Early Greek Law - Couverture souple

Gagarin, Michael

Couverture souple

ISBN 10 : 0520066022 ISBN 13 : 9780520066021

Editeur : University of California Press, 1989

Synopsis

Drawing on the evidence of anthropology as well as ancient literature and inscriptions, Gagarin examines the emergence of law in Greece from the 8th through the 6th centuries B.C., that is, from the oral culture of Homer and Hesiod to the written enactment of codes of law in most major cities.

A propos du livre

À propos de l'auteur

Michael Gagarin is Professor of Classics at the University of Texas, Austin. He is the author of Aeschylean Drama (1976) and Drakon and Early Athenian Homicide Law (1981).

Extrait. © Reproduit sur autorisation. Tous droits réservés.

Early Greek Law

By Michael Gagarin

University of California Press

Copyright © 1989 Michael Gagarin
All right reserved.
ISBN: 0520066022


1
Introduction: Law In Human Society

The recognition that law is a basic feature of human society distinguishing men from animals is at least as old as the Greek poet Hesiod, who says in the Works and Days (lines 276-80): "Zeus established the following way of life [nomos ] for men: whereas for fish and beasts and winged birds it is the custom to eat one another, since there is no law [dike ] among them, to men he gave law, which is by far the best thing."1 In the following chapters I shall explore how law came into existence in ancient Greece, where the rule of law was one of the most important creations of the newly developing polis, or city-state. Before examining the emergence of law during the archaic period, however, it may be helpful to clarify what I mean by "law." The following remarks are not intended to serve as a general introduction to legal theory or legal anthropology.2 They are simply an attempt to clarify my own thinking on certain issues that will arise in subsequent chapters.

In seeking to delineate precisely the boundaries of law in a society, we may begin with the useful (if superficial) division between rules, which make up the social order, and procedures, which serve to redress violations of those rules or which in general help settle

For dike in the sense of "law" see Gagarin 1973 and the end of chap. 2 below. For nomos as "way of life" in this passage see Ostwald 1969, 21; cf. West 1978, ad loc. Shipp has recently argued that the basic sense of nomos in Greek (and in this passage) is "law" rather than "custom": "Hesiod uses nomos of divine ordinance as a primitive anticipation of scientific 'law' of nature" (Shipp 1975, 11). This view, like much of Shipp's argument, is vitiated by a failure to distinguish between different English senses of "law."

The best recent work on legal theory is Hart 1961. For a good introduction to the anthropology of law, see Roberts 1979; for a brief survey of anthropological work on law, see Humphreys 1985a.

disputes. In traditional terms these are substantive and procedural law.3 A double question then arises: On the one hand, among all the rules of a society, from social customs Or rules of etiquette to formal written statutes, how do we determine which are substantive laws? On the other hand, among all the means of enforcing. rules, from a sense of guilt or the disapproval of friends to punishment by a modem judicial system, and among all the various means of settling disputes, from informal agreement or arbitration by family and friends to formal court action, how do we determine which are' legal procedures?

Most theoretical discussion has centered on the question concerning rules, and recently the most influential and, to my mind, persuasive answer has been given by H. L. A. Hart,4 who distinguishes between "primary rules," which impose obligations, and "secondary rules," which regulate the creation and operation of the primary rules. The most important secondary rules are "rules of recognition," which tell us how to "recognize" the primary rules—that is, how to know which of a society's rules are laws. Hart's solution works well for a modern literate society such as our own.5 When we try to apply it to preliterate societies, however, we encounter considerable difficulty, since these appear to lack any clear or explicit means for recognizing laws. As Hart says, writing plays a crucial role in the transition "from the pre-legal to the legal."6

On the distinction between substantive and. procedural law see chap. 3 below.

Hart 1961, esp. 89-96.

Even if one emphasizes, with the "legal realists," the importance of judicial decisions in Anglo-American law (see n. 15 below), one must admit that these decisions are based at least to some extent on formally expressed (i.e., "recognized") law in the form of either written statutes or previous court decisions. Dworkin (1977) objects that judges and juries are influenced by principles; they are also influenced by irrational prejudices, by religious and moral precepts, by social customs and attitudes, etc. But it serves no useful purpose to treat these as laws, unless or until they are formally recognized either by statute or by the explicit statement of an authoritative body such as a court. Much of what Dworkin says about the importance of general principles may be true, but none of it really damages Hart's position. See Mandel*

1979 and Hart 1983, 6-8, 123-44.

Hart 1961, 92. More recently, Schlegel (1970, 152-64) has argued for a rule of recognition among the nonliterate Tiruray of the Philippines; on this point, however, he has seriously misunderstood Hart, and his rule of recognition turns out to be only the most general moral principle of the Tiruray (roughly, "do not hurt the feelings of others"), which, as Schlegel acknowledges, does not serve to differentiate legal rules from moral rules.

