Early Greek Legal Thought

This is evident in the first place in the fact that there is no single word or phrase in Greek that conveys the general notion of “law,” as, for example, in the expressions “early Greek law” and “Athenian law.” The closest equivalent to “law” is nomos, which can mean a legal rule or statute and is also broadly used for “custom,” “tradition,” “social norm,” etc., but which never means “law” in the most general sense that the English word can have.³ Nomos does not come to designate a law (or statute) until the fifth century B.C.; earlier Greeks used different words: thesmos (“what is laid down”), rhêtra (“what is said”), and graphos, grammata (“what is written”). In fifth-century Athens, the plural of nomos—hoi nomoi—can designate the entire set of a community’s laws, and this is perhaps the closest the Greeks could come to our general sense of “law.” But hoi nomoi still designates only “the laws” and does not necessarily include that aspect of law we would categorize as the legal process (i.e., courts, trials, etc.). For “legal process,” the closest equivalent was dikê— “judgment,” “settlement,” “trial”—which, especially in its later form dikaiosynê, comes to mean “justice” with much the same broad range of meaning as the English word.

Early Greek thinkers tended to be concerned with one or the other of two aspects of law: substance and process. The earliest are more concerned about the means of regulating conflict and bringing order to society (process); later there was more interest in the rules and standards that govern the way humans lived their lives (substance). To some extent, however, this change reflects the emergence of self-conscious reflection on theoretical issues that does not appear in our earliest sources, the poets.⁴

The poems of Homer and Hesiod, composed around the end of the eighth century B.C., already indicate the importance the Greeks attached to the rudimentary process they had developed for the peaceful settlement of disputes. In the Iliad this is most evident in the trial scene portrayed on Achilles’ great shield. On the shield are two cities, one at war, the other at peace. In the latter, there are just two scenes in the town, a trial and a wedding, and one scene in the country, a harvest. The inclusion of a trial in itself conveys the sense that a process for resolving conflict is an essential ingredient of peace and prosperity. The details of Homer’s portrayal, moreover, indicate the characteristic features of this process. The scene portrays two litigants who wish to resolve their disputes:

Meanwhile a crowd gathered in the agora, where a dispute

had arisen: two men contended over the blood price

for a man who had died. One swore he’d pay everything,

and made a public declaration. The other refused to accept anything.

Both were eager to obtain a settlement from a referee.

People were speaking on both sides, and both had supporters;

but the heralds restrained them. The old men

took seats on hewn stones in a sacred circle;

they held in their hands the scepters of heralds who raise their voices.

Then the two men rushed before them, and they in turn gave

their judgments. In the middle there lay two talents of gold

as a gift for the one among them who would give the straightest judgment. (Il. XVIII.497–508, as quoted in Gagarin and Woodruff 1995, 6)

Two men disagree about payment for a man who has been killed. The precise point of disagreement has been much debated and need not concern us here,⁵ for the procedural details are fairly clear. They seek a resolution and so they have brought their dispute to the agora, or central meeting place, where a special gathering of elders will hear the case. A crowd of onlookers and supporters attend the session; they express themselves vocally and have to be restrained by heralds. The litigants plead their case one after the other, after which the elders express their opinions. One of these opinions is eventually determined (probably by consensus) to be “the straightest judgment (dikê),” and the elder who gave this opinion is rewarded with a prize. There is much that we are not told (Homer is, of course, not a legal historian), but ideally (we may assume) the litigants accept the “straightest” (fairest, most acceptable, most just) judgment and are reconciled, and the community thus remains at peace.

Already here we see the main features of the Greek concept of procedural justice. First, the process is public; like all large gatherings it takes place in the agora, and much of the community is present. A small group of respected members of the community “judge” the case—that is, they seek the best (“straightest”) resolution; in other scenes of judgment there is often a single judge, but this variation does not appear to affect the other features. The entire process is oral: Litigants speak their cases, judges speak their settlements, and the members of the crowd voice their feelings. It is a characteristically Greek scene with substantial community participation, turbulent but still orderly. The goal is a settlement that is “straight,” the primary metaphor for justice in early poetry.⁶ And since there is no mechanism for enforcement of the settlement (and enforcement would be incompatible with the loosely structured society portrayed by Homer), “straightest” must be determined by some sort of consensus, and the outcome must, in the long run at least, have the support of the community.

