From the Origins to the Polis

Legal History, Rey Juan Carlos University, Madrid, Spain


As the long winter ended, the tempo of the clan’s life increased to match the pace of life quickening within the rich earth. The cold season enforced not true hibernation, but an alteration in metabolic rates brought about by reduced activities. In winter they were more sluggish, slept more, ate more, causing an insulating layer of subcutaneous fat to develop as protection against the cold. With a rise of temperature, the trend was reversed, making the clan restless and eager to be out and moving.—Jean Marie Auel1

2.1 From Nomadic to Sedentary Society: The Neolithic Revolution

The first scholars to study the prehistoric era sought to establish a timeline based exclusively on material evidence of human intelligence, specifically in the form of tools found at archeological sites. Thus was established the first classifications of the ages prior to the appearance of writing: The Stone Age and the Metal Age. The first of these was, in turn, divided into the Paleolithic (meaning “old stone”) and the Neolithic (“new stone”), according to the sophistication of the instruments used. The second, meanwhile, was divided according to the metals employed: copper, an easily malleable material; bronze, an alloy in which copper is strengthened with aluminum, a procedure requiring a certain level of metallurgical technique; and iron, which requires a much more complex metallurgical manipulation process.

Over time, however, the progress made in archeological discoveries ended up transforming the initial meanings of the terms “Paleolithic” and “Neolithic”. The former came to refer to the age of nomadic man, who essentially lived by hunting, which forced him to constantly move to pursue game, while the latter came to refer to the era following man’s discovery of agriculture and his establishment of the first sedentary communities, as he came to fix his residence in specific territories.

When men are nomadic and human groups are small, group organization and leadership tends to be entrusted to the individual who can best assure everyone’s survival. However, during past ages these leaders tended to be aided in their tasks by another member of the group: a shaman, witch doctor, druid or high priest, one who, as the wisest, maintained the tribe’s cultural traditions and acted as an intermediary between his people and supernatural forces. From the point of view of social cohesion, what kept the group together was, essentially, the drive to survive amidst conditions that were quite hostile and difficult, and life was organized around this function.2

It should not be ruled out, however, that in some cases these prehistoric peoples achieved forms of social organization featuring greater cohesion. How else can one explain the erection of megalithic monuments but the existence of a social framework allowing for harmony sufficient to organize the transport of stones of such dimensions? The lack of written documents, however, confines us to the realm of speculation.

What is undeniable is that, at a certain point, man became a sedentary creature who came to settle down in fixed locations. His transformation from a nomad, leading a life based on hunting, to a sedentary lifestyle, rooted in agricultural production and livestock breeding, was such a landmark event in human history that the term “Neolithic Revolution” was coined to refer to it.3

The transition from the Paleolithic to the Neolithic came about slowly as a consequence of climatic changes occurring in the wake of the last Ice Age (10000 bc). This is why there is frequent talk of an intermediate Mesolithic Era which, depending on the areas in question, is identified as having occurred between 15 and 8 millennia bc. The Neolithic Revolution, however, did not occur simultaneously all over the world. It first appeared where geographical conditions were most favorable for agricultural development (Bellwood 2005, 19–24). Conversely, it appeared latest where climatic conditions were adverse, which explains why there are still nomadic peoples living in desert areas, such as the African Bushmen of the Kalahari.

2.2 The First Literate Societies: Power and Social Structure in the Great Ancient Civilization of the Near East

Our knowledge of the humans who came before us becomes much more precise when the past can be reconstructed using written documents left by our predecessors. Thus, once a group discovers writing, it is said to have entered the historical era.