It may seem arbitrary to restrict the term "law" to societies with written statutes, and many anthropologists and other scholars, perhaps unhappy with the implication that primitive societies might have no law, have wished to use the term to designate at least some aspects of preliterate societies. The question remains, however, how does one distinguish laws from all the other rules in these societies?

One approach, exemplified by Malinowski, is to treat as laws those rules in a preliterate society that cover the same areas of behavior as our own laws.7 Many anthropologists, however, have rejected this approach as a misrepresentation of the. nature of these rules.8 Malinowski certainly demonstrates the existence of regular, purposeful patterns of, for example, gift-exchange among various segments of Trobriand society, but to designate these customary practices as a kind of commercial law is in the view of many scholars a distortion.

Instead of looking for rules corresponding to our laws, many anthropologists have resorted to the idea of the enforcement of rules by society. Thus Radcliffe-Brown writes that "the field of law will therefore be regarded as coterminous with that of organized legal sanctions,"9 and Schapera argues that although "the Tswana have no written or even oral codes setting aside legal rules from all others," nonetheless "the rules of conduct distinguished from the-rest by the ultimate sanction of judicial enforcement may for all practical purposes be regarded as the 'laws' of the Tswana."10 A broader, but essentially similar statement of this view is Hoebel's famous definition: "A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting."11

The basic approach exemplified by these views is to define legal rules in a preliterate society in terms of sanctions and procedures established in order to redress violations of those rules. This ap-

Malinowski: "There exists a class of binding rules which control most aspects of tribal life, which regulate personal relations between kinsmen, clansmen and tribesmen, settle economic relations, the exercise of power and of magic, the status of husband and wife and of their respective families. These are the rules of a Melanesian community which correspond to our civil law" (1926, 66).

See Seagle 1937, esp. 282-85, and more generally Seagle 1941, 33-34.

Radcliffe-Brown 1933a, 202.

Schapera 1970, 35-37.

Hoebel 1954, 28.

proach seems to work well for certain kinds of rules in certain societies, but it contains several assumptions that must be more closely examined: that there exist sanctions in all societies with law, that we can define certain procedures as legal, and that disputes which arise in preliterate societies can normally be analyzed in terms of a rule and its violation.

To take the last of these assumptions first (I shall return to the first two points later), it is apparent from anthropological reports of tribal societies that not all disputes involve the clear violation of a rule. Sometimes two or more rules, or no rule, may apply to a given situation, or disputes may arise simply because the legitimate claims or courses of action of two parties come into conflict.12 To illustrate this consider a case from the Arusha of northern Tanzania.13 Briefly summarized, the dispute concerns a piece of land in between two men's fields. Ownership of the land had long been disputed and it remained uncultivated until one of the men, without notice, hoed up and planted for himself a narrow strip of this disputed land. The other man brought the matter to the parish assembly, whence it was referred to a local moot. The moot agreed that the defendant had acted imprudently in hoeing up the disputed strip, but he was allowed to retain the piece of land, since the plaintiff had a considerable amount of land for himself whereas the defendant had little. The plaintiff had also lost much of his support in the community by the overly aggressive way in which he had brought the case and by · his unwillingness to be generous to his more needy neighbor.

One could say that this case concerns the violation of a rule, perhaps the rule that one should not cultivate land not clearly one's own, but such an analysis would be inadequate. In the final settlement the defendant's apparent violation of this rule is ignored in favor of other rules, such as that one should be generous toward a needy neighbor, or that one should be restrained in pursuing disputes about relatively small matters. Rather, the case concerns the application of a number of different and conflicting rules to a given situation, and it cannot be analyzed by the simple model of a rule violation. There are legitimate claims on both sides, and the court

Cf. the distinction drawn by Comaroff and Roberts (1981, esp. 234- 42) between cases which involve an action over a specific value (their types 1 and 2) and cases which concern the nature of a relationship (their types 3 and 4).

See Gulliver 1963, 190-91. Another good illustration of this point is the case discussed by Roberts 1979, 125-28.

determines not simply whether a rule has been violated but what will be a fair and acceptable resolution of the conflict in the light of several different rules.14 Thus to the extent that an analysis of law in society focuses only on violations of rules, it is inadequate.

