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Citation for Greek Law

Citation styles are based on the Chicago Manual of Style, 15th Ed., and the MLA Style Manual, 2nd Ed..

MLA

"Greek Law." In The Oxford Encyclopedia of the Bible and Law. Ed. Anselm C. Hagedorn. Oxford Biblical Studies Online. Sep 27, 2021. <http://www.oxfordbiblicalcstudies.com/article/opr/t526/e54>.

Chicago

"Greek Law." In The Oxford Encyclopedia of the Bible and Law. , edited by Anselm C. Hagedorn. Oxford Biblical Studies Online, http://www.oxfordbiblicalcstudies.com/article/opr/t526/e54 (accessed Sep 27, 2021).

Greek Law

Greek law describes the various laws and legal concepts in operation in the Greek world from the end of the Bronze Age to the Roman conquest. The term suggests a unified system. As most Greek poleis had their own set of laws, such a unity is difficult to postulate even though we find striking similarities in the legal procedure (Gagarin and Cohen, 2005, pp. 29–40). As a result, “we can meaningfully speak of a unity of Greek law which we might call procedural in the broad sense that all Greek cities … share a similar attitude to the purposes and general methods of legislation and litigation” (Gagarin, 2008, p. 243).

The complexity of the nature of Greek law is mirrored in the wide variety of sources from different geographical regions. These can be classified as follows:

  • 1. Epigraphic sources: these represent the numerous inscriptions from the different poleis in Greece. Despite the fact that we have inscriptional evidence from a wide variety of poleis (Nomina I-II; Hölkeskamp, 1999) the most extensive body of material comes from Athens and Crete (esp. Gortyn).
  • 2. Quotations of law in the 10 “canonical” Attic Orators: Antiphon, Lysias, Demosthenes, Aeschines, Andocides, Isocrates, Isaeus, Lycurgus, Hyperides, and Dinarchus active ca. 420–ca. 322 B.C.E.
  • 3. Legal material or procedure alluded to in other literary sources such as epic, tragedy, comedy, and historical writings.

Despite this plethora of material available, we neither have a complete code of laws nor an extensive treatise about legal concepts in the Greek world. Even the “Queen of Inscriptions,” the Gortyn Code, engraved in eleven and a half columns and comprising 621 lines and more than 3,000 words was probably never meant as a complete inscription of all the laws of the polis of Gortyn. Also, the sources only reflect a small segment of the life of the law in ancient Greece. What we can glean from inscriptions, forensic oratory, and other literature leaves significant gaps. These gaps were already recognized by the Greeks who tolerated them (Gagarin and Cohen, 2005, p. 35).

The Earliest Evidence for Law.

The earliest (literary) evidence for law and some form of legal procedure can be found in the poems of Homer and Hesiod composed around 700 B.C.E. Here we encounter the portrayal of a traditional society with no written laws. Nevertheless both works picture an established judicial process that resolves the competing claims of its (male) members. The notion of law/justice (dikē) separates the human person from animals that only know of custom (Hesiod, Op. 276–280).

In Homer’s famous description of the shield of Achilles (Iliad 18.497–508), we encounter a legal scene between two men who are in disagreement about the blood price for a dead man. “The scene portrays two disputants one of whom killed a man; the other, who is seeking satisfaction for the death, is most likely a relative of the victim” (Gagarin, 2008, p. 15):

Meanwhile a crowd had gathered in the agora, where a disputehad arisen: two men contended over the blood-pricefor a man who had died. One swore he would pay everything,demonstrating this to the people. The other refused to accept anything.Both were eager to find a conclusion at the hands of an umpire.People were shouting out on both sides, supporting both litigants;But the heralds restrained them. And the old mentook seats on polished stones in a sacred circle;they held in their hands the scepters of loud-voiced heralds.Then the two men came quickly before them and one after the other gave their judgments.In the middle lay two talents of gold,to be given to the one among them who would speak the straightest judgment.

