thus linked to Lycurgus, the Athenian one to Draco and Solon; several other cities have their traditional archaic lawgivers as well (Zaleukos of Lokroi, Charondas of Katane, etc.; on the whole see Lewis 2007). To explain this discrepancy, I suggest that most archaic statutes were the product of negotiation between the parties, presumably sometimes assisted by a mediator. From time to time, however, it was necessary to appoint an arbitrator to solve an especially difficult and dangerous conflict. In this case, the parties had to bind themselves by a promise – probably in form of an oath – beforehand to abide by whatever decision he might make, trusting him to bring about a resolution that would not unduly disadvantage either of them. Some of these arbitrators likely became so famous that they turned into a sort of crystallization point around which more and more of the laws and customs of their polis were located: people started to attribute to the one great lawgiver figure of their city all or most of the laws that had come down to them from the distant past (in a largely oral culture like the archaic and Classical Greek one, “distant” probably means no more than 2 generations or 50-60 years earlier: distant is whatever reaches so far back into the past that none of those who are currently alive have seen it or can any longer talk to anyone who has 91). This process is probably similar to what happened with “Homer”, to whom in the course of antiquity was attributed just about every epic poem that had been handed down from the archaic era. 92 When a name had become the symbol for excellence in a particular skill, be it epic poetry or the art of fair conflict resolution, there was apparently a tendency to subsume under it everything that a given society had achieved in that particular cultural field. So it is a likely assumption that the scope of these men’s actual legislation was, in fact, much smaller than the
91 I base this hypothesis on the observation that it was apparently possible for an Attic orator in the 350s to attribute to Solon a law that must have been enacted around 410 BCE: in the speech Against Leptines (Dem. 20.89-90) Solon is credited with the nomothesia legislation that we know was devised toward the end of the Peloponnesian war! 92 See DNP s.v. Homeros, 688: a great many works of epic poetry were attributed to Homer, against which the grammarians claimed, based on considerations of literary quality, that only the Iliad and the Odyssey had actually been written by him.
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traditions surrounding them would have it. 93 If this is correct, their intervention was likely only resorted to as an exception to the rule, the rule being direct negotiation between the conflicting parties. This hypothesis may help explain why no known archaic inscription contains the name of an individual lawgiver. Interestingly, however, the names of the individual arbitrators are not usually reported in the Hellenistic inscriptions either (see Ager p. 11-12). The obvious alternative explanation is that archaic inscriptions do not contain much besides the legal norms themselves, let alone the procedure that led to the enactment of the legal text itself. Be that as it may, since arbitration in the Greek world is embedded in a wider context of strategies of dispute resolution of which it is only a part, it seems likely to conclude that the usual way of attaining agreements as solutions to conflicts in the political sphere was through negotiation or mediation. So even if all of the extant statutes from archaic times were devised not by an individual lawgiver such as Solon or Zaleukos but by those directly interested in them, this does not rule out the possibility that some of the lost ones were actually arbitrators’ awards. In other words, the apparent contradiction between the importance the tradition ascribes to individuals in the making of the archaic laws and the absence of proper names in the actual inscriptions can be explained by assuming that, on one hand, the importance of the famous lawgivers’ legislation was inflated through a process for which we have striking parallels in other fields of Greek culture and that, on the other hand, in a few cases an outstanding individual did play a major role in devising laws for archaic communities. These findings support my thesis that to the mind of the archaic Greeks a statute was just another kind of contract. If this is correct, it is no stretch to imagine that the same set of procedures that led to the stipulation of treaties between poleis also led to the enactment of laws inside one polis. The parties whose conflict a statute was meant to solve would consequently have several possible ways of arriving at it: the first and foremost was likely negotiation; in more difficult cases, however, in which they could not reach an agreement all by themselves, they may have resorted to mediation and, if mediation in turn failed to resolve the conflict to the satisfaction of both parties, to arbitration. My hypothesis is that the legendary lawgivers were precisely such arbitrators, chosen by the conflicting parties within a given polis to solve conflicts among the governing elite. The laws they gave to their city were their awards and correspond, in this view, to the treaties that resulted from the process of international arbitration in later times. 93
The same conclusion (with respect to Solon) is arrived at by Rosivach (2010: 235-6).