A similar objection is suggested by the legal realists, and more recently Dworkin, in their discussions of modern American law. The realists, for whom judicial decisions are the essence of a legal system,15 see law as a flexible, unstable process for settling disputes within a context of continually changing and often unpredictable rules. Dworkin's challenge to Hart's positivist analysis is based on the assumption (which seems valid) that many actual cases are decided on the basis of rules or principles other than formal, statutory laws. He argues that one should not exclude these other rules from one's definition of law.16 Dworkin's challenge does not, in my view, invalidate Hart's analysis of modern law,17 but a similar challenge can more validly be brought with regard to rules in a preliterate society, where the clear differentiation of laws from other rules does not seem possible, especially in cases involving more than a simple violation of a single dear rule. When many rules enter into the

Cf. van Velsen's "situational analysis":

One of the assumptions on which situational analysis rests is that the norms of society do not constitute a consistent and coherent whole. On the contrary, they are often vaguely formulated and discrepant. It is this fact which allows for their manipulation by members of a society in furthering their own aims, without necessarily impairing its apparently enduring structure of social relationships .... Descriptions of "primitive law" frequently imply that all disputes are simple cases of "breaking the law" and that argument therefore is concerned with the "facts" of the case while there is tacit or express agreement among all parties concerned as to the applicable norm or norms. This ignores the point that in any society one is likely to find a large category of disputes where argument is mainly concerned with the question of which of a number of mutually conflicting norms should be applied to the undisputed "facts" of the case. (1967, 146-47)

See also Hart's discussion of dear cases vs. indeterminate rules (1967, 270-71), and cf. Comaroff and Roberts, who describe mekgwa le melao (loosely translated as "Tswana law and custom") as comprising "a loosely ordered and undifferentiated repertoire of norms, the substantive content of which varies widely in its nature, value, and specificity" (1981, 70).

E.g., Frank: "For any particular lay person, the law, with respect to any particular set of facts, is a decision of a court with respect to those facts so far as that decision affects that particular person" (1930, 46).

Dworkin 1977.

See n. 5 above.

settlement of a case; it is arbitrary to designate only some of these as laws.

Several points in the preceding discussion suggest that legal rules might be most easily defined in terms of legal procedures. Turning from rules to procedures, however, we find similar difficulties in designating certain procedures as legal. The attempt to define legal procedures in terms of force or sanctions, for example, raises the question, When does a sanction become legal as opposed to simply private? This question is particularly important in discussing the idea of vengeance, a strong force in many preliterate societies. A definition of legal sanctions as those that "are imposed by a constituted authority, political, military or ecclesiastic"18 simply begs the question. Furthermore, many settlements in preliterate societies are compromises which do not require strongly coercive enforcement. Indeed, some preliterate societies have few, if any, formal means of enforcing settlements, and yet disputes in these societies may be settled with the help of recognized social authorities.19

If one specifies, however, that law exists in and must therefore be a part of a particular society,20 then it may be unnecessary to speak of enforcement. If there is no specific social authority to enforce settlements, then disputes must be settled in a way ultimately acceptable to both parties. Mutually acceptable settlements are found among preliterate people,21 and as we shall see in the next chapter,

Radcliffe-Brown 1933b, 532.

Cf. Bryce on early Iceland: "Law in fact existed without any public responsibility for enforcing it, the sanction, on which modem jurists so often dwell as being vital to the conception of law, being found partly in public opinion, partly in the greater insecurity which attached to the life of the person who disregarded a judgement. Yet law Was by no means ineffective" (1901, 281). Bryce notes that most decisions were unanimous, or nearly so, and this may have given them more authority; nonetheless, there were still many cases where one party did not accept the settlement and violence broke out.

See Nader 1969, 8-10. Other anthropologists have recently talked about the existence of law in smaller subgroups or "corporations" within society. This is an interesting approach, but it seems to me worth preserving the idea that a special kind of law exists for a society as a whole, even though among primitive people it may be difficult to define precisely the boundaries of a society. See Moore 1978, 82-134 (originally published in 1972), whose view is discussed approvingly by Gluckman 1974, 326-33.

See, for example, Reid: "For the Cherokee, a legal system functioned successfully if it maintained social harmony through mutual submission to customary procedures exercised by dearly defined groups, such as the clans. There was no need to produce that harmony by coerced submission to sovereign authority channelled through judicial institutions" (1970, 231). See also p. 23, n. 12 below.

they seem to be the rule in early Greece. If, on the other hand, a society has developed at least some ability to enforce settlements, then disputes can be settled in a way not acceptable to one party. Even then, however, every society will fall short of complete enforcement. In archaic Greece, as we shall see, enforcement of settlements was a frequent concern of lawgivers. But to whatever degree a society is able to enforce settlements of disputes, it must be the case that most disputes are in fact settled, or at least contained; otherwise the society could not endure.22

