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THE RULE of LAW and GENDER in HERODOTUS' HISTORIES By LIVING WITH THE RULES: THE RULE OF LAW AND GENDER IN HERODOTUS’ HISTORIES by HELEN KATHARINE TANK A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of Classics, Ancient History and Archaeology School of History and Cultures College of Arts and Law University of Birmingham September 2019 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT In this thesis, I take a gender perspective to consider how Herodotus presents the rule of law in the Histories. Demaratus introduces Xerxes to the Spartan military nomos which compels men to ‘win or die’, making it an external despotic force to be feared more than the command of a tyrant. However, Herodotus as narrator observes that people have an internal attachment to their own rules, which include the regulation of gender performance and involve women as much as men. I show that, although most women were excluded from legal and political institutions, devalued by gender ideology, and prevented from exercising power, they were involved in the regulation of everyday life, which is a key aspect of the rule of law in the Histories. I adopt a socio-legal methodology to examine how women and men live with a variety of rules, political, religious and social, and adopt a range of strategies to do so. The rule of law is also a normative ideal which is used by Herodotus to interrogate power, in particular the nomos of tyranny. I use a range of case studies to show how a focus on gender helps us to think about abuse of power, excess and arbitrariness. For Herodotus, respect for nomos is necessary whatever one’s status and gender, and operates within a network of relationships, depends on the performance of appropriate roles and is contingent on reciprocity. I argue that the rule of law is a powerful force in the Histories precisely because it combines external coercive force, internal rule of conduct and normative ideal. DEDICATION This thesis is in memory of Dr Niall Livingstone, an outstanding scholar, a remarkable man and a committed feminist. I regret that he never had a chance to read the final work. ACKNOWLEDGEMENTS This thesis is the product of my study of Herodotus over the last ten years, and my interest in law and gender over my adult life. My supervisor Niall Livingstone shared this interest, and my excitement in bringing it to the Histories. His passionate engagement with scholarship has been an inspiration to me and I dedicate this thesis to his memory. I thank also Elena Theodorakopoulos for her considerable help in structuring my thesis, and reminding me that I needed to write as an academic not as a lawyer. Will Mack has also given invaluable help as my supervisor more recently in bringing the thesis to completion and giving me very detailed and helpful feedback. I also wish to thank Tatiana Tsakiropoulou-Summers for her rigorous editing of my book chapter on ‘Powerful women and gender ideology in Herodotus’ Histories’ (now part of a book entitled Women and the Ideology of Political Exclusion). She encouraged me to write for my reader, not for myself, and chapter 5 of my thesis, in particular, owes much to her penetrating comments and advice. Thanks are also due to Errietta Bissa, University of Wales, Trinity St David, who supervised my M.A. dissertation, discussed Herodotus with me, and encouraged me to ‘blow my own trumpet’, and to the legal historians at a conference in Warsaw in June 2018 on ‘Norms and Legal Practice: There and Back Again’ for their constructive and helpful comments on my presentation, which introduced the arguments in this thesis to a wider audience. I teach a module at the Birmingham Law School on ‘Legal Skills and Methods’ and, in our first seminar, we discuss the following questions: What is law? What is law for? Where does law come from? How does law change? These are all questions I deal with in my thesis, so I thank all the students and staff on that module for helping me to think about these questions, challenge my preconceptions and stimulate my interest in ‘law in action’. I thank Luke Clements for his constant reminder that I needed a question, Barnaby Dicker, for encouraging me to be distinctive and productive, and the members of my Greek reading group in Birmingham, who have discussed Herodotus and many other Greek texts with me. Claire Robson’s help with copy-editing and formatting has been invaluable to me, as someone who will never acquire the skills of a digital native. Finally, I owe an incalculable debt to my father, Meyric Tank who introduced me to the stories of Greece and Rome, our mutual friend Ian Whyte, whose generosity made this whole project possible, and, above all, Adrian, whose love and support have sustained me both practically and emotionally throughout. CONTENTS INTRODUCTION ...................................................................................................................... 1 1. Argument ......................................................................................................................... 1 2. Scope and Evidence ........................................................................................................ 4 3. The rule of law ................................................................................................................ 6 3.1 Law as master ................................................................................................................ 6 3.2 Hart’s model of law ..................................................................................................... 11 4. Law as a tool: the model of the legal realists ................................................................ 18 5. Legal pluralism .............................................................................................................. 22 6. Feminist legal theory ..................................................................................................... 24 7. The model of intersectionality ...................................................................................... 32 8. A sociological model ..................................................................................................... 34 9. Scholarship on women in the Histories ........................................................................ 38 10. Definition of terms ...................................................................................................... 46 10.1 Gender ....................................................................................................................... 46 10.2 Performativity............................................................................................................ 47 11. Summary of chapters ................................................................................................... 49 CHAPTER 1: WHERE DO THE RULES COME FROM? WHO MAKES THE RULES? ... 53 Introduction ....................................................................................................................... 53 1. Living with divine rules ................................................................................................ 54 2. Oaths.............................................................................................................................. 57 3. Lawgivers ...................................................................................................................... 59 3.1 Solon............................................................................................................................ 59 3.2 Lycurgus ...................................................................................................................... 65 3.3 Deioces ........................................................................................................................ 67 3.4 The Carian women ...................................................................................................... 73 Conclusion ......................................................................................................................... 79 CHAPTER 2: HERODOTUS’ JURIDICAL METHODOLOGY: LAW, GENDER, AND SPEECH ................................................................................................................................... 82 Introduction ....................................................................................................................... 82 1. The foundation of oracles at Dodona and Siwa ............................................................ 84 2. The model of judicial arbitration ................................................................................... 87 3. The adversarial model ................................................................................................... 91 4. An institutional approach to nomos? ............................................................................. 93 5. Source material: what are the rules? ............................................................................
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