BMCR 2009.06.49: Papakonstantinou on Gagarin, Writing Greek Law

Michael Gagarin, Writing Greek Law.  Cambridge/New York:  Cambridge
University Press, 2008.  Pp. xi, 282.  ISBN 9780521886611.  $99.00.

Reviewed by Zinon Papakonstantinou, University of Washington
([email protected])
Word count:  3787 words
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Table of Contents
(http://catdir.loc.gov/catdir/enhancements/fy0838/2008276073-t.html)

Over the last 30 years Professor Michael Gagarin has been among the
most committed researchers of Greek law. His contributions include
numerous books and articles on law in the communities of archaic and
classical Greece, especially Gortyn and Athens. In Writing Greek Law,
the issue of writing in the legal systems of archaic Greece and
classical Athens takes central stage. Given the limited amount of the
extant evidence the author inevitably re-visits much of the evidence
that he has discussed before. Nonetheless, he has clearly re-thought
the issues he discusses and he sometimes departs from his own earlier
published views. The result is an engaging study that is brimming with
original insights.

The book is divided into ten chapters, with  an Introduction and a
Conclusion. In the Introduction, besides summarizing the contents and
arguments of the book, Gagarin spells out in concise terms his views on
some issues that have been debated for decades by specialists on Greek
law (e.g. the "unity of Greek law"). He then proceeds in Chapter 1
("Law before Writing") to an analysis of the evidence (mainly from the
Homeric epics and Hesiod's Works and Days and Theogony) for law in
archaic Greece before the first attested use (at the present state of
the evidence, c. mid-seventh century BC) of alphabetic writing for
recording law. The author emphasizes that dispute resolution in the
communities of early archaic Greece involved much negotiation and
compromise between litigants. Justice was meted out most successfully
by charismatic leaders famous for their oratorical skills, in a process
of adjudication conducted in public and freely accessible to all
interested members of the community. In the same chapter Gagarin also
speaks of "oral law" (his quotation marks) as an expression "useful to
designate the totality of procedures and rules (including customs,
norms and traditions) that regulated disputes among preliterate Greeks"
(p. 33).

Gagarin's early archaic "oral law" should not be understood as a set of
clearly defined rules with full legal authority, for in order for these
rules to be recognized as laws they had to be written down (thus p. 36
"before writing we can speak of oral law--viz. judicial procedures
without writing--but not oral laws").[[1]] Thus for example, in Il.
9.632-6 Ajax refers to the principle of blood-money payment by the
killer to the family of the deceased as a means to settle homicide
peacefully. But in Od. 23.118-20 after the killing of the suitors
Odysseus warns Telemachus that a killer normally flees the community to
avoid starting a vendetta. Are these rules laws? And how about the
advice given by Phoenix to Achilles in Il. 9.508-12, also articulated
as a rule, that humans should respect their prayers to gods? Does the
latter qualify as law? Gagarin claims that choosing which ones of these
rules are laws would be arbitrary and anachronistic, i.e. it would
depend on the application of modern legal categories (e.g. homicide but
not religious practices) to designate what counts as law in early
archaic Greece. Moreover, Gagarin continues, even the rules about the
settlement of homicide mentioned above cannot be construed as laws,
because they "cannot be authoritative at the same time" and because "a
legal system cannot tolerate such obvious contradictions in its laws"
(p. 32). It is of course difficult to imagine how both rules
--blood-money payment; exile -- regarding the settlement of homicide
could be applicable at the same time, but one can still perceive
them[[2]] not as "contradictions" but as dispute settlement options,
i.e. rules with legally binding force that were viewed as viable
alternatives in the process of homicide settlement. Failure to enforce
one of the rules could prompt one of the interested parties to resort
to adjudication by arbitration, as in the trial on the shield of
Achilles which deals precisely with the issue of blood-money payment
after homicide. On the contrary, there is no evidence that anyone in
early archaic Greece ever resorted to a court of the basileis for a
trial related to the amount of respect paid in one's prayers to the
gods. Hence Phoenix's advice to Achilles in Il. 9.508-12 can be more
appropriately designated as a moral rule whose enforcement lay outside
the realm of civic litigation.