Since the idea of enforcement does not seem to provide an adequate basis for the definition of legal procedure, let us try a different approach and begin instead with the idea of disputes in the most general sense, whether arising out of the clear violation of a rule or from a more complex conflict of various rules and interests. A dispute requires the involvement of at least two parties. If the dispute is settled, the settlement is brought about by either peaceful or forcible means.23 Among the various procedures for settling disputes peacefully, I would designate as legal those which have two characteristics. First, they are public, in that they are available to all full members of the community and are generally recognized as being available. In a public procedure the community has normally recognized one or more persons or groups as having a special authority in settling disputes, though not necessarily in enforcing those settlements. Second, legal procedures are formal—not necessarily as formal as the proceedings of a modern court, of course, but at least in the sense of adhering to certain accepted traditions concerning the time, place, and general procedures for presenting a case and arriv-

It is for these reasons that I would hesitate to call "international law" law in the full sense, since the idea of an enduring society of nations is at best a weak one. In certain areas, such as international trade, most disputes are settled by means of accepted rules and procedures, and a society of nations might be said to endure. But in political and military matters it is not yet possible .to speak of an enduring international order. Some disputes between parties are settled and certain rules are widely accepted, but other disputes, particularly among the more powerful nations, resist settlement and on many important matters rules either cannot be agreed on or are regularly violated. Thus, if we use the term "international law," we should recognize that at present it is law only in an incomplete sense.

Among forceful means I include the threat of force, if this is the primary factor inducing one or both parties to accept a settlement.

ing at a settlement. Thus we may define a legal procedure as a public, formal procedure for peacefully settling disputes between members of a society,24 and on this definition we may point to legal procedures in many, though not all, preliterate societies.

This analysis suggests a three-stage model for the development of law in society. The first, which I shall call the "pre-legal" stage (though I would not insist on this terminology), is where the society has no recognized (i.e., formal and public) procedures for peacefully settling disputes among its members. I assume that every human society has some means of settling disputes or it could not remain together as a society, but it is possible that in a small group these may be only informal.25 Many preliterate societies, however, have recognizable procedures for settling disputes that meet the criteria I have set forth, and I shall designate this second stage of development, in which a society has legal procedures but no recognized legal rules (in Hart's sense), as "proto-legal." The third, fully "legal" stage of development is where a society has recognized legal

I am aware that there may be gray areas where it is hard to decide whether a procedure is formal or public enough to meet this definition, and anthropologists seem to prefer not to make the distinction at all but rather to see formal and informal, public and private procedures as part of one continuum. But consider hierarchical orderings of procedures, such as that proposed by Comaroff and Roberts (1981, 108), where disputants (1) first try to negotiate between themselves, (2) then ask their families for help, (3) then go to the ward headman, and (4) finally go to the tribal chief. We can see the step from (2) to (3) as a fairly clear transition from private to public procedures, even though this distinction may not be so rigid among the Tswana as it is in a modem society. Similarly in the three-part system described by Whitelain for pre-monarchical Israel, we may draw the line between "family law under the jurisdiction of the paterfamilias " and "the adjudication of clan or town disputes by a council of elders or town assembly" (Whitelam 1979, 46). Roberts (1979, 69-78) surveys a whole spectrum of "settlement directed talking" from bilateral negotiation to third-party adjudication.

Cf. Evans-Pritchard's famous contusion: "In a strict sense Nuer have no law." He elaborates, "I lived in intimacy for a year with Nuer and never heard a case brought before an individual or a tribunal of any kind, and, furthermore, I reached the conclusion that it is very rare for a man to obtain redress except by force or threat of force" (1940, 162). But the chief and the elders were apparently sometimes involved in the settlement of disputes (ibid, 163-64) and may perhaps be seen as constituting an informal public institution for dispute settlement. Another group that seems even further removed from law as I have defined it are the Tasaday of the Philippines. The twenty-five or so members of this extremely primitive, cave-dwelling group appear not even to have any disputes among themselves and thus, evidently, they have no means of settling disputes (see Nance 1975).

rules, as well as procedures, a step that almost always requires the knowledge of writing. I would certainly not insist on the universal validity of this or any other model. I claim only that it is a possible model for development, and I believe it will provide a useful framework for examining the emergence of law in early Greece in the following chapters.

Although it is possible at the second, proto-legal, stage to isolate certain rules of behavior that are subject to legal procedures and call them laws,26 there are two main drawbacks to such a procedure. First, it obscures the important difference between societies that explicitly recognize a group of laws as a special authoritative class, separate from other rules, and those that do not. Second, as we have seen, without some means of formally "recognizing" certain rules as laws it is often difficult or impossible to distinguish between those rules that are subject to legal procedures and those that are not. Thus I find it more useful for the purpose of this study to reserve the term "law" in the strict sense27 for those rules recognized by the society itself as forming a separate category.28

I have spoken about writing as the means of recognizing substantive laws, but it is at least theoretically possible that a society may have an official oral record of its laws preserved by recognized authorities, which would be invoked only or primarily in the settlement of disputes and would have a special authority different from that of other rules in the society.29 There has been some speculation,

This was the standard practice in colonial areas where handbooks listing "the laws" of the native peoples were commonly compiled for use by colonial administrators (e.g., Howell 1954).

