John David Lewis, Early Greek Lawgivers. Classical World Series. London: Bristol Classical Press / Duckworth, 2007. Pp. 100, incl. 5 black-and-white illustrations. ISBN 978-1-85399-697-9. UK£11.99.
School of Law, University of the Witwatersrand, Johannesburg, South Africa
Formidable obstacles lie in the path of the researcher into ancient Greek law and lawgivers. To name but four: a poverty of primary sources; the uncertain dividing line between, on the one hand, legend, myth and tradition and, on the other hand, historical fact; the difficulty of ascribing precise dates to persons and events; and the particularity of the laws of each Greek polis. This last feature of Greek laws stands in sharp contrast to the universality of Roman law. I shall return to this vital point below.
Of the seven chapters in this pleasingly short book, the first three succinctly introduce the history of early Greek law. The last four focus on individual lawgivers. The chronological table (pp. 8f.) gives a useful birds-eye view of the subject-matter and helps the reader to orientate himself in the historical landscape.
In his admirable opening pages, the author shows how the political and legal order of the ancient Greek states derived from a twofold source: divine inspiration and human justice were jointly the fountainhead. The high authority of Plato is very properly invoked here (pp. 11f.).[] This notion of the laws having a dual origin was later to exert a vital formative influence on Roman legal development: the early distinction was between fas and ius. This distinction was doubtless indigenous to Rome but, in the later Republic, the powerful influence of Greek Stoic philosophy gave birth to a new distinction between ius naturale and ius civile.
The human lawgiver, as depicted in the Cretan legends of Minos and Rhadamanthus, was a figure renowned for his justice. This figure, the focal point of the book, occupied a central place in Greek views on wisdom, justice, order, goodness and law (p. 12). The figure of the lawmaker was the starting-point for the birth of a stable and just order in the polis. The author draws an important distinction between lawgivers and constitution-makers (pp. 46f., 66, 82). He relies here on the authority of Aristotle.[]
There were no universal Greek laws governing a singular Greek world. Instead, each polis had its own lawgiver and its own particular man-made laws. The particularity of Greek laws, as noted, above, stands in sharpest contrast to the universality of Roman law (pp. 13f.). It is easy to lose sight of this one fundamental difference when considering the numerous and often remarkable similarities between these two legal orders. (Some of these resemblances are described in the book and are noted below). This fundamental difference between them is explored in an insightful comparative passage which invites deep reflection, albeit that the insights conveyed are hardly new (p. 44).
The book is rich in descriptions of characteristic features of the Greek legal landscape, which invite comparison with analogous features of Roman law. These striking analogies, which often suggest direct or indirect Greek influence on the evolution of Roman law, are more numerous than many legal historians, and in particular many Romanists, may be willing to concede. Chapter 2, ‘Early Greek Order, Justice and Law’ (pp. 26-38), for example, ends with the statement that the Greek stress on following proper legal procedures, as opposed to imposing (substantive) rules, is fundamental to our understanding of Greek laws throughout history (p. 38). The analogous stress in Roman Republican law is quite remarkable: legal development in Rome during the four centuries between the Twelve Tables of 451 BCE and the end of the Republic was driven, not by legislation -- it is probable that no more than 30 statutes of lasting significance were enacted during this time![] -- but by the ground-breaking procedural work performed by the praetors in the discharge of their main function of granting remedies in day-to-day court litigation.
There are other parallels: compare debt slavery in Athens in the 7th and 6th centuries BCE with that in Rome during the 5th and 4th centuries BCE. Closely associated with the Roman version was the institution of nexum. In Athens, the problem was resolved by the authority and impartiality of the lawgiver Solon (pp. 43, 67). In Rome, there was no figure of comparable stature, and debt-bondage was effectively abolished by statute in c. 326 BCE, following the dramatic events narrated by Livy.[]
Again, in the Spartan lawmaking process, after the kings and elders had deliberated about a proposal, they would communicate it to the people, who would then affirm or veto the proposal. The people were not permitted to debate the issue, let alone initiate any counter-proposal (p. 58). In very similar fashion, the Roman Senate alone had the power of deliberation. Any proposal for legislation placed before a popular assembly by a consul or praetor could be met by nothing other than a ‘yes’ or ‘no’ vote.
Two more comparisons: Solon’s laws for Athens were written on wooden panels which were placed on public display in the agora or the acropolis (p. 72). In similar fashion, the later Roman Twelve Tables -- in this case no doubt under direct Athenian influence -- were displayed in the forum. And, as the author correctly points out, the fact that many, perhaps most, citizens could not read was of little import. Finally, the account of the lawgiver Pittacus includes an illuminating comparison of Greek tyranny and tyrants with the Roman dictator (p. 82).
