Writing Greek Law (review)

For three decades Michael Gagarin has been recognized as one of the foremost authorities on the development of written law in archaic Greece, thanks in part to several important articles but especially due to his monographs from the 1980s, the exhaustive study of Draco's homicide law (Drakon and Early Athenian Homicide Law [New Haven, 1986]), and his seminal book, Early Greek Law (Berkeley, 1986). Particularly in the latter work, Gagarin pioneered the examination of early Greek law as a subject for which the insights of legal anthropology could prove useful, and he steered the scholarly conversation on the topic away from the legal formalist and normativist approaches that had prevailed in much of the earlier literature, especially in Continental scholarship. Gagarin emphasized the informal nature of dispute settlement before written law and demonstrated the important role played by the pressure of public opinion in the early poleis. Additionally, Gagarin argued that there was no law in any real sense before the advent of written law, as there were no means to "recognize" what was a law and what was not. While neither his conclusions nor his methods have met with universal acclaim (Gerhard Thür has criticized, to my mind unfairly, the "armchair anthropology" of Gagarin and others), there can be little doubt of the influence of Gagarin's ideas on the study of early Greek law.

With his latest book, Writing Greek Law, Gagarin offers a monograph that is quite ambitious in its aims, despite its deceptively unassuming title. He hopes that "the material in this book will . . . be of interest to scholars and students of Greek law," yet "accessible and of interest to those in other fields, including readers who know little or no Greek" (x). While attempting to communicate with this diverse audience, Gagarin wrestles with large, fundamental questions regarding the genesis of written law in Greece, as he makes plain in stating briefly his thesis at the outset: "from the beginning, the Greeks used writing extensively for legislation with the intent of making their laws available to a relatively large segment of the community, whereas other cultures wrote extensive sets (or codes) of laws for academic purposes or propaganda but these were not intended to be accessible to most members of the community and had relatively little effect on the actual operation of the legal system" (1). Gagarin thus means to provide a more "populist" interpretation than that which has gained traction in the twenty years since Walter Eder's seminal essay in Raaflaub's Social Struggles in Archaic Rome (Berkeley, 1986, 262–300), namely, that it was Greek (and Roman) elites who drove the early legislative process in order to preserve their own socially and politically privileged position. This central thesis has influenced other recent studies, including Zinon Papakonstantinou's Lawmaking and Adjudication in Archaic Greece (London, 2008) and Sarah Forsdyke's Exile, Ostracism, and Democracy (Princeton, 2005).

As in Early Greek Law, Gagarin continues to be informed by Hart's positivist definition of "law," while at the same time allowing for anthropological perspectives that lend themselves to a more "flexible" understanding of law, resulting in his own working conception of law as "both . . . conflict resolution and conflict regulation, resolution being more often the explicit message of a law, with regulation often observable in the background" (3–4). He insists, however, as he has elsewhere, that the general principles preserved in a Homer or a Hesiod do not amount to laws, however much they may inform how Greeks conducted themselves and managed their disputes; at one point he concedes that the Greeks may have had "oral law," i.e., a rough "system" of values and how to adjudicate them, but that they did not have "oral laws" (36). He states, "not until the invention of writing and its subsequent use in the process of writing legislation did the Greeks create laws for their community that were distinct from customs and traditions" (38); he then argues throughout that, from the beginning of legislative activity in the middle of the...