III. THE LATE ARCHAIC PERIOD
The beginning of written legislation toward the end
of the early archaic age constitutes the most decisive
influence upon the formation of new concepts of law
in the late archaic period, since it sets the stage for
a distinction between those aspects of community life
which can and those which cannot be reduced to pre-
cisely formulated written regulations. We have no
certain knowledge of either the date or the place of
the first enactment of written statutes, and we are also
ignorant of the identity of the first giver of written
laws. Draco, to whom Aristotle attributes the earliest
written legislation in Athens (Athenaion Politeia 41.
2) and whose code is usually dated 624 B.C., was cer-
tainly not the first giver of written laws in Greece.
Whatever the truth about Lycurgus and the date of
his legislative activity may be, there is no doubt that
the Greeks believed Sparta to have had some written
statutes before Athens (but see Plutarch, Lycurgus 13).
But again, we do not know whether any state preceded
Sparta in the written publication of laws. We can be
certain only that written legislation did not antedate
the emergence of the city-state (polis) as the basic
social and political unit in the Greek world.
We know a little more, however, about some new
concepts of law which emerge with the development
of written legislation, although our knowledge stands
on rather feeble legs. The terminology used by different
states to describe their statutes provides an important
clue for the interpretation of their notion of “law.”
One element in such an interpretation is etymology,
which tells us to what kind of root a given word for
“law” is related; another element is the variety of
contexts in which the terms for “law” may be used.
Since for all cities, with the sole exception of Athens,
however, the quantity of surviving writings is very
meager indeed, we do not have a sufficient number
of contexts to check the results obtained through
etymology against actual usage of the relevant term.
Accordingly, etymology is in most cases the only
method by which we can get at the concepts of law
prevailing in different states in the late archaic as well
as in the classical period, and our interpretation will
be subject to the rather narrow and often unreliable
limits which etymology imposes.
Apart from the Athenian term thesmos, to be con-
sidered at greater length later, the earliest terms for
“written statute” are commonly derived either from
stems meaning “to speak,” “utter,” “pronounce,” or
from stems meaning “to write.” To the first of these
groups belongs rhetra, a term early applied to
Lycurgus' enactments at Sparta (Plutarch, Lyc. 6), but
attested from the early sixth century B.C. on also for
such Dorian states as Tarentum, Heracleia, and later
also Messenia, for Ionian Chios, for Olympia, and for
Cyprus (for the evidence see Busolt-Swoboda 1. 456).
From the same root ta eirēmena is derived, which
appears as a term for “statute” in early fifth-century
Mycenae (Inscriptiones Graecae 4. 493). The concept
underlying these two expressions is evidently that of
a pronouncement or an utterance authoritatively made,
in most cases by a people or an assembly; but whether
it was originally envisaged as the pronouncement of
an individual or a group we cannot tell. Moreover, with
the exception of the Lycurgan rhetra, which is said
to have been an oracle from Delphi (Plutarch, Lyc.
6), all other rhetrai of which we know from literary
or epigraphical sources seem to have been regarded
as human pronouncements. It may well be that the
idea underlying rhetra and ta eirēmena is similar to
the idea behind dikē in its sense of “verdict”; but this
association has no ancient evidence to support it and
also lacks an etymological basis. And further, there is
no reason to assume that either rhetra or ta eirēmena
originated from the utterance of a judge rather than
from that of some political organ.
Less problematic is that group of terms for “statute”
which is associated with the stem of a “writing” (to
graphos), which appears side by side with rhetra in
some inscriptions of the sixth century from Olympia
(Schwyzer, Nos. 410. 5, 413. 7, 412. 1-2, 418. 19) and
ta grammata, or expressions such as “as it is written,”
with which the fifth-century code of Gortyn invariably
refers to itself. The basic idea manifested in these
expressions is that a special importance and validity
attaches to regulations promulgated in written form.
More we cannot say, and we can only surmise that
the people of Olympia and Gortyn may have thought
of writing as lending permanence to their laws, which
these would lack if they were not published in written
form.
We are in a much better position to determine
Athenian concepts of law both for the late archaic and
for the classical period. For the former thesmos was
the technical term for a written statute, occasionally
in the adjectival formation ta thesmia. The date when
this concept first appears in Athens cannot be firmly
established. According to Aristotle (Athenaion Politeia
3. 4) one of the functions of the thesmothetai before
the legislation of Draco consisted in keeping written
records of ta thesmia, which, since he attributes the
earliest written legislation to Draco (41.2), cannot have
been statutes but probably records of particular judicial
decisions or statements of the principles underlying
such decisions. That Draco called his written laws
thesmoi is attested by the only survivor of his legisla-
tion, a republication of 409/8 B.C. of some of his laws
on homicide (Inscriptiones Graecae 12. 115. 19-20), as
well as by later references to his legislation (Athenaion
Politeia 4. 1, 7. 1; Andocides 1. 83, etc.). In the case
of Solon, we know from the poem discussed toward
the end of the preceding section that next to his
seisachtheia he regarded as his main achievement the
enactment of written thesmoi, through which he gave
each individual “a straight dikē,” i.e., his proper due
(frag. 24. 18-20, cf. Plutarch, Solon 3. 5); and at least
one of his surviving statues refers to itself as a thesmos
(Plutarch, Solon 19. 4). The term remained valid
throughout the tyranny of Peisistratus (Herodotus 1.
59. 6), and its last official use appears in the prescript
of a regulation from the time of the expulsion of the
Peisistratids (511/10 B.C.), in which the old Draconian
law against tyranny is described as thesmia kai patria
(Athenaion Politeia 16. 10). After the end of the sixth
century, thesmos is used only for antiquarian and not
for substantive reasons.
