Law’s supremacy in ancient Greece

It may be probably hard for moderns to profoundly and comprehensively understand the actual innovation consequent to the adoption of Laws in the ancient Greek world after the numerous tyrannies the Greeks πολεις had to undergo, where there was no other way out but revolution to regain their freedom; although it must be added that not always tyrants were bad monarchs.

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Approximately around the V century B.C. the power of the law became supreme, individuals were in the first place considered as citizens – free citizens but bound to the law, because it was to this very same enforced rules that they owe their personal freedom. As Aeschylus in his The Persians proudly depicts within the scene when the Queen of Persia Atossa wonders about the people her son Xerxes is fighting:

ATOSSA – And who is shepherd of their host and holds them in command?

CHORUS – To no man do they bow as slaves, nor own a master’s hand.

And again Herodotus perfectly stigmatises this supremacy of the law when narrating Demaratos describing to Xerxes the character of Leonidas and the Spartans before the famous battle of Thermopiles:

“the Lacedemonians are not inferior to any men when fighting one by one, and they are the best of all men when fighting in a body: for though free, yet they are not free in all things, for over them is set Law as a master, whom they fear much more even than thy people fear thee”.

Nowadays we are used to a stated set of constitutional principles and then to their descending laws, codes, decrees and regulations. We are not surprised by their continuous enrichment or by their ever changing content to comply with the evolution of economic transactions as well as with the demands deriving from a more complex and globalised society – or more simply we hardly complain of their flexibility to any new political and lobbyist need. Although they influence many actions and aspects of our lives, we feel the laws far, detached from us as we do not directly enforce them or control that they are respected. In Athens – and to a certain extent also in several other πολεις of that age – things were quite different: participation was everyone’s prerogative as the principles of a representative democracy were still to come. As Theseus proudly explains to the Theban Herald in Euripides’ The Suppliants

“Sir stranger, thou hast made a false beginning to thy speech, in seeking here a despot.
For this city is not ruled by one man, but is free.
The people rule in succession year by year, allowing no preference to wealth, but the poor man shares equally with the rich.”

It is very important to point out though that this situation was principally due and limited to a very much reduced political population: only citizens, male and adult could actively participate to the government of the πολις, thus excluding women, the very many foreign residents and of course the slaves. Additionally those who lived in the countryside, formally entitled to participate to the assembly meetings, were often discouraged by the disturbance of leaving their farm and face a travel in order to reach town. Finally, many just passively participated to the decisions of the assembly as they were not bold enough or not rhetorically endowed to take the stand.

After tyranny the need for durable and solemn laws became a fundamental pillar upon which to build a new set of values for the new generations; the fusion of ancient wisdom and modern demands was meant to produce a set of invariable and non ephemeral rules, duties and rights to be enforced and respected by the entire population. This supremacy of the laws has many examples and these are not only relegated to Athens. For instance Herodotus narrates that Maiandrios who although chosen as the successor of Polycrates, the tyrant of Samos, resigned abdicating his powers to the people to be exercised under the safeguard of the laws:

μο, ς στε κα μες, σκπτρον κα δναμις πσα Πολυκρτεος πιττραπται, κα μοι παρχει νν μων ρχειν. γ δ τ τ πλας πιπλσσω, ατς κατ δναμιν ο ποισω· οτε γρ μοι Πολυκρτης ρεσκε δεσπζων νδρν μοων ωυτ οτε λλος στις τοιατα ποιει. Πολυκρτης μν νυν ξπλησε μοραν τν ωυτο, γ δ ς μσον τν ρχν τιθες σονομην μν προαγορεω.

[To me, as you know as well as I, has been entrusted the sceptre of Polycrates and all his power; and now it is open to me to be your ruler; but that for the doing of which I find fault with my neighbour, I will myself refrain from doing, so far as I may: for as I did not approve of Polycrates acting as master of men who were not inferior to himself, so neither do I approve of any other who does such things. Now Polycrates for his part fulfilled his own appointed destiny, and I now give the power into the hands of the people, and proclaim to you equality before the law.]