(Gagarin, 2008, p. 14)

What we see here is a voluntary process in a public place (agora) of the city. There are no professional judges and the decision is made by an umpire chosen from the honorable elder men of the community. Both litigants are supported by a crowd of followers. After the elders of the city have heard the pleas, they rise one after the next to propose settlements. This shows that settlements are in fact a compromise and reached by negotiation with the crowd offering feedback and thus influencing the decision. When the elders have reached a decision, both parties have to accept it. The only alternative to accepting it is exile. Since the community is involved in the legal procedure and since nonacceptance of the verdict would lead to a loss of societal ties, there is no need for any enforcement.

Issues of law and justice are also prevalent in the work of Homer’s contemporary Hesiod (Theogony 80–92). In contrast to Homer, he focuses on the role of king(s) in the legal process. As a result, he paints the ideal of a just king that is both a poet, and thus inspired by the Muses, and a guardian of justice, very close to the ancient Near Eastern concept of kingship.

For she [the Muse Calliope] accompanies honored kings.And whichever of the divinely nourished kingsthe daughters of great Zeus [the Muses] honorand look upon at birth, on his tongue they pour sweet honeyand soothing words flow from his mouth. And the peopleall behold him, distinguishing the ruleswith straight settlements. And he, speaking surely,quickly and skillfully puts a stop to even a large dispute.This is why there are intelligent kings, so that the peoplewho have been disadvantaged may restore matters in the agora,easily, persuading them with soft words.And as he comes to the gathering, they honor him as a godWith gentle reverence, and he is conspicuous among those assembled.

(Gagarin, 2008, p. 20)

Like the poet, the king in Hesiod’s concept must be an eloquent character whose “soothing words” appeal to the litigants so that they accept the judgment. This does not imply that every legal decision he makes will seem fair to everybody “but over time most of his decisions must be seen by most people to be fair and acceptable” (Gagarin, 2008, p. 21). If a king succeeds, his authority will grow and he will be honored by the gods. If he fails, people will look for another figure of authority. Though Hesiod can complain about the crooked judgments uttered by kings (Op. 260–262) he is convinced that true justice is attainable (Papakonstantinou, 2008, p. 39). As in the Homeric epics, Hesiod, too, connects law and justice with the divine sphere. A little later than Hesiod, Archilochus (fr. 177 [West]) can state that Zeus will oversee justice: “Zeus, father Zeus, yours is the rule in heaven, you watch over men’s deeds, wicked and lawful, and both the violence and the justice of the beasts are your concern” (Papakonstantinou, 2008, p. 39). In later tradition, many Greek cities trace their laws back to divine intervention (Aristoteles, fr. 548 [Rose]; Plutarch, Lyc. 6.1).

What we encounter in these earliest witnesses is a legal process that is entirely oral and does not refer to written laws or statues but rather relies on traditional rules and customs of the community. These laws are called themistes and often said to have come from Zeus. As the instances from Homer and Hesiod reflect law in operation in Greece during the eighth century B.C.E., we can assume “that before the invention of alphabetic writing in Greece an oral procedure for peaceful dispute-settlement had developed as an alternative to violence and self-help” (Gagarin, 2008, p. 27). This concept of unwritten law in operation fits well with the general absence of writing in the works of Homer and Hesiod (the only exception might be Iliad 6.168–169 but the meaning is debated).

Although writing arrived in the Greek world around 800 B.C.E., initially it is not used to record laws. Only during the middle of the seventh century, a period of economic growth of individual poleis throughout the Mediterranean do we find the first written laws inscribed on or attached to the walls of temples and of a size that suggests that they were meant to be read by the members of the community. The largest number of these early inscriptions is from Crete. The island presents us with a remarkable set of laws of which the oldest written statutes date back to late seventh century B.C.E. In contrast to ancient Athens, writing down the law in Crete did not lead to the development of a democratic society such that Crete represents an alternative to the legal culture of Athens. It is further noteworthy that we have almost no other epigraphic evidence from Crete apart from laws and this suggests the importance of written law for this society. This importance is paired with a notion of a polis identity since the oldest inscription from the polis of Dreros (Nomima I.81) in Crete states at the outset that “the polis has decided”:

"The polis has decided: when someone has been kosmos, within ten years the same person is not to be kosmos again. But if he does become kosmos, whenever he gives judgment, he himself is to owe a fine of twice the amount, and he is to be without rights (to office?) as long as he lives, and whatever he does as kosmos shall be void. And oath-swearers (are) the kosmos and the damioi and the twenty of the polis.(Gagarin, 2008, p. 46)"

The first law known to us prohibits the kosmos (i.e., the highest official of the archaic Cretan poleis) from holding office more than once every 10 years and lists punishments for violation. Here we see a further development to the Homeric concept of legal dispute where sanctions are not listed. As we have similar laws from Gortyn (Nomima I.82) where the kosmos is limited to one term every three years, we can see that different poleis regulated similar issues differently. In one of the oldest Greek inscriptions, we see that the law is presented as a decision of the polis, a feature that occurs in laws from several Cretan poleis and may point to larger public interest (Gagarin, 2008, p. 82). Though recent studies argue that it is first and foremost elite concerns that are governed by law (Hawke, 2011; Papakonstantinou, 2008), these laws, nevertheless, masquerade as decisions of the whole body of people (i.e., the polis), and are, thus, geared toward the establishment of a sense of community. This idea is later developed into a vision of (written) law, providing equality in procedure, when Solon (fr. 36.18–20 [West]) describes his law-giving process: “I introduced thesmous for the lower and upper classes alike providing a straight process for each person” (Papakonstantinou, 2008, p. 108). From this point on, the notion evolved in the Greek world that law becomes the supreme master of society more venerated than kings (Herodotus, Hist. 7.104). However, the question of whether the enactment of law(s)—be it by a democratic, oligarchic, or despotic power—does not constitute an act of violence remained (Xenophon, Memorabilia 1.2.40–46). The Aristotelian notion (Pol. III 9, 1280b 10–12) that law is able to make the citizens good and just may be an ideal concept.

Roughly contemporary to the first law from Dreros (ca. 621 B.C.E.) Draco, the Athenian lawgiver, composed a law to address homicide (Nomima I.02). This law punishes homicide with exile and contains detailed stipulations about procedure. This law remained valid throughout Athenian history and is incorporated into the first law code from Athens written by Solon in 594 B.C.E. Solon’s laws (Ruschenbusch, 2010) covered a wide variety of issues and provided the basis for the development of Athenian law of the classical period. Already in the legislation known from Archaic Greece, we find most subjects of law treated with a clear focus on private matters. Inscribing individual laws on the stonewalls of temples gave these laws a sense of permanence and helped promote the authority of law within a community. “The publicly written versions were accessible and visible, and even if few of the citizens could actually read them, there were perhaps enough who could and more who could point to the public inscriptions as a reminder of the law” (Gagarin and Cohen,2005, p. 47). To prevent laws from being altered, severe curses could be invoked as is demonstrated, for example, by the case in Teos (Nomima I.104). Such measurements show a certain anxiety for the preservation and stability of the written law as well as pointing to problems associated with the implementation of legal rules that often replaced long-established customs.

The Laws of the Classical Period (ca. 490–323 B.C.E.).

The most extensive evidence for written law of the period derives from the Cretan city of Gortyn. Here the most famous one is clearly the Gortyn Code consisting of 12 columns written on one of the city’s famous walls (Homer, Iliad 2.645–649). Written in 12 columns of large clear letters this magnificent inscription is the only evidence of law from classical Gortyn. It remains a matter of speculation as to how and if the legal code worked in practice. Due to the nature of its laws, the code has been used as comparative evidence for the Laws of Hammurapi (Gagarin, 2008, pp. 146–175) and for aspects from Deuteronomy (Hagedorn, 2004), although a direct influence of either the Laws of Hammurapi or Deuteronomy on the code is highly unlikely. Rather, Crete, as well as earlier legal concepts mentioned above, seems to reflect a concept of justice common in the Mediterranean (Raaflaub, 2013, pp. 355–379). The primary focus of the individual laws from Gortyn is once again the private sphere, including family, property, and inheritance laws, with quite detailed stipulations regulating sexual offenses. Similar to several other inscriptions from Crete and elsewhere in Greece, the code begins with a divine invocation. As this invocation is not connected to the rest of the corpus it may be little more than perfunctory. In general, we do not find any religious stipulation in the code. Religious issues are simply taken for granted. They are neither regulated nor is the divine sphere accustomed to imbuing recorded law with extra authority. It appears that religious issues such as oath taking and witnessing at Gortyn are well known and almost customary such that no regulation is necessary. The individual stipulations are formulated in casuistic fashion. It can be debated whether the Gortyn Code is simply the compilation of various single enactments or whether we have here the result of a careful (and logical) codification (Hagedorn, 2004, pp. 62–63).