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In this essay I have been arguing for the fundamentally contractual nature of archaic Greek laws. The picture presented in this chapter might however cause some doubts about the applicability of the concept of “contract” to cases where an arbitrator imposes his award on the parties: this looks more like an instance of authoritarian lawgiving than an agreement by those involved to follow certain rules. To this possible objection I would respond that while the definition strictly speaking does not apply in such cases, the similarity between the process that led to an arbitrator’s award and that which brought about what we call legislation warrants regarding both as subsets of the same class of phenomena. What matters most for our understanding of what happened in archaic Greece is the fact that legal texts, whether we classify them as treaties, statutes or domestic covenants, were the result of a process of dispute resolution between groups of people (either entire poleis or factions within them). Ascribing contractual nature to them seems justified in so far as that process entailed a promise, given by all participants at some point, to abide by some set of rules. It appears, then, that all statutes of archaic times came into being through a process involving, at one point or another, a promise by all those involved to obey the rules laid down in the statute. Statutes were “treaties of sort” (Rosivach 2010: 235) among the powerful elites governing a given Greek polis – in most cases likely between factions competing for preeminence and often, one may suppose, on the verge of armed conflict – and, just as is the case with international treaties, the promises on which they were based could be given either at the end of the process, when the norms arrived at were known, or some time earlier, when it had become clear that the parties would not be able to reach an agreement all by themselves and decided to turn the matter over to a trusted individual. It is not to be excluded, by the way, that in the latter situation an oath was taken not only at the time of the appointment of an arbitrator but also at the end, when the rules he had devised were known to all. In this case, the oath was not strictly necessary, since the promise it conveyed had already been made, but served merely to reinforce it psychologically. This need not strike anyone as strange: many elements of solemn oaths in Greek culture can only be explained as means of searing the sanctity and fearsomeness of the oath into the swearers’ minds (Faraone 1993; cf. p. 30). The main aspect of the procedure, however, is the requirement that at some point all those who are addressed by the legal text must promise to abide by its rules. No lawgiver had the power to impose laws all by himself (and whenever someone was in a position to impose 69
rules of behavior on others, he probably did not do so through legislation but through some sort of executive order). The fact that all archaic legal texts we know of describe themselves as a decision of the community, mostly of the polis, 94 never of an individual, and that they bind those in power but hardly ever address anybody who lacks political rights (Avilés 2011), is evidence that they were based on the consensus of those they addressed. The appointment of an individual endowed with extraordinary powers and charged with the task of devising rules binding on those who had appointed him introduced an element of authoritarianism, but did not change the basic consensual structure of the process. If archaic arbitral procedures entailed anything similar to the Hellenistic compromissum, the arbitrator’s power was narrowly encompassed. It seems more likely, however, that the compromissum itself developed from the archaic to the Hellenistic era precisely to prevent arbitrators from acquiring too much power. The Herodotean story of Deioces (1.96-100) seems to argue for the latter view (Gagarin 1986: 20-24; Hawke 2011: 184-85): it describes a popular arbitrator who used his popularity to usurp political power and finally become king of the Medes. If, as seems likely, this story reflects Greek ideas and concerns rather than actual Middle Eastern history, it is a plausible inference that in Greece too arbitrators could become tyrants thanks to the popular support they gained through their activity. Certainly, consensually surrendering even just a part of one’s power to another, however wise and impartial he may seem, is a dangerous thing to do, leading as it does to the concentration of power in a single individual’s hands. Nevertheless, formally speaking the process was a consensual one and legislation was, in one way or another, a communal enterprise that required a solemn promise on the part of all those concerned to submit to the rules that were arrived at through a more or less formalized process of dispute resolution.
