Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics available in Hardcover
Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics
- ISBN-10:
- 052185279X
- ISBN-13:
- 9780521852791
- Pub. Date:
- 04/17/2006
- Publisher:
- Cambridge University Press
- ISBN-10:
- 052185279X
- ISBN-13:
- 9780521852791
- Pub. Date:
- 04/17/2006
- Publisher:
- Cambridge University Press
Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics
Hardcover
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Product Details
| ISBN-13: | 9780521852791 |
|---|---|
| Publisher: | Cambridge University Press |
| Publication date: | 04/17/2006 |
| Pages: | 518 |
| Product dimensions: | 6.30(w) x 9.29(h) x 1.42(d) |
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Cambridge University Press
052185279X - Democracy and the Rule of Law in Classical Athens - Essays on Law, Society, and Politics - by Edward M. Harris
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I
LAW AND CONSTITUTIONAL HISTORY
1.1 SOLON AND THE SPIRIT OF THE LAW IN ARCHAIC AND CLASSICAL GREECE
THE SCATTERED REMAINS OF THE LAWS ENACTED BY THE GREEK POLEIS (CITY- states) during the Archaic and Classical periods hardly appear to form a unified body of law.1 Most of our evidence for Greek Law in this period comes from two poleis, Athens and Gortyn on the island of Crete. Several statutes from the collection of laws created by Solon in 594 have been preserved, but many of these are found in late sources such as Plutarch and lexica compiled by scholars during the Roman Empire or the Byzantine period, and it is often difficult to tell how much of the information they provide is reliable.2 There are two main problems encountered when studying the laws attributed to Solon. On the one hand, a law attributed to Solon may have been a genuine law dating from the Archaic or Classical period, but not a law that Solon himself enacted. One thinks for example of the laws about the appointment of nomothetai attributed to Solon byDemosthenes (20.93–4). These were actual laws that were in force at the time, but we know that these nomothetai were not created until after 403 BCE.3 On the other hand, a law attributed to Solon may have been a forgery completely invented by a later author. For instance, Aeschines (1.6–23) discusses several laws of Solon about schools for boys, the prosecution of hybris, and the penalties for male prostitutes. In the manuscripts of his speech we find inserted several documents purporting to be the texts of these laws of Solon, but it has long been recognized that these are all forgeries.4
For Gortyn there are two major inscriptions containing laws on property and the family. The longer inscription, often called “the Gortyn Lawcode,” is hardly a code in the modern sense, that is, a complete and systematic collection of all the main laws governing the life of a community; for instance, missing from its provisions are any statutes about homicide and public crimes like treason.5 What is more, we know nothing about the historical context that produced this collection of laws nor about the aims of the legislators at Gortyn. The evidence for laws in other Greek poleis comes mainly from inscriptions, many of which are preserved only in fragments or are hard to interpret. Moreover, we often know little or nothing about the circumstances surrounding the enactment of these laws. At first glance, the possibility of discerning any single living spirit in this heap of dry bones seems quite remote.
M. I. Finley once went so far as to claim that one cannot speak of “Greek Law” in any meaningful sense since Greece was divided into hundred of different poleis, each with its own laws and institutions.6 Yet though there certainly existed significant differences among these poleis, they were all united by certain values that enabled them to share a common Greek identity. Prominent among these values was the ideal of the “rule of law.”7 Even if one cannot speak of early Greek law as a unified legal system, we can still discover several common features in the statutes of the Greek poleis, which, taken together, reflect a unified set of principles shared by many of these different communities in the period 650–400 BCE. As P. J. Rhodes has recently observed, “There is enough similarity between what is attested for different states (...) to suggest that, in spite of justified protests against the use of inference from one place at one time to fill gaps in our knowledge of another place at another time, some valid generalizations can be made about Greek law and Greek judicial procedures.”8 It is this underlying set of general principles that I call “The Spirit of Greek Laws.”9
Despite the many problems created by our sources, historians of Greek Law are fortunate in one regard: they have the poetry attributed to Solon, the most famous lawgiver of the period. We may never be able to determine who is the actual author of these verses; they may have been written by the person who created a set of laws for the Athenians in 594 or be the product of a tradition of poetry that created the persona of an ideal lawgiver.10 What is important for legal historians is that this poetry expresses the aims and values of the Archaic Greek lawgivers and therefore helps us understand the spirit in which the Greek poleis created their laws. The Greeks also circulated many myths about their lawgivers, which, if used with caution, also provide valuable information about contemporary attitudes.11 These stories, though generally worthless as evidence for actual events, can still reveal Greek views about the role of the ideal lawgiver and the aims of legislation.
