BMCR 2009.08.28: Gottesman on Papakonstantinou, Lawmaking and Adjudication in Archaic Greece

Zinon Papakonstantinou, Lawmaking and Adjudication in Archaic Greece.
London:  Duckworth, 2008.  Pp. xiv, 233.  ISBN 9780715637296.  $50.00.

Reviewed by Alex Gottesman, Union College ([email protected])
Word count:  1777 words
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It has been over 20 years since the publication of Gagarin's Early
Greek Law.  The study of Greek law has flourished in the meantime, but
archaic Greek law, owing to the paltriness of the relevant sources, has
not received proportional attention.  The main sources for archaic law
amount to a few literary texts and a few stones, and they do not tell a
consistent story.  As a result, we can only speculate about how social
contexts and processes influenced, or were influenced by, the
development of Greek law.  The aim of Papakonstantinou's book is to
rekindle interest in this field of speculation.

Gagarin influentially argued that early law's emphasis on procedure
over substance was evidence of an interest in making sure disputes
between individuals did not become dangers to the community.  For
Gagarin, developments in legal history track closely the rise of the
polis as a community of citizens.  The inscription of law is part of
that story.[[1]]  The aim was to give the community's decisions the
force of law, and thus make them authoritative in controlling disputes.
Eventually, this development would pave the way for greater control by
the citizen in his community's legal and political institutions.

The story Papakonstantinou tells is quite different, contrasting with
Gagarin's at several points.  The central point of contrast is on how
much emphasis they each place on social class.  Papakonstantinou sees
early Greek law from a critical legal studies perspective.  This
perspective views law as a tool which the powerful use at the expense
of the weak, and which the weak try to use to resist the powerful.  Law
is essentially a site of class tensions.  Gagarin's view, informed by
the legal anthropological literature on dispute resolution sees law
less as a weapon of class warfare, and more as a process tending
towards social equilibrium.  This fundamental difference leads to other
points of contrast.  For instance, whereas Gagarin (and most legal
scholars of Greece) insists that Greek law was an amateur business,
Papakonstantinou sees signs of professionalization in the archaic Greek
"judiciary."  Gagarin sees Greek written laws as using common language,
in order to be accessible to as many members of the community as
possible.  On the other hand, Papakonstantinou sees the language of the
Greek laws as specialized, consistent with their tacit intention to
help the elite maintain a monopoly over the making and interpretation
of law.  According to Papakonstantinou, the story of archaic Greek law
is the eventual wresting of law by "ordinary" Greeks away from the
clutches of the aristocracy.

How well does his reading of the sources support his story?  After an
initial chapter which lays out his theoretical methodology and attacks
that of unnamed scholars who, in his view, suffer under "contemporary
preconceptions and misconceptions regarding the role and status of law
within pre-modern societies" (2), Papakonstantinou turns to the
literary sources, namely Homer and Hesiod.  He considers Homer as
accurately reflecting a strand of legal thought and practice in the 7th
century.  This was a time during which law, for the most part, was seen
as the exclusive domain of the aristocracy.  Law was seen as something
that was handed down from above (the themistas of Zeus) to the
aristocrats, along with their scepters and their descent from the gods.
Key scenes in Homer reflect this idea:  the quasi-legal dispute of
Iliad 23, in which Menelaus challenges Antilochus to an oath-contest,
and the trial scene of Achilles' shield (both being passages which have
inspired mountains of legal scholarship).

For Papakonstantinou, these passages illustrate the idea that the right
to speak in a legal context was originally seen as the preserve of the
aristocracy (whereas Hesiod shows that this idea was also coming under
criticism).  He points out, uncontroversially, that Menelaus and
Antilochus are both members of the aristocracy, and, somewhat more
controversially, that the trial scene likewise shows the elite in the
position of settling disputes.  It wouldn't be surprising if Homer
actually shared the "hegemonic" view of law (Papakonstantinou's term),
but I am not convinced that these passages necessarily show that.  If
the gerontes of the trial scene are indeed members of the same class as
the heroes, it is certainly worth stressing that they are competing
against each other over who can make the "best" judgment, and the
judgment of the crowd is clearly instrumental in deciding that.  Nor is
the Menelaus-Antilochus dispute much proof for the dominance of the
hegemonic view of law in the archaic period.  Given epic conventions,
we wouldn't expect Menelaus to drag off Antilochus to a magistrate, or
demand a trial by a jury of the people.[[2]]

The next chapter deals with inscriptions and traditions of the early
lawgivers.  Scholars have pointed out that early inscriptions do not
seem to reflect the social tensions that are part of the stories of
archaic lawmaking, such as Solon's in Athens.[[3]]  Papakonstantinou
disagrees.  He senses such tensions in the different sanctioning
authorities archaic inscriptions tend to list.  For example, he finds
them in the Dreran law that limits the frequency of the magistracy of
kosmos to no more than once every ten years (Meiggs and Lewis 2).
Papakonstantinou highlights the fact that three bodies of officials are
to swear the relevant oath (the kosmoi, the demos, and the ikati,
whoever they were), and interprets this to mean that Dreros was
probably faced with "an unstable political situation" (53) in which
legal authority was "multiple, overlapping, and sometimes conflicting"
(63).  Different institutions, representing the interests of different
classes, sought to make law, and stones such as this one are the
product of their "negotiation."  Thus they paper over the social
tensions out of which they were produced.  He finds similar tensions in
the "Spensithios Inscription" from Crete (SEG 27.631), in the so-called
"Pappadakis Bronze" (IG IX 1[2] 3.609), and in the Spartan Great Rhetra
as preserved by Plutarch (Lyc. 6. 1), among other archaic sources.
What all these have in common is that they list different bodies of
officials as authorities.  Papakonstantinou's interpretation here is
not very compelling.  Different authorities does not necessarily mean
conflicting authorities, any more than a mention of boule and demos in
Athenian documents means that council and assembly represented
different social or class interests.