Social aspects of arbitration and legislation
Among the traditional archaic lawgivers, Solon of Athens is the only one about whom we have any substantial evidence (Blok/Lardinois 2006; Noussia-Fantuzzi 2010). Rosivach (2010: 23536) argues that the laws that Solon wrote and which the Athenians consequently swore to abide 94
On the meaning of this term in the oldest inscriptions see Veneciano 2010.
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by were “treaties of sorts”, made by rival aristocratic parties to regulate their competing struggles for power in such a way as not to jeopardize the survival of the Athenian polis. This thesis is consistent the one that Hawke (2011) defends with respect to all those Greek poleis that enacted laws in the Archaic period. If this view is correct, whenever the Athenians of the fifth and fourth century spoke of “the laws of Solon”, they were referring precisely to the covenant that constituted the result of the arbitration process described above with Solon as the appointed umpire, a covenant that was then handed down from generation to generation until it eventually became the thesmoi of olden times. A fair amount of literature on Greek law has been devoted to determining the social significance of lawmaking in archaic Greece. While most scholars have assumed that legislation was aimed at solving conflicts among the citizens of a given polis, conflicts that could endanger its very existence, Gagarin (2008: 90-91) has argued that the increase of legal texts in the archaic period was due not so much to political or social tensions but to the greater complexity of legal situations that ensued from the demographical growth of Greek cities. It is difficult, however, to account for a statute like Draco’s law on homicide in this way (cf. Thür 2010: 334). Solon’s reforms, which consisted at least in part in the devising of new laws, are also alleged by the ancient sources to have been a response to the conflict between the aristocracy and the people, and certain passages in the corpus of poems attributed to Solon seem to confirm this notion. As a whole, the story of Athenian politics is one of severe quarrels and fights among the citizens, and it seems unlikely that this was only an Athenian phenomenon. Some scholars, for instance Z. Papakonstantinou (2008), have extended this scenario to Greece as a whole, arguing that Greek statutory law was the result of social tensions between those in power and the common people. 95 This view, however, has not remained unchallenged, and a good case can be made that legislation and the work of the lawgivers actually only reflects the intra-elite competition for power, which it was aimed at channeling (see in particular Hawke 2011). Typically, the acquisition of a third party as mediator or arbitrator is resorted to when the parties fail to reach an agreement by themselves. In interstate disputes, while a superior power may force the parties to seek out arbitration, there is no way for the award to be valid if not as a result of the agreement of the parties themselves (Tod 1913: 74-5). In some cases, the basis for the arbitration was a treaty between the quarreling cities. The question is now whether, just as 95
See the doxographies in Gagarin 2008: 73-4 and 87, to which add Youni 2011: 263-64.
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was the case with private and interstate affairs, in matters regarding an entire polis it could also be the case that an arbitrator was chosen by the citizens to resolve conflicts by devising laws, that is, settlements aimed at providing a definitive solution to conflicts that could otherwise seriously damage the political community in question. At least with respect to Solon, this situation is exactly what the ancient sources point to. To be sure, the authenticity of the tradition about Solon can be called into question. It can hardly be denied that the accounts of his life contain many legendary elements common to the stories of all archaic lawgivers (Szegedy-Maszak 1978). On the other hand, Solon is the only one of the legendary lawgivers of archaic Greece to have left a written record of himself and his work. 96 This is fairly consistent with what we know about arbitration in Classical times. The main assumption I am making here is that Greek public and private law worked along the same lines. A formal, sworn contract was used only to settle disputes. Its goal was to preclude any further debate or reassessment of the situation that the closing procedure had established as final. With respect to Attic private law, this has been worked out by Carawan (2007a: 75-7; cf. Carawan 2006 and 2007b). It may be worthwhile quoting the following passage extensively (Carawan 2007a: 75): “In such dealings of corporate entities it appears that contracts were bound by oath only or especially in diallagai, settlements of prior claims. It may seem odd to speak of these as contracts, but that is because we naturally think of contracts as promissory obligations for the future and settlements as dealing with the past. The Athenians did not make that distinction (...). In both types of agreement the decisive commitment takes the form of acknowledging the disposition of assets with certain conditions.” Some of the archaic legal inscriptions containing either treaties or statutes are explicit on the final character of their regulations, too: expressions like “for the next 50/100 years” 97 clearly aim to bar any further negotiation.