There is nothing controversial about the etymology
of thesmos. Like themis it is derived from a root mean-
ing “set,” “place,” “establish”; but unlike themis it has
in its legal sense no divine sanction and it is not con-
ceived of as a manifestation of a general social and
political order. The basic idea inherent in the term
is of something imposed by an agent or an agency on
a place or upon a group which is regarded as the
recipient of the imposition and for whom (in the case
of the group) it constitutes an obligation.
In the earliest occurrences of thesmos that have
come down to use the “imposition” is taken in a very
concrete and literal sense and refers to an object placed
in some significant location. Thus, in the only Homeric
passage in which it is found (
Od. 23. 296)
thesmos
signifies the proper location of the marriage couch of
Odysseus and Penelope; Pindar applies it to the
wreaths placed upon the victor's brow (
Olympian Odes
13. 29); in Demeter's attribute
thesmophoros it refers
to the bringing forth of ritual objects which had been
deposited in a special place; and in Anacreon it denotes
a treasure (frag. 61).
Much more commonly, however, the imposition is
to be taken in a metaphorical sense. In Aeschylus'
Eumenides (391-93) thesmos refers not only to the
place in the universe assigned by the gods to the
Erinyes but also to the establishment of an institution,
such as the establishment of the Areopagus as a court
to try cases of murder (484, 615) and the pronounce-
ment which constitutes the founding act (681, cf. 571).
The establishment of an institution is involved also in
the Supplices, where sexual intercourse is called a
thesmos of Aphrodite (1034), and in Pindar's naming
the Olympic Games as a tethmos of Heracles and the
Isthmian Games as a tethmos of Poseidon (Olymp. 6.
69; Nemean Odes 10. 33, cf. 11. 27; Olymp. 13. 40),
and a founding act is described when the immortals
established Aegina as a pillar for strangers from all the
world (Olymp. 8. 25-27).
thesmos (or more usually the plural thesmoi or the
adjectival thesmia) is also the term for fundamental
regulations governing different aspects of communal
organization. Political regulations established by the
rulers are called thesmoi in the ephebic oath (Tod, No.
204. 11-14); in Aristophanes (Birds 331) and in
Herodotus (3. 31. 3, cf. 1. 59. 6) their antiquity is
stressed. Social rules are involved in the laws safe-
guarding the institution of marriage (Sophocles, Antig-
one 800-01; cf. Euripides, Medea 494) and protecting
the ancient order as such (Euripides, frag. 360. 45);
and thesmoi are moral rules when they demand loyalty
to constituted authority, reverence for parents, or pre-
scribe that the doer must suffer (Antigone 802;
Aeschylus, Supplices 708, Agamemnon 1564).
In some contexts thesmos is sanctioned less by exter-
nal enforcement than by forces within the agent him-
self. The term then denotes basic rules of propriety
and good conduct, as it does in Pindar's excuse that
tethmos and the pressure of time prevent him from
telling a story fully (Nem. 4. 33) and in his rule to praise
the Aeacidae whenever he comes to Aegina (Isthmian
Odes 6. 20). Similar thesmoi are honored by Bellero-
phon in Euripides' Stheneboea (15, in Page [1942]).
Of most immediate relevance to an understanding
of the concept of law are specific political and religious
thesmoi. The written statutes of Draco and Solon have
already been mentioned. To them must be added a
number of Locrian statutes called tetthmoi (Buck, Nos.
57, 59), and fifth-century regulations from Athens and
Delphi (Hesperia 36 [1967], No. 15; Buck. No. 52). But
there are a number of passages which show that writing
is an accidental and not an essential attribute of
thesmos. The instructions the centaur Nessus left about
the use of his blood (Sophocles, Trachinian Maidens
682), the ritual thesmia performed by Ajax (Sophocles,
Ajax 712), the thesmia of the Areopagus which the
Erinyes fear (Aeschylus, Eumenides 491), and several
other thesmoi and thesmia are not very likely to have
been issued in writing. In other cases, such as
Democritus' proposed thesmos for the protection of
public officials (frag. 266) or Hecuba's question, which
nomos or thesmion sanctioned Polyxena's sacrifice
(Euripides, Troades 266-67), the problem of written
legislation is hardly relevant to the issue. In short,
although thesmos seems to have emerged no earlier
than written statutes, and although it is the earliest
term applied to them in Athens, the fact that the
legislation is written is not an intrinsic part of the
concept.
What does this discussion teach us about the concept
of law in the late archaic period, which ends for our
purposes with the last attested use of thesmos as a
technical term for “law” in Athens in the prescript
of a reenactment of Draco's law against tyranny in
511/10 B.C.? The basic idea underlying all the uses of
thesmos is that of something imposed by some higher
authority upon those for whom the thing imposed
constitutes an obligation. In its application to the legal
sphere it denotes, accordingly, a law enacted by a
lawgiver and imposed either in writing or in a non-
written form, upon a community which, though it is
bound by the law, has not necessarily had a voice in
formulating it. It resembles themis and dikē in that it
constitutes a binding obligation for the members of the
community, which by this time is the city-state. But,
unlike themis and dikē, it is not part of a universal
order, was never personified, and is always thought of
as having had a beginning in human time. Moreover,
unlike dikē it is not formulated by the pronouncement
of judges but is logically prior to such utterances and
forms their basis. It also differs from nomos, the con-
cept of law which came to the fore at the beginning
of the classical period in Athens and remained the
technical term for “statute” in Greece to this day. To
it we shall now turn our attention.
