Ancient Greek Law As A Lens On Legal Theory Of Promulgation & Purpose

Ancient Greek Law As A Lens On Legal Theory Of Promulgation & Purpose Speaker: Professor Melissa Lane (Princeton University) Date: 13 February 2025 Justinian, Institutes (trans. Moyle) - 1.11.3: 'Our law is partly written (ex scripto), partly unwritten (ex non scripto), as among the Greeks' • 1.11.9: 'The unwritten law (non scripto ius) is that which usage has approved (comprobavit): for ancient customs (diuturni mores), when approved by consent of those who follow them, are like statute (legem imitantur)'. - I.II.10: 'this division of the civil law (ius civile) into two kinds...appears to have originated in the institutions of two states, namely Athens and Lacedaemon [Sparta]; • [a] it having been usual in the latter [Sparta] to commit to memory (memoriae mandarent) what was observed as law, • [b] while the Athenians observed only what they had made permanent in written statutes (ea quae in legibus scripta)'. - Aristotle Pol. 2.12: • Lycurgus & Solon as 'dēmiourgoi [craftsmen] of constitutions'  Solon of Athens, c. 600 BCE  Lycurgus of Sparta, c. 9th-7th cent. BCE - Solon and Lycurgus as Lawgivers: • → Re-founding Political Constitutions • → Reconciling Political Communities - Lycurgus Dictating the Laws Before the People (1791) - Solon Writing Down his Laws (1842 engraving) Early Greek Writing - Nestor's Cup, first example of epigraphic (inscriptional) writing in Greece, с. 750 ВСЕ Outline Of Lecture From This Point - - - Promulgation and Purpose: Hart, Fuller, Solon • Hart vs Fuller; Fuller on the purpose of subjection to rules • Solon as reconciler: the purpose of getting all to play by rules • Solon and Fuller on the ideal of Eunomia / the 'inner morality of law' The Tools of Promulgation: Writing vs Memory/Practice • Written law in Athens: Solon (594 BCE)/written legal code (403 BCE) • Unwritten law in Sparta? Memory / practice as an alternative Conclusion The Concept Of Law - 'An authoritative list or text of the rules...to be found in a written document or carved on some public monument' is 'not itself the crucial step' in the emergence of a legal system - Instead, the crucial step is emergence of a 'rule of recognition': roughly: • a rule identifying which laws are to count as the laws of a given society. - Promulgation / writing (not) essential to the 'rule of recognition' (via H.L.A. Hart) - Including the purpose of law (via Lon Fuller) - 'These laws are the ('our') laws, because they are Solon's laws'. - 'These laws are good laws, because they are Solon's laws, and Solon was a (wise) lawgiver'. The Morality of Law - 'the viewpoint of a conscientious legislator' (p. 93) - Purpose of Law: • - 'the enterprise of subjecting human conduct to the governance of rules' (p.74) The Purpose of the Lawgiver: the Role of Reconciler • Solon:  Reconciling civic factions to play by the same rules • Lycurgus:  Detailed inculcation of ethical norms and communal identity Solon as Reconciler: background - Born late 7th cent. BCE, into an elite Athenian family - Depleted family background, so chose to engage in trade: contact across economic/social divide - Basic social cleavage at the time: roughly 80/20: many of the poor at risk of debt bondage - Solon's reputation for wisdom: • Poet • One of the Seven Sages Solon as Reconciler - 'the wisest of the Athenians' 'saw that he [Solon] was the one man least implicated in the errors of the time; that he was neither associated - with the rich in their injustice, nor involved in the necessities of the poor' and 'therefore besought him to come forward publicly and put an end to the prevailing dissensions' (Plut. Sol. 14.1) - Solon → Archon, Reconciler, (Lawgiver • According to Plutarch, trans. Lane: • Solon 'was chosen as archon...and at the same time as reconciler and as lawgiver' • (Sol. 14.2) • Cf. Ath. Pol., trans. Lane:  The two factions 'chose in common Solon as reconciler and archon and entrusted the constitution to him' (5.2)  'Solon established a constitution and laid down other laws' (7.1) - Solon → Poet • 'I wrote laws too, equally for poor and rich [literally, 'for bad and good'] • And made justice that is fit and straight for all.' (W36) • '...I took my stand like a boundary stone In the ground between them. (W37) • (Greek cited from standard edition in West; translations from Gagarin & Woodruff 1995) Solon as Archon, Lawgiver, & Reconciler - 'They also appointed Solon to reform the constitution and make new laws, laying no restrictions whatever upon him, but putting everything into his hands, magistracies. assemblies, courts-of-law, and councils. - He was to fix the property qualification for each of these, their numbers, and their times of meeting, abrogating and maintaining existing institutions at his pleasure'. (Plut. Sol. 16.3) Solon Signs his Laws for Athens (1842 Wood Engraving) - Solon • - Eunomia ('lawfulness') Lon Fuller, The Morality of Law (rev. ed. 1969) • Aspirational ideal of the 'inner morality of law' Rex's Failures in Making Laws Rules (vs. ad hoc judgments) Publicly promulgated Prospective (vs. retrospective) Solon's Successes √ (frg. W36) √ (Plut. Sol. 25.1) √ and X (Plut. Sol. 15.1) Understandable √ and X (Plut. Sol. 18.3) Non-contradictory √ (Plut. Sol. 23.1-2) Possible to follow √ (Plut. Sol. 15.2) Sufficiently stable √ (Ath. Pol. (to orient subjects' 7.2) action) 'All his laws...were inscribed upon axones...' (Plut. Sol. 25.1) '...where a condition was as good as it could well be, he applied no remedy, and introduced no innovation, fearing lest, after utterly confusing and confounding the city, he should be too weak to establish it again and recompose it for the best.' (Plut. Sol. 15.1) 'it is said that his laws were obscurely and ambiguously worded on purpose to enhance the power of the popular courts. For since the parties