Gortynian society as reconstructed from the code was dominated by free property-owning males. Women, however, were allowed to own property and remained in possession of it once they were divorced. Daughters would inherit alongside sons but their share was only half of that of male members of a family. The code also recognizes marriages between slaves and free persons and slaves. Sexual offenses were punished by fines determined by the status of the victim. Generally speaking, the socioeconomic system functioning in fifth-century Gortyn is simply taken for granted in the code and the laws seem to favor “a system protecting privilege, of safeguarding the ownership and transmission of property …, and of ensuring the continuance of male lineages” (Gagarin and Cohen, 2005, p. 327).

In contrast to Gortyn, we have little epigraphic evidence for inscribed law in Athens of the classical period. The laws of Solon, for example, were written on rotating wooden beams (Plutarch, Solon 25). Since the Athenians considered the legal system an integral part of their direct democratic process, we have a multitude of literary sources (esp. forensic speeches) that compensate for the apparent lack of epigraphic material. The classic study by A. R. W. Harrison on Athenian Law (Harrison, 1998) divides the vast legal material in aspects of “family and property” and “procedure.” From the forensic speeches, we learn which legal topics were addressed in Athenian courts (e.g., property disputes, theft, rape, assault, intentional and unintentional homicide, and public concerns, such as citizen status and public misconduct). As the legal system was considered an integral part of Athenian democracy there was broad participation of the citizens in the legal process. Athenian males over the age of 30 could volunteer for jury duty in the popular courts and citizens were chosen by lot for most of the magistrates. Only cases of homicide and some select religious matters were judged by the Areopagos (Aristotle, Ath. Pol. 57.3, cf. Harrison, 1998, 2:36–43). In contrast to modern courts, no judge oversaw the jury. It was the sole responsibility of a jury to reach a verdict (by majority vote) and the decisions could not be appealed. As a result of such a broad participation of its citizens, most legal decisions were made by ordinary Athenians and it might even be argued that Athenians preferred ad hoc legal decisions to a rule of law. This seems to be mirrored in the different approaches to decisions in different courts. In general, Athenian legal procedure struggles with “the tension between adherence to general rules and doing justice in specific cases” (Lanni, 2006, p. 175). Also, judgments tended to be unique acts, that is, the court resolved the individual case but did not provide the legal expectation of precedent, namely, that a similar case in the future would be judged in the same way. As part of the democratic setting a (male) litigant had to plead his own case. However, rich evidence of legal oratory demonstrates that professional orators could be hired for a fee. The process of litigation was generally initiated by the victim or an interested party such as a political opponent. It was allowed to introduce documentary evidence or witnesses that served to provide proof of the litigant’s side of the case (Gagarin and Cohen, 2005, pp. 146–169). As part of the legal argument, the litigant often attempted to put his case in the context or service of public interest, which may have influenced the jury. How personal and assumed public interest can be intertwined is apparent in Lysias’s speech On the Death of Eratosthenes. Here Lysias defends Euphiletus, on trial for killing the seducer of his wife in flagrante delicto, an act that is not punishable according to the laws of Draco. Near the climax of the narrative, Lysias turns from the aspect of personal revenge and focuses on the importance of law (1.26):

"It is not I who will kill you but the law of the city. You have broken the law and have less regard for it than for your own pleasure. You have preferred to commit this crime against my wife and my children rather than behaving responsibly and obeying the laws.(Gagarin and Cohen, 2005, p. 202)"

We see that the murdered seducer is pictured as an enemy of the city. The private affair thus becomes a public offense that threatens the lawful order of Athens’s democracy. If private cases can have a public dimension, it is hardly surprising that litigation can be used as part of the political process. Since trials were always open to the public, this provided a forum for political debate, as well as an opportunity to advance one’s career. The modern concept of the separation of politics and law was alien to ancient Athens. Rather, Athenians regarded law as a political institution.

