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The Poetry of Justice: Hesiod and the Origins of Greek Law

Published online by Cambridge University Press:  04 July 2014

Michael Gagarin
Michael Gagarin*
Affiliation:
The University of Texas at Austin
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Extract

A growing area of contemporary legal scholarship is the field loosely described by the expression ‘law and literature’. One of the many points of intersection between law and literature is the study of legal writing, including the opinions of judges and jurists, as a form of literature. Scholars began to study the works of the Attic orators as literature as early as the first century BC, but their specific concern was with these texts as examples of Attic prose and their literary interest primarily concerned matters of rhetoric and prose style. Similarly, modern scholars who have continued this study of the orators have generally examined legal orations not as a separate genre but as another example of prose literature in the same category with history or epideictic oratory. But forensic oratory can also be studied as a form of literature sui generis, whose worth is determined by the special requirements of this genre. As background for such a study I propose to examine the earliest examples of legal oratory, as seen in the works of Homer and Hesiod.

Type
Research Article
Information
Ramus , Volume 21 , Issue 1 , 1992 , pp. 61 - 78
Copyright
Copyright © Aureal Publications 1992

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References

1. See, e.g., Posner, Richard A., Law and Literature: A Misunderstood Relation (Cambridge MA 1988)Google Scholar; White, James Boyd, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison 1985)Google Scholar.

2. The earliest studies that survive are the essays of Dionysius of Halicarnassus, but we know that the orators were also studied by Caecilius of Calacte and Didymus.

3. I have already treated some of this material from different perspectives, most recently in Early Greek Law (Berkeley 1986)Google Scholar.

4. Themis is sometimes a difficult term to distinguish from dikē, see Gagarin, , ‘Dikē in the Works and Days’, CP 68 (1973), 85 n.20Google Scholar. I take themistas here to apply generally to the whole body of norms, customs, claims and attitudes that comprise the values of a community; cf. n.46 below.

5. Solmsen, Friedrich, ‘The “Gift” of Speech in Homer and Hesiod’, TAPA 85 (1954), 1–15Google Scholar; Combellack, F. M., ‘Hesiod’s Kings and Nicarchus’ Nestor’, CP 69 (1974), 124Google Scholar; see also Gagarin (n.3 above), 24f.

6. Roth, C. P., ‘The Kings and the Muses in Hesiod’s Theogony’, TAPA 106 (1976), 331–38Google Scholar.

7. Martin, Richard P., ‘Hesiod, Odysseus, and the Instruction of Princes’, TAPA 114 (1984), 29–48Google Scholar.

8. Duban, Jeffrey M., ‘Poets and Kings in the Theogony Invocation’, QUCC 33 (1980), 7–21Google Scholar.

9. In this context I use the terms ‘law’ and ‘justice’ interchangeably as translations of Greek dikē, but neither English word has its full modern sense. In early Greece dikē is seen primarily as a process for settling disputes peacefully. Thus it is ‘law’ in the sense of legal procedure, and ‘justice’ in the sense of the judicial system.

10. Maehler, Herwig, Die Auffassung des Dichterberufs im frühen Griechentum bis zur Zeit Pindars (Göttingen 1963), 44fGoogle Scholar.; Verdenius, W. J., ‘Notes on the Proem of Hesiod’s Theogony’, Mnemosyne 25 (1972), 225–60CrossRefGoogle Scholar, note on 96; Duban (n.8 above), 13.

11. Walsh, George B., The Varieties of Enchantment: Early Greek Views of the Nature and Function of Poetry (Chapel Hill 1984), 3–21Google Scholar.

12. Ibid. 24.

13. ‘True speech’ presumably means the speech of the poet.

14. Walsh presumably refers to Th. 96: ‘the lords are from Zeus’; see Verdenius (n.10 above) ad loc, who approves of the idea, first proposed by von Fritz. But this verse indicates that the basileus has his position and authority by the favour of Zeus, not that half his ability comes from Zeus. Zeus’s authority may help make the lord’s proposed settlements acceptable to litigants, but Zeus’s favour does not give him the skill to compose acceptable settlements. That comes from the Muses.

15. This does not mean that a judge in Ascra would actually deliver his proposed settlements in poetic verse, as Eric Havelock suggests (Preface to Plato [Cambridge MA 1963], 109Google Scholar). To be sure all judges in the passages we have been considering (and in other epic performances) speak in hexameters, but actual judges would undoubtedly speak prose, though probably with more poetic colouring than a modern judge and with the same reliance on exempla, maxims and other features of poetic settlements as are found in poetic dikai.

16. Gagarin (n.3 above), 19–50; and for the term ‘proto-legal’, ibid. 8f.

17. Pietro Pucci, Hesiod and the Language of Poetry (Baltimore 1977), 17f. and 39 nn.28 and 29.

18. Any good settler of disputes will, for example, stress the advantages of the settlement to each side and underemphasise (and sometimes even conceal) the disadvantages.

19. The most recent treatment is Westbrook, Raymond, ‘The Trial Scene in the Iliad’, HSCP 94 (1992), 53–76Google Scholar. He adduces Near Eastern homicide laws to support his view that the judges decide what ‘limit’ to set on the victim’s supporter’s right to take revenge.