Writing only appears in societies featuring advanced degrees of civilization. Thus, the oldest written records conserved come from the first great civilizations known, which appeared—in what was no accident—in the most fertile lands of the Middle East, ones generally benefitting from major rivers. Among these regions Sumer is of particular note, arising in the territory lying between the Tigris and Euphrates Rivers (“Mesopotamia” meaning “the land between the rivers”), and that of Egypt, which arose along the Nile. Both civilizations developed between the fourth and third millennia bc. Somewhat later came the Harappan and the Mohenjo-Daro civilizations, which appeared along the Indus and Ganges Rivers, dating from 2800 bc, and the Chinese civilization along the Yangtze, as of the second millennium bc.

2.2.1 The Civilizations of the Indus Valley

Of these great civilizations the one featuring the most highly developed social structure was that which appeared in the Indus Valley, in the twin cities of Harappa and Mohenjo-Daro, from 2500 to 1500 bc. Both succeeded and were based upon a previous civilization whose characteristics are recorded in the religious texts known as the Vedas.4 Factors leading to the social cohesion of both cities included their beliefs in myths and religious ceremonies, leading them to be classified as theocracies. From the point of view of their social development, they were never unified under the leadership of a common political power,5 although it is possible that they featured some early version of the social classes upon which the current Indian caste system is based.6

2.2.2 Egypt Under the Pharaohs

The case of Egypt is the most interesting in terms of the history of social structures because of its uniqueness. Unlike the Indus Valley civilization, Ancient Egypt was not urban. The villages which emerged along the shores of the Nile, circa 4000 bc, had not evolved into cities a 1,000 years later, despite their spectacular demographic growth (Smith 1972). This is why it was relatively simple to unify Egypt under the theocratic power of a pharaoh, who was called upon to assure the economic survival of his people, which depended on the organization of the cultivation system exploiting the Nile’s annual flooding. To this end the pharaoh governed through “divinely-inspired decisions” which assured the cohesion of Egyptian society.

The pharaoh based the legitimacy of his wielding of supreme power upon his role as the representative of the Divine. Egypt, thus, was a “theocracy”. It is telling that during the era of Egyptian civilization’s greatest splendor, that of the New Kingdom (1570–1070 bc), the capital Thebes (present day Luxor) arose around the Karnak Temple Complex, dedicated to the God Amun,7 located on the shore opposite where the royal necropolis (the Valley of the Kings) was excavated. It was religious belief in the hereafter which made it possible to mobilize tens of thousands of Egyptians during the pharaoh’s reign to build the pyramids and the temples, whose dimensions continue to awe the world. Egypt was a society hierarchically structured from the top. There were, in fact, no social classes, only the rulers and the ruled. The male children and male relatives of the pharaoh occupied the highest posts in the bureaucracy and priesthood, while secondary positions were held by less immediate family.

2.2.3 Power in Ancient Mesopotamia

The case of the civilizations which appeared in ancient Mesopotamia is different. In this region between the Tigris and Euphrates Rivers, especially apt for agriculture, the urban model was that which determined the social structure—at least in the first stage, called the “dynastic” (2900–2500 bc), when some 20 independent cities (Kish, Wark, Lagash, Ur) coexisted in the southern Mesopotamian area. However, unlike the Indus Valley cities, it appears that the Mesopotamian ones did develop a degree of social structure which could be considered to constitute a precursor of the state, probably because military confrontations between these cities (Pollock 1999, 9) favored the emergence of a military caste led by a strong political power, perhaps a hereditary monarchy. In fact, one of the most important characteristics of these societies is their remarkable and early stratification. At the top there was a ruling class composed of the prince and a few aristocratic families, dominating a much broader strata made up of peasants and artisans served, in turned, by a slave class.8

The process forging the “state” accelerated when the dynastic era gave way to the “imperial era”, during which the different cities fell under the dominion of a single and very powerful king. This would first occur with the Akkadian Empire of Sargon, circa 2400 bc.9 Mesopotamia came to be governed by a successive series of monarchs, such as Babylon’s Hammurabi, author of one of the first known compilations of laws known, the famous Code bearing his name, promulgated in approximately 1760 bc. Then came the Assyrians, followed by the Neo-Babylonian Nebuchadnezzar, who destroyed Jerusalem and deported the Jewish population to Babylon in 587. The last link in this chain, marked by its centralizing, state-like centralizing traditions was the Persian Empire, which would face off against the Greek polis, eventually being conquered by Alexander the Great when the Macedonian king occupied Babylon itself in 331 bc.