Despite the importance placed by the Greeks on written laws as a means of formalization and stabilization of rules and procedures, writing was kept “out of the legal process where it could become an obstacle to access” (Gagarin, 2008, p. 245). This changes in the Hellenistic period and especially in Egypt where we only find sparse evidence for written laws, but a myriad of written documents containing and addressing legal matters (marriage certificates, wills, deeds, etc.). Since these documents were allowed in court, it is no surprise that legal professionals unknown to classical Greek law now became an integral part of legal procedure.

Women in Greek Law.

The role of women in Greek law is difficult to assess (Sealey, 1990) as most sources offer a male perspective. Although women were considered citizens, they were not allowed to become active in a court of law and had to be represented by their husband or guardian (kyrios). This concept implied that rape and adultery were seen as offenses against the kyrios. Already Draco’s homicide law divided women into two categories: “good women” worthy of protection and other women with whom sexual acts were allowed (Gagarin and Cohen, 2005, p. 239). In Athens, free women had citizen status but none of its rights. Pericles decreed that a woman’s status as citizen determined whether her children were citizens or not thus ending the concept that citizenship descended in the male line exclusively (Ath. Pol. 42.1). In contrast to Gortynian legislation, in Athens women did not participate in the inheritance process after the death of the father. The reason was most likely that the dowry received at the time of marriage was seen as part of the inheritance. Women, however, could inherit as sisters, cousins, or aunts (Demosthenes 43.51). According to Isaeus (10.10) the law forbade women to engage in major economic transactions. That such limitations may have elicited critique from women can be seen from a passage in Aristophanes, Ecclesiazusae (1024–1052), in which the women of the assembly decree that no man shall be permitted to transact business over the limit of one bushel.

The Figure of the Lawgiver.

In the figure of the lawgiver, we find manifold parallels as well as important differences to the presentation of biblical law. Moses as lawgiver is situated in the distant past. Along similar lines, the Greeks believed their laws to be ancient, attested by the numerous legends regarding various lawgivers (Hölkeskamp, 1999, pp. 44–59). It is important to note that most Greek states were disposed to ascribe their legal code to a single ancient lawgiver (Demosthenes 22.25) producing a code, subsequently viewed as unchanging and unchangeable. As a result, we find references to King Minos as the first lawgiver of Crete (Hölkeskamp, 1999, p. 47), Lycurgus as nomothetes for Sparta (Herodotus, Hist. 1.65), and Solon for Athens whose nomoi have the same status as Draco’s thesmoi (Andocides 1.83). “Solon’s appearances in democratic rhetoric are by no means confined to precise laws or reforms dignified by his name. A great deal more is attributed to the ancient lawgiver, indeed his intentions in legislating are elaborated at length” (Thomas, 1994, p. 122). Next to the obvious legislative and moral aims of such an appeal, as part of the legal process (Aeschines 1.6), frequent reference to the ancient lawgiver opens up the possibility that many laws quoted at a much later stage in Greek history can be traced back to the lawgiver (Plato, Minos 318c). In the case of Athens, we have numerous examples of legal stipulations, which are of clear Solonic origin. Furthermore, Euphonion of Chalkis reports that the axones of Solon were written boustrophedon (FGH 72 fr. 13). Since this mode of writing was only used up to 530 B.C.E. it is highly possible that the use of this old mode of writing indicates the antiquity of the laws attributed to Solon. Thus the code of Solon was probably effective from 594 to 403 B.C.E. Furthermore, there are instances of laws that remain valid and continue to be quoted after they have long become obsolete (Plutarch, Solon 19.4), as well as archaic linguistic survivals in Athenian law (Lysias 10.15–25). The same can be observed in the biblical material where the Covenant Code remains valid next to its revision in the book of Deuteronomy, prompting the development of reading strategies that influence the shaping and understanding of the Pentateuch as a whole. The literary tradition of the lawgiver contains several stereotypical literary motifs, such as extensive travel by the lawgiver, divine revelation of the legal process or divine inspiration of the lawgiver, and the “call” to become a nomothetes in time of dire need. As a result, the lawgiver often overcomes a state of anomy before departing the polis paving the way for legal reform. The aim of these floating legends remains the same: the laws of the lawgiver replace ancient customs that are no longer recognized as divine rules and allow the creation of a set of nomoi that are human in origin but possess a new aura as the laws are now enactments of the whole polis and can thus become catalysts for further political and social change (Papakonstantinou, 2008, p. 129).

