The Justice of the Greeks (review)

Abstract

Reviewed by: The Justice of the Greeks Robert W. Wallace Sealey, Raphael. The Justice of the Greeks. Ann Arbor: University of Michigan Press, 1994. Pp. xiii 1 164. Over the last fifteen years research in Greek law has expanded rapidly, especially in Anglo-American countries. In consequence, significant differences of approach to this material have become apparent. The older, juristic approach is largely continental, where the living tradition of Roman law as the basis for current legal codes has meant that most Greek legal historians first studied Roman law, were trained as lawyers, and now teach in law schools. By contrast, most Anglo-Americans now working in this field were trained as ancient historians or philologists. They know little of Roman or modern law and mostly care less about it, arguing that most Greek legislation was unsystematic, arising piecemeal in response to interpersonal or community problems. For these scholars, a juristic approach to Greek law is sometimes even misleading: sociology and anthropology offer more appropriate methodologies. Sealey places his new book squarely in the continental tradition. He expressly rejects sociology (22), and modestly announces his intention to publicize the work of Wolff, Ruschenbusch, and Thür (ix–x). However, S. also was trained as a historian and philologist. How far does his book add to the juristic tradition of Greek legal scholarship? And how far does it make its own, historical contribution? [End Page 130] “This book is an inquiry into the rule of law,” its first sentence declares. It is not always that, but rather, a wide-ranging exposition of various questions about Greek law, which ruled and in some areas (S. indicates) failed to rule. S.’s book offers a number of lucid, courteous discussions, presented sometimes in a paratactic way, but conveying overall a sense of chronological development. Its general intention is “to discover the historical contribution of Greek thought to the field of law, justice, and right . . . [and] to discover principles, concepts, and aims that underlay the development of law in Greek cities” (133). With a scope so large, the book is often too brief. With rapid strokes S. adopts positions typically without evaluating much of the scholarship regarding them. Some arguments S. has made before. He repeats them despite previous criticisms. S. includes several lengthy discussions of Roman and Near Eastern law, typically to illustrate differences with Greece. This may contrast with legal anthropologists, who illuminate Greek practices through comparative materials. Although S. adopts various hypotheses of his continental colleagues, it is not his purpose to add much to their arguments. More significantly, despite S.’s intention to find “the historical contribution of Greek thought to the field of law, justice, and right,” it remains unclear that the Greeks made such a contribution. As S. himself says, the Greeks “did not recognize an underlying body of thought expressed” in particular laws (59). By contrast, in smaller instances and in his general conclusions regarding the “principles, concepts, and aims” underlying Greek law, the positive results of S.’s work are historical, and even sociological. Chapter 1, “Scope of the Inquiry,” is perhaps most problematic. S. begins with the role of law in society, the meaning of the term “law,” and philosophical discussions of the nature of law especially in Savigny (7–9). Having set out objections to Savigny’s thesis that every nation’s civil law springs from, and remains true to, its distinctive character or historical circumstances (9–12), S. concludes, somewhat abruptly, that Savigny’s great merit was his recognition that “law can develop without statutory enactment and that the development stays within limits or follows lines that can be discerned” (12). It is so far unclear how Savigny’s thesis pertains to ancient Greece. It remains so during S.’s three illustrations of the development of Greek law beyond statutory enactment, in atimia, testimentary practice, and the marriage of heiresses (12–19). Indeed, it turns out, S. largely rejects Savigny’s primary insight (21–22). For S., laws are shaped not by national character but by “an underlying body of thought” characteristic of the society. Accordingly, S. concludes, the legal historian must fit specific legal provisions into their wider legal and intellectual context...