Vol. 8 No. 6 (June 1998) pp. 276-278.

GREEK LAW IN ITS POLITICAL SETTING: JUSTIFICATIONS NOT JUSTICE
by L. Foxhall and A.D.E. Lewis, Eds. Oxford: Oxford University Press, 1996. 172 pages $45.00 Cloth. ISBN: 0198140851

Reviewed by Steven Forde, Department of Political Science, University of North Texas.
 

The title of this book suggests that it is a perfect read for subscribers to the LAW AND POLITICS BOOK REVIEW. The editors of the volume do indeed pledge that its chapters will do more than engage in antiquarian analyses of the intricacies of ancient Greek law and procedure. Most of the contributors do tackle broader issues of the political (and economic, and social) significance of law, asking for example whom the law benefits and whom it might harm (hence the rather tendentious subtitle, JUSTIFICATIONS NOT JUSTICE). A number of them make reference to theories of law, its function and development, from related fields such as anthropology. For non-specialist readers however, the discussion will often seem to be rather antiquarian in character, bearing too many signs perhaps of its origin as a series of conference papers.

The essays do nonetheless provide genuine food for thought for anyone interested in comparative legal systems, or in the philosophy or anthropology of law. Collectively, they address the significance of written versus oral traditions of law (including the question whether an oral tradition is truly a legal code), the means of conducting trials and applying sanctions in a relatively undeveloped legal environment, the status of women in ancient Athenian law (they are found to have enjoyed greater status and freedom than is often thought, Ch. 8), and related issues. One chapter attempts to explicate Plato’s view of the crime of "heresy" in a properly-structured legal system. As the editors point out, law and the legal system were never conceived as a separate and self-contained set of institutions and practices in ancient Greece, at least not in anything like the way they are conceived today. Certain individuals were entrusted with keeping (or remembering) the law, but even in classical Athens, the courts were staffed by and large with people temporarily chosen for their posts by vote or by lot. There was nothing like a "legal profession;" sophists or speech-writers like Demosthenes and Lysias came perhaps the closest. Law and rhetoric were never really separated. Nor was there much in the way of prosecutorial mechanism: outside of regular procedures for examining and impeaching public officials for misconduct, prosecution for all manner of crimes had to be initiated by private individuals, often by the victims themselves (pp. 27, 78). In Athens, successful prosecutors often collected a portion of an assessed fine (pp. 75, 76). This provided an incentive for law enforcement, but also created a class of "sycophants" who sought targets for prosecution, usually targets with deep pockets (these may actually be closest to modern-day lawyers).

All of this however took place against the background of a legal system that never fully shed the vestiges of its oral or traditional past. Even in Athens in its classical period, "unwritten law" loomed rather large, and could have an effect on legal outcomes. Much of this law had to do with duties to kin and other elements of "common-sense" morality, and so might not have differed fundamentally from the more modern notion of "equity" as a reserve of justice to remedy gaps or oversights in the written legal code. We realize we are in an alien world however when Aristotle says that whatever the law does not permit, it forbids. This is the very antithesis of the liberal view of law, and relies apparently on the bulk of unwritten law, which is assumed to govern conduct unless specific remissions are made.

Trying to see how law functioned under circumstances like these is the great interest of studies like those contained in this volume. It appears that the writing of law, even when it happened, was usually a haphazard phenomenon; some of the surviving written codes suggest that it was procedural law, that was most likely to be written (p. 26). On the other hand, it is argued in the volume that one of the lengthiest surviving written codes, from Gortyn in Crete, is actually a record of case-law holdings, which makes it haphazard in a different way (Ch. 3). Given the sparseness of the infrastructure for such things as prosecution and infliction of punishment (it appears that incarceration as a mode of punishment never existed in Greece, p. 78), self-help was often the rule. It may be that Greek law-courts in fact originated as nothing more than a mechanism for certifying that self-help was lawful under a given set of circumstances (Ch. 4). Both prosecution and enforcement were left to the aggrieved party, a situation with more than a passing resemblance to the procedure in classical Athens.

Especially in earlier periods, divine sanctions were understood to give the law the terror that human enforcement lacked (p. 27). So heavy was this reliance that it seems in many places, the only legal procedure was the imposition of an oath: if an accused party was willing to swear solemnly to his innocence (following an oath devised for the occasion, with appropriate curses for false witness), that was taken to be sufficient proof of innocence (Ch. 4). Since such a system is obviously unsatisfactory wherever individuals do not have complete faith in divine punishments (or where oaths with hidden loopholes can be devised by biased judges, pp. 69-70), different and more elaborate procedures had to be found. What is remarkable, once again, is how undeveloped, by modern standards, these procedures remained in Greece to the end of its classical period.

Despite the paucity of evidence from most of Greece, it seems a reasonable assumption that Athens was the place where law and legal procedure became most developed. The Athenians were in any event renowned (reviled?) for being litigious. Yet there never seems to have been a full-blown codification of Athenian law (despite the efforts of legendary figures like Draco and Solon). Written law in the form of stone inscriptions was scattered throughout the city, with no guarantee that its various provisions were even compatible with one another. Courts, staffed by ordinary citizens, certainly did not have the responsibility of knowing what the written law on any point might be. Rather, it was up to litigants to bring this to their attention, and if opposed norms were brought forth, the court would choose the one that seemed to fit best in the circumstances (p. 125). An effort to further codify the law and remove its contradictions seems to have been undertaken in the years after 410 BC, but never completed (pp. 128, 130). Only in the fourth century does it seem that new laws had to be checked for compatibility with previous statutes (p. 125). And only after 403 BC was a distinction made between fundamental law ("NOMOS" on such "constitutional" questions as the basic shape of public institutions) and ordinary laws adopted in assembly (PSEPHISMA), the former being beyond the reach of the assembly.

Since the focus of each paper in this volume is quite narrow, it is not a good text to use as an introduction to the themes it discusses. Its contribution is more in the field of Greek antiquity than law and politics in the broader sense. Nevertheless, its essays do shed very interesting light on issues that scholars of law and politics are concerned with, and provide a comparative perspective that many of them will find useful.


Copyright 1998