The importance of this process is also evident in the work of Homer’s contemporary Hesiod, who tells us he experienced it directly in the course of a dispute with his brother Perses over the division of their inheritance. In Works and Days he complains that Perses has been trying to get more than his fair share of their father’s estate and worries that the “gift-devouring kings” who want to judge the case may side with Perses. In a long passage (WD 213–85), he urges first Perses, then the kings, then Perses again, not to give way to “crooked” justice, for in the long run crooked justice will result in famine and destruction for the whole community, whereas straight justice will lead to prosperity. Hesiod summarizes his advice in the following conclusion:

This was the way of life (nomos) Zeus established for human beings:

for fish and beasts and flying birds he allowed

that one may eat another, since there is no justice (dikê) among them;

but to human beings he gave justice, which turns out to be

much better. For if someone is willing to speak justly (ta dikaia)

in full knowledge, wide-seeing Zeus makes him prosper;

but if someone lies intentionally under sworn oath

in giving testimony, and so hurts justice, he is incurably ruined.

From that time forth his family will be left in obscurity,

while the family of an oath-keeping man will prosper ever after. (WD 276–85, as quoted in Gagarin and Woodruff 1995, 19)

Like Homer, Hesiod understands the importance of the legal process; a corrupt process will lead to ruin, whereas justice leads to prosperity. Hesiod is also aware, like Homer, that justice is an oral process requiring speech that is just, here specifically in the form of truthful testimony and true oaths.

Hesiod also portrays this process for settling disputes in his Theogony, where he praises the Muses for the blessings they can give a king:

If the daughters of great Zeus [the Muses] should honor and watch

at the birth of one of the kings who are nourished by Zeus,

then they pour sweet honey on his tongue, and the words

from his mouth flow out in a soothing stream, and all

the people look to him as he works out what is right (diakrinonta themistas)

by giving judgments (dikai) that are straight: he speaks out faultlessly

and he soon puts an end to a quarrel however large, using his skill.

That’s why there are kings with intelligence: so they

can turn things around in the agora for people who have suffered

harm, easily, persuading them with gentle words.

As he comes to the hearing, they seek his favor like a god

with respect that is soothing, and he stands out from those assembled. (Th. 81–92, as quoted in Gagarin and Woodruff 1995, 19–20)

These scenes, together with many briefer references to settling disputes,⁷ give a good picture of how the Greeks at the time envisioned law in terms of an effective process for achieving a fair resolution to conflict. “Straight” justice required in the first place a process for hearing the pleas of both litigants—a requirement summed up in the maxim attributed to Hesiod but perhaps coined at a later time: “Do not judge a case before hearing both sides” (Hesiod, frag. 338, as quoted in Merkelbach and West 1967).⁸ The hearing took place in a public setting, open to all members of the community, and a judge or group of judges, who were figures of authority (often kings), heard the pleas and proposed settlements. A straight dikê provided adequate compensation for loss and for the most part satisfied the litigants. The entire process was oral: A set of speech acts by litigants and judges (and perhaps by onlookers, too) culminated in the straight settlement persuasively delivered by a judge. As Hesiod’s complaints make clear, the process did not always work as envisioned, but straight justice ideally not only resolved conflict between litigants, but also contributed to the general harmony and cohesiveness of the community.⁹

The poetry of Homer and Hesiod shows that a process for settling disputes was well established in Greece at the beginning of the archaic period (ca. 700– 500 B.C.). By this time we can also discern the main features of that characteristic Greek political form, the polis (“city-state” or “city”). Greece remained a collection of independent city-states through the classical period (ca. 500–322 B.C.) and beyond, each polis being governed by its own set of laws.¹⁰The political structure of most cities in the archaic period was some form of oligarchy with at least one deliberative body. Democracies developed in some cities by expansion of the franchise beyond the wealthy, and some cities experienced a period of “tyranny,” or the illegitimate rule of a single man.¹¹

Our evidence for different cities varies widely,¹² but none of it is inconsistent with the assumption that the legal process portrayed by the poets formed the basis for the emergence of a more formal legal system based on written laws in many, if not all, Greek cities during the archaic period. As written laws emerged and the polis grew in size and authority, there was a general shift toward a more compulsory process and toward some degree of state involvement in the enforcement of settlements, but even in the classical period, litigation and its consequences depended largely on the initiative of individuals. And the basic structure of an oral legal process remained in place through the classical period, long after the use of writing for legal matters became widespread.

