Early Greek Lawgivers. By JOHN DAVIS LEWIS. Classical World. London:
Bristol Classical Press, 2007. Pp. 100. Paper, $20.00. ISBN
978–1–85399–697–9.
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CJ Forum Online Exclusive 2009.02.04
This book derives real benefits from being a part of the Bristol Classical
Press Classical World series in at least two ways: it was written with a
very specific audience in mind (“late high-school and early university
level”) and the series’ impressive list of short monographs on narrow
topics, of genuine interest even to such a young audience, helps create a
complex, yet enjoyable picture of antiquity. As expected, the book strives
to stay simple while communicating complex notions and describing legal
institutions and social developments. The effort made to adapt the
complexity of the material to the pedagogical constraints is certainly to
be appreciated. The first 50 pages explain general theoretical notions,
such as the sources of early Greek law, legal procedures and formalities,
and other basic concepts regularly used in the legal field. These map out
the general background for the exploration of the main topic: the role of
the lawgiver in the ancient polis. The final 40 pages explore the
individual biographies of lawgivers, sketching the milieu in which they
developed and legislated.
The pedagogical approach to the topic is adequate. But the academic
handling of the topic is deficient in ways that do not render service to
antiquity or the book’s readers. I offer just three examples to support
this critique.
Early Greek Lawgivers is divided into two parts: the first briefly
discusses features specific to the Greek legal system, introducing students
to such distinctions as law-makers vs. constitution-makers, substantive vs.
procedural laws, ethos and nomos, and mediation and arbitration. This last
pair is discussed admirably, with examples drawn from Homer and Hesiod.
Later, though, the setup of Homeric litigation is described as ritualistic
and “informal,” on the ground that Homeric justice lacks institutions,
fixed procedures or written laws to uphold the solemnity of the proceedings
and the “sense of honor” that accompanies it. In addition to the
imprecise terminology, legal notions are jumbled: formality does not reside
in “formal,” rigid procedures and institutions set up for administering
justice, but in the spirit of the litigation process itself, i.e. in the
very ritual the litigants follow. And as long as judicial proceedings are
intrinsically associated with religious rituals, the “formalities” will
be largely ritualistic. For the ancients, the administration of justice was
formal as long as there was a sense of compulsion, of inescapable coercion
that created an extra-ordinary scenario among the participants in a suit.
What Lewis presumably meant was that the legal system was not yet as
structured in terms of developed institutions as it became in the later
ages, but the formulation is misleading.
More serious problems arise in the analysis of the other antinomies, due to
an imprecise handling of technical terms. The first example is the
opposition substantive — procedural law. The explanation of
“substantive law” is inchoate and circular (employing the terms
“substantive” and “substance”), while the clarifications that
follow actually produce more confusion (custom is mentioned as a prequel to
“substantive law,” when in reality custom is substantive and procedural
law combined but undifferentiated as yet; so too, the conclusion is that
there is a discernable Greek preference for procedural rather than
substantive regulation, but no further explication is adduced). Readers are
told that the criterion for distinguishing between the two types is whether
the law regulates the content “of a decision.” This is a major
confusion, given that “substantive law” regulates only the content of a
social relation (i.e. it defines how the facts in the case are to be
handled, whereas “procedural law” prescribes the formalities to be
observed in order to ensure the validity of the legal decision), and that
it only indirectly (but just as much as a procedural law) regulates the
content of a legal decision reached in court (p. 38).
The most striking treatment, however, is the discussion of nomos and ethos.
Not only are the meanings of the two Greek words not given, but their
overall functions are constantly blurred. There are many other significant
omissions. Lewis never explains the Greek terms used (except for histor, p.
28), although a parsimonious glossary is offered at the end of the book.
Nor does he distinguish between ethos (“custom”) and ethos
(“character, defining psychological traits”) (pp. 33, 42, 46), though
the terms appear throughout the book. At times ethos seems to be used in
both senses within a single paragraph, which confuses rather than
illuminating the reader (pp. 53–6). Two examples will suffice: one of the
main theses of the book is that the lawgivers shaped the ‘ethos’ of the
local community. We are not told whether by ‘ethos’ the author means
custom or dominant psychological features of that community, but we can
certainly raise the contrary argument: it is also the ethos (in both
senses) that informs the community, the lawgiver and thereby the laws. The
lawgiver is not just an exceptional individual, but a product of the
community in which he legislates. One final example: as already noted,
Lewis qualifies ethos (custom or psychological state?) as a
“precondition” to “any acceptance of the laws” (p. 32), or even as
somehow outside the realm of laws (p. 43). While the premise is apparently
that ethos is “custom” here (which therefore makes the claim
unsupported), the conclusion takes us into the realm of ethos as “state
of mind.” Even when Lewis mentions the “unspoken, assumed laws,”
surprisingly it is not with reference to custom (p. 44). The treatment of
the topic is too loose and pedagogically unproductive.
The objections could continue; terminological errors (sophrosune defined as
“good cheer,” p. 33; or hubris as harm done another person, p. 29) and
unrefined arguments, along with spelling mistakes (pp. 44, 51, 59, 65–7),
create the impression that one is reading a draft or a research essay
rather than a textbook.
Helpful information is given in the Chronological Table of Events,
Lawgivers and Sources (where the omission of the Lex XII Tabularum is
remarkable), and especially in the short Suggestions for Further Reading.
Also helpful are the Index and the Glossary of Technical Terms, even though
s.v. ethos, the meaning “custom”is not given.
To sum up: the goal of this work as a textbook for late high-school and
early university students is hampered by an erroneous development of
arguments and a confusing layout of information. The first part of the book
is rather a collection of personal considerations on the Greek legal
system, while the second is a useful summary of the secondary literature on
the lives of Greek lawgivers.
CONSTANTIN POP
Rutgers University
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