96 97
On the question of its authenticity see Lardinos 2006; Stehle 2006; Noussia-Fantuzzi 2010: 45-55. See for instance Nomima 51 and 52; compare the eternity clause in IvP 251, l. 40, 42.
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STATUTES IN CLASSICAL GREECE
In the few individual statutes from Classical Athens that are conserved on inscriptions we do not find oaths of allegiance. In Athens, while the psephismatic style of inscriptions (p. 21) reigns unchallenged, the authors of the inscriptions are much more concerned with noting the date and circumstances of the decision than any oath that might have been sworn. In so doing, however, the Attic state does not deviate in the least from the development attested everywhere else in the course of the 5th century BCE. Legal documents in psephismatic form abound, for instance, on Crete (Nomima 12, A 1-2, B 1-2; Nomima 16, 1; 84, 1 and 18; 85, 16-end). One might compare Nomima 96, B 26-7, a law enacted in Athens at the end of which, after the substantive rules have been expounded, mention is made of the rule-making authority (ταυτα εδοξε τωι δημωι) and the date of the enactment (επι Φιλοκρατου αρχοντος). The character of the text as a decree seems therefore to be privileged over its contractual nature. Nevertheless, the Athenians still commonly conceptualized obedience to the laws of their city as the result of a promise made by every citizen (cf. Plat. Crit. 51e). This fact provides, in my opinion, sufficient grounds to challenge the commonly held view that the idea that the law had a contractual nature was merely a product of philosophical speculation or even, as Wolff (1970: 72-3) claims, stemmed from an attempt to justify the complete subjugation of the individual under legal norms that were actually arbitrary decisions by a tyrannical majority. This view overlooks the fact that in all Greek poleis the oath was an essential part of the enactment of statute law, either in the form of a separate ratification of each statute or as a general pledge to obey all legitimate laws that happened to be in force or would be enacted during the citizen’s life. Nowhere can I find a law whose validity is not, in one way or another, based on the oath of all those involved, that is, all those citizens who were the recipients of the legal norms that were established by it. Rather, the view held by the Sophists that nómos was an agreement among all the citizens of a given polis was not created out of thin air but was based on the political experience of all Greeks – thus, consequently, of the Sophists themselves. And this is, in turn, the reason why this notion was readily accepted by other authors as well, even by those who, like Plato, can hardly be suspected to have been sympathizers of the Sophists. The few extant legal inscriptions from Athens deal almost exclusively with economic regulations or religious matters. Nevertheless, it can be assumed that the appearances are 73
deceiving: the vast majority of laws were written on wood and were thus not preserved (Sickinger 2004: 100-1). There were probably archives where copies of all written laws were kept, and the existence of archives is not in doubt, since it is known that in the Metroon was used to house such texts (Sickinger 2004: 101-2; cf. Sickinger 1999). It is also known that the parties to a lawsuit had to find the statutes relevant to their case all by themselves (or have their ghostwriters do that for them). Finding legal texts was probably not as difficult as is commonly supposed (Sickinger 2004: 93-4). It should be noted that in fourth-century Athens a plethora of laws existed and that they were reviewed annually and adjusted if necessary (see. e.g. Quass 1971: 68-72). Apparently, in the 5th century, at least in some cities, legislation was no longer done only on occasion but was firmly integrated into the life of the community. An instance of this is Gortyn, a Cretan city from which a great volume of legal texts is extant. This fact could explain why oaths ratifying individual laws seem to become rarer, while the importance of citizens’ oaths (which are only attested from the 5th century BCE on) increases with time.
