[84] See George Thomson, Aeschylus and Athens, a Study in the Social Origins of the Drama (London, 1941); A. D. Winspear, The Genesis of Plato's Thought (New York, 1940); M. O. Wason, Class Struggles in Ancient Greece (London, 1947).
[85] F. M. Cornford, Before and After Socrates (Cambridge, 1932), p. 54.
[86] W. L. Newman, The Politics of Aristotle (Oxford, 1887), i, p. 479.
[87] See Rhys Carpenter, ‘The Antiquity of the Greek Alphabet’, American Journal of Archaeology, xxxvii, 1933, pp. 8-29 and ‘The Greek Alphabet Again’ (ibid., xlii, p. 67). Also G. R. Driver, op. cit., pp. 176-8.
[88] Sir Richard Jebb, Essays and Addresses (Cambridge, 1907), p. 573.
[89] See Milman Parry, ‘The Homeric Gloss: a Study in Word Sense’ (Transactions and Proceedings of the American Philological Association, lix, 1928, pp. 233 ff.).
[90] See M. P. Nilsson, Homer and Mycenae (London, 1933).
[91] The manuscripts on which texts were based were probably prepared in Athens and include Attic forms very few of which were organically connected with verse.
[92] See E. T. Owen, The Story of the Iliad as Told in the Iliad (Toronto, 1946).
[93] See H. M. Chadwick, The Heroic Age (Cambridge, 1926), pp. 462-3.
[94] T. A. Sinclair, Hesiod: Works and Days (London, 1932), p. xxvii.
[95] M. P. Nilsson, A History of Greek Religion (Oxford, 1925), pp. 179 and passim.
[96]
‘Wie das Wort so wichtig dort war,
Weil es ein gesprochen Wort war’ (Goethe).
[97] Werner Jaeger, The Theology of the Early Greek Philosophers (Oxford, 1947), p. 16.
[98] 1 Werner Jaeger, Paideia, the Ideals of Greek Culture (Oxford, 1939), i, pp. 152 ff.
[99] F. M. Cornford, From Religion to Philosophy (London, 1912), p. 143; also id. The Laws of Motion in Ancient Thought (Cambridge, 1931).
[100] F. M. Cornford, From Religion to Philosophy, pp. 20 and passim.
[101] Cited J. M. Robertson, The Evolution of States: An Introduction to English Politics (London, 1912), p. 39 n.
[102] J. L. Myres, The Political Ideas of the Greeks (New York, 1927), p. 72, also pp. 67 ff. ‘It is strange at first sight that war, arising from luxury and self-aggrandisement, should be the point of departure for the introduction of the guardian class, and therefore of government and conscious morality. But both the theory of natural selection and the lessons of history seem to show that it is war which makes a nation.’ Bosanquet, A Companion to Plato's Republic, p. 85. ‘In the last resort in the Greek period military ideals overlie and overrule all others.’ Benjamin Kidd, Principles of Western Civilization (London, 1902), p. 182.
[103] See S. H. Butcher, Harvard Lectures on the Originality of Greece (London, 1902), passim.
[104] Ibid., p. 51.
[105] See J. L. Myres, The Political Ideas of the Greeks (New York, 1927), pp. 212-20. For a discussion of the importance of written law to the development of vernacular literature see H. M. Chadwick and N. K. Chadwick, The Growth of Literature (Cambridge, 1940), pp. 497-500.
[106] ‘But when the laws are written, then the weak and wealthy have alike but equal right’ (Euripides), cited R. J. Bonner and Gertrude Smith, The Administration of Justice from Homer to Aristotle (Chicago, 1930), i, p. 68. ‘A written code of laws is a condition of just judgment, however just the laws may be. It was therefore natural that one of the first concessions that governments were forced to make was a written law.’ J. B. Bury, A History of Greece (New York, n.d.), p. 137.
[107] Gregory Vlastos, ‘Solonian Justice’ (Classical Philology, xli, p. 69).
[108] See W. J. Woodhouse, Solon the Liberator (London, 1938).