Within the range of century almost all over the Greek world legislators like Dracon and Solon in Athens or the mythical Lycurgus in Sparta, Zaleucus of Epizephyrian Locri and Charondas of Catana – started to produce laws. More likely they contributed to the process, which seems to be a more sedimentary and cooperative one: most of these laws embodied principles and precepts which were already part of any Greek moral patrimony. Some of them were enrichments of renowned Delphian traditions; others were to a certain extent formulated after the famous Seven Wise Men teachings rearranged and improved with a more practical approach meant to create judicious habits.

In fact Aristotle in his Ethics conceived the laws as generated by prudence or reason and a necessary premise for stability, since even though some actions might contrast with men’s natural inclinations – especially against other members of a community – they are endured and felt right and applicable because is the law that compels them:

δ νμος ναγκαστικν χει δναμιν, λγος ν π τινος φρονσεως κα νο. κα τν μν νθρπων χθαρουσι τος ναντιουμνους τας ρμας, κν ρθς ατ δρσιν· δ νμος οκ στιν παχθς τττων τ πιεικς. ν μν δ τ

Thus the law together with enforced habitude mitigates men’s impulses and compels them to a wiser and more social behaviour. Ultimately, what was actually new is that these laws were said to be neither dictated by nor ascribed to any God; they were a genuine product of human minds, had gained social acceptance and were meant just for the good of the community. Since their first appearance the law gained more and more credibility reaching eventually the status of spine of any form of govern, being this oligarchy or democracy.

As Theseus again proudly affirms in Euripides’ The Suppliants

“… when the laws are written down, rich and poor alike have equal justice,
and it is open to the weaker to use the same language to the prosperous when he is reviled by him,
and the weaker prevails over the stronger if he have justice on his side…”

Most certainly this is the best social achievement anyone could expect when living within any community.

πλθος δ ρχον πρτα μν ονομα πντων κλλιστον χει, σονομην

[the rule of many has first a name attaching to it which is the fairest of all names, that is to say “Equality”] Herodotus


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Justice in Hesiod’s poetry

In very ancient Greece, such as the one narrated by Homer in his poems justice was based on themistes i.e. sort of sacred decrees that somehow the Gods inspired to the βασιλευς through dreams or oracles. These both supernaturally originated and religiously enforced laws then actually ruled those communities and being harvested and transmitted from generation to generation became a rather complex and sacrosanct system of duties, rights and even jurisprudence. Consequently, in that age the word Θέμις (Themis) was considered the translation for Justice, being, besides, Θέμις the God of Justice. Nonetheless, Greeks also had used another term to convey the sense of justice i.e. Δκη. (Dike) These two terms (Themis and Dike) that seem to have been sort of synonyms during what is called by modern scholars the Greek Dark Age (until circa 700 B.C.) became as the political structure of πολις began to develop and then evolved, diverse and to a certain extent identified justice in two different stages of ancient Greek socio-political framework.

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In the first stage of this said evolution Θέμις was a Justice administered within a community by a narrow aristocratic circle where rules were conceived, interpreted and respected because they are considered being the direct will of the Gods. A rather brutal and mainly predatory aristocratic society – as the ones described by Homer is the principal actor within this social framework where agriculture is still undeveloped and sheep farming and neighbourhood ransacking constitute its main economy. Later on these communities started to convert their war-structures into more pacific and agricultural societies, and later on even mercantile and naval ones. Concomitantly the Greek world developed also the concept of law, which was still in the first stage difficult to distinguish from justice itself. Thus human laws replaced supernatural and divine laws. This process obviously was not immediate, but surely the need to legalise the economic and non-economic relations among people within the community and the necessity to give exact and reliable rules to increasingly complex transactions, most certainly accelerated the birth and growth of Δκη. Finally after a period of interregnum during which the two sets of laws somehow coexisted, Dike – together with nomos (written law) as its operational longa manus – took definitively the place of Θέμις in meaning justice, and at the same time certainty of rights and duties. The main achievement of Greek society – democracy – therefore has also fundaments in Dike combined with nomos whose resultant was equal rights.

