Encyclopaedia Britannica, 11th Edition, "Greek Law" to "Ground-Squirrel" Volume 12, Slice 5

GREEK LAW.

Greek law and comparative jurisprudence.

Ancient Greek law is a branch of comparative jurisprudence the importance of which has been long ignored. Jurists have commonly left its study to scholars, who have generally refrained from comparing the institutions of the Greeks with those of other nations. Greek law has, however, been partially compared with Roman law, and has been incidentally illustrated with the aid of the primitive institutions of the Germanic nations. It may now be studied in its earlier stages in the laws of Gortyn; its influence may be traced in legal documents preserved in Egyptian papyri; and it may be recognized as a consistent whole in its ultimate relations to Roman law in the eastern provinces of the Roman empire.

The existence of certain panhellenic principles of law is implied by the custom of settling a difference between two Greek states, or between members of a single state, by resorting to external arbitration. The general unity of Greek law is mainly to be seen in the laws of inheritance and adoption, in laws of commerce and contract, and in the publicity uniformly given to legal agreements.

Original authorities.

No systematic collection of Greek laws has come down to us. Our knowledge of some of the earliest notions of the subject is derived from the Homeric poems. For the details of Attic law we have to depend on ex parte statements in the speeches of the Attic orators, and we are sometimes enabled to check those statements by the trustworthy, but often imperfect, aid of inscriptions. Incidental illustrations of the laws of Athens may be found in the Laws of Plato, who deals with the theory of the subject without exercising any influence on actual practice. The Laws of Plato are criticized in the Politics of Aristotle, who, besides discussing laws in their relation to constitutions, reviews the work of certain early Greek lawgivers. The treatise on the Constitution of Athens includes an account of the jurisdiction of the various public officials and of the machinery of the law courts, and thus enables us to dispense with the second-hand testimony of grammarians and scholiasts who derived their information from that treatise (see CONSTITUTION OF ATHENS). The works of Theophrastus On the Laws, which included a recapitulation of the laws of various barbaric as well as Grecian states, are now represented by only a few fragments (Nos. 97-106, ed. Wimmer).

Law in Homer.

Our earliest evidence is to be sought in the Homeric poems. In the primitive society of the heroic age (as noticed by Plato) written laws were necessarily unknown; for, "in that early period, they had no letters; they lived by habit and by the customs of their ancestors" (Laws, 680 A). We find a survival from a still more primitive time in the savage Cyclops, who is "unfamiliar with dooms of law, or rules of right" ([Greek: oute dikas eu eidota oute themistas], Od. ix. 215 and 112 f.).

Dike.

Dike ([Greek: dike]), assigned by Curtius (Etym. 134) to the same root as [Greek: deiknymi], primarily means a "way pointed out," a "course prescribed by usage," hence "way" or "fashion," "manner" or "precedent." In the Homeric poems it sometimes signifies a "doom" of law, a legal "right," a "lawsuit"; while it is rarely synonymous with "justice," as in Od. xiv. 84, where "the gods honour justice," [Greek: tiousi diken].

Themis.

Various senses of "right" are expressed in the same poems by themis ([Greek: themis]), a term assigned (ib. 254) to the same root as [Greek: tithemi]. In its primary sense themis is that which "has been laid down"; hence a particular decision or "doom." The plural themistes implies a body of such precedents, "rules of right," which the king receives from Zeus with his sceptre (Il. ix. 99). Themis and dike have sometimes been compared with the Roman fas and jus respectively, the former being regarded as of divine, the latter of human origin; and this is more satisfactory than the latest view (that of Hirzel), which makes "counsel" the primary meaning of themis.

Thesmos. Nomos.

Thesmos ([Greek: thesmos]), an ordinance (from the same root as themis), is not found in "Homer," except in the last line of the original form of the Odyssey (xxiii. 296), where it probably refers to the "ordinance" of wedlock. The common term for law, [Greek: nomos], is first found in Hesiod, but not in a specially legal sense (e.g. Op. 276).

The trial scene.

A trial for homicide is one of the scenes represented on the shield of Achilles (Il. xviii. 497-508). The folk are here to be seen thronging the market-place, where a strife has arisen between two men as to the price of a man that has been slain. The slayer vows that he has paid all ([Greek: eucheto pant' apodounai]), the kinsman of the slain protests that he has received nothing ([Greek: anaineto meden helesthai]); both are eager to join issue before an umpire, and both are favoured by their friends among the folk, who are kept back by the heralds. The cause is tried by the elders, who are seated on polished stones in a sacred circle, and in the midst there lie two talents of gold, "to give to him who, among them all, sets forth the cause most rightly" ([Greek: to domen hos meta toisi diken ithyntata eipoi]).