The first section of this essay begins with a study in contrast. I start by examining the way in which the Near Eastern lawgivers such as Hammurabi and Lipit-Ishtar envisioned their role in society and their relationship to the laws that they created. Their attitude is then contrasted with the way in which the poems of Solon present the task of the lawgiver and also with the image of the lawgiver found in several traditional stories. This will help us understand not only what is distinctive about the Greek attitude toward the role of the lawgiver, but also what is original about the persona of the lawgiver found in the poems attributed to Solon. The second part of the essay studies how these contrasting views about the role of the lawgiver and the place of law in society affected the shape and form of laws in the Greek poleis of the Archaic and Classical periods.
1. THE IMAGE OF THE LAWGIVER IN THE ANCIENT NEAR EAST AND ARCHAIC GREECE
Perhaps the best way to appreciate what is original about the Greek view of the lawgiver and his role in society is to contrast it with the manner in which the lawgivers of the Ancient Near East viewed their relationship to law and justice. Although the collections of laws discovered in the Near East and those of the Greek poleis treat many of the same topics (e.g., adoption, theft, slavery and debt-bondage, leases, homicide), the Near Eastern kings had a very different conception of their position in the community from that of the early Greek lawgivers.12 Monarchs like Hammurabi acted both as lawgiver and as the supreme judge in their kingdom at the same time. They did not just lay down laws but also administered these laws either directly or through their subordinates. As we will see, they did not grant permanent powers to magistrates, who had the right to administer the law by virtue of holding an office. This had a profound impact on their view of the law and its role in society and set them apart from the image of the Greek lawgivers.
The preface that Hammurabi (ca. 175 BCE) placed at the beginning of his laws provides the best evidence for his view of his role.13 Hammurabi does not tell us that he had his laws inscribed on a stele in response to a request by his people; he claims to have been appointed king by the gods Anu and Enlil to bring justice to his subjects:
The gods Anu and Enlil, for the enhancement of the well-being of the |
(i 27–49) |
In a similar way, Lipit-Ishtar (ca. 1930 BCE) says Anu and Enlil called upon him to bring justice and order to his kingdom:
At that time, the gods Anu and Enlil called Lipit-Ishtar to the princeship of |
(i 20–37) |
Rendering justice is only one of Hammurabi’s many roles: he is a king (ii 22–31), a military leader who defeats his enemies in battle (ii 68-iii 16; cf. iii 70), and a religious leader who builds temples and offers prayers and sacrifices to every god in the pantheon (ii 22–31, iii 55–64, iv 7–22, 32–52, etc.). Hammurabi is thus not an outsider who comes from abroad merely to resolve disputes as an impartial arbitrator. He is an absolute monarch who rules all aspects of his subjects’ lives. Like Lipit-Ishtar, he compares himself to a shepherd who takes good care of his flock (i 50–62; xlvii 9–58): “I am indeed the shepherd who brings peace, whose scepter is just.” Hammurabi does not concern himself with the details of administering justice; in his laws he does not assign different kinds of cases to various magistrates or grant specific powers to individual officials. The laws on his stele are his laws, and they demonstrate that the verdicts he renders as king are just:
Let any wronged man who has a lawsuit come before the statue of me, the |
(xlviii 3–38) |
Hammurabi does not place his laws in the hands of his people for them to administer their own affairs. Although Hammurabi delegated tasks to his officials, “(a)ll these officials were appointed by the central administration and reported ultimately to the king. Hammurabi’s correspondence with his high officials shows him intervening directly in day-to-day administration, frequently giving instructions on individual cases.” In the judicial sphere, Hammurabi “had jurisdiction both at first instance and on appeal.”14 The only other person who can administer his laws is his successor, who will assume his multiple duties as king and judge (xlviii 59ff.). If another king does not abide by Hammurabi’s rules, the only ones who can punish him are the gods; Hammurabi’s laws contain no measures that would enable his human subjects to hold their rulers accountable. In answer to the question “quis custodiet custodes?” (who will guard the guardians?), Hammurabi has no other answer than “the gods.”