to a controversy could not get satisfaction from the laws the result was that they always wanted jurors to decide it, and every dispute was laid before them, so that they were in a manner masters of the laws' (Plut. Sol. 18.3) 'But in general Solon's laws concerning women seem very absurd... to punish the same offence now severely and inexorably, and now mildly and pleasantly... is unreasonable...' (Plut. Sol. 23.1-2) 'when, at a later date he was asked whether he had provided the best laws for the Athenians, his reply was, "The best that they would accept". (Plut. Sol. 15.2 'And he fixed the laws to stay unaltered for a hundred years... (Ath. Pol. 7.2, trans. Rackham) Rex's Failures in Solon's Making Laws Successes Sufficiently √ (Plut. Sol. congruent with 'their 18.3) actual administration ""[H]e gave every citizen the privilege of entering suit on behalf of one who had suffered wrong... Being asked...what city was best to live in, 'That city', he replied, 'in which those who are not wronged, no less than those who are wronged, exert themselves to punish the wrongdoers'. (Plut. Sol. 18.3) Aulus Gellius on Writing Solon's Laws - (Gell. N.A. II. 12.i, Fr. 93b, Laws of Solon, ed. and trans. Leão & Rhodes) • '...those most ancient laws of Solon, which were engraved in Athens on wooden axles and were enacted by him, and which the Athenians made everlasting by the threat of legal and religious punishments.' Writing Laws in Athens: a later key moment - 404-403 BCE: Oligarchy of Thirty in Athens - 403 BCE: Restored democracy compiled all laws in written code & set up new procedure for changing laws Compilation of a Written Law Code in Athens - 'Laws. In no circumstances shall magistrates enforce a law which has not been inscribed. - No decree, whether of the Council or Assembly, shall override a law'. - (Andok. 1.87) Legal Reforms of 403 in Athens - Assembly to decide whether to allow proposals to change law - Changes to law must be brought by some individual Proposals to change law would be posted and read out - Assembly would appoint a jury-like board of nomothetai ('lawgivers') to approve/reject proposal - Nomothetai and proposers all bound to maintain consistency to the purpose / intent of the constitutional lawgiver (Solon) - '...the Athenians in the fourth century clearly envisaged each law to form part of a coherent whole, and often argued their cases taking such consistency as a given' (Canevaro 2013: 160) - 'it was impossible for two contradictory laws about the awarding of crowns to be valid at the same time' (Canevaro 2013, re Aesch. 3.37-40) The Orator Demosthenes On The Intent Of The Lawgiver - Solon is 'a very different lawgiver' from Timocrates (defendant); (Dem. 24.103, cf. 106, 113) • Intent: 'the law that he has dared to establish reveals his character' (Dem. 24.138) • Illegal act as 'lawgiver': 'I undertook to prove that he [Timocrates] is amenable to the indictment in every respect, first, because he legislated illegally; secondly, because his proposals were contrary to existing statutes; and thirdly, because they were injurious to the commonwealth...' (Dem. 24.108) • Sought illegally to pass a retroactive law (Dem. 24.72-74, 194) Proposers of changes to law → Conceived as 'lawgivers' - Transition from Athens to Sparta: Writing vs Memory • (Fuller 1969: 23, emphasis original)  'The basic characteristic of law lies in its generality'. • But can the generality and fixity of law become drawbacks to its effective promulgation into the hearts and minds of the citizens? - Disadvantages of Law - Fixity → Inflexibility - Generality → Imprecision - Vicious Cycle of Inability to Adapt to New Circumstances What about Sparta? - (Flower 2002: n.40) • 'the very scarcity of written laws [in Sparta] made it possible to invent the tradition that they had been prohibited'. Law as... - Ta grammata ('the writings') - Hē rhētra ('the spoken thing') Plutarch's Lycurgus (trans. Perrin) - (13.1) • 'None of his laws were put into writing by Lycurgus, indeed, one of the so-called 'rhetras' forbids it. • For he thought that if the most important and binding principles which conduce to the prosperity and virtue of a city were implanted in the habits and training of its citizens, they would remain unchanged and secure, having a stronger bond than compulsion • in the fixed purposes imparted to the young by education, which performs the office of a lawgiver for every one of them' Plutarch's Sayings of Spartans - 'Being asked why he had not made use of written laws, he [Lycurgus] said, • "Because those who are trained and disciplined in the proper discipline can determine what will best serve the occasion". (Mor. 227b) - 'When someone inquired why they kept the laws in regard to bravery unwritten and did not have them written down and thus give them to young men to read, Zeuxidamus [7th c. Spartan king] said, • "Because the young ought to accustom themselves to deeds of manly valour, a better thing than to apply their mind to writings"! (Mor. 221b) - (Canevaro 2016) • 'The authority of the laws derived from the authoritative action of the nomothetes [lawgiver]. • This conception of the authoritative lawgiver had important consequences. • The Athenians, as early as the fifth century BCE, saw Draco and Solon as the authors of their laws.... • Because of this, they had an institutionalized understanding that the laws should not be changed; viewed them as separate from the day-to-day administration of the polis, and therefore outside the scope of the action of the normal governmental bodies; they saw them as the province of specially appointed nomothetai acting at special times; finally, despite the fact that Solon's laws were not strictly speaking a 'code', the Athenians understood them as part of a system, the product of a unified rationality, and therefore consistent and coherent'.