In general I tend to agree with Gluckman (1965b, 182) that "there is no 'strict sense' of the word 'law.'" We may, nonetheless, employ the word in a strict sense for our present purposes without being dogmatic about an absolute sense of the term.

Even when a preliterate society has an expression translatable as "law," their rules do not necessarily have the same status as our own body of law; see, e.g., Comaroff and Roberts on mekgwa le melao ("Tswana law and custom;" see n. 14 above): "The norms that compose it are seen also to provide criteria and standards that may be invoked in dispute settlement, but they do not constitute a segregated set, distinguished for jural purposes from other kinds of norm and corresponding to 'rules of law' in the sense understood in Western jurisprudence" (1951, 28). See further Roberts 1979, 25-26, 193-94.

The idea that among preliterate people a certain person or group was the repository of "customary law" in oral form is as old as Maine (1861, 7); its popularity has not been diminished by the scarcity of actual examples of oral codes.

for example, that early Irish bards memorized and recited collections of laws, though the evidence for this is hardly conclusive.30

The evidence for "oral laws" in preliterate Iceland is stronger.31 From the early tenth century until after laws were first written down in 1117-1118 the highest public official in Iceland was the "lawspeaker," who was the sole authority for the text of the country's laws. Among his duties was an annual recitation of one-third of the laws, the complete collection being recited during his three-year term of office. He also had to be available to anyone who wanted to ascertain the law pertaining to any given matter. We do not know the precise text of any of these orally preserved "laws," though most of them seem to have concerned formal procedural matters. It is also difficult to tell just how much authority the lawspeaker had, since the judicial system, which existed in a complex form comprising local and regional bodies from the time of the earliest settlement, did not prevent the frequent resort to extralegal self-help. Such self-help continued to be common until well after the writing down of laws.32

With these possible exceptions, laws are recognized primarily by means of writing in all other societies, and certainly in ancient Greece. True, Homer and Hesiod became authoritative texts for the Greeks in oral form, and we do find a few explicit rules of behavior

Binchy (1943, 205-7) discusses certain apparent remnants of oral features in early Irish laws preserved in writing.

There is a good summary of the Icelanclic system in the chapter on "Primitive Iceland" in Bryce 1901, 263-300. For further details see Gjerset 1924, 29-48, Jóhannesson 1974, 35-93, and Hastrup 1985, 205-22.

Despite the elaborate judicial system in early Iceland, the traditional code of personal vengeance always remained strong in this period, and the courts were often notably ineffective. As Gjerset puts it:

With a highly developed jurisprudence and a well organized system of courts they nevertheless failed to maintain social order and to administer justice with efficient impartiality. In the public mind the law lacked majesty and authority. It was regarded as something for lawyers to sharpen their wits upon; something to be evaded, Or even ignored. Civic life was not regulated according to the principles of law, but continued to be controlled by custom. (1924, 46)

The early Icelandic sagas (particularly Njal's Saga ) portray a society in which the widespread use of force often leads to long-lasting vendettas. Legal rules which seem to consist primarily of rather technical procedural requirements, seldom affect a dispute. I can find no evidence, by the way, that any of the early Icelandic. "laws" was in verse. The earliest written texts do not display evidence of oral transmission; see Foote 1977.

in them. But these rules concern a broad range of human behavior, and none of them is singled out as having a special status, not even those rules that we might be tempted to call laws.

Take, for example, Ajax's plea to Achilles in Book 9 of the Iliad (6:32-36): "A man accepts blood-money even for a slain brother or child; and the killer remains in the country, having paid a large sum, and the man's anger and valiant spirit are calmed when he has received the blood-money." Should we call this a law? Certainly it concerns an area of behavior often governed by law in later so: cieties, but it is not cast in the form of a law, namely a general prescription, but is presented as an observation of normal behavior (though, to be sure, it is intended to have prescriptive force). In its present context, moreover, the rule does not have the special status of a law; it is not cited by Ajax as having any special authority, and Achilles is not persuaded to follow it. Of course the rule might be cited (along with others) in a court case, such as the one portrayed on Achilles' shield, where two men are disputing about blood-money for a man who has been killed,33 but the tag "as Ajax says" or "as Homer says" would not give the rule any compelling authority in such a case. To the extent that Ajax's generalization accurately represents the behavior of most members of the society and to the extent that Homer (or Ajax) was highly regarded, citation of the rule may have some persuasive force in a legal or other context. But a law is something different from a sociological observation.34 This rule cannot be considered a law simply because it might be true,35 unless it is explicitly differentiated from other rules in Homer that are not laws, and dearly no such differentiation exists.36 In short,

Iliad 18.497-508; we shall examine this famous scene in the next chapter.

