This chapter examines the kinds of legal procedure adopted by various ancient legal systems to conduct legal proceedings in a court. The areas covered include the constitution of courts, preliminary court proceedings, valid evidence, presentation and evaluation of evidence, and the final verdict, including the possibility of appeals. Discussions include judges and court personnel, the physical space of courts, distinctions between civil and criminal cases, plaint and plea, sureties, and legal representation. Under evidence there is examination of witnesses, documents, oaths, ordeals, torture for evidentiary purposes, and forensic investigation, and punishment for perjury. Once a verdict is reached by the court, there are issues relating to the recording and the enforcement of the verdict. There is wide diversity in the legal procedure recorded in the sources from different legal traditions. Some deal with the topic explicitly, while in others we have to deduce the procedure from material on court cases.

This chapter surveys forms of status by which legal systems assign rights, obligations and capacities to various categories of person. Though such discussions have tended to restrict themselves to statuses recognized in Roman law (the hierarchical birth-based statuses that Maine contrasted with the contractualism of later Western systems), cross-cultural comparison requires a wider lens. Hence, the chapter covers status within the polity, official or military status, unfree or servile status, putatively ‘natural’ statuses, status in the family and status as member of a voluntary or professional association. Special attention is given to the mechanisms involved in change of status, and to status as a factor in legal penalties. It is proposed that, in systems of religious law (which often operate parallel to civil law in a legal-pluralist context and across borders), status within the ‘ecclesial’ polity is comparable to civil status (citizen, resident alien, etc.) within a territorially defined polity.

In this chapter we treat law as inextricably connected to a text. We examine the ways in which laws and other elements of the legal process, including documents, procedural records, and judicial opinions and commentaries, are produced, preserved, transmitted and communicated to various audiences in ancient Greece and Rome, the ancient Near East and Egypt, ancient India and ancient China. We include discussions of when and how texts first emerged in these societies, the materials on which they were written and preserved, and other special features of their written texts, such as language, syntax, degree of precision, and organization and codification. We also examine these aspects of secondary legal texts, including historical accounts and reports, literature, philosophical, religious and other intellectual works, non-legal documents, instructional materials and visual ‘texts’, to see how these contributed to the understanding of law as text.

Although writing makes no appearance in the poems of Homer and Hesiod, when these poems assumed their final form ca. 700, writing was already widespread in the Greek world. Our earliest examples of writing, scratched or painted on pottery, come from around 750 or a little earlier. Whether this means that writing was introduced not long before this date, or two or three centuries earlier is a matter of debate. For our purposes, the exact date is of little importance. We can only use the material we have, and since none of the inscriptions from the first century of our evidence is legal in nature, we can be fairly confident that whatever the date of the invention of the alphabet, the Greeks did not begin writing laws before ca. 650.

As we noted earlier (Introduction) after the collapse of Bronze-Age civilization in the twelfth century, a new kind of writing emerged, an alphabetic script that developed from a Phoenician alphabetic script, with the important innovation that the Greeks added signs for vowels, which were lacking in the Near-Eastern alphabets of the time. This innovation made the Greek script easier to read than the consonant alphabets of the Near East (see most recently B. Powell 2002).

This book examines the history and significance of writing in Greek law. I start from the assumption that although writing in general, and writing law in particular, share certain common features in almost any culture, there are also culturally specific aspects to writing and writing law. I shall argue, in fact, that writing, and specifically writing law, played a significantly different role in Greek law than in other comparable “premodern” societies. Moreover, both by its presence and just as importantly by its absence, writing was a key factor in shaping the special, even unique, nature of Greek law. Thus, a study of the history of writing and Greek law from the beginning through the classical period and (briefly) into the Hellenistic Age will help us understand what Greek law is, how it developed in the special way that it did, and why it became so different from the legal systems with which most legal historians are familiar. The results of this study have important implications for resolving the long debated question of “the unity of Greek law” – that is, in what sense, if any, it is useful to speak about “Greek law” as a coherent institution – and for understanding the special nature of Greek law.

We have come to the end of the story of writing Greek law, which begins in a period of oral law in which writing played no role, and continues through the earliest use of writing in the seventh century for recording and making public legislation, into the classical and Hellenistic periods when writing was increasingly used in the administration of law and for legal documents other than laws, and ends (for us) in Ptolemaic Egypt, where writing law changes entirely. With the exception of Egypt, we have seen two trends consistently at work: the abundant use of writing for legislation, which was always publicly displayed so as to be read and used by a relatively large segment of the community, and the resistance to using writing during the judicial process. We have also noted some of the consequences of these two trends – that Greek laws have a more open texture, a broader “fringe of vagueness” (Hart 1994: 123) than modern laws, that they are generally written in ordinary, non-technical language, and that the legal professionals so prominent in most other legal systems, including lawyers, notaries, judges, and jurists, are largely absent from Greek law.

All these features worked to make Greek law accessible to a relatively broad segment of the community.

The ideas in this book have been developing in my mind for more than a decade, but they first began to take shape as a comprehensive view of Greek law when Joseph Mélèze-Modrzejewski invited me to give a set of lectures at the Sorbonne in 2001. (See “Ecriture et oralité en droit grec,” Revue historique de droit français et étranger 79 (2001) 447–62.) I had earlier presented ideas about writing and law in lectures to audiences at the Centre Gernet in Paris, and in Copenhagen, Milan, Houston, and Columbia, MO; but during this month-long stay in Paris I first worked out a comprehensive thesis about the role of writing in Greek law and its very different role in other comparable societies. I am grateful to Jo for this opportunity, for his hospitality, and for the stimulating sessions of his seminar at the Ecole Pratique des Hautes Etudes, to Pauline Schmidt for arranging for me to address a session of her Greek History seminar, and to Jean-Marie Bertrand for helping in so many ways make my time in Paris both fruitful and enjoyable. Since that visit I have presented different parts of my ideas to audiences in Glasgow, Chicago, Philadelphia, Knoxville, San Diego, Austin, Athens, Graz, Lexington KY, Caen, Marshall CA, Marburg, Manchester, Charlottesville VA, Salerno, Nicosia, Montreal, and Auckland; I am grateful for the criticisms and suggestions I have received on all these occasions.