[109] J. B. Bury, A History of Greece, pp. 176-7.
[110] Werner Jaeger, Paideia, the Ideals of Greek Culture, i, p. 229.
[111] Whitehead has pointed out that in the period from Pythagoras to Plato, as in the seventeenth and eighteenth centuries, general categories of thought were in a state of disintegration. Only in periods of disengagement from immediate pressure of circumstances and eager curiosity could the age spirit undertake a direct revision of final abstractions hidden in more concrete concepts. In these rare periods mathematics became relevant to astronomy. A. N. Whitehead, Science and the Modern World (Cambridge, 1926), pp. 39, 49.
[112] Jaeger, Paideia, i, pp. 235 ff.
[113] See George Thomson, Aeschylus and Athens, A Study in the Social Origins of the Drama (London, 1941).
[114] See W. M. Flinders Petrie, The Revolutions of Civilization (London, 1922).
[115] Werner Jaeger, The Theology of the Early Greek Philosophers (Oxford, 1947), p. 155.
[116] Ibid., p. 42.
[117] P. H. Lang, Music in Western Civilization (New York, 1941), pp. 5-11.
[118] The secret society of Dionysus became a guild of actors. George Thomson, Aeschylus and Athens, pp. 164-73; also Sir Richard Jebb, Essays and Addresses (Cambridge, 1907), pp. 146 ff.
[119] See Werner Jaeger, Paideia, i, passim.
[120] Friedrich Nietzsche, The Birth of Tragedy from the Spirit of Music, translated by W. A. Hausmann (Edinburgh, 1923), p. 85. For a more conservative approach see G. M. A. Grube, The Drama of Euripides (London, 1941).
[121] J. B. Bury, op. cit., pp. 176-7.
[122] Sir Richard Jebb, op. cit., pp. 128 ff.; also Werner Jaeger, Paideia, i, pp. 360 ff.
[123] G. M. A. Grube, op. cit., p. 29.
[124] The Legacy of Greece, p. 275.
[125] See H. Grant Robertson, The Administration of Justice in the Athenian Empire (Toronto, 1924).
[126] ‘....Lycurgus is said to have banished the study of arithmetic from Sparta, as being democratic and popular in its effect, and to have introduced geometry, as being better suited to a sober oligarchy and constitutional monarchy. For arithmetic, by its employment of number, distributes things equally; geometry, by the employment of proportion, distributes things according to merit. Geometry is therefore not a source of confusion in the State, but has in it a notable principle of distinction between good men and bad, who are awarded their portions not by weight or lot, but by the difference between vice and virtue. This, the geometrical, is the system of proportion which God applies to affairs. This it is, my dear Tyndares, which is called by the names of Dike and Nemesis, and which teaches us that we ought to regard justice as equality, but not equality as justice. For what the many aim at is the greatest of all injustices, and God has removed it out of the world as being unattainable; but he protects and maintains the distribution of things according to merit, determining it geometrically, that is in accordance with proportion and law.’ Plutarch's Dinner Table Discussions cited in Benjamin Farrington, Science and Politics in the Ancient World (London, 1939), pp. 29-30.
IV
THE WRITTEN TRADITION AND
THE ROMAN EMPIRE
The achievements of a rich oral tradition in Greek civilization became the basis of Western culture. The power of Greek culture to awaken the special forces of each people by whom it was adopted and to lead them to develop shapes of their own has been described with particular reference to Rome.[127] The slumbering national forces were liberated to form a culture moulded by the interpenetration of native and Greek elements. Greek colonies in Italy and Sicily and Greek traders apparently introduced the alphabet in the early part of the seventh century, and it was developed into a Graeco-Etruscan script in the second half of the century.[128] In the sixth century the rule of tyrants in Greece was paralleled in Rome and Greek gods were introduced by the Etruscans. The plastic cult image, the human representation of the deity, and the architecture of the cult-building reached Rome in their complete forms and took their place with equal rights with animal shapes set in nature. The Greek house of God in the Capitoline temple was dedicated in 509 or 507 B.C. The Sibylline books were introduced through the Etruscans, placed in the cellar, and adopted in 499 B.C. Authority was set up to guard them and at their bidding Greek cults, including Ceres, Liber, and
Libera, gods of the plebs, were introduced following a famine, and Demeter, Dionysios, and Kore introduced in 496 B.C. Codification of the cults and a deliberate arrangement in the order of gods and festivals in the earliest calendar probably coincided with the spread of writing, and was carried out to mark the union of two separate settlements in the city of Rome under the direction of a king.