Nevertheless, at the dawn of Greek re-birth and yet long before democracy was reached, Hesiod (circa 700 B.C.) was already living, feeling and describing this transition. In his poem The works and the days Hesiod basically deals with the pains originating from working as a farmer and yet he recommends a simple – though hard – life based on manual labour and reproaches inactivity and laziness. Hesiod’s verses are quite dry and samey, nonetheless he suddenly somehow bursts against unjust judges. Actually Hesiod is incited by a personal case he had lost against his own brother Perses:

But you, Perses, listen to right and do not foster
violence; for violence is bad for a poor man. Even the
prosperous cannot easily bear its burden, but is weighed down
under it when he has fallen into delusion

He describes the judges as δωροφγοι – referring to bribing and corruptibility which were likely to happen also in those days:

But only when he has suffered does the fool learn this. For Oath
keeps pace with wrong judgements. There is a noise when Justice
is being dragged in the way where those who devour bribes and
give sentence with crooked judgements, take her.

Thus Hesiodos hopes are placed in Dike as a superior justice:

The better path is to go by on the other side towards justice; for Justice beats
Outrage when she comes at length to the end of the race
(…omissis…)
And she,wrapped in mist, follows to the city and haunts of the people,
weeping, and bringing mischief to men, even to such as have
driven her forth in that they did not deal straightly with her

And this Justice should be applied to everyone: aristocratic and not, even including the βασιλευς:

You princes, mark well this punishment you also;
for the deathless gods are near among men and mark all those who
oppress their fellows with crooked judgements, and reck not the
anger of the gods.

According to Hesiod such a Dike is a necessity, because without it a community cannot prosper:

they who give straight judgements to strangers
and to the men of the land, and go not aside from what is just,
their city flourishes, and the people prosper in it: Peace, the
nurse of children, is abroad in their land, and all-seeing Zeus
never decrees cruel war against them. Neither famine nor
disaster ever haunt men who do true justice; but light-heartedly
they tend the fields which are all their care. The earth bears
them victual in plenty, and on the mountains the oak bears acorns
upon the top and bees in the midst. Their woolly sheep are laden
with fleeces; their women bear children like their parents. They
flourish continually with good things, and do not travel on
ships, for the grain-giving earth bears them fruit.

However it must be underlined that Hesiodos portrays Gods and other supernatural agents that keep spying on humanity in order to verify the application of justice and punish injustice:

But for those who practise violence and cruel deeds
far-seeing Zeus, the son of Cronos, ordains a punishment. Often
even a whole city suffers for a bad man who sins and devises
presumptuous deeds, and the son of Cronos lays great trouble upon
the people, famine and plague together, so that the men perish
away, and their women do not bear children, and their houses
become few, through the contriving of Olympian Zeus. And again,
at another time, the son of Cronos either destroys their wide
army, or their walls, or else makes an end of their ships on the
sea.
(…omissis…)For upon the bounteous earth Zeus has thrice
ten thousand spirits, watchers of mortal men, and these keep
watch on judgements and deeds of wrong as they roam, clothed in
mist, all over the earth. And there is virgin Justice, the
daughter of Zeus, who is honoured and reverenced among the gods
who dwell on Olympus, and whenever anyone hurts her with lying
slander, she sits beside her father, Zeus the son of Cronos, and
tells him of men’s wicked heart, until the people pay for the mad
folly of their princes who, evilly minded, pervert judgement and
give sentence crookedly. Keep watch against this, you princes,
and make straight your judgements, you who devour bribes; put
crooked judgements altogether from your thoughts.

Therefore Hesiod’s Dike, albeit containing many forthcoming features of democratic justice and nomos, is still intensely linked to a remarkable mythological interpretation which was typical of Hesiod’s age.

Nevertheless Hesiod is more distant from the Homeric Θέμις approach and much closer to the isonomic sense of justice, a logic which will be paramount for the actual birth of democracy – and even modern and applicable to our own days:

ο γατ κακ τεχει νρ λλ κακ τεχων,
δ κακ βουλ τ βουλεσαντι κακστη

[He does mischief to himself who does mischief to
another, and evil planned harms the plotter most.]

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