The Problem of “Sacred Law.”

Greek sacred law is a thorny subject beginning with the question of whether one should speak of “sacred law” or “sacred laws” since Greek sources use both (see, e.g., IG IV2 1, 128.10–11; IG XII 4, 299 for the singular use and IG I2 2.583; LSCG 154 = IG XII 4, 72 for the plural use). The problems begin with the designation sacred laws. “To qualify as a sacred law, … an inscription must be prescriptive; its subject matter and main focus must be or pertain to religion and particularly to cult practice, on the whole recurrent in nature, or at least set within the framework of ordinary worship. Reality is, however, more complex and leaves some room for interpretation” (Lupu, 2005, p. 8). Scholars generally distinguish between two aspects: first, those laws and stipulations that regulate the cult and related matters. These laws—even though they regulate/structure ritual practice—are not really “sacred” but simply enactments made by the assembly of the people (Athens) or by a similar (human) body. Second, the term serves as an English translation of Karl Latte’s idiom heiliges Recht. Latte’s fundamentally evolutionary approach is critiqued in detail by Robert Parker (Gagarin and Cohen, 2005, pp. 68–79). Suffice it to say Latte was convinced that “sacred law” (heiliges Recht) was necessary because of the weakness of secular tribunals. This is a tempting proposal but a look at the Hebrew Bible quickly reveals complications. The book of Deuteronomy, for example, makes a strong point for a central authority, that is, the only place of legitimate worship. In Latte’s view, the emergence of a strong authority would lead to an abandonment of sacral legitimation, not the case in Deuteronomy where an explicit sacred/sacral component is added to several laws to emphasize that an individual offense has repercussions on society as a whole (see, e.g., Deut 13:6; 17:7; 19:19; 21:21; 22:21, 24; 24:7 and the similar view expressed in Demosthenes 21.225). With regard to other biblical law codes such as the Holiness Code, one might argue that the stress placed on the sacred is a later development as the legislation becomes sacred, because it is intrinsically bound to the deity. In this case, we observe the same process Parker described with regard to Greek sacred laws—a process in which sacral forms occupy “discharging functions that at the date in question could be discharged in no other way” (Gagarin and Cohen,2005, p. 79).

[See also ANCIENT NEAR EASTERN LAW; BIBLICAL LAW; BOOK OF THE COVENANT; CIVIL LAW; DEUTERONOMIC LAW; EPIGRAPHIC TEXTS; ETHICS; GENDER, subentries on ANCIENT NEAR EAST, HEBREW BIBLE, and NEW TESTAMENT; HALAKHA/RABBINIC LAW; HOMICIDE, subentry GRECO-ROMAN PERIOD AND NEW TESTAMENT; INTERNATIONAL LAW; LAWS OF HAMMURAPI; LEGAL EXPERTS; LEGAL INSTITUTIONS; LEGAL RHETORIC; METHODS IN STUDYING ANCIENT LAW; MONARCHY AND ADMINISTRATION; ROMAN LAW, and SLAVERY, subentry GRECO-ROMAN PERIOD AND NEW TESTAMENT.]

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Anselm C. Hagedorn

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