2.2.4 Confucius and the Origin of the State in China

Of all the ancient eastern civilizations, that which probably boasted the most advanced degree of state development is that which appeared in China in the especially fertile region found on the Great Bend of the Yellow River. Chinese society began to take on its structure around 2200 bc during the Hsia (or Xia) Dynasty, which lasted until 1766 bc, successively supplanted by the Shang Dynasty (up to 1122 bc) and the Chou (1000–256 bc). In the latter period the pivotal figure of Confucius (551–479) would appear, a contemporary of Pericles and Buddha, who would transform the spiritual and organizational foundations of Chinese society.

Confucius is important when considering political history because of the way he sought to mitigate the negative effects of the spread of feudalism during his era. At the time of his birth China was dominated by powerful rulers at war with one another.10 To rectify this situation Confucius endorsed the idea of a single empire headed by a sole sovereign. It is interesting to note that Confucius did not base the social structure he envisioned on any divinity. China was not a theocracy, as its religion consisted essentially of the veneration of one’s ancestors and a morality according to which rulers were to be accepted by the people because they were virtuous, not because they had imposed themselves upon them by military force.11 According to Confucius, government should be based not on force, but on the encouragement of just and good conduct. From a practical point of view he defended a centralized model of governmental organization, presided over by an emperor who would administer and govern the state through a bureaucratic class. Confucius, however, argued that these bureaucrats should be selected based on merit, and not simply drawn from the hereditary nobility; thus, appeared the famous “mandarins”, who obtained their posts only after passing very difficult tests requiring years of study.12

Confucius’s ideas on government and the state were, for the first time, placed into practice by the Chin Dynasty (223–206 bc), whose emperors were so important that the line would give the country its name today: China. They were the first rulers who managed to impose a strong and centralized government with an organized and permanent imperial army and a new imperial bureaucracy that developed an efficient administration. This achievement, among others, made colossal public works such as the “Great Wall” possible. The Chin was succeeded by the Han Dynasty, which in the first century bc created the first stable and efficient state. Thanks to it, of all the great eastern civilizations, China was the most structured and stable, as the Japanese empire appeared much later.13

2.3 Family and Power in the West

Civilization came much later to the West. The first great western culture, that of Greece, peaked in the fifth century bc, many centuries after the great Egyptian or Mesopotamian civilizations did.

However, this relative backwardness would later be made up for by the development of more sophisticated social structures. Whereas in the East power generally preceded from above, and in connection with a divinity (in the cases of Mesopotamia and Egypt) in the West it was structured from below, based on kinship ties. The family is the cornerstone of western culture.

2.3.1 The Indo-Europeans Lay the Linguistic and Social Foundations of Western Culture

Beginning in the second millennium bc a series of peoples began to appear on the European continent about which little is known, except that they spoke languages which proceeded from a common linguistic branch: what has been called “Proto-Indo-European”, a language that is thought to have fragmented into different ones between 3000 and 2000 bc, evolving into Sanskrit, Greek and Latin, among others.

In addition to a shared language, the Indo-Europeans boasted a high degree of social structuring, considerably higher, in any case, than that of the indigenous peoples they encountered as they settled across the European continent.14 This greater degree of social structuring generally allowed the Indo-Europeans to establish themselves as a superior caste ruling over the indigenous populations of Greece, Rome and the Iberian Peninsula.15

2.3.2 Indo-European Family Structure and the Formation of Society in the West: From the Tribe to the City

Little is known of the Proto-Indo-European societies, and we still rely heavily on the studies of linguists and anthropologists. The classic works by Fustel de Coulanges (2001) and Morgan (2003) are still extremely interesting in spite of the fact that they can only be considered to offer likely, though not certain, suppositions about past eras about which we can never be sure because of the scarcity of the historical sources available.16 Family and Gens

