Ancient Greek Law

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As Greek law antiquity not a specific one legal system is called, because the right was from Polis ( Greek  πόλις ) to Polis different. Rather, it is a collective term for a regionally and historically delimited form of positive law , which, however, was based on the same legal thinking and the same principles. Laws such as those of the Charondas of Katane were sometimes deliberately adopted from other poleis. There were also mutual borrowings on a smaller scale, particularly in commercial law . Due to the great influence of Athens , the Attic law exerted a significant influence on the law of the Poleis.

While Greek legal philosophy has left its mark on modern law, ancient Greek law itself has been replaced by the more developed Roman law .

Historical sources

Only fragmentary historical sources have survived for ancient Greek law .

Shield of Achilles, modeled after Angelo Monticelli around 1820

The most important traditions are:

  • For the archaic period only a few passages in the epics - such as the description of a court scene depicted on Achilles' shield in Homer's Iliad
Gortys town charter

Legal sources

From divine right to legislation

In archaic times there were no formulated legal norms. The law ( δίκη , dike ) was considered to be of divine origin, given to humans by Zeus , the father of the gods , who also supervised its use. The finding of justice was attributed to divine judgments , solemn duels or the oath of cleansing. The arbitration or judicial awards ( θεμιστές , Themistes d. I. The plural of Themis ) reserved for the king ( βασιλεύς ), the ruler of divine descent, or his advisors were considered manifestations of divine will.

In the 7th century BC A codification movement began in the Poleis. The written law ( νόμος , nomos ) - noted by the nomothets - was considered the origin of justice by the Greeks and was now the most important formal source of ancient Greek law.

Jacques-Louis Davids The Death of Socrates (1787)

The reverence for the nomos as a formulated legal norm became characteristic of the Greeks' positivistic understanding of law. It is expressed, for example, in Socrates ' refusal to evade his execution by fleeing - out of respect for the law.

However, while the philosophical problem of justice in the sense of an over-positive setting of norms or divine law was discussed in philosophy and poetry, no practically oriented jurisprudence developed that tried to penetrate the positive law conceptually. On the other hand, a sophisticated Kautelar jurisprudence arose, especially in the Hellenistic period , which was shaped by the development of business forms for practical legal life.

Legislator

Solon

The emerging legal rules were often attributed to mythical legislators,

Procedural law

Types of lawsuits

Ancient Greek law was shaped by procedural ideas. Dike ( δίκη ), the designation of justice personified , is a legal-technical term that describes the lawsuit. In Athens in particular in the classical period, a real system of actions developed with various types of complaint, such as claims for damages ( δίκη βλάβης , dike blabes ) or maintenance claims ( δίκη σίτου , dike sitou ), which had to be submitted to the respective authorities responsible for them.

A distinction had to be made between private lawsuits (δίκη dike ), which could only be brought by the injured person or those directly affected and their relatives, and public lawsuits ( γραφή graphé ), which could be brought by anyone, particularly because of criminal charges; in the case of the Dike the matter in dispute or the fine fell to the plaintiff;

Public lawsuits include (in Classical Athens)

  • the apagogē ( ἀπαγωγή ) removal of the suspect caught in the act,
  • the Ephēgēsis ( ἐφήγησης ) introduction , in which the plaintiff leads the responsible officer to the place of the crime or the whereabouts of the criminal.
  • The Endeixis ( ἔνδειξις ) display , a procedure related to the Apagogē . The exact meaning of the term is controversial: originally intended as a report to an officer who then proceeds to arrest the perpetrator himself, it could also be used by the plaintiff as a voluntary preliminary step to apagogue.
  • the apographē ( ἀπογραφή ) record of privately owned money that is to be confiscated,
  • the Eisangelia ( εἰσαγγελία ) "Public Announcement" report , a form of public indictment against public officials that largely corresponds to impeachment in the United States.
  • the probolē ( προβολή ) cover , a preliminary charge that a prospective plaintiff could bring before the ekklesia , rather than directly to a dikastērion (court). The ekklesia vote did not oblige a successful plaintiff to pursue his claim in court, nor did an unsuccessful probolē prevent him from doing so. However, like a trial run, it showed where the wind is blowing from.
  • Popular lawsuits such as the Graphe paranomon ( γραφὴ παρανόμων ), which served to review a law, or the Xenias graphe ( ξενίας γραφή ) against a supposedly stranger without Athenian citizenship, who presumed this right, supplemented the litigation system in the public interest.