Writing was introduced into Greece around 750 B.C.¹³ At first it was used only for private matters—dedications to a god, personal sentiments, and other graffiti. More than a century later it began to be used for public matters, and the earliest public inscriptions, beginning sometime after 650 B.C., were predominantly legal in nature. These inscriptions, together with later historical sources, show that during the next century (ca. 650–550 B.C.) cities all over Greece began to use writing to inscribe and publicly display legislation. In some cities early legislation was traced to a few figures who first wrote laws, Zaleucus of Locri (traditionally the first, ca. 650 B.C.), Lycurgus of Sparta (seventh century B.C., but perhaps legendary), and Draco (ca. 620 B.C.) followed by Solon (ca. 590 B.C.) in Athens. Except in Sparta, which had an antipathy to writing, almost all cities wrote laws and inscribed them, often on stones that were displayed in prominent public places such as the agora or a religious sanctuary. At this time laws were almost the only public documents that were thus displayed, so that in some cities writing became synonymous with law, and the expression “what is written” became a way of referring to the city’s laws.

Writing down laws on relatively permanent materials and displaying them in public had several effects. First, it differentiated certain rules of the community so that they could be identified as laws. Second, it conveyed a sense of the stability and permanence of these rules. Third, it assured that the laws were available to the members of the community—not to all members, given the fairly low degree of literacy at the time, but probably to most of those who commonly participated in public affairs and would be likely to be involved in litigation. Fourth, it conveyed the idea that these were a special set of rules with special authority: the rules that are written (ta grammata), or that are laid down (hoi thesmoi). Fifth, it implied or affirmed that these rules were backed by the authoritative political body that caused them to be enacted.¹⁴

Thus, writing created the idea of laws as a special class of rules backed by the authority of the polis. The stories of the lawgivers, moreover, even if much distorted (and sometimes clearly false), also conveyed the sense that the community’s many different laws were a unified set. Even in the fourth century, Athenian litigants spoke of “the laws of Solon” as including all Athenian laws, even though many of them had been enacted long after Solon’s time. Lawgivers could easily become idealized, and some were said to have been given their laws by a god (see Section 1.​5.​2 below), thus adding to the authority of their legislation. In sum, publicly displayed, written legislation conveyed the sense that the community had a coherent collection of fixed norms of behavior backed by the authority of the polis, which we would call the city’s “law.”

From all this we see that during the archaic period, Greek law was developing into a productive combination of fixed, stable, written legislation together with an oral, dynamic process for settling disputes. Although some thinkers focused their attention on one aspect or the other, Solon, who not only wrote an extensive set of laws for Athens but also wrote poems reflecting on his political accomplishments, seems to understand the connection between them when he says, “I wrote laws [thesmoi] too, equally for poor and rich, and made justice (dikê) that is fit and straight for all” (Solon, frag. 36.18–19, as quoted in Gagarin and Woodruff 1995, 27). Here for the first time we see substantive laws (thesmoi) and legal process (dikê) put together, suggesting that they are part of a single sphere of human activity, though this thought is not further developed at this time. But Solon’s verses suggest that archaic Greeks understood the close connection between written laws and the process of settling disputes, even if they did not have a word for this unified entity.

