Themes

Horace in 24 B.C. calls on the Roman plebs (the common people) to welcome Augustus who has crushed its enemies in Spain, thus emulating the monster-slaying half-divine hero Hercules, who later became a god. Augustus had been ill and forced to stay at Tarragona the previous year, when his nephew Marcellus had come home to marry the emperor's daughter, his cousin Julia (born 39), and other young officers had been demobilised. The princeps' wife, Livia, and sister, Octavia (who, in accordance with republican convention in public speeches, are not named) will go out in procession to meet him.

Athenians of the classical period so venerated their ancient law-giver, Solon, that the laws of Solon still formed the basis of Athenian law in the radical democracy. Even after they revised the law code in the late fifth century, Athenians still referred to Athenian laws as “the laws of Solon,” confusingly mingling new and old laws under this one description. Yet we are told, even these laws were flawed. Some critics are mentioned by the Aristotelian Constitution of Athens (Ath. Pol. 9.2): Solon's laws, they claimed, suffered from lack of clarity, which created disputes, and “some think this was deliberately to put the demos in charge (kyrios) of the trials.” This example brings out several of the themes of this chapter: the role of early Greek laws and law-givers like Solon, the perceived and actual importance of writing down the law, the problems that arose even when the laws were recorded in writing, and the intimate connection between written laws and the bodies which put them into action.

Legal punishment typically involves the deliberate infliction of pain, harm, or loss on an individual by the state or community in the form of a judicial response to the violation of a legal norm. Legal punishment is what gives the criminal law its coercive force and distinguishes, in modern legal systems, criminal law norms from the norms of contract, property, and the like. In different legal systems punishment may take different forms: loss of life, liberty, or property; deprivations of civic rights or social status; banishment; dishonor; torture, branding, or mutilation; outlawry/prescription; or the infliction of such penalties on family or relatives of the convicted person. All of these forms of punishment are found in some manner in Athenian law, though not all of them could be inflicted on citizens, as opposed to foreigners or slaves. As Demosthenes puts it in Against Androtion (22.55-56), what distinguishes the slave from the free man is that the latter is sacrosanct in his person/body, which is respected even when he is convicted of wrongdoing. The slave, on the other hand pays the penalty with his body. Indeed, punishment in most premodern legal systems was linked to civic and social status. It is beyond the scope of this chapter to address the practices and modalities of punishment at Athens, though there is much room for further research in this area.

The two decades of civil war preceding the Augustan Principate did not extinguish poetic activity in the capital. Libretti continued to be produced for scenic festivals each year and verse in other genres was being written in the 40s (notably by Cornelius Gallus, Varius, and Vergil) and in the 30s (when Horace made his debut). But the wars took a toll. The poets Helvius Cinna, Cornificius, Cassius Parmensis, and Ticida met violent deaths, to say nothing of victims like the Ciceros for whom poetry was an avocation. Gallus succumbed to politics in the peace immediately afterwards. Wholesale proscriptions and confiscations caused a transfer of wealth that touched many who did not lose their lives, apparently including Vergil, Horace, Tibullus, and Propertius. And it was not only the effects on poets that depressed literary culture. The wars bled the whole upper class that had consumed and fostered poetry. Twenty years would have sufficed to transform literary society in any case, but there can be no doubt that the wars accelerated the turnover. Of the many personalities celebrated in Catullus' poems, the only one still active when peace returned was Asinius Pollio.

If we take law to be a society's established means of settling disputes among its members peacefully, then law exists to some degree in most communities, and early Greece is no exception. Well-established procedures for dispute settlement are evident in our earliest literary texts, the poems of Homer and Hesiod, which were probably put in writing around 700 B.C.E., and several other works composed during the next two centuries support the epic description of dispute settlement. In addition, the earliest surviving legal inscriptions - texts of laws inscribed mostly on stone - have been dated to ca. 650, a date that coincides roughly with the dates given by later Greek authors for the earliest Greek law-givers. By the fifth century individual Greek cities had well-established legal systems of their own, and from at least two of these, Athens and Gortyn (on the island of Crete), enough evidence survives from the fifth and fourth centuries that we can study them in some detail, but in this chapter I will confine myself to the period from 700 to ca. 450.