Written laws appear in the Greek world ca. 650 BC, and they quickly
become a fixture of civic life of many (although not all) Greek cities.
Whenever available, archaeological evidence suggests that most of these
laws were publicly displayed, often built in the walls of a local
sanctuary or set up as free-standing monuments in a public location.
They were therefore physically accessible to anyone who wished to
inspect them. In Chapter 2 ("Writing and Written Laws") Gagarin
proceeds to examine in detail some of the earliest specimens of written
laws from archaic Greece. In addition to matters of substantive law,
legal procedure and political organization of the communities that
generated them, Gagarin also dissects the importance of physical
features of these inscribed laws, as well as their style and internal
organization. Characteristics such as the big, painted and clearly cut
letters, some up to 25 cm (e.g. many of the laws from the walls of the
Apollo Pytheios temple in Gortyn), the inclusion of visual dividers
(vertical lines or dots) which demarcate words or entire clauses, and
the apparent grouping of these laws in accordance with their
subject-matter, suggest to Gagarin that "those who inscribed early laws
were concerned to make these texts as easy to read as possible for an
audience that would have included some whose reading skills were
rudimentary" (p. 48).

There can be little doubt that the enacting authorities of extant
written laws considered their public display as a significant factor in
the process of lawmaking. Still, taken collectively some of the
evidence that Gagarin examines might actually be interpreted in a
different way. For instance, a number of inscribed laws built in the
walls of the Apollo Pytheios temple in Gortyn contain one or two lines
of text written retrograde or boustrophedon (IC 4.10, which in
Gagarin's estimate must have been 30-40 meters long; IC 4.14) and
almost certainly extended to at least two sides of the temple. Hence
readers of IC 4.14 which contained two lines of text would have had to
walk some distance around the temple before reaching the end of the top
line, and then retrace back their steps while reading the second line
until they reached the end of the document. Moreover, the positioning
(too high or too low) of the inscriptions on the wall could have
further frustrated potential readers . Besides the inscribed laws from
Gortyn, part or the entire text in some archaic written laws was
written vertically, including the law from Chios, Nomima I, 62 = IGT
61; the law from Eretria, IG XII 9, 1273-74 = Nomima I, 91 = IGT 72-3;
the sacred law from Cleonae, IG IV 1607 = Nomima II, 79 = IGT 32). This
orientation meant that readers had to tilt their heads 90 degrees to
the side to read. As far as one can tell, the law from Chios was
inscribed on all four sides of a freestanding stone, which was quite
possibly positioned directly on the ground. The stone bearing the law
from Eretria, inscribed on three sides of the stone, was originally
built into the lower corner of a wall or building.[[3]] And the sacred
law from Cleonae was also inscribed on three sides of a stone,
originally perhaps the base of a pillar (see Gagarin, p. 64). In other
words, the stones bearing these laws (Chios, Eretria, Cleonae) appear
to have been originally placed directly or very near the ground and not
on the reader's eye level, which must have rendered the exercise of
reading the sides with the vertical text even more cumbersome. Finally
in the same context one must mention the archaic law inscribed on the
walls of a covered passage at the Acropolis in Tiryns (Nomima I, 78 =
IGT 31). Because the text was inscribed in a "serpentine" fashion and
in a dim location, it was almost impossible to read in a customary
way.[[4]] All these things suggest that, even though in several archaic
Greek communities publication of the laws and dissemination of their
content was deemed important, accessibility and readability of the
inscribed texts was not always a primary concern.

Chapter 3 begins with the assertion-- really an extension of the
arguments presented in Chapter 2--that "there was a fairly large number
of potential readers of laws in Greece" (p. 70), an assertion that is
in agreement with the growing evidence for literacy in archaic
Greece.[[5]] Of course, as Gagarin himself acknowledges, literacy
skills do not necessary translate into an ability or interest to read
and comprehend the texts of laws (on this issue, see further below).
Furthermore, he rightly detects "a number of different motives for
writing down and publicly displaying" (p. 85) laws in various
communities of archaic Greece; yet in this context he emphasizes the
importance of two factors: the interest of the wider community to
express their legislative authority and the practical need to preserve
details of increasingly complex legal rules in a more efficient manner.
Gagarin sees the perceived accessibility of archaic written
legislation, combined with the sanctioning formulas of some archaic
laws that suggest that the entire citizenry enacted the laws in
question, as symptomatic of a wider interest on the part of archaic
communities in authorizing and publicly displaying legislation. Hence,
for example, the publication of the so-called "constitutional law" from
Dreros (BCH 61 (1937), 334 = Nomima I, 81 = IGT 90) that was enacted by
the polis "marks a stage in the development of a communal
self-awareness" (p. 79), in the sense that it promoted a
self-identification as the polis of Dreros. As for the latter, Gagarin
argues that the need to create detailed legal provisions for the
increasingly complex legal systems of the demographically expanding
archaic Greek communities contributed to the spread of written
legislation.