But should that man not heed my pronouncements, which I have inscribed |
(xlix 18–52) |
Of course, if Hammurabi were to give others the power to discipline the king, this would undermine his entire conception of monarchy. After all, one cannot have the sheep telling the shepherd he is wrong.15
The Greeks saw the justice of the Near Eastern kings in a more sinister light. The story told by Herodotus (1.96–100) about the rise of Deioces to power among the Medes reveals their suspicions about such an approach to law.16 According to Herodotus, the Medes lived independently (autonomon) in scattered villages after they won their freedom from the Assyrians. Ambitious to unite the Medes under his rule, Deioces set about gaining a reputation for honesty. The men in his village grew to trust him and invited him to settle their disputes. As his reputation grew, more and more people submitted their disputes to him until he finally declared he had had enough and would judge no more lawsuits. His withdrawal plunged the country into lawlessness (anomia) and forced the Medes to make him king. Once in office, Deioces demanded that his subjects build him a vast palace at Ecbatana. When the palace was complete, Deioces remained inside to keep himself safe from plots and communicated with his people through messengers. He continued to judge lawsuits, but all cases were now submitted to him in writing so that he could keep his distance from the people.
In Herodotus’ story about Deioces, there is a contrast between independence and lawlessness, on the one hand, and monarchy (basileia), which brings law and order (eunomia), on the other. But the Greeks considered kingship tyranny (tyrannis), the absolute power of one man who is not accountable to the people whom he rules. Deioces’ constitutional position is symbolized by his physical distance from the people: he rules from his palace, hidden behind seven high walls. Deioces does not view the achievement of law and order as an end in itself, but as a means to gain power. And just as law and order is associated with tyranny, lawlessness is associated with the independence of the villages before Deioces’ accession to power.
In the eyes of the Greeks, the tyrannis of Deioces was the very antithesis of the rule of law. According to the Herodotus (7.104), the Spartan exile Demaratus told the Persian monarch Xerxes that their countries were very different from each other. Whereas the Persians feared their king as their master (despotes, the word for one who owns slaves) and did his commands, the Spartans had the law alone as their master. When violence and disorder gave the Athenian lawgiver Solon the chance to seize power for himself, he acted in a very different way from the Near Eastern kings. To begin with, Solon (or the persona of the lawgiver presented in Solon’s poetry) refused to accept the position of tyrant:
If I spared the land of my country, |
Solon fr. 32 [West] |
For Solon monarchy does not bring about law and order, but is associated with violence and is equivalent to slavery:
From a cloud come the might of snow and hail, |
Solon fr. 9 [West] |
Unlike Hammurabi, Solon does not hand down his laws and judgment to the people from his position as ruler or as a member of the ruling class. He never compares himself to a shepherd guarding over his flock or a father looking after his children.17 Solon stands apart from both the people and its leaders and acts as an impartial arbiter. In one poem Solon compares himself to a boundary stone: “I stood between them, like a boundary stone in the middle ground” (fr. 37.9–10 [West]). He places himself on the same level as the Athenians but in an impartial position, apart from each side. In another poem he compares himself to a wolf surrounded by dogs that threaten him on all sides. Had Solon favored one side or another, the result would have brought destruction for the city (fr. 36.22–7 [West]).
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