Today the family is a restricted human group which, essentially, features people linked by blood ties who relate to each other during their lifetimes, that is, progenitors and their progeny (parents–children, grandparents–grandchildren) and their closest collateral relatives (brothers, uncles and cousins). Formerly, however, the family was conceived in a broader sense which transcended the temporal dimension of people’s lives. A family was understood to include all those who shared a common ancestor, who they generally venerated. The members of the ancient family were united by something more powerful than birth, affection, or physical strength. This was the religion of the sacred fire, and of dead ancestors, in which the family formed a single body, both in this life and in the next (Fustel de Coulanges 2001, 31). This family structure, in the broad sense, is an essential characteristic of the first societies established and structured by the Indo-Europeans.

The family was understood as a group of people sharing a common predecessor, usually designated in ancient sources by the Latin term gens (genos in Greek), from which comes the Castilian term gentilicio, a synonym of the word apellido (last name). Thus, all those bearing the same gentilicio, or surname, belonged to the same gens.17 The Urban Origins of the State: Clientela, Phratry, Curia and Tribe as Precursors of the City

In Indo-European society the gens formed the basis of society. Thus, isolated individuals who did not belong to any gens sought to become part of one to survive. Hence, the old gens encompassed not only blood descendants of a common ancestor, but also included people who did not share kinship ties. First, forming a natural part of the gens’ main family group were their servants and slaves. Secondly, there were also those who joined the gens by virtue of a pact or agreement. This pact, called a “clientela relationship” was of a sacred character and, once sealed, was binding upon the “clients” and their descendants. Through it primitive Indo-European families were reinforced, forming more extensive groups.18

Thus, there came a time when a certain number of families joined to form a group called the phratry, from the Greek phratria, or the curia, from the Latin. Emerging united by their common veneration of an ancestor, the phratria and eventually became socially structured groups with their own leaders and assemblies, which deliberated and were able to make decisions binding upon all. It is worth observing that during the era of republican Rome there were still comitia curiata, one of the assemblies making up the city of Rome’s political structure.

The process by which the gens were grouped did not cease, and several phratria or ended up forming tribes, which also had their own rite, with their own leader (tribuno), assemblies (comitia tributa) and tribunals. Vestiges of this tribe-based organization are still visible in the political and legal institutions of the ancient Greek cities. In Athens, for example, there were ten tribes, which each chose 50 members forming part of the Council of 500. There was also a magistrate for each tribe, and it was within them that citizens were chosen to serve in judicial capacities.

The integration process continued, gathering momentum, with the tribes ultimately grouping into cities when different ones came to live in one place: the urbe.19 Over time cities’ social and legal organization became increasingly structured. The first “urban” model to develop was the city-state, the Greek polis standing as the quintessential example. In fact, it was then when the word “politics” appeared in the history of western society.

2.4 The Greek Polis as the First Precursor of the State in the West

The city-state did not just appear in Greece overnight. Rather, it was the result of a long road, the first steps being taken towards it in the third millennium bc. Tracing the process which led to the formation of the polis is absolutely fascinating.

2.4.1 An Initial Stage of Monarchy: The Minoan and Mycenaean Civilizations

The history of ancient Greece begins circa 2300 bc in the archipelago of the Cyclades. We do not know, however, about these peoples’ social and political organization because of the absence of written records.

It was not until the year 2000 bc, in Crete, when the first urban centers such as Knossos, Phaestos and Malia arose around royal palaces. Among these, beginning in 1600 bc that of King Minos is of special note, as it was able to impose itself upon others, leading ancient Cretan civilization to be termed “Minoan”. Although the size and opulence of these palaces constitute proof of the existence of a powerful royalty backed by a bureaucracy following the Near Eastern model (i.e. Egypt and Mesopotamia), the absence of precise written sources prevents us from knowing more.