Otherwise, there were no fundamental differences between civil and criminal proceedings.

The procedure

The action was brought by summoning the defendant to the competent officials. The latter subjected the application to be submitted to a preliminary examination (anakrisis). Civil proceedings over pecuniary claims have been entrusted to a public arbitrator (diaitetes); if its award was not accepted by either party, a dikasterion was referred. The parties provided arguments and evidence. While rigid rules of evidence applied in archaic times and also in the law of Gortys , free assessment of evidence prevailed in classical times. The judges decided in secret ballot without debate either on the basis of the plaintiff's or the defendant's request.

The aim of the process was to obtain official approval for the plaintiff's private revenge or legal enforcement. The successful plaintiff gained the right to sue the defendant's person or property. The victor could then carry out the enforcement himself by means of self-help.

Legal care professions

In the Athenian democracy , judicial office - originally a task entrusted to kings and later to officials and archons - was largely transferred to people's courts such as the Heliaia . Since there was no legal training or lawyers in the modern sense, professional court speech writers ( logographers ) such as Demosthenes prepared pleadings for the parties and practiced them with them. Her traditional court speeches, in which arguments were rhetorically but also partially legal, are the most important source for research into Attic law.

Criminal law

The following were known as criminal offenses in ancient Greek law:

  • Homicides: They were followed by the relatives of the victim with the dikē . In principle, the retribution was awarded to them as a private penalty, but often they released the perpetrator from persecution after paying atonement. The new regulation of this legal institute of the aidesis ( αἴδεσις ) by Drakon is one of his most important reforms of the Attic criminal law. Then a distinction was made between intentional ( ἐκ προνονας ) and unintentional ( negligent , , εκοκσιος ) killing - a distinction that was foreign to Greek law until then. While aidesis was not possible in the case of willful killing, the person killing unintentionally could benefit from aidesis . If the relatives were not prepared to do this, the perpetrator could go into exile for a few years and thereby avoid the blood revenge. The intentional murder, however, was punished with death, lifelong banishment and confiscation of property.
  • Rape: The law of Gortys included a tariff of fines: for the rape of a free or a free one hundred staters , for the rape of a householder by a free one five drachmas, for the rape of one's own slave two staters. In Athens, too, rape of a free woman was only fined 100 drachmas according to Solonic law; this corresponded to the value of 20 cattle.
  • Moicheia ( μοιχεία adultery ): The adulterer caught in the act could be killed by the woman's Kyrios . The radish penalty could also be used. The reason for the much heavier sanction in relation to rape is to be seen in the fact that adultery was seen as an attack on the man's house, while "simple" rape only injured the legally less protected woman.
  • Asebie ( ἀσέβεια ‚ sacrilege ) like the Hermenfrevel accused of Alkibiades or the Socrates and Anaxagoras accused of spreading atheistic teachings, hierosyly ( ἱεροσυλία temple robbery); these offenses against the state religion were threatened with the death penalty, exile or fines.
  • Treason ( προδοσία prodosia ), threatened with the death penalty and refused to be buried.
  • Assumption of civil rights by strangers, persecuted through the popular lawsuit Xenias graphe , was punished with sale into slavery.
  • On desertion ( λιποταξίον , lipotaxion or δειλία deilia , cowardice ) and the refusal of military service ( ἀσρατεία , astrateia ) or naval services ( ἀναυμαχίον , anaumachion ) stood atimie (ἀτιμία) loss of civil rights.
  • Theft ( κλοπή klopē ): The thief caught in the act could be killed. The death penalty was also threatened in the event of serious theft (e.g. at night, in public places, valuable items). Simple theft was sanctioned with a fine equal to twice the value of the stolen property.
  • Kakosis ( κάκωσης ), the mistreatment or neglect (including violation of the burial obligation ) of parents, close relatives and wards,
  • Hubris ( ὕβρις ), "presumption" encompassed the violation of the honor or the body of others, but also the self-arrogance that is harmful to the community. It could not only be followed by the injured person, but also with the popular complaint Hybreos graphē ( Ὕβρεως γραφή ).

civil right

Personal law

Rights could only be exercised by the free, in the polis the citizen, namely the adult, i.e. H. over 18 year old man. Only he could be the landowner, inherit, appear as a party to the litigation or witness, but not slaves and women. Strangers were dependent on the protection of a citizen; they enjoyed only limited official protection. Also metics and Perioeci had an impaired status. Semi-free as the helots in Sparta or bound to the soil " Häusler " ( ϝοικέες ) in Gortyn could after all be legal entities, and in contrast to the completely outright slaves not be sold.