Within the rubric “law and religion,” a bundle of issues are united. One of the most important emerges from a fragmentary decree passed by the Athenian assembly either in the 440s or the 420s:

We see here how legislation concerning “the gods” or “the things of the gods” (these being the nearest Greek equivalents for the untranslatable “religion”) was passed in Athens: it went through the people's assembly like legislation on any other topic.

Ovid's extraordinary tour-de-force in representing all of mythology, indeed the whole history of the world from creation to the deification of Caesar, as a seamlessly interconnected series of transformations, offers a vision rooted in contemporary Augustan experience. The transformational skill with which Augustus constructed his new order out of the elements of the old order is conceptually parallel to the processes, which Ovid loves to describe, by which Daphne's metamorphosis from human to tree happens gradually, almost organically, using individual elements of the old body to fashion a new body.

It is hard for us to find the appropriate language in which to characterize the impact of Augustus. If we speak of a 'Roman Revolution', we not only inescapably evoke the revolutions of the modern world, and their social antagonisms rooted in the specific circumstances of capitalism, but we also represent the outcome in a way that does violence to the ideology of the players themselves. 'Metamorphosis', unlike 'revolution', allows some space for the Augustan claim to be restoring and adding to Roman tradition. But terminology is not the issue. That the reign of Augustus represents a major rupture in political systems is beyond dispute. The much larger issue is how political revolution (or transformation) ripples outward in its effect on society and culture.

The authority of the great philosopher Aristotle and the suggestive power of his systematic mind misled the compilers of older handbooks on the law in Athens and clouded their view of Athenian legal procedure. In their chapters on evidentiary procedure, they accept the five “nonartistic proofs” (atechnoi pisteis) canonized by Aristotle in his Rhetoric (1375a24): nomoi, martyres, synthekai, basanoi, and horkos (laws, witnesses, contracts, confessions under torture, and oath). More recent studies have recognized that only one form of evidence, witnesses, had legal significance in the practice of the Athenian jury courts. Aside from a few regulations governing witness testimony, Athenian law had no legally specified rules of evidence. We cannot take the various methods of finding truth in modern law as a natural given, nor can we uncritically apply those standards to the large Athenian courts (dikasteria). In Athenian law, the principle of determining the truth is not primary, but rather the principle of equal opportunity: both prosecutors and defendants should have a fair opportunity to present their positions to a body of fellow citizens selected objectively and not influenced by bribery or pressure. This assembly of jurors decides the case immediately after the speeches, rendering their first and final decision without deliberating or giving reasons.

Nomos and physis, the Greek words for law and nature, were adaptable to a remarkably wide range of theoretical presuppositions. Philosophers could conjoin them, exploiting their inherent semantic similarities, or they could contrast them, dwelling on salient differences between them that usage and ideology had conferred. There are contexts where either word might be translated by norm (“according to” nomos or “according to” physis) or even by constitution or arrangement; for the physis of something is its basic structure or essence, and nomos identifies such items as musical modes, social customs, divine rules, or codified laws, all of which designate systematic procedures applicable to all members of the class of things to which they pertain. This is not to say that the terms are ever synonymous. A nomos is almost always prescriptive and normative, tinged with the idea of being sanctioned, required, and entailing retributive or harmful consequences if it is ignored. The domain of physis is primarily factual and descriptive. Yet, like “natural” in English, physis could also acquire strongly prescriptive and normative connotations, as in the Hellenistic ethical formula that the best human life needs to be “in agreement with nature” or the Hippocratic physicians' proposals concerning the body's “natural” requirements for health.

Among the many poetic accomplishments of the Augustan age, two stand out and tower over the rest: Vergil's Aeneid (written between 29 and 19 B.C.) and Ovid's Metamorphoses (published around A.D. 8). The reason is not just their epic length - 12 books for the Aeneid, 15 for the Metamorphoses - but their richness and scope of defining the human experience. It is for that reason they have become, deservedly, world literature, a dimension that is fully borne out by their reception in later literature, art, and music, a reception that has lasted to our days in both the old world and the new. The term 'world literature' also characterizes the roots of these poems in the Augustan milieu and their contributions to that milieu. On a very literal level, they encompass a world that was not limited any longer to Rome and Italy but a world that had been opened up into what the Romans called the orbis terrarum; Ovid would designate Augustus as pater orbis (“father of the world”; Fasti 2.130). The special and enduring quality of Vergil's and Ovid's poems is that they extended this universal perspective to their treatment of the human condition.