See Hart 1961, 86-88 on the internal and external aspects of rules.

in fact in Homer the acceptance of blood-money after a homicide is extremely rare. A more accurate statement of the situation is Odysseus's remark to Telemachus after the slaughter of the suitors: "Someone who has killed only one man in a community, for whom only a few avengers are left, nonetheless flees, leaving his kinsmen and country" (Od . 23.118-20). See the catalogue of epic homicides in Gagarin 1951a, 6-10. Like Odysseus, Phoenix also uses a false generalization in his speech to Achilles. He says that when a man does wrong, he may appease the anger of the gods with sacrifices (Il . 9.497-501). The epics provide ample evidence to the contrary.

Compare, for example, the general observation made by the disguised Athena to Odysseus in Od . 7.51-52: "The bold man comes out better in everything, even if he comes from a foreign land." This is also a generalization intended to persuade, but we would certainly not call it a law. In fact, there are relatively few explicitly stated rules of behavior in Homer; most social rules are only implicit in people's speeches or must be inferred from examples (see Havelock 1978, esp. 106-22).

laws must have a special position among the rules of a society, and this is normally possible only when they are written.

This analysis of the development of law in three main stages has been motivated partly by the conviction that legal procedures in a preliterate society may be defined more easily than legal rules. The analysis further implies that formal procedures for settling disputes may come into existence and be recognized before any of the society's rules are formally recognized as legal rules. This is not always the case, but it is a possible pattern and one that we shall find when we examine the emergence of law in early Greece.

This conclusion in turn suggests that we may wish to revise the traditional understanding of substantive law as somehow "primary" law and procedural law as "secondary" or "adjective" law, to use Bentham's term.37 Bentham and most later scholars38 think of law primarily in terms of a rule-violation model, according to which substantive rules could theoretically exist by themselves without any procedures to redress violations, but procedural rules could not exist alone since their function is to help provide redress in case of violations of substantive rules. But even on this model, procedures for redressing violations may be formally recognized and even stated in writing before the rules subject to these procedures are formally recognized. And if we think more generally in terms of dispute settlement, it is easy to see how procedures for settling disputes might

See Bentham (written ca. 1780): "There are then two sorts of laws: one of which are altogether principal without being subsidiary to any: the other subsidiary and principal at the same time. As to these latter however the subsidiary character is that in which they . . . not only could not have any effect, but they could not be understood, nor even have existence, without having a principal law to refer to: the idea of such a law being included in their very essence . . . Those laws then which cannot stand alone, but require to be preceded by some other to which they may adhere, may on that account be styled adjective or enclitic laws: those of the opposite description, substantive or sell-subsisting . To the adjective class belong all laws relative to the course of judiciary procedure" (Hart 1970, 141-42).

See, for example, the discussion in Salmond 1913, 437-40, which, like most such discussions, treats substantive law as an end and procedural law as simply a means to that end (see pp. 72-73 below). Procedure has, as one might expect, been granted a higher status by the realists; see, e.g., Llewellyn 1951, 17-18, who plays down the separation of substantive from procedural law and emphasizes the latter "as conditioning the existence of any substantive law at all " (his emphasis); see also Calhoun 1944, 13-14.

arise without any reference to or dependence on substantive rules, whether written or not. Thus it may be more accurate to view procedural law as primary and substantive law as a later development.39

That procedural law need not be subsidiary to substantive law is easily proven by a number of actual cases. For example, the first written collection of Roman laws, the Twelve Tables (ca. 450 B.C. ), begins with a fundamental law Of procedure: "If a man summons another to court, he shall go; if he does not go, the plaintiff shall first summon a witness and then take the defendant by force." Coming as it does at the head of a code, this procedural law must be independent of any substantive law. Other examples of collections of written laws beginning with a procedural regulation are the Great Code at Gortyn and the laws of Hammurabi.40 That these ancient codes begin with important procedural laws suggests that procedure may have a higher status, at least in early laws, than is generally recognized.41

I do not mean to imply that procedural law is primary in a metaphysical sense (though I think this could be argued); I only mean that it may be formally expressed or recognized earlier than substantive law. Procedural laws standing alone, such as those discussed below, may contain an implicit reference to unexpressed substantive rights, and in many cases the procedural and substantive guarantees of a right cannot be completely separated. For our purposes, however, it is significant that in some cases, at least, procedural laws may be formalized independently of and earlier than substantive law.