Minors, women and slaves were under the legal authority ( κυρία kyría ) of Kyrios ( κύριος Herr ), the male director of the house association ( Oikos , οἶκος ), who represented them in legal transactions and in court. The Kyrios could recognize or abandon newborns and cast out household members.

Marriage and family law

The continuation of the oikos, which represented an economic and religious unit and was a component of the polis, was secured by marriage ( γάμος ). It was justified by a legal transaction between the Kyrios of the bride and the groom, the Engye ( ἐγγύη ) and the ( ἔκδοσις ekdosis , 'surrender') of the bride. The prerequisite was epigamy , the ability to marry the bride and groom, who in Athens only had citizens and metics to whom it was granted by isopolitical treaty with their polis. A dowry (Proix) given to the bride by her Kyrios was to be returned when the marriage was divorced, and when she died it fell to her sons.

Inheritance law and adoption

Only legitimate children from a relationship between citizens ( γνήσιοι , gnesioi ) were entitled to citizenship under Attic law and were entitled to inheritance. The Nothoi ( νόθοι ), on the other hand, who came from an illegitimate relationship with a slave or concubine ( παλλακή pallakē ) or whose parents did not both have citizenship, were not entitled to inheritance, but could possibly acquire citizenship. A nothos metroxenos was a nothos whose father was a citizen and whose mother was not.

If the testator left only one daughter, she could not freely dispose of the inheritance if she was unmarried. Since she was not Kyrios herself, she could not exercise any power of disposal over property. She became Epikleros ( ἐπίκληρος ), the heiress. She was now de jure in possession of the inheritance ( οἶκος , oikos , literally "house", i.e. household or household) of her father, but needed a new kyrios . In order to secure the continuation of the oikos , the next of kin of her father, often his brother, was obliged to marry the heiress. If he was already married, he could either obtain a divorce from his wife so that he could marry the heir or leave the epikleros to the closest relative. The duty of the father's closest relative to marry or to hand over to the closest relative also existed if the wife had little or no wealth. If no relative was ready for this, the Archon had to force the next of kin to furnish her with a trousseau and to marry her.

The function of the heir as a successor in the Oikos basically ruled out the determination of an heir in a will that deviates from the legal succession of the gnesioi . Those who did not have a son could, however, in order to ensure the continued existence of the Oikos , adopt a son through adoption ( εἰσποίησης , eispoiēsis ). Since Solon, this could also be done through a will ( διαθήκη , diathēkē ).

Contract law

Unlike Roman law, Greek law did not develop a doctrine of legal business that is permeated with dogma. Agreements, as they were common in business life, were understood as a unilateral "disposal of the purpose", not as a consensual agreement. However, the “ homology ” ( ὁμολογία , from ὁμός homos “equal” and λόγος logos “word, meaning”), the “admitting” not only of facts, but also of legal consequences, offered the possibility of establishing obligations without legal grounds (causa) ; it was already in use in classical times and in the Hellenistic period it became an essential term in the drafting of contracts.