Other sixth- and fifth-century B.C. thinkers also seem to understand justice (dikê) as legal process. For example, the idea of a dynamic process of dispute settlement underlies Anaximander’s use of the metaphor of justice to describe the behavior of the cosmos: “they render justice (dikê) and retribution (tisis) to each other for injustice (adikia) according to the assessment of time.” Like litigants in court seeking retribution for injuries, the elements may give and take from each other, but over time the universe maintains a stability, which is not inert but is a dynamic process. Justice resides in the process, producing just outcomes in the long run though not necessarily in each case. Similarly, Heraclitus’s paradoxical equation (Heraclitus, DK 80, as quoted in Gagarin and Woodruff 1995, 22) of justice (dikê) and strife (eris) conveys the idea that the essence of justice is not permanence but a dynamic process of adversarial competition. But Heraclitus also sees the importance of substantive law for the survival of the city: “The people must fight for the law (nomos) as they would for the city walls” (Heraclitus, DK 44, as quoted in Gagarin and Woodruff 1995, 7; see further Sections 1.​5.​1 and 1.​6.​1 below).

The continuing interest in law as process is evident in the story of Deioces, the first king of the Medes, told by the mid-fifth-century B.C. historian Herodotus, which illustrates the sharp difference between the traditional, oral procedure in Greek law and an oriental legal process using writing (Herodotus, History I.96–100, as quoted in Gagarin and Woodruff 1995, 80–1). At first, when the Medes were still living in separate villages, Deioces acted like an archaic Greek judge: He was a prominent citizen to whom people came to have their disputes settled. He gained a reputation in his own village for “practicing justice (dikaiosynê),” and soon people in other villages heard of it and began coming to him. In the end they would take their disputes to no one else; Deioces (as we might say) had cornered the market on settling disputes. One day, realizing the power this gave him, he stopped judging cases entirely, saying he needed to tend to his own business. Lawlessness (anomia) and disorder immediately ensued. When the situation became intolerable, a group of Medes gathered and decided that they needed to institute a monarchy. Naturally, they chose Deioces as their first king.

Once Deioces was king, his whole approach to justice changed. He built a large new palace and shut himself off from his people, conducting all business through messengers. Specifically with regard to law, Herodotus tells us, Deioces

became a severe guardian of justice. People had to put their cases in writing and have them sent in to him; then he made his decisions and sent them back. In addition to this procedure for legal disputes, he established others: if he heard of anyone assaulting someone, he would send for him and impose on him a punishment appropriate to the crime, and he had spies and observers throughout the extent of his kingdom. (Herodotus, History I.100)

Herodotus presents this story as a historical event, but most scholars consider it fictional. We see it as a discourse contrasting Greek legal procedure, which Deioces follows at first, and an oriental type of justice, which he implements once he becomes king. When Deioces becomes king, law changes from an oral, public procedure open to the whole community to a closed process dependent on writing, in which the king is an absolute judge (presumably not himself subject to the law), dispensing decisions alone and in writing. Law thus is removed from the people and controlled by a single ruler. From this perspective, the story can be seen to illustrate the importance the Greeks attached to maintaining their traditional oral public procedure, thereby keeping law open to the participation of ordinary people.

One of the early provisions from Gortyn limits the term in office of the highest official, the kosmos, by prescribing a minimum interval of three years between terms; a similar provision at Dreros requires a ten-year interval.¹⁵These kosmoi and other public officials at Gortyn and elsewhere could also be fined if they did not enforce the law properly.¹⁶ Gortyn and some of the other cities where such provisions occur had aristocratic forms of government, but they all seem to share the sense that the highest officials are subject to the law like everyone else.¹⁷ Such provisions, together with other evidence, indicate that all Greeks held to the principle of “the rule of law.”

In general, Athenians placed a similar emphasis on the importance of law. One of the earliest and best-known endorsements comes in Aeschylus’s Oresteia trilogy, when Orestes and the Furies (his mother’s avenging spirits) seek the help of Athena in resolving their dispute over Orestes’ responsibility for his mother’s death. After hearing their preliminary pleas, Athena sets up a human court, the Areopagus, because the matter is too important for a single god to decide (Eu. 470–88). The court’s decision and the more general resolution at the end of the play seem to connect the city’s peace and prosperity directly to the existence of the legal process.