The opening of the Gortyn Code is discussed on page 96. The first five sections of Hammurabi's laws deal with what Driver and Miles (1952, 43) call "offenses against the administration of justice" (false charges, false testimony, and falsification of judgment). Note that the remaining 277 sections of Hammurabi's code contain only substantive laws. Other early codes that begin with procedural regulations are the Laws of Manu and the Lex Salica. These codes have all been conveniently collected in Kocourek and Wigmore 1915.

Cf. Bohannan's analysis (1965, esp. 45-50), according to which in every society there exist legal institutions for settling disputes that arise within the context of the other institutions in the society. These legal institutions have rules governing their own activities (i.e., procedural rules) and also rules "that are substitutions or modifications or restatements of the rules" of nonlegal institutions (i.e., substantive rules). For the rules of other institutions to become laws they must be made rules of the legal institution as well. Before becoming "doubly institutionalized," they are simply customs. Marriage customs, for example, become marriage laws when they are formally stated or recognized as rules by the society's legal institutions. In our schema societies at the proto-legal stage of development have legal institutions governed by certain rules and thus have procedural law, but they have not yet doubly institutionalized the customs of other institutions and thus do not yet have substantive law. Bohannan's discussion also provides a means for differentiating between substantive and procedural law, since we may often distinguish fairly dearly between the rules of a society's legal institutions and those other rules which have been doubly institutionalized.

The analysis of law in terms of the primacy of legal procedure has some interesting implications. Since a legal procedure requires at least two legally recognized parties, rules governing the behavior of one person alone cannot be legal rules, at least not until the state presents itself as a legal party whose interests may be harmed by, say, the smoking of marijuana. The presence of two parties in a legal procedure may be a significant factor in the separation of laws from other rules of behavior in a society. Consider the treatment of homicide in the Homeric poems,42 where the normal result of a homicide is that the killer goes into exile, often because he is pursued or threatened with pursuit by the victim's relatives. There are two dear exceptions to this rule. First, Heracles kills his houseguest, Iphitus, desiring to obtain his horses (Odyssey 21.24-30), but since Iphitus is a foreigner and has no family present to seek revenge on his behalf, Heracles suffers no material penalty, though he does incur the anger of Zeus. Apparently the killing of a foreigner who was a guest in one's house resulted at this period in no legal dispute and thus no legal punishment. It was considered a religious or moral violation —an offense against the laws of hospitality guaranteed by Zeus— but not a legal (or proto-legal) violation.43 Second, Oedipus in the version of the story known to Homer (Odyssey 11.271-80; cf. Iliad 23.679-80) continued to rule in Thebes after it became known that he killed his father, and he apparently suffered no punishment for this deed. Here too there was no living relative who could seek vengeance on behalf of the victim.

It would be misleading to say that the Greeks had a law against killing members of one's own community but no law against killing

The evidence for the treatment of homicide in the epics is examined in Gagarin 1981a, 6-18.

Much the same can be said of killing a beggar or a suppliant, who would also have no family present to seek revenge on their behalf. Cf. the story related in the (seventh-century?) Aethiopis (see Proclus, Chrest . 2) that Achilles killed Thersites and was later purified by Odysseus on the island of Lesbos. From Proclus's brief summary it is impossible to determine the reasons for this. Apparently Thersites had no family or supporters powerful enough to demand a more severe punishment. See Parker 1983, 130-31.

foreigners or one's own closest relatives, though an attempt to deduce "laws" from the material of the epic poems might lead one to this conclusion. We can, however, say that the general prohibition against killing within the community arose in the first place (and later became a law) because the killing of another member of one's community gave rise to a dispute which had to be settled and which thus required a legal procedure. Only later did the Greeks develop forms of legal procedure to cover other cases of homicide, such as the killing of a foreigner, and even in fourth-century Athens one could sometimes avoid a prosecution for homicide if the victim died without any surviving relative or other person with the status to prosecute.44 In sum, those anthropologists who speak about laws as those rules subject to adjudication by a court have a valid point if we treat this criterion as a necessary but not a sufficient condition;45 we still need a rule of recognition in order to determine which of these rules are (strictly speaking) laws.

These Homeric examples suggest a rather clear separation between law and religion in their early stages. A common view of law, which has persisted since the earliest comparative legal studies, is that the earliest law (or "pre-law") is strongly religious, only becoming fully secular in its later historical development.46 Whatever validity this view might have with respect to other societies, we shall

The locus classicus is Demosthenes 47.68-73, for a full discussion of which see Gagarin 1979.