literature

  • Heinz Barta: Graeca Non Leguntur? On the origins of European law in ancient Greece. Vol. 1, Harrassowitz, Wiesbaden 2010. - Review by Thomas Finkenauer , in: sehepunkte 12 (2012), No. 12 [15. December 2012], (online) .
  • Leonhard Alexander Burckhardt, Jürgen von Ungern-Sternberg (Hrsg.): Great trials in ancient Athens. Munich 2000, (excerpts online) .
  • Michael Gagarin: Early Greek Law. Berkeley and Los Angeles 1986.
  • Louis-Jules Gernet : Recherches sur le développement de la pensée juridique et morale en Grèce. Étude semantique. Leroux, Paris 1917.
  • Louis-Jules Gernet: Droit et société dans la Grèce ancienne. Paris 1955.
  • Justus Hermann Lipsius : The Attic law and legal process. First volume. OR Reisland, Leipzig 1905 ( online ).
  • Hugh Lloyd-Jones : The Justice of Zeus. Berkeley, Los Angeles, London, University of California Press 1971 (Sather Classical Lectures, 41).
  • Eberhard Ruschenbusch : Investigations on the history of the Athenian criminal law. Böhlau, Cologne-Graz 1968 (Graezistische Abhandlungen. Vol. 4)
  • Eberhard Ruschenbusch: Small writings on Greek legal history. Harrassowitz, Wiesbaden 2004 (Philippika, Vol. 10) ISBN 3-447-05220-1
  • Eberhard Ruschenbusch (Ed.): Solon / The Law. Fragments. Translation and commentary . Stuttgart 2010 (Historia Einzelschriften, Vol. 215) ISBN 9783515097093
  • Raphael Sealey: The Justice of the Greeks. University of Michigan Press, Ann Arbor 1994, ISBN 0-472-10524-8 .
  • Erik Wolf : Greek legal thinking. 4 vols., Klostermann, Frankfurt am Main 1950–1970.
    • Vol. 1: Pre-Socratics and early poets. 1950.
    • Vol. 2: Legal Philosophy and Legal Poetry in the Age of Sophistics. 1952.
    • Vol. 3.1: Socratic legal philosophy and legal poetry of the old comedy. 1954.
    • Vol. 3.2: The transformation of legal thought through history and rhetoric. 1956.
    • Vol. 4.1: Plato, early dialogues and Politeia. 1968.
    • Vol. 4.2: Plato, dialogues of the middle and later periods, letters. 1970.
  • Hans Julius Wolff : Law I. In: Lexicon of the Old World . 1965. Reprinted by Artemis-Verlag, Zurich / Munich 1990, Volume 3, ISBN 3-89350-960-7 .

Web links

Individual evidence

  1. ↑ Heinz Barta: Graeca Non Leguntur? On the origins of European law in ancient Greece . Wiesbaden 2010, p. 159 ff.
  2. ↑ Iliad 18, 497 ff. Cf. Walter Leaf: The Trial Scene in Iliad XVIII. In: The Journal of Hellenic Studies. Volume 8, 1887, pp. 122-132.
  3. ↑ Hesiod , Werke und Tage 2379.
  4. ↑ Homer, Ilias 16, 387 ( Greek and German translation ).
  5. ↑ Michael Gagarin: Early Greek law . Berkeley and Los Angeles 1986, p. 99.
  6. ↑ Homer, Ilias I, 238 online (Greek and German) .
  7. ^ Georg Busolt: Greek political science . 1. General description of the Greek state . 1920. Reprint Munich 1979, p. 235.
  8. ^ Plato, Crito , 50 a, b online (German translation) .
  9. ^ Raphael Sealey: The justice of the Greeks . Michigan 1994, pp. 27 ff. ( Online ).
  10. ^ Eduard Meyer: History of antiquity. Reprint: Darmstadt 1965, vol. 3, p. 531.
  11. ↑ Stefan Link: The coercion of the ward in Gortyn. (IC IV 72,16-20) (online, PDF; 53 kB)
  12. ↑ Eberhard Ruschenbusch : To the right of Drakon . In: ders .: Small writings on Greek legal history . Wiesbaden 2005, p. 38 fn. 31 ( online ).
  13. ↑ Ulrich Manthe: The killing of the adulterer. In: Leonhard Alexander Burckhardt, Jürgen von Ungern-Sternberg (Hrsg.): Great trials in ancient Athens. Munich 2000, p. 218 (online) .
  14. ^ Aristophanes , The Clouds , 1083.
  15. ↑ Lysias 14 (speech against Alcibiades 1) , 5 .
  16. ^ Georg Busolt: Greek political science . 1. General description of the Greek state . 1920. Reprint: Munich 1979, p. 534.
  17. ^ Aristotle , The Constitution of the Athenians 56, 6 .
  18. ↑ Theodor Thalheim : Ὕβρεως γραφή . In: Paulys Realencyclopadie der classischen Antiquity Science (RE). Volume IX, 1, Stuttgart 1914, Col. 31 f.
  19. ↑ James Adam : The Republic of Plato . Cambridge University Press, Cambridge 1902, to 8, 547B .
  20. ^ Hans Julius Wolff : Law I. In: Lexikon der Alten Welt . 1965. Reprinted by Artemis-Verlag, Zurich / Munich 1990, Volume 3, ISBN 3-89350-960-7 .