The last point is plausible; yet, although the demographic expansion of
the archaic world accounts in part for the proliferation of written
legislation, it does not fully explain why some communities appear to
have generated a considerable amount of written laws, while other
city-states very few or none at all. Even though the involvement of the
ordinary citizens in legislative procedures can hardly be overstated,
one has to keep in mind that a reference to the polis, demos or other
collective term in the enacting formula of a civic law or decree should
not necessarily be equated with an unbridled legislative authority on
the part of the citizenry. As the case of the Spartan rhe^tra (Plu.
Lyc. 6.1 and 8 = Nomima I.61) suggests, in some cases the power of the
demos to enact law could have been qualified by the probouleutic powers
of other bodies. A caveat must also be raised with respect to the
argument that, since written legislation articulates "the desire of a
body of ordinary members of the community to confirm their own
authority" (p. 86), the same legislation cannot for the most part be
the product of intra-elite competition. Even though for most of the
extant written archaic laws we are completely in the dark as to the
particular social and political circumstances that led to their
enactment and publication, the predominance of the aristocracy in the
politics and the judiciary branch of the legal systems of most archaic
communities and the evidence for political strife among elite factions,
especially in the cases of Crete and Mytilene, also justifies our
viewing inter-aristocratic conflict as a major factor contributing to
the rapid spread of written legislation in archaic Greece, along with
the emergent popular legislative authority and the need to create more
elaborate rules.

Chapter 4 ("Why Draco Wrote his Homicide Law") narrows the focus of the
arguments presented in Chapter 3 and looks at the specific reasons
behind the enactment and publication in writing of Draco's homicide
law. For the most part, Gagarin argues that the same factors that he
presented in Chapter 3 contributed to the emergence of written law in
archaic Greece, namely the need to provide a detailed set of legal
rules on homicide and to convey a sense of Athenian identity both by
making the law applicable to all members of the community and by
alluding to Athenian boundaries and differences of legal treatment
between Athenians and foreigners. Unlike many scholars, Gagarin also
insists on dissociating the Cylonian affair of 636 B.C. from Draco's
homicide law, enacted about fifteen years later. He is certainly right
that the latter could hardly have been conceived as a direct resolution
of the former, but it is difficult to dismiss any link between the two
events: laws are usually a result of precedents and contingencies. In
this instance, the need for more comprehensive legislation in order to
keep up with the growth of the Athenian legal system was probably
combined with the benefit of past experiences. In other words,
following the Cylonian affair, homicide was brought into the foreground
of Athenian social and political life as a particularly contentious
issue to the extent that, in conjunction with other factors, fifteen
years later a comprehensive re-evaluation and rendition in writing of
the legal principles in dealing with that issue was deemed necessary.
Draco was the man appointed to carry out that task.

In the same chapter Gagarin also briefly explores the wider
intellectual context of Draco's law and detects broad parallels in the
latter's skillful structure and organization with pre-socratic
philosophical thinking (especially monism) and developments in
pictorial arts (geometric style). For Gagarin, writing provides for law
what geometric patterns provide for vase-painting: the means to
structure, standardize and rationalize. "In law, writing standardizes
rules and procedures, and helps make them uniform and stable over time
and space. Second, writing depersonalizes information; that is, it
divorces the written text from its personal source" (p. 109). This
point cannot be pressed very far: in the case of legislation, writing
helps create a particular set of rules. But practice shows that, both
in antiquity and today, the interpretation and use of these same rules
by litigants and other individuals in legal and extra-legal contexts is
very often far from uniform and stable.