In the fifth and fourth centuries Rome took up a position of isolation in the face of Greek culture. The king was defeated and an aristocracy of patricians became the ruling class. The old principle that hereditary religion established the right of property was restored. Two annual officers, the praetors, later called consuls, replaced the king and the power of the Senate was increased. To meet the demands of the plebeians whose powers had been weakened by the defeat of the king a tribunate of two, later increased to ten, with immunity from arrest, was set up in 494 B.C. to protect them from the arbitrary authority of the consuls.
The pontifices assumed the sacred obligations of the king and as a privileged minority in a sacerdotal college monopolized the knowledge of unwritten laws. Equipped with trained memories a series of juristic oligarchies applied all the principles by which disputes were settled. The task of maintaining a body of law was met through the oral tradition by reference to rules of conduct, information, conclusions converted into slogans, axioms, and doggerel verse. Authority was strengthened by the association of members with religious offices, and the power of the priesthood was increased by the absence of a written body of law. Priests became the makers, expounders, and administrators of law hampered by no meddlesome legislators and capricious monarchs. The results of their work have been described as comparable to the philosophical ideas of the Greeks and the religious ideas of the Semites.
The tribunes developed deliberative assemblies and other institutions for the plebeians and demanded that laws should be reduced to writing and made public. The pontifex maximus had recorded the names of magistrates and important events on a wooden tablet and the practice was followed by requests for elaborate details partly to imitate the model of Greek codifications.[129] The decemvirs' code was worked out in 451 and 450 B.C. and became the twelve tables. In spite of this encroachment of the written tradition, interpretation remained in the hands of the college of pontiffs and law was developed by legal fictions. The code maintained the power of the father over the son but admitted that patrimony might be divided among brothers. Property belonged to the individual and not to the gens, and the right to transmit property by will was conceded. The fiction of a pretended sale made possible the selection of the one chosen as heir. Inability of plebeians to contract a sacred marriage was overcome by recognition of a fictitious sale of the wife to the husband. One year's cohabitation established the same legal ties as purchase or religious ceremony, but if in each year the wife interrupted cohabitation by no more than three nights the establishment of the husband's power could be prevented.
Plebeian powers were steadily conceded and extended. In 445 B.C. the law against marriage between the two orders was withdrawn. Encroachments on the position of the consul began in 444 B.C. and to isolate and protect its religious function the position of the censor was instituted in 443 B.C. Two censors were chosen every four or five years to determine assessments for purposes of taxation and after about a century they were able to decide the composition of the Senate. The struggle was renewed after the sack of Rome by the Gauls in 396 B.C., and the Licinian laws in 367 B.C. required that one consul must be plebeian. New offices, the praetorship, and the curule aedileship, in which the praetor officially administered justice, were created by the patricians in 366. Knowledge of the legal process was gradually made public after 312 B.C. and the ascendancy of the pontiffs came to an end in 304 B.C. The lex Ogulnia admitted plebeians to the offices of pontifices and augures in 300 B.C. After 287 B.C. measures of the plebeian assembly had the force of laws. In 253 B.C. the first plebeian pontifex maximus was appointed and, significantly, he was the first to profess law publicly.