The citizen’s oaths
This expression designates those oaths by which the young adults (epheboi) upon attaining full citizenship promised to be loyal to their city (ephebic oath) or, more generally, the oaths whereby new citizens, born or naturalized, entered into a contract with the state they were joining (cf. above, p. 13 and Plescia 1970: 15-24). Oaths of this kind are attested in inscriptions from cities such as Chios (Dittenberger 360; Schwyzer 173), Itanos on Crete (Dittenberger 526; SEG 13 [1956], n. 464) and Dreros in southern Italy (Dittenberger 527; Schwyzer 193; GDI 4952; Buck 120; StV III 584). The Athenian ephebic oath can be reconstructed from one inscription (Tod 204) as well as from literary sources (Lyc. 76-7; Dem. 59.89; Stob. Florilegium 43.48; Pollux 8.105; cf. Plat. Crit. 51d-e). Finally, Xenophon (Mem. 4.4.16) tells his readers about oaths that were commonly sworn in all Greek cities: the citizens promised to live together in unity, respect the legitimate form of government of their polis and obey the laws. In the texts of such oaths one finds mainly pledges of loyalty and the promise to contribute to the power and glory of the city. The person who speaks them promises that he will fight 74
bravely, never join a conspiracy against the established order but, on the contrary, report any such conspiracy to the authorities, and that he will never betray any of his fellow citizens provided they are themselves law-abiding. And sometimes explicit reference is made to the obedience to the laws that every citizen is expected to display. In the aforementioned Athenian inscription, which contains two oath texts, the ὅρκος ἐφήβων πάτριος ("traditional ephebic oath") and the oath that the Athenians allegedly swore before the battle of Plataea, in l. 12-3 there is mention of obedience to the θεσμοί, both the existing ones and those that the Athenian will adopt "in a reasonable manner" (εμφρονως). The word θεσμοί certainly refers to statutes. Draco and Solon already used it in this sense; also, the "obedience" can more easily be directed at a statute than an "institution" (another possible interpretation of the word θεσμός), unless one takes the latter to refer to a group of people, which is however already covered by the previous words about the obedience due to rulers and superiors. The fact that in connection with θεσμός we find the verb ἱδρύω (“to found”), which is mostly related to buildings and in the present context is certainly meant to convey the idea of a special stability, is probably best explained by the word thesmós itself, whose etymology as “foundation” must have been transparent to any speaker of ancient Greek. At Chios the citizens promise to judge "according to the laws" (l. 36); at Itanos obedience to the laws is discussed in more detail (l. 30-36). In the inscription from Dreroi, however, it remains unmentioned. All of the aforementioned inscriptions date from the 4th century or later. However, it is possible that they essentially reflect the texts of much older oaths, as they themselves often claim they do. At Athens, the general oath of allegiance to the laws is already attested in the 4th century and, although it is difficult to determine how old it already was at that point, we can make educated guesses: its use is already widespread and taken for granted, and the probable age of the ephebes’ inscription, whose language sounds rather archaic, suggests that it may well be as old as the 6th century (Kellogg 2008). Another indication of the age of citizenship oaths lies the fact that the so-called Dirae Teiae (Nomima 104), which date from the first half of the 5th century, are very probably themselves such an oath (Herrmann 1981: 13). To be sure, the text at first sight does not look like an oath, for it speaks of the offenders who shall be cursed in the third person, whereas in an oath one (conditionally) curses oneself in the first person. Nevertheless, when interpreting this text we must take into account a similar and only slightly younger inscription from the same city 75