It is well documented that, since the seventh century B.C., writing was
used for recording legislation in parts of archaic Greece. But is there
any evidence for the use of writing in other aspects of the legal
systems of archaic Greek communities? In Chapter 5 ("Oral and Written
in Archaic Greek Law") Gagarin poses the question and explores the
evidence for the filing of written indictments (graphai) in Athens, a
procedure that might go back to Solon. The author also briefly
considers the case of the archaic Athenian thesmothetae and suggests
that "If they had a judicial role from the beginning, they may have
been writing down established practices and procedures, not for
publication but just to keep them for use in the future. If so, the
Thesmothetae were not writing legislation, but something like notes for
their own use" (p. 115). This assessment is not in keeping with the
importance attributed by the ancient sources to the thesmothetae who,
along with the archon, the basileus and the polemarch, constituted the
nine archons, i.e. the board of the highest executive magistrates in
archaic Athens.[[6]] It is perhaps more likely that among their various
responsibilities the archaic thesmothetae performed a role similar to
that inferred for the mnamones and scribes of some communities in
archaic Crete, i.e. recording through memory and the written word
judicial decisions and rules with legal force as well as making them
available for future use in the courts and perhaps elsewhere.
Spensithios is the best-documented case of a rememberer/scribe in
archaic Crete and Gagarin briefly examines the document that outlines
his responsibilities and privileges. Overall, Gagarin's emphasis on the
overwhelming use of writing for recording legislation and the largely
oral legal procedure in archaic Greece is sound and consistent with the
extant evidence.

Chapters six and seven are devoted to the fifth-century written laws
and public documents from Gortyn. Chapter six ("Writing Laws in
Fifth-Century Gortyn") examines structural and stylistic features of
select fifth-century laws and decrees while chapter seven ("Writing the
Gortyn Code") explores the structure and organization of the so-called
Gortyn Law Code (= GLC). In contrast to other written laws and decrees,
Gagarin shows the ability of the fifth-century Gortynian legislators to
organize and present laws in a lucid and coherent manner. Moreover, the
author makes the point repeatedly that the documents in question were
in all probability enacted by the citizenry and that they were readily
accessible and widely used by most community members. There can be
little doubt that the written laws of Gortyn were practical and
functional texts (especially when compared to some Near Eastern laws)
aimed at providing guidance in dispute resolution in the context of the
civic legal system. However, the extent and the facility with which an
average Gortynian with no extensive previous experience in legal
matters could make use of civic laws can easily be overestimated. The
frequent cross-references to "what is written" in some laws, also
examined by Gagarin, highlight the practical difficulties of
accessibility, if nothing else, in a city with hundreds of laws and
legal inscriptions. When encountering a reference to "what is written"
how easily could a citizen largely inexperienced in legal matters
locate and utilize the inscription containing the legal provision
relevant to his case? The role of the mnamones was critical in
promoting the accessibility and utility of written legislation. A case
in point is the GLC, the longest surviving Greek inscription. Was this
extensive compilation of substantive and procedural rules accessible to
Gortynians? In chapter ten Gagarin adduces its physical appearance and
internal organization as evidence that the GLC was above all a
practical document aimed at providing guidance for litigation. In that
respect, the GLC and other archaic and early classical Greek
legislation contrasts sharply with legal codes from the ancient Near
Eastern (e.g. the Hammurabi code, which Gagarin discusses in some
detail in order to highlight its qualitative differences from the GLC)
and even with medieval and early modern legal codes. Gagarin also
suggests that "a single legislator most likely drafted the full text of
GC, drawing on earlier laws and custom, on the results of earlier
litigation, and not least on his own sense of fairness, reasonableness,
and practicality" (p. 170).

In chapters eight and nine the discussion moves to classical Athens.
Chapter eight ("Writing Law in Classical Athens") documents the
conditions of enacting, writing and publicizing laws under the Athenian
democracy, as well as the use of written documents in legal procedure
in the popular courts of Athens. An interrelated phenomenon, partly
deduced from the incremental use of written documents, is the growing
level of literacy among Athenian citizens. The establishment and
subsequent work of the boards of anagrapheis and nomothetai at the end
of the fifth century is, according to Gagarin, critical in providing
Athens with an explicit "rule of recognition", i.e. a measure of what
constituted state law. "Before this, the implicit rule of recognition
in Athens, as elsewhere in Greece, had been that a law was a rule that
was written and publicly displayed, perhaps in a specific place or a
few specific places" (p. 185). This conjecture is not directly
supported by archaic and fifth-century evidence, and is conditioned by
the author's assumptions regarding the primacy of written versus oral
legal regulations. Further legislation provided, according to Gagarin
[[7]], "a full set of secondary rules for recognizing, changing, and
(at least by implication) adjudicating among its substantive laws" (p.
187). In the remainder of the chapter Gagarin highlights the increasing
use of writing in the legal system of fourth century Athens. [[8]]
Besides written legislation, written texts were used primarily during
the preliminary proceedings and to a more limited extent and mostly
indirectly, e.g. written laws or other documents orally presented to
jurors by a clerk during litigation in the popular courts. The overall
picture for archaic Greece and classical Athens is one of "widespread
use of writing for legislation but restricted use of writing for
litigation" (p. 197). The author also briefly examines Athenian
attitudes towards written texts as reflected in extant forensic
orations.