Minoan civilization suddenly disappeared around 1500 bc, perhaps because of the massive volcanic eruption that destroyed the island of Thera (Santorini now) in the Cyclades. The Greeks, nevertheless, would retain a vague memory of the era of the Minoan palaces in their legend of how Daedalus, the architect of Minos, designed a labyrinth in which the king imprisoned a Minotaur, a monster born of Queen Pasife’s relations with a bull. Theseus, the son of Athens’ king, slayed the Minotaur and emerged from the maze, able to enter and emerge from it thanks to the thread given him by Ariadne. Theseus would eventually inherit the throne of Athens and marry Phaedra, a sister of Ariadne’s.

After the disappearance of Minoan civilization, the second stage of political organization we find in Greece arose on the Peloponnesian Peninsula: Mycenaean civilization (1500–1100 bc), which left impressive ruins of fortified palaces located at Mycenae, Tiryns and even the Acropolis of Athens, in addition to lavish royal tombs. Mycenaean society was strongly structured around a king (wanax), assisted by a commanding general (lawagetas) and numerous officers, officials and scribes, as well as by priests whose influence was considerable. Below this civil service clerical and class surrounding the monarch stood the free people (demos), composed of peasants and artisans. Finally there was an underclass of slaves, essentially prisoners of war, though little is known about their situation. Among all these kingdoms that of Mycenae stood out, its prestige inspiring Homer’s Iliad, in which the Mycenaean king Agamemnon managed to unite the Achaeans to lead a military expedition against the city of Troy (destroyed in the year 1180 bc, according to tradition, though the archeological evidence discovered by Schliemann suggests 1230 bc).20

The Mycenaean palaces were destroyed around the year 1200 bc by a new invading force of Indo-European origin: the Dorians. The settlement of the Indo-Europeans in Hellas constitutes a milestone in Greek political and legal history because their high degree of social organization made the emergence of the polis possible.

From the twelfth to the tenth centuries bc Greece went through a kind of dark age from a political point of view, one which saw the Greeks living in small communities which turned to autarchy as a result of the severe depopulation following the collapse of the great monarchies of the archaic period.21 This trend was aggravated by the start of a major migration to Asia Minor, where the Greeks founded their first colonies during this period.

2.4.2 From the Homeric Kingdoms to the Appearance of the Polis (800–500 bc)

This state of things shifted beginning during the era of Homer (circa eighth century bc) when more structured political communities appeared, which in the historiography are called the “Homeric kingdoms” because they were contemporaneous with the author of The Iliad and The Odyssey.22 Said communities were organized under the authority of nobles possessing large amounts of land and livestock. These were the aristoi (the best), who imposed their hegemony upon the people (demos). Power, however, was formally wielded on their behalf by a king (basileus), who usually fulfilled primarily religious functions. It was within this framework that the model of the polis would be forged.23

2.4.3 Synoecism as the Basis of the Polis

The formation of the polis was initially a result of the economic transformation which Greek society underwent as agriculture took precedence over livestock and metallurgy with iron expanded, triggering an increase in trade with the East that allowed the Greeks to move beyond autarchy.

Economic growth led to a phenomenon of concentrated settlement whereby small communities were gradually integrated into larger cities. This was synoecism.24 Thanks to it, the Homeric kingdoms’ lack of structure would gradually give way to a model of judicial/public organization in which power resided in three specific social bodies: the popular assembly, bringing together all the citizens; a restricted council, dominated by the landowning aristocracy; and, finally, a group of magistrates25 who, after gradually shedding their traditional religious role, came to exercise increasingly “political” power.