(Nomima 105), which was discovered only in 1976 and was published by Herrmann (1981). Its phrasing provides clues about the correct interpretation of the Dirae: alongside passages in the third person there also appear some in the first (10-24). In the former, as is the case in the Dirae, anyone who commits the actions described is threatened with divine punishment; in the latter the speaker promises to refrain from doing certain things. It is a fair assumption that both kinds of expressions are completely identical in terms of content: if a number of people are to swear a common oath, this can be phrased either as a curse against those who should do certain things (3rd person) or as a promise in the 1st person not to do them. Swearing an oath consists, as we have seen, of both a promise and an act of self-cursing – implicit or explicit – and each of the two phrasings lays emphasis on either one of these aspects. If those who pronounce the cursing speak in the third person of “those who shall violate their oath”, we have to interpret it as “those among us”. That this interpretation is not too far-fetched is shown by the comparison with a similar phrasing in the oath of the Therans (Nomima 41, 46ff.; cf. p. 23). Such general oaths of allegiance differ from other similar oaths with which I have dealt in this book in that they commit the swearers to obedience not to one, but to all existing statutes; furthermore, they contain a kind of pre-emptive promise to abide by any future legislation, regardless of whether it is already being discussed or not. In this way, however, the individual legal texts end up becoming independent of the oath and the declaration of intent of the individual citizens. Therefore, when the ephebic or citizen’s oath is introduced, every new law is automatically covered by it; consequently, its validity is no longer predicated on a declaration of intent given by all those involved but is now a given. This new way of devising and enacting legislation likely brought about a substantial improvement in those poleis that were characterized by particularly complex institutions or political situations or both and, consequently, had a need for a comparatively high number of written legal rules. To be sure, even when an oath is not formally necessary, it additionally acts on the psyche of the person who speaks it and makes the idea of divine punishment of perjurers more present to his mind, thus reinforcing whatever other legitimation the rule sworn to may possess. On the other hand, impressive oath rituals and the accompanying sacrifices are expensive and time-consuming, so it is likely that poleis with a complex legal system would have strived for a simplified legislative process. In this context, the citizen’s oath provided the natural framework for a general commitment to each and every statute, whether already enacted or to be 76
enacted in the future, and therefore it was not necessary that a specific oath of allegiance be taken to ratify each new piece of legislation. At least as far as Athens is concerned, it is likely that at the time from which most of the extant sources date, the 5th and 4th century, nómoi were no longer contracts but laws in the modern sense. While Solon apparently still had to base the validity of his corpus of laws on a single oath performed by the whole citizenry of Athens (Ath. Pol. 7.1; Plut. Solon 25), 98 in the 5th and 4th century individual laws appear no longer to have required a specific oath-taking or any other declaration of intent to be provided by each full citizen. Thus, the introduction of nomothesia at the end of the 5th century only followed an already existing trend. Instead of the people’s Assembly as a whole checking the existing statutes and possibly making changes to them, this task now falls to a separate board of officials. This means that statutory rules are now enacted by a group of people smaller than that of their addressees; thus, the contractual nature of statutes, which indeed requires the commitment of the parties, is no longer predominant, so that legislation has at last become authoritarian. At this point, the traditional definition of “statute” (Hölkeskamp 1999: 63) can properly be applied to Athenian written law. The solution of administering an oath of allegiance to all the laws must have presented itself to the Greeks with a certain force, since in some poleis many written texts had likely accumulated over several generations, thus requiring that the ephebes and, in general, all new citizens promise to abide by the covenants and statutes entered into by their predecessors. The most likely way of addressing this problem was by making them bind themselves to the totality of the existing legal norms. It was only a small step for future ones to be included in the pledges of allegiance that resulted.
The "codifications"
A hotly debated issue is whether Greek statutes constituted "codes", in other words, whether one can properly speak of a "codification" of laws in the Archaic period. What is generally meant by "codification" is a process similar to that which led to the formation of long legal texts such as
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See however Rosivach 2010, who questions the notion that the oath was all that encompassing and argues that it actually only involved the members of the elites.
