‘Oral law’ and the Emergence of Written Legislation in Archaic and Classical Greece Henry Peter Linscott UCL PhD in Classics Declaration I, Henry Peter Linscott confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. 2 Abstract This thesis aims to understand the social structures and normative language that underpinned the concept of law in the Greek poleis of the 7th and 8th centuries BCE, and the ways their legal cultures evolved as they began to produce written legislation. It will begin by identifying the social structures recognised in the poetry of Homer and Hesiod, and the areas of dispute that appear to have triggered formal resolution processes, and use these to examine the mechanisms for regulating issues of violence, sexual access, property and inheritance before written law, and consider the concerns that may have driven poleis to seek new solutions to social problems. Since law is as much a phenomenon of language as of behaviour, it will then proceed to analyse the syntactical structures and diction for articulating norms in the oaths and gnōmai of Homeric and Hesiodic verse and will show that the capacity to produce complex, prescriptive, structured rules which expressed the consequences of actions was already in use in Hesiodic collections of normative principles and Homeric promissory oaths. It will also seek to compare these features with societies in the Near East which suggest that the Greeks’ normative culture did not develop in isolation but was also likely to have engaged with the customs and legal systems of their neighbours. This will then inform a comparison of the syntax and beliefs evident in written laws with the use of similar structures in our earliest poetic sources. It will argue that laws drew on key sources of cultural authority through their sense of both divine and community justice, while the language of written laws made use of existing diction for expressing consequences of actions and constructing formalised procedures. Finally it will examine how written laws became embedded in the polis’ wider normative culture, the changes they brought about and the ways they used or left space for existing legal behaviours. It will argue that the links between legal text and ‘oral law’ were a fundamental part of this evolution, using similar language and methods of dispute resolution to the areas of conflict identified earlier, and even using oral means of communication to be more widely propagated and understood. However, it will also consider the ways that written law changed the relationship between the citizens of Greek poleis and their laws, through their monumental presence and distinctive organisation. It will argue that, while the language for articulating law was rooted in earlier normative diction, the act of writing such rules down could have functioned as a means to channel the process of adjudication and maintain its consistency. It will also examine the cultural impact of written law as it changed the Greeks’ understanding of how rules could be created, with traditions of stories growing up around written law, and examples of laws being 3 used alongside other norms both as sources of evidence, but also as a kind of moral education in philosophical and forensic discourse. 4 Impact Statement This project began with the realisation that legal processes were evident in the Homeric epics which made no use of written legislation and therefore raised the question of the sorts of rules that were at work in these institutions and what they ‘looked like’. This required an understanding of what ‘oral law’ was in order to recognise and identify features in written legislation that could reasonably be found in the works of Homer and Hesiod. In doing so, the thesis brought together a number of strands, using anthropological definitions of law to help recognise both the normative practices and the imperatives behind legal language, close analysis of inscriptions to look beyond the patterns already identified by the likes of Gagarin, Sealey and Davies, and comparative studies with works from the Near East. By combining each of these components, it is hoped that this thesis has enriched the study of both oral and written law in archaic and classical Greece by identifying the ‘legal’ behaviours which archaic Greek sources describe, illuminating the subtler features of Greek normative diction and showing how the language of written laws grew from the vocabulary and syntax used to articulate oaths and gnōmai in the Homeric epics and Hesiod’s didactic. It has considered these developments in the context of the evolving polis with the changes to their social structures between the 8th and 6th centuries, and also examined how they could have been influenced by Near Eastern cultures, especially considering evidence from the Hebrew Bible which also bears the hallmarks of an oral compositional style and has much in common with the legends and discourses that ‘oral laws’ could be assimilated into and which grew up around