The Greeks were so aware that synoecism was the basis of their prosperity that Athens’ most important festival was its Panathenaea, which celebrated the union of all the villages of Attica into the great polis protected by the goddess Pallas Athena—so crucial that it was depicted on the frieze of nothing less than the Parthenon itself, the most emblematic building of Athens’ Acropolis, holding the city’s treasure.26

2.4.4 The Consolidation of the Polis and Its Aristocratic Model: The Case of Sparta

The story of the Lacedaemonian or Spartan polis began in the ninth century bc, shortly after the Dorian conquest. It was then when the incorporation (synoecism) of four peoples came about, the legendary lawmaker Lykourgos furnishing them with a peculiar form of social organization, one of an oligarchic and military nature in which all citizens stood at the service of the state.27 Spartan society was strictly divided into three classes. At the top were the Spartans (Σπαρτιᾶται, Spartiâtai), who attained this status at 20 years of age, and who from the fifth century bc saw themselves as homoioi (peers, or “equals”,), descendants of the conquering Dorians, and the only full-fledged citizens.28 They were the políteuma o civic body of the State. From an early age the Spartans received military training, or agōgḗ,29 and were subjected to a regime of harsh discipline preparing them to live in community (sissitia).30 Each of them lived off of rental income, inheriting the usufruct of part of the city’s lands, which were public and non-transferable. These lands lay outside the city of Sparta and were not tilled by the usufruct holders, but by the lower social class of helots (ilotas).

The Helots (the Greek classical authors considered the term an indication of servitude, and its mean “to be captured, to be made prisoner”), were the descendants of the Achaeans, subjugated after the Dorian occupation. They were dependent peasants without civil rights, although they were able, at times, to serve in the army. Their main task, though, was to work the land of the “equals”, to whom they paid to rent which was fixed by law. They were subject to criptias, ritual ceremonies which functioned as initiation rites for adolescent Spartans, and during which the helots were indiscriminately massacred. Between the Spartans and the helots was the middle class of perieques or perioikoi, who engaged in trade or produced crafted goods (Hall 2000), and were often made to serve with the Spartan army. They were free citizens living in cities surrounding the Spartan territory who were admitted into the army, but had no political rights in Sparta, and did not form part of the assembly. Intermediary between the helots and the perioikoi were the liberated helots or neodamōdeis. There were foreigners (xenoi) in Spartan society, too, but these were not as welcome as in other city-states, and those that did live in Sparta were sometimes forcibly expelled by their hosts (Cartwright 2013).

Heading up the state were two kings for life, one from an old Achaean family (the original inhabitants, before the Dorian invasion), and another being a descendant of the latter ethnic group. Power, however, was exercised by a Council of Elders (gerousia) composed of 28 members belonging to the aristocracy and, beginning in the mid eighth century bc, an executive panel of five judges, or ephors (vigilants), elected every year by the Assembly (or Apella).31

Thanks to this rigid social organization Sparta managed to become the dominant military power in the Peloponnese.32 This was demonstrated in the famous Persian Wars battle in which the Spartan King Leonidas squared off against the Persians with just 300 “equals” at the Pass of Thermopylae (480 bc).

2.4.5 The People Versus the Aristocrats: The Origin of the “Democratic” System

In ancient Greek politics the aristocrats at first imposed themselves on the common people, made up of peasants and artisans, by controlling the council and the magistracies. The members of the oligarchy, nonetheless, had to govern with some degree of consensus because the people were represented in the assembly. In fact, conflict between these social groups was brewing, as by the late eighth century bc the poet Hesiod had denounced the aristocracy’s insolent pride and rapacity.

Several factors led to social crisis. Firstly, the fact that the aristocrats saw themselves forced to raise an army to defend the city (hoplite reform),33 which led them to appeal to the peasants who had sufficient means to pay for their own military equipment. In return, however, the new soldiers called for the right to participate in public life. Meanwhile, the small rural peasantry, whose economic condition was becoming increasingly more precarious, repeatedly rebelled. Finally, one must also take into account the emergence of money as an instrument of exchange, as it favored social mobility in a polis previously controlled by the landowners.