In spite of the increasing power of the plebeians in the determination of law, the influence of the oral tradition persisted, partly because of its adaptability to new demands and partly because the prudentes or lawyers probably continued in their connexions with the priestly class. Dominance of the Italian peninsula and expansion of territory was followed by an increase in trade with the Greeks and by the adoption of silver coinage by the Senate in 268 B.C. To administer justice for aliens a second praetor, peregrinus, was added in 242 B.C., in contrast with the first praetor, urbanus. The number of praetors was increased to four in 227 B.C. and to six in 198 B.C. The peregrine court familiarized Romans with the standard practices of commercial peoples[130] and enhanced a respect for equity. Lawyers were trained in the use of formula until even the urban court could abandon the rigid legis actiones.
Under the per legis actionem procedure, the praetor and the parties concerned had their roles fixed by law and new formularies were composed to destroy its rigidity. Under the per formulam procedure introduced about 150 B.C. the action was divided and the issue was first defined before the magistrate. A written instruction called the formula was sent to the judex ordering him to condemn or dismiss the defendant according to the answer to the question raised. The exact question in dispute was therefore determined by trained lawyers and the actual facts by laymen (judex) who settled the dispute according to the formula decided by the praetor, a trained legal expert. The older spoken formulae were displaced by written formulae, but only after the technique of the jurist had been fixed to a degree that the innovation had little influence. Formulary procedure had an important influence on a powerful and independent development of jus praetorum which accompanied the increased powers of the praetor. The lex Aebutia, about 120 B.C., established documentary procedure or the formulary system as an optional process and avoided the excessive technicality and formalism of the system of legis actiones. The praetors issued edicts stating the rules of procedure to govern during their year of office, which were placed in black letters with red captions on white wooden tablets posted in the forum. The praetor generally adopted the edict of his predecessor, but with modifications. Control over procedure implied control over fundamental changes in law.[131] The lex Cornelia, 67 B.C., required the praetor to abide by his edict during his year of office. The edicts gave flexibility and certainty and became a source of equity.
Until the time of Cicero, laws and precedents were kept to a large extent in the memories of men and the results of the oral tradition were evident in the achievements of jurists. In the peregrine court the progressive character of law was evident in the development of almost the whole of the law of contract, ‘one of the greatest achievements of classical jurisprudence’. Property was divided into movables and immovables, and contracts and conveyances between organized groups were ceremonious in the highest degree and required a number of witnesses and assistants. Contracts created obligations and were separated from conveyances which transferred property rights. Steps in ceremonial were dropped, simplified, or neglected until in specific contracts, on which ‘the activity and energy of social intercourse’ depended, no form was used. A contract was a pact plus an obligation, ‘the most beautiful monument’ of the sagacity of Roman jurisconsults.[132] ‘The positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilization.’[133]
Contract replaced forms of reciprocity in rights and duties having their origin in the family held together by the patria potestas. Legal fictions permitted the creation of artificial relations and there has been ‘none to which I conceive mankind to be more deeply indebted’.[134] The father's powers were limited as facilities for their voluntary surrender were multiplied. The perpetual guardianship of women died out and the Roman female attained a position of personal and proprietary independence. The greatest possible latitude was given to individual initiative and the right of ownership was as unrestricted as possible. ‘Property
has nothing in common with possession.’[135] Possession was merely an outwork of ownership and an aid to its better protection. Res publica had its counterpart in res privata. The state became a creature of law to be discussed in terms of legal competence. The relations of the state to religious institutions and of political philosophy to philosophy, which had scarcely been problems in the unity of the Greek polis, were vital to the Romans.[136]
The achievements of civil law in the concepts of the family, property, and contract were not made by the state, though sanctioned by its protection, but by practising lawyers. Lex, used for the conclusion of treaties, the regulation of provinces and local areas, and ordinary matters under constitutional law, was sparingly used as a source of law.[137] Treaties were engraved on bronze or stone and stored in the Capitoline temple, laws of the centuriate assembly in the Temple of Saturn, and important decrees of the Senate in the Temple of Ceres. The influence of the written tradition shown in the problems of lex was in striking contrast with the power of the oral tradition in civil law, a contrast which boded ill for the history of the republic and the empire.
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