See, for instance, the examples Schapera (1938, 37-38) cites in distinguishing legal rules as those which are, or could be, adjudicated in court: on the one hand the rule against intercourse with another man's wife , violations of which are a matter for a court to settle, and on the other hand the "taboo" against intercourse with one's own wife during menstruation, violations of which require ritual purification but would not result in any legal action. In the first case a violation results in a conflict between two legally recognized parties, the violator and the woman's husband; in the second case there is no such conflict, since the woman has no legal standing, and the offense thus gives rise to no dispute which can be legally settled. Schapera classifies this latter rule as a religious taboo.

in the famous words of Maine: "the severance of law from morality, and of religion from law, belongs very distinctly to the later stages of mental progress" (1861, 9). Unlike some of his successors, however, Maine does not emphasize the religious nature of early law so much as the undifferentiated nature of law and religion at the earliest stages. For the religious nature of early Greek law, see Latte 1920 and the classic study by Gernet, "Droit et prédroit en grèce ancienne" in Gernet 1968, 175-260. The theory attributed to Maine of a dose connection between early law and religion is strongly opposed by Diamond 1971.

see that religious factors are of little significance in the earliest stages of Greek law.

My intent in these preliminary remarks has been primarily to explore some possible senses in which we may speak of law in preliterate society and to provide a framework, or model, for an examination of the emergence of law in preclassical Greece. The conclusions reached will, I hope, be helpful for this particular purpose. I do not claim that they will necessarily help in understanding other societies or that they provide an adequate analysis of the development of law in general. I do believe, however, that the study of Greek law, especially at its earliest stages, can shed light on some of the more general issues discussed above. Although it should be studied first as an important aspect of Greek culture, the study of Greek law can and should both draw upon and contribute to the more general study of law in human society, and I have tried to make the following study comprehensible and of interest to both classicists and nonclassicists. Unfortunately, although there are signs the situation may be changing,47 those who have studied Greek law have rarely been concerned to communicate their work to other legal historians, legal theorists, or anthropologists.48

The Greeks present us with a special situation. Although our evidence may be quite limited, it is "indigenous" in that not only at the earliest stages, but even up through the classical period Greek law developed, as far as we can tell, without any significant external influences.49 The Greek evidence extends, moreover, over a considerable period of time, from the proto-legal stage through several centuries of law in the full sense. Few other societies provide us with evidence for such a full range of the development of a legal system. For Rome we have virtually no evidence for the period before the

See the recent work of Humphreys (1983, 1985a, 1985b) and Cantarella's 1979 study of "norms and sanctions" in Homer.

The most notable exceptions to these general comments on the study of Greek law are the works of Louis Gernet (see especially Gernet 1955, 1968), who was thoroughly trained in anthropology as well as the Classics (see Humphreys 1978, 76-106), and of H. J. Wolff, who in addition to writing dozens of specialized studies has continually sought to communicate his interest in Greek law to non-specialists (see, for instance, Wolff 1975); for an excellent appraisal of Wolff's work, see Thür 1984. The best recent work on Greek law is MacDowell's survey of Athenian law (MacDowell 1978), which is accessible to nonclassicists.

See Headlam 1892-93, 48-49. On the possibility of Near Eastern influence on early Greek laws see below, especially pp. 126-29.

first written laws. In England and on the Continent many early' codes of law survive, but almost all of these already show the influence from Roman or canon law (though the common law may have been relatively untouched by this influence).50 In African and other primitive societies the legal systems studied by anthropologists have usually come under the influence of Western law.

On the other hand, the evidence for Greek law, especially for the archaic period, is quantitatively slight and often of doubtful worth. Indeed, some may feel that even the best-documented period of Athenian law—the fifth and fourth centuries—does not offer sufficient evidence, and that for the archaic period any attempt to draw conclusions about the development of law is futile. Although I obviously do not subscribe to such scepticism, we must always bear in mind that the views set forth in the following chapters must remain tentative. The effort to understand the emergence of law in archaic Greece is worthwhile nonetheless, and even a partial understanding of its function in that society can shed light on the culture as a whole.

For England see Pollock and Maitland 1898, 1: cii. Richardson and Sayles argue (1966, 1-4), however, that the first article of the oldest laws, those of Aethelbehrt (ca. A.D. 600), is an interpolation, and that none of the remaining articles shows any influence from the church. Note that Aethelbehrt's laws are entirely substantive (torts and marriage law); there is not a word about procedure, which presumably was controlled by the king and his officers. On the early Germanic codes see Watson 1985, 77-89.

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Détails de l'édition

• Éditeur: University of California Press
• Date d'édition: 1989
• Langue: anglais
• ISBN 10: 0520066022
• ISBN 13: 9780520066021
• Reliure: Broché
• Nombre de pages: 180
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