The discussions of the above passage have chiefly turned on two points: (1) the legal questions at issue; and (2) the destination of the "two talents." (1) In the ordinary view (a), it is solely a question whether the fine or blood-money, corresponding to the Wergeld (see WERGELD, TEUTONIC PEOPLES, BRITAIN: Anglo-Saxon) of the old Germanic law (Grimm, Rechtsalterthumer, 661 f.), has been paid or not. (This is accepted by Thonissen, Lipsius, Sidgwick and Ridgeway.) In the other view (b), it is held that the slayer "claimed to pay" the fine, and the kinsman of the slain "refused to accept any compensation" (so Passow and Leaf, approved by Pollock). (2) The "two talents" (shown by Ridgeway to be a small sum, equal in value to two oxen) are awarded either (a) to the litigant who "pleads his cause most justly before them" (so Thonissen, Shilleto and Lipsius, in accordance with the Attic use of phrases like [Greek: diken eipein]), or (b) to the judge "who, among all the elders, gives the most righteous judgment" (so Maine, approved by Sidgwick, Pollock, Leaf and Ridgeway).

On this controversy, cf. Maine's Ancient Law, chap. x. pp. 385 f., 405 f., ed. Pollock; Thonissen, Droit penal (1875), 27; P. M. Laurence (on Shilleto's view) in Journal of Philology, viii. (1879), 125 f.; Ridgeway, ib. x. (1882), 30 f., and Journal of Hellenic Studies, viii. (1887), 133 f.; and Leaf, ib. viii. 122 f., and in his Commentary on Iliad, ii. (1902), 610-614; also J. H. Lipsius in Leipziger Studien, xii. (1890), 225-231, criticized by H. Sidgwick in Classical Review, viii. (1894), 1-4.

We are told elsewhere in Homer that sometimes a man accepted blood-money from the slayer of his brother or his son, and that the slayer remained in the land after paying this penalty (Il. ix. 633). As a rule the slayer found it safest to flee (Od. xxiii. 118 f.), but even so, he might be pursued by the friends of the slain (Od. xv. 272-278). If he remained, the land was not (as in later ages) deemed to be polluted by his presence. In Homer, Orestes does not slay Clytaemestra, and he needs no "purification" for slaying Aegisthus.

Greek lawgivers: Lycurgus at Sparta.

The laws of Sparta are ascribed to the legislation of Lycurgus, whose traditional date is 884 B.C. Written laws are said to have been expressly forbidden by Lycurgus (Plutarch, Lycurgus, 13); hence the "laws of Sparta" are simply a body of traditional observances. We learn that all trials for homicide came before the Council of Elders and lasted for several days, and that all civil causes were tried by the ephors (q.v.). We are also told that originally the land was equally divided among the citizens of Sparta, and that this equality was enforced by law (Polybius vi. 45-46). Early in the 4th century the ephor Epitadeus, owing to a disagreement with his son, enacted that every Spartan should be allowed to transfer his estate and his allotment to any other person (Plutarch, Agis, 5), while Aristotle, in a much-debated passage of the Politics (ii. 9. 14-15), criticizes the Spartan constitution for allowing the accumulation of property in a few hands, an evil aggravated by the large number of "heiresses"; "a man (he adds) may bestow his heiress on any one he pleases; and, if he dies intestate, this privilege descends to his heir."

Era of written laws.

Law was first reduced to writing in the 7th century B.C. A written code is a necessary condition of just judgment, and such a code was the first concession which the people in the Greek cities extorted from the ruling aristocracies. The change was generally effected with the aid of a single legislator entrusted with complete authority to draw up a code.

Zaleucus at Locri Epizephyrii.

Charondas at Catana, etc.

Androdamas of Rhegium.

Philolaus of Corinth.

The first communities to reach this stage of progress were the Greek colonies in the West. The Epizephyrian Locrians, near the extreme south of Italy, received the earliest written code from Zaleucus (663 B.C.), whose strict and severe legislation put an end to a period of strife and confusion, though we know little of his laws, except that they attached definite penalties to each offence, and that they strictly protected the rights of property. Two centuries later, his code was adopted even by the Athenian colony of Thurii in south Italy (443 B.C.). Charondas, the "disciple" of Zaleucus, became the lawgiver, not only of his native town of Catana on the east coast of Sicily, but also of other Chalcidian colonies in Sicily and Italy. The laws of Charondas were marked by a singular precision, but there was nothing (says Aristotle) that he could claim as his own except the special procedure against false witnesses (Politics, ii. 12. 11). In the case of judges who neglected to serve in the law courts, he inflicted a large fine on the rich and a small fine on the poor (ib. vi. (iv.) 13. 2). Androdamas of Rhegium gave laws on homicide and on heiresses to the Chalcidians of Thrace, while Philolaus of Corinth provided the Thebans with "laws of adoption" with a view to preventing any change in the number of the allotments of land (ib. ii. 12. 8-14).

The laws of Gortyn.

Local legislation in Crete is represented by the laws of the important city of Gortyn, which lies to the south of Ida in a plain watered by the Lethaeus. Part of that stream forms a sluice for a water-mill, and at or near this mill some fragmentary inscriptions were found by French archaeologists in 1857 and 1879. The great inscription, to which most of our knowledge of the laws is due, was not discovered until 1884. It had been preserved on a wall 27 ft. long and 5 ft. high, the larger part of which was buried in the ground, while its farthest extremity passed obliquely athwart the bed of the mill-stream. It was necessary to divert the water before the last four columns could be transcribed by the Italian scholar, Federico Halbherr, whose work was completed in the same year by the excavation and transcription of the first eight columns by the German scholar, E. Fabricius. In the following year Halbherr discovered more than eighty small fragments on the neighbouring site of a former temple of the Pythian Apollo.