Papakonstantinou is on somewhat safer ground when dealing with the
traditions of early lawgivers, such as Solon, Charondas and Zaleucus.
While there are very few (if any) signs of social conflict in the
archaic inscriptions, it is certainly true that some traditions of the
foundations of legal systems represent them as being born out of social
or class conflict.  On the other hand, even apparently secure evidence
of social tensions behind archaic lawmaking, such as Solon's poetry, is
not as secure as Papakonstantinou assumes.  For example, it is
debatable to what extent we have Solon's actual words, and how greatly
later political struggles fundamentally helped shape the text.[[4]]
More attention is needed to the problems in using later sources as
evidence for the archaic period.

The next chapter returns to inscriptions, and examines the evidence for
archaic courts.  Papakonstantinou suggests that archaic courts were
something like a halfway point between the hegemonic control of law he
finds in Homer and Hesiod and the democratic system of law we see in
classical Athens.  Papakonstantinou interprets attempts to publicize
law as meaning that the common people had become more engaged in the
law.  The aristocracy had caved into pressure somewhat, and had allowed
courts to be created, but they were still controlling them through
dikastai, whom he considers to be aristocratic "legal specialists."
This is one of his weakest claims.[[5]]  He asserts that the
Spensithios whom an archaic Cretan community hired as its official
legal scribe was an elite member of the community (78), whereas most
scholars assume that he was a foreigner, since he receives honors that
were later typically given to foreigners.  It is important for
Papakonstantinou to make this point, because if Spensithios was a
foreigner this would fly in the face of his argument that the archaic
elite aimed to control the legal system, since here we seem to have a
case in which an archaic community is delegating the "recording and
remembering" (poinikazein te kai mnamoneuwein) of its legal affairs to
someone who was not a member of it, let alone a member of its
aristocracy.

Papakonstantinou further asserts that the institution of the jury was a
popular response to elite attempts to control law through aristocratic
specialists.  He therefore argues that aristindan at IG IX 1[2] 3. 717
should be translated as "according to merit."  This inscription, a
no-plunder agreement between two communities in central Greece,
stipulates that in case of dispute a jury should be drawn aristindan
(97).  Most scholars take this simply as "from the aristocracy," but
Papakonstantinou suggests the translation "according to merit."  Doing
so allows him to maintain the strict distinction he wishes to draw
between popular juries and elite judges, but it is unconvincing.

The final chapter considers how "ordinary" Greeks' reacted to the legal
system which they faced.  Papakonstantinou draws evidence from archaic
poetry, especially Solon and Theognis, and from epigraphic texts
involving the regulation of oaths and magistrates, and judicial curses.
He asserts, "The fact that Solon lingers so extensively on the theme
of abuse of law and justice, especially by the aristocracy, indicates
that this issue was a major grievance on the part of the lower social
orders" (107).  He similarly finds evidence of class warfare behind
Theognis' laments about the kakoi who have taken over the city and are
handing down judgments for the unjust (Theognis, 45-6).  He argues that
these texts raise the possibility that class interests might manipulate
the legal system.  Archaic enactments regulating oaths and magistrates
similarly suggest the awareness that individuals might try to abuse the
legal system for their benefit.  Judicial curses, on the other hand, he
argues, "can be seen as unorthodox and resistant legal narratives
challenging the fabric of a complex and at times uneven... legal
system" (125).

In short, Papakonstantinou wants to paint a picture of archaic law as a
site of contest and negotiation between class interests, and finds
evidence to support this claim.  Despite my doubts about specific
readings of that evidence, I think Papakonstantinou makes an important
point, that legal historians ought to consider more carefully the
intersection of law and class in archaic Greece.  On the other hand,
his notion of class is severely under-theorized, ultimately reproducing
the concept (the aristocracy vs. the rest) which the ancient texts
start with, but without discussing the social or poetic ends to which
they used it.  Nonetheless, this project is worth the consideration of
scholars working on Greek law.[[6]]


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Notes:


1.   The debate about the development and meaning of written law is a
warm one.  See K.-J. Hoelkeskamp "Written Law in Archaic Greece." PCPS
38 (1992): 87-117; R. Thomas, "Written in Stone? Liberty, Equality,
Orality and the Codification of Law." BICS 40 (1995): 59-74.  See also
Gagarin's recent Writing Greek Law (Cambridge, 2008).

2.   Papakonstantinou does not mention Douris' famous illustration of
the vote deciding the fate of the arms of Achilles (Vienna 3695).  It
seems that at least one late archaic Greek could imagine the heroes
"taking their rivals to court."

3.   For example, R. Osborne. Greece in the Making (Routledge, 1996),
p. 175.

4.   See A. Lardinois, "Have we Solon's Verses?" in J. Blok and A.
Lardinois, eds. Solon of Athens (Brill, 2006).

5.   The main evidence is the notice in Ath. Pol. 16. 5 about
Peisistratus' itinerant arbitrators, whom he assumes to be
aristocratic, and the place of the Areopagus in Athenian legal history.
The latter is problematic, owing to the Areopagus' central role in the
dispute concerning the patrios politeia in the late 5th/4th century,
which Papakonstantinou does not discuss.

6.   This could be an intimidating book for those who are not
specialists in Greek law.  Most of the Greek is translated, but some is
merely paraphrased, including some in archaic non-Attic dialects.