The earliest period of Greek law for which we have evidence, albeit indirect, is the era portrayed in the poems of Homer and Hesiod, which we may loosely refer to as the period of “Homeric society.” Although the events in Homer take place at the end of the Bronze Age (ca. 1200–1150), the institutions portrayed almost certainly represent those of a later period, most likely the eighth century, shortly before these poems were put in writing, probably around 700. Moreover, the works of both Homer and Hesiod contain episodes and allusions pertaining to judicial matters on the basis of which we can sketch a picture of a more or less formal process for judging or settling disputes between members of the community. Certain details of this process may vary, but there is enough consistency among the different episodes to conclude that early Greek legal procedure was a recognizable institution with well-established parameters within which there was room for variation in detail. Like the rest of the Homeric/Hesiodic world, the legal process shows no knowledge of writing, even though writing was probably introduced to the Greek world a century or so before these poems were written down. Thus, we are justified in assuming that legal procedures such as those portrayed in the poems existed in Greece in the eighth or ninth centuries and probably continued with little change (and without the use of writing) until the mid seventh century, when laws first began to be written.

In Chapter Seven, we contrasted the use of writing in connection with law at Gortyn, where legislation was routinely written down and displayed in public, but writing had little or no presence in judicial procedure, with the very different use of writing in the laws of Hammurabi. Now that we have established a similar pattern in the use of writing in Athenian law, we can extend this contrast to two other premodern legal systems, early Roman law and early English common law. But first, let me extend the observations made in Chapter Eight about the use of writing to other features of Athenian law that are related to the ways in which writing was used.

As we have seen, from its very beginning in the late seventh century, Athenian legislation was written down and publicly displayed. Moreover, Draco and his successors strove to make the laws as accessible as possible to all members of the community who might wish to make use of them. In other words, Athenians always assumed that legislation was a matter of public interest and should be available to the public. Athenian law also displays from the beginning a reluctance to use writing for procedural matters or to insert writing into the traditionally oral trial process.

As we have seen, during the archaic period laws were written down and publicly displayed in cities all over Greece, but almost nothing else of a legal nature was written and publicly displayed. One consequence of this was that terms like “writing” (graphos, grammata) could be used without qualification to designate a written law. In addition to examples from Elis (IvO 7) and Argos (IGiv 506) noted in Chapter Two, other texts from Elis and Eleutherna also use expressions designating writing in this way. Another inscription from Elis (IvO 9; Nomima 1.52, ML 17) begins by designating itself a rhatra or “pronouncement,” one of the other terms by which archaic cities designated written laws, but later warns against destroying “these writings” (ta graphea). Here, as in IvO 7 (Chapter Two), rhatra designates the pronouncement of the people in assembly enacting the law and graphos (singular and plural) designates the text of that pronouncement after it is written down as the law. And a law attributed to Solon provides that any agreement made by the members of certain organizations is valid “as long as no public writing (dēmosia grammata) prohibits it” (Ruschenbusch 1966: f76a). Although Solon elsewhere calls his laws thesmoi, it appears that here he uses the expression “public writings” to designate the city's laws, perhaps to emphasize that these are written and publicly displayed.

Classical Athenian law is often seen as the high point in Greek legal history, but the story does not end there, and for the sake of completeness, I will briefly look at law in the Hellenistic world. The conquests of Philip and Alexander at the end of the fourth century changed the Greek world in important ways, but in many respects life in Greek cities remained unchanged. Although no longer in control of their relations with other cities or completely free to determine their own leaders (who now needed the support of Macedonian rulers more than of the dēmos), these cities continued to regulate their internal affairs, and it appears that private law, at least, continued more or less unchanged in Athens and other Greek cities.

At the same time, Alexander's conquests included many areas that were not previously Greek, in most of which he encouraged Greeks (often his own mercenary soldiers) to settle and even founded new Greek cities. These Greek settlers coexisted with the native inhabitants and often with settlers from other countries, creating new communities which did not have a history of traditional Greek institutions. These new settlers usually came from several different Greek cities, so that except in the most general ways, they lacked a common legal heritage. Given these very different circumstances, it is not surprising that the legal systems in these newly Greek cities and territories differed from those of long established Greek cities.

If, as I have argued, the frequent use in fifth-century inscriptions at Gortyn of expressions like “as is written” to refer to laws written elsewhere conveyed the sense that the text was part of a larger, interconnected set of legal texts, this sense of a unified set of laws may have been part of the inspiration for one of the grandest legislative achievements of ancient Greece, the Gortyn Code (GC), sometimes called the “Queen of Inscriptions” (Willetts 1967: vii). The scale of GC puts it in a class of its own. In eleven and a half columns of text, with 621 lines and more than 3,000 words, it presents rules on a range of subjects, primarily related to family and property law, but also concerning many other issues. The large clear letters are generally well preserved and with few exceptions, the text is easy to read.

Many interesting questions have arisen about the nature of this extraordinary inscription: Why were these particular laws inscribed together? Is it properly called a code? How are the laws on GC related to those on other inscriptions at Gortyn? Are all these laws the work of a single magistrate? The work of a succession or group of magistrates? Or decisions of some assembly or group of citizens? Or are they verdicts rendered in court cases? I do not expect to answer all these questions, and most of them will never be answered with certainty.