As all works of world literature, then, the Aeneid and the Metamorphoses are both products of their own culture-specific time and transcend it. Given the special character of the Augustan age, these two aspects are not dichotomous, but complementary. One further aspect of interplay needs to be stressed before I take up some particulars. Poets like Vergil and Ovid do not simply “reflect” the spirit of their age. Rather, they contributed to shaping it because they saw the creative possibilities.

A DIVISION OF OPINIONS

At the beginning of the thirteenth century, just a few years after Maimonides' death, his Hebrew translator Samuel Ibn Tibbon sketched a critical and incisive picture of his contemporaries and their response to Maimonides' philosophic teaching. None of the readers or interpreters of the Guide were omitted. On the one hand, he wrote, “Many of our generation revile his words and called his light darkness.” They vilified Maimonides' writings and found them religiously defective. On the other hand, there are people who support Maimonides, but they too betray his original intention. They accept his teaching only because they have not understood its full import: “Had they however fully understood the profound intention of the Master, they would have undoubtedly acted just as their [anti-Maimonidean] colleagues, and only a very few would remain [Maimonidean].” The community was thus divided between critics, who attacked Maimonides for his audacity, and supporters, many of whom ignored it. Only a precious few succeeded in plumbing the depths of his doctrine, and only these were worthy of being called his true followers.

It is impossible to overstate Maimonides' influence on Jewish philosophy. Although his predecessor Judah Halevi may have come closer to expressing what most Jews think about God, and his successor Levi ben Gerson (Gersonides) may have been a more rigorous practitioner of scholastic philosophy, neither shaped Jewish self-understanding the way Maimonides did. One reason is the breadth of his contribution: In addition to his standing as a philosopher, Maimonides established a commanding reputation as a rabbi, Talmudic expositor, physician, and social commentator. But the most important reason has to do with intellectual power. By trying to bring Judaism and philosophy closer together, he did not leave either as he found it. If Judaism became more rigorous in defending its central beliefs, philosophy became more willing to face its limitations.

In Maimonides’ judgment, Judaism stands or falls on its commitment to an incorporeal God who cannot be represented in bodily form. It is clear, however, that this commitment runs counter to the tendency of most people to think in material terms and deny the existence of anything incorporeal. The problem is acute because for Maimonides to conceive of God in the wrong way is not to conceive of God at all. Thus a person who prays to an image of a king on a throne has not fulfilled the commandments of the religion no matter what else he or she may do. Nor, as far as Maimonides is concerned, has he or she fulfilled the rational potential of a human being.

It may surprise those who are new to the field to learn that the very expression Greek law is a point of contention for scholars in the field. For the most part, those in the United States and the United Kingdom avoid the expression, and only two books with “Greek law” in their title have been published in English since Pringsheim's Greek Law of Sale in 1950. Even Sealey, who accepts Greek law as a valid concept, entitled his book on the subject The Justice [not Law] of the Greeks (Sealey 1994; see Gagarin 1996). This situation contrasts sharply with the case of Roman law, which is unproblematic in this regard: histories of, textbooks on, and introductions to Roman law appear regularly. Continental scholars tend to be more sympathetic to the notion of Greek law, though they too tend to avoid the expression in titles (Biscardi 1982a is a notable exception).

Although nineteenth-century scholars were aware that the existence of dozens of politically independent Greek poleis (or “city-states”) made the concept of Greek law problematic, they generally agreed that the laws of different cities, in the words of Ludwig Mitteis, “rested on the same juristic conceptions.” Mitteis' position dominated the first half of the twentieth century, until it was strongly attacked by Moses Finley, first in a review of Pringsheim's book mentioned above and later in a more comprehensive essay entitled “The Problem of the Unity of Greek Law.”