Chapter 9 ("Writing Athenian Law: a Comparative Perspective") compares
some salient features of the classical Athenian legal system,
especially regarding the role of writing and the openness and
accessibility of legal processes, with features of the legal systems of
other classical Greek cities, Rome and medieval England. The brief
survey of non-Athenian evidence suggests, according to Gagarin, that
"the same basic structure of written legislation and oral procedure
characterizes all other Greek legal systems" (p. 214). In contrast, the
use of writing from an early period at Rome in close connection with
legal procedure led to increasing formalism of the legal system and to
the burgeoning of a caste of legal technocrats. As at Rome, the
increasing use of writing in medieval English common law for recording
writs led to greater complexity and encouraged the development of
specialist legal professionals.

Chapter 10 ("Writing Law in Hellenistic Greece") surveys select
evidence regarding the use of writing in Hellenistic legal systems.
Gagarin detects Athenian influences, such as procedural features
attested for the first time in classical Athens, but also differences
and developments, especially in the expansion of the use of writing for
legally related matters, as in recording verdicts and publicly
displaying manumission decrees. Areas conquered by Alexander the Great
had of course their own legal traditions, and these were often
accommodated in Hellenistic kingdoms (e.g., by the continued operation
of Egyptian and Greek courts in Ptolemaic Egypt). Ptolemaic Egypt also
shows a greater use of written documents in legal procedure and
litigation, as well as less frequent display of written laws in
public--both in contrast to practices in classical Athens.

The book ends with a concluding chapter, where the major arguments of
the study are summarized, four appendices with legal texts discussed in
the book, a bibliography, an index locorum and a subject index.
Editorial production is of a high standard with only minor slip-ups.
The main audiences of this book are specialists on Greek law and Greek
history in general, as well as students of comparative law. Taking
writing as the central theme of his study Gagarin offers a valuable,
thought-provoking and welcome contribution to the growing body of
literature on Greek law that seeks to move away from formalist and
positivist approaches and achieve a wider understanding of the cultural
context of law in the communities of ancient Greece.


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Notes:


1.   This view is very similar to the argument articulated most fully
by Gagarin in Early Greek Law, Berkeley 1986, 8-10 and passim, as part
of an evolutionary model on the emergence and development of law in
archaic Greece. Several aspects of this model have not met with
widespread approval. See E. Cantarella, 1987, "Tra diritto e
prediritto: un problema aperto" DHA 13 (1987), 149-181; D. Cohen,
"Greek Law: Problems and Methods" ZRG 106 (1989), 90-94; K.J.
Burchfiel, "The Myth of 'Prelaw' in Early Greece" in G. Thuer (ed.),
Symposion 1993. Vortraege zur griechischen und hellenistischen
Rechtsgeschichte, Koeln 1994, 79- 104; R. Thomas, "Writing, Law, and
Written Law", in M. Gagarin and D. Cohen (eds) , The Cambridge
Companion to Ancient Greek Law, Cambridge 2005, 41-60; Z.
Papakonstantinou, Lawmaking and Adjudication in Archaic Greece, London
2008, 155-156.

2.   As pointed out by Eva Cantarella, op.cit. note 1, p. 152.

3.   see E. Vanderpool and W.P. Wallace, "The Sixth Century Laws from
Eretria" Hesperia 33 (1964), 382.

4.   Gagarin (p.65) also points out that the Tiryns inscription "would
have been difficult to see, let alone read".

5.   See lately M.K. Langdon, 2005, "A New Greek Abecedarium", Kadmos
44 (2005), 175-182.

6.   See J.P. Sickinger, Public Records and Archives in Classical
Athens, Chapel Hill 1999, 10-14;   M. Faraguna, "Tra oralita\ e
scrittura: diritto e forme della comunicazione dai poemi omerici a
Teofrasto", Etica & Politica 9.1 (2007), 81-2; Z. Papakonstantinou,
Lawmaking and Adjudication in Archaic Greece, London 2008, 78-9.

7.   Following H.L.A. Hart, The Concept of Law2, Oxford 1994.

8.   See also recently Christophe Pe^barthe, Cite^, de^mocratie et
e^criture. Histoire de l'alphabe^tisation d'Athe\nes a\ l'e^poque
classique, Paris 2006.