The author goes to considerable length to arrive at exact meanings of key terms that occur in the ancient legal texts. These terms include nomos (pp. 14, 30f.), histor (pp. 27f.), themis, themistes (pp. 28– 30), dike (pp.29f.), ethos (pp.33f.), eunomia (pp. 34, 70), sunkretizein (p. 48), rhetra (pp. 56f.), and hubris (pp. 69f.). This is a valuable and most pleasing feature of the book.
At times, the text comes dangerously close to lapsing into broad generalities which are not based on hard, empirical data. A case in point is the discussion of a theoretical model proposed by Szegedy-Maszak to explain the principal stages common to the legends surrounding the various Greek lawgivers (pp. 40–42). This model appears to be too generalized to be meaningful.
The treatment of the Cretan lawgivers Minos and Rhadamanthus is inevitably vague and speculative, given that the historical reality of these and other figures is difficult to separate from the myths associated with them (pp. 49–51). The account of the Spartan lawgiver Lycurgus in Chapter 5 (pp. 53-63) contains vivid descriptions of timarchy (pp. 54f.), and of the Great Rhetra or oral commandment (pp. 56f.). The latter, according to tradition, was brought from Delphi to Sparta by Lycurgus, who then expressly forbade the reduction of laws to writing. He, we are reminded, ‘embodies the characteristics of a lawgiver as a figure in a tradition, while his actual life is shadowy, semi-mythical, beyond the capacity to date with certainty, and truly timeless’ (p. 55). Even so, the almost total absence of dates in this chapter is disconcerting. Could not the traditional dates for Lycurgus, which range from c. 1000 to c. 700 BCE, at least have been mentioned as an aid to historical orientation?
An ever-present danger in the polis was that the laws laid down by the lawgiver might become identified in the minds of the people with the personality of the lawgiver himself. It was precisely to prevent any such personality cult that every good lawgiver -- including Lycurgus, his Athenian counterpart Solon, and many others -- went at last into exile, after obtaining an oath from the people to obey the laws. In this way the lawgiver forced the people to obey the laws without the backing of his personality (pp. 62f.). This vital theme, the last stage of many traditions, is one which some modern states would do well to remember.
In his treatment of Solon (Chapter 6, pp. 64- 75), the author does not underestimate the important contribution made by the earlier Athenian lawgiver Draco, who is datable to c. 621 BCE (pp. 65–67). In particular, Draco may have been the first Western lawgiver to confer criminal jurisdiction on public institutions, thus preventing private individuals from simply taking vengeance on an accused (p. 67).
The account of the work of Solon is, like the text as a whole, clear, concise, readable and accurate. Especially valuable to a legal historian is the description of the foundation laid by Solon for the rule of law (pp. 69f.). Solon’s notion of hubris, so influential in later Greek literature,[] receives proper treatment here (pp. 69f.). This chapter confirms, if confirmation be needed, that Solon was the foremost lawgiver in the history of Athens (p. 75).
The book is not without its flaws. It ends abruptly, and there is no conclusion to summarize or synthesize what has gone before (p. 84). To some extent, this may be excused by the fragmented nature of the subject- matter. Notwithstanding the author’s meticulous research, and clear, concise, readable style, the reader is left with the sense of a patchwork, which lacks a unifying theme. For this, again, the author cannot be blamed: the book unavoidably reflects the difficulties outlined in the opening paragraph of this review.
Less excusable is the author’s narrow and conventional interpretation of law-making. So, for example, there are only two references to the important link between ancient philosophy and lawmaking (pp. 78, 93). The first of these is a brief reference to Pythagoras. Yet as Peter Kingsley has shown in relation to Parmenides and Empedocles, the intriguing interface between presocratic philosophy and ancient lawmaking offers wide and largely untapped scope for research.[] When so much of the book is devoted to mythical or semi- mythical figures, more could surely have been said about historical ones.
In its brevity, clarity and directness, this book compares favourably with other recent publications in the field.[] The book is well-edited and generally free from typographical errors.[] The scholarly apparatus, consisting of a bibliography, a set of questions for further study, a glossary and an index, is impressive, the more so in a work of such short compass. Especially deserving of mention here is the comprehensive bibliography, which goes under the unduly modest rubric ‘Suggestions for Further Reading’ (pp. 85-100).
In conclusion, for its richness of ideas and pointers to opportunities for further research, this book will repay careful reading.
[] Plato Laws 624a.
[] Aristotle Politics 2.12.
[] Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, transl. J. M. Kelly (Oxford 1973) 31.
[] Livy 8.28.
[] Herodotus, in relating his story of Gyges and Candaules (Histories 1.6-13), may well have drawn inspiration from this notion.
[] See Peter Kingsley, In the Dark Places of Wisdom (Inverness, California 1999); Reality (Inverness, California 2003), both passim.
[] See, for example, Zinon Papkonstantinou, Lawmaking and Adjudication in Archaic Greece (London 2008).
[] I noticed three: on p. 68 par 2, ‘affect’ should read ‘effect’; in the same paragraph, ‘noos’ should read ‘nous’; on p. 73 par 3, ‘chose’ should read ‘choose’.