2. Law

The earliest Greeks appear to have conceived of law as sacred custom, divinely sanctioned and revealed; themis* meant to them both these customs and a goddess who (like India’s Rita or China’s Tao or Tien) embodied the moral order and harmony of the world. Law was a part of theology, and the oldest Greek laws of property were mingled with liturgical regulations in the ancient temple codes.³⁶ Perhaps as old as such religious law were the rules established by the decrees of tribal chieftains or kings, which began as force and ended, in time, as sanctities.

The second phase of Greek legal history was the collection and co-ordination of these holy customs by lawgivers (thesmothetai) like Zaleucus, Charondas, Draco, Solon; when such men put their new codes into writing, the thesmoi, or sacred usages, becamenomoi, or man-made laws.* In these codes law freed itself from religion, and became increasingly secular; the intention of the agent entered more fully into judgment of the act; family liability was replaced by individual responsibility, and private revenge gave way to statutory punishment by the state.³⁷

The third step in Greek legal development was the accumulative growth of a body of law. When a Periclean Greek speaks of the law of Athens he means the codes of Draco and Solon, and the measures that have been passed—and not repealed—by the Assembly or the Council. If a new law contravenes an old one, the repeal of the latter is prerequisite; but scrutiny is seldom complete, and two statutes are often found in ludicrous contradiction. In periods of exceptional legal confusion a committee ofnomothetai, or law determiners, is chosen by lot from the popular courts to decide which laws shall be retained; in such cases advocates are appointed to defend the old laws against those who propose to repeal them. Under the supervision of these nomothetai the laws of Athens, phrased in simple and intelligible language, are cut upon stone slabs in the King’s Porch; and thereafter no magistrate is allowed to decide a case by an unwritten law.

Athenian law makes no distinction between a civil and a criminal code, except that it reserves murder cases for the Areopagus, and in civil suits leaves the complainant to enforce the court’s decree himself, going to his aid only if he meets with resistance.³⁸Murder is infrequent, for it is branded as a sacrilege as well as a crime, and the dread of feud revenge remains if the law fails to act. Under certain conditions direct retaliation is still tolerated in the fifth century; when a husband finds his mother, wife, concubine, sister, or daughter in illicit relations he is entitled to kill the male offender at once.³⁹ Whether a killing is intentional or not it has to be expiated as a pollution of the city’s soil, and the rites of purification are painfully rigid and complex. If the victim has granted pardon before dying, no action can be brought against the killer.⁴⁰ Beneath the Areopagus are three tribunals for homicide cases, according to the class and origin of the victim, and according as the act was intentional, or excusable, or not. A fourth tribunal holds court at Phreattys on the coast, and tries those who, while exiled for unpremeditated homicide, are now charged with another and premeditated murder; being polluted by the first crime, they are not allowed to touch Attic soil, and their defense is conducted from a boat near the shore.

The law of property is uncompromisingly severe. Contracts are rigorously enforced; all jurors are required to swear that they “will not vote for an abolition of private debts, or for a distribution of the lands or houses belonging to Athenians”; and every year the head archon, on taking office, has proclamation made by a herald that “what each possesses he shall remain possessor and absolute master thereof.”⁴¹ The right of bequest is still narrowly limited. Where there are male children the old religious conception of property, as bound up with a given family line and the care of ancestral spirits, demands that the estate should automatically pass to the sons; the father owns the property only in trust for the family dead, living, and to be born. Whereas in Sparta (as in England) the patrimony is indivisible and goes to the eldest son, in Athens (very much as in France) it is apportioned among the male heirs, the oldest receiving a moderately larger share than the others.⁴² As early as Hesiod we find the peasant limiting his family in Gallic fashion, lest his estate be ruinously divided among many sons.⁴³ The husband’s property never descends to the widow; all that remains to her is her dowry. Wills are as complex in Pericles’ day as in our own, and are couched in much the same terms as now.⁴⁴ In this as in other matters Greek legislation is the basis of that Roman law which in turn has provided the legal foundations of Western society.