by Michael Gagarin and David Cohen (eds). Cambridge: Cambridge University Press, 2005. 494pp. Cloth. $85.00/£50.00. ISBN: 9780521818407. Paper. $29.99/£18.99. ISBN: 9780521521598
Reviewed by Ryan Balot, Department of Political Science, University of Toronto, ryan.balot [at] utoronto.ca.
This attractive volume will be helpful to legal historians and political scientists interested in obtaining an overview of the major topics, trends, and controversies in the study of ancient Greek law. Like most volumes of its kind, the present survey features mostly well-known authorities writing on topics that have previously been the subject of their own specialized research. This, of course, represents an editorial choice with both advantages and disadvantages. The chief advantage is that such essays tend to be – and these essays certainly are – solid and trustworthy. Yet, to scholars already well-versed in Greek law, most of the essays will strike a familiar note. Such is the dilemma faced by every COMPANION editor. Should one encourage seasoned scholars to summarize prevailing wisdom, or possibly exhort contributors to offer a novel treatment? Is it possible to do both? The answer is surely yes, but only, perhaps, through unusually creative editorial design and risk-taking. One possibility is to ask well-known scholars to write on unfamiliar topics, and to lead promising younger scholars to rethink the bread-and-butter categories. On the back cover of the present collection, readers are told that this “volume is intended to introduce nonspecialists to the field as well as to stimulate new thinking among specialists.” This COMPANION does provide excellent guidance for non-specialists, but those with a substantial background will have to pick and choose carefully to find original lines of thought.
The best essays achieve the desirable balance between general presentation and original interpretation. Michael Gagarin’s “The Unity of Greek Law,” for example, begins by explaining the previous debates over the existence of a “common substratum” of Greek law. This is useful in itself. Yet Gagarin’s essay transcends the pre-existing discussion by showing that unity in Greek law should be sought not in substance, but rather in procedure. For, as Gagarin persuasively argues, procedure produced the distinctive features of archaic and classical Greek law: “It thus appears that Greek poleis largely shared the same general approach to the judicial process, with the litigants themselves pleading their case as they saw fit before the judge or judges, who were free to reach a decisions as they saw fit within the established rules (i.e., in accordance with the laws, etc.). The formalism that is well known from Roman or early English law seems never to have had a significant place in Greek legal procedure” (p.35). Greek law was [*344] public, anti-authoritarian, and contextual. Its basis was the popular discretion of entire communities. Through his careful attention to Greek political culture, and through his comparisons and contrasts with other pre-modern legal systems, Gagarin identifies common features of Greek law while also respecting the local pressures that shaped law in particular historical and geographic contexts.
Equally successful is A.A. Long’s wide-ranging survey of law and nature. Although Long covers familiar territory, he does so in an original and helpful way, because of his capacity to write as both philosopher and historian. Long’s methodological eclecticism enables him to ask seemingly simple but interesting questions, such as why early Greeks avoided introducing the concept of “law” into their scientific theory. Here Long opts for an historical explanation – namely, “the strongly human and specifically legislative and local connotations that nomos acquired in fifth-century political life” (p.416). Elsewhere, though, Long offers a sagacious conceptual treatment of the relationship between Plato, Aristotle, and the Stoics on “natural law” (a universal moral code often theological in orientation) and “laws of nature” (which are “basic principles governing physical reality”). Long underestimates the Stoics’ indebtedness to Plato’s LAWS for their conception of “natural law,” but he manages to pose original questions while providing just the sort of synoptic discussion that beginners need.
Third, Part V (“Other Approaches to Greek Law”) succeeds in offering synthetic surveys with notable original touches. In addition to Long’s essay, this section features Ober on law and political theory, Allen on law and tragedy, and Wallace on law, comedy, and free speech. All three scholars provide exemplary overviews of their subjects, both breaking new ground while also giving readers a different perspective on their own notable research in these areas. All of these chapters locate their discussions historically, illuminate the dialectic between law and society, and reach surprising, albeit attractive and well-defended, conclusions. It would be hard to ask for more within the generic framework of COMPANION literature.
Other chapters will be helpful to the non-specialist, but less so to scholars in the field. In her “Relevance in Athenian Courts,” for example, Adriaan Lanni revisits the arguments of her recent book LAW AND JUSTICE IN THE COURTS OF CLASSICAL ATHENS (on which see my forthcoming review in the AMERICAN HISTORICAL REVIEW). Lanni argues that while Athenian popular courts generally interpreted legal relevance broadly in order to reach contextual judgments, Athenians also applied strict relevance to their homicide and maritime cases. A similarly solid contribution is Michael Gagarin’s “Early Greek Law.” Drawing on his deservedly well-regarded book of the same title, Gagarin shows that archaic Greeks combined written law with oral procedures that favored rational argumentation, publicity, transparency, and flexibility, instead of “formal procedures or automatic proofs, such as oath-swearing” (p.93). This [*345] unusual combination leads Gagarin to assert, plausibly but controversially, the distinctiveness of early Greek law by comparison with other ancient legal systems.