INTRODUCTION

Moses Maimonides was born in Cordova, Spain, in 1138 and died in Cairo in 1204. Cordova was then the capital of Andalusia (Muslim Spain) and the largest and most affluent city in Europe. Under the Spanish Umayyads (756-1031), Cordova thrived as a cultural center and political capital. Andalusia reached a high level of civilization, with art, literature, history, science, music, and jurisprudence flourishing as nowhere else in Europe. The reign of enlightened Caliph 'Abd ar-Rahmāan III (912-61) marked the beginning of a period of cultural flourishing for Andalusia, including its Jewish communities. The caliph embraced a tolerant policy, integrating the diverse religious communities and ethnic groups in his state. In such an environment, the Jews found a niche and prospered. 'Abd ar-Rahmāan, a devotee of both religious and secular learning, attracted literati and scientists by giving them generous endowments. A multitude of libraries, mosques, madrasas [colleges], and hospitals enticed scholars from the eastern part of the Islamic world to emigrate to the west, bringing with them intellectual treasures that made Andalusia culturally preeminent for many centuries.

THE RATIONAL STRUCTURE OF THE LAW

To appreciate Maimonides' jurisprudence, it is best to begin by looking at how one can be a jurisprudent or halakhist in the normative Jewish tradition. The Talmud notes that “one is not to derive the law from theoretical law [halakhah] or from a particular case [Ma’aseh], but only when they say to him that it is the practical law [halakhah le-ma’aseh, literally, “the law for a case”].” Thus there is theoretical law from which practical law is not to be deduced because it is too general or only hypothetical. Then there is actual lawmaking from what one might call the political lawmaker, which is specific and to which analogies to other laws can usually be made. Finally, there is case law from the rabbinic respondent, which is too particular for one to make analogies to other laws or to simply induce from it what the specific law is. After all, each case might be exceptional.

Maimonides was a lawmaker in all three respects. That is, he was a general theorist, a codifier of specific law, and a casuist who decided the law in particular cases. Nevertheless, when one is seeking Maimonides the philosopher, it is his theoretical contribution that is of most interest.5 Indeed, his philosophical treatment of Jewish law needs to be understood within his overall view of practical reason. One must also see the relation of practical reason to contemplative or metaphysical reason, which is the apex of reason for Maimonides.

INTRODUCTORY REMARK

Philosophy of science is a metascientific discipline. It takes existing scientific knowledge for its point of departure and reflects on it, asking questions such as this: What is meant by saying that a scientific theory is true, that it has been verified, or confirmed, by experience, that it explains phenomena, that science makes progress? It also reflects on the implications of scientific theories for metaphysics. Only rarely is the philosopher of science a scientist, and most scientists are not much interested in the philosophy of science.

Maimonides was neither a scientist nor a philosopher of science. Rather, he was very well acquainted with the most up-to-date science in the medieval Greek-Arabic tradition and drew on it in his theological investigations, whose results he addressed to a Jewish readership. He aimed to bring together, or accommodate, two bodies of thought, which at the outset were entirely unrelated: the Jewish revelation and tradition, handed down in a body of authoritative texts, and Greek-Arabic rational thought, as systematized by the great representatives of Arabic Aristotelianism.

Republican or Monarch?

When Augustus on his deathbed pointedly asked whether he had played the “farce of life” (mimum vitae; Suet., Aug. 99) well and asked for applause, he did not say what role he had in mind. Was it that of world ruler and imperator, who more than any Roman before him had enlarged and secured the boundaries of the Roman empire? Or did he want to be applauded as “prince of peace,” who after the turmoil of protracted civil wars brought the Romans the calm of the Pax Augusta? Did he think of his efforts on behalf of morality and religion or of his reputation as “Father of his Country” (pater patriae) and his unceasing care for peace, liberty, and prosperity of his “children”? But there was one thing he surely did not mean: the role of a monarch.

True, he had never restricted himself to the role of “Grey Eminence,” content with operating in the background. Rather, he always sought recognition for his accomplishments and assiduously saw to raising his and his family's profile in both Rome and the provinces through the media of architecture, literature, and art. At the same time, he had also renounced all insignia of personal power: no scepter, no diadem, nor the golden crown and purple toga of his adoptive father. He knew well that as son of the deified Caesar and as Augustus (”The Revered One”) he was endowed with a special aura and that his military, political, and financial resources elevated him beyond the reach of his fellow citizens.