Support for the legal system in Athens was also assisted by the close connection between law and democracy. Democracy meant not just equal access to the courts—as Pericles says, “we have equality at law for everyone here in private disputes” (Thucydides, History II.37, as quoted in Gagarin and Woodruff 1995, 94)—but also popular control of the courts. This association of law and democracy seems to have originated under Solon, among whose “most democratic” reforms, according to the Constitution of the Athenians (9.1), were that anyone who wished could bring suit for an injured party and that cases formerly decided by a magistrate could be referred to the popular courts.¹⁸ The popular courts were originally a counterweight to the aristocratic Council of the Areopagus and to the individual magistrates, who at the time were all from the upper class. After Solon, almost all important matters were referred to courts staffed by large numbers of ordinary citizens. Solon also opened up some types of cases to prosecution by any citizen who wished; previously, only victims could bring suits, but Solon realized that some victims would be unable to act for themselves and so he allowed others to act on their behalf. Gradually, this procedure expanded to include many sorts of offenses.¹⁹

In the fifth century further reforms, by Ephialtes who reduced the power of the Areopagus (ca. 462 B.C.) and by Pericles who first instituted pay for jurors (ca. 450 B.C.), opened up the legal process to anyone who wished to participate. Almost all legal power now resided in the popular courts, where juries numbering in the hundreds and composed of any citizens who wished to participate decided most cases. Also in the fifth century nomos (“custom,” “convention”) became the word for “law,” replacing thesmos (“enactment”); this was probably intended to convey the sense that the city’s laws were not imposed from the outside but were a natural development of the city’s customs and traditions. One result of all these reforms was that litigation increased substantially during the fifth century, to the point that the comic poet Aristophanes often joked about Athenian litigiousness (see below). The Athenians undertook several reforms, most notably providing that in some cases a plaintiff who did not receive one-fifth of the jurors’ votes had to pay a stiff fine. But in general they felt it was more important that people with grievances have their day in court than that the amount of litigation be reduced.

Another important development was that increasingly in the fourth century B.C. political decisions were also made by the popular courts, especially by means of the graphê paranomôn or “suit against unlawful (para-nomos) decrees.” This was a process whereby any citizen could bring suit against a decree of the Assembly on the ground that it violated an existing law. The resulting trial would normally consider both the legality of the decree and the larger issue of its merit. The most famous of such cases was the trial “On the Crown” (ca. 330 B.C.). A certain Ctesiphon proposed a decree awarding Demosthenes a crown for service to Athens. Aeschines, a political opponent of Demosthenes, then brought suit, charging that the decree violated two laws.²⁰ Demosthenes joins in Ctesiphon’s defense and he, like Aeschines, concentrates most of his efforts on defending his own public record and attacking the character and record of his opponent. But although the case clearly turns on a political judgment about the two opponents, both devote some attention to the narrow legal issues,²¹ showing that even in a highly political case, litigants felt an obligation to adhere to the city’s laws. Such cases also indicate a sense of obligation to uphold “the rule of law,” but in other cases litigants sometimes seem largely to ignore the law.²²

Unlike modern liberal democracies, which to a large degree treat law as an autonomous institution and generally make every effort to keep law and politics separate, the Athenians openly acknowledged the close ties between them. Litigants sometimes addressed jurors as if they were sitting in the Assembly hearing a political debate, and the large number of jurors in important cases, sometimes as many as 1,500, made identification with the Assembly easier, as did the fact that jurors were not expected to have any professional or technical expertise. There were no professional judges, moreover, so that these jurors carried out most of the functions that we today assign to judges together with those of modern jurors. We today consider law to be the province of specifically trained professionals in which amateurs have a limited role. We also tend to think that political concerns ought not to affect legal decisions, although we may admit that in practice they often do. But, to take a modern example, the U.S. Supreme Court insisted that it decided the 2000 presidential election on legal rather than political grounds; openly to admit that it was moved by political considerations would have been generally condemned (though it might be different if the Court were composed of a thousand randomly selected citizens, as would be the case in Athens, rather than nine trained professionals). In any case, the Athenians were not concerned that political interests might influence legal decisions; law was one of the most important pillars of their democratic form of government, and referring political decisions to the popular courts was only natural and desirable.

Modern critics have often complained about the politicization of Athenian courts, but the complaint is almost never voiced by ancient critics, who focus instead on the litigiousness of Athenians.²³ Aristophanes devotes an entire play, Wasps