legal texts. Moreover, the legal passages of the Pentateuch are both chronologically and geographically closer to archaic Greece than a number of other Near Eastern sources and it is hoped that comparative studies by Classicists might look afresh at the work done by Biblical scholars to see how such traditions could have passed into Greek culture before this period and during it. By considering the development of law in the archaic Greek poleis it is hoped that this can shed light on the ways that legal writing can evolve in a society, its relationships with oral cultures and the impact it has on dispute resolutions. By using an anthropological understanding of ‘law’ it has aimed both to specify the ways that law can be recognised in our extant sources and to show how ‘oral laws’ can be seen in the literary outputs and practices of societies, removing the preconceptions of a literate society and seeing the value of other modes of normative expression. 5 Acknowledgements The author would like to thank: Ahuvia Kahane and Rosalind Thomas for showing such interest in the project and for inspiring me to embark on the endeavour. While I did not get to work with either of them on the project as a whole, they influenced and assisted in the proposal phase and their encouragement and belief made this thesis possible. Peter Agocs and Steven Colvin whose contributions in my early drafts and support through the process were extremely valuable in ensuring that the correct processes were followed and in providing cool heads at key points. The staff and students of North London Collegiate School. The school has been very generous in its support of my research, taking a chance by employing me in the first place, allowing me to continue working part time throughout the project and financially supporting me with tuition fees. The students have always kept me challenged and grounded and it has been a real joy to go on this journey with them and to share my experiences: I hope they have learned as much from me as I from them. Georgia Sams, who, along with many other friends and family has always provided help, kind words and a calming influence that have helped me persevere through this project throughout my seven years of part-time study. Christopher Carey whose warmth, good humour and unerring capacity for saying the right thing have made him the perfect supervisor. I have always come away from our meetings feeling buoyed and warm and his experience and serenity have been truly invaluable. 6 Abbreviations Collections of Inscriptions and Standard Works of Reference GP Gagarin, M. & Perlman, P. J. (2016). The Laws of Ancient Crete c.650-400 BCE. Oxford: Oxford University Press. IC Inscriptiones Creticae https://epigraphy.packhum.org/ (Accessed Sept.2013-Nov.2020) IG Inscriptiones Graecae https://epigraphy.packhum.org/ (Accessed Sept.2013-Nov.2020) ML Meiggs, R. & Lewis, D. (1969). A Selection of Greek historical inscriptions to the end of the fifth century BC. Oxford: Clarendon Press. Nomima I van Effenterre, H. & Ruzé, F. (1994). Νomima: Recueil d'inscriptions politiques et juridiques de l'archaïsme grec (Vol. 1). Rome: École Française de Rome Palais Farnèse. SEG Supplementum Epigraphicum Graecum https://referenceworks.brillonline.com/browse/supplementum- epigraphicum-graecum (Accessed Apr.2016) Ancient Authors Classical Greek and Roman texts and collections use the same abbreviations as the Third Edition of the Oxford Classical Dictionary (2003). For Near Eastern sources this work has also used: CH Codex Hammurabi from Harper, R. F. (1904) The Code of Hammurabi, King of Babylon London: University of Chicago Press Exod. Book of Exodus Deut. Deuteronomy Lev. Leviticus All Biblical texts are from https://www.mechon-mamre.org/ (Accessed Sept.2013-Nov.2020) translations are from the King James Version unless a more literal alternative has been offered. 7 8 Contents Introduction 10 Chapter 1 – The Evolving Polis and its Normative Structures 38 Chapter 2 – ‘Oral Law’ and the Origins of a Greek Legal Vocabulary 95 Chapter 3 – The Anatomy of Greek Legal Inscriptions 140 Chapter 4 – How Writing Changed the Law 182 Conclusion 251 Bibliography 257 Appendices 266 9 Introduction ἦμος δ' ἐπὶ δόρπον ἀνὴρ ἀγορῆθεν ἀνέστη κρίνων νείκεα πολλὰ δικαζομένων αἰζηῶν, at the time when a man rises for supper from the agora after judging many quarrels from eager litigants. As Odysseus describes the length of time he clung to the branch of an olive tree awaiting the reversal of the whirlpool Charybdis, he turns to the mundane image of a judge in the agora getting up for his dinner. The ordinariness of the simile reflects how commonplace such scenes must have been and suggests that Homer and his audience were familiar with the means of resolving quarrels implicit in it.1 Disputes are an inevitable and important part of human interaction2 and consequently societies have a plethora of rules that provide guidance on acceptable behaviour, consequences for breaches, and methods of resolution.