Yet several chapters are less than satisfactory even for the non-specialist, because they provide hardly any conceptual framework for understanding an extraordinarily dense mass of legal detail. Into this category fit the technical and rule-oriented chapters of Thür (classical Athenian witnesses), Maffi (classical Athenian family and property law), Rupprecht (Greek Law in Foreign Surroundings), and Modrzejewski (Hellenistic family and marriage law). For all their erudition, moreover, Rupprecht and Modrzejewski go astray by assuming “the existence of a number of basic juridical conceptions,” and thus the fundamental unity of Greek law, even across the divide between classical and Hellenistic periods (p.329, Rupprecht; cf. the slightly qualified version of this thesis expressed by Modrzejewski, p.344). This view now appears highly implausible in light of arguments such as Gagarin’s, specifically; and, generally, in light of this volume altogether. Meaningful interpretation of ancient Greek law depends upon sensitivity to historical contingency, rhetorical context, and the dialectic between law and society.
Based on a shared orientation toward the technical exploration of Greek legal rules, these four chapters perhaps illustrate the trends in continental legal scholarship that David Cohen ably criticizes in his provocative introduction to the volume. Cohen argues that in the past twenty-five years Anglo-American scholarship has considerably improved the study of Greek law, through its methodological self-consciousness, theoretical insight, and interdisciplinarity. Cohen’s particular target is the continental scholarly traditions that have assumed, largely without argument, the fundamental unity of Greek law and have thus concentrated on technical questions of legal doctrine and interpretation with little reference to the peculiarities of different social, cultural, and political contexts.
Cohen’s division of legal scholarship into Anglo-American and continental European sub-groups makes sense, but only within limits. A major exception is Eva Cantarella (Milan), who offers a terrific overview of the gendered qualities of law in classical Greece. With admirable theoretical sophistication, Cantarella moves easily from Homer to classical authors to the archaeology of Greek houses. Her survey genuinely teaches readers how they might themselves probe the sources (for example, Lysias I: ON THE MURDER OF ERATOSTHENES) in order more deeply to understand law’s embeddedness within cultural norms and practices.
Many other chapters shed light on long-standing (mis)interpretations and force readers to examine the differences between ancient and modern conceptions of justice and law. To take one example, Cynthia Patterson’s chapter on citizenship makes good on her initially jarring claim that Aristotle’s definition of citizenship is “not an historical given but rather an historical product” (p.268). [*346] Patterson patiently leads readers through the history of Athenian citizenship from Solon into the fourth century. Her account illustrates the limitations of Aristotle’s focus on deliberative and judicial participation at the expense of other political activities which real-life citizens found important, such as holding deme-based political positions, serving in the emphatically political role of priest, and taking part qua citizen in burial and inheritance procedures. Beyond providing a context for Aristotle’s own theoretically informed definitions, Patterson’s essay encourages readers to ponder the vast gulf that separates ancient from modern citizenship.
Equally, David Cohen’s two chapters show that the classical philosophers were indebted, at least structurally, to the ideological discourse on punishment at work in the Athenian democracy. More importantly, though, Cohen’s treatment reveals that the ideology of democratic punishment was at odds with itself. On the one hand, Athenian democrats viewed punishment politically, as an instrumentally useful tool for maintaining social order. On the other hand, those same democrats emphasized the necessary impartiality of punishment: punishment must be the natural consequence of fair-minded reflection on the merits of a particular case. Democracy’s critics picked up on this tension. Whatever the democrats’ self-proclaimed ideals of fairness, democratic law was a major source of the demos’s political power.
This tension is worthy of reflection. For Cohen concludes “the Athenian understanding of concepts of justice, democracy, and the rule of law in important ways differed fundamentally from our own” (p.235). Fair enough. But can we ever be certain that we, too, are not susceptible to the critique offered by writers such as the “Old Oligarch” or Plato or Aristotle, to the effect that positive law is devised by, and is therefore partial to, the regime in power? To express this point in more updated language, it may be that law, despite the best intentions of its framers, is chiefly an effect of power. And so the question arises whether we can ever be confident that our own sincere efforts to promote justice and the rule of law in a disinterested and impartial way are not always already motivated by, and entrenched within, pre-existing structures of political power. Perhaps they are and perhaps they are not. But we would be better off, I think, if we cultivated modesty and self-consciousness in such matters. The distorted mirror of democratic Athens still proves capable of awakening these virtues in us.
Lanni, Adriaan. 2006. LAW AND JUSTICE IN THE COURTS OF CLASSICAL ATHENS. Cambridge: Cambridge University Press.
Gagarin, Michael. 1989. EARLY GREEK LAW. Berkeley: University of California Press.
© Copyright 2007 by the author, Ryan Balot.