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the civil law codes in force in the modern continental European legal systems. Such codes stem from the efforts of entire generations of jurists and legislators to capture the tenets underlying their legal system and to write them down in a systematic and binding form. Each of these statute books covers, as a rule, a specific subject (civil law, criminal law and the like) and, in fact, constitutes the single most important and most complete source of law on that subject matter. We may wonder whether we can legitimately assume that a comparable phenomenon took place in Greek legal history. After Hölkeskamp (1999) turned strongly against this view, the debate has continued and has not yet come to a conclusion agreed upon by everybody. It is certainly difficult to take at face value the ancient legends about the great lawgivers, according to which the entire law of an entire polis owed its existence to one man’s wisdom. On the other hand, a piece of legislation such as the so-called "code" of Gortyn can hardly be regarded as anything much different from an attempt to fit existing legal norms into a coherent whole. However, it consists of a compilation of different, albeit related, statutes, not of a continuous text drafted from scratch (Kristensen 2004; 2008: 19). The thesis that statutes were covenants suggests that they were singular occurrences, in much the same way that contracts usually do not attempt to regulate a great many different things but rather individual issues such as the ownership of a business or an employment relationship. Hölkeskamp has made a good case that the archaic laws are, on the whole, texts of this kind: created in response to a specific political situation and aimed at meeting the needs of the moment, they established rules with a small compass, by which their enactors tried to deal with whatever particular situation they happened to face at a given time. This is especially evident in the case of the statute against the iteration of office found at Dreros as well as those regarding the distribution of land and colonization. This fact gives modern scholars clues as to the origin and fundamental nature of archaic statutory law; however, it does not rule out the possibility that at a later point in time some poleis might have undertaken to collect the traditional statutes and combine them into a coherent whole, and indeed the example of Gortyn argues strongly for this assumption. In Classical times the same effort is known from Athens, especially from the legal reforms and the systematization that took place at the end of the 5th century. With regard to the thesis of the present book, this fact seems to raise the question of whether this development could have been associated with a change in the legal nature of these texts and whether this change was the cause or the result of the codification. 78
It is difficult to do more than put forward hypotheses and speculations in this area. It can however be said with some confidence that the codification in the aforementioned sense was a response to the same basic situation that triggered the development of legal texts into statutory law in the modern sense, that is, an authoritarian set of rules that were regarded as a part of a systematic whole: in some poleis, including Athens, the number of written laws grew so much and the adoption of written statutes became so common that its citizens likely felt the need to create some overarching order. The most plausible answer to the above question would then be that the relationship between the two phenomena, the codification and the change in the legal nature of the texts, was probably not one of causation but of correlation. Both are effects of one cause: those texts that we are wont to call "statutes", but according to the thesis of the present study were actually covenants, became so familiar and so important for the political life of the community that their sheer number required that the system be simplified. At Athens and Gortyn, at least, this development is well documented. Thus the path is paved from contract to statute law. The Greeks, however, seem to have always remained aware of the contractual nature of their laws, a notion that apparently even found its way into philosophical treatises. In the eyes of the thinkers of that time, the legal system as a whole (if not the individual legal texts) is basically an agreement among the citizens, drawing its authority directly from the sovereign power of the people as a community of free individuals who shape their common life through discussion, negotiation and covenants (cf. p. 1f.). One may doubt whether this concept was ever more than a nice idea and whether it might even have been no more than an idle ideological justification for the arbitrary rule of the mob. Such skepticism is certainly justified, since it is unlikely that many young Athenians could in fact have been expected to decide to leave their home city rather than obey its laws, which can hardly be called a real choice. This, however, is not enough to dismiss the idea of the contractual nature of the legal system as such as a mere invention. There are many cases where one does not really have much of a choice about whether to enter into a contract or which clauses are to be included in it: one need only think of the terms and conditions of contracts between individuals and corporations such as the mail, banks, telephone companies etc.: in practice, one can hardly live without agreeing to such contracts and thus has little choice but to accept whatever conditions they may contain. Another example is peace treaties, where the defeated are compelled to accept the victors’ conditions. The fact remains, however, that such agreements are, formally speaking, 79
contracts, regardless of how free either one of the parties actually is. With reference to ancient Greece, too, nobody suggests that treaties made under any kind of duress to either party should not be regarded as having just as much of a contractual nature as any other covenant. The same was true, in all likelihood, of the first legislative texts of archaic Greece. As was the case with international treaties, it was often necessary for the citizenry of a polis (or of a community that would later develop into a polis in the Classical sense) to arrive at agreements among themselves. This effectively forced every one of them to provide the relevant declaration of intent, regularly in form of an oath. Indeed, on many occasions they might even have been literally compelled to do so, as is the case with the treaty between Athens and Khalkis on the marshland in Eretria (p. 58). The political situation and the political and social forces that compelled people to make such agreements are likely to have been, by and large, the same both at the international and at the national level. Within a city-state, just as well as outside of it, conflicts would happen that might lead all the way to a civil war or in which, at any rate, two or more groups opposed each other and tried to impose their interests on the rest of the community. This situation gave rise to conflicts that did not look much different from those between different cities; it is therefore not surprising that the archaic Greeks would try to resolve these issues in much the same manner as in the case of international conflicts. This led to the use of sworn agreements, negotiated and brought to perfection along the same lines as those that involved separate political communities.