20. See Gagarin (n.3 above), 36–38.

21. See Gagarin, , ‘Antilochus’ Strategy: The Chariot Race in Iliad 23’, CP 78 (1983), 35–39Google Scholar. It is significant that the manoeuvre by which Antilochus passes Menelaus is devised by Antilochus’ father Nestor. In my view the poet makes clear that Menelaus’ objection stems from a subjective reaction and is not based on an objective view of the event.

22. There may possibly be a play on leptos, which in the fifth century comes to mean ‘subtle, refined’ as well as ‘thin, slight’, but the former sense is not attested for epic.

23. The translation is by Willcock, M. M., The Iliad of Homer: XIII-XXIV (London 1984)Google Scholar, note ad be. Homer uses the same word for ‘dew’ (eersē) as Hesiod uses in Th. 83 to describe the sweet honey poured on the tongue of the basileus. As dew drops soften the tough corn stalks, so Antilochus softens Menelaus’ heart and Hesiod’s basileus softens the minds of litigants.

24. The poet does not explicitly say that Ajax comes in second, but we may deduce this because he is awarded second prize and Antilochus is said to have come in last.

25. Perhaps Achilles wants to spare Agamemnon the possible embarrassment of losing, since he has already seen cases of ‘better’ contestants getting beaten.

26. See n.16 above.

27. In 23.361 Phoenix is stationed as an observer (skopos) at the turning post so that he can ‘remember the running and report truth’. In the event, there is no need for his services.

28. The litigants in the scene on Achilles’ shield also seek a histōr, but this does not necessarily mean that their dispute concerns a factual matter that could be settled by ‘someone who knows’ the facts. The etymological sense of this rare word seems appropriate in Book 23, but it might not be in Book 18.

29. For the sense of these verses see Gagarin (n.3 above), 1 n.l.

30. I have discussed some of the details of this dispute in ‘Hesiod’s Dispute with Perses’, TAPA 104(1974), 103–11Google Scholar.

31. E.g. Green, Peter, ‘Works and Days 1–285: Hesiod’s Invisible Audience’, in Eyjan, Harold D. (ed.), MNHMAI: Classical Studies in Memory of Karl K Hulley (Atlanta 1984), 21–39Google Scholar.

32. E.g. Griffith, Mark, ‘Personality in Hesiod’, CA 2 (1983), 245–63Google Scholar.

33. For the middle voice see Gagarin (n.30 above), 107 n.l 1.

34. In II. 23.579 Menelaus uses the active (dikas–) when he intends to propose a settlement in his own case, but he means not ‘I shall settle the dispute myself’ but ‘I [as one of the leaders of the Achaeans?] shall propose a settlement.’ See Gagarin (n.4 above), 84 n.14.

35. The force of the imperfect is perhaps intentionally vague, as with the polla (see below). See Gagarin (n.30 above), 108 n.l4.

36. See Gagarin (n.3 above), esp. 72f.

37. I cite the translation of Hammurabi’s laws in Pritchard, James B. (ed.), The Ancient Near East: An Anthology of Texts and Pictures (Princeton 1958), 138–67Google Scholar.

38. Gagarin (n.3 above), esp. 2–12.

39. Ibid. 126–29.

40. Westbrook’s speculation (n.l9 above, 66) that a written legal archive may have existed in Mycenean times seems highly unlikely. We now have Linear B tablets from so many sites that surely some example of a major class of documents that were in current use when the palaces were destroyed would have appeared by now.

41. Roth (n.6 above).

42. See Gagarin (n.3 above), 10, with further references.

43. Unlike the judge, it is important for ordinary people to remember the rules Hesiod proposes.

44. In Th. 66 the Muses are said to sing the nomoi of the gods. West, M. L., Hesiod, Theogony (Oxford 1966)Google Scholar, ad loc, takes this as ‘ordinances’, i.e. ‘the timai laid down for each of the gods by Zeus’. Verdenius (n.10 above), ad loc, suggests ‘manners’, i.e. ‘usual ways of acting’. In any case, these nomoi are certainly not a body of ‘laws’.

45. West, M. L., Hesiod, Works and Days (Oxford 1978), 3–25Google Scholar.

46. The precise meaning of themis is difficult to pin down, but there is no reason to understand it as a ‘law’ in the sense of a specific, fixed rule, whether written or orally preserved (so Westbrook [n. 19 above], 66, referring to Il. 1.238f), as opposed to the general rules and traditional customs of the community.

47. Gagarin (n.3 above), 47f.

48. Ibid. 48 n.83.

49. See Gagarin, , ‘The Nature of Proofs in Antiphon’, CP 85 (1990)Google Scholar, esp. 26–29.

50. For example, Orestes in the Eumenides avoids the oath proposed by the Furies, and Hermes in the Hymn to Hermes swears a great false oath, but Apollo and Zeus refuse to believe it and the case goes on.

51. I am grateful to the Editor for his helpful comments on an earlier draft.