A closer examination of the selected texts will unearth some insights into the characteristics of their genre. Among the purely stylistic ones are the so-called Vertrags-AcI (“the accusative with infinitive of contract”), the brevity of the expression and the scarcity of those particles that are so common in literary prose. As for the formal elements of these texts in a broader sense, it bears summing them up here. Each of these texts follows a fairly simple and fixed pattern. 99 First, there is often (though not always) a heading. This may amount to no more than a blessing, as happens on Cretan inscriptions with the very popular θιοί (“gods", to which many editors and translators add an exclamation mark). There follows at least one sentence spelling out the basic norm of the text; depending on the size of the inscription, there can be several sentences containing basic norms, 99
See Veneciano 2015 for a more in-depth analysis.
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but usually the following part of the text contains only corollaries (clarifications or additions) to the original specification. These positive provisions are often followed by the threat of sanctions, which usually consist of a fine; these are not uncommonly backed up by provisions establishing special sanctions for officials who should fail to enforce those devised against the violators. Sometimes, at the end of the inscription the content of the whole text is secured against transgression, forgery, destruction and repeal by means of further sanctions, both religious and secular. To make clear once more that this basic pattern applies to what we call covenants just as well as to what we call statutes, in the following I add a list of passages containing the above elements. Herein I classify the texts as either statutes or covenants according to the conventional classification.
Threat of sanctions: in covenants: Nomima 52 (2.1.1), 51 (2.1.2), 53 (2.1.3), 21 (2.2.1), 23 (2.2.2); in statutes: Nomima 81 (2.3), 44 (2.4.2), 19 (2.5).
Prohibition of damaging the text or changing it: in covenants: Nomima 52 (2.1.1), in statutes: Nomima 43 (2.4.1) 44 (2.4.2) 19 (2.5).
Oath: in covenants: Nomima 51 (2.1.2); in statutes: Nomima 81 (2.3), Nomima 19 (2.5), possibly also Nomima 44 (2.4.2).
Display or deposit in a sanctuary: in covenants: Nomima 23 (2.2.2); in statutes: Nomima 44 (2.4.2), Nomima 19 (2.5). Last but not least, let us not forget the prohibition of sophistic interpretation 100 that can be found in Nomima 43 and is very common in treaties from Classical times (Wheeler 1984).
From all of this evidence it seems warranted to conclude that we are dealing not with two different types of texts but with a single one, which follows a simple but fairly accurate pattern and is kept stylistically consistent. This genre of texts could be from ancient Near Eastern origin (cf. p. 20100
On the sophistic interpretation of the law see Hillgruber 1988: 105-120.
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1 with n. 28); at any rate, treaties are a legal institution whose presence in the Mediterranean is tangible, for instance, in the treaties between Rome und Carthage (Richardson 2010). And even apart from this, there is strong evidence that in the eyes of the archaic Greeks statute and contract were not two different legal institutions but one, that is, the promise of all parties, reinforced by an oath, to abide by a particular set of rules.
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